Morton Towers Apts LP AgmtAGREEMENT
Between
CITY OF MIAMI BEACH, FLORIDA
and
MORTON TOWERS APARTMENTS, L.P.
for
BAY ROAD IMPROVEMENTS
(14th to 16th Streets)
This is an Agreement (the "Agreement") between the CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation of the State of Florida, its successors and assigns,
hereinafter referred to as "CITY."
AND
MORTON TOWERS APARTMENTS, L,P,, a Delaware limited partnership, its
successors and assigns, hereinafter referred to as "DEVELOPER,"
W I T N E S S E T H, in consideration of the mutual terms and conditions, promises,
covenants and payments hereinafter set forth, CITY and DEVELOPER agree as
follows:
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
For the purposes of this Agreement and the various covenants, conditions, terms and
provisions which follow, the DEFINITIONS and IDENTIFICATIONS set forth below are
assumed to be true and correct and are agreed upon by the parties.
Whenever the following terms or pronouns in place of them appear in this Agreement
the intent and meaning shall be interpreted as follows:
1.00 Change Order: A written document ordering a change in the Contract Sum or
Contract Time or a material change in the Work.
1.01 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/or for which this Agreement is
to be performed. In all respects hereunder, City's performance is pursuant to City's
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/15/03 1
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 any manner to City as a party to this Agreement.
1.02 City Commission: City Commission shall mean the governing and legislative
body of the City.
1.03 City Manager: City Manager shall .mean the Chief Administrative Officer of the
City.
1.04 Construction Phase. The phase of services which constitutes DEVELOPER'S
administration of the construction of the Project and all activities necessary for the
completion of the Project.
1.05 Consultant: The registered architect, professional engineer, professional land
surveyor, civil engineer, and/or registered landscape architect who is in contract with
CITY to provide professional services for the design and construction of the Project, and
who is further licensed by the State of Florida to provide said services. The primary
consultant for this Project shall be the firm of Glatting Jackson Kercher Anglin Lopez
Rinehart, Inc., a professional services firm duly certified, licensed and registered as a
landscape architectural firm, located at 222 Clematis Street, Suite 200, West Palm
Beach, Florida 33401. When the term "Consultant" is used in this Agreement it shall be
deemed to include Glatting Jackson Kercher Anglin Lopez Rinehart, Inc. as the primary
consultant, as well as any subconsultants or subcontractors utilized by Glatting Jackson
Kercher Anglin Lopez Rinehart, Inc. for the Project.
DEVELOPER and CITY herein agree and acknowledge that DEVELOPER shall
utilize Consultant's Plans and Specifications, construction documents, and any
and all other portion of the Contract Documents prepared by Consultant for the
Project, for the construction of the Project. DEVELOPER further acknowledges
and agrees that Consultant shall render certain design and engineering services
pursuant to this Agreement, including but not limited to, additional design and
engineering services, as required; Project construction site supervision and/or
observations relative to the Work; and the rendering of approvals, opinions, and
decisions, all as more specifically set forth in the Contract Documents.
DEVELOPER herein further agrees and shall require that all of the provisions of
this Paragraph be binding upon the Contractor, subcontractors and
subconsultants; to the extent as same are binding upon DEVELOPER as a party
pursuant to this Agreement. It shall further be DEVELOPER'S sole and absolute
responsibility to assure such compliance by the Contractor, subcontractors, and
subconsultants. Notwithstanding anything contained herein to the contrary,
DEVELOPER and CITY acknowledge and agree that DEVELOPER's services are
limited to the coordination and management of the Work for the Project as set forth
herein and Developer is not, and shall not be, in any way responsible, or liable, for the
design and/or engineering services provided by the Consultant, or any other individual
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 2
or entity contracted by the CITY to provide design and/or engineering services for the
Project.
1.06 Agreement: This Agreement and all addenda, exhibits, and amendments thereto
between the CITY and the DEVELOPER for this Project, all as defined herein. (Contract
shall mean the same as Agreement.)
1.07 Contract Documents: The ^greement, as approved by the Mayor and City
Commission and executed by the Mayor and City Clerk; any approved Change Orders;
the performance and payment bonds; the Plans and Specifications and any and all
other construction documents, as prepared by the Consultant; other construction
documents such as CPM, Progress Schedule, and Schedule of Values; and any other
documents the submission of which is required by this Agreement. When reference is
made in the Contract Documents to publications, standards or codes issued by
associations or societies, the intent shall be to specify the current or adopted edition of
such publication or standard including revision and effect on the date of the Agreement
execution notwithstanding any reference to a particular date.
1.08 Contractor (or General Contractor): , its successors and
assigns, is the Contractor selected by DEVELOPER, approved by the CITY, and
engaged by the DEVELOPER, as agent of the CITY, to perform the Work pursuant to
the Agreement.
DEVELOPER and CITY agree and acknowledge that CITY is an intended third
party beneficiary in any contract entered into between DEVELOPER and
Contractor, including contracts entered into with any subcontractors and/or
subconsultants. The DEVELOPER shall therefore submit its agreement with
Contractor to the CITY, for its review and approval, prior to such contract being
executed by and between DEVELOPER and Contractor. Additionally,
DEVELOPER herein represents to CITY that its Agreement with Contractor shall
incorporate the terms and conditions of this Agreement and the Contract
Documents, and DEVELOPER shall assume sole and absolute responsibility for
binding Contractor to same as if Contractor were a party to this Agreement.
1.09 Contract Administrator: The CITY'S Capital Improvement Projects Office
Director, or his designee, shall be designated as the Contract Administrator for matters
concerning the Agreement.
DEVELOPER acknowledges and agrees that Contract Administrator shall render
certain services pursuant to this Agreement, including, but not limited to, those
set forth in Section 5.02, Project site observations relative to the Work, and the
rendering of approvals, opinions, and decisions, all as more specifically set forth
in this Agreement and the other Contract Documents. DEVELOPER herein agrees
that it shall require each of its Contractor, subcontractors and subconsultants to
be bound to the terms of this Paragraph to the same extent as same are binding
upon DEVELOPER as a party pursuant to this Agreement.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 3
1.10 DEVELOPER: , its successors and
assigns, is the DEVELOPER selected to coordinate and manage the Work pursuant to
this Agreement, as agent of CITY, and is the person, firm or corporation liable for the
acceptable performance of the Work. All references in the Contract Documents to third
parties under contract or control of DEVELOPER, including but not limited to Contractor,
subcontractors, and subconsultants, shall be deemed to be a reference to
DEVELOPER. The DEVELOPER will be responsible for the provision, installation, and
performance of all equipment, materials, and services offered within its scope of
services. Developer will not be responsible for services and or other responsibilities, to
be provided by Consultant, Contract Administrator, and Project Manager. All of the
DEVELOPER's responsibilities undertaken pursuant to the Agreement are agreed and
acknowledged to be undertaken as an agent of the CITY.
DEVELOPER and CITY agree and acknowledge that the Project includes a
streetscape portion which DEVELOPER is required to complete pursuant to a
development order issued by the CITY, and a public portion which includes, but
is not limited to, certain stormwater, drainage, and sewer system improvements.
As the satisfactory completion of the Project is a condition precedent to
DEVELOPER'S obtaining a final Certificate of Occupancy for the adjacent
condominium project known as the "Flamingo Resort Residences", and as the
CITY also has a vital public interest in the timely completion of the streetscape
portion and the sewer, drainage and stormwater system improvements, both for
the use and benefit of the public, DEVELOPER herein agrees to 1) utilize the City
Consultant's Plans and Specifications, Construction Documents, and any and all
other portion of the Construction Documents prepared by Consultant for the
Project throughout the duration of the Project, as same are set forth in Section
1.05 of the Agreement, and as may be otherwise required in the Contract
Documents; and 2) bind the Contractor, subcontractors, and subconsultants to
the terms and conditions of this Agreement and the Contract Documents, as if
said individuals/entities were themselves parties to said Agreement and Contract
Documents. Notwithstanding anything contained herein to the contrary, DEVELOPER
and CITY acknowledge and agree that the DEVELOPER's services are limited to the
coordination and management of the Work for the Project as set forth herein and
DEVELOPER is not, and shall not be, in any way responsible or liable for the design
and/or engineering services provided by the Consultant, or any other individual or entity
contracted by the CITY to provide design and/or engineering services for the Project.
1.11 Field Order: A written order issued by the Contract Administrator which orders
minor changes in the Project but which does not involve a change in the total cost or
time for performance.
1.12 Final Completion: The date certified by Consultant that all conditions of the
permits and regulatory agencies have been met, all construction, including corrective
and punch list work, has been performed, pursuant to the Contract Documents, all
administrative requirements of the Contract Documents have been completed, and
CITY has received from DEVELOPER a release of all liens, consent of surety, release
of claims by DEVELOPER, corrected as-built drawings, a final bill of materials, executed
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 4
final adjusted Change Order(s), final invoice, "before and after" color videotapes, copies
of pertinent test results, correspondence and other necessary documentation, including
all warranties, guarantees, operational manuals, spare parts, service contracts and
tools.
1.13 Hazardous Materials: As used in this contract "Hazardous Materials" means any
chemical, compound, material, substance or other matter that:
(a) is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine,
bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious material,
whether injurious or potentially injurious by itself or in combination with other materials;
(b) is controlled, referred to, designated in or governed by any Hazardous Materials
Laws;
(c) gives rise to any reporting, notice or publication requirements under any
Hazardous Materials Laws, or
(d) is any other material or substance giving rise to any liability, responsibility or duty
upon the CITY with respect to any third person under any Hazardous Materials Law.
1.14 Hazardous Materials Laws: As used in this contract, the term "Hazardous
Materials' Laws" means any and all federal, state or local laws or ordinances, rules,
decrees, orders, regulations or court decisions (including the so called "common law"),
including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. §§9601 et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. §§1801 et seq.), and
the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §§6901
et seq.), relating to hazardous substances, hazardous materials, hazardous waste, toxic
substances, environmental conditions on, under or about the Premises, soil and ground
water conditions or other similar substances or conditions.
1.15 Material(s): Material(s) incorporated in this Project or used or consumed in the
performance of the Work.
1.16 Notice(s) to Proceed: A written document(s) issued by the Contract
Administrator informing the DEVELOPER to officially begin the Project.
1.17 Plans and/or Specifications: The official graphic and descriptive representations
of this Project which, are a part of the Contract Documents.
1.18 Project: The scope of Work for the Project consists of the construction of new
underground stormwater collection / disposal facilities, irrigation, sidewalk, curb and
gutter, pavement restoration / replacement, landscaping, pavement marking / signage
and miscellaneous utility relocations to accommodate the proposed Work along Bay
Road from 14th to 16th Streets from the right-of-way line along the west to a point 10-feet
west of the eastedy right-of-way, not excluding the necessary transitions between the
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 5
back edge of sidewalk and private property. The DEVELOPER's responsibilities are
limited to the coordination and management of the Work for the Project.
Developer's responsibilities do not include the design and/or engineering of the
Project, or any portion thereof.
1.19 Project Manager: An authorized representative of CITY assigned to make
necessary observations of materials furnished by DEVELOPER and of the Work
performed by DEVELOPER, as more fully detailed in Section 5.04. The Project
Manager shall not perform inspections, as are required by law, said inspections shall be
conducted by the permitting authority. Hazen and Sawyer, P.C. a professional services
firm duly certified, licensed and registered under Chapter 471, Fla Statutes as an
engineer and located 975 Arthur Godfrey Road, Suite 211, Miami Beach, Florida
33139, is the Project Manager selected by the CITY, and DEVELOPER herein consents
to Hazen and Sawyer as Project Manager.
DEVELOPER acknowledges and agrees that Project Manager shall render certain
services pursuant to this Agreement, including but not limited to, those set forth
in Section 5.04, Project site observations relative to the Work, and the rendering
of recommendations, opinions, and decisions, all as more specifically set forth in
this Agreement and the other Contract Documents. DEVELOPER herein agrees
that it shall require f the Contractor, subcontractors and subconsultants to be
bound to the terms of this Paragraph to the same extent as same are binding
upon DEVELOPER as a party pursuant to this Agreement.
1.20 Shop Drawings: Drawings, diagrams and schedules (excluding, however, the
CPM Schedule), and other data specially prepared by the DEVELOPER or its
subcontractors, sub-subcontractors, manufacturer, supplier or distributor to illustrate
some portion of the Work.
1.21 Subcontractor: The person, firm or corporation having a direct contract with
DEVELOPER and/or Contractor, including one who furnishes material worked to a
special design according to the Contract Documents for this Project, but does not
include one who merely furnishes material not so worked.
1.22 Substantial Completion: Subject to the requirements of Article 42, the dates
certified by the Consultant that all conditions of the permits and regulatory agencies
have been met for the CITY'S intended use of each portion of the Project, and all
construction has been performed therein in accordance with this Contract and the
Contract Documents so CITY can fully, as opposed to partially, occupy or utilize each
portion of the Project for its intended purpose. At a minimum, a Certificate of Substantial
Completion is one of the requirements for Substantial Completion.
1.23 Surety: The surety company or individual which is bound by the performance
bond and payment bonds with and for DEVELOPER who is primarily liable and which
surety company or individual is responsible for DEVELOPER'S acceptable performance
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 6
of the Work under the Contract Documents and for the payment of all debts pertaining
thereto in accordance with Section 255.05, Florida Statutes.
1.24 Utilities: The public or private systems on the Project site for rendering electrical
power, light, heat, gas, water, communication, sewage systems, and the like.
1.25 Work: The completed construction required by the Contract Documents, as
permitted, including all labor necessary to produce such construction, and all materials
and equipment incorporated or to be incorporated in such construction.
ARTICLE 2
HISTORICAL BACKGROUND
2.01 At the November 4th, 1997 meeting of the City of Miami Beach Design Review
Board (DRB), DEVELOPER (as applicant, AIMCO PROPERTIES) submitted an
application (under DRB File No. 9191)for design review approval for the renovation of
an existing fifteen (15) story apartment complex, inclusive of the construction of a new
429 unit, 40 story addition on the east, as well as new garden apartments and
townhomes and a new parking structure; all on the property located at 1500 and 1536
Bay Road, on the property formerly known as the "Morton Towers" site, and now
renamed as the "Flamingo Resort Residences" (the "Flamingo Project").
2.02 DEVELOPER'S application for DRB approval was granted pursuant to the Order,
dated December 2nd, 1997, and attached as Exhibit "A" hereto. Said approval for the
Flamingo Project was conditioned, among other items, upon DEVELOPER'S agreement
to submit and facilitate a streetscape plan for the west side of Bay Road, from 14th
Street to 16th Street. Said plan would include, but not be limited to, street resurfacing,
new sidewalks, swales, curb, gutter and landscaping, in accordance with any future
master plan for Bay Road. DEVELOPER was also advised to consider submitting and
facilitating the same streetscape plan for the east side of Bay Road, from 14th Street to
16th Street.
2.03 On December 23rd, 1997, DEVELOPER'S counsel wrote a letter to the City
Manager, proferring additional developmental conditions to the 12/2/97 DRB Order; said
letter written as a proposed settlement between CITY and DEVELOPER, and involving
the City Manager's withdrawal of a proposed appeal to the Flamingo Project DRB
approval. Said letter is attached as Exhibit "B" hereto. As consideration for the City
Manager's withdrawal of his appeal to the 12/2/97 Order granting DRB approval to the
Flamingo Project, DEVELOPER agreed to pay for additional sidewalk, curb and gutter
improvements, including handicap ramps; trees, landscaping and irrigation; street
milling and resurfacing; and lighting and swale improvements to both sides of Bay
Road, between 14th Street and 16th Street, up to an amount not exceed $300,000.00. ~
2.04 On December 23rd, 1997, the City Manager contacted the City's Planning Director
advising him that, in his capacity as City Manager, he had accepted DEVELOPER'S
December 23rd, 1997 offer, and accordingly withdrew his December 19th, 1997 request
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 7
for a review by the City Commission, appealing the DRB approval of DEVELOPER'S
Flamingo Project, and further requested that the 12/2/97 Order for said approval be
modified to include the additional conditions proffered by DEVELOPER in its December
23rd, 1997 letter, including, in pertinent part, DEVELOPER'S $300,000.00 contribution to
the aforestated streetscape improvements. A copy of this letter is attached as Exhibit
"C" hereto.
2.05 On March 4th, 1999, the City's Planning Director wrote a letter to Developer's
counsel, regarding the agreement between CITY and DEVELOPER as to
DEVELOPER'S contribution to the streetscape improvements. A copy of said letter is
attached as Exhibit "D" hereto. Subsequently, CITY and DEVELOPER have continued
discussions regarding the proposed streetscape improvement project (imposed as a
condition of DEVELOPER'S DRB approval). To that end, CITY and DEVELOPER have
agreed to enter into this Contract, wherein DEVELOPER agrees to assume
responsibility for the coordination and management of the Work, and contribute the
amount of $600,000.00 towards the total cost of the Work contemplated herein, and
further subject to the terms and conditions contained in the Contract Documents.
ARTICLE 3
INTENTION OF AGREEMENT
It is the intent of the Contract Documents to describe a functionally complete Project to
be constructed by the DEVELOPER in accordance with said Contract Documents. Any
Work, materials or equipment that may reasonably be inferred from the Contract
Documents as being required to produce the intended result will be supplied 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 association, or to laws or
regulations of any governmental authority, whether such reference be specific or by
implication, shall mean the standard specification, manual, code, laws or regulations in
effect at the time of the completion of design. Applicable laws or codes that may be
changed after a permit is issued may result in additional compensation should additional
work be required on behalf of the DEVELOPER. Notwithstanding anything contained
herein to the contrary, DEVELOPER and CITY acknowledge and agree that the
DEVELOPER's responsibilities are limited to the coordination and management of the
Work for the Project as set forth herein and DEVELOPER is not, and shall not be, in any
way responsible, or liable, for the design and/or engineering services provided by the
Consultant or any other individual or entity contracted by the CITY to provide design
and/or engineering services for the Project.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 8
ARTICLE 4
CONTRACT DOCUMENTS
4.01 The Contract Documents shall be followed as to Work, material, and dimensions
except when the Contract Administrator may authorize in his/her sole discretion, in
writing, an exception.
4.02 Dimensions given in figures are to hold preference over scaled measurements
from the drawings; however, all discrepancies shall be decided upon by the Consultant
with notice to Project Manager. DEVELOPER shall not proceed when in doubt as to any
dimension or measurement but shall seek clarification from the Consultant with notice to
Project Manager.
4.03 DEVELOPER shall maintain four (4) copies of the Contract Documents; two (2)
of which shall be preserved and always kept accessible at the site to the Project
Manager or his/her authorized representatives.
4.04 This Contract incorporates by reference the Contract Documents defined in
Section 1.07. The documents for the Project shall have the following order of
precedence, beginning with the most important:
2.
3.
4.
Change Orders
This Agreement and all addenda, exhibits and amendments thereto
The Plans and Specifications (Approved and Permitted)
Other Contract Documents
ARTICLE 5
SCOPE OF WORK
5.01 Scope of Work for the Bay Road Improvements (14th to 16th Street) Project (the
"Project")
The scope of Work for the Project consists of the construction of new
underground stormwater collection / disposal facilities, irrigation, sidewalk,
curb and gutter, pavement restoration / replacement, landscaping,
pavement marking / signage and miscellaneous utility relocations to
accommodate the proposed Work along Bay Road from 14th to 16th
Streets from the right-of-way line along the west to a point 10-feet west of
the easterly right-of-way, not excluding the necessary transitions between
the back edge of sidewalk and private property. DEVELOPER is
responsible for the coordination and management of the Work for the
Project. DEVELOPER is not, and shall not be responsible for the design
and/or engineering of the Project, or any portion thereof.
5.02 Contract Administrator will provide, at a minimum, the following services:
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 9
5.02.01 The Contract Administrator shall have the authority to reject Work that does
not in its opinion, or in the opinion of the Consultant, conform to the Contract
Documents.
5.02.02 Contract Administrator shall monitor the overall control and expediting of
the construction of the Work to facilitate completion of the Work within the approved
time frame and within the Contract Sum.
5.03 Consultant will provide, at a minimum, the following services:
5.03.01 Consultant shall perform all of the architectural and engineering services
necessary to describe, detail and design the Project in accordance with the Contract
Documents.
5.03.02 Consultant shall design the Project so as to comply with applicable codes and
regulations.
5.03.03 Consultant shall prepare the Plans and Specifications, as well as review and
approve (or take other appropriate action upon) submittals such as shop drawings,
product data and samples.
5.03.04 Consultant shall prepare construction change directives, if necessary, and
authorize minor changes in the Work as provided in the Contract Documents.
5.03.05 Consultant shall receive and review for compliance with the Contract
Documents all written warranties and related documents required hereby to be
assembled upon Substantial Completion and issue Certificates for Payment for Work
performed in compliance with the requirements of the Contract Documents.
5.03.06 Consultant shall review shop drawing submittals prepared by the DEVELOPER
and return to the Project Manager for routing.
5.03.07 Consultant shall review and / or respond to DEVELOPER inquiries regarding
the intent of the Contract Documents with respect to written Requests for Information,
Requests for Change Orders, and other communications between the DEVELOPER
and the CITY requiring Consultant review.
5.03.08 Consultant shall prepare Contract Documents clarifications to address
clarifications regarding the intent of the Contract Documents.
5.03.09 Consultant shall perform specialty site visits by various design disciplines upon
request in the prosecution of the Work.
5.03.10 Consultant shall assist the Contract Administrator and Project Manager with
the development of a punch list(s) or list(s) of items requiring corrective action.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 10
5.03.11 Consultant shall attend weekly progress meetings with the DEVELOPER,
Contract Administrator and Project Manager to review Work progress and resolve
issues relating to the prosecution of the Work.
5.03.12 The Consultant shall have no authority to order or approve any deviation
from the Contract Documents, whether or not such deviation affects the cost of the
Work, or Substantial Completion. In the event any such deviation is sought, prior written
approval from the Contract Administrator must be obtained.
5.04 Project Manager shall provide, at a minimum, the following services:
5.04.01 Act as the liaison between the Contract Administrator, DEVELOPER, and
Consultant.
5.04.02 Conduct on-site observations of the Work in progress to assist in determining
if the provisions of the Contract Documents and permit conditions are being fulfilled and
to reasonably protect the CITY against defects and deficiencies in the Work. Full-time
observation services are not contemplated.
5.04.03 Verify all pay requisition quantities in the field by measurement.
5.04.04 Receive, log and distribute DEVELOPER transmittals to the appropriate parties
for review / action.
5.04.05 Assist the Contract Administrator and Consultant, with the review of requests
for information and / or changes on cost / schedule.
5.04.06 Direct and supervise the sampling and testing of materials to be performed by
independent testing laboratories under subcontract with the CITY.
5.04.07 Monitor that record drawing mark-ups are properly maintained by the
DEVELOPER. Monthly applications for payments will not be approved unless the
DEVELOPER is maintaining record drawings and evidence of record drawing
maintenance can be provided.
5.04.08 Assist the Contract Administrator and Consultant, with the development of a
punch list(s) or list(s) of items requiring corrective action.
5.04.09 Project Manager shall not have control over construction means, method,
techniques, sequences and procedures employed by DEVELOPER in the performance
of the 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 Documents are not being met.
5.03.10 The Project Manager will be assisted by Consultant in the areas of on-site
review of Work in progress, review of pay applications submitted by the DEVELOPER,
assisting in the interpretation of the intent of the Contract Documents for the proper
execution of the Work, and such other assistance as the Project Manager may request.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 11
ARTICLE 6
CONTRACT TIME
6.1 Time is of the essence for the DEVELOPER'S performance of the Work pursuant
to the Contract Documents. The DEVELOPER agrees to complete the Work in
accordance with the Progress Schedule and to achieve Substantial Completion of the
Work, in accordance with the Contract Documents, and within the Contract time.
6.2 DEVELOPER 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. DEVELOPER shall commence scheduling
activities, permit applications, and other preconstruction services 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 DEVELOPER'S submission to CITY of all required documents and after execution
of the Contract by both parties.
6.2.1. The receipt of all necessary permits by DEVELOPER 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.
6.3 Time is of the essence throughout this Contract. The Work shall be
substantially completed within calendar days from the date specified in the
second Notice to Proceed, and completed and ready for final payment in accordance
with Article 10, within __ calendar days from the date certified by Consultant as the
date of Substantial Completion.
6.4 The CITY will not issue a Final Certificate of Occupancy (CO) or Certificate of
Completion (CC) for the Flamingo Resort Residences Project until such time as the
Project herein has been accepted pursuant to Article 10 of this Contract.
Notwithstanding the preceding sentence, a CO or CC for the Flamingo Resort
Residences Project will not be issued, even if the Project has been accepted, where
there is an issue or matter not addressed in this Contract, or having nothing to do with
the Project, which otherwise precludes the CITY, in its regulatory authority from
issuance of a CO or CC.
6.5 The parties acknowledge that DEVELOPER may have proceeded with
construction of the Project, or otherwise initiated construction of a portion of the
Work, prior to execution of this Agreement by the parties hereto. DEVELOPER
herein acknowledges that any such construction and initiation of Work is
commenced at DEVELOPER'S sole and absolute risk, and CITY shall have no
liability as to same, nor shall CITY be bound to accept such Work.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 12
ARTICLE 7
DEVELOPER'S RESPONSIBILITY
7.01 The parties acknowledge and agree that the DEVELOPER will be responsible for
the construction and construction management of the Project.
7.02 DEVELOPER shall be responsible for applying for and securing all permits and
approvals from all governmental authorities having jurisdiction over the Project. All
permits and licenses required by federal, state or local laws, rules and regulations
necessary for the prosecution of the Project by DEVELOPER pursuant to this Contract
shall be secured and paid for by DEVELOPER. It is DEVELOPER'S responsibility to
have and maintain appropriate certificate(s) of competency, valid for the Work to be
performed and for all persons working on the Project for whom a certificate of
competency is required.
7.03 DEVELOPER shall be fully responsible for the actions of all its agents, servants,
employees, Contractor, subcontractors, consultants, sub-subcontractors, materials
persons, and any and all other persons working for it in conjunction with the
construction of the Project.
7.04 DEVELOPER shall be fully responsible for all acts or omissions of its agents,
servants, employees, Contractor, subcontractors, sub-subcontractors, consultants, and
of all persons directly employed by Contractor, and sub-subcontractors, consultants,
and of persons for whose acts any of them may be liable to the same extent
DEVELOPER is responsible for the acts and omissions of persons directly employed by
DEVELOPER. Nothing in this Contract shall create any contractual relationship between
any consultant or subcontractor and CITY or any obligation on the part of CITY to pay or
to see to the payment of any monies due to any consultant or subcontractor, unless
CITY so directly contracts with said individuals and/or firms.
7.05 DEVELOPER agrees to bind specifically Contractor and every
subcontractor, and subconsultant to the applicable terms and conditions of this
Agreement for the benefit of CITY, including but not limited to Sections 1.05, 1.08,
1.09, and 1.10 of this Agreement.
7.06 DEVELOPER shall at all times enforce strict discipline and good order among the
Contractor, employees, consultants, and subcontractors at the Project site and shall not
employ on the Project any unfit person or anyone not skilled in the work assigned to him
or her.
7.07 DEVELOPER shall keep itself fully informed of, and shall take into account and
comply with, all applicable state and national laws and municipal ordinances and
regulations in any manner affecting those engaged or employed in the Project, or the
materials used or employed in the Project, or in any way affecting the conduct of the
Project, and of all such orders and decrees of bodies or tribunals having any jurisdiction
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 13
or authority over the same and of all provisions required by law to be made a part of this
Agreement, all of which provisions are hereby incorporated by reference and made a
part hereof. If any specification or contract for this Project is in violation of any such law,
ordinance, regulation, order or decree, DEVELOPER shall forthwith report the same to
the Contract Administrator in writing. DEVELOPER shall cause all its agents,
employees, subcontractors and consultants to observe and comply with all applicable
laws, ordinances, regulations, orders and decrees.
7.08 In the event of a change after the effective date of this Agreement in any
national, state, local or municipal laws, codes, ordinances and regulations which in any
manner affects the Project, DEVELOPER shall advise the Consultant, in writing, and the
Consultant, may initiate a Change Order, the purpose of which shall be to bring the
Project into compliance with all laws, ordinances, codes and regulations as amended or
enacted.
7.09 DEVELOPER shall pay all applicable sales, consumer, use and other taxes
required by law in effect at the execution of the Agreement. DEVELOPER is responsible
for reviewing the pertinent State statutes involving State taxes and complying with all
requirements.
7.10 DEVELOPER shall contract the services of a licensed general contractor
(Contractor) to execute the Work.
7.11 DEVELOPER shall administer and manage the construction effort associated with
the Work at no charge to the CITY.
7.12 DEVELOPER shall prepare a certified, monthly application for payment for review
/ approval by the Consultant and Project Manager.
7.13 Changes to the Work, either necessitated via a value engineering process or due
to site conditions, are to be forwarded to the Consultant via the Project Manager for
consideration. The Contract Administrator and Project Manager will seek the input of
the Consultant as it relates to the design intent of the Work, and issue a response to the
DEVELOPER.
7.14 DEVELOPER shall provide a location for, attend and participate in weekly
construction progress meetings with the Contract ^dministrator, Consultant and Project
Manager.
7.15 DEVELOPER hereby agrees to complete the Project described by the Contract
Documents, including furnishing all job site inspection, administration of construction,
and land surveying services, labor, materials, equipment and other services necessary
to perform all of the Work described in the Contract Documents, as well as drawings
and addenda thereto for the construction of the Project to be constructed in accordance
with the requirements and provisions of the Contract Documents.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 14
7.16 DEVELOPER agrees to meet with Project Manager or his designee at
reasonable times and with reasonable notice.
7.17 Prior to the final completion of construction services under this Agreement, there
shall be established a record set of plans and specifications, on Reproducible Vellum
and on CD Rom, noncompressed, formatted in the latest version of AutoCAD, which
shall bear the approval of DEVELOPER and Project Manager. Such approval shall be
indicated by the written signature of both parties. In addition, prior to the
commencement of construction services under this Agreement, DEVELOPER shall
submit to the Project Manager a CPM Schedule for the planning and execution of the
Construction Phase of the Project.
7.18 The DEVELOPER will provide overall technical and management services to
assist the CITY in maintaining schedules, establishing budgets, controlling costs,
achieving quality and minimizing operational disruptions.
7.19 If at any time the DEVELOPER observes or becomes aware of any fault or defect
in the Work or of any nonconformance with the Contract Documents, DEVELOPER will
notify the Consultant, and will direct that all reasonable steps be taken to correct such
fault, defect or nonconformance.
7.20 DEVELOPER shall also be responsible for quality assurance of the Work in
accordance with the Contract Documents.
7.21 DEVELOPER shall coordinate all phases of the Work to facilitate completion of
the Project in accordance with the established time period and estimate of construction
cost.
7.22 Notwithstanding anything contained herein to the contrary, DEVELOPER
and CITY acknowledge and agree that the DEVELOPER's services are limited to
the coordination and management of the Work for the Project as set forth herein
and the Developer is not and shall not be, in any way responsible, or liable, for
the design and/or engineering services provided by the Consultant, or any other
individual or entity contracted by the CITY to provide design and/or engineering
services for the Project.
ARTICLE 8
THE CONTF:~,CT SUM
8.1 The Contract Sum is the maximum amount, agreed to by CITY and
DEVELOPER under this Contract, to complete the Work in accordance with the
Contract Documents. The Contract Sum for the Project is established as follows:
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 15
Base Project Construction Cost
Project Construction Contingency
(which shall not be expended by
DEVELOPER without the prior
written approval of Contract
Administrator)
$1,361,434.00
136,143.00
= Contract Sum
$1,497,577.00
The Contract Sum shall not exceed the amount shown above, adjusted to take
into account any approved Change Orders.
8.2 Notwithstanding, the Contract Sum established herein, DEVELOPER'S
financial contribution to the Project shall be the amount of six hundred thousand and
00/100 ($600,000) dollars, adjusted to take into account any approved Change Orders
8.3 CITY'S financial contribution to the Project shall be in the amount of $897,577.00
dollars, adjusted to take into account any approved Change Orders.
ARTICLE 9
PROGRESS PAYMENTS
9.1 DEVELOPER may make Application for Payment for Work completed during the
Project at intervals of not more than once a month. DEVELOPER'S application shall
show a complete breakdown of the Project components, the percentages completed
and the amount due in accordance with Article 9.4 below, together with such supporting
evidence as may be required by Consultant. DEVELOPER shall submit with each
Application for Payment, an updated Progress Schedule acceptable to Consultant, a
Certification of Payments to Subcontractors, and releases of lien and 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 Project Manager for approval. CITY shall
make payment to DEVELOPER within thirty (30) days after receipt by DEVELOPER'S
approved Application for Payment, and submission of an acceptable updated Progress
Schedule.
9.2 Ten percent (10%) of all monies reimbursed to DEVELOPER shall be retained by
CITY until Final Completion and acceptance by CITY. After ninety percent (90%) of the
Work has been completed, the Contract Administrator may reduce the retainage to five
percent (5%) of all monies previously earned and all monies earned thereafter. Any
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 16
reduction in retainage shall be at the sole discretion of the Contract Administrator; shall
be recommended by Consultant; and DEVELOPER shall have no entitlement to a
reduction. Any interest earned on retainage shall accrue to the benefit of CITY.
9.3 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:
9.3.1 Defective Work performed by the Contractor or subcontractor, or other individual
or entity within DEVELOPER'S control, to the extent such Work is not remedied.
9.3.2 Claims filed or reasonable evidence indicating probable filing of claims by other
parties against DEVELOPER or CITY because of DEVELOPER'S performance.
9.3.3 Failure of DEVELOPER to make payments propedy to Contractor,
subcontractors, or for material or labor.
9.3.4 Damage to another contractor not remedied to the extent such extended
construction administration was due to the acts, errors or omissions of DEVELOPER or
those for whom it is responsible.
9.3.5 Costs incurred by CITY for extended construction administration.
9.3.6 Failure of DEVELOPER to provide any and all documents required to be
provided to CITY by the Contract Documents.
9.4 Fifteen (15) days prior to the first Application for Payment, the DEVELOPER shall
prepare an initial schedule of values for approval by the Consultant allocating the entire
Project Cost among the various portions of the Work (the "Schedule of Values"). The
Schedule of Values shall list the cost of materials, the cost of labor, the cost of
equipment and the cost of Contractor and subcontractor work 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 Project cost equal to the pementage of the Work completed.
The DEVELOPER'S reimbursement for completed portions of Work 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
of the Work, and the total Work, as of the 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.
9.5 If the Contract Administrator, in its good faith judgment, determines that the
portion then remaining unpaid will not be sufficient to complete the Work in accordance
with the Contract Documents, and such insufficiency is due to the acts, errors or
omissions of DEVELOPER or those for whom it is responsible, no additional payments
will be due to the DEVELOPER hereunder unless and until the DEVELOPER, at its sole
cost, performs a sufficient portion of the Work so that such portion of the Project cost
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 17
then remaining unpaid is determined by the Consultant to be sufficient to so complete
the Work.
9.6 DEVELOPER shall remain liable for Contractor and 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.
9.7 The DEVELOPER shall use the sums advanced to it solely for the purpose
of construction of the Work and the furnishing and equipping of the Project in
accordance with the Contract Documents and payment of bills incurred in the
construction of the Work. DEVELOPER shall coordinate and manage the Work
for the Project at no charge to the CITY.
ARTICLE 10
ACCEPTANCE AND FINAL PAYMENT
10.1 Upon receipt of written notice from DEVELOPER 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.
10.2 On or before issuance of the Final Certificate for Payment, DEVELOPER shall
deliver to Consultant:
(1) A final waiver and release, duly executed by the DEVELOPER.
(2)
An affidavit listing the name, address and telephone number of the
Contractor and 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 Contractor and
subcontractors in connection with the Project;
(3) Final waivers and releases, duly executed by the Contractor and
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 DEVELOPER'S surety to final payment;
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 18
(7)
An affidavit that all liabilities in connection with the Work for which the
CITY or its property may in any way be responsible have been paid or
otherwise satisfied;
(8) Other affidavits reasonably requested by the CITY;
(9) Other evidence satisfactory to CITY, that there are no judgments, claims,
or liens outstanding or unsatisfied for or in connection with the Work; and
(10) The final bill of materials, and invoice.
10.3 If, after the Work has been substantially completed, full completion thereof is
materially delayed through no fault of DEVELOPER, and Consultant so certifies, CITY
shall, and without terminating the Agreement, 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.
10.4 Final payment shall be made only after the City Manager or his designee has
reviewed a written evaluation of the performance of DEVELOPER prepared by the
Contract Administrator, and approved the final payment. The acceptance of final
payment shall constitute a waiver of all claims by DEVELOPER, except those previously
made in strict accordance with the provisions of the Contract Documents and identified
by DEVELOPER as unsettled at the time of the application for final payment.
10.5 The DEVELOPER'S final application for payment and the Consultant's final
certificate for payment shall constitute a representation to the CITY by the DEVELOPER
and the Consultant, respectively, that all conditions precedent to DEVELOPER'S
entitlement to final payment have been satisfied.
10.6 Should there be any such judgment, claim or lien after final payment is made for
which the CITY may become liable, the DEVELOPER 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.
10.7 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.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 19
ARTICLE 11
RESOLUTION OF DISPUTES
11.01 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto
that Consultant shall first decide all questions, claims, difficulties and disputes of
whatever nature which may arise relative to the Contract Documents and fulfillment of
this Agreement as 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, and Consultant's estimates and decisions upon all claims,
questions, difficulties and disputes shall be final and binding unless one of the parties
proceeds in accordance with Section 11.02. Any claim, question, difficulty or dispute
which cannot be resolved by mutual agreement of CITY and DEVELOPER shall be
submitted to Consultant in writing within twenty-one (21) calendar days of the discovery
of the occurrence. Unless a different period of time is set forth herein, Consultant shall
notify DEVELOPER in writing of the decision within twenty-one (21) calendar days from
the date of the submission of the claim, question, difficulty or dispute, unless Consultant
requires additional time to gather information or allow the parties to provide additional
information. All nontechnical administrative disputes shall be determined by the
Contract Administrator pursuant to the time periods provided herein. During the
pendency of any dispute and after a determination thereof, DEVELOPER and CITY
shall act in good faith to mitigate any potential damages including utilization of
construction schedule changes and alternate means of construction.
11.02 In the event the determination of a dispute under this Article is unacceptable to
either party hereto, the party objecting to the determination must notify the other party in
writing within twenty-one (21) calendar 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 Documents 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) calendar days after receipt of written determination as provided in this
section, the parties shall participate in mediation to address all objections to any
determinations hereunder and to attempt to avoid litigation. The mediator shall be
mutually agreed upon by the parties. The mediation shall be non-binding.
11.03 Pending final resolution of a claim, including mediation, unless otherwise agreed
in writing, DEVELOPER shall proceed diligently with performance of the Contract
Documents and the CITY shall continue to make payments in accordance with the
Contract Documents.
11.04 Any mediator used shall be certified in accordance with Florida law. Mediation
will be conducted in Miami-Dade County.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 20
ARTICLE 12
[This Article left intentionally blank]
ARTICLE 13
[This Article left intentionally blank]
ARTICLE 14
[This Article left intentionally blank]
ARTICLE 15
SECURITY
DEVELOPER shall provide a Project security program to protect Work, stored products
and construction equipment from theft and vandalism, and to protect premises from
entry by unauthorized persons. In the event any such materials, equipment and supplies
are lost, stolen, damaged or destroyed prior to final inspection and acceptance,
DEVELOPER shall replace same without cost to CITY.
ARTICLE 16
INSPECTION OF PROJECT
16.01 The Contract Administrator or designee shall at all times have access to the
Project, and DEVELOPER shall provide proper facilities for such access, and such
access shall be in accordance with the visitor's rules.
16.01.01 Should the Contract Documents, instructions, any laws, ordinances, or any
public authority require any work for the Project to be specially tested or approved,
DEVELOPER shall give to the Contract Administrator timely notice of readiness of the
Work for inspection. 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. Inspections shall be
made promptly, and, where practicable, at the source of supply. Within a reasonable
time from execution of this Agreement, CITY shall provide a letter listing the areas of
Work the CITY will inspect. If defined Work for the Project should be covered up
without required inspection/approval, it must, if required by the Contract Administrator,
be uncovered for examination and properly restored at DEVELOPER'S expense.
16.01.02 Reexamination and retesting of any Work for the Project may be ordered by
the Contract Administrator; and if so ordered, such Work must be uncovered by
DEVELOPER. If such Work is found to be in accordance with the Contract Documents,
CITY shall pay the cost of reexamination, retesting and replacement. If such Work is not
in accordance with the Contract Documents, DEVELOPER shall pay such cost.
16.02 The payment of any compensation, regardless of its character or form, or the
giving of any gratuity or the granting of any valuable favor by DEVELOPER to any
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 21
Inspector other than its consultant, is forbidden, and any such act on the part of
DEVELOPER will constitute a breach of this Agreement.
ARTICLE 17
SUPERINTENDENCE AND SUPERVISION
17.01 The orders of the CITY are to be given through the Contract Administrator,
whose instructions are to be strictly and promptly followed in every case, provided that
they are in accordance with this Agreement. DEVELOPER shall keep on the Project
during its progress a competent supervisor, and any necessary assistants.
17.02 DEVELOPER shall prepare, or cause the Contractor or other designated
construction manager or construction manager representative to prepare, on a daily
basis, and keep on the Project site, a bound log setting forth at a minimum, for each
day: the weather conditions and how any weather conditions affected progress of the
Work, work performed, equipment utilized for the Work, any idle equipment and reasons
for idleness, visitors to the Project site, labor utilized for the Work, and any materials
delivered to the Project site. The daily bound log shall be available for inspection by the
Contract Administrator or designee at all times during the Project.
17.03 If DEVELOPER, in the course of the Project, finds any discrepancy between the
Contract Documents and the physical conditions of the site, or any errors or omissions
in the Contract Documents including the Plans and Specifications, it shall be a
DEVELOPER duty to immediately inform the Project Manager, in writing; and the
Project Manager will promptly verify the same. Any Work done prior to or after such
discovery will be done at DEVELOPER'S sole risk.
17.04 DEVELOPER shall coordinate, supervise and direct the Project competently and
efficiently, devoting such attention thereto and applying such skills and expertise as may
be necessary to perform the Project in accordance with the Contract Documents.
DEVELOPER shall be solely responsible for the means, methods, techniques, safety,
sequences and procedures of construction. DEVELOPER shall give efficient
supervision to the Work, using DEVELOPER'S best skill, attention, and judgment.
ARTICLE 18
CITY'S RIGHT TO TERMINATE AGREEMENT
18.01 If DEVELOPER fails to begin the construction of the Project within the time
specified, or fails to perform the Project with sufficient workers and equipment or with
sufficient materials to insure the timely completion of the Project, in accordance with the
Contract Documents and schedules, or shall perform the work unsuitably, or to be
rejected as defective and unsuitable, or shall discontinue the prosecution of the Project,
except for excused delays in accordance with this Agreement or if DEVELOPER shall
become insolvent or be declared bankrupt, or commit any act of bankruptcy or
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 22
insolvency, or shall make an assignment for the benefit of creditors, or shall not carry on
the Project in accordance with the Contract Documents, CITY shall give notice in writing
to DEVELOPER and its surety of such delay, neglect or default, specifying the same. If
DEVELOPER, within a period of ten (10) calendar days after such notice, shall not
proceed in accordance therewith, then CITY may, upon written certificate from the
Contract Administrator of the fact of such delay, neglect or default and DEVELOPER'S
failure to comply with such notice, terminate the services of DEVELOPER, exclude
DEVELOPER from site and take the prosecution of the Project out of the hands of
DEVELOPER, as appropriate or use any or all materials and equipment on the Project
site as may be suitable and acceptable. In such case, DEVELOPER shall not be entitled
to receive any further payment until the Project is finished. In addition, CITY may enter
into an agreement for the completion of the Project according to the terms and
provisions of the Contract Documents or use such other methods as in its opinion shall
be required for the completion of the Project in an acceptable manner. All damages,
costs and charges incurred by CITY shall be deducted from any monies due or which
may become due to said DEVELOPER. Actions will be instituted to recover on the
posted bonds. In case the damages and expense so incurred by CITY shall be less than
the sum which would have been payable under this Agreement, if it had been
completed by said DEVELOPER, then DEVELOPER shall be entitled to receive the
difference. If such damages and costs exceed the unpaid balance, then DEVELOPER
shall be liable and shall pay to CITY the amount of said excess.
18.02 If, after Notice of Termination of DEVELOPER'S right to proceed, it is determined
for any reason that DEVELOPER was not in default, the rights and obligations of CITY
and DEVELOPER 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 18.03 below.
18.03 The performance of the Work under this Agreement may be terminated in writing
by CITY for convenience upon ten (10) business days from the date of DEVELOPER'S
receipt of the written notice to DEVELOPER (delivered by certified mail, return receipt
requested) of intent to terminate and the date on which such termination becomes
effective. In such case, DEVELOPER shall be paid for all Work and reimbursables
executed, and expenses incurred prior to termination in addition to termination
settlement costs reasonably incurred by DEVELOPER relating to commitments which
had become firm prior to the termination. Payment shall include reasonable profit for
services actually performed in full prior to termination date, but shall exclude all lost
profits, indirect or special, or other damages.
18.04 Upon receipt of Notice of Termination pursuant to Sections 18.01 or 18.03 above,
DEVELOPER shall promptly discontinue all affected Work unless the Notice of
Termination directs otherwise and deliver to CITY within seven (7) calendar days of
termination all data, drawings, specifications, reports, estimates, summaries and such
other information as may have been required by the Contract Documents whether
completed or in process. Compensation shall be withheld until all documents are
provided to CITY pursuant to this Article.
BID NO: 22-02/03
DATE: 03/18/03
CITY OF MIAMI BEACH
23
ARTICLE 19
DEVELOPER'S RIGHT TO STOP WORK OR TERMINATE AGREEMENT
19. DEVELOPER'S Ri,qht to Stop Work or Terminate Agreement:
Should Consultant fail to review and approve or state in writing reasons for nonapproval
of any Application for Payment within twenty (20) days after it is presented, or if CITY
fails either to pay DEVELOPER within thirty (30) days after presentation by Consultant
of any sum certified by Consultant, or to notify DEVELOPER in writing of any objection
to the Application for Payment, then DEVELOPER may, give written notice to CITY and
Consultant of such delay, neglect or default, specifying the same. If CITY or Consultant
(where applicable), within a period of ten (10) calendar days after such notice shall not
remedy the delay, neglect, or default upon which the notice is based, then
DEVELOPER may stop Work or terminate this Agreement and recover from CITY
payment for all Work executed and reasonable expenses sustained therein plus
reasonable termination expenses.
ARTICLE 20
"OR EQUAL" CLAUSE
20.01 Whenever a material, article or piece of equipment is identified in the Contract
Documents, including drawings (Plans) and Specifications by reference to
manufacturers' or vendors' names, trade names, catalog numbers, or otherwise, it is
intended merely to establish a standard, and, unless it is followed by words indicating
that "no substitution is permitted," any material, article, or equipment of other
manufacturers and vendors which will perform or serve the requirements of the general
design will be considered equally acceptable provided the material, article or equipment
so proposed is, in the opinion of the Consultant and Contract Administrator:
20.01.01 At least equal in quality, durability, appearance, strength and design;
20.01.02 Performs at least equally the function imposed in the general design for the
Project;
20.01.03 Conforms substantially, even with deviations, to the detailed requirements for
the items as indicated by the Contract Documents; and
20.01.04 Carries the same guaranty or warranty of the specified equipment.
All substitution requests will be made via written request which shall be attached to a
shop drawing and/or Change Order which shall be attached to a detailed description of
the specified item and a detailed description of the proposed substitution. A comparison
letter itemizing all deviations from specified items must be included for the Consultant
and Contract Administrator to properly evaluate substitution. Failure to provide the
deviation comparison sheet shall automatically deny the request.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 24
Any changes, inclusive of design changes, made necessary to accommodate
substituted equipment under this paragraph shall be at the expense of DEVELOPER or
subcontractor responsible for the work item.
20.02 Contract Administrator's written consent will be required as to acceptability, and
no substitute will be ordered, installed or utilized without Consultant and Contract
Administrator's prior written acceptance which will be evidenced by either a Change
Order or an accepted shop drawing. CITY may require DEVELOPER to furnish at
DEVELOPER'S expense a special performance guarantee or other surety with respect
to any substitute.
ARTICLE 21
PLANS AND SPECIFICATIONS
All plans, general and detail, are to be deemed a part of this Agreement, and the Plans
and Specifications and Agreement are to be considered together, and are intended to
be mutually complementary, so that any Work shown on the Plans, though not specified
in the Specifications, and any Work specified in the specifications though not shown on
the Plans, is to be executed by DEVELOPER as part of this Agreement. Figured
dimensions are to prevail over scale. All things which in the opinion of the Contract
Administrator may reasonably be inferred from the Agreement and Plans as developed
by Consultant and mutually agreed upon and approved by DEVELOPER and CITY for
the Project, are to be executed by DEVELOPER under the terms of the Agreement; and
the Consultant shall determine whether the detailed Plans conform to the Contract
Documents, except as may be otherwise determined by the Contract Administrator. In
the event the Work requested under this section expands the scope of the Project,
DEVELOPER may seek a Change Order pursuant to Article 38.
ARTICLE 22
DEVELOPER TO CHECK DRAWINGS AND DATA
DEVELOPER shall take measurements and verify all dimensions, conditions, quantities
and details shown on the drawings, schedules, or other data. Failure to discover or
correct errors, conflicts or discrepancies shall not relieve DEVELOPER of full
responsibility for unsatisfactory Work or, faulty construction, or improper operation
resulting therefrom, nor from rectifying such condition at DEVELOPER'S own expense.
DEVELOPER will not be allowed to take advantage of any error or omissions.
DEVELOPER's obligations pursuant to this Article 22 shall not be construed as
the providing of design and/or engineering services for the Project. DEVELOPER
and CITY acknowledge and agree that the DEVELOPER is only coordinating and
managing the Work for the Project as set forth herein and is not, and shall not be,
in any way responsible, or liable, for the design and/or engineering services
provided by the Consultant, or any other individual or entity contracted by the
CITY to provide design and/or engineering services for the Project.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18103 25
ARTICLE 23
DIFFERING SITE CONDITIONS
In the event that during the course of the Work DEVELOPER encounters 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, DEVELOPER, without disturbing the
conditions and before performing any Work affected by such conditions, shall, within
twenty-four (24) hours of their discovery, notify CITY and Consultant in writing of the
existence of the aforesaid conditions. Consultant and CITY shall, within two (2)
business days after receipt of DEVELOPER'S written notice, investigate the site
conditions identified by DEVELOPER. If, in the sole opinion of Consultant, the
conditions do materially so differ and cause an increase or decrease in DEVELOPER'S
cost of, or the time required for, the performance of any part of the Work, whether or not
charged as a result of the conditions, Consultant shall recommend an equitable
adjustment to the Contract Sum, or the Contract Time, or both. If CITY and
DEVELOPER cannot agree on an adjustment in the Contract Sum or Contract Time, the
adjustment shall be referred to Consultant for determination in accordance with the
provisions of Article 11. Should Consultant determine that the conditions of the Project
site are not so materially different to justify a change in the terms of the Agreement,
Consultant shall so notify CITY and DEVELOPER in writing, stating the reasons, and
such determination shall be final and binding upon the parties hereto, subject to the
provisions of Section 11.0.2.
No request by DEVELOPER for an equitable adjustment to the Agreement under this
provision shall be allowed unless DEVELOPER has given written notice in strict
accordance with the provisions of this Article. No request for an equitable adjustment or
change to the Contract Sum or Contract Time for differing site conditions shall be
allowed if made after the date certified by Consultant as the date of substantial
completion.
ARTICLE 24
WARRANTY
DEVELOPER warrants to CITY that all materials and equipment furnished for the
Project will be new unless otherwise specified and that all Work for the Project will be of
good quality, free from faults and defects and in conformance with the Contract
Documents. The standard of quality shall be at least that employed by similarly qualified
Contractor's that are duly qualified and licensed to perform similar projects. All Work for
the Project not conforming to these requirements, including substitutions not propedy
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 26
approved and authorized, may be considered defective. If materials or equipment is
improperly stored and becomes altered as a result of such improper storage,
DEVELOPER shall replace said materials with new materials at no additional cost.
DEVELOPER shall be responsible for proper storage and safeguarding of all materials.
If required by the Contract Administrator, DEVELOPER shall furnish satisfactory
evidence as to the kind and quality of materials and equipment. The warranty
requirements set forth in the Contract Documents as herein defined shall govern
warranty terms and conditions for all warranty items expressed or implied. The
DEVELOPER'S warranty period under this Article shall be one (1) year from the date of
Substantial Completion of each portion of the Project. However, this section shall not
abridge the times or impede the rights and remedies afforded the CITY against other
entities or persons under the Agreement, or by law.
ARTICLE 25
SUPPLEMENTARY DRAWINGS
25.01 When, in the opinion of Consultant, it becomes necessary to explain more fully
the work to be done, or to illustrate the Project further to show any changes which may
be required, supplementary drawings, with specifications pertaining thereto, will be
prepared by the Consultant.
25.02 The supplementary drawings shall be binding upon DEVELOPER with the same
force as the Contract Documents. Where such supplementary drawings require either
less or more than the estimated quantities of Work, appropriate adjustments shall be
made pursuant to Change Order.
ARTICLE 26
DELIVERY AND STORAGE OF MATERIALS AND PARTIAL PAYMENT THEREFOR
26.01 The CITY shall not be responsible for any payment and/or reimbursement for
stored materials, either on or off site.
ARTICLE 27
GENERAL WORKMANSHIP
27.01 Articles, materials, and equipment specified or shown on drawings shall be new
and shall be applied, installed, connected, erected, used, cleaned, and conditioned for
proper forming, as per the manufacturer's directions. DEVELOPER shall, if required,
furnish satisfactory evidence as to kind and quality of the materials. Should materials
arrive to the jobsite new and be improperly stored and deteriorate from new condition,
the materials shall be replaced at no additional cost to CITY.
27.02 DEVELOPER shall apply, install, connect, and erect manufactured items or
materials according to recommendations of manufacturer when such recommendations
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 27
are not in conflict with the Contract Documents. If there is conflict between
manufacturer recommendations and the Contract Documents, Consultant shall be
notified and participate in the corrective actions.
ARTICLE 28
DEFECTIVE WORK
28.01 Consultant and/or Contract Administrator shall have the authority to reject or
disapprove Work for the Project which Contract Administrator finds to be defective.
Defective Work is defined as Work not in accordance with the Contract Documents, in
violation of code, installed in violation of the manufacturer's written instructions where
the installation has caused new materials to be detrimentally affected where the life
expectancy of the material installed is reduced, or otherwise installed in a non-worklike
manner. If required by Consultant and/or Contract Administrator, DEVELOPER shall
promptly either, as directed, correct ail defective Work or remove it from the Project site
and replace it with non-defective Work. DEVELOPER shall bear all costs of such
removal or correction.
28.02 If, within one (1) year after Substantial Completion, any Work is found to be
defective or not in accordance with the Contract Documents, DEVELOPER shall correct
it promptly without cost to CITY, after receipt of written notice from CITY to do so unless
CITY has given DEVELOPER a written acceptance of such conditions. Nothing
contained herein shall be construed to establish a period of limitation with respect to any
other obligation which DEVELOPER might have under the applicable State law.
28.03 Should DEVELOPER fail or refuse to remove or correct any defective Work
performed for the Project or to make any necessary repairs in an acceptable manner
and in accordance with the requirements of this Agreement within a reasonable time,
indicated in writing, CITY shall have the authority to cause the unacceptable or
defective Work to be removed or corrected, or make such repairs as may be necessary
to be made at DEVELOPER'S expense. Any expense incurred by CITY in making these
removals, corrections or repairs, which DEVELOPER has failed or refused to make
shall be paid for out of any monies due or which may become due to DEVELOPER, or
may be charged against the bond or guaranty. Continued failure or refusal on the part of
DEVELOPER to make any or all necessary repairs promptly, fully, and in acceptable
manner shall be sufficient cause for CITY to declare this Agreement forfeited, in which
case CITY, at its option, may purchase materials, tools, and equipment and employ
labor or may contract with any other individual, firm or corporation, or may proceed with
its own forces to perform the Work. All costs and expenses incurred thereby shall be
charged against the defaulting DEVELOPER; and the amount thereof deducted from
any monies due, or which may become due to DEVELOPER, or shall be charged
against the bond or guaranty. Any special work performed, as described herein, shall
not relieve DEVELOPER in any way from his responsibility for the work performed by it.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 28
28.04 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.
ARTICLE 29
SUBCONTRACTS
29.1. DEVELOPER shall not employ any Contractor and/or subcontractor against
whom CITY or Consultant may have a reasonable objection. DEVELOPER shall not be
required to employ any Contractor and/or subcontractor against whom DEVELOPER
has a reasonable objection.
29.2. DEVELOPER shall be fully responsible for all acts and omissions of the
Contractor, subcontractors, subconsultants and of persons directly or indirectly
employed by its subcontractors and subconsultants and of persons for whose acts any
of them may be liable to the same extent that DEVELOPER is responsible for the acts
and omissions of persons directly employed by it. Nothing in the Contract Documents
shall create any contractual relationship between any subcontractor and CITY or any
obligation on the part of CITY to pay or to see the payment of any monies due any
subcontractor. CITY or DEVELOPER may furnish to any Contractor, subcontractor,
subconsultant evidence of amounts paid to DEVELOPER on account of specific work
performed.
29.3 DEVELOPER agrees to bind specifically every Contractor, subcontractor, and
subconsultant to the applicable terms and conditions of the Contract Documents for the
benefit of CITY, including but not limited to Sections 1.05, 1.08, 1.09, and 1.10 of this
Agreement.
29.4 DEVELOPER AND CITY agree that any contracts or subcontracts entered into
between the Developer and any other person or entity on this Project shall be on behalf
of, and as agent of, the Owner. Provided, however, that DEVELOPER agrees to fully
defend, indemnify and hold harmless CITY from and against any and all claims brought
against CITY by the Contractor or subcontractors as more fully set forth in Article
51.04.03
ARTICLE 30
SEPARATE AGREEMENTS
30.01 CITY reserves the right to let other contracts in connection with this Project,
provided it does not interfere with DEVELOPER'S work or schedule. DEVELOPER
shall afford other contractors reasonable opportunity for the introduction and storage of
their materials and the execution of their work and shall properly connect and
coordinate this work with theirs subject to provision of acceptable insurance coverage,
including DEVELOPER and Contractor, as additional insureds. CITY will request that its
separate contractors coordinate their activities with the Work of the DEVELOPER.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 29
30.02 If any part of DEVELOPER'S Work depends for proper execution or results upon
the work of any other Contractor or the CITY, DEVELOPER shall inspect and promptly
report to the Project Manager any defects in such work that render it unsuitable for such
proper execution and results. DEVELOPER'S failure to so inspect and report shall
constitute an acceptance of the other Contractor's work as fit and proper for the
reception of DEVELOPER'S Work, except as to defects which may develop in other
Contractor's work after the execution of DEVELOPER'S Work. However, DEVELOPER
shall not be responsible or liable to CITY for any work performed by any other separate
Contractor not under the auspices or control of DEVELOPER.
30.03 To insure the proper execution of its subsequent Work, DEVELOPER shall
inspect the Work already in place and shall at once report to the Project Manager any
discrepancy between the executed Work and the requirements of the Contract
Documents.
30.04 DEVELOPER shall conduct its operations and take all reasonable steps to
coordinate the prosecution of the Work so as to create no interference or impact on any
other contractor on the site. Should such interference or impact occur, DEVELOPER
shall be liable to the affected contractor for the cost of such interference or impact.
ARTICLE 31
USE OF COMPLETED PORTIONS
31.1 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, DEVELOPER shall be entitled to reasonable extra compensation, or reasonable
extension of time or both, as recommended by Consultant and approved by CITY.
31.2 In the event CITY takes possession of any completed or partially completed
portions of the Project, the following shall occur:
31.2.1 CITY shall give notice to DEVELOPER in writing at least thirty (30) calendar days
prior to CITY'S intended occupancy of a designated area.
31.2.2 DEVELOPER shall complete to the point of Substantial Completion the
designated area and request inspection and issuance of a Certificate of Substantial
Completion from Consultant.
31.2.3 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 coverage's and start of warranty for the occupied area.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 30
31.2.4 DEVELOPER shall complete all items noted on the Certificate of Substantial
Completion within the time specified by Consultant 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, Consultant shall issue a Final Certificate of Payment
relative to the occupied area.
31.2.5 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 DEVELOPER 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 DEVELOPER and of the insurance company or companies to such
occupancy or use shall not be unreasonably withheld.
ARTICLE 32
CONSTRUCTION AREA
32.01 DEVELOPER shall use areas approved by the Contract Administrator for
deliveries and personnel. Limits of construction area are indicated on the drawings as
prepared by Consultant and issued by the Contract Administrator. Equipment, material
and personnel shall be in conformance with this Contract Documents.
32.02 To provide for maximum safety and security, DEVELOPER shall erect and
maintain all necessary barricades, and any other temporary walls and structures as
required, and boarding or fencing to protect life and property during the period of
construction.
ARTICLE 33
LANDS FOR WORK
CITY shall provide as indicated in the Contract Documents, the lands upon which the
Project is to be performed, rights-of-way and easements for access thereto and such
other lands as are designated for the use of DEVELOPER. No claim for damages or
other claim other than for an extension of time shall be made or asserted against CITY
by reason of any delay arising as a result of any failure of CITY to provide such lands on
the date needed by DEVELOPER. The provisions of Article 41 shall apply herein.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 31
ARTICLE 34
LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS
DEVELOPER shall conform to all applicable laws, regulations, or ordinances with
regard to labor employed, hours of work and DEVELOPER'S general operations.
DEVELOPER shall also conduct its operations so as not to close any thoroughfare, nor
interfere in any way with traffic on railway, highways, or water, without the written
consent of the proper authorities.
ARTICLE 35
DAMAGE TO EXISTING FACILITIES, EQUIPMENT OR UTILITIES
35.01 Existing utilities have been shown in the Contract Documents insofar as
information is reasonably available; however, it will be DEVELOPER'S responsibility to
verify such information and to preserve all existing utilities whether shown in the
Contract Documents or not. If utility conflicts are encountered by DEVELOPER during
construction, DEVELOPER shall give sufficient notice to the owners of the utilities so
that they may make the necessary adjustments.
35.02 DEVELOPER shall exercise care and take all precautions during excavation and
construction operations to prevent damage to any existing facilities, equipment, or
utilities. Any damage caused by DEVELOPER shall be reported immediately to the
Contract Administrator and such Work shall be repaired and/or replaced by
DEVELOPER in a manner approved by CITY. All costs to repair and/or replace any
damage to existing facilities, equipment, or utilities, shall be the sole responsibility of
DEVELOPER, and such repair or replacement shall be performed expeditiously without
cost to CITY.
35.03 DEVELOPER shall provide that type of required protection for finished Work at
all times and protect adjacent Work during cleaning operations, and make good any
damage resulting from neglect of this precaution.
35.04 Protection of Work shall include protecting of Work that is factory finished, during
transportation, storage, during and after installation. Where applicable and as required,
DEVELOPER shall close off spaces of areas where certain Work has been completed
to protect it from any damages caused by others during their operations.
35.05 DEVELOPER shall store materials and shall be responsible for and shall
maintain partly or wholly finished Work during the continuance of the Contract
Documents and until the final acceptance of the structure. If any materials or part of the
Work should be lost, damaged, or destroyed by any cause or means whatsoever, the
DEVELOPER shall satisfactorily repair and replace the same at DEVELOPER'S own
cost. The DEVELOPER shall maintain suitable and sufficient guards, if necessary, and
barriers, and at night, suitable and sufficient lighting for the prevention of accidents. The
determination of necessity will be made by the Contract Administrator.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 32
35.06 To all applicable sections where preparatory work is part of work thereon,
DEVELOPER shall carefully examine surfaces over which finished work is to be
installed, laid or applied, before commencing with the work. DEVELOPER shall not
proceed with said work until defective surfaces on which work is to be applied are
corrected satisfactorily to the Contract Administrator. Commencement of work shall be
considered acceptance of surfaces and conditions.
35.07 It will be the DEVELOPER'S responsibility to preserve all existing utilities within
the Project limits or as otherwise effected by DEVELOPER. If utility conflicts are
encountered by the DEVELOPER during construction, sufficient notice shall be given to
their owners so that they may make the necessary adjustments. Damage to any utilities,
which in the opinion of the CITY is caused by negligence on the part of the
DEVELOPER, shall be repaired at the DEVELOPER'S expense.
ARTICLE 36
CONTINUING THE WORK
DEVELOPER shall carry on the Work and adhere to the progress schedule during all
disputes or disagreements with CITY, including disputes or disagreements concerning a
request for a Change Order, a request for a change in the Contract Sum or Contract
Time. The Work shall not be delayed or postponed pending resolution of any disputes
or disagreements.
ARTICLE 37
FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS
37.01 The Contract Administrator shall have the right to approve and issue Field Orders
setting forth written interpretations of the intent of the Contract Documents to
Construction Manager and ordering minor changes in Contract Documents execution,
providing the Field Order involves no change in the total cost of the Project or the time
of performance.
37.02 The Contract Administrator shall have the right to approve and issue to
Construction Manager supplemental instructions to Construction Manager setting forth
written orders, instructions, or interpretations concerning the Agreement or its
performance, provided they make no major changes in Contract Documents execution
and involve no change in the total cost of the Project or the time of performance.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 33
ARTICLE 38
CHANGE ORDERS (CHANGES IN QUANTITIES OF WORK)
38.01 Changes in the quantity or character of Work within the scope of this Project
which are not propedy the subject of Field Orders or supplemental instructions, to
include all changes resulting in changes in the total cost of the Project or the time of
performance, shall be authorized only by Change Orders issued by the Contract
Administrator.
38.02 DEVELOPER shall not start work on any alteration requiring an increase in price
or extension of time for completion until a Change Order setting forth the adjustments is
approved by the Contract Administrator, except for the provisions of Section 38.03,
which governs disputed Change Order items.
38.03 In the event satisfactory adjustment cannot be reached for any item requiring a
Change Order, CITY reserves the right, at its own option, to either terminate the
Agreement as it applies solely to the items in question and make such arrangements as
may be deemed necessary to complete the item in question, or submit the matter in
dispute to the Contract Administrator for resolution as set forth in Article 11 herein.
During the pendency of the dispute resolution, DEVELOPER shall proceed with the
work set forth within the Change Order on a time and materials basis, which
DEVELOPER shall adequately document pending final resolution of such dispute(s).
38.04 On approval of any Change Order increasing the price, DEVELOPER shall
ensure that the applicable Performance and Payment Bonds and Guarantees, to the
extent applicable under the previsions of Article 51 hereof, are each increased so that it
reflects the total amount of the Project as increased.
38.05 Proposed Change Orders shall be prepared by the Contract Administrator.
ARTICLE 39
VALUE OF CHANGE ORDER WORK
39.01 The value of any work covered by a Change Order or of any claim for an
increase or decrease in the Contract Sum shall be determined in one of the following
ways:
39.01.01 Where the work involved is covered by unit prices contained in the Contract
Documents, by application of unit prices to the quantities of items involved, subject to
the provisions of Article 38 herein.
39.01.02 By mutual acceptance of a lump sum which includes a DEVELOPER'S fee for
overhead and profit and includes any design, Contractor and subcontractor fees.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 34
39.01.03 On the basis of the "cost of the work," determined as provided in Sections
39.02 and 39.03, plus a DEVELOPER'S fee and a Contractor fee for overhead and
profit which is determined as provided in Section 39.04 of this Agreement.
39.02 The term "cost of work" means the sum of all costs necessarily incurred and paid
by DEVELOPER in the proper performance of the Project. Except as otherwise may be
agreed to in writing by the Contract Administrator, such costs shall be in amounts no
higher than those prevailing in the locality of the Project, shall include only the following
items and shall not include any other costs whatsoever.
39.02.01 Payroll costs for employees in the direct employ of DEVELOPER in the
performance of the Project under schedules of job classifications agreed upon by the
Contract Administrator and DEVELOPER. This may include additional costs for on-site
project manager, project engineer, project superintendent, and assistant project
superintendent, as related to the Change Order work. Payroll costs for employees not
employed full time on the Project shall be apportioned on the basis of their time spent
on the Project. Payroll costs shall include, but not be limited to, salaries and wages plus
the cost of fringe benefits which shall include social security contributions,
unemployment, excise and payroll taxes, workers' compensation, health and retirement
benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. Such
employees shall include superintendents and forepersons at the Project site. The
expenses of performing the work after regular working hours, on Sunday or legal
holidays, shall be included in the above to the extent authorized by the Contract
Administrator. Insurance and benefits will be based on single time.
39.02.02 Costs of all materials and equipment furnished and incorporated in the Project,
including costs of transportation and storage thereof, and manufacturers' field services
required in connection therewith. All cash discounts shall accrue to DEVELOPER
unless CITY deposits funds with DEVELOPER with which to make payments, in which
case the cash discounts shall accrue to CITY. All trade discounts, rebates and refunds,
and all returns from sale of surplus materials and equipment shall accrue to CITY, and
DEVELOPER shall make provisions so that they may be obtained.
39.02.03 Payments made by DEVELOPER to subcontractors for work performed by
subcontractors. The term subcontractor shall include architects and engineers
employed for services specifically related to the Project. If required by the Contract
Administrator, DEVELOPER shall obtain competitive bids from subcontractors
acceptable to DEVELOPER and shall deliver such bids to CITY who will then determine
which bids will be accepted. If the subcontractor's 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 DEVELOPER'S cost of the work. Whenever
a subcontractor is involved, a complete and separate breakdown must be submitted by
the subcontractor for its portion of work. All subcontractors shall be subject to the other
provisions of the Contract Documents insofar as applicable.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 35
39.02.04 Costs of special consultants, including, but not limited to, testing laboratories,
surveyors, lawyers and accountants, employed for services specifically related to the
Project.
39.02.05 Supplemental costs including the following:
39.02.05.01 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 Project, and cost less market value of such items used but not consumed which
remain the property of DEVELOPER.
39.02.05.02 Rentals of all construction equipment and machinery and the parts
thereof whether rented from DEVELOPER or others in accordance with rental
agreements approved by the Contract Administrator and the costs of transportation,
loading, unloading, installation, dismantling and removal thereof, all in accordance with
the terms of said agreements. The rental of any such equipment, machinery or parts
shall cease when the use thereof is no longer necessary for the Project. Late charges,
penalties, restocking charges and similar assessments in said agreements will not be
recognized by the CITY as a supplemental cost, unless such charges were incurred and
actually assessed against the DEVELOPER due to performance of the work at the
request of the Contract Administrator.
39.02.05.03 Sales, use, or similar taxes related to the Project, and for which
DEVELOPER is liable, imposed by any governmental authority.
39.02.05.04 Deposits lost for causes other than DEVELOPER'S negligence, royalty
payments and fees for permits and licenses.
39.02.05.05 The cost of utilities, fuel and sanitary facilities at the site.
39.02.05.06 Minor expenses such as telegrams, long distance telephone calls,
telephone service at the site, express postage and similar petty cash items in
connection with the Project.
39.02.05.07 Cost of premiums for additional bonds and insurance required because
of changes in the Project.
39.03 The term "cost of the work" shall not include any of the following:
39.03.01 Payroll costs and other compensation of DEVELOPER'S officers, executives,
principals (of partnership and sole proprietorships), general managers, estimators,
lawyers, auditors, accountants, purchasing and contracting agents, expediters,
timekeepers, clerks and other personnel employed by DEVELOPER whether at the
Project site or in DEVELOPER'S principal or branch office for general administration of
the Project and not specifically included in the agreed-upon schedule of job
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 36
classifications referred to in Section 39.02.01 all of which are to be considered
administrative costs covered by DEVELOPER'S fee.
39.03.02Expenses of DEVELOPER'S principal and branch offices other than
DEVELOPER'S office at the Project site.
39.03.03Any part of DEVELOPER'S capital expenses, including interest on
DEVELOPER'S capital employed for the Project and charged against DEVELOPER for
delinquent payments.
39.03.04Cost of premiums for all bonds and for all insurance whether or not
DEVELOPER is required by the Contract Documents to purchase and maintain the
same, except for additional bonds and insurance required because of changes in the
Project.
39.03.05 Costs due to the negligence of DEVELOPER, Contractor, any subcontractors,
any consultants of DEVELOPER, or anyone directly or indirectly employed by any of
them or for whose acts any of them may be liable, including but not limited to, the
correction of defective or nonconforming work, disposal of materials or equipment
wrongly supplied and making good any damage to property.
39.03.06 Other overhead or general expense costs of any kind and the cost of any item
not specifically and expressly included in Section 39.02.
39.04 DEVELOPER'S fee allowed to DEVELOPER for overhead and profit shall be
determined as follows:
39.04.01 A mutually acceptable fixed fee which shall not exceed percentages set forth
below; or if none can be agreed upon,
39.04.02 A fee based on the following percentages of the various portions of the cost of
the work:
39.04.02.01 For costs incurred under Sections 39.02, 39.02.01 and 39.02.02,
DEVELOPER'S fees shall not exceed ten percent (10%).
39.04.02.02 For costs incurred under Sections 39.02.03 or 39.02.04, DEVELOPER'S
fee shall not exceed five percent (5%); and if a subcontractors is on the basis of cost of
the work plus a fee, the maximum allowable to the subcontractor as a fee for overhead
and profit shall not exceed ten percent (10%); and
39.04.02.03 No fee shall be payable on the basis of costs itemized under Sections
39.02.05 and 39.03.
39.05 The amount of credit to be allowed by DEVELOPER to CITY for any such
change which results in a net decrease in cost will be the amount of the actual net
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 37
decrease. When both additions and credits are involved in any one change, the
combined overhead and profit shall be figured on the basis of the net increase, if any.
39.06 Whenever the cost of any work is to be determined pursuant to Sections 39.01
through 39.02, DEVELOPER will submit in a form acceptable to the Contract
Administrator an itemized cost breakdown together with the supporting data.
39.07 Where the quantity of work with respect to any item 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.
39.08 Whenever a change in the work is to be based on mutual acceptance of a lump
sum, whether the amount is an addition, credit or no-change-in-cost, DEVELOPER shall
promptly submit to the Contract Administrator an estimate substantiated by a complete
itemized breakdown.
39.08.01 Breakdown shall list quantities and unit prices for materials, labor, equipment
and other items of cost.
39.08.02 Whenever a change involves DEVELOPER and one or more subcontractors or
consultants and the change is an increase in the Contract Sum, overhead and profit
percentages for DEVELOPER and each subcontractor or consultant shall be itemized
separately.
39.09 Each Change Order must state within the body of the Change Order whether it is
based upon unit price, negotiated lump sum, or "cost of work."
ARTICLE 40
CHANGE OF CONTRACT TIME OR CONTRACT SUM
40.01 The Contract Time set forth in Article 6 or the Contract Sum may only be
changed by a Change Order. Any claim for an extension of the Contract Time or for an
increase in the Contract Sum shall be based on written notice delivered by the party
making the claim to the Contract Administrator promptly (but in no event later than
seven (7) business days after the occurrence of the event giving rise to the claim and
stating the general nature of the claim). Notice of the extent of the claim with supporting
data shall be delivered within twenty (20) calendar days after such occurrence (unless
Contract~Administrator allows, in writing, an additional period of time to ascertain more
accurate data in support of the claim) and shall be accompanied by the claimant's
written statement that the adjustment claimed is the entire adjustment to which the
claimant has reason to believe it is entitled as a result of the occurrence of said event.
All claims for adjustment in the Contract Time or for an increase in the Contract Sum
shall be decided by the Contract Administrator. No claim for an adjustment in the
Contract Time or for an increase in the Contract Sum will be valid if not submitted in
strict accordance with the requirements of this Article.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 38
40.02 The Contract Time will be extended in an amount equal to time lost due to days
beyond the control of and through no fault or negligence of DEVELOPER if a claim is
made therefore as provided herein. Such delays shall include, but not be limited to, acts
or neglect by CITY, or by any employee of CITY, or any separate Contractor or
consultant employed by CITY, fires, floods, labor disputes, epidemics, abnormal
weather conditions or acts of God.
ARTICLE 41
NO DAMAGES FOR DELAY
NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF
TIME SHALL BE MADE OR ASSERTED AGAINST CITY BY REASON OF ANY
DELAYS. DEVELOPER shall not be entitled to an increase in the Contract Sum or
payment or compensation of any kind from CITY for direct, indirect, consequential,
impact or other costs, expenses or damages, including, but not limited to, costs of
acceleration or inefficiency, arising because of delay, disruption, interference or
hindrance from any cause whatsoever, whether such delay, disruption, interference or
hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable
or unavoidable. The limitations set forth in this Article 41 shall not apply tohindrances or
delays due solely to fraud, bad faith or active interference on the part of CITY or its
agents. Otherwise, DEVELOPER shall be entitled only to extensions of the Contract
Documents time as the sole and exclusive remedy for such resulting delays, in
accordance with and to the extent specifically provided above. The specific application
of this Article to other provisions of this Agreement shall not be construed as a limitation
of any sort upon the further application of this Article. Ten Dollars ($10.00) of
DEVELOPER'S fee is acknowledged as separate and independent consideration for the
covenants contained in this Article. DEVELOPER SHALL SPECIFICALLY INCLUDE
THIS PROVISION IN ITS AGREEMENT WITH CONTRACTOR,
ARTICLE 42
SUBSTANTIAL COMPLETION
When DEVELOPER considers that the Work, or a portion thereof designated by CITY
pursuant to Article 31 hereof, has reached Substantial Completion, DEVELOPER shall
so notify CITY and Consultant in writing. Consultant and CITY shall then promptly
inspect the Work. When Consultant, on the basis of such an inspection, determines
that the Work or designated portion thereof is substantially complete, it will then prepare
a Certificate of Substantial Completion which shall establish the Date of Substantial
Completion; shall state the responsibilities of CITY and DEVELOPER for security,
maintenance, heat, utilities, damage to the Work, and insurance; and shall list all Work
yet to be completed to satisfy the requirements of the Contract Documents for Final
Completion. The failure to include any items of corrective work on such list does not
alter the responsibility of DEVELOPER to complete all of the Work in accordance with
the Contract Documents. Warranties required by the Contract Documents shall
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 39
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 and DEVELOPER for their written acceptance of the responsibilities
assigned to them in such Certificate.
ARTICLE 43
SHOP DRAWINGS AND SCHEDULE OF VALUES
43.01 DEVELOPER shall submit Shop Drawings for all equipment, apparatus,
machinery, fixtures, piping, wiring, fabricated structures and manufactured articles. The
purpose of a Shop Drawing 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.
43.02 DEVELOPER shall submit to the Contract Administrator within thirty (30)
calendar days following the application for a building permit a complete list of
preliminary data on items for which Shop Drawings are to be submitted. Approval of this
list by the Contract Administrator shall in no way relieve DEVELOPER 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.
43.03 After the approval of the list of items required in Section 43.02, DEVELOPER
shall promptly request Shop Drawings from the various manufacturers, fabricators, and
suppliers.
43.04 DEVELOPER shall thoroughly review and check the Shop Drawings and each
and every copy shall show DEVELOPER'S approval thereon.
43.05 If the Shop Drawings show or indicate departures from the Contract Documents
requirements, DEVELOPER shall make specific mention thereof in its shop drawing
submittal and a separate letter. Failure to point out such departures shall not relieve
DEVELOPER from its responsibility to comply with the Contract Documents. Contract
Administrator shall determine acceptability of change and in considering said change,
may require data, technical comparisons, cost comparisons, quality comparisons and/or
calculations to determine the equality of deviations. Contract Administrator is not
obligated to accept deviations.
43.06 No work called for by Shop Drawings shall be done until the said Drawings have
been furnished to and accepted by the Contract Administrator or his Designee. Contract
Administrator shall respond to Shop Drawings pre-approved by Consultant with
objections or acceptance within ten (10) business days of receipt. Acceptance is for
design intent only and shall not relieve DEVELOPER and Consultant from responsibility
for fit, form, function, quantity or for errors or omissions of any sort on the Shop
Drawings.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 40
43.07 No acceptance will be given to partial submittal of Shop Drawings for items which
interconnect and/or are interdependent. It is DEVELOPER'S responsibility to assemble
the Shop Drawings for all such intemonnecting and/or independent items, check them
and then make one submittal to the Contract Administrator along with DEVELOPER'S
comments as to compliance, noncompliance, or features requiring special attention.
43.08 If catalog sheets or prints of manufacturers' standard drawings are submitted as
Shop Drawings, any additional information or changes on such drawings shall be
typewritten or lettered in ink. Catalog sheet with multiple options shall be highlighted to
depict specific pertinent data including options.
43.09 DEVELOPER shall submit to Contract Administrator six (6) copies.
Resubmissions of Shop Drawings shall be made in the same quantity until final
acceptance is obtained.
43.10 Contract Administrator's acceptance of the Shop Drawings as approved by
DEVELOPER will be for general compliance with the plans and specifications design
intent and shall not relieve DEVELOPER of responsibility for the accuracy of such
Drawings, nor for the proper fittings and construction of the Work, nor for the furnishing
of the materials or work required by the Contract Documents and not indicated on the
Drawings.
43.11 DEVELOPER shall keep one set of Shop Drawings marked with the Contract
Administrator's acceptance at the Project site at all times.
43.12 At least thirty (30) calendar days prior to the commencement of construction, the
DEVELOPER shall submit a Schedule of Values to the Contract Administrator.
DEVELOPER shall submit to the Contract Administrator a separate Schedule of Values
for demolition, abatement, and site work thirty (30) calendar days prior to commencing
such portion of the Work. The schedule will be typed on 8-1/2" x 11" white paper listing:
Title of project, location, project number, architect, Contractor, Contract Documents
designation, and date of submission. The schedule shall list the installed value of the
component parts of the Work in sufficient detail to serve as a basis for computing values
for progress payments during the construction. The table of contents of the
specifications shall establish the format for listing the component items. Each line item
will be identified by the number and title of the respective major section of the
specifications. For each line item, DEVELOPER shall list the sub-values of major
products or operations under the item. Each item shall include the proportion of
DEVELOPER'S overhead and profit. For any items for which progress payments will be
requested for stored materials, the value will be broken down with:
43.12.01 The cost of materials delivered, unloaded, propedy stored and safeguarded,
with taxes paid; and
43.12.02 The total installed value.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 41
43.13 Notwithstanding Developer's Shop Drawing obligations pursuant to this Article 43,
DEVELOPER and CITY acknowledge and agree that the DEVELOPER is only
coordinating and managing the construction services for the Project as set forth herein
and is not, and shall not be, in any way responsible, or liable, for the design and/or
engineering services provided by the Consultant, or any other individual or entity
contracted by the CITY to provide design and/or engineering services for the Project.
Nothing in this Article 43 shall serve to limit Developer's responsibility to retain all
Consultants necessary for the performance of its Shop Drawings obligation.
ARTICLE 44
FIELD ENGINEERING
44.01 The DEVELOPER shall enter into contracts on behalf of, and as agent of, CITY
for field engineering services required for the Project. This work shall include the
following elements:
44.01.01 Survey work required in execution of the Project.
44.01.02Civil, structural or other professional engineering services specified, or
required to execute the DEVELOPER'S construction methods.
44.02 The survey completed by entities or individuals contracted with by DEVELOPER
will identify the qualified engineer or registered land surveyor, acceptable to the CITY,
and he or she shall be retained by the DEVELOPER, at the outset of this Project.
44.03 The survey will locate and protect control points prior to starting site work, and
will preserve all permanent reference points during construction.
44.03.01 No changes or relocations will be made without prior written notice to the
Contract Administrator.
44.03.02 A report shall be made to the Contract Administrator when any reference point
is lost or destroyed, or requires relocation because of necessary changes in grades or
locations.
44.03.03 The surveyor shall be required to replace Project control points which may be
lost or destroyed. The surveyor shall be duly registered as a surveyor or mapper, as
required by state law.
44.03.04 Replacements shall be established based upon original survey control.
44.04 DEVELOPER's obligations pursuant to this Article 44, except as provided
in Section 44.01.02 herein, shall not be construed as the providing of design
and/or engineering services for the Project. DEVELOPER and CITY acknowledge
and agree that the DEVELOPER is only coordinating and managing the Work for
the Project as set forth herein and is not, and shall not be, in any way
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 42
responsible, or liable, for the design and/or engineering services provided by the
Consultant, or any other individual or entity contracted by the CITY, or by the
DEVELOPER on behalf of the CITY, to provide design and/or engineering services
for the Project.
ARTICLE 45
FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS
45.01 The entire responsibility for establishing and maintaining a line and grade in the
field lies with DEVELOPER. DEVELOPER shall maintain an accurate and precise
record of the location and elevation of all pipe lines, conduits, structures, underground
utility access portals, handholds, fittings and the like and shall deliver these records in
good order to the Contract Administrator as the Work is completed. These records shall
serve as a basis for "record" drawings. The cost of all such field layout and recording
work is included in the prices bid for the appropriate items.
45.02 DEVELOPER shall maintain in a safe place at the site one record copy of all
Drawings (Plans), Specifications, Addenda, written amendments, Change Orders and
written interpretations and clarifications in good order and annotated to show all
changes made during construction. These record documents together with all approved
samples and a counterpart of all approved Shop Drawings will be available to Contract
Administrator for reference. Upon completion of the Project, these record documents,
samples and Shop Drawings shall be delivered to Contract Administrator.
45.03 At the completion of the Project, the DEVELOPER shall turn over to the CITY a
set of reproducible drawings (Mylars) and a complete set of all drawings in the latest
version of the AutoCAD format on floppy disk not compressed which accurately reflect
the "as built" conditions of the new facility. All changes made to the construction
documents, either as clarifications or as changes, will be reflected in the plans. The
changes shall be submitted on Mylar at least monthly to the Contract Administrator.
These "as built" drawings on Mylar and the latest version of the AutoCAD format media
must be delivered and found to be acceptable prior to final payments.
ARTICLE 46
SAFETY AND PROTECTION
46.01 DEVELOPER shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the Project. DEVELOPER shall
take all necessary precautions for the safety of, and shall provide the necessary
protection to prevent damage, injury or loss to:
46.01.01 All employees on the Project and other persons who may be affected thereby;
46.01.02 All the Work and all materials or equipment to be incorporated therein, whether
in storage on or off the Project site; and
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 43
46.01.03 Other property at the site or adjacent thereto, including trees, shrubs, lawns,
walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
46.02 DEVELOPER shall comply with all applicable laws, ordinances, rules, regulations
and orders of any public body having jurisdiction for the safety of persons or property or
to protect them from damage, injury or loss; and shall erect and maintain all necessary
safeguards for such safety and protection. DEVELOPER shall notify owners of adjacent
property and utilities when prosecution of the Work may affect them. All damage, injury
or loss to any property referred to in Sections 46.01.02 and 46.01.03 above, caused
directly or indirectly, in whole or in part, by DEVELOPER, any subcontractor or
consultant or anyone directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable, shall be remedied by DEVELOPER; however,
DEVELOPER shall not be liable for injury or damage caused by CITY, its employees,
consultants or its separate Contractors. DEVELOPER'S duties and responsibilities for
the safety and protection of the Project shall continue until such time as all the Project is
completed and the Contract Administrator has issued a notice to DEVELOPER that the
Project is acceptable except as otherwise provided in Article 28.
46.03 DEVELOPER shall designate a responsible member of its organization at the
Project site whose duty shall be the prevention of accidents. This person shall be
DEVELOPER'S Project Representative unless otherwise designated in writing by
DEVELOPER to CITY.
ARTICLE 47
PAYMENT OF TESTS BY DEVELOPER
Except when otherwise specified in the Contract Documents, the expense of all tests
and test reports shall be borne by DEVELOPER.
ARTICLE 48
PROJECT SIGNAGE
48.01 DEVELOPER shall furnish and erect two (2) signs at the Project site. Each sign
shall be made of 3/4 inch plywood, substantially in accordance with the drawing in
Article 48.03 below. Signs shall be placed in a prominent location and maintained in
good condition until completion of the Project when signs shall then become the
property of CITY.
48.02 The dimensions of the Project Signs shall be four feet by eight feet.
48.03 The detail of the Project Signs shall be as determined by the Contract
Administrator. At a minimum, DEVELOPER shall submit artwork with name of Project,
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/15/03 44
DEVELOPER, GENERAL CONTRACTOR, Consultant, CITY Commissioners, and date
of completion.
ARTICLE 49
CLEANING UP AND REMOVAL OF EQUIPMENT
49.01 DEVELOPER shall at all times keep the Project site free from accumulation of
waste materials or rubbish caused by DEVELOPER'S operations. At the completion of
the Project, DEVELOPER shall remove all its waste materials and rubbish from and
about the Project as well as its tools, construction equipment, machinery and surplus
materials. If DEVELOPER fails to clean up at the completion of the Project, CITY may
do so; and the cost thereof shall be charged to DEVELOPER.
49.02 CITY'S Right to Clean-Up
If a dispute arises between DEVELOPER and separate Contractors as to responsibility
for cleaning up, CITY may clean up and charge the cost thereof to the Contractors
responsible therefore, as the Contract Administrator shall determine to be just. This
provision is solely for cleaning.
49.03 Removal of Equipment
In case of termination of this Agreement before completion for any cause whatever,
DEVELOPER, if notified to do so by CITY, shall promptly remove any part or all of
DEVELOPER'S equipment and supplies from the property of CITY, failing which CITY
shall have the right to remove such equipment and supplies at the expense of
DEVELOPER.
ARTICLE 5O
[Note: This Article is intentionally left blank]
ARTICLE 51
BONDS AND INSURANCE
DEVELOPER shall furnish, or cause to be furnished, on or before fifteen (15) days after
execution of this Agreement, the following:
51.01 Performance Bond and Payment Bond (Surety):
51.01.01 A performance bond and payment bond of the form and containing all the
provisions attached hereto and made a part hereof. Payment and Performance bonds
may be in the form of dual obligee bonds from the General Contractor in the amount of
the Agreement between the DEVELOPER and the Contractor, naming the CITY and
DEVELOPER as dual obligees.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 45
51.01.02The Bonds shall be in the amount of one hundred percent (100%) of the
Contract Sum, guaranteeing to CITY the completion and performance of the Project
covered in this Agreement as well as full payment of all suppliers, material persons,
laborers, or subcontractors employed pursuant to this Project. Such Bonds shall be with
a surety company which is qualified pursuant to Section 51.03.02.01.
51.01.03 Such Bonds shall continue in effect for one year after completion and
acceptance of the Project with liability equal to one hundred percent (100%) of the
Contract Sum, or an additional bond shall be conditioned that DEVELOPER will, upon
notification by CITY, correct any defective or faulty Work or materials which appear
within one year after completion of the Agreement.
-OR-
51.02 Performance and Payment Guaranty:
51.02.01 In lieu of a performance bond and payment bond, DEVELOPER may furnish
an alternate form of security which may be in the form of cash, money order, certified
check, cashiers check or irrevocable letter of credit. Such alternate forms of security
shall be for the same purpose and shall be subject to the same conditions as those
applicable above and shall be held by CITY for one year after completion and
acceptance of the Project.
51.03 Qualifications of Surety:
51.03.01 A separate performance bond and payment 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 (5) years.
51.03.02 In addition to the above-minimum qualifications, the surety company must
meet at least one of the following additional qualifications:
51.03.02.01 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 coinsurance, reinsurance, or other methods in
accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR 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.
51.03.02.02 The surety company shall have at least the following minimum ratings in
the latest revision of Best's Insurance Report:
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 46
Amount of Bond
Size
Ratings Category
500,001 to 1,020,000 B+
1,020,001 to 2,000,000 B+
2,000,001 to 5,000,000 A
5,000,001 to 10, 000, 000 A
10,000,001 to 25,000,000 A
25,000,001 to 50,000,000 A
50,000,001 or more A
Class I
Class II
Class III
Class IV
Class V
Class VI
Class VII
51.03.03 For projects which do not exceed Five Hundred Thousand Dollars
($500,000.00), CITY shall accept a Performance Bond and Payment Bond from a surety
company which has twice the minimum plus and capital required by the Florida
Insurance Code at the time the invitation to bid is issued, if the surety company is
otherwise in compliance with the provisions of the Florida Insurance Code, and if the
surety company holds a current valid certificate of authority issued by the United States
Department of the Treasury under Section 9304 to 9308 of Title 31 of the United States
Code. The Certificate and Affidavit so certifying (Form 00622) should be submitted with
the Bid Bond and also with the Performance Bond and Payment Bond.
51.04 INDEMNIFICATION OF CITY
51.04.01 In consideration of Twenty-five Dollars ($25.00), separately acknowledged by
DEVELOPER, and other valuable consideration, DEVELOPER shall indemnify and
save harmless CITY, its officers, agents and employees, from or on account of any
injuries or damages, received or sustained by any person or persons during or on
account of any construction activities of DEVELOPER, the Contractor, or any of the s
subcontractors, consultants, agents, servants, or employees connected with the Project
retained by DEVELOPER or Contractor; or by or in consequence of any negligence of
DEVELOPER, the Contractor, or any of the subcontractors, consultants, agents,
servants, or employees retained by DEVELOPER or Contractor (excluding negligence
of CITY), in connection with the construction activities of the DEVELOPER, the
Contractor, or any of the subcontractors, consultants, agents, servants, or employees
connected with the Project retained by DEVELOPER or Contractor; or by use of any
improper materials or by or on account of any act, error or omission of DEVELOPER,
theist Contractor, or any of the subcontractors, consultants, agents, servants or
employees retained by DEVELOPER or Contractor, except to the extent caused by
CITY. DEVELOPER agrees to indemnify and save harmless CITY against any claims
or liability arising from or based upon the violation of any federal, state, CITY or city
laws, bylaws, ordinances or regulations by DEVELOPER, the Contractor, the
Contractor's subcontractors, agents, servants or employees (excluding negligence of
CITY). This consideration is separate and distinct from any other consideration received
by DEVELOPER.
51.04.02 DEVELOPER further agrees to indemnify, save harmless and defend CITY, its
agents, servants and employees, from and against any claim, demand or cause of
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 47
action of whatever kind or nature arising out of any negligent conduct or misconduct of
DEVELOPER not included in Section 51.04.01 above and for which CITY, its agents,
servants or employees, are alleged to be liable.
51.04.03 The indemnification provided above shall obligate DEVELOPER 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 that may be brought against CITY which
may result from the operations and activities under this Agreement whether the
construction operations be performed by DEVELOPER, the Contractor, its
subcontractors, its consultants or by anyone directly or indirectly employed by any of the
above.
51.04.04 The execution of this Agreement by DEVELOPER shall obligate DEVELOPER
to comply with the foregoing indemnification provision.
51.05 INSURANCE
DEVELOPER shall provide, or cause to be provided, pay for, and maintain in force at all
times during the Project, such insurance, including Workers' Compensation Insurance,
Employer's Liability Insurance, Comprehensive General Liability Insurance, and shall
require DEVELOPER to provide, pay for and maintain in force at all times during the
Project, Professional Liability Insurance, as will assure to CITY the protection contained
in this Agreement. Builder's Risk Insurance is governed by the provisions of Section
50.5.5.
Such policy or policies shall be issued by companies approved to do business in the
state of Florida, and having agents upon whom service of process may be made in the
state of Florida. DEVELOPER shall specifically protect CITY by naming CITY as an
additional insured under the Comprehensive General Liability Insurance Policy
hereinafter described.
51.05.01 Workers' Compensation Insurance to apply for all employees in compliance
with the "Workers' Compensation Law" of the state of Florida and all applicable federal
laws. in addition, the policy (ies) must include:
Employer's Liability with a limit of $100,000.00 each accident.
51.05.02 Comprehensive General Liability with minimum limits of Two Million Dollars
($1,000,000.00 primary and excess of $1,000,000.00) 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 Comprehensive General
Liability Policy, without restrictive endorsements, as filed by the Insurance Services
Office and must include:
Premises and/or Operations.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 48
Independent Contractors.
Products and/or Completed Operations.
The DEVELOPER shall maintain in force until at least three (3) years after final
completion of the Project coverage for Products and Completed Operations, including
Broad Form Property Damage.
Explosion, Collapse and Underground Coverage's.
Broad Form Property Damage.
Broad Form Contractual Coverage applicable to this specific Agreement, including any
hold harmless and/or indemnification agreement.
Personal Injury Coverage with Employees and Contractual Exclusions removed with
minimum limits of coverage equal to those required for Bodily Injury Liability and
Property Damage Liability.
Notice of Cancellation and/or Restriction--The policy (ies) must be endorsed to provide
the CITY with thirty (30) days notice of cancellation and/or restriction.
51.05.03 Business Automobile Liability with minimum limits of Three Hundred Thousand
Dollars ($300,000.00) 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.
Non-owned and hired vehicles.
51.05.04 An All Risk Builder's Risk Insurance Policy will be provided by CITY for this
Project. The Builder's Risk Certificate of Insurance is issued with a Ten Thousand
Dollar ($10,000.00) deductible per claim. In the event a claim occurs for this Project,
DEVELOPER will pay fifty percent (50%) or Five Thousand Dollars ($5,000.00)
expenditure for its portion of the deductible.
51.05.05 Notice of Cancellation, Expiration and/or Restriction: The policy(ies) must be
endorsed to provide the City of Miami Beach, Florida, with thirty (30) calendar days
notice of cancellation, expiration and/or restriction, to the attention of the Risk
Manager, 1700 Convention Center Drive, Miami Beach, Florida 33139.
51.05.06 DEVELOPER shall furnish to the Contract Administrator Certificate(s) of
Insurance evidencing the insurance coverage's required herein prior to final award by
the Board. Such certificate(s) shall reference this Agreement. CITY reserves the right to
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 49
require a certified copy of such policies upon request. All certificates shall state that
CITY shall be given thirty (30) calendar days' prior written notice of cancellation and/or
expiration.
51.05.07 DEVELOPER shall provide to CITY a Certificate of Insurance or a copy of all
insurance policies required under this Article. The City's Risk Manager reserves the
right to require certified copies if requested. Endorsements and certifications shall state
CITY is to be given thirty (30) calendar days' written notice prior to expiration or
cancellation of the policy.
ARTICLE 52
MISCELLANEOUS
52.01 ROYALTIES AND PATENTS
All fees, royalties, and claims for any invention, or pretended invention, or patent of any
article, material, arrangement, appliance or method that may be used upon or in any
manner be connected with the construction of this Project or appurtenances, are hereby
included in the prices stipulated in this Agreement for said Project.
52.02 DATUM
All elevations are referred to as U.S.C.E. MLW Bay Datum.
52.03 RIGHTS OF VARIOUS INTERESTS
Whenever work being done by CITY'S forces or by other Contractors is contiguous to
Work covered by this Agreement, the respective rights of the various interests involved
shall be established by the Contract Administrator to secure the completion of the
various portions of the work in general harmony.
52.04 ASSIGNMENT
This Agreement shall not be assigned or subcontracted as a whole or in part without the
written consent of the City, nor shall DEVELOPER assign any monies due or to become
due to it hereunder, without the prior written consent of the Contract Administrator.
52.05 NO INTEREST
Any monies not paid by CITY when claimed to be due to DEVELOPER under this
Agreement shall not be subject to interest. However, the provisions of CITY'S prompt
payment ordinance, as such relates to timeliness of payment, and the provisions of
Section 218.74(4), Florida Statutes, as such relates to the payment of interest, shall
apply to valid and proper invoices.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 50
52.06 OWNERSHIP OF DOCUMENTS
Drawing, specifications, design, models, photographs, computer AutoCAD disks,
reports, surveys, and other data provided in connection with this Agreement and for
which CITY has rendered payment, are and shall become and remain the property of
CITY whether the Project for which they are made is executed or not. If this Agreement
is terminated for any reason prior to completion of the Work, CITY may, in its discretion,
use any design and documents prepared hereunder for the purpose of completing the
Project, provided that CITY has paid for same; and provided further that if such
termination occurs prior to completion of documents and/or through no fault of
DEVELOPER; WCDS and DEVELOPER shall have no liability for such use; and
provided further that any reuse without the written verification or adaptation of WCDS
for the specific purpose intended will be without liability or legal exposure to WCDS or
DEVELOPER. At the completion of the Project, as part of the Project closeout, copies of
on AutoCAD disks shall be transmitted from DEVELOPER to the Contract
within seven (7) calendar days of termination of this Agreement in addition
to the record drawing. The provisions of this clause shall survive the completion of this
Agreement and shall thereafter remain in full force and effect. Any compensation due to
DEVELOPER shall be withheld until all documents are received as provided herein.
Notwithstanding the foregoing, the CITY retains ownership of any and all documents
provided to the DEVELOPER and has full use thereof without any further payment.
52.07 RECORDS
DEVELOPER shall keep such records and accounts and require the Contractor and any
and all subcontractors and subconsultants to keep records and accounts as may be
necessary in order to record complete and correct entries as to personnel hours
charged to this engagement. Such books and records will be available at all reasonable
times for examination and audit by CITY and shall be kept for a period of three (3) years
after the completion of the Project pursuant to this Agreement. Incomplete or incorrect
entries in such books and records will be grounds for disallowance by CITY of any fees
or expenses based upon such entries.
52.08 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND
AMERICANS WITH DISABILITIES ACT
DEVELOPER 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 Agreement and shall affirmatively comply with all applicable provisions of the
Americans with Disabilities Act in the course of providing any services funded in whole
or in part by CITY, including Titles I and 11 of the (regarding nondiscrimination on the
basis of disability), and all applicable regulations, guidelines, and standards.
DEVELOPER'S decisions regarding the delivery of services under this Agreement shall
be made without regard to or consideration of race, age, religion, color, gender, sexual
orientation, national origin, marital status, physical or mental disability, political
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 51
affiliation, or any other factor which cannot be lawfully or appropriately used as a basis
for service delivery.
DEVELOPER 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, DEVELOPER 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.
DEVELOPER 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.
DEVELOPER shall not engage in or commit any discriminatory practice in violation of
the CITY'S Human Rights Act in performing the Scope of Services or any part of the
Scope of Services of this Agreement.
52.09 NO CONTINGENT FEE
DEVELOPER warrants that it has not employed or retained any company or person,
other than a bona fide employee working solely for DEVELOPER to solicit or secure this
Agreement and that it has not paid or agreed to pay any person, company, corporation,
individual or firm, other than a bona fide employee working solely for DEVELOPER, any
fee, commission, percentage, gift, or other consideration contingent upon or resulting
from the award or making of this Agreement. For the breach or violation of this
provision, CITY shall have the right to terminate the Agreement without liability at its
discretion, to deduct from the Contract Sum, or otherwise recover, the full amount of
such fee, commission, percentage, gift or consideration.
52.10 ALL PRIOR AGREEMENTS SUPERSEDED: AMENDMENTS
The Contract Documents incorporate and include all prior negotiations,
correspondence, conversations, agreements or understandings applicable to the
matters contained herein, and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are
not contained in the Contract Documents. Accordingly it is agreed that no deviation from
the terms hereof shall be predicated upon any prior representations or agreements
whether oral or written.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 52
It is further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document
executed with the same formality and of equal dignity herewith.
52.11 NOTICES
Whenever either party desires to give notice unto the other, it must be given by written
notice, sent by certified United States mail, with return receipt requested, addressed to
the party for whom it is intended, at the place last specified; and the place for giving of
notice shall remain such until it shall have been changed by written notice in compliance
with the provisions of this paragraph. For the present, the parties designate the
following as the respective places for giving of notice, to wit:
FOR CITY:
FOR DEVELOPER:
52.12 TRUTH-IN-NEGOTIATION CERTIFICATE
Signature of this Agreement by DEVELOPER shall act as the execution of a truth-in-
negotiation certificate stating that wage rates and other factual unit costs supporting the
compensation of this Agreement are accurate, complete, and current at the time of
Contracting. The original Contract Sum and any additions thereto shall be adjusted to
exclude any significant sums by which CITY determines the Contract Documents Sum
was increased due to inaccurate, incomplete, or non-current wage rates and other
factual unit costs. All such Contract adjustments shall be made within one (1) year
following the end of this Agreement.
52.13 INTERPRETATION
The parties hereto acknowledge and agree that the language used in this Agreement
expresses their mutual intent, and no rule of strict construction shall apply to either party
hereto. The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. All personal
pronouns used in this Agreement shall include the other gender, and the singular shall
include the plural, and vice versa, unless the context otherwise requires. Terms such as
"herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and
not to the particular sentence, paragraph or section where they appear, unless the
context requires otherwise. Whenever reference is made to a Section or Article of this
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 53
Agreement, such reference is to the Section or Article as a whole, including all of the
subsections and subparagraphs of such Section or Article, unless the reference is
expressly made to a par[icular subsection or subparagraph of such Section or Article.
52.14 RECYCLED CONTENT
In support of the Florida Waste Management Law, DEVELOPER is encouraged to
supply any information available regarding recycled material content in the products
provided. CITY is particularly interested in the type of recycled material used (such as
paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in
the product. CITY also requests information regarding any known or potential material
content in the product that may be extracted and recycled after the product has served
its intended purpose.
52.15 PUBLIC ENTITY CRIMES ACT
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 the CITY, may not
submit a bid on a contract with the CITY for the construction or repair of a public
building or public work, may not submit bids on leases of real property to the CITY, may
not be awarded or perform work 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 purchases for a period of 36 months from the date of being placed on the
convicted vendor list. Violation of this section shall result in cancellation of the CITY
purchase and may result in debarment.
52.16 APPLICABLE LAW AND VENUE
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action
is necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein, exclusive venue for the enforcement of same shall be in Miami-Dade
County, Florida. BY ENTERING INTO THIS AGREEMENT, DEVELOPER AND CITY
EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY
JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF THE
PROJECT. DEVELOPER SHALL SPECIFICALLY BIND THE CONTRACTOR AND
ANY AND ALL OTHER SUBCONTRACTORS AND/OR SUBCONSULTANTS TO THIS
PROVISION OF THE AGREEMENT.
BID NO: 22-02/03 CITY OF MIAMI BEACH
DATE: 03/18/03 54
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
first above written.
ATTEST:
/ Robert Parcher, City Clerk
BEACH, FLORIDA
DEVELOPER MUST EXECUTE THIS AGREEMENT AS INDICATED BELOW.
USE CORPORATION OR NONCORPORATION FORMAT, AS APPLICABLE.
Morton Towers Apm iments, L.P.
a Deleware limited pa,iaership
By: AIMCO Holdings, L.P., a Delaware
limited partnership, its general partner
WITNESSES:
By: AIMCO HOLDINGS QRS, Inc.
a Delaware corporation,
By: ~,neral~
(Signature)
(Print Name and Title)
dayof J~.5!~. '~7~ ,200 ~
CITY REQUIRES FIVE (5) FULLY-EXECUTED AGREEMENTS FOR DISTRIBUTION
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
BID NO: 22-02/03
DATE: 03/18/02
CITY OF MIAMI BEACH
55
-~"'CityAtto~ - Date