HomeMy WebLinkAboutConst. Mgmt at Risk Agmt
CONSTRUCTION MANAGEMENT AT RISK AGREEMENT
FOR THE 25TH STREET WATER TANKS AND PUMP STATION PROJECT
CONTRACT made as of the
1'116. day of I17n/l(!ft ,2003
BY AND BETWEEN: City of Miami Beach, a political subdivision of the State of
Florida (CITY) and Jasco Construction Company, Inc. (CONTRACTOR).
Proiect Summary
The following summary (the "Project Summary") identifies the construction project
which is the subject of this Contract, including certain financial terms and deadlines. All
terms in this Project Summary are more fully defined or referenced in Article 1 of the
General Conditions.
The Project is:
THE CONSTRUCTION OF TWO (2) THREE MILLION GALLON
WATER STORAGE TANKS - A WATER PUMP STATION - A
TEMPORARY PARKING LOT NEAR THE PUBLIC WORKS YARD,
AND PARTIAL SITE DRAINAGE SYSTEM.
The CONTRACT ADMINISTRATOR is: CAPITAL IMPROVEMENT PROJECTS OFFICE
DIRECTOR OR HIS DESIGNEE
The CONSULTANT is: CAMP DRESSER & MCKEE, INC.
The Contract Time is: PROJECT TO BE SUBSTANTIALLY COMPLETED WITHIN 330
DAYS FROM ISSUANCE OF SECOND NOTICE TO PROCEED
AND COMPLETED WITHIN 30 DAYS FROM DATE CERTIFIED
AS DATE OF SUBSTANTIAL COMPLETION.
ARTICLE 1
THE PROJECT TEAM
1 The Project Team includes the CONTRACTOR, the CONTRACT
ADMINISTRATOR, and the CONSULTANT, all of whom shall work jointly and
cooperatively during completion of the design, construction and warranty phases.
1.2 The CONTRACTOR accepts the relationship of trust and confidence established
between it and the CITY by this Contract. CONTRACTOR covenants with the CITY
to furnish its best skill and judgment and to cooperate with the other members of the
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provide efficient business administration and superintendence, and to use its best
efforts to complete the Project in the most expeditious and economical manner,
consistent with the CITY's interests.
1.3 Entire Aqreement: Severabilitv: Amendments: This Contract includes and
incorporates the General Provisions and all ofthe Contract Documents identified in
the General Provisions, and all prior negotiations, correspondence, conversations,
agreements, and understandings applicable to the matters contained herein. The
parties agree that there are no commitments, agreements or understandings
concerning the subject matter of this Contract that are not contained in the Contract
Documents. Accordingly, the parties agree that no deviation from the terms hereof
shall be predicated upon any prior representations or agreements, whether oral or
written, except as specifically set forth in Article 1.4.
It is further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written
document executed in accordance with this Contract. In the event any provision of
the Contract Documents shall be found by a court of competent jurisdiction to be
invalid or otherwise unenforceable, the remainder of this Contract shall not be
affected thereby and each remaining provision, term, covenant or condition of the
Contract Documents shall continue to be effective.
1.4 Incorooration of Pre-Construction Services Aqreement: The CITY and
CONTRACTOR are parties to that certain agreement, dated April 18th, 2001,
entitled "Agreement for Pre-Construction Services between the City of Miami Beach,
Florida, and Jasco Construction Company for Construction Management at Risk
Services pursuant to RFQ No. 117-99/00, entitled 'Construction Management at
Risk for the Fire Station NO.2 Renovation and Expansion'" (hereinafter referred to
as the Pre-Construction Services Agreement). The Pre-Construction Services
Agreement was also amended to include the 25th Street Water Tanks and Pump
Station Project (the "Project" as defined in the Contract Documents).
The Pre-Construction Services Agreement contemplates that when the CITY
accepts the Guaranteed Maximum Price proposed by CONTRACTOR for the
Project, then the CITY and CONTRACTOR shall execute a "GMP Amendment",
accepting and establishing the GMP and more specifically delineating the respective
responsibilities of the CITY and CONTRACTOR with respect to the construction of
the Project.
At its regular meeting on February 5th, 2003, the Mayor and City Commission
accepted the GMP for the Project, subject to the negotiations of a comprehensive
Construction Management at Risk Agreement to proceed with construction of the
25th Street Water Tanks and Pump Station Project. To that end, CITY and
CONTRACTOR have negotiated this Contract and General Conditions which shall,
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upon execution by CITY and CONTRACTOR, supercede and replace, in its entirety,
that certain draft agreement entitled the "GMP Amendment" and referred to and
attached as Exhibit "8" of the Pre-Construction Services Agreement.
Notwithstanding this Article 1.4 or the rest of the Contract Documents the Pre-
Construction Services Agreement shall continue to apply to the project referred to
therein as the renovation and expansion of the City's Fire Station No.2, and
CONTRACTOR has not presented, nor has CITY, expressly or by implication,
accepted a GMP amount for same. Therefore, the provisions of this Contract and
the General Conditions, nor any of the Contract Documents with the exception of
the Pre-Construction Service Agreement, shall not apply to the renovation and
expansion of Fire Station NO.2 until such time as CITY and CONTRACTOR may
issue a written amendment providing for same (if at all). Until such time, the CITY
and CONTRACTOR'S responsibilities with respect to the renovation and expansion
of Fire Station NO.2 shall continue to be governed solely by the Pre-Construction
Services Agreement.
As to the Project, as defined in this Contract and General Conditions, the following
definitions, terms and conditions contained within the Pre-Construction Services
Agreement are modified and herein amended to the extent provided below. Said
modifications and/or amendments to the Pre-Construction Agreement shall be
superceded by this Contract and the General Conditions:
1.) Article 1 of the Pre-Construction Services Agreement entitled,
"Definitions", is deleted in its entirety. The Definitions in the Contract
Documents (the General Conditions), shall control.
2.) Any reference to "Architect/Engineer" in the Pre-Construction Services
Agreement shall be amended and deemed to refer to "CONSULTANT",
as defined in the Contract Documents (General Conditions).
3.) Any reference to "Construction Manager (CM)" orto "General Contractor"
in the Pre-Construction Services Agreement shall be amended and
deemed to refer to "CONTRACTOR", as defined in the Contract
Documents (General Conditions).
4.) Any reference to "GMP Amendment" in the Pre-Construction Services
Agreement is amended and deemed to refer to this Contract and the
General Conditions, and all exhibits and amendments thereto.
5.) The following Articles are deleted in their entirety from the Pre-
Construction Services Agreement, and shall hereinafter be superceded
by the Contract and General Conditions:
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Article II - Deleted in its entirety
Article 3.2 - Deleted in its entirety
Article VI - deleted in its entirety, except for Articles 6.3 and 6.3.1
Article VII - deleted in its entirety
Article VIII - deleted in its entirety
6.) Attachments 1- V ofthe Pre-Construction Services Agreement are herein
ratified, incorporated and made a part of this Contract and the General
Conditions.
. In the event of a conflict between terms contained in the Pre-Construction
Agreement and those in the Contract Documents, or any of the documents attached
or incorporated herein, the precedence will be given to that term which allows the
CITY to enforce the Contract Documents in the strictest possible terms.
ARTICLE 2
THE WORK
2.1 The CONTRACTOR shall perform all of the Work required by the Contract
Documents as generally described below and as shall be revised or added to
from time to time to reflect clarifications and approved changes.
2.2 Intention of CITY: It is the intent of CITY to describe in the Contract Documents a
functionally complete Project (or part thereof) to be constructed in accordance
with the Contract Documents. Any work, materials or equipment that may
reasonably be inferred from the Contract Documents as being required to
produce the intended result shall be supplied by CONTRACTOR within the GMP,
whether or not specifically called for. The Contract Documents shall be
interpreted so as to eliminate inconsistencies or conflicts, but in the event of any
conflict, requirements for greater quantity and/or more expensive work shall
govern. When words which have a well-known technical or trade meaning are
used to describe work, materials or equipment, such words shall be interpreted
in accordance with that meaning. Reference to standard specifications,
manuals, or codes of any technical society, organization or association, or to the
laws or regulations of any governmental authority, whether such reference be
specific or by implication, shall mean the latest standard specification, manual,
code or laws or regulations in effect at the time of execution of this Contract.
CITY shall have no duties other than those duties and obligations expressly set
forth within the Contract Documents.
2.3 The CONTRACTOR agrees that the Work shall be performed in a good and
professional manner, free from defects in materials and workmanship, and that all
Materials shall be new and approved by or acceptable to the CITY, except as
otherwise expressly provided for in the Contract Documents. The CONTRACTOR
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shall cause all Materials and other parts of the Work to be readily available as and
when required or needed for or in connection with the construction, furnishing and
equipping of the improvements.
ARTICLE 3
MANAGING GENERAL CONTRACTOR'S SERVICES
3.1 The services of the CONTRACTOR shall include, but are not limited to, those
described or specified herein. The services described herein shall not be deemed
to constitute a comprehensive specification having the effect of excluding services
not specifically mentioned.
3.2 Contractor's Duties and Responsibilities
[Note: Refer to Article IV of the Pre-Construction Services Agreement, which is
incorporated herein as it fully set forth]
3.3 Post-Construction Phase - CONTRACTOR shall coordinate Project close-out,
commencement of use or operations and transition to occupancy by the CITY.
CONTRACTOR shall cooperate fully and promptly with preparation of Certificates of
Substantial and Final Completion, and complete all remaining work and punch list
work. CONTRACTOR shall review all warranties, operation manuals and
maintenance manuals for completeness and compliance with the Contract
Documents, have some corrected, if necessary, and transmit them to CITY.
Transmittal of warranties, operations manuals and maintenance manuals to CITY
shall constitute CONTRACTOR's warranty of completeness and compliance of
same to the Contract Documents.
3.4 Warranty Phase - CONTRACTOR shall comply with requirements of Articles 32 and
33 of the General Conditions. CONTRACTOR shall participate with CITY
representatives in warranty inspections in the 6th and 11th months after Substantial
Completion, and shall coordinate all warranty and service work.
ARTICLE 4
CONTRACT TIME
4.1 Time is ofthe essence for the CONTRACTOR'S performance of the Work pursuant
to this Contract. The CONTRACTOR agrees to complete the Work in accordance
with the Progress Schedule and to achieve Substantial Completion of the Work, in
accordance with this Contract, and within the Contract time. CONTRACTOR
acknowledges that failure to achieve Substantial Completion will result in substantial
damages to the CITY, such as loss of beneficial use and/or occupancy of the
Project. Completion of the Work shall be achieved no later than thirty (30)
calendar days after issuance of a Certificate of Substantial Completion by the
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CONSULTANT.
4.2 CONTRACTOR shall be instructed to commence the Work by written instructions in
the form of a Purchase Order issued by the CITY's Procurement Director and
Notices to Proceed issued by the CONTRACT ADMINISTRATOR. Two (2) Notices
to Proceed will be issued for this Contract. CONTRACTOR shall commence
scheduling activities, permit applications, and other preconstruction work within five
(5) calendar days after the Project Initiation Date, which shall be the same as the
date of the first Notice to Proceed. The first Notice to Proceed and Purchase Order
will not be issued until CONTRACTOR'S submission to CITY of all required
documents and after execution of the Contract by both parties.
4.2.1. The receipt of all necessary permits by CONTRACTOR and acceptance of
the full Progress Schedule in accordance with technical specifications
section, submittal schedule and schedule of values is a condition precedent
to the issuance of the second Notice to Proceed to mobilize on the Project
site and commence with physical construction work.
4.3 Time is of the essence throughout this Contract. The Work shall be substantially
completed within 330 calendar days from the date specified in the second Notice to
Proceed, and completed and ready for final payment in accordance with Article 7,
within (30) calendar days from the date certified by CONSULTANT as the date of
Substantial Completion.
4.4 Upon failure of CONTRACTOR to substantially complete the Contract within the
specified period of time, plus approved time extensions, CONTRACTOR shall pay
to CITY the sum oCOne Thousand Five Hundred and 00/100 Dollars ($ 1500.00)
for each calendar day after the time specified in Article 4 (plus any approved time
extensions) for Substantial Completion. After Substantial Completion, should
CONTRACTOR fail to complete the remaining work within ten (10) calendar days
after said thirty (30) calendar day period for completion and readiness for final
payment, CONTRACTOR shall pay to CITY the sum of Two Thousand and 00/100
Dollars ($ 2000.00) for each calendar day after said ten (10) calendar day period,
for completion and readiness for final payment. The time frame for liquidated
damages shall not commence and thus shall be tolled until the CONTRACT
ADMINISTRATOR submits the Punch List to the CONTRACTOR. These amounts
are not penalties but are liquidated damages to CITY for its inability to obtain full
beneficial occupancy and/or use of the Project. Liquidated damages are hereby
fixed and agreed upon between the parties, recognizing the impossibility of precisely
ascertaining the amount of damages that will be sustained by CITY as a
consequence of such delay, and both parties desiring to obviate any question of
dispute concerning the amount of said damages and the cost and effect of the
failure of CONTRACTOR to complete the Contract on time.
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4.5 CITY is authorized to deduct liquidated damages from monies withheld due to
CONTRACTOR for the work under this Contract or as much thereof as CITY may,
in its sole discretion, deem just and reasonable. The CITY shall first deduct the
liquidated damages from the monies referenced in Article 6.2.
4.6 CONTRACTOR shall be responsible for reimbursing CITY, in addition to liquidated
damages, for all costs incurred by CONSULTANT in administering the construction
of the Project beyond the completion date specified above, plus approved time
extensions. CONSULTANT'S construction administration costs shall be pursuant to
the contract between CITY and CONSULTANT, a copy of which is available upon
request of the CONTRACT ADMINISTRATOR. All such costs shall be deducted
from the monies due CONTRACTOR for performance of Work under this Contract
by means of unilateral credit change orders issued by CITY as costs are incurred by
CONSULTANT and agreed to by CITY.
ARTICLE 5
THE CONTRACT PRICE (Guaranteed Maximum Price)
5.1 The Contract Price is the Guaranteed Maximum Price, agreed by the
CONTRACTOR and CITY under this Contract, payable to complete the Work in
accordance with the Contract Documents, as may be increased or decreased by
Change Order.
5.2 The Contract Price for the Project is $4,840,933, as is specifically defined and
delineated in Attachment III to this Contract, entitled, and incorporated by reference
herein.
5.3 In the event that the CONTRACTOR's total approved expenditures for the Project
shall exceed the Guaranteed Maximum Price, the CONTRACTOR shall pay such
excess from its own funds, and the CITY shall not be required to pay any amount
that exceeds the GMP; and the CONTRACTOR shall have no claim against the
CITY on account thereof.
ARTICLE 6
PROGRESS PAYMENTS
6.1 CONTRACTOR may make Application for Payment for work completed during the
Project at intervals of not more than once a month. CONTRACTOR'S application
shall show a complete breakdown of the Project components, the percentages
completed and the amount due in accordance with Article 6.4 below, together with
such supporting evidence as may be required by CONSULTANT. CONTRACTOR
shall submit with each Application for Payment, an updated Progress Schedule
acceptable to CONSULTANT, a certification of payments to Subcontractors and
releases of lien or consents of surety relative to the work which was the subject of
the prior Application. Each Application for Payment shall be submitted in triplicate to
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CONSULTANT for approval. CITY shall make payment to CONTRACTOR within
thirty (30) days after approval by CONSULTANT of CONTRACTOR's Application for
Payment and submission of an acceptable updated Progress Schedule.
6.2 Twenty percent (20%) of all monies earned by CONTRACTOR shall be retained by
CITY until Final Completion and acceptance by CITY. Afterfifty percent (50%) ofthe
Work has been completed, the CONTRACT ADMINISTRATOR may reduce the
retainage to ten percent (10%) of all monies previously earned and all monies
earned thereafter. Any reduction in retainage shall be at the sole discretion of the
CONTRACT ADMINISTRATOR; shall be recommended by CONSULTANT; and
CONTRACTOR shall have no entitlement to a reduction. Any interest earned on
retainage shall accrue to the benefit of CITY.
6.3 CITY may also withhold, in whole or in part, payment to such extent as may be
necessary to protect itself from loss on account of:
6.3.1 Defective CONTRACTOR or Subcontractor work not remedied.
6.3.2 Claims filed or reasonable evidence indicating probable filing of claims by
other parties against CONTRACTOR or CITY because of
CONTRACTOR'S performance.
6.3.3 Failure of CONTRACTOR to make payments properly to Subcontractors
that are in good standing.
6.3.4 Damage to another contractor not remedied.
6.3.5 Liquidated damages and costs incurred by CONSULTANT for extended
construction administration as provided in Article 4.6.
6.3.6 Failure of CONTRACTOR to provide any and all documents required to be
provided to City by the Contract Documents.
6.4 The first Application for Payment, and each payment application thereafter, shall be
based on a prepared schedule of values allocating the entire CONTRACTOR'S
Direct Construction Cost among the various portions of the Work (the "Schedule of
Values"), and attached and approved by CONSULTANT, (as well as any
subsequent revisions thereto) as Attachment III to the Contract. CONTRACTOR
shall prepare Schedule of Values, as well as all updates thereto, utilizing A.I.A.
Forms G702 and G703. The Schedule of Values shall list the cost of materials, the
cost of labor, the cost of equipment and the cost of subcontractor work where
applicable, separately for the portions of the Work delineated. Each monthly
Application for Payment shall be for a sum equal to (i) that portion of the
CONTRACTOR'S Direct Construction Cost equal to the percentage of the Work
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completed; plus (ii) the amount of the CONTRACTOR's General Conditions actually
expended in accordance with Attachment III; plus (iii) the amount of the
CONTRACTOR'S Fee equal to the percentage of the Work completed. The
calcu lation of the percentage of the Work completed shall be in accordance with the
Progress Schedule; provided, however, prior to the date of the Final Application,
and unless subject to reduction under Article 6.3, above, the aggregate of the
CONTRACTOR'S Fee payments shall not exceed Eighty (80%) percent of the
CONTRACTOR'S Fee.
The CONTRACTOR'S Direct Construction Cost shall be segregated and detailed in
a manner satisfactory to the CONSULTANT, with sufficient supporting
documentation and description of charges for the CONSULTANT to evaluate the
charges. The Application for Payment shall indicate the percentage of completion
of each portion ofthe Work, and the total Work, as ofthe end of the period covered
by the Application for Payment. The Schedule of Values shall be used as one basis
for reviewing the Application for Payment when such amounts are approved. The
Application for Payment shall include the cost of Materials not incorporated in the
Work, but delivered and suitably stored at the Project location or at some other
location approved, in writing in advance, by the CITY. Materials stored off-site must
be supported by a detailed invoice, bill of sale (transferring ownership to the CITY)
and insurance certificate naming the CITY as additional insured equal to or
exceeding the cost of the material so acquired.
6.5 If the CONTRACT ADMINISTRATOR, in its reasonable judgment, determines that
the portion of the Guaranteed Maximum Price then remaining unpaid will not be
sufficient to complete the Work in accordance with the Contract Documents, no
additional payments will be due to the CONTRACTOR hereunder unless and until
the CONTRACTOR, at its sole cost, performs a sufficient portion of the Work so
that such portion of the Guaranteed Maximum Price then remaining unpaid is
determined by the CONTRACT ADMINISTRATOR to be sufficient to so complete
the Work.
6.6 CONTRACTOR shall remain liable for subcontractors' work and for any unpaid
laborers, material suppliers or subcontractors in the event it is later discovered that
said work is deficient or that any subcontractors, laborers, or material suppliers did
not receive payments due them on the Project.
6.7 Except for the Contractor's Fee, the CONTRACTOR shall use the sums advanced to it
solely for the purpose of performance of the Work and the construction, furnishing and
equipping of the Work in accordance with the Contract Documents and payment of bills
incurred by the CONTRACTOR in performance of the Work.
ARTICLE 7
ACCEPTANCE AND FINAL PAYMENT
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7.1 Upon receipt of written notice from CONTRACTOR that the Work is ready for final
inspection and acceptance, CONSULTANT shall, within ten (10) calendar days,
make an inspection thereof. If CONSULTANT and CONTRACT ADMINISTRATOR
find the Work acceptable; that the requisite documents have been submitted and
the requirements of the Contract Documents have been fully performed; and all
conditions of the permits and regulatory agencies have been met, a Final Certificate
of Payment shall be issued by CONSULTANT, stating that the requirements of the
Contract Documents have been performed and the Work is ready for acceptance.
The time frame for liquidated damages shall not commence and thus shall be tolled
until the final inspection is performed by the CONSULTANT.
7.2 On or before issuance of the Final Certificate for Payment, CONTRACTOR shall
deliver to CONSULTANT:
(1) A final waiver and release, duly executed by the CONTRACTOR.
(2) An affidavit listing the name, address and telephone number of all the
Subcontractors who have performed Work on the Project, with such
Subcontractors identified as to the trade involved for the Work, along with
amounts paid to said Subcontractors in connection with the Project;
(3) Final waivers and releases, duly executed by the Subcontractors or
consent of surety;
(4) One (1) original set and one (1) copy set of the As-Built Drawings;
(5) Assignment of all manufacturer's warranties, guarantees, CITY's manuals
to the CITY, bound in a form acceptable to the CITY;
(6) Unconditional consent of the CONTRACTOR'S surety to final payment;
(7) The final bill of materials, and invoice (or final application for payment for
same).
7.3 If, after the Work has been substantially completed, full completion thereof is
materially delayed through no fault of CONTRACTOR, and CONSULTANT so
certifies, CITY shall, and without terminating the Contract, make payment of the
balance due for that portion of the Work fully completed and accepted. Such
payment shall be made under the terms and conditions governing final payment,
except that it shall not constitute a waiver of claims.
7.4 Final payment shall be made only after the City Manager or his designee has
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reviewed a written evaluation of the performance of CONTRACTOR prepared by
the CONTRACT ADMINISTRATOR, and approved the final payment. The
acceptance of final payment shall constitute a waiver of all claims by
CONTRACTOR, except those previously made in strict accordance with the
provisions of the Contract and identified by CONTRACTOR as unsettled at the time
of the application for final payment.
7.5 The CONTRACTOR'S final application for payment and the CONSULTANT'S final
certificate for payment shall constitute a representation to the CITY by the
CONTRACTOR and the CONSULTANT, respectively, that all conditions precedent
to CONTRACTOR'S entitlement to final payment have been satisfied.
7.6 Should there be any such judgment, claim or lien after final payment is made for
which the CITY may become liable, the CONTRACTOR shall reimburse and
indemnify the CITY for all monies that the CITY shall pay in satisfying, discharging,
or defending against any such judgment, claim or lien, or any action brought or
judgment recovered thereon, and all costs and expenses, including attorney's fees
and disbursements, incurred in connection therewith including appellate
proceedings.
7.7 The making of final payment shall not constitute a waiver of claims by the CITY for:
(a) faulty or defective Work appearing after CONSULTANT'S final certificate for
payment; (b) failure of the Work to be in strict accordance with the requirements of
the Contract Documents discovered after completion of the Work; and (c) terms of
all warranties required by the Contract Documents.
ARTICLE 8
MISCELLANEOUS
8.1 This Contract is part of, and incorporated in, the Contract Documents as defined
herein. Accordingly, all of the documents incorporated by the Contract Documents
shall govern this Project.
8.2 Where there is a conflict between any provision set forth within the Contract
Documents and a more stringent state or federal provision which is applicable to
this Project, the more stringent state or federal provision shall prevail.
8.3 Public Entitv Crimes
In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a
person or affiliate who is a contractor, consultant or other provider, who has been
placed on the convicted vendor list following a conviction for a public entity crime
may not submit a bid on a contract to provide any goods or services to the CITY,
may not submit a bid on a contract with the CITY for the construction or repair of a
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public building or public work, may not submit bids on leases of real property to the
CITY, may not be awarded or perform work as a contractor, supplier, subcontractor,
or consultant under a contract with the CITY, and may not transact any business
with the CITY in excess of the threshold amount provided in Section 287.017,
Florida Statutes, for category two pu rchases for a period of 36 months from the date
of being placed on the convicted vendor list. Violation of this section by Contractor
shall result in cancellation of the CITY purchase and may result in Contractor
debarment.
8.4 Independent Contractor
CONTRACTOR is an independent contractor under this Contract. SeNices
provided by CONTRACTOR pursuant to this Contract shall be subject to the
supeNision of CONTRACTOR. In providing such seNices, neither CONTRACTOR
nor its agents shall act as officers, employees, or agents of the CITY. This Contract
shall not constitute or make the parties a partnership or joint venture.
8.5 Third Party Beneficiaries
Neither CONTRACTOR nor CITY intends to directly or substantially benefit a third
party by this Contract. Therefore, the parties agree that there are no third party
beneficiaries to this Contract and that no third party shall be entitled to assert a
claim against either of them based upon this Contract. The parties expressly
acknowledge that it is not their intent to create any rights or obligations in any third
person or entity under this Contract.
8.6 Notices
Whenever either party desires to give notice to the other, such notice must be in
writing, sent by certified United States Mail, postage prepaid, return receipt
requested, or by hand-delivery with a request for a written receipt of
acknowledgment of delivery, addressed to the party for whom it is intended at the
place last specified. The place for giving notice shall remain the same as set forth
herein until changed in writing in the manner provided in this section. For the
present, the parties designate the following:
For CITY:
CAPITAL IMPROVEMENT PROJECTS OFFICE
ATTN: TIMOTHY HEMSTREET, DIRECTOR
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
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For Contractor:
8.7 Assiqnment and Performance: Neither this Contract nor any interest herein shall be
assigned, transferred, or encumbered by either party. In addition, CONTRACTOR
shall not subcontract any portion of the work required by this Contract except as
authorized by Section 19 of the General Conditions. CONTRACTOR represents
that all persons delivering the services required by this Contract have the knowledge
and skills, either by training, experience, education, or a combination thereof, to
adequately and competently perform the duties, obligations, and services set forth
in the Scope of Work and to provide and perform such services to CITY'S
satisfaction for the agreed compensation.
CONTRACTOR shall perform its duties, obligations, and services under this
Contract in a skillful and respectable manner. The quality of CONTRACTOR'S
performance and all interim and final product(s) provided to or on behalf of CITY
shall be comparable to the best local and national standards.
8.8 Materiality and Waiver of Breach
CITY and CONTRACTOR agree that each requirement, duty, and obligation set
forth in these Contract Documents is substantial and important to the formation of
this Contract and, therefore, is a material term hereof.
CITY'S failure to enforce any provision of this Contract shall not be deemed a
waiver of such provision or modification of this Contract. A waiver of any breach of
a provision of this Contract shall not be deemed a waiver of any subsequent breach
and shall not be construed to be a modification of the terms of this Contract.
8.9 Severance
In the event a portion of this Contract is found by a court of competent jurisdiction to
be invalid, the remaining provisions shall continue to be effective unless CITY or
CONTRACTOR elects to terminate this Contract. An election to terminate this
Contract based upon this provision shall be made within seven (7) days after the
finding by the court becomes final.
8.10 Applicable Law and Venue
This Contract shall be interpreted and construed in accordance with and governed
by the laws of the State of Florida. Any controversies or legal problems arising out
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of this Contract and any action involving the enforcement or interpretation of any
rights hereunder shall be submitted to the jurisdiction of the State courts of the
Eleventh Judicial Circuit of Miami-Dade County, Florida, the venue sites, and shall
be governed by the laws of the State of Florida. By entering into this Contract,
CONTRACTOR and CITY hereby expressly waive any rights either party may
have to a trial by jury of any civil litigation related to, or arising out of the
Project. CONTRACTOR, pursuant to Article 19 of the General Conditions,
shall specifically bind all subcontractors to the provisions of this Contract.
8.11 Amendments
No modification, amendment, or alteration in the terms or conditions contained
herein shall be effective unless contained in a written document prepared with the
same or similar formality as this Contract and executed by the CITY and
CONTRACTOR.
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IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement on the respective dates under each signature: CITY OF MIAMI BEACH
through its MAYOR AND CITY COMMISSION, signing by and through its MAYOR,
authorized to execute same by City Commission action on the I Cf n.. day
of Mill L- , 2003, and CONTRACTOR, signing by and
through , duly authorized to execute same.
CONTRACTOR MUST EXECUTE THIS CONTRACT AS INDICATED BELOW. USE
CORPORATION OR NONCORPORA TION FORMAT, AS APPLICABLE.
(City Clerk)
ATTEST
7J.w {D })1/2'-N~
(Print Name and Title)
fl .
~ (lay of ---Nt! L ,2003
A~
(Secretary)
JASCO CONSTRUCTION
COMPANY, INe.
(Corporate Seal)
By:
__(Name of Firm)
~~
/
\.
E.s7lEt3M .<'. SIfMc2-. !7tZESrpBl/r
(print Name and Title) (
L day of /l;<?~Z:L- ,2003
C~~~IRES FNE (5) FULLY-EXECUTED CONTRACTS, FOR DISTRIBUTION
M10
FORMaLANGUAGI
& FOR EXECUTION
~~7
Contract
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Construction Management at Risk Agreement
For the 25th Street Water Tanks and Pump Station Project
General Conditions
TABLE OF CONTENTS
1 Definitions ...... ....... ................................ ................. ........ ...... ............... ............ ...... 4
2 General Provisions. ............. ........................................... ..................... ......... ......... 6
3 Responsibilities of CONTRACTOR /Generally .....................................................8
4 ,Progress Schedule ................................................................................... ..........10
5 Superintendence and Supervision ............................................................ ..........11
6 CONSULTANT'S Authority .................................................................................12
7 Shop Drawings.......................................................................................... ..........13
8 Field Layout of the Work and Record Drawings .................................................14
9 Inspection and Testing. .................................................. ........... ........ ......... .........15
1 0 Taxes.................................................................................................................. 16
11 Priority of Provisions ...........................................................................................16
12 Changes in the Work or Terms of Contract Documents .....................................17
Notification of Change of Contract Time or Contract Price; Weather (17)
Change Orders (18)
Field Orders and Supplemental Instructions (21)
Differing Site Conditions (21)
13 Excusable Delay: Compensable & Non Compensable.......................................22
14 Substantial Completion Date ..............................................................................23
15 Use of Completed Portions ........................................................................ ......... 24
16 Cost of the Work.................... ................................... ........... ................ ...............25
Subcontractor Costs (25)
CONTRACTOR'S Labor Costs (26)
Materials and Equipment (26)
General Conditions
1
Miscellaneous costs (27)
17 Discounts. Rebates and Refunds .......................................................................30
18 Subcontract Requirements .......................................................................... ....... 30
19 Insurance Requirements ........................................................................... .......... 32
20 Indemnification.. ........................ ...... ........ .......................... ......... ........ .......... .......36
21 Performance and Payment Bond and Qualifications of Sureties........................ 36
Qualification of Surety (37)
22 Independent Contractor.................................. ..................... ............... ................ 38
23 I nspection of Work.............................................................................................. 38
24 Project Records............... ..................... ............................................. ........ .........39
25 Survey................................................................................................................. 40
26 Title to Work.. ....................... ..... .... ................... ............. ..... .............. ......... .........40
27 Work in Progress ................................................................................................41
28 Occupational Health and Safety.........................................................................41
29 CITY Licenses Permits and Fees .......................................................................43
30 Personnel............................................................................................................ 43
31 CONTRACTOR'S Warranties.......................... ............................. ..... .................44
32 Defective Work .............. ..... ............................. ...... ............. ............... ........ .........44
33 Signage............................................................................................................... 46
34 Public Entity Crimes Act......................................................................................46
35 Ownership of Contract Documents.....................................................................47
36 Assignment............................................ .......................................... .......... .........47
General Conditions
2
37 Nondiscrimination, Equal Employment Opportunity and
Americans With Disabilities Act... ............ ......... ....... .... .................... ............. ......4 7
38 Waiver................................................................................................................ 48
39 Construction of Terms ............................................. ................................. ..........49
40 Captions............. ........... ......... ............. ..................... ......... ......... .................. .......49
41 Entire Agreement; Severability; Amendments ....................................................49
42 CITY'S Right to Terminate Contract ...................................................................50
43 Resolution of Disputes ...... ....... ........... ...... ...... ........... .... ....... .... ... ....... ..... ...... ....51
44 Other Terms & Conditions .................................................................................. 52
Drug Free Workplace (52)
Hurricane Precautions (52)
Status Reports to CITY'S General Obligation (G.O.) Bond Oversight
Committee (52)
General Conditions
3
Construction Management at Risk Agreement
General Conditions
ARTICLE 1
DEFINITIONS
1.1 Chanqe Order: A written document ordering a change in the Contract Price or
Contract Time or a material change in the Work.
1.2 CITY: The CITY (or OWNER) shall mean the City of Miami Beach, a Florida
municipal corporation, having its principal offices at 1700 Convention Center Drive,
Miami Beach, Florida 33139, which is a party hereto and/orfor which this Contract
is to be performed. In all respects hereunder, CITY's performance is pursuant to
CITY's position as the OWNER of a construction project. In the event CITY
exercises its regulatory authority as a governmental body, the exercise of such
regulatory authority and the enforcement of any rules, regulations, laws and
ordinances shall be deemed to have occurred pursuant to CITY's regulatory
authority as a governmental body, and shall not be attributable in may manner to
CITY as a party to this Contract.
1.3 City Commission: City Commission shall mean the governing and legislative body
of the CITY.
1.4 Consultant: Architect or Engineer who has contracted with CITY to provide
professional services for this Project.
1.5 Contract: The Construction Management at Risk Agreement, including any
amendments and exhibits thereto.
1.6 Contract Administrator: The CITY's Contract Administrator shall mean the individual
appointed by the City Manager who shall be the CITY's authorized representative to
coordinate, direct, and review on behalf of the CITY, all matters related to the
Project.
1.7 Contract Documents: The Project Manual including drawings, plans, and
specifications; the Request for Qualifications No. 117-00/00, all attachments and
amendments thereto, and Contractor's response thereto; any Addenda to the
Project Manual; Pre-Construction Services Agreement, dated April 18, 2001, and
any Attachments and exhibits thereto (except for Exhibit B thereto, entitled the
"GMP Amendment"), the Contract and General Conditions and any amendments,
General Conditions
4
Attachments, and exhibits thereto; the Performance Bond and Payment Bond; the
Notice of Award; the Notice(s) to Proceed, and the Purchase Order; Change
Orders; Field Orders; Supplemental Instructions and any additional documents the
submission of which is required by the Project Manual, are the documents which are
collectively referred to as the Contract Documents.
1.8 Contract Price: The amount established in the Contract as the Guaranteed
Maximum Price (GMP), as may be amended by Change Order.
1.9 Contractor: the person, firm, or corporation with whom the CITY has contracted to
provide the Construction Management at Risk Services contemplated in the
Contract Documents, and who is responsible for the acceptable performance of the
Work and for the payment of all legal debts pertaining to the Work. All references in
the Contract Documents to third parties under contract or control of Contractor shall
also be deemed to be a reference to CONTRACTOR.
1.10 Field Order: A written order which orders minor changes in the Work but which does
not involve a change in the Contract Price or Contract Time.
1.11 Final Completion: The date certified by CONSULTANT in the Final Certificate of
Payment upon which all conditions and requirements of any permits and regulatory
agencies have been satisfied; and the documents required by the Contract
Documents have been received by CONSULTANT; any other documents required
to be provided by CONTRACTOR have been received by CONSULTANT; and to
the best of CONSULTANT's information and belief the Work defined herein has
been fully completed, in accordance with the terms and conditions of the Contract
Documents.
1.12 Inspector: An authorized representative or employee of the CONSULTANT or CITY
assigned to make necessary inspections of materials furnished by Contractor and of
the Work performed by Contractor.
1.13 Materials: Materials incorporated in this Project, or used or consumed in the
performance of the Work.
1.14 Notice to Proceed: A written notice to CONTRACTOR authorizing the
commencement of Work.
1.15 Plans DrawinQs and/or Specifications: The official graphic representations of this
Project which are a part of the Project Manual.
1.16 Proiect: The construction project described in the Contract Documents, including
the Work described therein.
General Conditions
5
1.17 Proiect Initiation Date: The date upon which the first notice to proceed is issued.
The Contract Time shall commence as of the date the second notice to proceed is
issued.
1.18 Subcontractor: A person, firm or corporation having a direct contract with
CONTRACTOR including one who furnishes material worked to a special design
according to the Project Manual for this work, but does not include one who merely
furnishes material not so worked.
1.19 Substantial Completion: The date certified by CONSULTANT when all conditions
and requirements of permits and regulatory agencies have been satisfied and the
CONSULTANT has certified the Work is sufficiently complete in accordance with
the Contract Documents so the Project is available for beneficial use by CITY. A
Certificate of Occupancy or Certificate of Completion must be issued for Substantial
Completion to be achieved; however, the issuance of a Certificate of Occupancy or
Certificate of Completion, or the date thereof, are not to be determinative of the
achievement or date of Substantial Completion.
1.20 Surety: The surety company or individual which is bound by the performance bond
and payment bond with and for CONTRACTOR who is primarily liable, and which
surety company or individual is responsible for CONTRACTOR'S acceptable
performance of the work under the contract and for the payment of all debts
pertaining thereto in accordance with Section 255.05, Florida Statutes.
1.21 Work: 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 Contractor to fulfill Contractor's
obligations. The Work may constitute the whole or a part of the Project.
ARTICLE 2
GENERAL PROVISIONS
2.1 Generallv.
CONTRACTOR hereby agrees to furnish all of the labor, materials, equipment,
services and incidentals necessary to perform all of the work described in the
Contract Documents, and related thereto for the Project within the Guaranteed
Maximum Price (GMP).
2.2 Relationship of CITY and CONTRACTOR: The CONTRACTOR accepts the
relationship of trust and confidence established between it and the CITY by this
General Conditions
6
Agreement. The CONTRACTOR represents that it will furnish its best skill and
judgment in performing the Work, and shall always act to further the interest of the
CITY in the expeditious completion of the Project at the lowest cost to the CITY and
in strict accordance with the Contract Documents, and prudent and customary
construction practices.
By signing this Contract, the CONTRACTOR accepts a fiduciary duty with the CITY
and warrants and represents to the CITY that the CONTRACTOR (a) has all
licenses and certifications required by Applicable Law (defined as all federal, state
county, and local statutes, codes, laws, rules, regulations, ordinances, orders and
standards applicable to the Project and any other such law hereafter enacted, and
any rules adopted pursuant thereto, as all such laws may be amended from time to
time to perform the Work); (b) is experienced in all aspects of pre-construction and
construction planning for projects similar to the Project; (c) will act in the CITY'S
highest and best interests in performing the Work; and (d) that no employee or
affiliate of the CONTRACTOR, including all Subcontractors and suppliers, at any
tier, has been convicted of a public entity crime, fraud, theft and/or a property
damage crime within the preceding thirty-six (36) months from the time this Contract
is executed, pursuant to Section 287.133, Florida Statutes.
2.3 Intention of CITY: It is the intent of CITY to describe in the Contract Documents a
functionally complete Project to be constructed in accordance with the Contract
Documents and in accordance to all codes and regulations governing construction
of the Project. Any work, materials or equipment that may reasonably be inferred
from the Contract Documents as being required to produce the intended result shall
be supplied by Contractor whether or not specifically called for. When words which
have a well-known technical or trade meaning are used to describe work, materials
or equipment, such words shall be interpreted in accordance with that meaning.
Reference to standard specifications, manuals, or codes of any technical society,
organization or associations, or to the laws or regulations of any governmental
authority, whether such reference is specific or by implication, shall mean the latest
standard specification, manual, code or laws or regulations in effect at the time of
execution of this Contract. CITY shall have no duties other than those duties and
obligations expressly set forth within the Contract Documents.
2.4 The Contractor agrees that the Work shall be performed in a good and professional
manner, free from defects in materials and workmanship, and that all Materials shall
be new and approved by or acceptable to the CONSULTANT AND CONTRACT
ADMINISTRATOR, except as otherwise expressly provided for in the Contract
Documents. The CONTRACTOR shall cause all Materials and other parts of the
Work to be readily available as and when required or needed for or in connection
with the construction, furnishing and equipping of the improvements.
General Conditions
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ARTICLE 3
RESPONSIBILITIES OF CONTRACTOR/GENERALL Y
3.1 The CONTRACTOR shall perform the Work and complete the Project at or below
the GMP, in accordance with the Contract Documents, and shall achieve
Substantial Completion of the Work within the Contract Time. Completion of the
Work shall be achieved no later than thirty (30) calendar days after issuance of a
Certificate of Substantial Completion, as referenced by Articles 4.3 and 4.4 of the
Contract.
3.2 CONTRACTOR shall furnish efficient business administration, coordination,
management and supervision of Work required to complete the Project, and shall
cooperate with the CITY, CONSULTANT, the CONTRACT ADMINISTRATOR and
their respective representatives, in furthering the interests of CITY in the expeditious
completion of the Project at the lowest cost to CITY, consistent with the
requirements of the Contract Documents and prudent and customary construction
practices.
3.2.1 The CONTRACTOR shall perform the Work, and shall cause its
Subcontractors to perform the Work, in strict accordance with all Applicable
Laws, as defined in Article 2.2 herein. By signing this Agreement, the
CONTRACTOR represents and warrants that it is familiar with all Applicable
Laws that govern the Work.
3.2.2 If CONTRACTOR has knowledge that the Contract Documents do not
comply with Applicable Laws in any respect, the CONTRACTOR shall
promptly notify the CONSULTANT in writing and any necessary changes
shall be adjusted by appropriate revisions. If the CONTRACTOR performs
any Work not in accordance with Applicable Laws, and without such notice to
the CONSULTANT, the CONTRACTOR shall assume full responsibility
therefore and shall bear all costs attributable thereto.
3.2.3 In the event that Work is deemed by competent authority not to comply with
Applicable Law, the CONTRACTOR shall bring such Work into compliance
with Applicable Law. If the Applicable Law is enacted after the GMP is
established, and the CONTRACTOR had no reasonable prior knowledge of
such a change to Applicable Law, such change shall be considered an
unforeseeable and unavoidable cost and the CITY shall approve a Change
Order to bring such Work into compliance with Applicable Laws. New
interpretations of existing Applicable Law shall not be considered an
unforeseeable and unavoidable cost.
General Conditions
-8-
3.3 The CONTRACTOR warrants that it has thoroughly reviewed and studied the
Contract Documents and has determined that they are in conformance with
Applicable Laws (enacted as of the date of this Contract) and are complete and
sufficiently coordinated to perform the Work within the GMP and the Contract Time.
CONTRACTOR warrants that the Plans, Drawings and Specifications are
consistent, practical, feasible and constructible. CONTRACTOR further warrants
that the Work described in the Plans, Drawings and Specifications is constructible
within the GMP and the Contract Time.
THE CITY DISCLAIMS ANY WARRANTY THAT THE PLANS, DRAWINGS AND
SPECIFICATIONS FOR THE PROJECT ARE ACCURATE, PRACTICAL,
CONSISTENT, AND CONSTRUCTIBLE.
3.4 The CONTRACTOR accepts the Project site in its observable and/or documented
condition existing at the time of this Agreement or conditions ordinarily encountered
and generally recognized as inherent to the character of the Work to be provided for
in this Project. By signing this Contract, the CONTRACTOR represents that it has:
(a) visited the Project site to become familiar with the conditions under which the
Work is to be performed; (b) become familiar with all information provided by the
CITY pertaining to the Project site; and (c) correlated its observations with the
information furnished by the CITY, and the Contract Documents. The
CONTRACTOR hereby waives additional time or compensation for additional work
made necessary by observable and/or documented conditions existing at the
Project site, or conditions ordinarily encountered and generally recognized as
inherent to the character of the Work to be provided for in this Project.
3.5 The CONTRACTOR agrees specifically that no Change Orders shall be required by
the CONTRACTOR or considered by the City for reasons involving conflicts in the
Contract Documents, questions of clarity with regard to the Documents,
incompatibility, or conflicts between the Documents and the existing Project site
conditions, utilities, and unforeseen underground conditions. The CONTRACTOR
acknowledges that it has ascertained all correct locations for points of connection
for all utilities, if any, required for this Project.
3.6 The CONTRACTOR shall, as may be required for the proper execution and
completion of the Work, secure all necessary permits and revisions thereto, fees
and licenses, as required by Applicable Laws to complete the Project, including, but
not omitted to, all necessary utility connection permits and fees.
3.7 The CONTRACTOR shall comply with all conditions of any permits issued by
government authorities.
General Conditions
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ARTICLE 4
PROGRESS SCHEDULE
4.1 Within ten (10) calendar days after the date of issuance of the first Notice to
Proceed, the CONTRACTOR shall prepare and submit, for the CONSULTANT and
CONTRACT ADMINISTRATOR'S review and approval, the construction schedule of
the Project, utilizing the Critical Path Method (CPM) of scheduling (utilizing the Cost
Loader "Primavera Project Planner" scheduling software for Windows). In addition,
the CONTRACTOR shall periodically prepare and submit other necessary
schedules (all of which are hereinafter collectively referred to as the "Progress
Schedule"). In the interest of completing the Project in the most expeditious and
economical manner, the Progress Schedule shall indicate the start and completion
dates of the various stages of the Work and shall show an activity network for the
planning and execution of the Work. Included with the Progress Schedule shall be
a narrative description of the Schedule. As a condition precedent to any payment,
the CONTRACTOR shall update the Project Schedule at least monthly; such update
submitted as part of each Application for Payment and showing actual progress vs.
scheduled progress. Failure to provide such monthly updates will preclude the
CONTRACTOR from submitting a delay claim. The CONTRACTOR shall indemnify
the CITY from any subordinate delay claim. The Progress Schedule shall
encompass all of the work of all trades necessary for the construction of the Project
and shall be sufficiently complete and comprehensive to enable progress to be
monitored on a weekly basis.
4.2 In addition to the Progress Schedule, CONTRACTOR shall provide weekly to the
CONSULTANT and CONTRACT ADMINISTRATOR a 2-week look-ahead schedule
denoting all activity to be performed; identifying all shop drawing submittal
responses that are needed for such activities; identifying the activities that need
testing and approval; and identifying the entity or authority responsible for such
testing. Shop drawing submittal requirements are set forth more specifically in
Article 7, and inspection and testing are addressed more specifically in Article 9.
4.4 The CITY reserves the right to require such information from the CONTRACTOR as
may be necessary to determine the accuracy of the Progress Schedule and any
updates thereto.
General Conditions
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ARTICLE 5
SUPERINTENDENCE AND SUPERVISION
5.1 The orders of CITY are to be given through the CONTRACT ADMINISTRATOR,
which instructions are to be strictly and promptly followed in every way.
CONTRACTOR shall keep on the Project during its progress, a competent English
speaking superintendent, and any necessary assistants, all satisfactory to the
CONSULTANT and CONTRACT ADMINISTRATOR. The superintendent shall not
be changed except with the written consent of CONTRACT ADMINISTRATOR,
unless the superintendent proves to be unsatisfactory to CONTRACTOR and
ceases to be in its employ. The superintendent shall represent CONTRACTOR and
all direction given to the superintendent shall be as binding as if given to
CONTRACTOR. CONTRACTOR shall give efficient supervision to the Work, using
its best skill and attention.
5.2 Daily, CONTRACTOR shall record, at a minimum, the following information in a
bound log: the day; date; weather conditions and how any weather condition
affected the progress of the Work; time of commencement of work for the day; the
work being performed; materials, labor, personnel, equipment and subcontractors at
the Project site; visitors to the Project site including CONTRACT ADMINISTRATOR
and CONSULTANT; any special or unusual conditions or occurrences encountered;
and the time of termination of work for the day. All information shall be recorded in
the daily log in ink. The daily log shall be kept on the Project site and shall be
available at all times for inspection and copying by CITY and CONSULTANT.
5.3 The CONTRACTOR, CONSULTANT and CONTRACT ADMINISTRATOR shall meet
at least once monthly, or as determined by the CONTRACT ADMINISTRATOR,
during the course of the Work to review and agree upon the work performed to date
and to establish the controlling items of work for the next month. The
CONTRACTOR shall publish, keep, and distribute minutes and any comments
thereto of each such meeting. Notwithstanding the foregoing, the CONTRACTOR
shall meet on a weekly basis with CONTRACT ADMINISTRATOR and
CONSULTANT'S inspector to review and agree upon the Work performed to date
and to establish the controlling items of work for the next week.
5.4 CONTRACTOR shall supervise and direct the Work competently and efficiently,
devoting such attention thereto and applying such skills and expertise as may be
necessary to perform the Work in accordance with the Contract Documents.
CONTRACTOR shall be solely responsible for the means, methods, techniques,
sequences and procedures of construction.
General Conditions
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ARTICLE 6
CONSULTANT'S AUTHORITY
6.1 The CONSULTANT will provide overall technical and management services to
assist the CITY in maintaining schedules, establishing budgets, controlling costs,
achieving quality and minimizing operational disruptions.
6.2 If at any time the CONTRACT ADMINISTRATOR observes or becomes aware of
any fault or defect in the Project or of any nonconformance with the Contract
Documents, CONTRACT ADMINISTRATOR will notify the CONSULTANT, and will
direct that all reasonable steps be taken to correct such fault, defect or
nonconformance. The CONTRACT ADMINISTRATOR and CONSULTANT shall
have the authority to reject Work that does not conform to the Contract Documents.
6.3 CONSULTANT shall monitor the overall control and expediting of the construction
work to facilitate completion of the Work within the approved time frame and within
the estimate of the construction cost.
6.4 CONSULTANT shall also be responsible for quality assurance of the construction
work in accordance with the construction and procurement contracts.
6.5 CONSULTANT shall monitor the work of CONTRACTOR and shall coordinate all
phases of its work to facilitate completion of the Project in accordance with the
established time period and estimate of construction cost.
6.6 CONSULTANT shall not have control over construction means, method, techniques,
sequences and procedures employed by CONTRACTOR in the performance ofthe
Work, but shall be responsible for using its best efforts to review, and if
unacceptable, disapprove such, and shall recommend a course of action to the
CITY when the requirements of the Contract are not being met.
6.7 The CONTRACT ADMINISTRATOR will be assisted by CONSULTANT in the areas
of on-site review of work in progress, review of pay applications submitted by the
CONTRACTOR, assisting in the interpretation of the intent of the Contract
Documents for the proper execution of the Work, and such other assistance as the
CONTRACT ADMINISTRATOR may request.
General Conditions
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ARTICLE 7
SHOP DRAWINGS
7.1 CONTRACTOR shall submit Shop Drawings as required by Division 1 and the
Technical Specifications. The purpose of the Shop Drawings is to show the
suitability, efficiency, technique of manufacture, installation requirements, details of
the item, and evidence of its compliance or noncompliance with the Contract
Documents.
7.2. Within thirty (30) calendar days after the Project Initiation Date specified in the first
Notice to Proceed, CONTRACTOR shall submitto CONSULTANT and CONTRACT
ADMINISTRATOR a list of preliminary data on items for which Shop Drawings are
to be submitted and shall identify the critical items. Approval of this list ("the
Schedule of Submission") by CONSULTANT shall in no way relieve CONTRACTOR
from submitting complete Shop Drawings and providing materials, equipment, etc.,
fully in accordance with the Contract Documents. This procedure is required in order
to expedite final approval of Shop Drawings.
7.3 After the approval of the list of items required in Article 7.2 above, CONTRACTOR
shall promptly request Shop Drawings from the various manufacturers, fabricators.
and suppliers.
7.4 CONTRACTOR shall thoroughly review and check the Shop Drawings and each
and every copy shall show this approval thereon.
7.5 If the Shop Drawings show or indicate departures from the Contract requirements,
CONTRACTOR shall make specific mention thereof in its letter of transmittal.
Failure to point out such departures shall not relieve CONTRACTOR from its
responsibility to comply with the Contract Documents.
7.6 Provided such submittals are in conformance with approved Schedule of
Submission, CONSULTANT shall review and approve Shop Drawings within fifteen
(15) calendar days from the date received, unless said Drawings are rejected by
CONSULTANT for material reasons. CONSULTANT's approval of Shop Drawings
will be general and shall not relieve CONTRACTOR of responsibility for the
accuracy of such Drawings, nor for the proper fitting and construction of the work,
nor for the furnishing of materials or work required by the Contract Documents and
not indicated on the Drawings. No work called for by Shop Drawings shall be
performed until the said Drawings have been approved by CONSULTANT. Approval
shall not relieve CONTRACTOR from responsibility for errors or omissions of any
sort on the Shop Drawings.
General Conditions
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7.7 No approval will be given to partial submittals of Shop Drawings for items which
interconnect and/or are interdependent where necessary to properly evaluate the
design. CONSULTANT will timely provide a list of interconnecting or interdependent
items; however, it is CONTRACTOR's responsibility to assemble the Shop Drawings
for all such interconnecting and/or interdependent items, check them and then make
one submittal to CONSULTANT along with its comments as to compliance,
noncompliance, or features requiring special attention.
7.8 If catalog sheets or prints of manufacturer's standard drawings are submitted as
Shop Drawings, any additional information or changes on such drawings shall be
typewritten or lettered in ink.
7.9 CONTRACTOR shall submit the number of copies required by CONSULTANT.
Resubmissions of Shop Drawings shall be made in the same quantity until final
approval is obtained.
7.10 CONTRACTOR shall keep one set of Shop Drawings marked with CONSU L T ANT's
approval at the job site at all times.
ARTICLE 8
FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS
8.1 The entire responsibility for establishing and maintaining line and grade in the field
lies with CONTRACTOR. CONTRACTOR shall maintain an accurate and precise
record of the location and elevation of all underground site utilities installed by
CONTRACTOR, including pipe lines, conduits, structures, manholes, hand holes,
fittings and the like which are sealed by a Professional Surveyor to enable
CONSULTANT to prepare record or "as-built" drawings of the same.
CONTRACTOR shall deliver these records in good order to CONSULTANT for
review as the Work is completed. The cost of all such field layout and recording
work is included in the prices bid for the appropriate items. All record drawings shall
be made on reproducible paper.
8.2 The CONTRACTOR shall maintain in a safe place at the Project site one record set
of the Contract Documents in good order and marked currently to record all
changes made during construction and an accurate and precise location of all
portions of the Work sufficient for the CONSULTANT to prepare accurate as-built
drawings. The CONTRACTOR shall cooperate with the CONSULTANT in the
preparation of accurate as-built drawings.
8.3 Prior to, and as a condition precedent to Final Payment, CONTRACTOR shall
submit to CONSULTANT for review CONTRACTOR'S record drawings or as-built
drawings acceptable to CONSULTANT. Upon acceptance by CONSULTANT said
General Conditions
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record drawings or as-built drawings shall be forwarded to CONTRACT
ADMINISTRATOR.
8.4 The CONTRACTOR shall deliver to CONSULTANT for delivery to the CITY all
equipment data, along with its recommended spare parts list, maintenance
manuals, manufacturer's warranties and operations manuals as may be required for
the CITY employees or agents to maintain and operate any equipment delivered as
a part of the Work. Upon acceptance by CONSULTANT, all spare parts list,
maintenance, manuals, manufacturers' warranties and operation manuals shall be
forwarded to the CONTRACT ADMINISTRATOR at least thirty (30) days prior to
Substantial Completion.
ARTICLE 9
INSPECTION AND TESTING
9.1 CONSULTANT and CITY shall at all times have access to the Work, and
CONTRACTOR shall provide for use by the CONSULTANT facilities for such
access and for inspecting, measuring and testing.
9.1.1 Should the Contract Documents, CONSULTANT's instructions, any laws,
ordinances, or any public authority require any of the Work to be specially
tested or approved, CONTRACTOR, shall provide for OWNER and update
weekly for the CONSULTANT, in the two (2) week "look-ahead" schedule
denoting all activity to be performed, and highlighting those that need testing
and approval. If the testing or approval is to be made by an authority other
than CITY, timely notice shall be given of the date fixed for such testing.
Testing shall be made promptly, and where practicable, at the source of
supply. If any of the Work is covered up without approval or consent of
CONSULTANT, it must, if required by CONTRACT ADMINISTRATOR, be
uncovered for examination and properly restored.
9.1.2 Reexamination of any of the Work may be ordered by CONTRACT
ADMINISTRATOR, and if so ordered, the Work must be uncovered by
CONTRACTOR. If such Work is found to be in accordance with the Contract
Documents, CITY shall pay the cost of re-examination, which may include
extended general conditions and associated time, and replacement by
means of a change order; provided CONTRACTOR substantiates to the
satisfaction of the CONTRACT ADMINISTRATOR that such re-examination
materially and adversely impacts Contract Time and is not an interim delay.
If such Work is not in accordance with the Contract Documents,
CONTRACTOR shall pay such cost as part of the GMP.
General Conditions
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9.2 Inspectors shall have no authority to permit deviations from, nor to relax any of the
provisions of, the Contract Documents nor to delay the Contract by failure to inspect
the materials and work with reasonable promptness without the written permission
or instruction of CONTRACT ADMINISTRATOR.
9.3 The payment of any compensation, whatever may be its character or form, or the
giving of any gratuity or the granting of any favor by CONTRACTOR to any
inspector, directly or indirectly, is strictly prohibited, and any such act on the part of
the CONTRACTOR will constitute a breach of this Contract.
ARTICLE 10
TAXES
10.1 CONTRACTOR shall pay all applicable sales, consumer, use and other taxes
required by law. CONTRACTOR is responsible for reviewing the pertinent state
statutes involving state taxes and complying with all requirements.
ARTICLE 11
PRIORITY OF PROVISIONS
11.1 The Contract Documents shall be interpreted so as to eliminate inconsistencies or
conflicts, but in the event of any conflict, requirements for greater quantity and/or
more expensive and/or extensive work shall govern.
11.2 In case of conflicts between the provisions of this Contract, any ancillary documents
executed contemporaneously herewith or prior hereto, or any other of the Contract
Documents, the provisions of this Contract (including all Attachments, amendments
and exhibits) shall prevail, except as specifically provided in Article 1.4 of the
Contract.
11.3 Anything shown on the Plans and not mentioned in the Specifications or mentioned
in the Specifications and not shown on the Plans shall have the same effect as if
shown or mentioned respectively in both. In case of disagreement between the
written and graphic portions of the Contract Documents, the written portion shall
govern.
11.4 The organization of the Specifications into divisions and sections and the
arrangement of Plans shall not control CONTRACTOR in dividing the Work among
subcontractors or in establishing the extent of the Work to be performed by any
trade. The organization of the Specifications and the arrangement of the Plans are
for the convenience of the CONTRACTOR and are not intended to relieve the
CONTRACTOR from its obligation to conduct a complete study of the Plans,
General Conditions
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Specifications and Addenda for the purpose of prosecuting the Work and directing
the various Subcontractors and suppliers as to their respective responsibilities.
ARTICLE 12
CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
12.1 Without invalidating the Contract and without notice to any surety CITY reserves
and shall have the right, from time to time to make such increases, decreases or
other changes in the character or quantity of the Work as may be considered
necessary or desirable to complete fully and acceptably the proposed construction
in a satisfactory manner. Any extra or additional work within the scope of this
Project must be accomplished by means of appropriate Field Orders and
Supplemental Instructions or Change Orders.
12.2 Changes to the terms of the Contract Documents must be contained in a written
document, executed by the parties hereto, with the same formality and of equal
dignity prior to the initiation of any work reflecting such change. This section shall
not prohibit the issuance of Change Orders executed only by CITY as hereinafter
provided.
12.3 The actual cost of the Payment and Performance Bond shall be added to or
deducted from the cost of the changes in the Work.
12.4 Notification of Chanqe of Contract Time or Contract Price; Weather
12.4.1 Any claim for a change in the Contract Time or Contract Price shall be made
by written notice delivered by CONTRACTOR to the CONTRACT
ADMINISTRATOR within five (5) calendar days of the commencement of the
event giving rise to the claim (which may include an occurrence or omission
that CONTRACTOR contends delays the Work, or receipt of an order,
instruction, CONSULTANT's supplemental information or other directive
changing the Work, or any other occurrence that CONTRACTOR contends
causes a change in Contract Time or Contract Price) and stating the general
nature of the claim. Notice of the nature and elements of the claim shall be
delivered within twenty (20) calendar days after the date of such written
notice. Thereafter, within twenty (20) calendar days of the termination of the
event giving rise to the claim, notice of the extent of the claim with supporting
data shall be delivered, unless CONSULTANT and CONTRACT
ADMINISTRATOR allows an additional period of time to ascertain more
accurate data in support of the claim, and shall be accompanied by
CONTRACTOR's written statement that the adjustment claimed is the entire
adjustment to which the CONTRACTOR has reason to believe it is entitled
as a result of the occurrence of said event. All claims for adjustment in the
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Contract Time or Contract Price shall be determined by CONSULTANT and
CONTRACT ADMINISTRATOR in accordance with Article 44 hereof, if
CONSULTANT, CONTRACT ADMINISTRATOR and CONTRACTOR cannot
otherwise agree. NO CLAIM FOR AN ADJUSTMENT IN THE CONTRACT
TIME OR CONTRACT PRICE WILL BE VALID UNLESS IT IS SUBMITTED
IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF THIS
SECTION.
12.4.2 The Contract Time will be extended in an amount equal to time lost due to
delays beyond the control of and through no fault, negligence, or act or
omission of CONTRACTOR if a claim is made therefore as required by the
Contract. Such delays shall include, but not be limited to, acts or neglect by
any separate contractor employed by CITY, fires, floods, labor disputes,
epidemics, abnormal weather conditions, acts of God, or acts of terrorism.
12.4.3 Extensions to the Contract Time for delays caused by the effects of
inclement weather shall be submitted as a request for change in Contract
Time pursuant to this Article 12. These time extensions are justified only
when rain or other inclement weather conditions or related adverse soil
conditions prevent CONTRACTOR from productively performing controlling
items of work; identified on the accepted schedule or updates resulting in:
(1) CONTRACTOR being unable to work at least fifty percent (50%) of the
normal work day on controlling items of work identified on the accepted
schedule or updates due to adverse weather conditions; or (2)
CONTRACTOR must make major repairs to the Work damaged by weather,
provided the damage was not attributable to a failure or neglect by
CONTRACTOR, and provided that CONTRACTOR was unable to work at
least fifty percent (50%) of the normal work day on controlling items of work
identified on the accepted schedule or approved updates. No time
extension will be allowed for weekend rains unless the CONTRACTOR has
been working weekends on a regular basis on exterior Work.
12.4.4 The CONTRACTOR agrees and acknowledges that no ground for an
extension to the Contract Time or Contract Price shall arise as a result of
any reasonably foreseeable condition at the Project site, or as a result of
anything contained in the Contract Documents.
12.5 Chanae Orders
12.5.1 Changes in the quantity or character of the Work within the scope of the
Project which are not properly the subject of Field Orders or Supplemental
Instructions, including all changes resulting in changes in the Contract Price,
or the Contract Time, shall be authorized only by Change Orders approved
and issued by CITY.
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12.5.2 The CONSULTANT, as authorized by the CONTRACT ADMINISTRATOR,
may initiate a change order request ("Change Order Request"), setting forth
in detail the nature of the requested change. Upon receipt of a Change
Order Request, the CONTRACTOR shall review the change order request
with the CONSULTANT and CONTRACT ADMINISTRATOR prior to
furnishing to the CONSULTANT a statement setting forth in detail, with a
suitable detailed breakdown in CSI format, including a breakdown of labor
and materials, the CONTRACTOR's estimate of the changes in the Cost of
the Work and changes to any other Contract Price elements attributable to
the changes set forth in such Change Order Request, and proposed
adjustments, if any, to the Contract Time resulting from such Change Order
Request. If the CONTRACT ADMINISTRATOR accepts such
CONTRACTOR's estimate, a Change Order shall be processed by the CITY
and delivered to the CONTRACTOR for execution. Agreement on any
Change Order shall constitute a final settlement on all items affected
therein, including without limitation any adjustment in the Cost of the Work,
CONTRACTOR's fee, Guaranteed Maximum Price, or the Contract Time,
subject to performance thereof and payment therefore pursuant to the terms
of this Contract and such Change Order.
12.5.3 The CONTRACTOR's fee on such changes shall be a percentage of the net
change to the Cost of the Work resulting from the Change Order, not to
exceed three percent (3%).
Subcontractor's percentage markup on change orders for overhead and
profit shall be reasonable, but in no event shall the aggregate of the
subcontractor's overhead and profit markups exceed seven 7% of the
subcontractor's cost of the Work. In the event subcontractor is affiliated
with the CONTRACTOR by common ownership or management, or is
effectively controlled by the CONTRACTOR, no fee will be allowed on the
subcontractor's costs. In the event there is more than one level of
subcontractor, such as second and third tier subcontractors, the sum of all
of the subcontractors' percentage markups for overhead and profit shall not
in the aggregate exceed ten 10% of the cost of the Work. Subcontractor's
cost of the Work shall be determined in accordance with Article 19, hereof.
12.5.4 CONTRACTOR shall not start work on any alteration requiring an increase in
the Contract Price or the Contract Time until a Change Order setting forth
the adjustments is approved by the CITY unless there is an immediate need
to perform the work to maintain the Project Schedule. If there were such a
need, the CONTRACT ADMINISTRATOR will issue direction to perform the
work on the basis of a preliminary estimate provided by the CONTRACTOR
and approved by the CONSULTANT. Upon receipt of a Change Order
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CONTRACTOR shall promptly proceed with the work set forth within the
document.
12.5.5 In the event satisfactory adjustment cannot be reached for any item requiring
a change in the Contract Price or Contract Time, and a Change Order has
not been issued, CITY reserves the right at its sole option to either
terminate the Contract as it applies to the items in question and make such
arrangements as may be deemed necessary to complete the disputed
work; or submit the matter in dispute to CONSULTANT and CONTRACT
ADMINISTRATOR as set forth in Article 44, hereof. During the pendency
of the dispute, and upon receipt of a Change Order, CONTRACTOR shall
promptly proceed with the change in the Work involved and advise the
CONSULTANT and CONTRACT ADMINISTRATOR in writing within five
(5) calendar days of CONTRACTOR's agreement or disagreement with the
method, if any, provided in the Change Order for determining the proposed
adjustment in the Contract Price or Contract Time.
12.5.6 Upon approval of any Contract change increasing the Contract Price,
CONTRACTOR shall ensure that the Performance Bond and Payment
Bond are increased so that each reflects the total Contract Price as
increased.
12.5.7 Change Orders may be issued unilaterally by CITY.
12.5.8 The Contractor hereby waives any claim not made with a timely request for
a Change Order.
12.5.9 After the GMP has been established, no Change Order shall be approved
in the case where the CONTRACTOR encounters a Construction
Document discrepancy and has failed to foresee and/or coordinate any
conditions in the Work, including conflicts between documents, plans and
specifications and the existing Project site conditions, utilities, and
unforeseen underground conditions, which will cause an increase to the
Contract Price and the Contract Time.
12.5.10 No change in the GMP shall be allowed for delays caused by labor disputes
and strikes specific to the Project, or for other delay caused by the
CONTRACTOR or its Subcontractors or suppliers of any tier.
12.5.11 The CONTRACTOR waives all claims for additional time or additional
compensation for Work performed without a written Change Order, unless
as stated in Article 12.5.4.
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12.5.12 DUTY TO CONTINUE WORK. The CONTRACTOR agrees that,
regardless of the pendency of any claim for additional compensation or
time, the CONTRACTOR shall continue to execute all Work. The
CONTRACTOR shall take all reasonable measures to minimize the effect
of the pendency of a claim.
12.5.13 PERMIT ADJUSTMENT. Should a material discrepancy be found between
the Bid Documents and the Permit Documents, and provided only that said
discrepancy result from the regulatory review of an agency that has
regulatory authority over the permitting process, the CITY shall issue a
Change Order to the CONTRACTOR.
12.6 Field Orders and SUDPlementallnstructions
12.6.1 The CONSULTANT and CONTRACT ADMINISTRATOR shall have the
right to approve and issue Field Orders setting forth written interpretations
of the intent of the Contract Documents and ordering minor changes in
Work execution, provided the Field Order involves no change in the
Contract Price or Contract time.
12.6.2 CONSULTANT and CONTRACT ADMINISTRATOR shall have the right to
approve and issue Supplemental Instructions setting forth written orders,
instructions, or interpretations concerning the Contract or its performance,
provided such Supplemental Instructions involve no change in the Contract
Price or Contract Time.
ARTICLE 13
DIFFERING SITE CONDITIONS:
13.1 No equitable adjustment to the Contract shall be allowed for CONTRACTOR and no
change to Contract Price or Contract Time, in the event that during the course ofthe
Work CONTRACTOR encounters an existing condition that was not shown on the
Contract Documents; or subsurface or concealed conditions at the Project site
which differ materially from those shown on the Contract Documents and from those
ordinarily encountered and generally recognized as inherent in work of the character
called for in the Contract Documents; or unknown physical conditions of the Project
site, of an unusual nature, which differ materially from that ordinarily encountered
and generally recognized as inherent in work of the character called for in the
Contract Documents.
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ARTICLE 14
EXCUSABLE DELAY: COMPENSABLE & NON COMPENSABLE
14.1 Excusable Delay: Delay which extends the completion of the Work and which is
caused by circumstances beyond the control of CONTRACTOR or its
Subcontractors, material persons, suppliers, or vendors is Excusable Delay.
CONTRACTOR is entitled to a time extension of the Contract Time for each day the
Work is delayed due to Excusable Delay. CONTRACTOR shall document its claim
for any time extensions as provided in Article 12 hereof.
Failure of CONTRACTOR to comply with Article 12 hereof as to any particular
event of delay shall be deemed conclusively to constitute a waiver,
abandonment or relinquishment of any and all claims resulting from that
particular event of delay.
Excusable Delay may be compensable or non-compensable.
(a) Compensable Excusable Delay. Excusable Delay is compensable
only when (i) the delay extends the Contract Time; (ii) is caused by
circumstances beyond the control ofthe CONTRACTOR or its Subcontractors,
material providers, suppliers or vendors except for differing site; and (iii) is
caused solely by fraud, bad faith or active interference on the part of CITY or its
agents. In no event shall CONTRACTOR be compensated for interim delays
which do not extend the Contract Time.
CONTRACTOR shall be entitled to direct and indirect costs for Compensable
Excusable Delay. Direct costs recoverable by CONTRACTOR shall be limited
to the actual additional costs allowed pursuant to Article 17 hereof.
CITY and CONTRACTOR recognize and agree that the amount of
CONTRACTOR's precise actual indirect costs for delay in the performance and
completion ofthe Work is impossible to determine as of the date of execution of
the Contract Documents, and that proof of the precise amount will be difficult.
Therefore, indirect costs recoverable by the CONTRACTOR shall be liquidated
on a daily basis for each day the Contract Time is delayed due to a
Compensable Excusable Delay. These liquidated indirect costs shall be paid to
compensate CONTRACTOR for all indirect costs caused by a Compensable
Excusable Delay and shall include, but not be limited to, all profit on indirect
costs, home office overhead, acceleration, loss of earnings, loss of productivity,
loss of bonding capacity, loss of opportunity and all other indirect costs
recoverable shall be One Thousand Five Hundred and 00/100 ($1,500.00) per
day for each day the Contract is delayed due to a Compensable Excusable
Delay.
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(b) Non-Compensable Excusable Delay. When Excusable Delay is (i)
caused by circumstances beyond the control of CONTRACTOR, its
subcontractors, material persons, suppliers and vendors, and is also caused by
circumstances beyond the control of the CITY or CONTRACT
ADMINISTRATOR or CONSULTANT, or (ii) is caused jointly or concurrently by
CONTRACTOR or its subcontractors, material persons, suppliers or vendors
and by the CITY or CONTRACT ADMINISTRATOR or CONSULTANT, then
CONTRACTOR shall be entitled only to a time extension and no further
compensation for the delay.
ARTICLE 15
SUBSTANTIAL COMPLETION DATE
15.1 When CONTRACTOR considers that the Work, or portion thereof designated by
CITY pursuant to Article 16 hereof, has reached Substantial Completion,
CONTRACTOR shall so notify CITY, CONTRACT ADMINISTRATOR and
CONSULTANT in writing. CONTRACT ADMINISTRATOR and CONSULTANT shall
then promptly inspect the Work. When CONTRACT ADMINISTRATOR and
CONSULTANT, on the basis of such an inspection, determine that the Work or
designated portion thereof is substantially complete, CONSULTANT will then
prepare a Certificate of Substantial Completion form, which shall establish the Date
of Substantial Completion and; shall state the responsibilities of CITY and
CONTRACTOR for security, maintenance, utilities, damage to the Work, and
insurance; and shall list all work yet to be completed ("Punch List") to satisfy the
requirements of the Contract Documents for Final Completion and shall establish
time for completion of all such final work. The failure to include any items of
corrective work on such list does not alter the responsibility of CONTRACTOR to
complete all of the Work in accordance with the Contract Documents. Warranties
required by the Contract Documents shall commence on the date of Substantial
Completion of the Work or designated portion thereof unless otherwise provided in
the Certificate of Substantial Completion. The Certificate of Substantial Completion
shall be submitted to CITY through the CONTRACT ADMINISTRATOR, after
execution by CONTRACTOR and CONSULTANT, indicating their written
acceptance of the responsibilities assigned to them in such Certificate. The time
frame for liquidated damages shall not commence and thus shall be tolled until the
CONTRACT ADMINISTRATOR submits the Punch List to the CONTRACTOR.
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ARTICLE 16
USE OF COMPLETED PORTIONS
16.1 CITY shall have the right at its sole option to take possession of and use any
completed or partially completed portions of the Project. Such possession and use
shall not be deemed an acceptance of any of the Work not completed in
accordance with the Contract Documents. If such possession and use increases
the cost of or delays the Work, CONTRACTOR shall be entitled to reasonable extra
compensation, or reasonable extension of time or both, by appropriate adjustment
pursuant to Article 14 hereof.
16.2 In the event CITY takes possession of any completed or partially completed
portions of the Project, the following shall occur:
16.2.1 CITY shall give notice to CONTRACTOR in writing at least thirty (30)
calendar days prior to CITY's intended occupancy of a designated area.
16.2.2 CONTRACTOR shall complete to the point of Substantial Completion
the designated area and request inspection and issuance of a Certificate
of Substantial Completion from CONSULTANT.
16.2.3 Upon CONSULTANT's issuance of a Certificate of Substantial
Completion, CITY will assume full responsibility for maintenance,
utilities, subsequent damages of CITY and public, adjustment of
insurance coverages and start of warranty for the occupied area.
16.2.4 CONTRACTOR shall complete all items noted on the Certificate of
Substantial Completion within the time specified by on the Certificate of
Substantial Completion, as soon as possible and request final
inspection and final acceptance of the portion of the Work occupied.
Upon completion of final inspection and receipt of an application for
final payment, CONTRACT ADMINISTRATOR and CONSULTANT
shall issue a Final Certificate of Payment relative to the occupied area.
16.2.5 If CITY finds it necessary to occupy or use a portion or portions of the
Work prior to Substantial Completion thereof, such occupancy or use
shall not commence prior to a time mutually agreed upon by CITY and
CONTRACTOR and to which the insurance company or companies
providing the property insurance have consented by endorsement to
the policy or policies. Insurance on the unoccupied or unused portion
or portions shall not be canceled or lapsed on account of such partial
occupancy or use. Consent of CONTRACTOR and of the insurance
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company or companies to such occupancy or use shall not be
unreasonably withheld.
ARTICLE 17
COST OF THE WORK
17.1 The term "Cost of the Work" shall mean the sum of all direct costs necessarily and
reasonably incurred and paid by the CONTRACTOR in the performance of the
Work. Such costs shall be at rates not higher than those customarily paid in the
locality of the Project except with the prior written consent of CITY. The Cost of the
Work shall include only those items set forth in this Article 17.1, and shall not
include any items listed in Article 17.2.
17.1.1 Subcontractor Costs:
(a) Where the work is covered by unit prices contained in the
Contract Documents or an applicable subcontract, by application of
unit prices to the quantities of items involved. If the quantity of any
item of subcontractor work that is covered by a unit price is increased
or decreased by more than twenty percent (20%) from the quantity of
such work indicated in the Contract Documents, an appropriate
Change Order may be issued to adjust the unit price, if warranted.
(b) By mutual acceptance of, a lump sum which subcontractor,
CONTRACTOR and CITY acknowledge contains a component for
overhead and profit, which shall be subject to the limitation of
subcontractor fees set forth in Article 12.5.3. Whenever a change in
subcontractor work is to be based on mutual acceptance of a lump
sum, whether the amount is an addition, credit or no change-in-cost,
CONTRACTOR shall submit an initial cost estimate obtained from the
subcontractor and acceptable to CONSULTANT and CONTRACT
ADMINISTRATOR. The breakdown shall list the quantities and unit
prices for materials, labor, equipment and other items of cost.
Whenever a change involves more than one subcontractor and the
change is an increase in the GMP, overhead and profit percentage of
each subcontractor and CONTRACTOR, if applicable, shall be
itemized separately.
(c) If the subcontract provides that the subcontractor is to be paid
on the basis of cost of the work plus a fee, the subcontractor's cost of
the work shall be determined in the same manner as
CONTRACTOR's cost of the work, subject to the limitation on
subcontractor's fees set forth in Article 12.5.3.
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(d) If changes to subcontracted work affect the GMP, such
changes shall be accomplished in accordance with Article 12.
"Change Orders." The amount of decrease in the Guaranteed
Maximum Price (GMP) for any change which results in a net decrease
in cost, will be the amount of the actual net decrease. When both
additions and decreases are involved in anyone change, the
combined affect shall be figured on the basis of the net change in the
GMP, if any.
(e) Payment for subcontractor costs may include payment for
materials delivered to the Project site and stored for later
incorporation into the Work, provided the CONTRACTOR provides to
the CONSULTANT and CONTRACT ADMINISTRATOR a detailed
invoice for such materials including the description, quantities, activity
number and reference to the approved Schedule of Values, copies of
vendors' invoices totaling the amount requested and releases of lien
from such vendors.
17.1.2 CONTRACTOR's Labor Costs: Payroll costs for employees in the
direct employ of CONTRACTOR in the performance of the work
described in the Contract, as set forth in Attachment IV, attached
hereto. Payroll costs for employees not employed full time on the
work covered by the Contract shall be apportioned on the basis of
their time spent on the work. Payroll costs shall include salaries and
wages plus the labor burden to cover cost of fringe benefits which
shall include social security contributions, unemployment, excise and
payroll taxes, and workers' compensation. Payroll costs and the
above-referenced labor burden rates shall exclude costs of any
insurance that may be provided by the CITY.
17.1.3 Materials and Equipment: Cost of all materials and equipment
furnished and incorporated in the Work, including costs of
transportation and storage thereof, and manufacturers' field services
required in connection therewith, adjusted in accordance with Article
18, pertaining to discounts, rebates or refunds, if applicable; rentals of
all construction equipment and machinery and the parts thereof
whether rented from CONTRACTOR or others in accordance with
rental agreements and the costs oftransportation, loading, unloading,
installation, dismantling and removal thereof, all in accordance with
the terms of said agreements. Payment may be made for materials
delivered to the Project site and stored for later incorporation into the
Work, provided the CONTRACTOR provides to the CONSULTANT
and CONTRACT ADMINISTRATOR a detailed invoice for such
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materials including the description, quantities, activity number and
reference to the approved Schedule of Values, copies of vendor's
invoices totaling the amount requested and releases of lien from such
vendors.
17.1.4 Miscellaneous costs:
(a) The receipted cost of telephone, telegrams, postage,
photographs, blueprints, office supplies, first aid supplies and related
miscellaneous costs reasonably incurred in direct support of the Work
at the Project Location.
(b) Premiums (Net) on bonds and insurance, including subcontractor
bonds, if any, that the CONTRACTOR is obligated to secure and
maintain under the terms of the Contract Documents and such other
insurance and bonds as may be required, subject to the written
approval of the CITY. Premiums paid as part of Contractor's Cost
shall be net of trade discounts, volume discounts, dividends and other
adjustments. All insurance and bonds shall be provided by
companies acceptable to the CITY. Self insurance by the
CONTRACTOR or insurance through any affiliates of CONTRACTOR
shall not be permitted without the CITY's prior written approval.
CITY's approval shall not be required on subcontractor bonds, and
premiums thereof shall be considered a Cost of the Work.
(c) The cost of obtaining and using any utility services required for
the Work that are not paid directly by CITY, including fuel and sanitary
services at the Project site.
(d) The cost of removal of debris from the site. The Project site,
lay-down locations, and staging sites will be kept clear of all debris on
a daily basis. All subcontracts shall require subcontractors to
promptly (no less than weekly) remove all debris created by their
activities, and the CONTRACTOR shall exercise its best efforts to
enforce such requirements or to effect the removal of the debris of the
subcontractors who fail in this regard. Provided, however, the
CONTRACTOR shall not be required to remove debris created by the
CITY's separate contractors except pursuant to Change Order
procedures set forth herein.
(e) The cost and expenses, actually sustained by the
CONTRACTOR in connection with the Work, of protecting and
repairing adjoining property, if required, except to the extent that any
such cost or expense is the responsibility of the CONTRACTOR
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under Article 20, reimbursable by insurance or otherwise; due to the
failure of the CONTRACTOR to comply with the requirements of the
Contract Documents with respect to insurance; or, due to the failure of
any officer of the CONTRACTOR or of any of its representatives
having supervision or direction of the Work to exercise good faith or
the standard of care normally exercised in the conduct of the business
of a general contractor experienced in the performance of work of the
magnitude, complexity and type encompassed by the Contract
Documents, in any of which events any such expenses shall not be
included in CONTRACTOR's costs.
(f) Federal, state, municipal, sales, use and other taxes, as
applicable to the Project, all with respect to services performed or
materials furnished for the Work, it being understood that none ofthe
foregoing includes federal, state or local income or franchise taxes.
(g) All reasonable costs and expenditures necessary for the
operation of the Project job site office, including cost of field computer
equipment and software.
(h) The proportion of necessary transportation, travel and
subsistence expenses of CONTRACTOR's employees, excluding
travel time, incurred in discharge of duties connected with the Work,
provided that any travel or subsistence expenses must be approved in
advance by the CONTRACT ADMINISTRATOR and shall be
reimbursable only in accordance with Section 112.061, Florida
Statutes. Any cost or expense of local travel to and from the site of
the Work shall not be reimbursable as Cost of the Work.
(i) Cost, including transportation and maintenance, of all
materials, supplies, equipment, machinery, appliances, office and
temporary facilities at the site and hand tools not owned by the
workers, which are consumed in the performance of the work, and
cost less market value of such items used but not consumed which
remain the property of CONTRACTOR.
U) Deposits lost for causes other than CONTRACTOR's
negligence; royalty payments and fees for permits and licenses.
(k) Cost of premiums for additional bonds and insurance required
because of changes in the work.
(I) Cost of shuttling employees to and from the job site to the
designated parking and/or staging area, if required.
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(m) Cost of special consultants, including, but not limited to,
engineers, architects, testing laboratories, surveyors, lawyers and
accountants, employed for services specifically related to the Work, if
approved in advance by the CONTRACT ADMINISTRATOR.
(n) Any other expenses or charges incurred, with the prior written
approval of the CONTRACT ADMINISTRATOR, in the performance of
the Work.
17.2 "Overhead" is defined as any and all other costs, not referenced in Article 17.1, of
the CONTRACTOR and its operation which are not in direct support of the Project.
The CONTRACTOR agrees to furnish and perform, as a part of the Contractor's
Fee and without reimbursement, said overhead items which include, but are not
limited to, the following materials and services. The term "Cost of the Work" shall
not include any of the following:
17.2.1 Payroll costs and other compensation of CONTRACTOR's officers,
executives, principals (of partnership and sole proprietorship), general
managers, engineers, architects, estimators, lawyers, auditors,
accountants, purchasing and contracting agents, expediters,
timekeepers, clerks and other personnel employed by CONTRACTOR
whether at the site or in its principal or a branch office for general
administration that are not specifically included in the agreed-upon
schedule of job classifications referred to in Attachment IV or identified
as necessary labor on Attachment IV, all of which are to be considered
administrative costs covered by CONTRACTOR's fee.
17.2.2 Any part of CONTRACTOR's capital expenses, including interest on
CONTRACTOR's capital employed for the Work and charges against
CONTRACTOR for delinquent payments.
17.2.3 Other overhead, general expense costs or charges of any kind and the cost
of any item not specifically and expressly included in Article 17.1.
17.2.4 Costs in excess of the Guaranteed Maximum Price.
17.2.5 Entertainment and meal expenses and charges of a personal nature.
17.2.6 Bonuses, profit-sharing or other special labor charges not included in
Article 17.1, above.
17.2.7 Any outside legal fees incurred without prior written approval from the CITY
Attorney's Office.
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17.2.8 All costs associated with the selection process, response to the Request for
Letters of Interest, and attendance at any presentations, meetings or
negotiation sessions prior to execution of this Agreement.
ARTICLE 18
DISCOUNTS. REBATES AND REFUNDS
18.1 All cash discounts obtained on payments made by the CONTRACTOR shall accrue
to the CITY unless the CONTRACTOR actually advanced its own funds, prior to
receipt of funds from CITY, to make the payment giving rise to the discount. When
CONTRACTOR becomes aware that a cash discount may be available to CITY,
CONTRACTOR shall, prior to advancing its own funds, notify CONTRACT
ADMINISTRATOR of such opportunity so CITY can make the required payment to
achieve the discount for the CITY. CONTRACTOR shall only advance its own
funds if CITY declines to make the early payment. All trade discounts, rebates and
refunds, and all returns from sale of surplus materials and equipment shall accrue to
CITY, and CONTRACTOR shall make provisions so that they may be obtained.
ARTICLE 19
SUBCONTRACT REQUIREMENTS
19.1 On all subcontracts where the bid exceeds $100,000, the CONTRACTOR may
require subcontractors to provide a 100% performance bond and a 100% labor and
material payment bond from a surety company authorized to do business in the
State of Florida by the Department of Insurance. If the CONTRACTOR wishes to
award subcontracts to contractors unable to supply this bonding, he may request
special authorization to do so. Upon providing justifiable background information,
such authorization shall not be withheld unreasonably.
19.2 Workforce - The subcontractor must agree to perform no less than 10% of the
Project construction work utilizing its own employees.
19.3 Subcontractor experience - The subcontractor must have successfully completed
no less than two projects of similar size and complexity within the last five years.
19.4 Supervision - the subcontractor must agree to provide field (on-site) supervision
through a named superintendent for each trade (general concrete forming and
placement, masonry, mechanical, plumbing, electrical and roofing) included in the
subcontract. In addition, the subcontractor shall assign and name a qualified
employee for scheduling direction for its work. The supervisory employees of the
subcontractor (including field superintendent, foreman and schedulers at all levels)
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must have been employed in a supervisory (leadership) capacity of substantially
equivalent level on a similar project for at least two years within the last five years.
The subcontractor shall include a resume of experience for each employee
identified by him to supervise and schedule his work.
19.5 All subcontracts shall provide:
19.5.1 LIMITATION OF REMEDY - NO DAMAGES FOR DELAY
That the subcontractor's exclusive remedy for delays in the
performance of the contract caused by events beyond its control,
including delays claimed to be caused by the CITY or CONSULTANT
or attributable to the CITY or CONSULTANT and including claims
based on breach of contract or negligence, shall be an extension of its
contract time.
In the event of a change in the work, the subcontractor's claim for
adjustments in the contract sum are limited exclusively to its actual
costs for such changes plus no more than 7% for overhead and profit
and bond costs.
Each subcontract shall require the subcontractor to expressly agree
that the foregoing constitute the sole and exclusive remedies for
delays and changes in the work and thus eliminate any other
remedies for claim for increase in the contract price, damages, losses
or additional compensation.
19.5.2 Each subcontract shall require that any claims by subcontractor for
delay or additional cost must be submitted to CONTRACTOR within
the time and in the manner in which the CONTRACTOR must submit
such claims to the CITY, and that failure to comply with the conditions
for giving notice and submitting claims shall result in the waiver of
such claims.
19.5.3 Each subcontract shall include a provision stating thatthe subcontract
is assignable to the CITY in the event of a termination of all or part of
the Contract. Said assignment shall be at the sole option and
discretion of the CITY and, if agreed to by CITY shall be upon the
same terms and conditions as the original subcontract, unless
otherwise mutually negotiated by CITY and subcontractor.
19.5.4 Responsibilities for Acts and Omissions - The CONTRACTOR shall
be responsible to the CITY for the acts and omissions of his
employees and agents and his subcontractor, their agents and
employees, and all other persons performing any of the work or
supplying materials under a contract to the CONTRACTOR.
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19.5.5 Subcontracts to be provided. The CONTRACTOR shall include a
copy of each subcontract, including the general supplementary
conditions, in the Project Manual.
ARTICLE 20
INSURANCE REQUIREMENTS
20.1 CONTRACTOR shall secure, pay for and, except as otherwise provided herein,
maintain at all times until all of CONTRACTOR's work to be performed under this
Contract is completed and accepted by CITY, the insurance specified below.
20.2 Insurance Coverages shall, at a minimum, be as follows:
20.2.1 Workers Compensation Insurance. Workers' Compensation insurance to
apply for all employees engaged in work on the Project at the Project site
and where employees are dedicated to the Project site, in compliance with
the "Workers' Compensation Law" of the State of Florida and all applicable
federal laws. This coverage will not apply to employees of CONTRACTOR
or any subcontractors whose principal place of employment is not the Project
site. In addition, the policy(ies) will include:
Employers' Liability with limits of: One Hundred Thousand Dollars ($100,000)
Bodily Injury by accident, per occurrence; One Hundred Thousand Dollars
($100,000) Bodily Injury by disease, per employee; Five Hundred Thousand
Dollars ($500,000) Bodily Injury by disease annual aggregate.
If any operations are to be undertaken on or about navigable waters,
coverage must be included for the U.S. Longshoremen & Harbor Workers
Act and Jones Act.
20.2.2 Primary Liability Insurance (Excludinq Automobile and Professional
Liability). Primary liability insurance in a form providing coverage not less
than a Commercial General Liability insurance policy having minimum limits
of One Million Dollars ($1 ,000,000) per occurrence combined single limit for
bodily injury liability and property damage liability and will include:
[] Employees;
[] Premises and/or operations;
[] Independent contractors;
[] Completed Operations, which shall remain in force for a period of at
least three (3) years after completion of all work required under
the Contract;
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[] Explosion, Collapse and Underground Coverages;
[] Broad Form Property Damage;
[] Broad Form Contractual Coverage applicable to this specific
contract, including any hold harmless and/or indemnification
agreement;
[] Personal Injury Coverage with Employee and Contractual Exclusions
removed, with minimum limits of coverage equal to those
required for Bodily Injury Liability and Property Damage
Liability.
This insurance will not extend coverage for product liability to any insured
party, vendor, supplier, off-site fabricator, material dealer or others for any
product manufactured, assembled or otherwise worked upon away from the
Project site.
20.2.3 Excess Liabilitv Insurance. Excess liability insurance shall be
provided on a following form basis, in limits of Five Million Dollars
($5,000,000).
20.3 CONTRACTOR & Subcontractor ObliQations. CONTRACTOR and all
subcontractors shall not violate or knowingly permit to be violated any conditions of
the policies of insurance provided under the terms of this Contract and shall at all
times satisfy the requirements of the insurance companies issuing them.
CONTRACTOR and all subcontractors shall assist and cooperate in every manner
possible in connection with the adjustment of all claims arising out of their
performance of the Work or portion of the Work, and shall cooperate with CITY, its
insurance representative and/or insurance carrier(s) with the adjustment,
settlement, mediation or litigation of all said claims, including but not limited to
providing light or modified duty for injured workers, appearances at mediation or
court proceedings and/or participation in settlement conferences as may be
required.
20.4 CONTRACTOR's & Subcontractors' Insurance. CONTRACTOR and all
subcontractors of all tiers shall at all times until all of CONTRACTOR's work to be
performed under this Contract is completed and accepted by CITY, provide and
maintain insurance ofthe type and in limits as set forth below. Such insurance shall
name the parties required to secure same as insured, and shall specifically protect
the CITY, the Miami Beach CITY Commissioners, and CONSULTANT by naming
CITY, the Miami Beach CITY Commissioners, and the CONSULTANT as additional
insureds.
20.4.1 Business Automobile Liabilitv. Business Automobile Liability with minimum
limits of One Million Dollars ($1,000,000) from subcontractors and Five
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Million Dollars ($5,000,000) from the CONTRACTOR, per occurrence
combined single limit for Bodily Injury Liability and Property Damage Liability.
Coverage must be afforded on a form no more restrictive than the latest
edition of the Business Automobile Liability policy, without restrictive
endorsements, as filed by the Insurance Services Office, and must include:
Owned Vehicles.
Hired and Non-Owned Vehicles.
20.4.2 Workers' Compensation. Workers' compensation insurance for operations
for all employees away from the Project site in compliance with the
"Workers' Compensation Law" of the State of Florida and all applicable
federal laws. In addition, the policy(ies) must include Employers' Liability
with limits of: One Hundred Thousand Dollars ($100,000) Bodily Injury by
accident, per occurrence; One Hundred Thousand Dollars ($100,000) Bodily
Injury by disease, per employee; Five Hundred Thousand Dollars ($500,000)
Bodily Injury by disease annual aggregate. This coverage shall include
"Other States Insurance" to include all states not named on the declarations
page of the insurance policy, excepting monopolistic state fund states.
If any operations are to be undertaken on or about navigable waters,
coverage must be included for the U.S. Longshoremen & Harbor Workers
Act and Jones Act.
20.4.3 General Liabilitv Insurance. General Liability insurance for premises and
operations away from the Project site, including product liability for any
product manufactured, assembled or otherwise worked upon away from the
Project site, in a form providing coverage no more restrictive than the
Standard Commercial General Liability insurance policy ("Occurrence Form")
for operations of the CONTRACTOR or subcontractor, having minimum limits
of One Million Dollars ($1,000,000) including the following:
[] Premises and/or operations;
[] Independent contractors;
[] Products and/or Completed Operations for contracts over $50,000.
CONTRACTOR shall maintain in force until at least three (3)
years after completion of all work required under the Contract
coverage for Products and Completed Operations, including
broad form Property Damage;
[] Explosion, Collapse and Underground Coverages;
[] Broad Form Property Damage;
[] Broad Form Contractual Coverage applicable to this specific contract,
including any hold harmless and/or indemnification agreement;
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[] Personal Injury Coverage with Employee and Contractual Exclusions
removed, with minimum limits of coverage equal to those
required for Bodily Injury Liability and Property Damage
Liability.
CITY is to be expressly included as an additional insured with respect
to liability arising out of operations performed for CITY by or on behalf
of CONTRACTOR or acts or omissions of CITY in connection with
general supervision of such operation.
20.4.4 The CITY shall provide property insurance covering the materials, equipment
and supplies that are intended for specific installation in the Project.
Coverage will be on an "All Risk" basis, subject to policy exclusions, including
coverage against fire, lightning, wind damage, hail, explosion, riot or civil
commotion, aircraft and other vehicles, collapse, water damage, theft, flood
and earthquake. The policy shall be on a completed value form, with a lower
limit for flood and earthquake permitted, with a deductible of $3.5 million for
Named Hurricanes and $10,000 for other perils. If a loss covered by such
insurance. caused by other than a Named Hurricane, is incurred due to the
failure of any officer of the Contractor or of any of its representatives having
su pervision or direction of the Work to exercise good faith or the reasonable
standard of care normally exercised in the conduct of the business of a
general contractor experienced in the performance of work of the magnitude,
complexity and type encompassed by the Contract Documents, then in that
event Contractor shall be responsible for said deductible and same shall not
be included in Cost of the Work. The insurance described in this Article
20.4.4 will not cover tools or clothing of workers, or any tools, equipment,
protective fencing, scaffolding, staging, towers and forms owned or rented by
CONTRACTOR or any subcontractors.
20.4.5 If the initial insurance expires prior to the completion of the Project, renewal
or replacement policies shall be furnished at lease thirty (30) days priorto the
date of expiration. The policy(ies) must be endorsed to provide CITY with at
least thirty (30) days written notice of cancellation and/or restriction.
20.4.6 CONTRACTOR shall furnish to the CONTRACT ADMINISTRATOR
Certificates of Insurance or endorsements evidencing the insurance
coverages required by this Article within fifteen (15) calendar days after
notification of award of the Contract. The Certificates of Insurance shall
name the types of policies provided, refer specifically to this Contract, state
that such insurance is as required by the Contract, and name the additional
insured's herein.
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20.4.7 The legal name of the CITY is "City of Miami Beach, Florida" which name
shall be used in all insurance documentation.
20.4.8 CONTRACTOR and each subcontractor shall require all policies of insurance
provided pursuant to this Article 20 to include clauses providing that each
underwriter shall waive all of its rights of recovery, under subrogation or
otherwise, against CITY, the CONTRACTOR and all subcontractors.
20.5 Subroaation and Waiver. CONTRACTOR hereby waives, and shall require all its
subcontractors to waive, all rights of recovery against CITY, the Mayor and City
Commissioners, its officers, agents and employees, which rights of recovery
CONTRACTOR may have or may acquire pursuant to deductible clauses in, or
inadequacy of limits of, any policies of insurance that are in any way related to the
Work and that are secured by CONTRACTOR.
ARTICLE 21
INDEMNIFICATION
21.1 CONTRACTOR shall indemnify and hold harmless CITY, its officers and
employees, from liabilities, damages, losses and costs, including, but not limited to
reasonable attorney's fees, to the extent caused by the negligence, recklessness or
intentional wrongful misconduct of CONTRACTOR and persons employed or
utilized by CONTRACTOR in the performance of this Contract. Except as
specifically provided herein, this Agreement does not require CONTRACTOR to
indemnify CITY, its employees, officers, directors, or agents from any liability,
damage, loss, claim, action, or proceeding. These indemnifications shall survive the
term of this Contract. In the event that any action or proceeding is brought against
CITY by reason of any such claim or demand, CONTRACTOR shall, upon written
notice from CITY, resist and defend such action or proceeding by counsel
satisfactory to CITY.
21.2 The indemnification provided above shall obligate CONTRACTOR to defend at its
own expense to and through appellate, supplemental or bankruptcy proceeding, or
to provide for such defense, at CITY's option, any and all claims of liability and all
suits and actions of every name and description covered by Article 20 that may be
brought against CITY or persons employed or utilized by CONTRACTOR.
ARTICLE 22
PERFORMANCE AND PAYMENT BOND AND QUALIFICATIONS OF SURETIES
22.1 Within fifteen (15) calendar days of being notified of the award, CONTRACTOR
shall furnish a Performance Bond and a Payment Bond.
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22.2 Each Bond shall be in the amount of one hundred percent (100%) of the Contract
Price guaranteeing to CITY the completion and performance of the work covered in
such Contract as well as full payment of all suppliers, material providers, laborers,
or subcontractors employed pursuant to this project. Each Bond shall be with a
surety company which is qualified pursuant to Article 22.5.3.
22.3 Each Bond shall continue in effect for one year after final completion and
acceptance of the work with liability equal to one hundred percent (100%) of the
Contract sum, or an additional bond shall be conditioned that CONTRACTOR will,
upon notification by CITY, correct any defective or faulty work or materials which
appear within one year after final completion of the Contract.
22.4 Pursuant to the requirements of Section 255.05(1 )(a), Florida Statutes, as may be
amended from time to time, CONTRACTOR shall ensure that the bond(s)
referenced above shall be recorded in the public records of Miami-Dade County
and provide CITY with evidence of such recording.
22.5 Qualification of Suretv
22.5.1 Each bond must be executed by a surety company of recognized standing,
authorized to do business in the State of Florida as surety, having a resident
agent in the State of Florida and having been in business with a record of
successful continuous operation for at least five years.
22.5.2 The surety company shall hold a current certificate of authority as acceptable
surety on federal bonds in accordance with United States Department of
Treasury Circular 570, Current Revisions. If the amount of the Bond
exceeds the underwriting limitation set forth in the circular, in order to qualify,
the net retention of the surety company shall not exceed the underwriting
limitation in the circular, and the excess risks must be protected by coinsur-
ance, reinsurance, or other methods in accordance with Treasury Circular
297, revised September 1, 1978 (31 DFR Section 223.10, Section 223.111).
Further, the surety company shall provide CITY with evidence satisfactory to
CITY, that such excess risk has been protected in an acceptable manner.
22.5.3 The CITY will accept a surety bond from a company with a rating of B+ or
better for bonds up to $2 million, provided, however, that if any surety
company appears on the watch list that is published quarterly by Intercom of
the Office of the Florida Insurance Commissioner, the CITY shall review and
either accept or reject the surety company based on the financial information
available to the CITY. A surety company that is rejected by the CITY may be
substituted by the bidder or proposer with a surety company acceptable to
the CITY, only if the bid amount does not increase.
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Policy- Financial
holder's Size
Amount of Bond Ratinqs CateQorv
500,001 to 1,000,000 B+ Class I
1,000,001 to 2,000,000 B+ Class II
2,000,001 to 5,000,000 A Class III
5,000,001 to 10,000,000 A Class IV
10,000,001 to 25,000,000 A Class V
25,000,001 to 50,000,000 A Class VI
50,000,001 or more A Class VII
ARTICLE 23
INDEPENDENT CONTRACTOR
23.1 In performing its obligations hereunder, the CONTRACTOR shall be deemed an
independent contractor and not an agent or employee of the CITY. 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 this Contract, unless the Contract Documents give other
specific instructions concerning these matters.
ARTICLE 24
INSPECTION OF WORK
24.1 As to means and methods, the CONTRACTOR represents that it has inspected the
location or locations of the Work and has satisfied itself as to the condition thereof
and that the Guaranteed Maximum Price is just and reasonable compensation for
all Work, including all foreseen or reasonably foreseeable risks, hazards and
difficulties in connection therewith.
24.2 The CITY, its CONTRACT ADMINISTRATOR, and the CONSULTANT at all times
shall have access to the Work for inspection thereof, but shall not be obligated to
conduct any such inspection. The CONTRACTOR shall provide proper and safe
facilities for such access and inspection by the CITY, its CONTRACT
ADMINISTRATOR and CONSULTANT. If any of the Work is required to be
inspected or approved by any public authority, the CONTRACTOR shall cause such
inspection or approval to be performed.
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24.3 No inspection performed or failed to be performed by the CITY, its CONTRACT
ADMINISTRATOR or the CONSULTANT hereunder shall be a waiver of any of the
CONTRACTOR's obligations hereunder or be construed as an approval or
acceptance of the Work or any part thereof.
24.4. The CONTRACTOR shall check all materials and labor entering into the Work and
shall keep such full and detailed accounts as may be necessary to determine the
Contractor's Cost.
ARTICLE 25
PROJECT RECORDS
25.1 CITY or its designee shall have the right to inspect and copy the books and records
and accounts of CONTRACTOR and all subcontractors including but not limited to
books, records, correspondence, instructions, drawings, receipts, payment records,
vouchers, and memoranda which relate in any way to the Project, and to any claim
for additional compensation made by CONTRACTOR, and to conduct an audit of
the financial and accounting records of CONTRACTOR which relate to the Project
and to any claim for additional compensation made by CONTRACTOR.
CONTRACTOR shall preserve and make available to CITY all financial records,
supporting documents, statistical records and any other documents which relate to
the Project and to any claim for the required retention period of the Florida Public
Records Act (Chapter 119, Fla. Stat.), if applicable, and, if the Public Records Act is
not applicable, for a period of three (3) years following final completion of the
Project. During the Project and for the appropriate records retention period,
CONTRACTOR shall provide CITY access to its books and records at
CONTRACTOR's usual place of business upon seventy-two (72) hours written
notice. If any audit has been initiated and audit findings have not been resolved at
the end of the retention period or three (3) years, whichever is longer, the books,
records and accounts shall be retained until resolution of the audit findings. If the
Florida Public Records Act (Chapter 119, Fla. Stat.) is determined by CITY to be
applicable to CONTRACTOR's records, CONTRACTOR shall comply with all
requirements thereof. Any incomplete or incorrect entry in such books, records and
accounts shall be a basis for CITY's disallowance and recovery of any payment
upon such entry.
25.2 CONTRACTOR's records shall include, but not be limited to accounting records
(hard copy, as well as computer readable data), written policies and procedures;
subcontractor files (including proposals of successful and unsuccessful bidders and
bid recaps), original estimates, estimating work sheets, correspondence, change
order files (including, but not limited to, documentation covering negotiated
settlements), back charge logs and supporting documentation, general ledger
entries detailing cash and trade discounts earned, insurance rebates and dividends
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and any other supporting evidence deemed necessary by the CITY to substantiate
charges related to this Contract (all of the foregoing hereinafter referred to as
"records").
25.3 CONTRACTOR shall require all subcontractors, insurance agents and material
suppliers (payees) to keep and maintain comparable records for the same time
period and to permit the CITY to review, inspect and audit such records.
CONTRACTOR shall include such requirements in all written subcontracts and
purchase orders issued.
25.4 If an audit inspection or other examination by the CITY or the CITY's
representatives in accordance with this Article, discloses overcharges (of any
nature) by the CONTRACTOR to the CITY in excess of one (1%) percent of the
total billings, the cost of the CITY's audit (whether performed by the CITY or outside
auditors) shall be reimbursed or paid to the CITY by the CONTRACTOR. Any
adjustments and/or payments which must be made as a result of any such audit,
inspection or examination of the CONTRACTOR's invoices and/or records shall be
made within a reasonable amount of time (not to exceed thirty (30) days) from
presentation of the CITY's findings to the CONTRACTOR.
ARTICLE 26
SURVEY
26.1 Concurrent with the Final Request for Payment, the CONTRACTOR shall furnish
final surveys in electronic file, AUTOCAD 2000 format utilizing CAD Standards, as
designated by the CONSULTANT, in addition to three (3) sets of hard copy,
showing the exact locations of all structures and underground site utilities installed
by CONTRACTOR, including all water, sewer, gas, fuel, telephone, security and
electric I ines and main, and locations of all easements for such utilities then existing.
Such surveys shall be prepared by a licensed surveyor who shall certify that the
Work is installed and erected entirely upon the Project location and within the
building restriction lines, if any, and does not overhang or encroach upon any
easement or right-of-way of others.
ARTICLE 27
TITLE TO WORK
27.1 Immediately upon delivery of material to the site or the performance of any part of
the Work, as between the CONTRACTOR and the CITY, title thereof shall vest in
the CITY; provided, however, the vesting of such title shall not impose any
obligations on the CITY or relieve the CONTRACTOR from any of its obligations
hereunder.
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ARTICLE 28
WORK IN PROGRESS
28.1 The CONTRACTOR shall protect and prevent damage to all phases of the Work,
and any existing facilities or improvements, including but not limited to the protection
thereof from damage by the elements, theft or vandalism.
28.2 The CITY reserves the right to perform work related to the Project with its own
personnel and to award separate contracts in connection with other portions of the
Project. The CONTRACTOR shall cooperate and coordinate its Work with the work of
the CITY or said separate contractor. The CONTRACTOR shall afford the CITY and
any of the CITY's separate contractor's reasonable access to the Work for storage of
material and equipment and for the prosecution of their work and shall connect and
coordinate its Work with theirs as is reasonably inferable from the Contract Documents.
ARTICLE 29
OCCUPATIONAL HEALTH AND SAFETY
29.1 In compliance with Chapter 442, Florida Statutes, any toxic substance listed in
Section 38F-41.03, Florida Administrative Code, delivered as a result of this Project
must be accompanied by a Material Safety Data Sheet (MSDS) which may be
obtained from the manufacturer. The MSDS must include the following information:
29.1.1 The chemical name and the common name of the toxic substance.
29.1.2 The hazards or other risks in the use of the toxic substance, including:
29.1.2.1 The potential for fire, explosion, corrosion, and reaction;
29.1.2.2 The known acute and chronic health effects of risks from
exposure, including the medical conditions which are generally recognized as
being aggravated by exposure to the toxic substance; and
29.1.2.3 The primary routes of entry and symptoms of overexposure.
29.1.3 The proper precautions, handling practices, necessary personal protective
equipment, and other safety precautions in the use of or exposure to the
toxic substances, including appropriate emergency treatment in case of
overexposure.
29.1.4 The emergency procedure for spills, fire, disposal, and first aid.
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29.1.5 A description in lay terms of the known specific potential health risks posed
by the toxic substance intended to alert any person reading this information.
29.1.6 The year and month, if available, that the information was compiled and the
name, address, and emergency telephone number of the manufacturer
responsible for preparing the information.
29.2 The CONTRACTOR agrees that it shall not knowingly transport to, use, generate,
dispose of, or install at the Project site any Hazardous Substance, (as defined in
Section 29.5), except in accordance with applicable Environmental Laws. Further,
in performing the work, the CONTRACTOR shall not knowingly cause any release
of hazardous substances into, or contamination of, the environment, including the
soil, the atmosphere, any water course or ground water, except in accordance with
applicable Environmental Laws.
29.3 In the event the CONTRACTOR encounters on the Project site any Hazardous
Substance, or what the CONTRACTOR reasonably believes to be a Hazardous
Substance, and which is being introduced to the Work, or exists on the Project
Location, in violation of any applicable Environmental Laws, the CONTRACTOR
shall immediately stop work in the area affected and report the condition to the
CONSULTANT in writing. The Work in the affected area shall not thereafter be
resumed except by written authorization of the CONSULTANT if in fact a Hazardous
Substance has been encountered and has not been rendered harmless.
29.4 The CONTRACT ADMINISTRATOR may directthe CONTRACTOR by utilization of
CITY's Allowance Account funds to remediate and/or render harmless the
Hazardous Substance in accordance with any applicable permits then in existence,
but the CONTRACTOR shall not be required to remediate and/or render harmless
the Hazardous Substance absent such direction. If the CONTRACTOR is not so
directed, CONTRACTOR shall not be required to resume work in any area affected
by the Hazardous Substance until such time as the Hazardous Substance has been
remediated and/or rendered harmless.
29.5 For purposes of this Contract, the term "Hazardous Substance" shall mean and
include, but shall not be limited to, any element, constituent, chemical, substance,
compound or mixture, which are defined in or included under or regulated by any
local, state or federal law, rule, ordinance, by-law, or regulation pertaining to
environmental regulation, contamination, clean-up or disclosure, including, without
limitation, The Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), The Resource Conservation and Recovery Act
("RCRA"), The Toxic Substances Control Act ("TSCA"), The Clean Water Act
("CWA"), The Clean Air Act ("CAN), and The Marine Protection Research and
Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state
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superlien or environmental clean-up or disclosure statutes including all state and
local counterparts of such laws (all such laws, rules and regulations being referred
to collectively as "Environmental Laws"). It is the CONTRACTOR's responsibility to
comply with this Article 20 based on the law in effect at the time its services are
rendered and to comply with any amendments to those laws for all services
rendered after the effective date of any such amendments.
ARTICLE 30
CITY LICENSES PERMITS AND FEES
30.1 All permit fees payable to the City of Miami Beach shall be waived.
30.2 Occupational Licenses must be in effect as required by Chapter 205, Florida
Statutes, and must be submitted within fifteen (15) days of execution of this
Contract.
Licenses, permits and fees which may be required by the State of Florida, State
Agencies or by other local governmental entities are not included in the above.
30.3 The CONTRACTOR shall be responsible for obtaining all necessary licenses,
building and other permits, and similar authorizations from governmental authorities
required or necessary to perform its obligations hereunder, and shall give aU notices
required by, and otherwise comply with, all applicable laws, ordinances, rules,
regulations and restrictions.
ARTICLE 31
PERSONNEL
31.1 All personnel used or employed by the CONTRACTOR and subcontractors in the
performance of the Work shall be qualified by training and experience to perform
their assigned tasks. At the request of the CITY, the CONTRACTOR shall not use
in the performance of the Work any personnel deemed by the CITY to be
incompetent, careless, unqualified to perform the work assigned to that person him,
or otherwise unsatisfactory to the CITY.
31.2 The CONTRACTOR agrees that in the performance of the Work called for by this
Contract, it will employ only such labor, and engage subcontractors that employ only
such labor, as will not delay or interfere with the speedy and lawful progress of the
Project, and as will be acceptable to and work in harmony with all other workers
employed on the Project site or on any other building, structure, or other
improvement which the CONTRACTOR or any other contractor may then be
erecting or altering on behalf of the CITY.
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The CONTRACTOR agrees that it shall not employ any labor that will interfere with
labor harmony at the Project site or with the introduction and storage of materials
and the execution of work by other contractors or by subcontractors.
31.3 CONTRACTOR shall furnish the CONTRACT ADMINISTRATOR, on request,
resumes of CONTRACTOR'S key personnel involved in the day-to-day Work on the
Project.
ARTICLE 32
CONTRACTOR'S WARRANTIES
32.1 CONTRACTOR warrants to CITY that all materials and equipment under this
Contract will be new unless otherwise specified and that all of the Work will be of
good quality, free from faults and defects and in conformance with the Contract
Documents. All work not conforming to these requirements, including substitutions
not properly approved and authorized, may be considered defective. If required by
CONSULTANT, CONTRACTOR shall furnish satisfactory evidence as to the kind
and quality of materials and equipment. This warranty is not limited by the
provisions of Article 33 herein.
32.2 The CONTRACTOR further represents and warrants: That it is financially solvent,
able to pay its debts as they mature, and is possessed of sufficient working capital
to perform this Contract; that it is able to furnish the Materials, and Services; that it
is experienced in and competent to perform the Work contemplated by this
Contract; and it is qualified to do the Work herein and is authorized to do business
in the state in which the Project is located; that the CONTRACTOR holds a license,
permit or other special license to perform the services included in this Contract, as
required by law, or employs or works under the general supervision of the holder of
such license, permit or special license; that the Work shall be constructed in a good
and proficient manner, free from defects, and in strict compliance with the Contract
Documents.
ARTICLE 33
DEFECTIVE WORK
33.1 CONSULTANT and CONTRACT ADMINISTRATOR shall have the authority to
reject or disapprove work which CONSULTANT and CONTRACT
ADMINISTRATOR find to be defective. If required by CONSULTANT and
CONTRACT ADMINISTRATOR, CONTRACTOR shall promptly either correct all
defective work or remove such defective work and replace it with nondefective work.
CONTRACTOR shall pay all direct, indirect and consequential costs of such
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removal or corrections including cost of testing laboratories and personnel. Such
costs shall be included in the GMP.
33.2 Should CONTRACTOR fail or refuse to remove or correct any defective work or to
make any necessary repairs in accordance with the requirements of the Contract
Documents within the time indicated in writing by CONSULTANT and CONTRACT
ADMINISTRATOR, CITY shall have the authority to cause the defective work to be
removed or corrected, or make such repairs as may be necessary at
CONTRACTOR's expense. Any expense incurred by CITY in making such
removals, corrections or repairs, shall be paid for out of any monies due or which
may become due to CONTRACTOR and deducted from the GMP, or may be
charged against the Performance Bond. In the event offailure of CONTRACTOR to
make all necessary repairs promptly and fully, CITY may declare a default.
33.3 If, within one (1) year after the date of final completion or such longer period of time
as may be prescribed by the terms of any applicable special warranty required by
the Contract Documents, any of the Work is found to be defective or not in
accordance with the Contract Documents, CONTRACTOR, after receipt of written
notice from CITY, shall promptly correct such defective or nonconforming Work
within the time specified by CITY without cost to CITY, to do so. Nothing contained
herein shall be construed to establish a period of limitation with respect to any other
obligation which CONTRACTOR might have under the Contract Documents hereof
and any claim regarding latent defects.
33.4 Failure to reject any defective work or material shall not in any way prevent later
rejection when such defect is discovered, or obligate CITY to final acceptance.
33.5 The CONTRACTOR shall (i) replace any part of the Work that fails to conform with
the requirements of this Contract that appear during progress of the Work on the
Project; (ii) remedy any defects in the Work due to faulty materials or workmanship
which appear within a period of (1) year from the time of Substantial Completion of
the Work hereunder or within such longer period of time as may be set forth in the
Plans, Specifications and Addenda or other Contract Documents or as may be
required by law; and (iji) replace, repair or restore any parts of the Project or
furniture, fixtures, equipment or other items placed therein (whether by the CITY or
any other party) that are injured or damaged by any such parts of the Work that do
not conform to the requirements of this Contract or are due to defects in the Work.
The provisions of this Article shall not apply to corrective work attributable solely to
the acts of omissions of any separate contractor or subcontractor of the CITY
unless the CONTRACTOR is acting in such capacity or capacities. The cost to the
CONTRACTOR of performing any of its obligations under this Article shall be within
the Guaranteed Maximum Price. The CONTRACTOR's responsibility to make
repairs and redo work under this Article, is in addition to the CONTRACTOR's
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responsibility to the CITY for any other damages of any kind for which the
CONTRACTOR would be legally responsible.
33.6 If the CITY and the CONTRACTOR deem it inexpedient to require the correction of
work damaged or not performed in accordance with the Contract Documents, an
equitable deduction from the Guaranteed Maximum Price shall be made by
agreement between the CONTRACTOR and the CITY. Until such settlement, the
CITY may withhold such sums as the CITY deems just and reasonable from
moneys, if any, due the CONTRACTOR. If no moneys are held by the CITY,
reimbursement shall be made to the CITY within thirty (30) days by the
CONTRACTOR.
33.7 The CONTRACTOR's express warranty herein shall be in addition to, and not in lieu
of, any other warranties or remedies the CITY may have under this Contract, at law,
or in equity for defective Work.
ARTICLE 34
SIGNAGE
34.1 Any requirements for a Project sign shall be as set forth within the Technical
Specifications section.
34.2 All construction signage, including, but not limited to that appearing on tower cranes
and other construction equipment located at the Project Location, shall be subject to
the prior written approval of the CONTRACT ADMINISTRATOR. The
CONTRACTOR recognizes that all signage may be disallowed, in the CONTRACT
ADMINISTRATOR's sole discretion, and that existing signage or advertising on
construction equipment, field officers, trailers, construction fences, etc., may be
required to be masked or deleted, all at no cost or expense to the CITY. Such
signage will be considered an overhead expense pursuant to Article 17.2 and shall
not be included within the Cost of the Work.
ARTICLE 35
PUBLIC ENTITY CRIMES ACT
35.1 In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes),
a person or affiliate who is a contractor, consultant or other provider, who has been
placed on the convicted vendor list following a conviction for a Public Entity Crime
may not submit a bid on a contract to provide any goods or services to CITY, may
not submit a bid on a contract with CITY, may not submit a bid on a contract with
the CITY for the construction or repair of a public building or public work, may not
submit bids on leases of real property to CITY, may not be awarded or perform work
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as a contractor, supplier, subcontractor, or consultant under a contract with CITY,
and may not transact any business with CITY in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for category two purchases for a
period of 36 months from the date of being placed on the convicted vendor list.
Violation of this section by CONTRACTOR shall result in termination of this
Contract, and may result in debarment from CITY's competitive procurement
activities.
ARTICLE 36
OWNERSHIP OF CONTRACT DOCUMENTS
36.1 Any and all reports, photographs, surveys, Plans, Specifications, detail drawings
and other drawings prepared or created in connection with the Project are and shall
remain the property of the CITY and are not to be used by the CONTRACTOR on
any other project and shall be relinquished to the CITY at Final Completion or upon
termination, in the requested form or format, through delivery of same to the
CONSULTANT within ten (10) days after receipt of written notice, whether finished
or unfinished. Provided, however, that the CONTRACTOR may maintain one
record set of as-built drawings. if applicable, CITY may withhold any payments then
due to CONTRACTOR until CONTRACTOR complies with the provisions of this
section.
ARTICLE 37
ASSIGNMENT
37.1 The CONTRACTOR shall not assign this Contract or subcontract it as a whole
without the written consent of the CITY; nor shall the CONTRACTOR assign any
monies due or to become due to it hereunder, without the previous written consent
of the CITY.
ARTICLE 38
NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY AND
AMERICANS WITH DISABILITIES ACT:
38.1 CONTRACTOR shall not unlawfully discriminate against any person in its
operations and activities in its use or expenditure of the funds or any portion of the
funds provided by this Contract and shall affirmatively comply with all applicable
provisions of the Americans with Disabilities Act (ADA) in the course of providing
any services funded in whole or in part by CITY, including Titles I and II of the ADA
(regarding nondiscrimination on the basis of disability), and all applicable
regulations, guidelines, and standards.
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CONTRACTOR's decisions regarding the delivery of services under this Contract
shall be made without regard to or consideration of race, age, religion, color,
gender, sexual orientation (City of Miami Beach Human Rights Ordinance), national
origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lawfully used as a basis for service delivery.
CONTRACTOR shall not engage in or commit any discriminatory practice in
violation of the City of Miami Beach Human Rights Ordinance in performing any
services pursuant to this Contract.
CONTRACTOR shall comply with Title I of the Americans with Disabilities Act
regarding nondiscrimination on the basis of disability in employment and further
shall not discriminate against any employee or applicant for employment because of
race, age, religion, color, gender, sexual orientation, national origin, marital status,
political affiliation, or physical or mental disability. In addition, CONTRACTOR shall
take affirmative steps to ensure nondiscrimination in employment against disabled
persons. Such actions shall include, but not be limited to, the following:
employment, upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff, termination, rates of pay, other forms of compensation, terms and conditions
of employment, training (including apprenticeship), and accessibility.
CONTRACTOR shall take affirmative action to ensure that applicants are employed
and employees are treated without regard to race, age, religion, color, gender,
sexual orientation, national origin, marital status, political affiliation, or physical or
mental disability during employment. Such actions shall include, but not be limited
to, the following: employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff, termination, rates of pay, other forms of
compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
ARTICLE 39
WAIVER
39.1 No consent orwaiver, express or implied, by either party to this Contract to or of any
breach or default by the other in the performance of any obligations hereunder shall
be deemed or construed to be a consent or waiver to or of any other or future
breach or default by such party hereunder, nor deemed to be a modification of this
Contract. Failure on the part of any party hereto to complain of any act or failure to
act of the other party or to declare the other party in default hereunder, irrespective
of how long such failure continues, shall not constitute a waiver of the rights of such
party hereunder. Inspection by, payment by or tentative approval or acceptance by
the CITY, or the failure of the CITY to perform any inspection hereunder, shall not
General Conditions
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constitute a final acceptance of the Work or any part thereof and shall not release
the CONTRACTOR from any of its obligations hereunder.
ARTICLE 40
CONSTRUCTION OF TERMS
40.1 Unless the context clearly intends to the contrary, words singular or plural in number
shall be deemed to include the other and pronouns having masculine or feminine
gender shall be deemed to include the other. The term "person" shall be deemed to
include an individual, corporation, unincorporated organization, partnership, trust,
government and governmental agency or subdivision, as the context shall require.
ARTICLE 41
CAPTIONS
41.1 The captions used for the Articles in this Contract are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope of
the intent of this Contract or any Article hereof.
ARTICLE 42
ENTIRE AGREEMENT; SEVERABILITY; AMENDMENTS
42.1 Contract Documents incorporate and include all prior negotiations, correspondence,
conversations, agreements, and understandings applicable to the matters contained
herein and the parties agree that there are no commitments, agreements or
understandings concerning the subject matter of this Contract that are not contained
in the Contract Documents. Accordingly, the parties agree that no deviation from
the terms hereof shall be predicated upon any prior representations or agreements,
whether oral or written. It is further agreed that no modification, amendment or
alteration in the terms or conditions contained herein shall be effective unless
contained in a written document in accordance with Article 12 above. In the event
any provision of the Contract Documents shall be found by a court of competent
jurisdiction to be invalid or otherwise unenforceable, the remainder of this Contract
shall not be affected thereby and each remaining provision, term, covenant or
condition of the Contract Documents shall continue to be effective.
General Conditions
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ARTICLE 43
CITY'S RIGHT TO TERMINATE CONTRACT
43.1 If CONTRACTOR fails to begin the Work within five (5) calendar days after the
Project Initiation Date, as defined in Article 4.2 of the Contract, or fails to perform
the Work with sufficient workers and equipment or with sufficient materials to insure
the prompt completion of the Work, or shall perform the Work unsuitably, or cause it
to be rejected as defective and unsuitable, or shall discontinue the prosecution of
the Work pursuant to the accepted schedule or if CONTRACTOR shall fail to
perform any material term set forth in the Contract Documents or if CONTRACTOR
shall become insolvent or be declared bankrupt, or commit any act of bankruptcy or
insolvency, or shall make an assignment for the benefit of creditors, or from any
other cause whatsoever shall not carry on the Work in an acceptable manner, CITY
may give notice in writing to CONTRACTOR and its Surety of such delay, neglect or
default, specifying the same. If CONTRACTOR, within a period often (10) calendar
days after such notice, shall not proceed in accordance therewith, then CITY may
upon written certificate from CONTRACT ADMINISTRATOR of the fact of such
delay, neglect or default and CONTRACTOR's failure to comply with such notice,
terminate the services of CONTRACTOR, exclude CONTRACTOR from the Project
site, and take the prosecution of the Work out of the hands of CONTRACTOR, and
appropriate or use any or all materials and equipment on the Project site as may be
suitable and acceptable. In such case, CONTRACTOR shall not be entitled to
receive any further payment until the Project is completed. In addition CITY may
enter into an agreement for the completion of the Project according to the terms and
provisions ofthe Contract Documents, or use such other methods as in CITY's sole
opinion shall be required for the completion of the Project according to the terms
and provisions of the Contract Documents, or use such other methods as in CITY's
sole opinion shall be required for the completion of the Project in an acceptable
manner. All damages, costs and charges incurred by CITY, together with the costs
of completing the Project, shall be deducted from any monies due or which may
become due to CONTRACTOR. In case the damages and expenses so incurred by
CITY shall exceed the unpaid balance, then CONTRACTOR shall be liable and
shall pay to CITY the amount of said excess.
43.2 If after notice of termination of CONTRACTOR's right to proceed, it is determined
for any reason that CONTRACTOR was not in default, the rights and obligations of
CITY and CONTRACTOR shall be the same as if the notice of termination had been
issued pursuant to the Termination for Convenience clause as set forth in Section
43.3 below.
43.3 This Contract may be terminated for convenience in writing by CITY upon ten (10)
days written notice to CONTRACTOR (delivered by certified mail, return receipt
requested) of intent to terminate and the date on which such termination becomes
General Conditions
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effective. In such case, CONTRACTOR shall be paid for all work executed and
expenses incurred prior to termination in addition to termination settlement costs
reasonably incurred by CONTRACTOR relating to commitments which had become
firm prior to the termination. Payment shall include reasonable profit for
work/services performed. No payment shall be made for profit for work/services
which have not been performed.
43.4 Upon receipt of Notice of Termination pursuant to Sections 43.2 or 43.3 above,
CONTRACTOR shall promptly discontinue all affected work unless the Notice of
Termination directs otherwise and deliver or otherwise make available to CITY all
data, drawings, specifications, reports, estimates, summaries and such other
information as may have been required by the Contract Documents whether com-
pleted or in process.
ARTICLE 44
RESOLUTION OF DISPUTES
44.1 To address all disputes and litigation, it is agreed by the parties hereto that
CONSULTANT (relative to the technical interpretation ofthe Contract Documents)
and the CONTRACT ADMINISTRATOR (relative to the character, quality, amount
and value of any work done and materials furnished, or proposed to be done or
furnished under or, by reason of, the Contract Documents) shall decide all
questions, claims, difficulties and disputes of whatever nature which may arise as to
fulfillment of this Contract ("Claims"), and such parties' estimates and decisions
upon all Claims shall be final and binding to the extent provided in Article 44.2. Any
Claim which cannot be resolved by mutual agreement of CONTRACT
ADMINISTRATOR, CONSULTANT and CONTRACTOR shall be dealt with in the
manner provided in Article 44.2 below.
44.2 In the event the determination of a Claim under this Article is unacceptable to any of
the parties hereto, the party objecting to the determination must notify the other
party in writing within ten (10) days of receipt of the written determination. The
notice must state the basis of the objection and must be accompanied by a
statement that any Contract Price adjustment claimed is the entire adjustment to
which the objecting party has reason to believe it is entitled to as a result of the
determination. Within sixty (60) days after Final Completion of the Work, the parties
shall participate in mediation to address all objections to any mediator mutually
agreed upon by the parties. Should any objection not be resolved in mediation, the
parties retain all their legal rights and remedies provided under State law. If a party
objecting to a determination fails to comply in strict accordance with the
requirements of this Article, said party specifically waives all of its rights provided
hereunder, including its rights and remedies under State law.
General Conditions
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44.3 Pending resolution of any Claim arising under this Contract, other than termination
hereof, the CONTRACTOR shall proceed diligently with performance of this
Contract and the CITY shall continue to make payments in accordance with the
Contract Documents.
ARTICLE 45
OTHER TERMS & CONDITIONS
45.1 Druq Free Workplace: It is a requirement of CITY that it enter into contracts only
with firms that certify the establishment of a drug free work place in accordance with
the Miami Beach CITY Code. Execution of this Contract by CONTRACTOR shall
also serve as CONTRACTOR's required certification that it either has or that it will
establish a drug free work place in accordance with Chapter 21.31 (a) of the Miami
Beach CITY Code.
45.2 Hurricane Precautions
45.2.1 During such periods of time as are designated by the United States Weather
Bureau as being hurricane warning or alert, the CONTRACTOR, at no cost to
the CITY, shall take all precautions necessary to secure the Project site,
regardless of whether the CITY orthe CONTRACT ADMINISTRATOR have
given notice of same.
45.2.2 Compliance with any governmental agency hurricane warning or alert
precautions at the Project site will not constitute additional work.
45.2.3 Suspension of the Work caused by a threatened or actual storm event,
regardless of whether the CITY or the CONTRACT ADMINISTRATOR has
directed such suspension, will entitle the CONTRACTOR to additional
Contract Time as non-compensable, excusable delay.
45.3 Status Reports to CITY's General Obliqation (G.O.) Bond Oversiqht Committee.
CONTRACTOR shall provide Project status reports, in a form satisfactory to
CONTRACT ADMINSTRATOR and to the City's G.O. Bond Oversight Committee.
Said reports shall be provided monthly and submitted to CONTRACT
ADMINISTRATOR in accordance with the schedule set forth in Attachment III, for
inclusion in the Committee's monthly meeting agenda packet. Said reports shall
continue for the duration of the Project.
General Conditions
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C I T Y 0 F M I A M I BE A"C H
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:\\ci.miami-beach.fl.u$
COMMISSION MEMORANDUM
TO:
Mayor David Dermer and
Members of the City Commission
DATE: February 5, 2003
SUBJECT: A RESOLUTION OF THE MAYOR AN ITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, REJECTING THE PROPOSED
GUARANTEED MAXIMUM PRICE IN THE AMOUNT OF $4,840,933,
SUBMlnED PURSUANT TO THE AGREEMENT FOR PRE-
CONSTRUCTION SERVICES BETWEEN THE CITY OF MIAMI BEACH,
FLORIDA, AND JASCO CONSTRUCTION COMPANY, INC., FOR
CONSTRUCTION MANAGEMENT AT RISK SERVICES PURSUANT TO
RFQ. NO. 117-99/00, ENTITLED CONSTRUCTION MANAGEMENT AT
RISK FOR THE FIRE STATION NO.2 RENOVATION AND EXPANSION, AS
PREVIOUSLY AMENDED TO ADD WATER TANKS, PUMP STATIONS,
AND RELATED ITEMS, FOR THE CONSTRUCTION OF TWO THREE
MILLION GALLON WATER STORAGE TANKS, A WATER PUMP STATION,
A TEMPORARY PARKING LOT NEAR THE PUBLIC WORKS YARD AND A
PARTIAL SITE DRAINAGE SYSTEM; AND FURTHER AUTHORIZING THE
CITY MANAGER, OR HIS DESIGNEE, TO TERMINATE THE AGREEMENT
FOR CONVENIENCE PURSUANT TO THE AUTHORITY GRANTED IN THE
AGREEMENT.
FROM: Jorge M. Gonzalez
City Manager
ADMINISTRATION RECOMMENDATION:
Adopt the Resolution
BINDING:
Although the recommendation is to reject the proposed Guaranteed Maximum Price, funds
are available from Funds 504 and 424 previously appropriated for the Water Tanks, the
Pump Station and the Public Works Yard.
ANALYSIS
On July 17, 1996. the Mayor and City Commission adopted a resolution authorizing the
Mayor and City Clerk to execute an Agreement with the firm of ST A Architectural Group
(STA) , pursuant to RFLI No. 133-94/95 for architectural and engineering services for the
renovation and expansion of Fire Station NO.2 and a Master Plan for the site at 451 Dade
Boulevard.
On March 9, 1998, the final scheme developed by STA was presented for approval and
recommendation, which called for the addition of a new, three apparatus bay fire station, the
historic restoration of the existing fire station building as well as a reconfiguration of the
Commission Memorandum
February 5, 2003
Fire Station No.2 GMP
Page 2
Public Works Yard. This new recommendation represented a departure from the original
scope of work initially requested in RFLI No. 133-94/95.
As part of the General Obligation Bond Program (GO) and the Capital Improvements
Program (CIP), the Administration revisited the original recommendations for the Master
Plan, pursuant to RFLI No. 133-94/95, and negotiated an amendment to the original
Agreement with ST A for the design and construction administration services for the Fire
Station No.2 Project, to include the recommendations approved on March 9, 1998.
On June 28, 2000, the Mayor and City Commission approved Amendment No. 1 to the
Agreement with ST A for the restoration of the existing Fire Station No.2, the addition of a
new three apparatus bay Fire Station and the reconfiguration of the site.
An Agreement with Jasco Construction Co. (Jasco) was signed and executed on April 18,
2001. Jasco was retained by the City to act as Construction Manager at Risk on the Project
and to provide a Guaranteed Maximum Price based on the construction documents
prepared by ST A.
Earlier in the last calendar year, it was determined that it was necessary to construct two
new water tanks and demolish the existing water tank located within the Public Works Yard
before the construction on the Fire Station could begin. Camp Dresser & McKee, Inc.
(CDM) was asked to provide a schematic design of two new water tanks and a new pump
station within the Public Works Yard site. As a result, the water tanks and related pump
station were added to the Jasco Construction Manager at Risk Agreement.
The City approved the schematic design submitted by CDM and the locations and size of
the water storage tanks. The Administration requested that Jasco provide a separate GMP
for the Fire Station project, for the EOC, and for the Water Tanks and Pump Station in order
to facilitate the evaluation of all costs.
The additional services for the complete construction documents and specifications of the
water tanks and pump station where approved by the City Commission on May 8, 2002.
CDM was given Notice to Proceed with the completion of the project design on May 20,
2002. STA and CDM were directed to provide sufficient information to Jasco to establish
the Guaranteed Maximum Price (GMP).
STA completed 100% documents for both the new station and the existing building and
completed the related City Building Department permit review. The entire permit review
process will be complete pending final approvals from the County's Department of
Environmental Resource Management. Camp Dresser & McKee, Inc. (CDM) has submitted
to the City 100% documents for review and approval as well as the initial cost estimate on
the water tanks and pump station component.
On September 16, 2002 Jasco submitted to the City a document titled Addition and
Renovation of Fire Station No.2, 25th Street Water Tanks and Pump Station Estimate
Summary, leading City staff and the two AlE firms to believe that Jasco was submitting its
GM P proposal to the City for its acceptance, negotiation, or rejection. Upon its receipt, staff
Commission Memorandum
February 5, 2003
Fire Stat/on No.2 GMP
Page 3
began to review the document and also transmitted the document to the respective AlE
firms for their comments.
Almost immediately it became apparent that the document submitted by Jasco was woefully
deficient as a GMP submittal and staff, and the respective AlE consultants, put together
comments to respond to the submittal. As the project is complex and the proposed pricing
within the GMP draft document is in excess of $2 million over the budget for just the Fire
Station component (not to mention some of the other components of the project, which are
also over-budget), the review and detailed responses were recently completed.
Staff, as well as the respective City consultant's, analyzed both the contents as well as the
form ofthe submittal and concluded that Jasco did not comply properly with the Agreement
and that its obligations were not fully met. The CIP Office also believes that Jasco has not
complied with the Agreement requirement to provide a project within budget for the new
Fire Station and the Renovation of the existing building.
Essentially, the staff and consultant review concluded that in addition to being significantly
over budget in the pricing of some components of the project. Jasco did not follow its
Construction Manager at Risk Contract with the City and did not provide the level of input
and review required by the contract. Very briefly, the budget issues and confirmed funding
are as follows:
Prolect CornDonent BudoetIFundlno Jasco Price
Fire Station and Renovation $3,775,000 $6,313,338
Water Tanks/Pumo Station $4,448,608 $3,829,305
Site Work. $525,000 $545,196
Temp Park.inc, PW Site $500,000 $1,228,530
Staff met with Jasco officials on Monday, December 23, 2002 to discuss the status of the
Project. Jasco officials indicated that they did not intend for the document submitted to be
its GMP proposal and suggested that the purpose of the document was to provide a
.snapshor of the "worse case scenario" on the project after the documents for all the
components were sufficiently complete to price. At the meeting, Jasco officials stated that
the Water Tank/Pump Station components would be priced by the end of January 2003 and
a GMP proposal for that component provided to the City by early February. Jasco officials
also stated they recommended submitting the GMP proposal for the Fire Station portion of
the Project to the City about six months from now to obtain better pricing for those
components.
The reasoning stated by Jasco for the split GMP submittal is thatthe sub-contractors for the
various disciplines will provide better pricing for a project that will begin relatively quickly, as
opposed to a project that will begin in about 10 months, which is the expected construction
timeline on the Water Tank/Pump Station components. The Fire Station components
cannot begin construction any earlier due to site conflicts between the existing water tank
and the new Fire Station building.
Also, in October 2002, the City received notification of an action by the Miami-Dade
CommIssIon Memorandum
February 5, 2003
FIre Station No.2 GMP
Page"
County Office of the Inspector General regarding Jasco. Based on the information
received, the City Administration asked the City Attorney for an opinion on whether the OIG
action impacted the Agreement between the City and Jasco.
In order to continue the process, pending resolution of the legal opinion, the Administration
recommended that the City continue to work with Jasco in completing submittal of a final
GMP for the Water Tanks and Pump Station portion of the Project only. On January 8,
2003, the City Commission directed the Administration to continue the process with Jasco
for the GMP on the water tanks portion and to submit it to the Finance and Citywide
Committee at a special meeting.
Jasco has submitted a GMP proposal which is within budget parameters and is complete as
agreed. They have complied with the requirements of the Agreement for the Water Tanks
and Pump Station portion of the Project and have also agreed to certain modifICations to the
Agreement requested by the City. These additional conditions are briefly, that Jasco would
agree that acceptance of a partial GMP does not obligate the City any further; thatthe GMP
for this portion will be provided independently of the Fire Station GMP; and that the sub-
contractor Agreements for this portion will be stated in such a way that they could be
assigned to the City in the event Jasco and the City terminate the Agreement at any time.
The GMP was presented to the Finance and Citywide Committee on January 29, 2003 and
the Administration recommended to the Committee thatthe City not accept the GMP for
the Water Tanks and Pump Station p6rtion of the Project and that the relationship with
Jasco be severed under the available provisions of the Agreement. The options available
in the Agreement are to direct the consultant and the CM to redesign, value engineer, and
develop other cost savings measures at no cost to the City; to reject the GMP and take
possession of all documents to bid the work to a General Contractor; or to negotiate with
the CM in order to reach an acceptable agreement on the Project's scope and costs.
.
At the Committee meeting, a representative from the City Attorney's office gave a verbal
presentation on the findings by his office. The City Attorney representative stated that
Jasco was legally incorporated as a separate entity on the same day that the bid proposals
for the subject RFP were due and therefore complied with the RFP requirements. However,
it was also stated that Jasco noted in the written responses to the RFP, that Jasco was
incorporated in 1999, when in fact they were still an entity affiliated with Mastec and
Church & Tower at that time. It was also stated that to comply with the reference
requirements of the RFP for projects performed within a period of five years, Jasco
presented projects performed while still an affiliate of Mastec and not by Jasco as a
separate entity.
It can be argued that the above inconsistencies would have made Jasco non-responsive
and probably non-responsible if they had been known at the time of selection for the
Project. It is because of these and other newly identified facts that the Administration has
lost confidence in the relationship with Jasco and thus is recommending that the
Agreement be terminated in accordance with the provisions available and that the Project
be placed out to bid for a replacement Construction Manager. The City intends to provide
a bid proposal which will require the bidders to assume responsibility for the
management of all components of the Project and to provide a similar timeline as that
Commission Memorandum
February 5, 2003
Rre Station No.2 GMP
Page 5
discussed with Jasco. The bid proposal also will require that both portions of the Project
be priced separately in order to expedite the start of construction for the Water Tanks and
Pump Station portion of the Project while all funding, value engineering and scope issues
for the Fire Station portion are resolved.
The Administration expects to present to the Mayor and City Commission a
recommendation on the replacement Construction Manager at the May 2003 Commission
meeting for a possible start of construction on the Water Tanks and Pump Station portion
of the Project in June 2003.
The Committee agreed with the recommendations presented at the meeting. Therefore,
the Administration is recommending to the Mayor and City Commission that the Agreement
with Jasco be terminated and that a process of competitive bidding for a replacement
Construction Manager be initiated in order to expedite the award of a contract and the start
of construction of the Water Tanks and Pump Station portion of the Project as quickly as
possible.
The fire station portion will proceed at a later date. Because the water tanks must be
constructed in advance of the fire station, there is a window of approximately six to eight
months to complete the value engineering process on the fire station and be ready with a
cost by the replacement Construction Manager for that portion of the Project
Attachment
T:IAClIlNDA\2l103~Cann-.doc: