Resolution 2024-32865 RESOLUTION NO. 2024-32865
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA,APPROVING THE CONSTRUCTION MANAGER AT
RISK AGREEMENT FOR THE PRECONSTRUCTION SERVICES PHASE
WITH OHLA BUILDING, INC. (CMAR AGREEMENT), PURSUANT TO
REQUEST FOR QUALIFICATIONS (RFQ) NO. 2023-461-ND, FOR
CONSTRUCTION MANAGER AT RISK (CMR) FOR THE MIAMI BEACH
POLICE DEPARTMENT (MBPD) HEADQUARTERS RENOVATION PROJECT;
AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE
CMAR AGREEMENT; AND REQUIRING THE FINAL GUARANTEED
MAXIMUM PRICE (GMP) FOR CONSTRUCTION SERVICES BE SUBJECT TO
THE PRIOR APPROVAL OF THE MAYOR AND CITY COMMISSION.
WHEREAS, on June 28, 2023, the Mayor and City Commission approved the issuance
of Request for Qualifications (RFQ) No. 2023-338-ND for the Construction Manager at Risk
(CMR)for the Miami Beach Police Department(MBPD)Headquarters Renovation Project; and
WHEREAS, on June 30, 2023, RFQ 2023-338-ND was issued;and
WHEREAS, on August 14, 2023, a sole proposal was received from OHLA Building,
Inc.; and
WHEREAS, the Evaluation Committee convened on September 19, 2023, to consider
the proposal received; and
WHEREAS, the Evaluation Committee received an overview of the project, information
relative to the City's Cone of Silence Ordinance and the Government Sunshine Law, general
information on the scope of services, and a copy of the proposal; and
WHEREAS, the Evaluation Committee was instructed to score and rank the proposal
pursuant to the evaluation criteria established in the ITN; and
WHEREAS, the Evaluation Committee determined that OHLA Building, Inc. was
qualified and should be considered for negotiations; and
WHEREAS, on October 18, 2023, via Resolution 2023-32791, the Mayor and City
Commission authorized the Administration to negotiate with OHLA Building, Inc., as the sole
proposer, and further provided that the Construction Manager at Risk Agreement and the GMP
Amendment thereto be subject to approval of the Mayor and City Commission;and
WHEREAS, the Administration has successfully negotiated the principal terms of the
Construction Manager at Risk Agreement for the preconstruction services phase with OHLA
Building, Inc. (the"CMaR Agreement); and
WHEREAS, based on the foregoing, the Administration recommends that the Mayor and
City Commission approve the CMaR Agreement for pre-construction services substantially in
the form attached to the Memorandum accompanying this Resolution.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission approve the construction manager at risk agreement for the preconstruction services
phase with OHLA Building, Inc. (CMAR Agreement), pursuant to Request for Qualifications (RFQ)
No. 2023-461-ND, for Construction Manager at Risk(CMR) for the Miami Beach Police Department
(MBPD) Headquarters Renovation Project; authorize the City Manager and City Clerk to execute the
CMAR Agreement; and require the final Guaranteed Maximum Price (GMP) for Construction
Services be subject to the prior approval of the Mayor and City Commission.
PASSED AND ADOPTED this 3l ay of In 024.
•
Steven Meiner, Mayor
ATTEST: FEB 0 6 2024
WWII
Rafael E. Granado, City Clerk gip• !sEc„,
APPROVED AS TO
• INCOAP OAATED = FORM&LANGUAGE
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&FOR EXECUTION
City Attorney Date
Agenda Item C ap
Date /-3f-2L
M'IAMIBEACH
City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Honorable Mayor Steven Meiner and Members of the City Commission
FROM: Alina T. Hudak, City Man r
DATE: January 31, 2024
SUBJECT:A RESOLUTION OF THE AYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING THE CONSTRUCTION MANAGER AT RISK
AGREEMENT FOR THE PRECONSTRUCTION SERVICES PHASE WITH OHLA
BUILDING, INC. (CMAR AGREEMENT), PURSUANT TO REQUEST FOR
QUALIFICATIONS (RFQ) NO. 2023-461-ND, FOR CONSTRUCTION MANAGER AT
RISK (CMR) FOR THE MIAMI BEACH POLICE DEPARTMENT (MBPD)
HEADQUARTERS RENOVATION PROJECT; AUTHORIZING THE CITY MANAGER
AND CITY CLERK TO EXECUTE THE CMAR AGREEMENT; AND REQUIRING THE
FINAL GUARANTEED MAXIMUM PRICE (GMP) FOR CONSTRUCTION SERVICES
BE SUBJECT._TO THE PRIOR APPROVAL OF THE MAYOR AND CITY
COMMISSION.
RECOMMENDATION
It is recommended that the Mayor and City Commission of Miami Beach, Florida, approve the
Resolution, pursuant to Request for Qualifications(RFQ)2023-461-ND for construction manager
at risk services (CMR) for the Miami Beach Police Department headquarters, approving the
construction manager at risk agreement for the preconstruction services phase with OHLA
Building, Inc. (CMAR Agreement). The Resolution authorizes the City Manager and City Clerk to
execute the CMAR Agreement and requires that the final guaranteed maximum price(GMP)for
construction services be subject to the prior approval of the Mayor and City Commission.
BACKGROUND/HISTORY
On June 28, 2023,the Mayor and City Commission approved the issuance of RFQ 2023-461-ND
for Construction Manager at Risk (CMR) for the Miami Beach Police Department (MBPD)
Headquarters Renovation Project. The RFQ was issued on June 30, 2023, and a sole proposal
from OHLA Building, Inc. was received on August 14, 2023.
On September 19, 2023, an evaluation committee appointed by the City Manager convened to.
consider the proposal received. The Committee determined that OHLA Building, Inc. was
qualified and should be considered for negotiations.
On October 18, 2023, via Resolution 2023-32791, the Mayor and City Commission authorized
the Administration to negotiate with OHLA Building, Inc., as the sole proposer. The Resolution
provided that the preconstruction services agreement be subject to approval of the Mayor and
City Commission. The full details of the procurement process are included in the attached
commission memorandum of October 18, 2023(agenda item C2 B).
ANALYSIS
As directed.by the City Commission,staff proceeded to negotiate an agreement for construction
manager at risk services for the police department headquarters with OHLA Building, Inc. A
2IPage
construction manager at risk firm typically provides, first, preconstruction services and, later,
construction management services. Preconstruction services, typically, include cost estimation
and consultation regarding the design of the building project, the preparation and coordination of
bid packages, scheduling, cost control, and value engineering, acting as the general contractor
during the construction, detailing the trade contractor scope of work, holding the trade contracts
and other subcontracts, prequalifying and evaluating trade contractors and subcontractors.
Once the preconstruction phase is complete, the construction manager will submit a guaranteed
maximum price (GMP). The GMP represents the maximum amount to be paid by the city for the
building project, including the cost of the work, the general conditions, and the fee payable to the •
construction management at risk firm.
Staff has successfully negotiated the principal terms of the Construction Manager at Risk
Agreement for the preconstruction services phase with OHLA Building, Inc., and this item
requests approval of the agreement.
Following approval of the agreement, staff will finalize the preconstruction services requirements
for the project with the contractor. It is expected that the guaranteed maximum price (GMP)
amendment shall be completed for city commission approval by June 15, 2024.
LOBBYIST DISCLOSURE
In accordance with Resolution No. 2023-32857, adopted by the City Commission on December
13, 2023, the following information has been provided by the Administration.
1. Was the Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481,
includes a principal engaged in lobbying? No
2. If so, specify name of lobbyist(s)and principal(s): Not Applicable
SUPPORTING SURVEY DATA
Not Applicable
FINANCIAL INFORMATION
The project will be funded by the Miami Beach Police Department (MBPD) Headquarters
Renovation G.O. Bond's with a total approved construction budget of$13,200,000.
CONCLUSION:
The Administration recommends that the Mayor and City Commission of Miami Beach, Florida,
approve the Resolution, pursuant to Request For Qualifications (RFQ) 2023-461-ND for
construction manager at risk services (CMR) for the Miami Beach Police Department
headquarters, approving the construction manager at risk agreement for the preconstruction
services phase with OHLA Building, Inc. The Resolution authorizes the City Manager and City
Clerk to execute the CMAR Agreement,which shall include preconstruction services and requires
that the final guaranteed maximum price (GMP)for construction services be subject to the prior
approval of the Mayor and City Commission.
ATTACHMENTS:
A—Agreement with OHLA Building, Inc.
4 I,y ,;pI
Ira/ l ':• /KB
Draft Contract No.23-461-01
Construction Manager at Risk Agreement
By and Between
The City of Miami Beach, Florida
And
OHLA BUILDING, INC.
For The
Construction Manager at Risk(CMR)for Construction Manager at Risk(CMR)for the Miami Beach
Police Department(MBPD) Headquarters Renovation Project
Resolution No.2023-32791
Request for Qualifications(RFQ) No.2023-461-ND
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Draft Contract No.23-461-01
TABLE OF CONTENTS
ARTICLE 1 1
INTENTANDI TERPR A 0 OFTH C R C DOCUM S, 1
G L W S, D CE T I DEFI ITIO 1
ARTICLE 2 11
CO T UCTIO M GE ' E V 11
ARTICLE 3 37
E PO IB L OF CITY CHITECT-E GI EE D E IDE T P OJ EP E E T TIVE 37
ARTICLE 4 42
PE FO M CE OF WO K D UBCO T CT 42
ARTICLE 5 48
CHEDU E TIME OF COMME CEME T D UB T TI COMP ETIO 48
ARTICLE 6 56
GU TEED M X P ICE FO CO T UCTIO 56
ARTICLE 7 59
CO T UCTIO M GE ' FEE 59
ARTICLE 8 63
CO TOFTHE P OJECT 63
ARTICLE 9 68
CH GE! THE P OJECT 68
ARTICLE 10 77
IGHTTO PE FO M CO T UCTIO D 77
TO W D EP TE CO T CT ;MUTU E PO IBI ITY 77
ARTICLE 11 78
P YME T TO THE CO T UCTIO M GE 78
ARTICLE 12 84
BO D I U CE I DEM ITY D W IVE OF UB OG TIO 84
ARTICLE 13 86
U PE 10 OF WO K;TE MI TIO OF THE G EEME T; 86
CITY' IGHTTO PE FO M CO T UCTIO M GE ' OB IG TIO 86
ARTICLE 14 94
IG MET D GOVE I G W 94
ARTICLE 15 94
C IM ;W IVE OF EMEDIE ; 94
DI PUTE VOID CE D E 0 UTIO 94
Draft Contract No.23-461-01
ARTICLE 16 96
MI CE EOU 96
APP ND X A 105
PROJ TEAM ASS GN D REPRESE TATIV 105
APPE IX B 106
CO U OM G 106
APPE IX C 107
PROJECT SITE 107
APPE IX 108
PROJECT SCH U A MILESTO ES 108
APPE IX E 109
I S RA CE A B REQ 109
APPE IX F 113
IRECT P RCHASE PRO RAM 113
APPE IX 116
Q ALITY CO TROL/ Y ASS RA CE 116
APPE IX H 121
F A EXHIBITS,PRE CO ST CTIO SERVICES SCOPE A FEE PROPOSAL 121
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Draft Contract No.23-461-01
CONSTRUCTION MANAGER AT RISK AGREEMENT
THIS AGREEMENT is entered into this. is between the City of Miami Beach, Florida, a
municipal corporation of the State of Florida("City"), as Owner, and
OHLA BUILDING, INC.
9675 NW 117th Avenue, Suite 108, Miami, Florida 33178
FED ID: 65-0584540
("Construction Manager").
RECITALS
WHEREAS, the City intends to execute a comprehensive interior renovation of the existing Miami
Beach Police Department Headquarters located at 1100 Washington Avenue.
WHEREAS,the Construction Manager desires to act as Construction Manager At-Risk to the City to
provide the services as set forth in this Agreement;
WHEREAS,the City Commission has authorized the Mayor and City Clerk to execute and enter into
this Agreement by Resolution No. 2023-32791 adopted October 18,2023;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and compensation set
forth herein the City and Construction Manager agree as follows:
ARTICLE 1
INTENT AND INTERPRETATION OF THE CONTRACT DOCUMENTS,
GENERAL WARRANTIES,AND CERTAIN DEFINITIONS
The Construction Manager accepts the relationship of trust and confidence established between itself and
the City by this Agreement. The Construction Manager covenants with the City to furnish the skill and
judgment reflected in its RFQ Proposal Submission and to cooperate with the Architect-Engineer in furthering
the interests of the City. The Construction Manager agrees to furnish efficient business administration and
superintendence and shall use its best efforts to complete the Project in compliance with the Contract
Documents and in the most expeditious and economical manner consistent with the interest of the City and
in full accordance with Applicable Laws.
1.1. The Project Team. The Project Team shall work jointly during design and through Final Acceptance
and shall be available thereafter should additional services be required. The Architect-Engineer will
provide leadership on all matters relating to design of that Project, with support from the Construction
Manager, and the Construction Manager shall provide leadership to the Project Team on all matters
relating to construction.
1.2. Intent. The intent of the Contract Documents is to require all items and services necessary for the
proper execution and completion of the Work, as necessary to provide the City with a fully functional
and functioning Project within the scope and intent of the Contract Documents and within the
Guaranteed Maximum Price and the Project Schedule, including any and all such necessary items and
services consistent with, contemplated by, and reasonably inferable from the Contract Documents,
whether or not such items and services are specifically mentioned therein. The City and the
Construction Manager have negotiated a Pre-Construction Phase Fee for Pre-Construction Phase
Services for the Project,as well as additional terms and conditions relating to the Project.The City may
at a later date issue one or more Notices to Proceed for the Construction Phase for the Project to be
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Draft Contract No.23-461-01
covered under the scope of this Agreement, if the City Commission,at its sole and absolute discretion,
accepts the Construction Manager's proposed GMP and the City and Construction Manager thereafter
execute a GMP Amendment for the Project. The GMP shall set forth the General Conditions Fee and
the Construction Overhead and Profit Fee, as well as any other terms and conditions specific to the
Project. The Construction Manager shall not commence any Work until authorized in writing by the
City. City shall have no duties other than those duties and obligations expressly set forth within the
Contract Documents. The Construction Manager shall be responsible for the performance of all duties
called for by this Agreement with regard to the Project. The services under this Agreement shall be
completed when the Construction Manager fully and completely satisfies the requirements of the
Contract Documents.
1.3. Extent of Agreement. This Agreement between the City and the Construction Manager supersedes
any prior negotiations, representations or agreements.
1.3.1. This Agreement shall not be superseded by any provisions of the documents for construction
and may be amended only by written instrument signed by both City and Construction
Manager indicating a clear intent to change the terms of this Agreement.
1.3.1.1. Order of Precedence of Contract Documents. In cases of conflict between Contract
Documents,the order of precedence of the Contract Documents shall be as follows:
a. Change Orders and other Change Orders to this Agreement(excluding the
Construction Documents);
b. This Agreement and all appendices and schedules attached hereto
(excluding the Construction Documents);
c. Modifications to the completed Construction Documents, as approved in
writing by the City;
d. The completed Construction Documents, as approved in writing by the
City; and
e. The RFQ and amendments thereto.
In the event of any conflict between the Agreement, as amended, and Division 1 of
the Project Specifications,the provisions of the Agreement(or Amendment thereto)
shall take precedence and control.
Contract Documents shall be construed in a harmonious manner, whenever
possible. The general intent of the Contract Documents is to include all items
necessary for the proper execution and completion of the Project by the Construction
Manager.
1.3.1.2. The Contract Documents shall be taken as a whole and are complementary, and
any item of Work called for in any Contract Document shall be as binding as if called
for by all, so that any part of the Work shown or described in any of the Contract
Documents, though not specifically referred to in other Contract Documents, shall
be executed by Construction Manager and binding as a part of the Contract
Documents, as well as any Work which, in the sole opinion of City, may be fairly
inferred from the Contract Documents or by normal industry practice.
1.3.1.3. Detailed plans shall take precedence over general plans for the same part of the
Work. Specifications and detailed plans which may be prepared or approved by City
after the execution of the Agreement and which may be fairly inferred from the
original specifications and plans are to be deemed a part of such specifications and
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Draft Contract No.23-461-01
plans, and that portion of the Work shown thereby shall be performed without any
change in the Contract Price or Project Schedule. With respect to conflicts between
large-scale drawings and small-scale drawings,the larger scale drawing shall govern.
1.3.1.4. Where compliance with two or more requirements is indicated in any of the
enumerated Contract Documents and where these requirements within the Contract
Documents conflict in quantity or quality,the Construction Manager shall comply with
the most stringent requirement as determined by the City,unless specifically indicated
otherwise in the Contract Documents.
1.3.1.5. As used in the Contract Documents, unless specifically indicated otherwise, (i) the
singular shall include the plural, and the masculine shall include the feminine and
neuter, as the context requires; (ii) "includes" or"including" shall mean "including,
but not limited to" unless otherwise specifically limited; and (iii) all definitions of
agreements shall include all amendments thereto in effect from time to time.
1.3.1.6. As used in the Contract Documents, references to an Article include all Sections,
Subsections, and items within that Article; references to a Section include all
Subsections and items within that Section; and references to a Subsection include
all items within that Subsection.
1.3.1.7. Words which have a well-known technical or trade meaning are used herein in
accordance with such recognized or well-known meaning, unless this Agreement
otherwise specifically defines such word.
1.3.1.8. The recitals, appendices, exhibits and schedules attached hereto are incorporated
into and made a part of this Agreement.
1.3.1.9. Whenever it shall be provided in this Agreement that the Construction Manager is
required to perform a service or obligation"at its sole cost and expense"or words of
substantially similar meaning, the Construction Manager shall not be entitled to
reimbursement for such item and the cost of such service or obligation shall not be
included in the Cost of the Project under Article 8 or as part of Construction
Manager's fees stipulated in Article 7.
1.4. General Warranties. By their execution hereof, City and Construction Manager each represent and
warrant to the other that they are authorized to enter into this Agreement and that this Agreement
represents such Party's legal,valid and binding obligation, enforceable according to the terms thereof.
1.4.1. Construction Manager covenants, represents and warrants to City that:
1.4.1.1. It is a business organization duly organized, validly existing and in good standing
under the laws of the State of Florida, having full power and authority to engage in
the business it presently conducts and contemplates conducting, and is and
throughout the Work will be duly licensed or qualified and in good standing under
the laws of said jurisdiction;
1.4.1.2. It has the required authority,ability,skills and capacity to perform,and shall perform,
the Work in a manner consistent with sound engineering and construction principles,
Project management and supervisory procedures, and reporting and accounting
procedures;
1.4.1.3. The execution, delivery and performance of this Agreement will not conflict with any
Applicable Laws or with any covenant, agreement or understanding to which it is a
party or by which it or any of its properties or assets is bound or affected;
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•
Draft Contract No.23-461-01
1.4.1.4. It has knowledge of all the Applicable Laws in effect on the Effective Date of the
Agreement and of all business practices in the jurisdiction within which the Project
Site is located that must be followed in performing the Work.
1.5 Independent Contractor. Construction Manager is an independent contractor and is not an agent or
employee of City or Agent in performing the Work. Except as otherwise provided herein, Construction
Manager shall maintain complete control over its own employees,agents and operations and those of
its Subcontractors,Vendors and their respective employees and agents.Construction Manager hereby
accepts complete responsibility as a principal for its agents, Subcontractors, Vendors, Suppliers, their
respective employees,agents and Persons acting for or on their behalf,and all others it hires to perform
or assist in performing the Work.
1.6 Definitions.The following terms shall have the meanings specified herein. The definitions included
in this Section are not exhaustive of all definitions used in this Agreement. Additional terms may be
defined in other Contract Documents.
"Amendment"means a written modification to the Contract Documents,including any Change Orders signed
by the City and the Construction Manager, and Construction Change Directives.
"Applicable Laws" means all laws, codes (including, but not limited to, building codes), ordinances, rules
regulations,lawful orders and decrees of governmental authorities having jurisdiction over the Project,Project
Site, or the Parties.
"Architect-Engineer" means James Corner Field Operations, the firm that has entered into a separate
agreement with the City to perform architectural,engineering,or other design and construction administration
services for the Project, and/or such other architects, engineers, or consultants employed by Architect-
Engineer for the Project.Wherever the word"Architect"or"Engineer"appears in the Contract Documents, it
shall be deemed to refer to the Architect-Engineer and/or the design professionals engaged by the Architect-
Engineer. All communications, directives, instructions, interpretations and actions required of Architect-
Engineer shall be issued or taken only by or through Architect-Engineer's authorized representative(s).
"Base GMP" means that portion of the GMP reflecting (a)the Cost of the Project, and (b)the Construction
Manager's fees under Subsections 7.1.2 and 7.1.3.
"Change Order" means a written document ordering a change in the Contract Price or Contract Time or a
material change in the Work. A Change Order must comply with the requirements of the Contract
Documents.
"CIP Inspector/PWD Field Observer" means a City employee charged with observing and documenting,
for internal City purposes only,general observations and conditions of the Project including,without limitation,
the weather conditions,the number of workers present at the time of observation,general type of work being
performed and taking photographs regarding same. Construction Manager expressly waives any right to
assert as a defense to any claim regarding the Project including,without limitation, any dispute between the
City and Construction Manager, and Construction Manager and any third party, the presence or purported
approval or consent of any CIP Inspector or other City employee conducting any field observations during
the Project. The Construction Manager expressly acknowledges that the purpose of such City employee is
to observe and document for internal purposes only general observations and conditions of the Project, and
in no way is intended to, nor shall be treated as, a person with authority to approve or reject the Work on
behalf of the City or any other entity, or to direct the Construction Manager's Work in any way. Construction
Manager expressly agrees to waive the presence of such CIP Inspector or other City employee performing
field observations as a defense to any Claims involving the Project.
"C " or "Owner" means the City of Miami Beach, a Florida municipal corporation, having its principal
offices at 1700 Convention Center Drive, Miami Beach, Florida 33139. In all respects hereunder, City's
obligations and performance is pursuant to City's position as the owner of the Project acting in its proprietary
capacity. In the event City exercises its regulatory authority as a governmental body,including,but not limited
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Draft Contract No.23-461-01
to,to its regulatory authority for code inspections and issuance of Building Department permits, Public Works
Department permits, or other applicable permits within its jurisdiction, the exercise of such regulatory
authority and the enforcement of any rules, regulations, laws and ordinances shall be deemed to have
occurred pursuant to City's regulatory authority as a governmental body and shall not be attributable in any
manner to City as a Party to this Agreement.
"City Commission" means the governing and legislative body of the City.
"City's Construction Budget"means City's funds budgeted for construction of the Project, in the amount of
$13,200,00.00, including all Construction Manager fees,Costs of the Project and the Construction Manager's
Contingency and City's Contingency,as such terms are defined in Articles 6,7 and 8.This acknowledgement
of the City's budgeted funds is not to be construed as the Construction Manager's Guaranteed Maximum
Price.A Guaranteed Maximum Price will be offered for the Project by separate documentation as outlined in
Article 6.
"City's Contingency" or "City Contingency" means that separate fund established outside of the GMP,
which is available for City's use at its sole discretion to defray additional expenses relative to the design and
construction of the Project, as well as additional expenses expressly chargeable to the City or otherwise
deemed the responsibility of the City pursuant to the Contract Documents, as outlined in Subsection 6.4.2.
The City retains exclusive use and control of the City's Contingency. The Construction Manager has no right
or entitlement whatsoever to the City's Contingency, and use of such funds are subject to the Contract
Administrator's or City Manager's prior written approval and issuance of a Change Order by the City at its
sole and absolute discretion.Any unused City Contingency remaining at the completion of the Project shall
accrue solely to the City and shall not constitute or be used to calculate Project Cost Savings.
"City Manager" means the Chief Administrative Officer of the City. The City Manager shall be construed to
include any duly authorized representatives designated in writing (including the Contract Administrator)with
respect to any specific matter(s) concerning the Project and/or the Contract Documents (exclusive of those
authorizations reserved to the City Commission or regulatory or administrative bodies having jurisdiction over
any matter(s) related to the Project, and/or the Contract Documents).
"Claim"shall mean a demand or assertion by one of the Parties seeking, as a matter of right, adjustment or
interpretation of the Contract Documents, payment of money,extension of time or other relief with respect to
the Contract Documents or Project. The term "Claim" also includes other disputes and matters in question
between the City and Construction Manager arising out of or relating to the Contract Documents. Claims
must be initiated by written notice. The responsibility for substantiating Claims shall rest with the Party
making the Claim. All Claims submitted by Construction Manager must comply with the requirements of the
False Claims Ordinance, Sections 70-300 et seq., of the City Code or shall be forfeited in accordance with
the terms of the False Claims Ordinance and conclusively waived and released.
"CM's Proiect Managers' means the person designated by Construction Manager as its lead representative
to the City. The CM's Project Manager shall have the authority to obligate and bind Construction Manager
and to act on all matters on behalf of Construction Manager except for revisions to the Contract
Documents and Change Orders. CM Project Manager's responsibilities include creating clear and attainable
project objectives, building the project requirements, and managing cost,time, and scope.
"Constructability" means the creative, organized process of analyzing the Construction Documents
minimizing design, detailing, and specification problems which might render the Construction Documents
unbuildable or require changes to the Work to make them buildable.
"Construction Change Directive" means a written order issued by the Contract Administrator or Project
Coordinator which orders minor changes in the Work,but which does not involve an alteration in the Contract
Price or Contract Time.
"Construction Contingency" means and is comprised of the Construction Manager's Contingency and the
separate City Contingency.
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Draft Contract No.23-461-01
"Construction Documents" means all technical drawings and other documents issued by the Architect-
Engineer identifying, among other things,the design, location, and dimensions of the Work and which set forth
in detail the requirements for the construction of the Project, and generally including plans, elevations,sections,
details,schedules,diagrams, Shop Drawings,and the specifications with the written requirements for materials,
equipment,systems,standards and workmanship for the Work.
"Construction Manager" means OHLA Building, Inc. and its successors and assigns, and is the firm that
shall provide comprehensive construction management services for the Project pursuant to the Contract
Documents, including, preparation of cost estimates, Constructability reviews, Value Engineering and
assistance with systems life cycle cost analysis, estimating, scheduling, bidding and submission of a GMP,
as defined below, for construction, and construction management, and is the entity responsible for
compliance by all Subcontractors, Suppliers and Vendors with the Contract Documents. Upon execution of
the GMP Amendment or earlier with respect to any construction Work awarded prior to the establishment
thereof, the Construction Manager shall serve as, from that point forward,and conclusively shall be deemed
to be,the General Contractor under the Contract Documents,and shall construct the Project and be liable for
the acceptable performance of the Work and payment of all debts pertaining to the Work.
"Construction Manager's Contingency" means that portion of the GMP available for use by the
Construction Manager to defray the increased Cost of the Project reasonably and necessarily incurred by the
Construction Manager for certain costs and expenses relating to the construction of the Project,as delineated
in Subsection 6.4.1. The Construction Manager's Contingency shall be included as a line item specified in
the Schedule of Values for the Project, which amount, if accepted by the City, shall be included within the
GMP for the Project and specified in the GMP Amendment. In no event shall the use of the Construction
Manager's Contingency cause for the GMP to be exceeded, and the Construction Manager shall be solely
responsible for all costs that exceed the GMP (as adjusted by Change Order or Construction Change
Directive),without any reimbursement from the City.
"Construction Phase" means that period set forth in the Project Schedule beginning on the effective date
as set forth in a Notice to Proceed delivered by the City to the Construction Manager, directing the
Construction Manager to proceed with the Construction Work and other activities necessary to complete the
Project or specified portions thereof, and ending on the date of Final Completion of the Project. The City is
not obligated to immediately issue a Notice to Proceed for the Construction Phase on the date Construction
Manager obtains all requisite permits and/or satisfies the specified conditions precedent for issuance thereof.
The date of issuance of a Notice to Proceed for the Construction Phase shall be determined at the City's sole
discretion once Construction Manager has obtained all required permits and otherwise satisfied all conditions
precedent to issuance of the Notice to Proceed.
"Construction Phase Services" means the services to be performed through the Construction Manager
during the Construction Phase of the Project, including, the performance of all of the Work required by
this Contract Documents or reasonably inferable herein for the Construction Phase of the Project.
"Construction Schedule"means the City-approved detailed bar chart schedule showing the critical path of
scheduled Work activities of the Construction Manager and Subcontractors, and identifying intermediate
Milestones.
"Construction Superintendent" means the Construction Manager's representative who is responsible
for continuous field supervision, coordination, and completion of the Work, and who shall maintain a full-time
on-site,physical presence at the Project Site.The Construction Superintendent is responsible for management
of the Project Site and tasks including, but not limited to, organization and coordination of the Work of
Subcontractor employees, exercising control over rate of construction progress to assure completion of
the Project within the Project Schedule; inspecting or observing the Work to enforce conformity to the
Contract Documents and supervising trades, subcontractors, clerical staff, and other personnel employed
in the construction of the Project.
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Draft Contract No.23-461-01
"Contract Administrator" means the Facilities Management Division Director for the City's Facilities and
Fleet Management Department, or his or her designee.
"Contract Documents" means this Agreement (including all of the appendices, exhibits and schedules
attached hereto; Change Orders and other duly executed Amendments to this Agreement, including the
GMP Amendment; and the completed Construction Documents and modifications to the Construction
Documents, each as approved by the City.
"Contract Price" means the amount established in the Contract Documents as the total amount the City is
obligated to pay for full and complete performance of all of the Work required by the Contract Documents
(including, but not limited to, all labor, equipment and materials to administer, coordinate, provide related
certifications, install and otherwise construct and complete the Project within the Contract Time), and which
shall not exceed the Guaranteed Maximum Price.
"Contract Time" means the number of days allowed for completion of all Construction Phase Work, as
stipulated herein, or as otherwise established in the GMP Amendment, and as may be amended by Change
Order.
"Cost of the Project" means the costs necessarily incurred during the Construction Phase of the Project
and paid by the Construction Manager, as prescribed by Article 8.
"Days" and/or all references to numbers of days in the Contract Documents, shall be construed to mean
calendar days, unless specifically noted otherwise. The term "business days" means a day other than a
Saturday, Sunday, Federal holiday or any day on which the principal commercial banks located in Miami-
Dade County, Florida are not open for business during normal hours.
"Delegated Design Work" means design services and certifications the Construction Manager is required
to provide with respect to certain components of the Work as may be specified by the Contract Documents
involving systems, materials or equipment required for the Work to satisfy design and performance criteria
pursuant to the Contract Documents. Delegated Design Work must be performed by an appropriate
Subcontractor that is a registered Professional Engineer in Florida and shall include responsibility for the
design, calculations, submittals, and permits with respect to Delegated Design components.
"Design Development Documents," as to the Project, means the plans, specifications, and other
documents developed by the Architect-Engineer during the Design Development phase of the Project,which
fix and describe the size and character of the Project as to architectural, structural, mechanical, plumbing
and electrical systems, materials, and such other elements as may be appropriate.
"Effective Date of this Agreement" means the date this Agreement is fully executed by the Parties and
attested to by the City Clerk.
"Estimate" means the Construction Manager's latest estimate of probable Project construction cost with
respect to the Project.
"Field Order"or"Field Directive" means a written order which further describes details or provides
interpretations necessary to complete the Work of the Contract Documents in accordance with Section 9.5
but which does not involve a change in the Contract Price or Contract Time.
"Final Completion" means satisfaction of all conditions set forth in Section 5.7, at which time all conditions
and requirements of the Contract Documents, permits and regulatory agencies have been satisfied; any
documents required by the Contract Documents have been received by the City; any other documents
required to be provided by City have been received by City; and the Work has been fully completed in
accordance with the Contract Documents.
"Final Completion Date" means the date on which Final Completion is declared by City to have occurred.
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Draft Contract No.23-461-01
"Final Inspection"means inspection of the Work by City and Construction Manager pursuant to the Contract
Documents to establish Final Completion.
"General Conditions"means the direct and indirect costs and expenses for facilities or performance of Work
by the Construction Manager for items which do not lend themselves readily to inclusion in a separate trade
subcontract and which shall be included within the Contract Price, including, without limitation, the costs
identified in Section 7.1.2.
"GMP"or"Guaranteed Maximum Price"means the sum agreed to between the Construction Manager
and the City and set forth in the GMP Amendment as the maximum total amount that the Construction
Manager guarantees not to exceed for the completion of all Work required by or reasonably inferable from
the Contract Documents, plus the Construction Manager's fees stipulated in Article 7 and General
Conditions Fee, the Construction Manager's Contingency, as such amount may be adjusted by Change
Order or Construction Change Directive pursuant to the Contract Documents.
"GMP Amendment" means the GMP Proposal, as may be amended and accepted by the City Commission,
at its sole and absolute discretion, which amendment shall automatically become incorporated herein upon
the City and the Construction Manager's execution of same, and shall establish, among other things,
the GMP, and the Contract Time for the completion of all Construction Phase Services.
"GMP Proposal" means a proposal for completing the Construction Phase Services, which will be
submitted at a date specified by the City, based on the most currently available set of Construction
Documents, and which shall include the Construction Manager's proposed GMP for the construction of the
Project in accordance with the Contract Documents. However,the City has no obligation to accept the GMP
Proposal.
"Hazardous Materials" means any hazardous materials or hazardous substances as defined in the
Comprehensive Environmental, Response, Compensation and Liability Act ("CERCLA") or the Resource
Conservation and Recovery Act(RCRA)as the same may be amended from time to time,or any"hazardous
material"or"hazardous substance"as defined in any applicable federal or state statute or regulation or local
law.
"Jobsite" means those areas of the Project Site upon which the Project will be constructed designated in
writing by Construction Manager for performance of the Work and such additional areas as may, from time
to time, be designated in writing by Construction Manager for Subcontractor use hereunder.
"Memorandum of Changes" means the notification provided to the City and the Architect-Engineer by
the Construction Manager at the times specified in the Contract Documents that recommends changes
based on the Value Engineering and Constructability reviews.
"Milestone"means an element or elements of the Work which must be completed within a specified period
of time as described in the Contract Documents or Project Schedule.
"Notice to Proceed" or"NTP" means a written letter or directive issued by the Project Coordinator to
Construction Manager to commence and proceed with portions of the Work as specified therein or a specific
task of the Project, and stating any further limitations on the extent to which Construction Manager may
commence and proceed with the Work. Unless otherwise approved by the City at its sole discretion, City's
issuance of a Notice to Proceed for the Construction Phase or portions thereof shall be contingent upon
Construction Manager's obtaining all appropriate permits and satisfying all requirements of agencies having
jurisdiction and the Contract Documents. However, the City is not obligated to immediately issue NTP for
the Construction Phase on the date Construction Manager obtains all requisite permits and/or satisfies the
specified conditions precedent for issuance of NTP. The date of issuance of NTP for the Construction Phase
shall be determined at the City's sole discretion once Construction Manager has obtained all required permits
and otherwise satisfied all conditions precedent to issuance of NTP.
"Notice to Proceed Date" means the date on which the Notice to Proceed is issued to Construction
Manager,or the date stated in the Notice to Proceed as being the Notice to Proceed Date,whichever is later.
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Draft Contract No.23-461-01
"Parties" means City and Construction Manager, and "Party" is a reference to either City or Construction
Manager, as the context may indicate or require.
"Pre-Commissioning" means non-operating activities performed on equipment systems after installation
including removal of rust preventives,charging of lubricants,chemicals and supplies,checking motor rotation
and machine alignment,checking of proper valve actuation, removal of temporary bracing, pressure and leak
testing,safety valve testing and adjustment,checking electrical connections,performing continuity tests,and
any other activities which are evidently necessary by virtue of the nature of the Work in order that all systems
are functioning properly and safely.
"Pre-Construction Phase Services" means the services the Construction Manager shall perform prior to
the Notice to Proceed for the Construction Phase, as set forth more fully in Sections 2.5 and 2.6 of this
Agreement.
"Protect" means the comprehensive interior renovation of the existing Miami Beach Police Department
Headquarters located at 1100 Washington Avenue.;and all Work,including permitting,construction and code
inspection that is required to accommodate and complete the Project in accordance with and as detailed in
the Contract Documents, and as is contemplated thereby or reasonably inferable therefrom. City reserves
the right to require the construction of the Project in phases, including on a floor by floor basis wherein the
Work is constructed one floor at a time.
"Project Coordinator"means the City's assigned Capital Projects Coordinator for the Project,who shall be
the City's authorized representative to coordinate and facilitate (on behalf of the City) all matters related to
the Project.
"Project Cost Savings"shall have the meaning ascribed to it in Subsection 7.2.1.
"Project Manager" means the CM's Project Manager.
"Project Schedule" or "Schedule" means the City-approved and accepted detailed bar chart master
schedule showing the critical path of scheduled activities developed in accordance with the specifications
and other Contract Documents and that Construction Manager prepares and maintains for the Project,
and that includes the schedule for achieving the various Milestones, the phasing and performance of all
aspects of the Work, including design, pre-construction services, construction, construction engineering
and observation services,testing, project closeout,warranty, City occupancy dates and all required updates
to all of the foregoing, subject to the approval of the City as may be amended pursuant to a Change Order.
At the request of the City, the Construction Manager shall provide any additional information or further
detailed breakdown as to components of the Work in the Project Schedule.
"Protect Site" means the geographical area more particularly described in Appendix C'
"Project Team" means the Construction Manager, the Project Coordinator and other designated City
representatives, and the Architect-Engineer.
"Punch List" means the list or lists prepared by Construction Manager, incorporating input provided by the
City or RPR, identifying matters that remain to be completed to achieve Substantial Completion and to be
completed between achievement of Substantial Completion and Final Completion in order that Final
Completion can be declared by City to have occurred.
"Related Party" shall mean a parent, subsidiary, affiliate or other entity having common ownership or
management with the Construction Manager; any entity in which any stockholder in, or management
employee of, the Construction Manager owns any direct or indirect interest in excess of ten percent in the
aggregate; or any person or entity which has the right to control the business or affairs of the Construction
Manager.
9
Draft Contract No.23-461-01
"RFQ Proposal Submission" means the response to the RFQ submitted by the Construction Manager
during the selection process attached hereto as part of Appendix H,including its qualification and experience
and that of its key personnel to be assigned to the Project, and including other relevant items describing the
Construction Manager's capabilities and proposed approach to the Project. The RFQ Proposal Submission
is included for reference purposes only and shall not be incorporated as part of this Agreement, except with
respect to Construction Manager's representations regarding the qualifications and experience of
Construction Manager and its key personnel,its commitment to provide the key personnel listed therein, and
its capability to perform and deliver the Project in accordance with the Contract Documents and consistent
with all representations made therein.
"Schedule of Values" means a written schedule setting forth the detailed and itemized cost breakdown,
inclusive of labor, material, and taxes of all elements comprising the GMP set forth in the GMP Amendment.
"Shop Drawings" means plans, drawings, prints, diagrams, illustrations, brochures, schedules and other
data that are prepared by Construction Manager or any of its Subcontractors or Suppliers,and which illustrate
how specific portions of the Work will be fabricated or installed.
"Subcontractor(s)" means any person or entity with whom the Construction Manager contracts to perform
any part of the Work or to supply any labor and/or materials in relation to the Work. In addition, the term
Subcontractor shall apply to Subcontractors of any tier and suppliers and materialmen employed on or for
the Project pursuant to a subcontract or other agreement with a Subcontractor or lower-tier Subcontractor.
"Substantial Completion" shall be deemed to have occurred when the Work, as certified in writing by the
Architect-Engineer and determined by the City in its sole discretion, has been developed, designed,
engineered and constructed in accordance with the Contract Documents such that all conditions of permits
and regulatory agencies have been satisfied and the Project is ready for occupancy, utilization and
continuous commercial operation for the uses and purposes intended by the City, without material
interference from incomplete or improperly completed Work and with only Punch List items remaining to be
completed, all as reasonably determined by the City and evidenced by (1) the issuance of a Certificate of
Occupancy or Certificate of Completion by the authority having jurisdiction; the issuance of a Certificate of
Substantial Completion by the Architect-Engineer; and (3) acceptance of such Certificate of Substantial
Completion by the City.
"Substantial Completion Date" means the date on which Substantial Completion of the Work is declared
by City to have occurred.
"Value Engineering(VE)"means the detailed analysis of systems, equipment, materials,services, facilities
and supplies required by the Contract Documents for the purpose of achieving the desired and essential
functions at the lowest cost consistent with required and necessary performance, reliability, quality and
safety through the elimination or modification of those features which add cost without contributing to the
facility's required function or design value.
"Vendor" or"Supplier" means any person who supplies machinery, equipment, materials, consumables,
support services, utilities, etc. to Construction Manager or to any Subcontractor in connection with the
performance of Construction Manager's obligations under the Contract, but who does not perform labor at
the Jobsite other than delivery.
"Work" means all Pre-Construction Phase Services, Construction Phase Services, and other services
required by or reasonably inferable from the Contract Documents for the completion of the Project, including
all labor, materials, equipment, supplies, tools, machinery, utilities, procurement, fabrication, transportation,
construction and erection, installation, insurance, bonds, permits and conditions thereof, building code
changes and government approvals,testing and inspection services,training, surveys, studies, supervision,
administration and management services to be provided by the Construction Manager,that are necessary or
appropriate for the total construction, installation, furnishing, equipping, and functioning of the Project,
together with all additional, collateral and incidental items, work and services required to achieve Final
Completion in accordance with the Contract Documents,wherever the same are being engineered,designed,
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Draft Contract No.23-461-01
procured, manufactured, delivered, constructed, installed, trained, erected, tested, started-up or operated
during start-up and testing and whether the same are on or off the Jobsite.
ARTICLE 2
CONSTRUCTION MANAGER'S SERVICES
The Construction Manager's services shall be those necessary and appropriate to the successful completion
of the Project in a timely and cost-effective manner and shall include, but are not limited to, those described
or specified herein. The Construction Manager shall provide all requested services according to the
capabilities reflected in its RFQ Proposal Submission. The services described or specified shall not be
deemed to constitute a comprehensive specification having the effect of excluding services not specifically
mentioned. Unless otherwise provided in this Agreement, or as agreed in writing between City and
Construction Manager, the form and content of all systems, reports, forms and regular submittals by
Construction Manager to City shall be subject to prior approval of the City and Construction Manager shall
submit such materials to the Project Coordinator for City's approval prior to implementation. City's approval
thereof shall not limit City's right to thereafter require reasonable changes or additions to approved systems,
reports, forms and regular submittals by Construction Manager to City. Except as to Shop Drawings and
other design work performed by Construction Manager, its Subcontractors or agents pursuant to this
Agreement, Construction Manager's services hereunder are not intended to include the performance of
design work and Construction Manager does not assume any responsibility for the design of any Work,
except for Construction Manager-initiated design such as subcontracted Delegated Design Work.
2.1. General Services.
2.1.1. Project Management Information
2.1.1.1. Construction Manager shall implement and use the City's-BuilderT"!;system for data
warehousing and document management and shall procure all licenses that may be
necessary to cover its staff for the entire length of the Project, through Project close
out.
2.1.1.2. The reports,documents,and data to be provided under this Agreement shall represent
at all times an accurate assessment of the current status of the Project and its
component Projects and of the work remaining to be accomplished. Utilizing
computerized systems,reports shall be prepared and furnished to the members of the
Project Team monthly. Data.,within e-BuilderTM related to the Project shall be
accessible electronically at all times by the members of the Project Team and sent as
requested to Project Team.
2.1.1.3. If requested by the Project Coordinator, the Construction Manager shall conduct a
comprehensive workshop for participants designated by the Project Coordinator and
additional seminars as required to provide instruction to members of the Project Team
to facilitate each participant's use and understanding of e-BuilderTM
2.1.1.4. The Project Management Information shall include the following major elements:
• Narrative Reports and Monthly Progress Reports
• Schedule Control,
• Cost Control, and Estimating,
• Accounting and Payment, more specifically Pay application and contingency
use log
• Critical Issues Look Ahead,
• Test and Inspection Reports,
• Permits,
• Request for Information (BFI's),
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Draft Contract No.23-461-01
• Submittals,
• Non-Conforming Work Reports,
• Safety and Incident Reports,
• Meeting Minutes, and
• Site CM Daily Reports including the activities performed by the subcontractors
on-site
2.1.2. Narrative Reporting.
2.1.2.1. The Construction Manager shall prepare monthly and/or daily written reports as
described hereunder. All written reports shall be in 8 1/2" X 11" format. The
Construction Manager shall ensure that each member of the Project Team is provided
a copy.
2.1.2.2. The Narrative Reporting Subsystem shall include the following reports:
a. A Monthly Executive Summary which provides an overview of the Project's
progress, current issues and pending decisions, future developments and
expected achievements, and any problems or delays, including code violations
found by,and delays in obtaining and/or renewing any requisite permits from,any
permitting authority.
b. A Monthly Cost Narrative describing the current construction cost estimate status
of the overall Project and Change Order or potential Claim status (i.e., amount,
reason for change, responsibility),which shall be addressed in detail.
c. A Monthly Scheduling Narrative summarizing the current status of the overall
Project Schedule. This report shall include an analysis of the various Project
Schedule components, a description of the critical path, and other analyses as
necessary to compare planned performance with actual performance. The
Narrative should include descriptions of any logic or other changes to the updated
Schedule versus the baseline Project Schedule and previous updates.
d. A Monthly Construction Progress Report during the Construction Phase
summarizing the overall progress of the Work of Construction Manager and the
various Subcontractors. This report shall include information from the weekly
Project Site meetings as applicable such as general conditions,long lead supplies,
current deliveries, safety and labor relations Projects permits, construction
problems and recommendations,and plans for the succeeding month. The format
for the Monthly Construction Progress Report must be approved and accepted by
the Project Coordinator and Architect-Engineer, and will establish the format to be
used for each subsequent monthly Construction Progress Report. Construction
Manager shall index, bind and tabulate the monthly Construction Progress Report
in a manner acceptable to the City. The Construction Progress Reports shall
include 3 to 4 photos, or additional as needed, documenting the progress of the
Work. The photos will be 8"x 10" in size,with the date and location noted on the
back of each photo. A back-up flash drive or CD of the photos is to accompany
the photographs. The Construction Progress Reports and Project photos are to
be made an attachment to the Construction Manager's monthly Application for
Payment.
e. A Daily Construction Diary or bound log, maintained in English, during the
Construction Phase describing events and conditions on the Project Site. The
diary shall be maintained at the Project Site and available to members of the
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Draft Contract No.23-461-01
Project Team at any time upon request.A bound copy of the complete diary shall
be submitted to the City at Substantial Completion of the Project.
f. A monthly participation report during the Construction Phase summarizing the
local workforce participation of City of Miami Beach and Miami-Dade County firms
or residents for the current month and Project to date in the form prescribed by
the Project Coordinator.
2.1.3. Schedule Control.
2.1.3.1. Master Proiect Schedule. Within thirty (30) days of receipt of the construction
documents, the Construction Manager shall develop and submit a master Project
Schedule covering the constructability review and design revision and approval, phasing
of the Work, construction and City occupancy of the Project. The Project schedule will
serve as the framework for the subsequent development of all detailed schedules. The
Project Schedule shall be produced and updated monthly throughout the Project.A final
Project Schedule shall be submitted to the City at the time of the submission of the GMP.
Once accepted by the City,the applicable Project schedule will be the basis for payment
to the Construction Manager for Construction Phase Services for the Project and will
also serve to determine the impact of all proposed changes on the Project and the
Project as a whole.
2.1.3.2. Construction Schedule. Construction Manager shall prepare and submit to the Project
Team a Construction Schedule, using the latest version of Primavera software, along
with its GMP Proposal. Within thirty (30) days after the date of the City's execution of
the GMP Amendment,the Construction Manager shall prepare and submit to the Project
Team an updated Construction Schedule, consistent with the Project Schedule,
graphically depicting the activities contemplated to occur as a necessary incident to
performance of the Work required to complete this Project, and showing the sequence
in which the Construction Manager proposes for each such activity to occur and duration
(dates of commencement and completion, respectively) of each such activity.
2.1.3.3. Following development and submittal of the Construction Schedule described above,
the Construction Manager shall, at the end of each calendar month occurring thereafter
during the period of time required to finally complete this Project, or at such earlier
intervals as circumstances may require,update and/or revise the Construction Schedule
to show the actual progress of the Work performed,variance from scheduled completion
dates, the occurrence of all events which have affected the progress of performance of
the Work already performed or will affect the progress of the performance of the Work
yet to be performed in contrast with the planned progress of performance of such Work,
as depicted on the original Construction Schedule, and all updates and/or revisions
thereto as reflected in the updated and/or revised Construction Schedule last submitted
prior to submittal of each such monthly update and revision.The Construction Manager
shall also provide a short-term, three-week look-ahead schedule and a summary
schedule for this Project. Each such update and/or revision to a Construction Schedule
for the Project and the overall Project Schedule shall be submitted to the Project
Coordinator and shall be available electronically to all members of the Project Team.
Such submissions shall be in both .pdf and native file formats. The Construction
Manager shall make recommendations to the Project Coordinator in order to meet the
milestone dates of the Project Schedule.
2.1.3.4. The Construction Manager shall prepare and incorporate into the schedule data base
for the Construction Schedule and Project Schedule, at the required intervals, the
following schedules for this Project:
a. Pre-Bid Schedules. The Construction Manager shall prepare a pre-bid construction
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Draft Contract No.23-461-01
schedule for Work encompassed in each bid scope. The schedule shall be
sufficiently detailed as to be suitable for inclusion in the bid scope as a framework
for contract completion by the successful bidder, shall show the interrelationships
between the work of the successful bidder and that of other Subcontractors for the
applicable Work,and shall establish milestones keyed to the Project Schedule.
b. Subcontractor Construction Schedules. Upon the award of each subcontract, the
Construction Manager shall jointly with the Subcontractor, develop a schedule that
is more detailed than the pre-bid construction schedule,taking into account the work
schedule of the other Subcontractors. The Subcontractor construction schedules
shall include as many activities as necessary to make the schedule an effective tool
for construction planning and for monitoring the performance of the Subcontractor.
The Subcontractor construction schedule shall also show pertinent activities for
material purchase orders, manpower supply, shop plan schedules and material
delivery schedules.All Subcontractor schedules shall be integrated into,made a part
of and conform to the Project Schedule.
c. Occupancy Schedule. The Construction Manager shall jointly develop with the
Project Team a detailed occupancy schedule plan, inclusive of substantial
completion inspections, completion of punch lists, final inspections, maintenance
training and turn-over procedures.The plan shall be used to ensure accomplishment
of a smooth and phased transition from construction to City or tenant occupancy.
The Occupancy Schedule shall be produced and updated monthly from its inception
through final occupancy of the Project.
2.1.4. Cost Control.The Construction Manager shall provide sufficient timely written detail in monthly
Cost Control reports for the Project to permit the Project Team to control and adjust Project
requirements, needs, materials, equipment and systems by building and site elements so that
construction for the Project will be completed at a cost that will not exceed the City's
Construction Budget.
a. Construction Manager shall provide a monthly report on Construction Manager's
Contingency, reconciling the Construction Manager's Contingency to the GMP,
along with an itemization of expenditures charged to the Construction Manager
Contingency.
2.1.5. NOT USED.
2.1.6. Project Manual/Management Plans.
2.1.6.1. Prior to the submittal of the GMP,the Construction Manager shall develop, in conjunction
with the Project Team,comprehensive Project management plans describing the services
set forth in this Agreement and document such plans in the Project Manual. The
Construction Manager shall provide a plan collectively for the Project and for each phase
thereof,where appropriate,for the control, direction,coordination and evaluation of Work
performed by members of the Project Team throughout the Project organization,including
identification of key personnel, responsibilities, work flow diagrams, and strategy for
bidding the Work. The Project management plans shall be updated as necessary
throughout the design, construction and City occupancy phases with any such updates.
The Project Manual shall be available electronically to the members of the Project Team
upon request. In addition five copies of the Project Manual and any updates shall be
submitted to the Project Coordinator.
2.1.6.2. Contents of Project Manual. The Project Manual shall describe in detail the procedures
for executing the Work and the organizations participating in the Project. The Project
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Draft Contract No.23-461-01
Manual shall serve as the Project management plan, and shall include as a minimum the
following sections:
a. Project Organizational Chart. A summary organization chart showing the
interrelationships between the members of the Project Team, other supporting
organizations, and permitting review agencies. Detailed charts showing
organizational elements participating in this Project shall be included for each
member of the Project Team.
b. Construction Plan. Construction Manager shall develop and submit to the Project
Coordinator and Architect-Engineer the construction plan which will include a Work
breakdown structure based upon the approved Project Schedule and the phasing
plan reflected therein.
c. Safety Plan. The Construction Manager shall develop a comprehensive safety
program for the Project to meet all applicable federal, state and local safety
requirements including provisions to be included in the Contract Documents. This
will include an aggressive program for ensuring safety of all persons and property
affected by the Work.
d. Quality Assurance/Quality Control (QA/QC Plan). The Construction Manager shall
develop and maintain an effective quality assurance and quality control plan and
procedures as delineated in Appendix G to ensure that materials furnished and
quality of Work performed are in accordance with the Construction Documents.
e. Security Plan. The Construction Manager shall develop and maintain a
comprehensive plan to protect the Project Site,including,without limitation,the Work
installed and the equipment and materials stored within,and to protect the materials
stored off-site against theft, vandalism, fire, and accidents, etc., as required by job
and location conditions. Mobile equipment and operable equipment at the Project
Site, and hazardous parts of new construction subject to mischief, shall be locked
or otherwise made inoperable or protected when unattended.
f. Maintenance of Traffic and Project Site Logistics. The Construction Manager shall
prepare a logistics, access staging and maintenance of traffic plan for this Project.
The plans shall contain specific procedures for minimizing the disruption of
surrounding operations and inconvenience to the public accessing the Project Site,
and visitors or other contractors who must traverse the Project Site to access
businesses located at or near the Project Site. The Construction Manager shall
ascertain what temporary enclosures, if any, of building areas should be provided
for and may be provided as a practical matter, in order to assure orderly progress of
the Work in periods when extreme weather conditions are likely to be experienced.
g. Direct Purchase Program.Plan. If City elects, at its sole discretion, to implement a
Direct Purchase Program, Construction Manager shall develop a plan and
procedures to execute the Direct Purchase Program in accordance with Appendix F
of this Agreement.
2.2. Construction Manager's Staff. The Construction Manager shall maintain competent and qualified staff
in all positions for each phase of the Project.The Construction Manager shall submit a staffing plan for
each phase. The staffing plan shall detail the Construction Manager's organization for all applicable
work levels, including the superintendent level and on-site and off-site personnel.
2.2.1. Key Personnel. The personnel presented in the Construction Manager's RFQ Proposal
Submission shall staff key positions, including the position of CM's Project Manager and
Construction Superintendent("Key Personnel"). Such Key Personnel shall remain assigned to
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Draft Contract No.23-461-01
the Project through the duration of this Project and shall not be reassigned without the prior
written approval of the City's Project Coordinator, unless the individual has left the employment
of the Construction Manager. The City will not unreasonably withhold its consent to additions
of or substitutions for Key Personnel, with new personnel of comparable qualifications in
the event of death, promotion, retirement, job changes, firing, failure to perform or other
good cause shown. The Construction Superintendent and CM's Project Manager shall be
authorized to act on behalf of the Construction Manager to coordinate, inspect provide general
direction of the Work in progress. The Construction Superintendent shall be assigned to the
Project Site on a full-time basis, on-site, for 100% of their time, with no allocations or
commitments to other clients or projects. At all times when the Project Site is accessible by
anyone providing labor, material or services in connection with the Work, either the Project
Manager, Construction Superintendent, or other senior staff acceptable to the City shall be
present at the Project Site.
2.2.1.1. Responsibilities of CM's Proiect Manager. Construction Manager herein represents that
its.Project Manager, at a minimum,will provide the following services:
i. If not selected earlier or identified as part of the RFQ Proposal Submission, at least
thirty(30)days prior to the commencement of the Construction Phase of the Project,
the Construction Manager will identify and provide the qualifications of a suitably
qualified and experienced Project Manager.
ii. Construction Manager will use reasonable efforts to have the same Project Manager
on the Project to its conclusion, and any new proposed Project Manager shall first
be approved in writing by Contract Administrator before permanent assignment;
City's approval shall not be unreasonably withheld.
iii. The Project Manager will conduct on-site meetings with the Construction Manager
and its Subcontractors at regular times,as agreed upon and approved by the Project
Coordinator, and shall issue reports on the progress of the Work.
iv. Project Manager will be the lead representative of Construction Manager with the
primary responsibility for the administration of all of Construction Manager's Work.
v. The Project Manager shall maintain and monitor the bar chart project schedule
showing the critical path of scheduled work activities, subject to Project
Coordinator's prior written approval, and implement updates as required.
vi. The Project Manager shall coordinate the processing of shop drawings and material
submittals.
vii. The Project Manager will endeavor to achieve satisfactory performance by
Construction Manager and, if required by the Architect-Engineer or City,shall cause
for corrections to Construction Manager's Work including, but not limited to,
maintaining punch lists and observing testing.
viii. The Project Manager will monitor and maintain oversight of the cost of the Project,
including payment applications and the preparation thereof. In addition, keeping
cost records on Work performed and materials supplied, controlling of costs in
materials and wages;
ix. The Project Manager will assist in the preparation of record drawings and shall
transmit to the Architect-Engineer requests for additional information concerning the
design. The Project Coordinator shall be copied on these requests for monitoring
purposes.
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Draft Contract No.23-461-01
x. The Project Manager or assistants will observe testing and start-up activities of all
equipment, machinery and utilities to ensure a fully operational Project.
xi. The Project Manager or assistants will secure all equipment brochures and
warranties from the Construction Manager and Subcontractors.
xii. The Project Manager or assistants will coordinate the correction and completion of
the Work including that required by any and all punch lists.
2.2.2. Other Personnel. At any time, the Project Coordinator has the reasonable right to request
removal and replacement of any Construction Manager's personnel, including but not limited to
the Key Personnel. Once in place,the Construction Manager shall not change any person filling
a position listed in the organizational charts without the prior consent of the Project Coordinator
unless the City requests it or unless the person is leaving the employ of the Construction
Manager. The employee(s) of the Construction Manager and Subcontractors shall be
considered to be at all times employee(s) of the Construction Manager or the
Subcontractors, as applicable, and not an employee(s) or agent(s) of the City or any of its
departments. The Construction Manager and Subcontractors agrees to adjust staffing
levels or to replace any staff personnel if so requested by the Project Coordinator, should
the Project Coordinator make a determination that said staffing is unacceptable or that any
individual is not performing in a manner consistent with the requirements for such a position.
2.2.3. Cooperation with Project Team.The Construction Manager shall cooperate with and assist the
Project Coordinator, Architect-Engineer, City's staff and its legal, financial, design and
construction consultants, and all other consultants or designated representatives of the City at
all times during the development of the Project as necessary to complete the Project in a
manner reasonably satisfactory to the City.
2.3. Jobsite Facilities/Access to Project Site.
2.3.1. The Construction Manager shall arrange for all Jobsite facilities at the Project Site as necessary
to enable the members of the Project Team to effectively perform their respective duties in the
management, inspection, and supervision of construction. The Construction Manager shall
develop a proposal for Project Team approval, describing the facilities to be provided, the
methods of acquisition of the facilities and disposition of the acquired facilities and equipment
upon completion of the Project.
2.3.2. The Construction Manager shall afford the City and its authorized designees,and the Architect-
Engineer, safe access to the Project Site at all times. Access to the Project Site shall also be
permitted at all times to all Federal, State, County and City safety, regulatory and inspection
departments, personnel and agencies and other governmental entities having jurisdiction over
the Work and the Project Site. The City, the Architect-Engineer and their respective
representatives will make periodic visits to the Project Site to become generally familiar with the
progress and quality of the Work,and to determine if the Work is proceeding in accordance with
the Contract Documents,provided such visits and inspections shall be for the City's own internal
purposes and shall not relieve the Construction Manager of any of its obligations pursuant to
the Contract Documents.
2.4. Administrative Records. The Construction Manager will maintain, on a current basis, unless otherwise
agreed to by the Contract Administrator, all files and records for the Project, including the following:
• Punch Lists
• Cost Proposal Requests
• Bid Analysis/Negotiations/Award Information Contracts/Purchase Orders w/changes
• Material/Equipment Records
• Delivery Logs
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Draft Contract No.23-461-01
• Payment Records
• Transmittal Records
• Inspection Reports
• Project Schedule and Construction Schedule and Updates thereto
• Prevailing Wage Reports, if required
• Shop Plan Submittal/Approval Logs
• Contract Documents
• Warranties and Guarantees
• Cost Accounting Records:
• Labor Cost Records
• Material Cost Records
• Equipment Cost Records
• Payment Record Requests
• Subcontractor Pay Exception Report
• Meeting Minutes
• Cost-Estimates
• Lab Test Reports
• Insurance policies, Insurance Certificates and Bonds
• Technical Standards
• Design Handbooks
• "As-Built"Marked Prints
• Operating&Maintenance Instruction
• Daily Progress Reports&Subcontractor Daily Reports
• RFIs, RFCs and associated logs
• Monthly Progress Reports
• Correspondence Files
• Project Manual
The above Records shall be available to the members of the Project Team for reference or review at
any time.
2.5. Pre-Construction Services.
In addition to any other services to be performed during the pre-Construction Phase as may be
specified elsewhere in the Contract Documents, the Construction Manager shall perform the
following Pre-Construction Phase Services:
2.5.1. Preliminary Evaluation.The Construction Manager shall provide a preliminary evaluation of the
City's Project and construction budget and Project Schedule and phasing plan requirements,
including a review of all background data made available by City as to requirements, criteria,
priorities, feasibility, and physical and financial limitations with regard to the Project. The
Construction Manager shall become thoroughly familiar with the Project Site and surrounding
conditions and document the conditions observed on the Project Site with photos or videos as
required by the City. The Construction Manager shall review with the members of the Project
Team site data such as access, location of services, security, surveys, soils information, and
other relevant information. The Construction Manager shall use diligent good-faith efforts to
determine the proper identification and location of all utilities, services, and other underground
facilities which may impact the Project. The Construction Manager shall participate in a kick-
off meeting with the Project Team to establish rapport and develop a common appreciation of
the goals of the Project.
2.5.1.1. Project Schedule and Phasing Plan Review and Recommendations. Construction
Manager shall develop a phasing plan that is consistent with the City's directives with
regard to phasing of the Project, including, as determined by the City or as otherwise
specified in the Contract Documents. Within thirty (30) days after receipt of the
construction documents, Construction Manager shall provide an assessment of and
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Draft Contract No.23-461-01
recommendations with respect to the phasing plan, including accelerated or fast-track
scheduling, procurement and long-lead procurement, trade bid packaging, phasing of
construction and other activity, and any other matter that may assist Construction
Manager and its Subcontractors in achieving the Project Schedule. The Construction
Manager shall take into consideration cost reductions, cost information, constructability,
provisions for temporary facilities and procurement and construction scheduling issues.
2.5.2. Design Review and Recommendations
2.5.2.1. Review and Recommendations
a. The Construction Manager shall analyze the design for Constructability, including
construction feasibility and practicality, compliance with all Applicable Laws bearing
on the performance of the Work, and alternative materials/methods, to ensure that
design in the Construction Documents is achievable within the City's Construction
Budget and Project Schedule. Construction Manager shall make recommendations
to suggest modifications to improve completeness or clarity of the Construction
Documents. The results of such reviews shall be provided in a format approved by
the Project Coordinator.
b. The Construction Manager shall assist and advise the Project Team in exploring
alternative approaches,materials,systems,including Value Engineering to minimize
total construction and operation costs. The Construction Manager shall assist City
and Architect-Engineer in preparing comparative life-cycle studies of ownership,
operating, and maintenance costs for each alternative considering costs relating to
efficiency, usable life, maintenance, energy and operation. The results of such
reviews shall be provided to the City and Architect-Engineer in the form of a
Memorandum of Changes in a format acceptable to the City within thirty (30) days
receipt of documents from the Architect-Engineer. If the City and the Architect-
Engineer agree with such Memorandum of Changes, the Construction Manager
shall be so notified and the Architect-Engineer shall incorporate the changes
described in the Memorandum of Changes into the Construction Documents.
Architect-Engineer retains responsibility and its liability for any and all changes made
as a result of the Value Engineering and Constructability reviews.
c. The Construction Manager shall review with the Architect-Engineer and the City
alternative approaches to design and construction of the Project, site use and
improvements; selections of materials, building systems and equipment; potential
construction means and methods; phasing; and, if requested, shall make a
recommendation among such alternatives. Where alternative approaches are
presented, a comparison of costs shall be provided as well as the benefits in the
completion of the Work or other aspect of the Project.
d. Construction Manager shall provide information as to the availability of materials
and what equipment and systems have long lead times, together with the
anticipated lead times. The Architect-Engineer shall keep the Construction Manager
and the City informed of any proposed changes in requirements or in construction
materials, systems or equipment as the Construction Documents are developed so
that Construction Manager can adjust its estimate of construction cost (prior to
establishment of the GMP) appropriately. Proposed changes must be approved in
writing by the City prior to incorporation into the design or Construction Documents.
e. The Construction Manager shall continuously monitor the impact of proposed design
on the Project Schedule and recommend adjustments in the Construction
Documents or construction bid packaging to ensure completion of the Project in the
most expeditious manner possible.
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Draft Contract No.23-461-01
f. The Construction Manager shall advise and assist the Architect-Engineer, and
represent City, if requested, in dealing appropriately with all Applicable Laws and
with local utilities, communications, and other related infrastructure issues, as
necessary.
g. The Architect-Engineer shall coordinate with the Construction Manager and the City
by participating and taking a leadership role in reviewing and commenting on
Constructability and Value Engineering studies performed by Construction Manager,
and attending meetings where the content of Construction Documents will be
coordinated and reconciled, scheduled during any phase of the Work.
h. Construction Manager shall use diligent good-faith efforts to determine the proper
identification and location of all utilities, services, and other underground facilities
which may impact the Project.
i. Without assuming any architectural or engineering responsibility, the Construction
Manager shall be responsible for reviewing and providing appropriate comments to
ensure the coordination of the Construction Documents with the Contract
Documents. This includes the Construction Manager's review and coordination of
the Construction Documents with other Construction Documents(e.g., coordination
of the drawings with the written specifications), as well as coordination of the
Construction Documents with existing facilities or conditions, to ensure proper
coordination and constructability and 'lack of conflict, and to minimize unforeseen
conditions.
2.5.2.2. Preliminary Estimates
a. Cost Model. The Construction Manager shall prepare a cost model for estimating
program costs and provide a copy of such model to the Project Coordinator within
forty-five(45)days after the effective date of this Agreement. Such cost model shall
serve as a basis for all estimates for the program including the development of all
proposed GMPs.
b. Initial Project Estimate. The Construction Manager shall prepare an initial Estimate
for the Project no later than thirty(30) days following Architect-Engineer's submittal
of the conceptual plans for the Project, or at such other date as may be specified by
the Project Coordinator.
c. Project Estimate Updates. The Construction Manager shall prepare several levels
of budgeting, estimating and pricing appropriate to each level of design, as
described in the applicable Construction Documents or trade bid packages for the
Work. The Construction Manager shall continue to refine cost estimates prior to its
submission of the GMP Proposal, with input to the Program Team on clarifications
needed to reduce allowances for contingencies. The Construction Manager shall
continue to review and refine the estimate as Construction Documents are prepared
for the Project and advise the Project Team immediately if it appears that any portion
of the Project cannot be completed within the City's Construction Budget or
Schedule.
2.5.2.3. Local Conditions.As part of its Pre-Construction Phase Services, Construction Manager
shall be responsible for, and shall represent and warrant in the GMP Amendment,that it
has taken all steps reasonably necessary to ascertain the nature and location of the Work,
and that it has investigated and satisfied itself as to the general and local conditions which
may affect the Project (as may be reasonably inferred), the performance of the Work
and/or the Project Site, including 1) conditions bearing upon transportation, disposal,
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Draft Contract No.23-461-01
handling, and storage of materials; 2)the availability of labor, water, electric power, and
roads; 3) uncertainties of weather and observable physical conditions at the Project Site
or otherwise affecting the Project, including sub-tropical and/or coastal conditions in
South Florida and conditions that render the City of Miami Beach prone to flooding-; 4)
the adequacy of the Project Site for lay-down, storage and parking; and 5)the character
of equipment and facilities needed prior to and during the performance of the Work. The
Construction Manager agrees that it bears all risk associated with any general or local
condition that can affect the Project,the Project Site and/or the performance of the Work.
Any act or omission by the Construction Manager with respect to the actions described
and acknowledged in this subsection will not relieve the Construction Manager from
responsibility for properly estimating the difficulty and cost of successfully performing the
Work, as time is of the essence for proceeding to successfully perform the Work within
the Project Schedule and the Guaranteed Maximum Price. In confirmation and
furtherance of the foregoing, the Construction Manager shall acknowledge and agree in
the GMP Amendment that it shall not be entitled to an adjustment in the Project Schedule
or the Guaranteed Maximum Price based on general or local conditions affecting the
Project, the Project Site and/or the performance of the Work, and the Construction
Manager waives and releases City from any and all Claims associated therewith.
The Construction Manager acknowledges that the Miami Beach Police Station has an extremely
important role in ensuring the safety, security, and eniovment of Miami Beach for its residents and
visitors. The Construction Manager shall take all necessary preparations and precautions to ensure
that the Work does not interfere with the Miami Beach Police Department's duties to the City. The
Construction Manager covenants and agrees that it shall at all times perform the Work, and cause
all Subcontractors and representatives of the Construction Manager to perform the Work, so as to
exercise diligent good-faith efforts to minimize interference with the operations of the Miami Beach
Police Headquarters, including the following types of interference: (i) fumes, odors, dust, debris,
noise, and safety hazards, (ii)obstructions of access and obstructions of traffic flow to and from any
building, roadway, entryway, parking garage or parking lot in the vicinity of the Project Site, and (iii)
interruption in the availability and normal operation of water,sewer,electricity,gas,telephone, HVAC
systems, computer systems and other utility services and systems relating to the Proiect Site. The
Construction Manager shall plan ahead in detail, schedule accurately, anticipate problems, and
communicate plans and intentions clearly in writing to the City in a timely manner to avoid creating
any of the types of interference described in the preceding sentence. If any such interference occurs,
the Construction Manager shall act immediately to remedy the same.
If any of the Construction Manager's construction or other activities interfere with or otherwise disrupt
the Police Department's operations, the Construction Manager shall, within one (1) hour of notice
from the City, remedy or otherwise correct the cause of such interference or disruptions.
2.5.2.4. Review of Construction Documents, Construction Manager's Warranty, and City's
Disclaimer of Warranty. Construction Manager shall review the Construction Documents
for each of the following: clarity, consistency and coordination; construction feasibility;
practicality;errors, omissions, conflicts and apparent defects.Within thirty(30)days after
receipt of Design Development Documents and Construction Documents at each stage
of completion thereof, the Construction Manager shall submit to the Project Team a
written report covering suggestions or recommendations previously submitted;additional
suggestions or recommendations, if any; any comments it may deem to be appropriate,
including with respect to separating the Work into separate subcontracts, alternative
materials,and the like; and all actions taken by the Architect-Engineer with respect to the
foregoing.
AT COMPLETION OF THE CONSTRUCTION MANAGER'S REVIEW OF THE
CONSTRUCTION DOCUMENTS FOR THE PROJECT AT THE GMP PROPOSAL
STAGE, EXCEPT ONLY AS TO SPECIFIC MATTERS AS MAY BE IDENTIFIED BY
APPROPRIATE COMMENTS PURSUANT TO THIS SECTION, THE CONSTRUCTION
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Draft Contract No.23-461-01
MANAGER SHALL WARRANT, WITHOUT ASSUMING ANY ARCHITECTURAL OR
ENGINEERING RESPONSIBILITY, THAT THE CONSTRUCTION DOCUMENTS ARE
COORDINATED, CONSISTENT, PRACTICAL, FEASIBLE AND CONSTRUCTIBLE.
CONSTRUCTION MANAGER SHALL WARRANT THAT THE WORK DESCRIBED IN
THE CONSTRUCTION DOCUMENTS FOR THE VARIOUS BIDDING PACKAGES OF
THE PROJECT IS CONSTRUCTIBLE WITHIN THE SCHEDULED TIME FOR
COMPLETION THEREOF.
ACCORDINGLY, EXCEPT AS INCLUDED IN THE GMP AMENDMENT,
CONSTRUCTION MANAGER SHALL HAVE NO ENTITLEMENT WHATSOEVER TO
ANY CONTRACT AMENDMENT OR CHANGE ORDER FOR ADDITIONAL COSTS OR
TIME DUE TO,CONFLICTS IN THE CONSTRUCTION DOCUMENTS;QUESTIONS OF
CLARITY WITH REGARD TO THE CONSTRUCTION DOCUMENTS; AND
INCOMPATIBILITY OR CONFLICTS BETWEEN THE CONSTRUCTION DOCUMENTS
AND THE EXISTING CONDITIONS, KNOWN UTILITIES, CODE ISSUES BEARING ON
THE PERFORMANCE OF THE WORK AND OTHER CONDITIONS (EXCEPT
UNFORESEEN SITE CONDITIONS AS DEFINED IN SECTION 9.2)(EXCEPT
CITY'S DISCLAIMER OF WARRANTY: THE CITY DISCLAIMS ANY EXPRESS
WARRANTY THAT THE CONSTRUCTION DOCUMENTS ARE ACCURATE,
PRACTICAL, CONSISTENT, COORDINATED OR CONSTRUCTIBLE, AND CITY'S
REVIEW OR APPROVAL OF THE CONSTRUCTION DOCUMENTS SHALL NOT
CONSTITUTE A REPRESENTATION WITH RESPECT THERETO. CITY'S REVIEW
AND/OR APPROVAL OF THE CONSTRUCTION DOCUMENTS SHALL IN NO WAY
DIMINISH OR RELEASE THE CONSTRUCTION MANAGER'S WARRANTY OF
ADEQUACY AND FITNESS FOR INTENDED PURPOSES.
2.6. Procurement Planning.
2.6.1. Long Lead Procurements. The Construction Manager shall review the Design Development
Documents for the purpose of identifying long lead procurement items(machinery, equipment,
materials and supplies)for this Project.When each item is identified,the Construction Manager
shall notify the Project Team of the required procurement and schedule. Such information shall
be included in the bid documents and be made a part of all affected subcontracts and included
in the Construction Schedule.As soon as the Architect-Engineer has completed the applicable
Construction Documents and the Construction Manager has obtained permitting approval or is
otherwise authorized by the City, the Construction Manager shall arrange for procurement of
such long-lead items, as authorized by City. The Construction Manager shall keep informed of
the progress of the respective Subcontractors or Suppliers, manufacturing or fabricating such
items and advise the Project Coordinator of any problems or prospective delay in delivery.
2.6.2. NOT USED.
2.6.3. Interfacing. In furtherance of the reviews required by Subsection 2.5.2.4, the Construction
Manager shall review the Construction Documents for clarity, consistency and coordination of
documentation, and call to the Project Team's attention any apparent ambiguities or defects in
the design, plans and specifications or other Construction Documents, use of illegal or
restrictive requirements,overlap with any separate construction trade contracts,omissions,lack
of correlation between Construction Documents and any other deficiencies noted in order that
the Project Coordinator and Architect-Engineer may arrange for necessary corrections. The
Construction Manager shall take such measures as are appropriate to provide that all
construction requirements for the Project will be covered in the separate subcontracts for
procurement of long lead items,and that the separate construction subcontracts will be without
duplication or overlap, and will be sequenced to maintain completion of all Work on schedule.
Particular attention shall be given to provide that each bid scope clearly identifies the Work
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Draft Contract No.23-461-01
included in that particular separate subcontract, its schedule for start and completion and its
relationship to other separate contractors.
2.6.4. Warranties. The Construction Manager shall review the Contract Documents to ensure that
warranty effective dates coincide with Substantial Completion for the Project, or such other
dates as provided for by the Contract Documents.
2.6.5. Stimulation of Bidder Interest. The Construction Manager shall monitor conditions in the
construction market to identify factors that will or may affect costs and time for completing the
Project. As various bid scopes are prepared for bidding,the Construction Manager shall submit
to the Project Team a list of potential bidders.The Construction Manager shall be responsible
to stimulate bidder interest in the local, regional and national market place, and to identify and
encourage bidding competition.
2.6.6. Preparation of GMP Proposal.When the Construction Documents for the Project are complete,
or at such time or percent completion as designated by the City,the Construction Manager will
submit in writing to the City a GMP Proposal for the Project for the City's consideration at its
sole discretion. The GMP Proposal shall include the proposed GMP for completing all Work in
accordance with the Contract Documents and fixing all fees,overhead, profit and administrative
and general expenses payable to Construction Manager, as well as contingencies for the
Project. The GMP Proposal shall contain detailed cost estimates on the basis of a quantitative
material take-off with current local cost for each bid group by subcontract package. Such cost
estimates shall remain confidential and exempt from inspection under Section 119.07(1),
Florida Statutes,to the extent permitted by law, until bids or proposals received by Construction
Manager are opened. Such GMP Proposal, if accepted by the City Commission at its sole
discretion, may only be modified for changes in the Project in accordance with the Contract
Documents and as provided in Article 9.
a. If any Estimate submitted by the Construction Manager or GMP Proposal exceeds the
City's Construction Budget, the Construction Manager shall make appropriate
recommendations to the City, including recommendations to modify the Construction
Documents to reduce the scope of Work and to reduce construction costs. In addition,
the Construction Manager shall immediately advise the City of any adjustments to any
Estimate which would cause the Project cost to exceed the Estimate or the City's
Construction Budget, and shall make recommendations for corrective action no later than
seven(7)days thereafter.
b. the GMP proposal for the Project shall include two (2) sets of signed and dated
Construction Documents and other Contract Documents upon which the GMP is based
from the Architect-Engineer, and shall acknowledge on the face of each document of
each set that it is the set upon which the Construction Manager based its GMP. The
Construction Manager shall send one set of the documents to the Project Coordinator
along with its GMP proposal,while keeping one set for itself and returning one set to the
Architect-Engineer.The GMP proposal shall include the following sections:
Section One: Summary of Work
Section Two: GMP Price Summary
Section Three: Scope Clarifications and Assumptions
Section Four: Detailed Estimate
Section Five: Bid Tabulations,where applicable
Section Six: Preliminary Construction Schedule
Section Seven: Contract Documents — Construction Document Plan List and
Specification List
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Draft Contract No.23-461-01
2.7. Construction Phase.
In addition to any other services to be performed during the Construction Phase,as maybe specified
elsewhere in this Agreement, the Construction Manager shall perform the following Construction
Phase services:
2.7.1. Construction Manager's Administration. The Construction Manager shall maintain at the
Project Site sufficient off-site support staff and competent full time staff to manage the Project,
and who are authorized to act on behalf of the Construction Manager to provide continuous
on-site monitoring and coordination, inspection and general direction of the Work on the
Project and progress of the Subcontractors and provide all services required by the Contract
Documents. Construction Manager shall not transfer or move its Project Manager,
Construction Superintendent or any of its supervisory staff assigned to the Agreement without
the prior written consent of City.
2.7.2. Lines of Authority.The Construction Manager shall establish on-site organization and maintain
lines of authority for its personnel, and shall provide this definition to the Project Manager and
all other affected parties such as the inspectors, the Subcontractors, the Architect-Engineer
and the Project Coordinator, to provide general direction of the Work and progress of the
various phases and Subcontractors. Construction Manager's Project Manager shall have
authority to represent Construction Manager. Directions given to the Project Manager or
Construction Superintendent by the Project Coordinator shall be binding on Construction
Manager. The Project Coordinator,City and Architect-Engineer may attend meetings between
the Construction Manager and its Subcontractors;however,such attendance shall not diminish
either the authority or responsibility of the Construction Manager to administer the
subcontracts.During the course of the Work,Construction Manager shall provide at the Project
Site the Project Manager who shall be satisfactory to City. Upon City's written request,
Construction Manager shall give the Project Manager, in writing, complete authority to act on
behalf of and to bind Construction Manager in all matters pertaining to the Work and this
Agreement. Construction Manager shall furnish City a copy of such authorization.
2.7.3. Schedule and Proiect Manual Provisions. The Construction Manager shall provide
Subcontractors with applicable portions of the Project Manual emphasizing their respective
responsibilities for performance and the relationships of their Work with respect to other
Subcontractors and suppliers.The Construction Manager shall also continue to provide current
scheduling information, direction and coordination regarding Milestones, and beginning and
finishing dates to enable them to perform their respective tasks so that the development of
construction progresses in a smooth and efficient manner in conformance with the overall
Project Schedule.
2.7.3.1. No less often than once each month, Construction Manager shall update and distribute
the Project Schedule and Construction Schedule, both of which must incorporate its
activities and those of all Subcontractors, including processing of Shop Drawings and
similar required submittals and delivery of products requiring long lead time procurement
and showing current conditions and revisions required by actual experience.
Construction Manager shall include in the Construction Schedule the submission of the
GMP proposal; all phases and components of the Work; long lead procurement,
approval of Shop Drawings; times of commencement and completion required of each
Subcontractor;ordering and delivery of products and materials,including those that must
be ordered well in advance of construction; Change Orders in progress; schedules for
Change Orders; performance testing requirements, and Project occupancy
requirements, showing portions of the Project having occupancy priority. Construction
Manager shall use reasonable care and all necessary efforts to cause the progress of
all Work to be maintained in accordance with the Project Schedule and Construction
Schedule.
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Draft Contract No.23-461-01
2.7.3.2. The Construction Manager shall review each Subcontractor's construction schedule and
conformance with applicable Contract Documents and ensure that established
completion dates will comply with overall Project Schedule requirements. Construction
Manager shall obtain input and/or recommendations from key Subcontractors with
respect to activity which may facilitate the achievement of the Milestones and Project
Schedule. The Construction Manager shall review the progress of construction of each
Subcontractor on a weekly basis, evaluate the percentage completion and compare
actual progress to schedule, and determine and implement alternative courses of action
that may be necessary to achieve timely and complete contract compliance by the
Subcontractor. The Construction Manager shall determine the effect on schedules of
requested time extensions and require recovery schedules from Subcontractors as
needed.
2.7.4. Solicitation of Bids. Without assuming responsibilities of the Architect-Engineer (except for
Delegated Design Work,as applicable),the Construction Manager shall prepare invitations for
bids, or requests for proposal when applicable, as well as all contract documents for all
procurements of long lead items, materials and services,site utilities, and for all Subcontractor
contracts. Construction Manager shall solicit bids and award subcontracts in accordance with
the requirements of Article 4 of this Agreement.
2.7.5. Quality Control. In accordance with the requirements of Appendix G, the Construction
Manager shall be responsible and accountable for the quality control of the Work including
quality control testing and inspection. The Construction Manager shall supervise the Work of
all Subcontractors, reviewing construction means, methods, techniques, sequences and
procedures, providing instructions to each when their Work does not conform to the
requirements of the Contract Documents. The Construction Manager shall continue to exert
its influence and control over each Subcontractor to ensure that corrections are made in a
timely manner so as to not affect the efficient progress of the Work.The Construction Manager
shall receive copies of all claims or reports issued by the Architect-Engineers' Field
Representative relative to the performance or acceptability of Work. Should disagreement
occur between the Construction Manager and either the City or the Architect-Engineer over
acceptability of Work and its conformance with the requirements of the Construction
Documents of the Project, the Contract Administrator shall be the final judge of performance
and acceptability, and noncompliant Work shall be corrected accordingly. The City may
employ independent firm(s) for verification testing of the quality control testing. Construction
Manager shall be responsible for payment of expenses for additional third-party testing
resulting from non-conforming Work, at its sole cost and expense.The Construction Manager
will exercise reasonable care and diligence in discovering and promptly reporting to City any
defects or deficiencies in the Work and no later than three (3) business days following
discovery thereof.The Construction Manager shall establish Project Schedule and Milestones
and review the progress schedules submitted by Subcontractors in order to ensure proper
completion of Work.
2.7.6. Subcontractor Interfacing.The Construction Manager shall be the single point of interface with
all of its Subcontractors and Suppliers, and shall manage the Project and be fully responsible
for coordinating all Work of each Subcontractor to ensure all of the Work is performed in a
timely, efficient and economical manner and in accordance with the Contract Documents.
There is no requirement that City or any of its agents or representatives,including the Architect-
Engineer, interface with such Subcontractors and Suppliers. The Construction Manager shall
negotiate all Change Orders with all affected Subcontractors.The Construction Manager shall
review the costs of those proposals and advise the City and Architect-Engineer of their validity
and reasonableness, acting in the City's best interest prior to requesting approval of each
Change Order from the City. Before any Work is begun on any Change Order, a written
authorization from the City must be issued. However,when health and safety are threatened,
the Construction Manager shall act immediately to remove the threat to health and safety.The
Construction Manager shall also carefully review all Shop Drawings and then transmit the
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Draft Contract No.23-461-01
same to the Architect-Engineer for review and action. Construction Manager shall also be
responsible for coordination of Shop Drawings affecting multiple trades prior to submission to
the Architect-Engineer. The Architect-Engineer will transmit them back to the Construction
Manager who will then issue the Shop Drawings to the affected Subcontractor for fabrication
or revision. The Construction Manager shall request the Architect-Engineer to make
interpretations of the Construction Documents requested by the Subcontractors via submission
of a Request for Information form. The Construction Manager shall maintain a document
control/correspondence log system to promote expeditious handling of all submittals and
Requests for Information. The Construction Manager shall advise Project Coordinator and
Architect-Engineer when timely response is not occurring on any of the above.
2.7.7. Means and Methods. Construction Manager shall be solely responsible for construction
means,methods,techniques,sequence and procedures used in the construction of the Project
and for the safety of its personnel, property, and its operations for performing in accordance
with the Contract Documents.
2.7.8. General Coordination. In addition to its responsibility for coordinating the Work of all
Subcontractors, Construction Manager shall coordinate the Work with all authorities having
jurisdiction over the Project and utility companies that may be involved in the Project.
Construction Manager shall arrange for delivery, storage, protection and security for all
materials and equipment until the materials are incorporated as part of the Work and final
acceptance is received from the Architect-Engineer. Construction Manager shall file all notices
of commencement and all other filings required to be made for the Project.
2.7.9. Coordination with Adjacent Work. The Construction Manager shall coordinate with any other
contracts or assigned work City may issue directly for the Project, and for any work adjacent
to or interfacing with the Project.
2.7.10. Permits and Applicable Laws. Construction Manager shall comply, and shall cause for its
Subcontractors,Vendors and Suppliers to comply,with all existing and future Applicable Laws
relating to the Project Site,the Project and the prosecution of the Work;shall obtain all requisite
local, State and Federal licenses to perform the Work including, without limitation, all
professional licenses mandated by the State of Florida to perform the Work; shall timely
prepare and file all documents required to obtain the necessary approvals of governmental
authorities having jurisdiction over the Work, the Project Site and/or the Project; and shall
secure and pay for all building and other permits(and conditions or requirements thereof)and
governmental fees,licenses,approvals,temporary Certificates of Occupancy or Certificates of
Completion(and conditions or requirements thereof), Certificates of Occupancy or completion
and inspections necessary for the proper execution of the Work and completion of the Project.
The Construction Manager shall be responsible for providing all logs, inspections,
documentation, record keeping, maintenance, remedial actions, and repairs required by
Applicable Laws and/or permits including,without limitation,those relating to National Pollutant
Discharge Elimination Systems(NPDES)requirements.
2.7.10.1. The Construction Manager shall coordinate with the Architect-Engineer regarding
the submittal of all required documents for permits. The Construction Manager shall
be responsible for securing all applicable/necessary building permits, utility
connection permits, Public Works Department right-of-way permits, DERM permits
and any other permits for permanent improvements from applicable permitting
authorities, except for permits required to be obtained directly by Subcontractors or
the City, and provided, however, that Construction Manager cannot guarantee
approval of permits from agencies having jurisdiction.
2.7.10.2. Construction Manager shall coordinate the permitting process and verify that the
general building permit and all trade permits have been obtained. Construction
Manager shall develop a matrix (in a form approved by the Project Coordinator)
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Draft Contract No.23-461-01
showing required permits,the party responsible to obtain each permit, the status of
each permit, and the target application dates and dates by which permits must be
issued. Construction Manager shall assist the City and Architect-Engineer in
connection with the City's responsibility for filing documents required for the
approvals of government entities having jurisdiction over the Project. Unless
otherwise approved by the City at its sole discretion, City's issuance of a Notice to
Proceed for the Construction Phase or portions thereof shall be contingent upon
Construction Manager's obtaining all appropriate permits and satisfying all
requirements of agencies having jurisdiction and the Contract Documents.
2.7.10.3. The Contract Price includes the cost of compliance with all Applicable Laws in effect
as of the Effective Date of this Agreement in order to carry out the Work. In the
event that after the date hereof there shall be a material change in any Applicable
Laws relating to the Work that impact the Contract Time or Contract Price, the
Project Site and/or the Project, and if as a result of any such change, the
Construction Manager shall be required to incur additional costs in performing the
Work in order to be in compliance therewith, then to the extent that any such
change gives rise to a demonstrable increase in the time required to complete the
Work and/or in the cost of completing the affected portion(s) of the Work, as
evidenced by documentation reasonably acceptable to the City,the Construction
Manager shall be entitled to an equitable adjustment in the Project Schedule
and/or the Contract Price, as applicable, in accordance with the procedures set
forth in Article 11 hereof. Notwithstanding the foregoing or anything to the contrary
in this Agreement,the Construction Manager shall not be entitled to an extension
of the Substantial Completion Date, the Project Schedule, or an increase to the
Contract Price in connection with any change or modification to any applicable
building code, to the extent that such change or amendment to the applicable
building code, as applicable to the Project, is enacted prior to the date the
Construction Manager is issued the permit to construct the Project.
2.7.11. NOT USED
2.7.12. Submittals. Construction Manager shall prepare for review and approval a comprehensive
schedule for Submittals(to include Shop Drawings, product data, physical samples and other
written or graphic information required by the Contract Documents) indicating all anticipated
submittals and anticipated timing of submission. The Construction Manager shall receive from
each Subcontractor such Shop Drawings, product data, samples, as-built drawings and other
submittals as set forth in a submittal schedule agreed to by the Parties, and shall thoroughly
review and approve same for conformance with the Contract Documents, and/or take other
appropriate action and then submit to Architect-Engineer. Construction Manager shall stamp
or take such other appropriate action with respect to all Shop Drawings, product data,samples
and other submittals to verify the review, approval for conformance with the Contract
Documents or other action thereon, and in the case of Shop Drawings, shall also review and
coordinate the shop drawing to indicate field conditions, proposed Subcontractor deviations
from the Contract Documents, and other requirements that affect design intent. Construction
Manager shall transmit to Architect-Engineer all submittals recommended for approval in
accordance with the Contract Documents. Construction Manager's stamp shall constitute its
verification that, to the best of the Construction Manager's knowledge and belief based on its
review,the submitted item conforms to the Contract Documents and is coordinated with other
related Work. In collaboration with Architect-Engineer and the Project Coordinator,
Construction Manager shall establish and implement procedures for expediting the processing
and approval of Shop Drawings, product data, samples and other submittals.
2.7.13. Safety and Security Program. The Construction Manager shall be solely responsible for
initiating, maintaining and providing supervision of safety precautions and programs in
connection with the Work, and shall also comply with any and all insurance carrier-
27
Draft Contract No.23-461-01
mandated safety requirements and programs. The Construction Manager shall designate a
staff member as the Project safety officer who shall oversee job safety and accident prevention
for the Construction Manager.This individual shall review the proposed safety program of each
Subcontractor and make appropriate recommendations. The Construction Manager shall
conduct a review of job safety and accident prevention at its progress meetings with
Subcontractors. The performance of such services by the Construction Manager shall not
relieve the Subcontractors of their responsibilities for the safety of persons and property, and
for compliance with all Applicable Laws relating to the conduct of the Work.
2.7.13.1. Construction Manager shall take any and all precautions that may be reasonably
necessary to render all portions of the Work,the Project Site and any adjacent areas
affected by the Work secure in every material respect,to decrease the likelihood of
accidents from any cause, and to avoid vandalism and other contingencies which
may delay the Work or give rise to any Claims or liabilities.
2.7.13.2. Construction Manager shall ensure all necessary facilities are furnished and
installed to provide safe means of access to all points where Work is being
performed, and shall take all precautions and measures as may be reasonably
necessary to secure areas of the Project where Work is being performed at all hours,
including evenings, holidays and non-work hours.
2.7.14. Inspection Coordination. The Construction Manager shall coordinate all technical inspection
and testing provided by professionals designated by the City, Project Coordinator, permitting
authorities, and others. The Construction Manager shall also schedule the services of
independent testing laboratories and provide the necessary testing of materials to ensure
conformance to the Contract Documents and provide a copy of all inspection and testing
reports to the Project Coordinator on the day of inspection or test.The Construction Manager
shall provide reasonable prior notice to appropriate inspectors before the Work is covered up,
but in no event less than 24 hours before the Work is covered up. All costs for uncovering
Work not inspected and any reconstruction due to lack of reasonable prior notice shall be borne
by Construction Manager at its sole cost and expense. Any time billed by inspectors for
inspection where the Work is not ready to be inspected shall be at Construction Manager's
sole cost and expense. If any members of the Project Team are to observe said inspections,
tests or approvals required by the Contract Documents, they shall be notified in writing by the
Construction Manager of the dates and times of the inspections,tests or other approvals.The
Construction Manager shall schedule,direct and/or review the services of or the reports and/or
findings of surveyors, environmental consultants and testing and inspection agents engaged
by the City. All Materials and Equipment furnished by Construction Manager and Work
performed by Construction Manager shall at all times be subject to inspection and testing by City
or inspectors or representatives appointed by City. Whenever requested,Construction Manager
shall give the Project Coordinator and any inspectors or representatives appointed by the City
free access to its Work during normal working hours either at the Jobsite or its shops,factories,
or places of business of Construction Manager and its Subcontractors and suppliers for properly
inspecting materials, equipment and Work, and shall furnish them with full information as to the
progress of the Work in its various parts. If any of the Work should be covered up without
approval or consent of City's Project Coordinator, or without necessary test and inspection,
Construction Manager shall, if required by City's Project Coordinator or by public authorities,
uncover such Work for examination and testing, and shall re-cover same at Construction
Manager's expense.
2.7.15. Availability of Proiect Site. Use of the Project Site or any other City-owned right-of-way for the
purpose of storage of equipment or materials, lay-down facilities, pre-cast material fabrication,
batch plants for the production of asphalt, concrete or other construction-related materials, or
other similar activities, shall require advance written approval by the Contract Administrator.
The City may, at any time, in its sole and absolute discretion, revoke or rescind such approval
for any reason. Upon notice of such rescission, Construction Manager shall, within twenty-
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Draft Contract No.23-461-01
four(24)hours,remove and relocate any such materials and equipment to a suitable,approved
location. Notwithstanding any other provision in the Contract Documents to the contrary, the
conditions or requirements of right-of-way permits established by the authorities having
jurisdiction including, without limitation any regulatory authorities of the City, shall take
precedence over any provision in the Contract Documents that may provide any right
whatsoever to use of the Project Site for staging, material and equipment storage, lay-down or
other similar activities.
2.7.16. Notice to Proceed with Construction Phase Work. City's issuance of a Notice to Proceed for
any portion of the Work shall be contingent upon Construction Manager's advance submission
of a Project Schedule in compliance with the Contract Documents; a utility coordination
schedule (including schedule for utility relocations); preliminary schedule of Show Drawing
submission; a preliminary Schedule of Values in sufficient detail to serve as the basis for
progress payments during construction of the Work or portion thereof(including an appropriate
amount of overhead and profit applicable to the Work); and all permits required by authorities
having jurisdiction, unless otherwise provided by the Contract Documents.
2.7.17. Construction Administration. Construction Manager shall provide, as part of its Construction
Phase General Conditions Fee set forth in Subsection 7.1.2, comprehensive construction
management and administrative functions during construction to assure proper supervision,
coordination and documentation, including the following responsibilities:
2.7.17.1. Supervision of Work. Construction Manager shall provide full-time representation at
the Project Site and shall be responsible for the progress and quality of the Work
completed,to determine in detail if the Work is proceeding in accordance with all the
requirements of the Contract Documents, to ensure compliance with the
Construction Documents, coordination with other Work, and to ensure compliance
with all Applicable Laws.
2.7.17.2. Daily Logs. Construction Manager shall maintain a log of daily activities for the
Project including, at a minimum, the following information: the day, date, weather
conditions and how any weather condition affected the progress of the Work; time
of commencement of work for the day; number of workers delineated by
Subcontractor and trade; all Work accomplished; problems encountered; material
and equipment deliveries made to and received at the Project Site and other similar
relevant data as the City may require; visitors to the Project Site including
representatives of City and Architect-Engineer; any special or unusual conditions or
occurrences encountered; and the time of termination of work for the day. The log
and database shall be available to the City, the Architect-Engineer, and the
inspectors upon request.
2.7.17.3. Proiect Rosters. Construction Manager shall maintain for the Project a roster of
companies on the Project with names and telephone numbers of key personnel,and
provide a means of identifying workers on-site.
2.7.17.4. Job Meetings. Construction Manager shall hold weekly progress and coordination
meetings with the Project Manager to provide for an easy flowing Project and orderly
progress of the Work, including implementation of procedures, scheduling, and to
assure timely submittals and expeditious processing of approvals and return of Shop
Drawings, samples, and address other Project issues or problems in a timely
fashion. Construction Manager shall prepare and distribute for discussion at each
meeting a 3 Week look-ahead schedule.
2.7.17.5. Proiect Team Meetings. The Construction Manager, Project Coordinator, and
Architect-Engineer and any other authorized representatives of the City shall meet
regularly as the progress of the Project requires, but in no case less than every two
29
Draft Contract No.23-461-01
weeks for the Project,to review and agree upon the Work performed to date and to
establish the controlling items of Work for the next two weeks.
2.7.17.6. Shop Drawings Submittals/Approvals. Construction Manager shall work with the
Project Team to establish and implement procedures for expediting and processing
all Shop Drawings, samples, submittals and detail plans/drawings, and other
documents, maximizing the use of electronic plan media to the greatest extent
possible for submittal and transmittal to the Architect-Engineer of such plans for
action, and closely monitor their submittal and approval process. The Construction
Manager shall be responsible for the initial review and appropriate circulation of
submittals.
2.7.17.7. Material and Equipment Expediting. Construction Manager shall closely monitor
material and equipment deliveries, critically important checking and follow-up
procedures on supplier commitments of all Subcontractors.
2.7.17.8. Payments to Subcontractors. Construction Manager shall review and process
invoices from Subcontractors and Suppliers.
2.7.17.9. Document Interpretation. Construction Manager shall refer all questions for
interpretation of the documents prepared by the Architect-Engineer to the Architect-
Engineer.
2.7.17.10.Reports and Project Site Documents. Construction Manager shall record the
progress of the Project as required by this Agreement, as well as directed by the
Project Coordinator. Submit written progress reports to the City and the Architect-
Engineer including information on the Subcontractor's Work, and the percentage of
completion. Construction Manager shall keep a daily log available to the City, the
Architect-Engineer and the permitting authority inspectors.
2.7.17.11.Subcontractors'Punch List.Construction Manager shall prepare periodic punch lists
for each Subcontractor's Work, including unsatisfactory or incomplete items and
schedules for their completion, and including comments and items provided by
Architect-Engineer,the RPR and the City.
2.7.17.12.Signage. Construction Manager shall arrange for all appropriate Project signage
necessary for identification,direction,or control for safety and maintenance of traffic.
The layout and location of all signage must be approved by the Project Coordinator,
and the signage shall be prepared by a professional sign maker.
2.7.17.13.. NOT USED.
2.7.17.14. Cleaning. During the performance of the Work, the Construction Manager shall
at all times, as part of the stipulated Contract Price, keep the Project Site and
adjacent streets, properties and sidewalks free from waste materials, debris
and/or rubbish, and shall employ adequate dust control measures. If
accumulation of such materials, debris, rubbish,or dust constitutes a nuisance
or safety hazard or is otherwise objectionable in any way as reasonably
determined by the City, the Construction Manager shall promptly remove the
same at its sole cost and expense.
a. The Construction Manager shall use its best efforts to assure that no burning
of trash, debris or roofing bitumen containers by the Construction Manager or
its Subcontractors occurs on the Project Site and that no dust or trash from
Work in progress creates a public nuisance. In the event of any such
occurrence, the Construction Manager shall promptly cause the abatement
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Draft Contract No.23-461-01
thereof. The Construction Manager shall remove all spillage and tracking
arising from the performance of the Work from streets and sidewalks around
the Project Site, and shall establish a regular maintenance program of
sweeping and hosing to minimize accumulation of dirt and dust upon such
areas. If the Construction Manager fails, promptly after written notice from the
City, to keep the Project Site and the surrounding properties clean, the City
may thereafter perform any such cleaning services and deduct the cost of
those services from amounts otherwise payable to the Construction Manager
under this Agreement. No assumption by the City of such cleaning services
shall waive any future obligation of Construction Manager to perform said
services. Further, the City's deduction of the costs of those services from
amounts otherwise payable to Construction Manager under the Agreement
shall not constitute a waiver of the City's right to place Construction Manager
in Default for such noncompliance.
b. Upon Substantial Completion of the Work, or any portion or component thereof
acceptable to the City, the Construction Manager (i) shall remove from the
Project Site, or applicable portion thereof, all tools, construction equipment,
machinery, surplus materials, waste materials and rubbish, and (ii) shall leave
the Project Site, or applicable portion thereof, in a thoroughly clean condition,
and perform any other cleaning services described in Division 1 of the Project
Specifications. The Construction Manager shall re-perform any such services
after the Substantial Completion Date to the extent the same is necessary or
appropriate due to any Work performed by the Construction Manager after such
date.
c. All Work shall be cleaned using only specific materials recommended for the
surfaces to be cleaned. Damage to any surfaces due to improper cleaning
methods or materials used by the Construction Manager or its Subcontractors
shall be repaired and replaced.by the Construction Manager at its sole cost.
2.7.17.15.Protection of Persons and Property. Construction Manager has sole responsibility
for safety at the Project Site. The Construction Manager shall take reasonable
precautions for the safety of, and shall provide reasonable protection to prevent
damage, injury or loss to a) persons performing the Work and other persons who
may be affected thereby; b) the Work and materials, fixtures and equipment to be
incorporated therein; and c) other property used in connection with the Work,
whether or not located at or adjacent to the Project Site. Only such materials and
equipment as are reasonably necessary or appropriate for the Work under this
Agreement shall be placed or stored at the Project Site. If gasoline, flammable oils
or other highly combustible materials are to be stored at the Project Site, they shall
be stored in safety containers and placed in clearly marked safe areas.
2.7.17.16.Severe Weather/Storm and Hurricane Preparedness. Construction Manager shall
submit to the City a Hurricane Preparedness Plan (HPP) within thirty (30) days
following the Notice to Proceed. The HPP shall include the measures to be taken by
the Construction Manager in case of a threatened tropical storm or hurricane. During
such periods of time as are designated by the United States Weather Bureau as being
a tropical storm/hurricane warning or alert, or at such other time deemed necessary
by the City's Contract Administrator, the Construction Manager shall implement the
HPP to secure the Project Site in response to all threatened storm events,regardless
of whether the City or Architect-Engineer has given notice of same. Failure of the City
to direct the Construction Manager to implement the HPP shall not relieve the
Construction Manager for sole responsibility for implementation of the HPP. Any
damage to materials and equipment resulting from Construction Manager's failure to
implement the HPP shall be removed and replaced at no cost to the City. The costs
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Draft Contract No.23-461-01
for additional Work relating to hurricane warning or alert at the Project Site will be
charged to the Construction Manager's Contingency. Construction Manager's sole
remedy for any delay or suspension of the Work resulting from severe weather shall
be as provided for Force Majeure events in Section 9.8. In no event shall Construction
Manager be entitled to damages for any such delay.
2.7.17.17.LEED Initiatives. Construction Manager shall implement the agreed-upon
sustainability or"green"initiatives approved by the City for the Project. Construction
Manager shall implement any LEED certification that may be required by Applicable
Laws.
2.7.17.18.Presentations. Construction Manager shall participate and assist in the preparation
of materials for meetings of the City Commission, relevant sub-committees,and any
other groups required.
2.7.17.19.Coordination with Businesses Located Within the Project Site. Construction
Manager shall meet with the representatives of stakeholders or businesses located
within the Project Site on a regular basis, and/or upon City's request, to discuss
construction activities and impacts to affected properties and tenants.
2.7.17.20.Defective or Non-Conforming Work.Construction Manager shall correct all defective
Work or Work that fails to conform to the Contract Documents, or remove such
defective or non-conforming Work and replace it with non-defective and conforming
Work no later than thirty(30)days following notice thereof by the Architect-Engineer or
City's Project Coordinator, each of whom shall have the authority to reject or
disapprove Work which Architect-Engineer finds to be defective or as failing to
conform to the Contract Documents,whether observed before or after Substantial
Completion and whether or not fabricated, installed or completed. Construction
Manager shall bear all direct and indirect costs of such removal or corrections
including cost of testing laboratories and personnel, at its sole cost and expense
and without any reimbursement whatsoever from the City and shall not be
reimbursable as a Cost of the Project except as set forth in Section 8.2. . Nothing
in the foregoing shall preclude the Construction Manager from paying such costs and
expenses from any insurance proceeds received by the Construction Manager under
the insurance maintained under the Contract Documents.
a. The Construction Manager further agrees that after being notified in writing by
the City's Project Coordinator or Architect-Engineer of any Work not in
accordance with the requirements of the Contract Documents or any defects
in the Work, the Construction Manager will commence and prosecute with
due diligence all Work necessary to fulfill the terms of the Contract Documents
and to complete the Work within a reasonable period of time, as determined by
the City's Project Coordinator or Architect-Engineer, and in the event of failure to
so comply, the Construction Manager does hereby authorize the City to
proceed to have such Work done at the Construction Manager's sole cost and
expense and Construction Manager shall pay the cost thereof upon demand.
Notwithstanding the foregoing paragraph, in the event of an emergency
constituting an immediate hazard to the health or safety of personnel,
property, or licensees, the City may undertake, at the Construction Manager's
expense, without prior notice, all actions necessary to correct such hazardous
condition when it was caused by Work of the Construction Manager not being
in accordance with the requirements of the Contract Documents.
b. In no event shall the failure of the City or the Architect-Engineer to bring to the
attention of the Construction Manager such faults act as a waiver or release the
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Draft Contract No.23-461-01
• Construction Manager from responsibility or liability for such fault, defect or non-
conforming Work.
2.7.17.21.Chanae Order Administration. Construction Manager shall administer Change
Orders in conjunction with the Project Coordinator regarding revised plans or
sketches as prepared by the Architect for items of extra work or changes of scope
(as required), review each requested change in the Work or directed extra work to
compare with the prices quoted by the Subcontractors. With approval of City,
Construction Manager shall conduct negotiations with Subcontractors and develop
Change Orders to incorporate the changes or extra work into the subcontracts and
process each Change Order through the respective Subcontractor and submit to
City for approval. The Construction Manager shall evaluate the scope of
Subcontractor's proposal with respect to the proposed Change Orders and
substitutions proposed by the Subcontractor and shall make recommendations to
City. City shall have the option to reject proposed Change Orders and substitutions.
Any Work performed under a proposed Change Order issued without prior City
approval shall be subject to removal and replacement at the Construction Manager's
sole cost and expense, should City subsequently object thereto. The Construction
Manager shall have no authority to authorize changes in Contract Documents of any
kind or to modify any deadlines for completion of Work specified in the Contract
Documents.
2.7.17.22.Administration of Claims. Construction Manager shall administer claims from
Subcontractors and suppliers as to their validity under the terms of the subcontracts.
Upon being advised of any proposed Change Order,the Construction Manager shall
submit to the Project Team the estimated cost of, or savings attributable to, such
proposed Change Order and the estimated impact thereof on the Project Schedule.
No Change Order shall be effective until the Construction Manager receives
approvals in writing from City.Upon receipt of such approval from City and execution
by the applicable Subcontractors, such Change Order shall become a part of the
Contract Documents, and the Construction Manager shall promptly cause the
performance of the Work so changed to proceed. In the event a Change Order
necessitates a change in the Project Schedule,such schedule and associated costs
shall be changed by a reasonable amount, subject to the provisions of Article 9.
Agreement on any Change Order shall constitute a final settlement on all items
covered therein, subject to performance thereof and payment therefore pursuant to
the terms of this Agreement.
2.7.17.23.Dispute Resolution. Construction Manager shall resolve all disputes that may arise
with or between Subcontractors and/or Suppliers as a result of the construction.
2.7.17.24.Substitution of Material. If a Subcontractor recommends or proposes substitution of
material or other changes in the Work from the material or Work specified in the
Construction Documents after bids and/or proposals for that Work have been
received, evaluated and awarded,the Construction Manager, subject to the Project
Coordinator's and Architect-Engineer's review and approval, shall evaluate such
proposal and make a recommendation to the Project Team. If approved by the
Project Coordinator,the Construction Manager shall process a Change Order.
2.7.17.25.Substantial Completion. Construction Manager shall ascertain when the Work or
designated portions thereof are ready for the Architect-Engineer's substantial
completion inspection. From the Architect-Engineer's list of incomplete or
unsatisfactory items, prepare a schedule for completion of such items, indicating
proposed completion dates for the City's review.
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Draft Contract No.23-461-01
2.7.17.26.Record Plans/Drawings. During the progress of the Work,the Construction Manager
shall require Subcontractors to record on their field sets of plans the exact locations,
as installed, of the progress of the Work. Construction Manager shall also record all
plan revisions that have been authorized by Change Order. Accurate dimensional
locations for all items shall be recorded.Each plan shall be noted"As Built"and shall
bear the date and name of the Subcontractors that performed the Work. Where the
Work was installed exactly as shown on the contract plans the sheets shall not be
disturbed except as noted above.
2.7.17.27.Off-Site Parking. Construction Manager acknowledges and agrees that there will be
no labor parking available at the Project Site, and shall comply with all Applicable
Laws with respect to parking for construction laborers.
2.7.17.28.Public Information Officer. Construction Manager shall cooperate with the City's
Public Information Officer to coordinate the public information component of the
Work,and as part thereof,Construction Manager shall provide the City with relevant
information it may require for the drafting of public involvement plans for the Project;
and shall identify potential impacts to the public as a result of the prosecution of the
Work. All releases of public information with respect to the Project shall require
approval by the City.
2.7.17.29.Location of Utilities. Construction Manager shall schedule the Work in such a
manner so that the Work is not delayed by utility providers relocating or supporting
their utilities. Prior to the commencement of construction of any portion of the Work,
Construction Manager shall be solely responsible for arranging for positive
underground location, relocation or support of any utility that may be in conflict with
or endangered by the proposed Work. Relocation of water mains or other utilities
for the convenience of the Construction Manager shall be paid by the Construction •
Manager. All charges by utility companies for temporary support of its utilities shall
be paid for by the Construction Manager . For the avoidance of doubt, if relocation
of a water main or other utility is required as a result of an Unforeseen Site Condition,
the Construction Manager may avail itself of the procedure specified in Section 9.2.
All costs of permanent utility relocation to avoid conflict shall be the responsibility of
the utility company involved. It shall be the Construction Manager's sole
responsibility to coordinate with such utilities, including arranging for payment, if
applicable. The City shall not be obligated in any way to assist in such coordination
and,to the extent the City does attempt to assist or facilitate such coordination with
utilities, it shall not in any way be construed or interpreted as the City's assumption
of such responsibility which shall remain solely with the Construction Manager.
Construction Manager shall coordinate its activities with any and all public and
private utility providers occupying the right-of-way. The Construction Manager shall
not be entitled to rely on as accurate any information and/or documentation provided
by the City which may identify locations of any utilities. Construction Manager shall
independently use diligent good-faith efforts to determine the proper identification
and location of all utilities, services, and other underground facilities which may
impact the Project.
2.7.18. Art in Public Places ("AIPP") Coordination. Construction Manager shall coordinate the
implementation of the City's AIPP commissions and installations for the Project, with all such
coordination Work covered within the GMP, provided, however,that the City shall separately
fund the commissioning of all AIPP artworks.
2.8. Post-Construction.
In addition to any other services to be performed during the Construction Phase,as may be specified
34
Draft Contract No.23-461-01
elsewhere in this Agreement, the Construction Manager shall perform the following Post-
Construction Phase services:
2.8.1. Final Completion.Construction Manager shall monitor the Subcontractor's performance on the
completion of this Project and provide notice to the City and Architect-Engineer that the Work
is ready for final inspection.
2.8.2. Commissioning. Construction Manager shall prepare an operation and maintenance schedule
manual for building systems and equipment which shall include the following: (i) all operation
and maintenance manuals provided by the Subcontractors; (ii)a complete listing of all vendors
and material suppliers (firm name, address, telephone number and contact person for each
such vendor and material supplier) cross referenced to the Subcontractor responsible for
procurement of the particular item purchased from each such vendor and material supplier;
and (iii) a complete description of all safety precautions to be observed during routine or
emergency maintenance. Deliver operating and maintenance manuals for building systems
and equipment to Architect-Engineer.
2.8.3. Warranties. Construction Manager shall secure from the entities required to provide such
documents and transmit to the City required warranties, guarantees, affidavits, releases,
bonds, waivers and other documentation required by the Contract Documents, in duplicate,
bound and indexed by Construction Manager.
2.8.4. Start-Up.With the Project Coordinator,coordinate,schedule and observe operational systems
and equipment for readiness and shall assist in their initial start-up, personnel training and
testing. Construction Manager shall collect and deliver to the City all keys, manuals, record
drawings and operating and maintenance books.
2.8.5. Record Plans/Drawings. The Construction Manager shall review the completed as-Built plans
submitted by Subcontractors and ascertain that all data on all as-built plans submitted to the
City are accurate and truly represent the Work as actually installed. When manholes, boxes,
underground conduits, plumbing, hot or chilled water lines, inverts, etc. are involved as part of
the Work, the Construction Manager shall furnish true elevations and locations, all properly
referenced by using the original bench mark used for the institution or for this Project.
2.8.6. NOT USED.
2.8.7. NOT USED.
2.8.8. Training. The Construction Manager shall catalog operational and maintenance requirements
of equipment to be operated by maintenance personnel and convey these to the City in such
a manner as to promote their usability. The Construction Manager shall provide operational
training in equipment use(with a video record of such training sessions)for building operators
and all appropriate personnel employed by the City or the City's agents in the installation,
maintenance, calibrations, and routine care of all equipment and systems provided and
installed as part of the Work.
2.8.8.1. Separate training sessions shall be conducted for equipment/system operation and
maintenance except when combining of these two(2)subjects is specifically allowed
by the City. The Construction Manager shall provide qualified, prepared instructors
for all training plus all necessary material and equipment(training aids, audio visual
equipment, seating, tables, etc.). The Construction Manager shall provide factory-
level maintenance training in system problem identification and resolution. This
training should be aimed at providing the City with means to perform all corrective,
scheduled and preventative maintenance.
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Draft Contract No.23-461-01
2.8.8.2. All training shall be conducted on the Project Site or, if conducted at a remote
location,travel and expenses for City's personnel shall be reimbursed to the City by
the Construction Manager. Training shall be conducted prior to Final Completion of
the Project.
2.8.8.3. For each training session,the Construction Manager shall submit a training plan for
review.The plans shall include proposed dates/times/durations of training sessions,
suggested class size/attendees, proposed locations, session objectives and an
outline of the training topics to be presented.Training plans for all training sessions
shall be submitted not later than the date set forth in the Project Schedule.The City
shall have the right to modify proposed training dates in conjunction with the
Construction Manager to coordinate the schedule with availability of personnel and
ongoing operations.
2.8.9. Warranty. Unless otherwise agreed to by the City and Construction Manager,the Construction
Manager warrants on block by block partial substantial completion basis that all materials and
equipment included in the Work will be new except where indicated otherwise in Contract
Documents, and that such Work will be of good quality,free from improper workmanship and
defective materials and in conformance with the Contract Documents and that such Work will
provide proper and continuous service under all conditions of service required by,specified in,
or which may be reasonably inferred from the Contract Documents.With respect to the same
Work, the Construction Manager further agrees to correct all Work found by the City to be
defective in material and workmanship or not in conformance with the Contract Documents for
a period of one year from the Substantial Completion Date or for such longer periods of time
as may be set forth with respect to specific warranties contained in the trade sections of the
Specifications or other Construction Documents, as well as any damage to the Work resulting
from defective design, materials, equipment, or workmanship which develop during
construction or during the Warranty Period. The Construction Manager only has design
responsibility for Shop Drawings and other Construction Manager-initiated designs such as
subcontracted Delegated Design Work. The Construction Manager shall collect and deliver to
the City any specific written warranties given by Subcontractors or others as required by the
Contract Documents(and such warranties shall be in addition to,and not substitutes for,those
warranties mandated to be obtained pursuant to the Contract Documents.All such warranties
shall commence upon Substantial Completion or such other dates as provided for in the
Contract Documents, or unless the warranted Work is not completed or has been rejected, in
which case the warranty for the Work shall commence on the completion or acceptance of the
Work.
2.8.9.1. Any repair or replacements done under this Warranty shall comply with the
requirements of the Contract Documents and shall be verified by the performance
of Construction Manager testing as City may require. All costs incidental to such
repair, replacement, and testing, including the removal, replacement, and
reinstallation of equipment and materials necessary to gain access, shall be borne
by Construction Manager. Construction Manager warrants such repaired or
replaced Work against defective design, materials,and workmanship for a period of
twelve (12) months from and after substantial completion of the Project or twelve
(12) months from the time of such repair or replacement, whichever occurs latest.
The Construction Manager only has redesign responsibility for Shop Drawings and
other Construction Manager-initiated designs. Should Construction Manager fail to
promptly make the necessary redesign, repair, replacement, and tests within thirty
(30) days following notice thereof by the City, City may perform or cause to be
performed the same at Construction Manager's expense. Construction Manager
shall reimburse the expense incurred by City for such remedial Work within thirty
(30) days from the date of receipt of City's invoice therefore. Construction Manager
shall be liable for the satisfaction and full performance of the warranties as set forth
herein.
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2.8.9.2. If required by Architect-Engineer, Construction Manager shall furnish satisfactory
evidence as to the kind and quality of materials and equipment. This warranty is
not limited by any other provisions within the Contract Documents.
2.8.9.3. Written warranties furnished to the City are in addition to implied warranties, and
shall not limit the duties,obligations,rights and remedies otherwise available under
Applicable Laws or the Contract Documents. The Construction Manager shall also
furnish any special guarantee or warranty called for in the Contract Documents.
To the extent there is any conflict as to the applicable time period of coverage for
any guarantee or warranty to be provided by the Construction Manager under the
Contract Documents,the longer period of time for any such guarantee or warranty
shall govern.
2.8.9.4. The Construction Manager shall secure,assemble and deliver required guarantees
and warranties to the City in a manner that will facilitate their maximum
enforcement and assure their meaningful implementation.
2.8.9.5. To the extent there is any conflict as to the applicable time period of coverage for
any guarantee or warranty to be provided by the Construction Manager under the
Contract Documents,the longer period of time for any such guarantee or warranty
shall govern, without regard to any guarantees or warranties provided by
Subcontractors. Construction Manager shall provide the guarantees and
warranties required by the Contract Documents, without regard to whether the
Subcontractors or Suppliers provided the guarantees and warranties.
2.8.9.6. The Construction Manager shall have primary liability with respect to the warranties
set forth in the Contract Documents,whether or not any defect,deficiency or other
matter is also covered by a warranty of a Subcontractor, Vendor or Supplier, and
the City need only look to the Construction Manager for corrective action
replacement or reimbursement. In addition thereto, the Construction Manager's
warranties expressed herein shall not be restricted in any manner by any warranty
of a Subcontractor or other third party, and the refusal of a Subcontractor or other
third party to correct defective, deficient or nonconforming Work shall not excuse
the Construction Manager from its liability as to the warranties provided herein.
2.9. Project Closeout. In addition to any other services to be performed during the Construction Phase or
Post-Construction Phase of any Project, as may be specified elsewhere in this Agreement, the
Construction Manager shall perform such services relating to closing out the Project as requested by
City, or as set forth in the Project Procedures Manual.
ARTICLE 3
RESPONSIBILITIES OF CITY,ARCHITECT-ENGINEER,AND RESIDENT PROJECT
REPRESENTATIVE
3.1. City's Responsibilities.
3.1.1. Project Coordinator. The Contract Administrator shall designate a representative for the
Project who shall be fully acquainted with the Project and shall serve as the person designated
by the City to provide direct interface with the Construction Manager with respect to the City's
responsibilities or matters requiring the City's approval, in its proprietary capacity as Owner,
under the Contract Documents. The Project Coordinator shall have authority to require the
Construction Manager to comply with the Contract Documents. However, any failure of the
Project Coordinator to identify any noncompliance, or to specifically direct or require
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compliance, shall in no way constitute a waiver of, or excuse, the Construction Manager's
obligation to comply with the requirements of the Contract Documents.
3.1.2. Other City Representatives. The City shall designate, from time to time, one or more
representatives authorized to act on its behalf with respect to the Project. No representative or
designee of the City shall have any authority to adjust the Contract Price or the Substantial
Completion Date unless memorialized in a duly executed Change Order. The City shall
examine documents submitted by the Construction Manager and shall utilize its reasonable
efforts to render necessary decisions pertaining thereto in accordance with the Project
Schedule.
a. The Contract Administrator and/or his/her designee shall have the authority to issue
directives and notices on behalf of the City. The Contract Administrator and/or his/her
designee shall have the authority to issue Construction Change Directives.
b. Approval of Change Orders/Amendments. The City Manager or Contract Administrator
may approve Change Orders or other Amendments to the Contract Documents involving
extensions to the Contract Time and/or adjustments to the Contract Price,up to an amount
equal to the total amount remaining in the City's Contingency.
i. The City Commission may approve any Change Order or other Amendment to the
Contract Documents.
ii. Change Orders exceeding any available amounts in the City's Contingency, or any
Change Orders in excess of the City Manager's$50,000 delegated contract authority,
shall require the advance approval of the City Commission.
3.1.3. CITY'S PARTICIPATION. THE CITY HAS NO OBLIGATION TO ASSIST, FACILITATE
AND/OR PERFORM IN ANY WAY THE CONSTRUCTION MANAGER'S OBLIGATIONS
UNDER THE AGREEMENT OR OTHER CONTRACT DOCUMENTS. THE CITY'S
PARTICIPATION, FACILITATION AND/OR ASSISTANCE TO THE CONSTRUCTION
MANAGER SHALL BE AT ITS SOLE DISCRETION AND SHALL NOT, IN ANY WAY, BE
CONSTRUED, INTERPRETED AND/OR CONSTITUTE AN ASSUMPTION BY THE CITY OF
CONSTRUCTION MANAGER'S OBLIGATIONS, A WAIVER OF CONSTRUCTION
MANAGER'S OBLIGATIONS AND/OR EXCUSE ANY BREACH BY CONSTRUCTION
MANAGER OF ITS OBLIGATIONS UNDER THE CONTRACT DOCUMENTS. THE
PARTICIPATION IN THE PERFORMANCE OF ANY OF CONSTRUCTION MANAGER'S
OBLIGATIONS SHALL NOT PRECLUDE THE CITY FROM DECLARING CONSTRUCTION
MANAGER IN DEFAULT FOR CONSTRUCTION MANAGER'S FAILURE TO PERFORM
SUCH OBLIGATION, NOR SHALL IT LIMIT, IN ANY WAY, THE CITY'S RIGHTS AND
REMEDIES IN CONNECTION THEREWITH. THE CONSTRUCTION MANAGER
EXPRESSLY ACKNOWLEDGES AND AGREES NOT TO RAISE OR ASSERT AS DEFENSE
TO ANY CLAIM, ACTION, SUIT AND/OR OTHER PROCEEDING OF A SIMILAR NATURE,
THE CITY'S PARTICIPATION, ASSISTANCE AND/OR FACILITATION IN THE
PERFORMANCE OF CONSTRUCTION MANAGER'S OBLIGATIONS. INCLUDING,
WITHOUT LIMITATION, ASSISTING WITH OBTAINING PERMITS OR WITH
COORDINATION WITH UTILITIES, OR OTHER MATTERS RELATED TO THE PROJECT.
IN THE EVENT OF ANY CONFLICT BETWEEN THIS SECTION AND/OR ANY OTHER
PROVISION OF THIS AGREEMENT OR OTHER CONTRACT DOCUMENTS, THIS
SECTION SHALL GOVERN
3.1.4. Architect-Engineer. The City has retained the Architect-Engineer to serve as the Architect or
Engineer of Record for the Project, to prepare Construction Documents and provide certain
administration services for this Project. The Architect-Engineer's responsibilities are
delineated in Section 3.2 below.
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3.1.5. Resident Project Representative. City may retain an RPR to assist the City with observing,
reviewing, and documenting construction activities on the Project, as delineated more fully in
Section 3.3.
3.1.6. City's Information. Except for any tests or studies that the City provides to the Construction
Manager pursuant to Section 9.2, any information provided by the City to the Construction
Manager relating to the Project and/or other conditions affecting the Project Site, is provided
only for the convenience of the Construction Manager and does not relieve the Construction
Manager of the due diligence necessary to independently verify local conditions and Site
Conditions. The City makes no representation or warranty as to, and assumes no
responsibility whatsoever with respect to, the sufficiency, completeness or accuracy of any
such test, studies or other information and makes no guarantee, either express or implied,
that the conditions indicated in such information or independently found by the Construction
Manager as a result of any examination, exploration or testing, are representative of those
existing throughout the performance of the Work or the Project Site,and there is no guarantee
against unanticipated or undisclosed conditions.
3.1.7. Plans and Specifications.The Construction Manager will be furnished a reproducible set of all
Construction Documents for bid documents reasonably necessary and ready for printing.
3.1.8. Cost of Surveys & Reports. The services, information, surveys and reports required by the
above paragraphs shall be furnished with reasonable promptness in accordance with the
approved schedule at the City's expense.
3.1.9. NOT USED.
3.1.10. Lines of Authority. The City and Contract Administrator shall establish and maintain lines of
authority for their personnel and shall provide this definition to the Construction Manager and
all other affected parties.
3.1.11. Permitting & Code Inspections. The City may retain a threshold inspector, if required by
Chapter 553, Florida Statutes, and any other inspectors as the City deems necessary.
3.1.12. Approvals. Wherever the Contract Documents require or provide for City approval, such
approval must be evidenced in writing to be effective.
3.2. Architect-Engineer's Responsibilities.
3.2.1. The Architect-Engineer's role shall include the following:
a. The Architect-Engineer will assist the City with the enforcement of the faithful performance
of this Agreement, including making recommendations to the Project Coordinator, with
respect to the immediate condemnation of Work or materials known by it to be in violation
of the Contract Documents, provided Architect-Engineer obtains prior written consent of
the City; (ii) the issuance or withholding of approvals or certificates as directed and
approved by City and as required by, and in accordance with, the Contract Documents;
and (iii) requiring compliance with Applicable Laws.
b. The Architect-Engineer and Project Coordinator may review the Project Schedule and/or
Construction Schedule and consult with the Construction Manager with respect thereto.
c. The Architect-Engineer, by periodic inspections by its personnel and by personnel
employed by the structural engineering firms,electrical engineering firms,and mechanical
engineering firms employed by the Architect-Engineer, shall have the right to: (i)
enforce the faithful performance of the Contract Documents;and(ii)assure that the Work
has been or is being installed in accordance with the Contract Documents before allowing
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Draft Contract No.23-461-01
it to be covered. With respect to Work which requires inspection prior to covering under
the Contract Documents, the Architect-Engineer shall not certify any such Work for
payment if it has been covered prior to the Architect-Engineer's consent. The Architect-
Engineer may attend Project construction meetings.
d. Architect-Engineers Decisions. The Architect-Engineer may review and approve(or take
other appropriate action upon) submittals by Construction Manager, such as Shop
Drawings, product data and samples, but only for conformance with the design concept of
the Work and with the information given in the Contract Documents. Such action shall be
taken within ten (10) days of the date of each such submittal. The Architect-Engineer's
review of a specific item shall not indicate acceptance of an assembly of which the item is
a component. The Architect-Engineer may review and comment on Change Orders and
Construction Change Directives for the City's approval and execution in accordance with
the Contract Documents,and shall have authority to issue,with the written concurrence of
the City, minor changes in the Work pursuant to Article 9.
e. Changes. The Architect-Engineer and Project Coordinator may use their powers of
enforcement granted under this Agreement in an effort to assure that no changes in the
Work,or of any part thereof,be made except as are specifically authorized by the Contract
Documents, or as authorized by written Change Order, Construction Change Directive or
Field Order.
f. Construction Manager Not Relieved by Architect-Engineer, Resident Project
Representative or Project Coordinator Activity. The responsibility of the Construction
Manager for faithful performance of the Contract Documents shall not be relieved or
affected in any respect by the presence, inspections, approvals, or certificates by the
Architect-Engineer, RPR or Project Coordinator or by employees or representatives of the
Architect-Engineer, RPR or Project Coordinator.
g. Architect-Engineer, City and Resident Project Representative Not Responsible for Means
or Methods. The Architect-Engineer, City, and Resident Project Representative will not
have control over or charge of construction means, methods, techniques, sequences or
procedures, or for the safety precautions and programs in connection with the Work.The
Architect-Engineer, City and Resident Project Representative will not have control over or
charge of acts or omissions of the Construction Manager, Subcontractors, or their agents
or employees, or of any other persons performing portions of the Work.
h. Architect-Engineer's and Resident Project Representative's Review and Architect-
Engineer's Certification of Pay Applications.The Architect-Engineer and Resident Project
Representative, in cooperation with the Project Coordinator, may determine the amounts
owing to the Construction Manager, based on their respective observations at the Project
Site and on evaluations of the Construction Manager's Applications for Payment and the
Contract Documents. The Architect-Engineer, Resident Project Representative and
Project Coordinator may review and comment on the Construction Manager's Applications
for Payment during the progress of the Work and may issue or withhold approval or
certifications of Applications for Payment therefore as directed and approved by the City
and as required by, and in accordance with, the terms and provisions of the Contract
Documents.
i. Architect-Engineer 's Authority to Reject Work. The Architect-Engineer will have the
authority to.reject Work which does not conform to the Contract Documents, provided that
• the Architect-Engineer obtains the prior written consent of the Project Coordinator.
Whenever the Architect-Engineer considers it necessary or advisable for implementation
of the intent of the Contract Documents, the Architect-Engineer, after prior consultation
with and written approval of the City, will have the authority to require special inspection
or testing of the Work in accordance with the provisions of the Contract Documents,
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Draft Contract No.23-461-01
whether or not such Work is fabricated, installed or completed. However, neither this
authority of the Architect-Engineer nor a decision made in good faith either to exercise or
not to exercise such authority shall give rise to a duty or responsibility of the Architect-
Engineer to the Construction Manager, any Subcontractors of any tier, their agents or
employees or other persons performing portions of the Work. Such rejections and/or
directives will be communicated through the Project Coordinator to the Construction
Manager.
j. Change Orders, Construction Change Directives, and Minor Changes in the Work. The
Architect-Engineer and Resident Project Representative may assist the City in the review
of all Change Orders, Construction Change Directives, and Field Orders.
k. Substantial Completion and Final Completion Determination.The Architect-Engineer,RPR
and Project Coordinator may conduct inspections to determine the date or dates of
Substantial Completion and the date or dates of Final Completion for the entire Work, or
any component thereof, and may receive and forward to the City, for the City's review,
records, written warranties and related documents required of the Construction Manager
and may issue a final certificate of payment upon compliance with the requirements of the
Contract Documents.
I. Architect-Engineer's Interpretation of Construction Documents. The Architect-Engineer
may render written interpretations necessary for the proper execution of the Work and/or
relating to interpretations of the requirements of the Construction Documents, on written
request of the Project Coordinator.
m. Binding Effect of Architect-Engineer's Decisions and Interpretations. The Architect-
Engineer's decisions on matters relating to aesthetic effect will be final, if consistent with
the intent expressed in the Contract Documents and if approved in writing by the Contract
Administrator.
n. City shall cause Architect-Engineer to design the Project to meet City's Construction
Budget through the development of the GMP. Following acceptance of the GMP
Amendment, City shall cause the Architect-Engineer to complete the Construction
Documents consistent in material respects with the Construction Documents that were
utilized as the basis for the GMP Amendment.
3.3. Resident Project Representative.The City may retain an independent professional firm duly qualified
and licensed to serve as Resident Project Representative and assist the City with observing, reviewing,
and documenting construction activities on the Project. The Resident Project Representative shall
monitor Construction Manager's progress and performance in accordance with the Contract
Documents. The Resident Project Representative shall have the authority to assist the City, as
directed,with the following:
a. Reviewing Construction Manager's Project Schedule submissions and confer with the Construction
Manager and/or Consultant regarding acceptability thereof;
b. Reviewing draft Applications for Payment, forwarding comments and recommendations to the
Architect-Engineer, and approving Applications for Payment as complying with the requirements
of the Contract Documents following Architect-Engineer's certification of such Applications for
Payment;
c. Observing all aspects of the prosecution of the Work including, but not limited to, verifying that
Work has been completed and that material and equipment certificates, operation and
maintenance manuals, guarantees and warranties and any other data or documents required by
the Contract Documents have been provided to the City;
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Draft Contract No.23-461-01
d. Participating in inspections and testing required by the Contract Documents, including Substantial
Completion and Final Completion inspections, and assisting City in connection with its
determination of Substantial Completion, any applicable Milestones and Final Completion.
The role of the Resident Project Representative is to facilitate information to the City and
Architect-Engineer. In no event shall the Resident Project Representative be authorized to
approve substitutions or deviations from the Contract Documents; to undertake any of the
obligations and responsibilities of Construction Manager; direct the means and methods of
Construction Manager; or to advise on, issue direction on, or assume control over safety
practices of the Construction Manager. If no RPR is appointed or assigned to the Project, the
duties of the RPR shall be performed by the Contract Administrator(or his or her designee).
3.4. Lines of Communication. For purposes of efficient administration of the Contract Documents:
a. Communications with Subcontractors and Suppliers. The City, RPR and Architect-Engineer shall
communicate with the Subcontractors and Suppliers only through the Construction Manager,
except as to those communications provided for under Article 4 of this Agreement or the other
Contract Documents. Nothing herein shall preclude any Subcontractor or Supplier from
communicating directly with the City with respect to any default of the Construction Manager or
other matter of public concern.
b. Communications with the City and Architect-Engineer. The Construction Manager shall
communicate with the City and Architect-Engineer (and its sub-consultants) only through the
Project Coordinator or the Architect-Engineer, as the context may require. If communications are
made directly to the City or Architect-Engineer, Construction Manager shall copy the Project
Coordinator, to permit tracking and timely responses of all matters requiring the City's and
Architect-Engineer's attention. Wherever the Contract Documents expressly require transmittal of
any document or notice of any information to the City or the Architect-Engineer, the Project
Coordinator shall be copied on such transmittal or notice.
c. Communications with Separate Contractors. Communications between the Construction Manager
and Separate Contractors shall be through the Project Coordinator.
d. The Parties may supplement the foregoing in the Project Management Plan and the detailed matrix
to be utilized for Project communications.
3.5. Construction Manager Not Relieved By City, Project Coordinator or Resident Project
Representative Activity. The responsibility of the Construction Manager for faithful performance of
the Contract Documents shall not be relieved or affected in any respect by the presence, inspections,
or approvals by the City (whether in its proprietary or regulatory capacity), Project Coordinator or
Resident Project Representative or their designees.
3.6. Permitting & Code Inspections. The City may retain a threshold inspector, if required by Chapter
553, Florida Statutes, and any other inspectors as the City deems necessary, provided, however, the
failure of the City, threshold inspector, or any other inspector to identify any noncompliance, or to
specifically direct or require compliance, shall in no way constitute a waiver of, or excuse, the
Construction Manager's obligation to comply with the requirements of the Contract Documents.
ARTICLE 4
PERFORMANCE OF WORK AND SUBCONTRACTS
4.1 Performance of Work by Construction Manager. It is the intent of this Agreement that the
construction Work under the Project shall be performed solely by Subcontractors to the Construction
Manager. However, the Construction Manager may perform portions of the Work with its own
personnel,with the prior written approval of the City, in extenuating circumstances and pursuant to the
requirements of this Article 4, such as if the services of a responsive and responsible Subcontractor
cannot be retained.
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4.2 Pre-qualification of Bidders.The Construction Manager, in consultation with the Project Team,shall
establish objective pre-qualification guidelines to be applied by the Construction Manager for
subcontracts and major suppliers, including guidelines relating to financial stability, past performance,
bonding capacity, safety record, and personnel. At the discretion of the Construction Manager, each
Subcontractor may be required to submit a completed experience questionnaire and details relating to
its financial information.The Subcontractor's financial condition must demonstrate that adequate fixed
and liquid assets and equipment are available to properly perform the subcontract. The Construction
Manager shall advertise all prospective subcontract Work for purposes of pre-qualification using public
means(e.g. newspaper)and shall receive letters of interest and other data deemed necessary by the
Construction Manager for proper pre-qualification. Submittals by prospective Subcontractors shall be
evaluated by the Construction Manager pursuant to the pre-qualification guidelines.Proposers meeting
the Construction Manager's pre-qualification guidelines shall be placed on a list of pre-qualified
Subcontractors. Except where a trade is represented by less than three pre-qualified Subcontractors,
bids shall only be accepted from the list of pre-qualified Subcontractors or suppliers. Construction
Manager shall be solely responsible for any claims, objections or disputes arising out of the pre-
qualification of bidders.
4.3 Subcontract and Supplier Bids and Proposals.Construction Manager shall solicit subcontract bids
or proposals from the Subcontractors and Suppliers prequalified pursuant to Section 4.2 of this
Agreement,and shall implement an"open book"process whereby all bids or proposals and supporting
documentation with respect thereto shall be made available to the City, and Architect-Engineer, and
their respective representatives, for the purpose of verifying the responsiveness and responsibility
determinations made by Construction Manager and ensuring a transparent and competitive
environment for the award of Subcontracts.A member of the Project Team will attend or observe the
opening of bids. Such bidder or proposer records shall be subject to the public records disclosure
requirements of Chapter 119 of the Florida Statutes, provided that such records shall remain
confidential and exempt from inspection under Section 119.07(1), Florida Statutes, to the extent
permitted by law.
4.3.1. A minimum of three bids or proposals shall be solicited, if feasible. Such solicitations shall
specifically state that no contractual relationship will be created with City. Unless otherwise
approved by the City Manager or Project Coordinator at their sole discretion to account for
extenuating circumstances,the Construction Manager shall award subcontracts in accordance
with the Contract Documents to the lowest responsive and responsible bidders or proposers
after the proposals are reviewed by the Construction Manager, City and Architect-Engineer.
Instructions to bidders must require each bid to be accompanied by the appropriate bid
security.
4.3.2. For each separate subcontract,the Construction Manager shall conduct a pre-bid conference
with prospective bidders, the Architect-Engineer, and the Project Coordinator, to familiarize
bidders with the Contract Documents, any special requirements of the Contract Documents
and equal employment opportunity and prevailing wage requirements and the like.
4.3.3. In the event that questions are raised which require an interpretation of the bid packages or
otherwise indicate a need for a clarification or correction of the invitation, the Construction
Manager shall coordinate the preparation of an addendum to the bid packages Architect-
Engineer. The Project Coordinator shall transmit to Construction Manager all of the Project
Team's responses to questions at pre-bid conferences,and Construction Manager shall review
addenda prepared by the Architect-Engineer to incorporate those responses. The addendum
shall be the medium for making any clarifications or corrections to the bid packages and will
be issued to all of the prospective bidders.
4.3.4. Construction Manager shall evaluate all applicable alternates referenced in the Contract
Documents and shall evaluate each bidder in accordance with the bid criteria contained in the
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bid package. Construction Manager shall not consider any unauthorized substitutions
contained in subcontractor bids.
4.3.5. The Construction Manager shall analyze and evaluate the results of the various bids and their
relationships to budgeted and estimated amounts, and shall distribute to the Project Team a
bid tabulation analysis and such other supporting documentation as necessary to verify the
comparison of the various bids, their responsiveness to the desired scope of Work, and the
basis for the Construction Manager's selection, including a summation and analysis of the
apparent low subcontract bids and/or of any apparent low subcontract bidders that the
Construction Manager does not wish to employ. Such identification and proposal of non-
utilization by the Construction Manager shall require specific written reason for same.
4.3.6. Construction Manager,with the assistance of the Architect-Engineer, shall conduct pre award
conferences with the recommended bidders and shall gather documentation for contract
execution from such bidders. If a bidder fails to provide the required documentation in a timely
manner, Construction Manager shall assist the City in considering whether to grant an
extension of time for submitting the documentation or terminate negotiations with the
recommended bidder. In no case shall the City have any contractual relationship with a
Subcontractor or responsibility for Subcontractor performance. Construction Manager shall be
solely responsible for any claims, objections or disputes arising out of the award of
subcontractor bids, except where the sole cause of the disappointed bidder's claim is a City-
directed decision pursuant to Section 4.4 below.
4.4 City's Right to Disapprove.Prior to entering into any Subcontract or awarding any Work,Construction
Manager shall provide City with a notice of intent to award Work to any Subcontractor or Supplier. The
City retains the right to object to the Construction Manager's notice of intent to award of a subcontract
to any specific bidder if the Project Coordinator, does not reasonably believe that the proposed bidder
is the most responsive or responsible bidder. The City must provide Construction Manager with notice
of its objection within ten (10) days following its receipt of Construction Manager's notice of intent to
award and all supporting documentation and bid tabulation analysis required by the Contract
Documents. If the Contract Administrator objects to a duly qualified, responsible Subcontractor or
Supplier award by Construction Manager, the Construction Manager shall select an acceptable
substitute.
4.5 Third Party Relationship. Nothing in this Agreement,the subcontracts, or in purchase orders issued
by the Construction Manager shall create any contractual relationship between the City and any
Subcontractor or supplier.The subcontracts and purchase orders shall specifically state that no such
relationship is created hereby. However,the City is mutually recognized as a third party beneficiary of
all such subcontracts.
4.6 Required Subcontract Conditions.
4.6.1 Sub contractual Relations. Construction Manager shall be solely responsible for and have
control over the Subcontractors. By an appropriate written agreement, the Construction
Manager shall require each Subcontractor, to the extent of the Work to be performed by the
Subcontractor, to be bound to the Construction Manager by the terms of the Contract
Documents, and to assume toward the Construction Manager all the obligations and
responsibilities that the Construction Manager by the Contract Documents assumes toward
the City. Said agreements shall preserve and protect the rights of the City and Architect-
Engineer and Resident Project Representative under the Contract Documents with respect to
the Work to be performed by the Subcontractor so that the subcontracting thereof will not
prejudice such rights. The agreement shall also require the Subcontractor to assume toward
the City all obligations and responsibility that the Subcontractor has to the Construction
Manager in the event that this Agreement is terminated for any reason and the City desires to
assume the subcontract.The Construction Manager shall require each Subcontractor to enter
into similar agreements with its sub-Subcontractor.
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The Construction Manager shall make available to each proposed Subcontractor, prior to the
execution of the Subcontract, copies of the Contract Documents to which the Subcontractor
will be bound by this Section 4.6, and shall identify and eliminate any terms and conditions of
the proposed Subcontract which may be at variance with the Contract Documents. Each
Subcontractor shall similarly make copies of such Documents available to its Sub-
Subcontractors.
4.6.2 Subcontract Requirements.
4.6.2.1. Supervision. The Subcontractor must agree to provide field (on-site) supervision
through a named superintendent for each trade. The supervisory employees of
the Subcontractor(including field superintendent, foreman and schedulers at all
levels) must have been employed in a supervisory (leadership) capacity. The
Subcontractor shall include a resume of experience for each employee identified
by the Subcontractor to supervise and schedule its Work.
4.6.2.2. Subcontract Terms. The form of agreement for Construction Manager's
Subcontractors shall be subject to the City's advance written approval. All of the
Construction Manager's agreements with the Subcontractors shall contain the
following provisions and shall state:
i. that the Subcontractor irrevocably submits itself to the original and exclusive
jurisdiction and venue in Miami-Dade County, Florida, with regard to any
controversy in any way relating to the award, execution or performance of
the Contract Documents and/or such Subcontractor's agreement, and
whereby the Subcontractor agrees that service of process on it may be made
to the person or entity designated in the Subcontract;
ii. that the City shall not be in privity of contract with the Subcontractor and shall
not be liable to any Subcontractor under the Contract Documents or any such
subcontract, except for the payments of amounts due to the Subcontractor
under its subcontract in the event that the City exercises its rights under any
assignment of the subcontract and requests or directs the Subcontractor to
perform the portion of the Work covered by its subcontract;
iii. that the City is a third-party beneficiary of the Subcontract, entitled to enforce
any rights thereunder for their respective benefits, and that, subject to the
terms of the applicable Subcontract, the City shall have the same rights and
remedies vis-à-vis such Subcontractors that Construction Manager shall
have, including the right to be compensated for any loss,expense or damage
of any nature whatsoever incurred by the City resulting from any breach of
such Subcontract by Subcontractor, any breach of representations and
warranties, if any, implied or expressed, arising out of such agreements and
any error, omission or negligence of such Subcontractor in the performance
of any of its obligations under such Subcontract;
iv. that the Subcontractor shall indemnify and hold harmless the City, its
officers,agents, directors, and employees,and instrumentalities to the fullest
extent permitted by Section 725.06 of the Florida Statutes;
v. that such subcontract shall be terminable for default or convenience upon
ten (10) days prior written notice by Construction Manager, or, if the
Subcontract has been assigned to the City, by the City or its designee;
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vi. that Subcontractor shall promptly notify the City(with a copy to Construction
Manager) of any default of Construction Manager under the Subcontract,
whether as to payment or otherwise;
vii. that Construction Manager and Subcontractor acknowledge that (i) they are
each entering into a contract for the construction of a public facility or public
works project as contemplated in Chapter 255, Florida Statutes,and(ii)each
have no right to file a construction lien against the Work or the Project, and
further agree to include a similar requirement in any purchase order or
subcontract entered into by Subcontractor; and (iii) the payment bond
provided by Construction Manager pursuant to this Agreement is a substitute
for the right to claim a lien on the Project, and that any claims for nonpayment
shall be made against the bond in accordance with Section 255.05, Florida
Statutes.
viii. that Subcontractor shall comply with all Applicable Laws (including prompt
payment) and the City requirements as set forth in the Contract Documents
and maintain all files, records, accounts of expenditures for Subcontractor's
portion of the Work to the standards set forth in the Contract Documents.
ix. that the City may, at reasonable times, contact Subcontractor, after notice to
Construction Manager, to discuss, or obtain a written report of,
Subcontractor's services, with Construction Manager entitled to be present
during any such discussions; provided that in no event, prior to any
assignment of the Subcontract to the City, shall Subcontractor take
instructions directly from the City;
x. that Subcontractor promptly disclose to the City and Construction Manager
any defect, omission, error or deficiency in the Contract Documents or the
Work about which it has knowledge no later than ten (10) days following
discovery of such defect, omission, error or deficiency;
xi. that Subcontractor assign all warranties directly to the City,
xii. that the Contract Documents provide a limitation of remedies and NO
DAMAGES FOR DELAY as delineated in Section 9.4, and that accordingly,
Subcontractor's exclusive remedy for delays in the performance of the
subcontract caused by events beyond its control, including delays claimed
to be caused by or attributable to the City, Resident Project Representative,
or Architect-Engineer shall be as provided by the Contract Documents;
xiii. that in the event of a change in the Work the Subcontractor's Claim for
adjustments in the subcontract price shall be limited exclusively to its actual
costs for such changes, plus no more than the overhead and profit
fees/markups and bond costs to be established as part of the GMP
Amendment.
xiv. Each subcontract shall require the Subcontractor to expressly agree that the
foregoing constitutes the sole and exclusive remedies for delays and
changes in the Work and thus eliminate any other remedies for claim for
increase in the subcontract price, damages, losses or additional
compensation.
xv. Each subcontract shall require that any claims by Subcontractor for delay or
additional cost must be submitted to Construction Manager within the time
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and in the manner in which the Construction Manager must submit Claims to
the City, and that failure to comply with the conditions for giving notice and
submitting claims shall result in the waiver of such claims in the same
manner as provided for in the Contract Documents.
4.6.3 Conditional Assignment. Construction Manager conditionally assigns to the City all the
rights, title and interest of Construction Manager in,to and under any and all Subcontracts.
The assignment is exercisable by the City, at its election, in the event that the City has
exercised its right to terminate this Agreement for any reason in whole or in part or to take
control of, or cause control to be taken of, the Work or any portion thereof. The City may
reassign the Subcontracts to another contractor or any other person or entity, and such
assignee may exercise the City's rights in the Subcontracts. Each Subcontractor shall,
upon written notice that the City has exercised its rights under the Contract Documents(or
the portion thereof applicable to the materials or services being furnished by such
Subcontractor), continue to perform all of its obligations, covenants and agreements under
such Subcontract for the benefit of the City.
4.6.3.1 Each Subcontract entered into by Construction Manager in connection with the
Work shall contain the consent of each Subcontractor to the foregoing
assignment and the agreement of each such Subcontractor that, upon written
notice from the City,it has assumed the Subcontract or portion thereof applicable
to the materials or services being furnished by such Subcontractor and exercised
its rights under this Agreement.
4.6.3.2 The Construction Manager shall require each Subcontractor to use all
reasonable efforts to enter into similar agreements with sub-Subcontractors of
all tiers. The Construction Manager shall make available to each proposed
Subcontractor, prior to execution of the subcontract agreement, copies of the
Contract Documents to which the Subcontractor will be bound, and require that
each Subcontractor shall similarly make copies of applicable portions of such
documents available to their respective proposed sub-Subcontractors.
4.6.4 Performance Bonds and Payment Bonds. If Construction Manager requires a Subcontractor
to obtain a performance bond and/or payment bond, then such bonds shall name the
Construction Manager and the City as co-obligees, shall cover all warranties and
guarantees of the Subcontractor, and shall comply with all bond requirements under the
Contract Documents. If the Subcontract does not require a Performance Bond or Payment
Bond, the Subcontract shall contain a provision permitting the City to require a Performance
Bond and Payment Bond in the event of an assignment of the Subcontract to the City.
4.6.5 Responsibilities for Acts and Omissions.The Construction Manager shall be responsible to the
City for the acts and omissions of its employees and agents and its Subcontractors, their
agents and employees, and all other persons performing any of the Work or supplying
materials under a contract to the Construction Manager. Nothing in the Contract Documents
shall create any contractual relationship between any Subcontractor and City or any
obligation on the part of City for the payment of any monies due any Subcontractor. City
or Architect-Engineer may furnish to any Subcontractor evidence of amounts paid to
Construction Manager on account of specific Work performed.
4.6.6 Subcontractor Performance. Construction Manager shall cause each Subcontractor to perform
its Work in accordance with the requirements of the Contract Documents, and shall make all
necessary efforts to protect the City against defects and deficiencies in the Work. Construction
Manager shall promptly report to the Project Coordinator and Architect-Engineer all Work that
does not conform to the requirements of the Contract Documents, make recommendations
regarding the acceptance or rejection of that Work and advise the City and Architect-Engineer of
Construction Manager's actions or proposed actions with respect thereto.
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4.6.7 Subcontractor Change Orders. Construction Manager shall negotiate all Change Orders,
Construction Change Directive, Field Directives and other related issues, with all affected
Subcontractors and shall review the costs all associated costs and advise City and Architect-
Engineer of their validity and reasonableness, acting in the City's best interest, prior to
requesting approval of each Change Order from the City.
4.6.8 Subcontractor Lists and Subcontract Documents. Construction Manager shall continuously
update the Subcontractor list, so that it remains current and accurate throughout the entire
performance of the Construction Work. As part of the Project document file to be
maintained by Construction Manager at the Project Site, Construction Manager shall keep
on file a copy of the license for every Subcontractor performing any portion of the
Construction Work, as well as maintain a log of all such licenses. The Construction Manager
shall provide upon request a copy of each subcontract, including the general supplementary
conditions,to the City.
4.6.9_ Local Employment. It is the City's goal to maximize the employment of City of Miami Beach and
Miami-Dade County residents in the construction of the Project. Construction Manager shall work
with each Subcontractor to create a plan for maximizing local employment, as well as providing
periodic reporting to monitor success. Construction Manager shall provide City with quarterly
progress reports documenting success throughout the Project duration,and shall comply with any
other requirements of Applicable Laws.
4.7. Limitations on Construction Manager Bidding and Performance of Trade Work. If the
circumstances are such that Construction Manager is permitted to bid, the bid of the Construction
Manager or any related or affiliated entity shall include its complete take off and unit pricing sufficient
to allow the City to verify that such costs do not exceed those commonly paid in the market. Any bid
from the Construction Manager or a Related Party shall be submitted to the City at least one (1)
business day in advance of receipt of bids from the unaffiliated Subcontractors. The Construction
Manager, or a Related Party, shall be permitted to perform such trade Work for preservation of the
GMP or the Schedule, but only if (i) the Contract Administrator consents thereto in writing after full
disclosure in writing by the Construction Manager to the City of the affiliation or relationship of the
Related Party to the Construction Manager and (ii) the City approves in writing any subcontract,
contract, purchase order, agreement between the Construction Manager and such Related Party in
form and substance. Any trade Work performed by the Construction Manager's own forces or by a
Related Party, if required by the City, shall be covered in a separate agreement between the City and
the Construction Manager or the Related Party. Such agreement shall, without limitation, satisfy all
requirements for subcontractors as set forth in this Article 4.
Notwithstanding the foregoing, Construction Manager shall be permitted to perform general cleaning,
rough carpentry, safety,temporary conditions and protection services with its own labor forces without
obtaining competitive bids or approval from the City.
4.8. Reporting of Bid Buyouts. The Construction Manager shall document the actual Cost of the Project
at buyout as compared to the GMP Proposal prepared pursuant to Article 6 of this Agreement, and
shall report this information to the Project Coordinator monthly and with Construction Manager's
recommendation for selection of a bid/proposal for each subcontracting package.
ARTICLE 5
SCHEDULE,TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
5.1. Time is of the Essence. Time is of the essence throughout this Agreement and the Construction
Manager will promptly perform its duties under the Contract Documents and will give the Work as
much priority as is necessary to cause the Work to be completed on a timely basis in accordance with
the Contract Documents. All Work shall be performed strictly (not substantially) within the time
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limitations necessary to maintain the critical path and all deadlines established in the Contract
Documents.
5.1.1. Protect Schedule. At the time a GMP is established, as provided for in Article 6, the Project
Team shall establish Milestones for completion of the Work, a City Occupancy Schedule in
accordance with the foregoing Milestones, the Project substantial completion date, and the
Project final completion date, in accordance with the Project Schedule. All dates and periods
of time set forth in the Contract Documents, including those for the commencement,
prosecution, interim milestones, Milestones, and completion of the Work, and for the delivery
and installation of materials and equipment, were included because of their importance to
the City.
5.1.2. Milestones and Substantial Completion. Unless otherwise agreed to by Construction Manager
and the City, Construction Manager acknowledges and agrees that (i) the Work must be
performed in accordance with the Project Schedule, (ii)City intends to and shall take Beneficial
Occupancy of the portions of the Work and Project Site as portions of the Work are completed
on a block by block partial substantial completion basis; and (iii) Substantial Completion must
occur no later than 700 days from the date of issuance of a Notice to Proceed for the
Construction Phase, unless otherwise specified in the GMP Amendment, and shall be
completed and ready for final progress payment in accordance with the Contract Documents,
within thirty (30) days from the date certified by Contract Administrator as the Substantial
Completion date.
5.1.3. Construction Manager's Responsibility for Failure to Achieve Milestones and/or Substantial
Completion. The Construction Manager acknowledges that failure to achieve the Milestones
or complete the Project within the construction time set forth in the approved Schedule may
result in substantial damages to the City, for which damages the Construction Manager shall
be liable to the extent provided herein.
5.1.3.1. The failure of the Construction Manager to meet the Milestones, if any, or complete
the Project by the Substantial Completion Date (as such date may be extended in
accordance with the terms of this Agreement)will deprive the City and the residents
and visitors of the City and State of the use of a valuable asset. Therefore, the
Construction Manager agrees that the Construction Manager shall begin the Project
in conformity with the provisions set forth herein and shall prosecute the same with
all due diligence and adequate manpower, so as to timely achieve the Milestones
and Substantial Completion of the entire Project (as such date may be extended in
accordance with the terms of this Agreement). Failure to achieve the Milestones set
forth below shall also be cause for the City to deduct from monies otherwise due the
Construction Manager the amounts as follows:
a. Substantial Completion. Upon failure of Construction Manager to achieve
Substantial Completion of the Project within the time specified for Substantial
Completion, plus approved time extensions, City shall deduct from monies
otherwise due the Construction Manager a liquidated amount assessed daily
until Substantial Completion of the Project, in the amount of One Thousand
Two Hundred dollars($1,200) per day, commencing on the first day following
the date Construction Manager was to achieve Substantial Completion of the
Work, pursuant to the approved and updated Project Schedule.
b. Final Completion. After Substantial Completion, should Construction
Manager fail to achieve Final Completion of the Project within the time
• specified for Final Completion, plus approved time extensions, City shall
deduct from monies otherwise due the Construction Manager a liquidated
amount assessed daily until Final Completion of the Project, in the amount of
Six Hundred dollars ($600) per day, commencing on the first day following
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the date Construction Manager was to achieve Final Completion of the Work,
pursuant to the approved and updated Project Schedule.
5.1.3.2.Construction Manager acknowledges and agrees that the liquidated damages
amounts in Subsection 5.1.3.1(a) ("Liquidated Damages")are not penalties and have
been set based on an evaluation by City of damages to City and the public caused by
untimely performance. Construction Manager acknowledges that the amounts
established for Liquidated Damages are fair and commercially reasonable.
5.1.3.3.Construction Manager and City have agreed to the limitations of liability in Subsection
5.1.3.1(a)in order to fix Construction Manager's costs and to avoid later disputes over
which items are properly chargeable to Construction Manager as a consequence of
Construction Manager's delays.
5.1.3.4. Liquidated Damages and/or other damages provided for in Section 5.1.3.1(a) shall
be deducted from monies otherwise due Construction Manager,whether or not the
City terminates Construction Manager for cause and whether or not Surety
completes the Project after a Default by Construction Manager.
5.1.3.5. Liquidated Damages provided for in Section 5.1.3.1
shall apply solely to claims arising from delay in meeting any Milestone for which the
right to assess Liquidated Damages is specified, including, without limitation,
Substantial Completion of Final Completion, and shall be the City's sole remedy for
delay, and are not intended to, and do not, liquidate Construction Manager's liability
under any other provision of this Agreement or for other events not specifically
referenced in Section 5.1.3.1. Liquidated Damages shall not liquidate Construction
Manager's liability under the indemnification provisions of this Agreement.
5.1.3.6.Construction Manager,in addition to reimbursing City for Liquidated Damages or other
damages for untimely performance as provided in Subsection 5.1.3.1,shall reimburse
City for all costs incurred by City to repair, restore, or complete the Work, as may be
provided by the Contract Documents, including, without limitation, any additional
design fees that may be due to the Architect/Engineer. All such costs shall be
deducted from the monies otherwise due Construction Manager for performance of
Work under this Agreement by means of unilateral credit or deductive Change Orders
issued by City.
5.1.3.7. In the event a court of competent jurisdiction determines that any Liquidated Damages
amount herein is unenforceable notwithstanding Construction Manager's agreement
herein that such amounts are fair and reasonable, Construction Manager shall not be
relieved of its obligations to the City for the actual damages resulting from the failure
to meet the Milestones in accordance with the requirements of the Contract
Documents, including the categories of damages specified in Subsection 5.1.3.2;
without limiting the foregoing, City and Construction Manager covenant not to bring
any action in a court of competent jurisdiction that would ask the court to rule that the
Liquidated Damages amounts are not fair and reasonable.
5.2. Progress in Accordance with Schedule / Recovery Schedule. The Milestones and Substantial
Completion dates shall not be modified except by a Change Order. The Construction Manager shall
prosecute the Work, and shall cause all Subcontractors,Vendors and Suppliers to prosecute the Work,
so that the delivery of all Milestones and Substantial Completion of the Project shall be in accordance
with the approved Project Schedule.
5.2.1. If the Work on any critical path item or activity delineated in the Project Schedule is delayed
for a period which exceeds ten(10) business days remaining until a completion deadline for a
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Draft Contract No.23-461-01
Milestone delineated in the Project Schedule(including delays to which Construction Manager
may be entitled to a time extension under Article 9), and it reasonably appears that the
Construction Manager will be unable to achieve a Milestone, the City may notify the
Construction Manager of the same and, in such event,the Construction Manager shall submit
a proposed recovery plan to regain lost schedule progress and to achieve the original
Milestone(s) in accordance with the Contract Documents ("Recovery Schedule"), after taking
into account Excusable Delays(as hereinafter defined)and permitted extensions of the Project
Schedule.
5.2.2. City shall notify Construction Manager within ten (10) days after receipt of each Recovery
Schedule, whether the Recovery Schedule is deemed accepted or rejected. Within five (5)
business days after City's rejection of any Recovery Schedule, Construction Manager will
resubmit a revised Recovery Schedule incorporating City's comments. If the City accepts
Construction Manager's Recovery Schedule, Construction Manager shall, within five (5)
business days after City's acceptance,incorporate and fully include the Recovery Schedule into
the Project Schedule and deliver same to City.
5.2.3. If the Construction Manager fails to provide an acceptable Recovery Schedule, as determined
by City in its sole discretion,that demonstrates Construction Manager's ability to timely achieve
a Milestone, or if Construction Manager otherwise (1) fails, refuses or neglects to supply a
sufficient number of workers or to deliver the materials and equipment with such promptness
as to prevent the delay in the progress of the Work; (2)fails in any respect to commence and
diligently prosecute the Work and proceed to the point to which Construction Manager must
proceed in accordance with the Project Schedule in order to achieve a Milestone or Substantial
Completion in accordance with the Project Schedule; (3)fails to commence, prosecute,finish,
deliver or install the different portions of the Work on time as herein specified in accordance
with the Project Schedule; or(4)fails in the performance of any of the material covenants of
the Contract Documents, then the City may proceed as follows:
a. The City may, without prejudice to any other rights and remedies available to the City
hereunder or otherwise, order the Construction Manager to employ such extraordinary
measures, including acceleration of the Work, and other measures, including substantially
increasing manpower and/or necessary equipment, as may be necessary to bring the Work
into conformity with the Project Schedule and achieve the Milestones, including providing
additional labor or expediting deliveries of materials, performing overtime, additional
shifts or re-sequencing the Work without any adjustment to the GMP. The City shall,
after having provided Construction Manager written notice of any of the deficiencies listed
in this Subsection 5.2.3 and a reasonable opportunity to cure and regain the lost schedule
progress within twenty-one(21) days following said notice, and without waiving any other
rights or remedies, have the right to withhold progress payments to the extent
reasonably necessary to protect the City's interests and supplement Construction
Manager's forces with separate contractors and/or to seek other redress for Construction
Manager's default.
b. If and to the extent Construction Manager is entitled to an extension of time for Excusable
Delays pursuant to the Contract Documents, but the City nevertheless requires
Construction Manager to perform Work without a change in a Milestone or the Project
Schedule, then as an alternative to allowing an extension of time, the City may fund from
the City's Contingency the reasonable acceleration costs or reasonable costs of
rearranging, re-sequencing or reallocating Construction Manager's Work to accommodate
a Recovery Schedule or City-directed acceleration in order to meet a Milestone, solely to
the extent such costs result from Excusable Delays, to reimburse Construction Manager
for approved actual costs in connection with the Recovery Schedule or City-directed
acceleration, including labor, materials, equipment and services necessary for
modifications or extra work required to implement a Recovery Schedule or other City-
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directed acceleration or extraordinary measures, plus Construction Manager's overhead
and profit for Change Order Work as set forth in the Contract Documents.
c. Except for expenses approved for payment pursuant to Subsection 5.2.3.b.above,all other
costs incurred by Construction Manager in preparing, implementing and achieving the
Recovery Schedule, including the costs of taking such extraordinary measures as may be
ordered pursuant to Subsection 5.2.3.a, shall be borne by Construction Manager and shall
not result in a change to the Guaranteed Maximum Price.The Construction Manager shall
expressly acknowledge and agree in the GMP Amendment that its pricing of the Work and
the determination of the Guaranteed Maximum Price is expressly based upon the
Construction Manager's assuming the foregoing cost risks of taking all extraordinary
measures that may be necessary, including acceleration of the Work, in order to achieve
the Milestones and/or Substantial Completion. In no event shall Construction Manager be
entitled to any other compensation or recovery of any damages in connection with
acceleration or constructive acceleration,including consequential damages, lost efficiency,
opportunity costs or similar remuneration.
d. In the event that Construction.Manager fails to provide an acceptable Recovery Schedule
within ten (10) days of Construction Manager's receipt of a notice to furnish same,
Construction Manager shall have no right to receive progress payments until such time as
Construction Manager has prepared and City has accepted such Recovery Schedule. Any
failure or delay in the submittal or acceptance of a Recovery Schedule shall not result in
any time extension under the Contract Documents.
5.3. Substantial Completion. As a condition of Substantial Completion, all of the following must occur:
5.3.1. All Work affecting the operability of the Project or safety has been completed in accordance with
the Contract Documents;
5.3.2. If applicable, all Pre-commissioning activities, including alignment, balancing, lubrication and
first-fill, have been completed;
5.3.3. The Work may be operated within manufacturers' recommended limits, in compliance with
Applicable Laws, and without damage to the Work or to the Project;
5.3.4. Construction Manager has corrected all defects,deficiencies and/or discrepancies to the entire
Work as identified by the City or the Architect-Engineer, and the Architect-Engineer confirms
such corrections have been made in writing;
5.3.5. When Construction Manager believes it has achieved Substantial Completion, Construction
Manager shall request an inspection by the City and the Architect-Engineer or RPR, and shall
provide the City with evidence supporting its assessment of Substantial Completion, including
any specific documents or information requested by the City to assist in its evaluation thereof.
Construction Manager shall,prior to said inspection,develop its preliminary Punch List for input
and comment by the City and the Architect-Engineer. Once the preliminary Punch List is
submitted to the City and RPR, the City and its representatives shall then schedule a walk-
through of the Project with Construction Manager and the Architect-Engineer. Following the
walk-through,Construction Manager shall develop and provide City with the list of all remaining
items of Work to be completed or corrected, and which incorporates items and comments
identified or provided by the City and Architect-Engineer comments and is certified for
completeness and accuracy by the Architect-Engineer("Substantial Completion Punch List"),
provided,however,that failure to include any items on such Substantial Completion Punch List
does not alter the responsibility of the Construction Manager to complete all Work in
accordance with the Contract Documents; and
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5.3.6. Any and all appurtenances, utilities,transportation arteries and any other items required under
the Contract Documents and necessary to serve that portion of the Work are sufficiently
completed, a temporary certificate of completion or Certificate of Occupancy, as applicable, is
issued for the Work for which a Certificate of Substantial Completion is being sought and/or all
conditions or requirements of authorities having jurisdiction are complied with, to permit the
City to utilize and occupy that portion for its intended use in accordance with the Contract
Documents without material interference from any incomplete or improperly completed items
of Work;
5.3.7. With respect to any Project for which a right-of-way permit is required from the City of Miami
Beach's Public Works Department, including this Project, in no event shall Substantial
Completion occur prior to the final lift of asphalt and acceptance thereof by the agencies having
jurisdiction(including,without limitation,the City's Public Works Department).
5.4. Certificate of Substantial Completion. Any determination by the Architect-Engineer and the
Construction Manager of Substantial Completion shall not be binding on the City, and the ultimate
determination of Substantial Completion shall rest with the City and shall be evidenced by the City's
executing and returning to the Construction Manager its Certificate of Substantial Completion(or Partial
Substantial Completion, as applicable).
5.4.1. When the City, on the basis of an inspection, determines that the Work or designated portion
thereof is substantially complete, and when the Construction Manager has complied with all
other conditions precedent to Substantial Completion provided for in Section 5.3 and the other
Contract Documents, the City will then prepare a Certificate of Substantial Completion or
Certificate of Partial Substantial Completion as applicable which shall establish the Substantial
Completion Date. The City shall be responsible for security, maintenance, heat, utilities,
damage to the Work, and insurance, and shall fix the time within which the Construction
Manager shall complete the items listed in the Substantial Completion Punch List. If the City
issues a Certificate of Substantial Completion on the basis of partial completion of the Project,
or upon the basis of a partial or temporary certificate of occupancy or certificate of completion,
as applicable, City may include such additional conditions, as it deems appropriate to protect
its interests pending substantial completion of the entire Project or issuance of a permanent
certificate of occupancy or certificate of completion, as applicable.
5.4.2. The City shall not unreasonably withhold or condition acceptance and execution of a Certificate
of Substantial Completion (or a Notice of Partial Substantial Completion); provided, however,
the Project shall not be deemed Substantially Complete and the City shall not execute a
Certificate of Substantial Completion until all of the criteria for achieving Substantial
Completion as identified in Section 5.3 and any other Contract Documents have been satisfied,
and(2) in the case of a portion of the Project,the conditions set forth in Section 5.5 shall have
been satisfied.
5.5. Partial Substantial Completion. Partial Substantial Completion of the Work shall occur when the City
determines that a portion of the Work,as defined in the Contract Documents and/or otherwise by logical
boundaries, is Substantially Complete in accordance with the Contract Documents. The City may(but
shall not be obligated to) agree that a portion or component of the Work, acceptable to the City in its
sole discretion, may be certified as Substantially Complete provided that:
5.5.1. The requirements provided under Sections 5.3 and 5.4 above for issuance of a Certificate of
Substantial Completion are complied with for the portion of the Work for which a Notice of
Partial Substantial Completion is being sought;
5.5.2. Such portion and any and all appurtenances, utilities, transportation arteries and any other
items required under the Contract Documents and necessary to serve that portion of the Work
are sufficiently completed, a temporary certificate of completion or Certificate of Occupancy,
as applicable, is issued for the portion of the Work for which a Certificate of Partial Substantial
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Completion is being sought and/or all conditions or requirements of authorities having
jurisdiction are complied with, to permit the City to utilize and occupy that portion for its
intended use in accordance with the Contract Documents without material interference from
any incomplete or improperly completed items of Work;
5.5.3. The City is fully able to use and occupy the portion of the Work for the purposes intended and
the Construction Manager separates the portion of the Work which is Substantially Complete
from non-complete areas of the Project in order to prevent noise, dust and other construction
disturbances which would materially interfere with the use of such portion for its intended use
in accordance with the Contract Documents and to assure the safety of those entering, exiting
and occupying the Substantially Completed portion of the Work;
5.5.4. Partial Substantial Completion shall not constitute Final Completion of the Work or Substantial
Completion of the Project, nor shall it relieve the Construction Manager of any responsibility
for the correction of Work(whether or not included in portion of Work Substantially Complete)
or for the performance of Work not complete at the time of Partial Substantial Completion;and
5.5.5. As time is of the essence, Construction Manager shall sequence its Work so as to achieve the
Milestones set forth in Appendix D and further delineated in the Project Schedule.
5.6. Beneficial Occupancy. If applicable, Beneficial Occupancy shall occur if the City determines that a
portion of the Work may be occupied prior to Substantial Completion. City may take Beneficial
Occupancy in accordance with the provisions of the Contract Documents.
5.6.1. Prior to the anticipated date of Beneficial Occupancy,Construction Manager shall separate the
portion of the Work to be occupied from non-complete areas of the Project in order to prevent
noise, dust and other construction disturbances which would materially interfere with the use
of such portion for its intended use in accordance with the Contract Documents and to assure
the safety of those entering, exiting and occupying the completed portion to be occupied.
5.6.2. Beneficial Occupancy shall not constitute Substantial Completion or Final Completion of the
Work, nor shall it relieve the Construction Manager of any responsibility for the correction of
Work(whether or not included in the portion of Work to be occupied)or for the performance of
Work not complete at the time of Beneficial Occupancy.
5.6.3. After Beneficial Occupancy and as conditions of Substantial Completion, the Construction
Manager shall deliver to the City complete as-built drawings, all approved Shop Drawings,
maintenance manuals, pamphlets, charts, parts lists and specified spare parts, operating
instructions and other necessary documents required for all installed materials, equipment, or
machinery, all applicable warranties and guarantees, and the appropriate certificate of
occupancy or certificate of completion that are related to the portion of the Work being
occupied.
5.6.4. Construction Manager's insurance on the unoccupied or unused portion or portions of the
Project Site shall not be canceled or lapsed on account of such Beneficial Occupancy.
5.6.5. Construction Manager shall be responsible to maintain all utility services to areas occupied by
the City until Final Completion.
5.7. Final Completion. Final Completion of the Project shall be deemed to have occurred if all the following
have occurred:
5.7.1. Substantial Completion of the entire Project has occurred;
5.7.2. The Work can be used and operated in accordance with Applicable Laws bearing on the
performance of the Work and applicable permits;
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5.7.3. All spare parts, special tools and attic stock purchased by Construction Manager as part of
Vendor supplies shall have been delivered to City and clear of all Liens;
5.7.4. All items on the Substantial Completion Punch List shall have been completed by Construction
Manager to City's satisfaction and all final inspections have been performed;
5.7.5. Construction Manager has satisfied the additional conditions prescribed by the City in
conjunction with a Certificate of Substantial Completion issued on the basis of partial
completion of the Project, or a partial or temporary Certificate of Occupancy or Certificate of
Completion, as applicable;
5.7.6. Construction Manager has delivered evidence to the City that all permits that are Construction
Manager's responsibilities as specified under the Contract Documents have been satisfied and
closed, and that a Certificate of Completion or Certificate of Occupancy (as applicable) has
been issued by the authority having jurisdiction, and the Project or designated portion thereof
is sufficiently complete in accordance with the Contract Documents and can be used for its
intended purpose for uninterrupted operation, including, without limitation, acceptance if
completed as-built, if required by the agency having jurisdiction.
5.7.7. Construction Manager shall have provided to City final releases and complete and
unconditional waivers of liens for all Work performed by Construction Manager and each
Subcontractor or Suppliers, and a Consent of Surety to Final Payment;
5.7.8. Construction Manager shall have delivered to the City a certification identifying all outstanding
Claims (exclusive of any Liens or other such encumbrances which must have been
discharged)of Construction Manager(and of its Subcontractors, Suppliers and any other party
against Construction Manager) with written documentation reasonably sufficient to support
and/or substantiate such Claims;
5.7.9. Construction Manager shall have delivered to the City a written assignment of all warranties
or guaranties which Construction Manager received from Subcontractors or Suppliers to the
extent Construction Manager is obligated to do so;
5.7.10. Construction Manager shall have delivered to City a complete set of as-built documents and
Project Records prepared in accordance with the Contract Documents;
5.7.11. Construction Manager has delivered to City all other submittals required by the Contract
Documents, including all installation instructions, operations and maintenance manuals or
instructions for equipment furnished by Construction Manager, catalogs, product data sheets
for all materials furnished by Construction Manager and similar information;
5.7.12. All rubbish and debris have been removed from the Project Site; and
5.7.13. All Construction aids, equipment and materials have been removed from the Project Site.
5.7.14. Construction Manager has delivered to the City all executed warranties and guarantees
required by the Contract Documents, all of which shall be in the name of the City and run to
the benefit of the City;
5.7.15. If applicable,certificates of insurance indicating that any insurance required of the Construction
Manager or Subcontractors by the Contract Documents shall remain in full force and effect for
the required period of time;
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5.7.16. Any other documentation establishing payment or satisfaction of obligations, including
receipts, releases and final waivers of lien from the Construction Manager and all
Subcontractors, to the extent and in such form as may be reasonably required by the City;
City shall deliver to Construction Manager a Certificate of Final Completion as soon as
practicable following declaration by City that Final Completion has occurred. Final
Completion is a condition precedent to Final Progress Payment.
ARTICLE 6
GUARANTEED MAXIMUM PRICE FOR CONSTRUCTION
6.1. The initial schedule prepared by the Construction Manager for the Project shall reflect and track the
design progress through the completion of the presentation of the GMP Proposal for the construction
of the Project and completion of Construction Documents. The Construction Manager shall follow the
process required by this Agreement for the preparation and submittal of a GMP for the Project. The
Construction Manager shall propose for the Project, the amount to be included in the GMP for the
Construction Manager's general conditions costs and Construction Manager's Contingency identified
in Subsection 6.4.1. The City shall have the option of accepting or rejecting the GMP Proposal as
presented by the Construction Manager. Should the City Commission accept the GMP Proposal, a
GMP Amendment reflecting that authorization shall be issued. Once accepted by City, any mistakes
by Construction Manager in estimating costs or Work in its preparation of a GMP shall not serve as the
basis for a Claim by Construction Manager or upward adjustment to the GMP.
6.2. Upon acceptance of a GMP Proposal and execution of the GMP Amendment,the GMP for the Project
will be fixed and firm for the duration of the Work and shall include the maximum compensation payable
to Construction Manager for all costs, expenses, taxes, overhead and profit for the full and complete
performance of all Work required by or reasonably inferable from the Contract Documents. The GMP
is not subject to price escalation or de-escalation and is not subject to increase or decrease,except for
changes in the Work or adjustments as approved by Change Order and in accordance with the Contract
Documents. The GMP shall be construed at any given point in time to include any fixed firm
adjustments thereto made by Change Order in accordance with the Contract Documents. In the event
the Construction Manager's total expenditures for the Project exceed the Guaranteed Maximum Price
as may be adjusted pursuant to the Contract Documents, the Construction Manager shall pay such
excess from its own funds without any reimbursement by the City. City shall not be required to pay
any amount that exceeds the Guaranteed Maximum Price as may be adjusted pursuant to the Contract
Documents, and the Construction Manager shall have no Claim against the City on account thereof.
6.3. The GMP Proposal shall form the basis of negotiations between the Construction Manager and the
City. The City shall have no obligation to accept any GMP Proposal of the Construction Manager
regardless of that proposal's relationship to the City's Construction Budget or the most current Estimate
or for any other reason. After each negotiation session, unless agreement is reached the City shall
determine if further negotiations are warranted. If not, the negotiations shall be declared not to be
successful, and the City may proceed as follows:
6.3.1. Reject the GMP and direct the Architect-Engineer for the Project and the Construction
Manager to investigate, redesign, develop for City consideration Value Engineering
possibilities, and other cost savings and to re-submit a new, lesser, proposed GMP.This may,
at the City's option, include reduction in scope; or,
6.3.2. Reject the GMP, take possession of the Construction Documents and other Contract
Documents and Project Records, terminate this Agreement and select a new construction
manager for the Project, bid the Work to a general contractor or otherwise complete with other
forces or take such action, if any, that the City may determine is in its best interest. In this
event, the Construction Manager shall not perform any other services for the Project, and
Construction Manager's sole compensation;shall be limited to Construction Manager's Pre i
Construction Phase Fee as specified in Section 7.1.11 and any unpaid amounts due for any
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Draft Contract No.23-461-01
remaining undisputed-Work performed pursuant to any Notice to Proceed prior`to the date
thereof. In the event any option under this subparagraph is chosen by the City, the
Construction Manager shall immediately turn over to the City all Construction Documents and
other Project Records, and upon payment of the fees specified in this Section 6.3.2, neither
Party shall have or owe any further obligation whatsoever to the other Party.
6.4. Construction Contingency. In addition to the Base GMP,a GMP for the Project will include an agreed
upon sum as the Construction Manager's Contingency relating to construction of the Project. The City
shall separately establish a City Contingency fund,which shall not be included as part of the GMP,and
which will be available to the City to pay for Project costs as outlined in Subsection 6.4.2. Use of the
Construction Manager Contingency shall be as provided in Section 6.4.1. Use of the City Contingency
shall be requested through the Change Order process in Article 9 and must be approved in writing by
the City prior to the prosecution of the related Work.
6.4.1. Construction Manager's Contingency. The Construction Manager's Contingency shall be for
the Construction Manager's use against risks assumed by Construction Manager in providing
the GMP with uncertainties that are beyond the control of the Construction Manager, including
the reasonable and necessary costs incurred by the Construction Manager due to (1)
increased costs of the Project pursuant to Section 8.2 for any items of Work that are reasonably
inferable from the Contract Documents; (2) unforeseen circumstances relating to construction
of the Work not directly or indirectly attributable to Construction Manager's (or its
Subcontractors or Suppliers) noncompliance with the Contract Documents, and which result
in unavoidable increases in the Cost of the Project; (3) increased costs/escalation resulting
from the Subcontractor and Supplier bidding process due to changed market conditions, as
measured against a relevant market index selected by the City; (4) increased Costs of the
Project resulting from questions of conflicts, clarity or coordination of the Construction
Documents, provided such coordination questions do not implicate matters covered by
Construction Manager's warranty pursuant to Subsection 2.5.2.4; (4)costs for implementing a
hurricane preparedness plan pursuant to Subsection 2.7.17.16, and further provided that all
such costs and expenses must be a Cost of the Project. If bids are received below the
applicable line items in the GMP, the buyout savings or surplus will be added to the
Construction Manager's Contingency. .
a. All payments hereunder shall be made in accordance with and subject to Article 11 of the
Agreement. Upon making a draw against the Construction Manager's Contingency, the
Construction Manager shall increase the relevant line items in the Schedule of Values by
the amount of the draw, including any associated Construction Overhead and Profit Fee,
and shall decrease the respective Construction Manager's Contingency line item
accordingly. Construction Manager's draws made against the Construction Manager's
Contingency shall be reported to the Project Coordinator on a monthly basis with all
associated supporting documentation sufficient to evidence each draw against the
Construction Manager's Contingency.
b. The Project Coordinator, RPR and Architect-Engineer shall have the authority to verify all
actual costs charged to the Construction Manager's Contingency. The City may at any
time dispute the legitimacy or reasonableness of any draws made or costs charged to the
Construction Manager's Contingency, and the City may, pursuant to Section 11.5 of the
Agreement, withhold such disputed amounts from any other amounts otherwise due the
Construction Manager. Any dispute with regard to the legitimacy or reasonableness of
such expenditures(or City's withholding thereof) may be the subject of a Claim.
c. In no event shall the use of the Construction Manager's Contingency cause for the GMP
to be exceeded,and the Construction Manager shall be solely responsible for all costs that
exceed the GMP(as adjusted by Change Order or Construction Change Directive),without
any reimbursement from the City. Construction Manager shall use all diligent, good-faith
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efforts to maximize cost savings and minimize use of the Construction Manager's
Contingency.
6.4.2. Citv's Contingency. The City's Contingency shall be an amount,determined by the City,which
will be available to the City to pay for Project costs which are expressly chargeable to the City
or determined to be the City's responsibility under the Contract Documents, including, as it
relates to the Construction Manager, the following increased Costs of the Project incurred by
Construction Manager:
a. Express written changes in the Work made in the discretion of the City after issuance of a
Change Order or Construction Change Directive relating thereto. The decision to make
such changes, and to incur the costs that arise there from, shall be in the sole discretion
of the City. No costs may be charged to the City's Contingency under this subsection
without express approval of City.
b. Changes to the Work if ordered by agencies having jurisdiction, provided such Work
directly results from City's issuance of a Notice to Proceed prior to obtaining full permits
thereon;
c. In the event of Excusable Delay, reasonable acceleration costs to meet Milestones, if
approved by the City pursuant to 5.2.3(b);
d. Differing site conditions pursuant to Section 9.2;
e. Post-hurricane or storm-related Construction Change Directives;
f. Increased Costs of the Project resulting from other actions of the City deemed to be City's
responsibility and/or compensable under the Contract Documents.
Unless Construction Manager secures City's written agreement that such costs are City's
responsibility, documentation of responsibility for such costs shall be submitted with the
Construction Manager's Claim. When Construction Manager has reason to anticipate that
such costs may be incurred, it shall be the Construction Manager's responsibility, when
feasible,to provide the City with sufficient advance notice in accordance with Article 15 or
as otherwise provided in the Contract Documents, so as to provide the City with a
reasonable opportunity to avoid such costs. Such costs shall be deemed the City's
responsibility if City subsequently agrees in writing to grant the Claim and accept such
responsibility, or if the Claim is granted and responsibility assigned to City pursuant to the
dispute resolution process under Article 15 and all reviews thereof are exhausted or
waived by City. The Construction Manager has no right or entitlement whatsoever to the
City's Contingency, and use of such funds are subject to the City's prior written approval
and issuance of a Change Order or Construction Change Directive by the City at its sole
and absolute discretion.Any unused City Contingency remaining at the completion of the
Project shall accrue solely to the City.
6.4.3. Construction Manager will be required to furnish documentation evidencing all expenditures
charged to the Construction Contingency, and demonstrating that the costs incurred were
necessary for the Work. Construction Manager shall identify the amounts sought to be charged
to the Construction Contingency, whether the charge is to be applied to the Construction
Manager's Contingency or the City's Contingency,and the reasons why the amount should be
charged to either the Construction Manager's Contingency or City's Contingency.
Documentation for use of the Construction Contingency shall be determined by the Project
Team, included in the Project Manual and displayed monthly in the PMIS. The Architect-
Engineer, RPR and/or Project Coordinator shall have authority to verify the actual costs.
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6.4.4. The grant of a Claim shall not result in a charge against the City's Contingency unless the
Claim expressly requests a charge against the City's Contingency and the grant of the Claim
expressly approves the charge against the City's Contingency.
6.4.5. Construction Contingency accounts shall contain no Construction Overhead and Profit Fee
and shall not automatically entitle Construction Manager to any Construction Overhead and
Profit Fee or other markup. With respect to the Construction Manager's Contingency,
Construction Overhead and Profit Fee shall be paid to the Construction Manager as part of the
monthly Applications for Payment and as draws are made for costs charged against the
Construction Manager Contingency, with the Schedule of Values to be adjusted accordingly.
With respect to the City's Contingency,the Construction Overhead and Profit Fee shall be paid
as part of Change Orders or Construction Change Directives.
6.5. Taxes. The Construction Manager shall pay,as a Cost of the Project,all existing and future applicable
Federal, State, local and other sales, consumer, use and similar taxes, whether direct or indirect,
relating to, or incurred in connection with, the performance of the Work. The Guaranteed Maximum
Price shall include all other Federal, State, local and/or other direct or indirect taxes which may apply.
In the event the City elects to implement a direct purchase program for the purchase of materials and
equipment to achieve Florida sales tax savings,Construction Manager shall comply with the provisions
set forth in Appendix F with respect to any such City purchases. Construction Manager is responsible
for reviewing the pertinent state statutes involving state taxes and complying with all requirements.
6.5.1. Any sales tax savings shall be either identified in the GMP Amendment or passed to the City
in the form of a reduction in the GMP via deductive Change Order, provided, however, such
deductive Change Order shall not include a reduction in the proportionate amount of
Construction Overhead and Profit Fee applicable to the direct cost of the Work(plus sales tax)
that is the subject of the Change Order.
6.6. At the time of submission of the GMP proposal for the Project,the Construction Manager will propose
a schedule for substantial completion of the Project. The City and the Construction Manager may
negotiate incentives for early completion of the Project and sharing of cost savings. The City and the
Construction Manager may also negotiate liquidated damages for failure to meet certain Milestones or
substantial completion of the Project.
6.7. The term"GMP,"as used in this Agreement is a term of convenience only and is not intended to affect
how a GMP or its components are to be determined or adjusted.
ARTICLE 7
CONSTRUCTION MANAGER'S FEES
7.1 In consideration of the performance of the services specified in this Agreement with respect to the
Project on which the City has issued a Notice to Proceed, the City agrees to pay the Construction
Manager as compensation for its services relating to the Project,fees as set forth in Subsections 7.1.1,
7.1.2 and 7.1.3.
7.1.1 Pre-Construction Phase Fee. For the performance of the Pre-Construction Phase Services for
this Project including profit and overhead related to these preconstruction services, a fixed fee
set forth herein. The fee for the Pre-Construction Services Phase shall be a fixed lump sum
fee of One Hundred Ninety-Three Thousand Three Hundred and Eighty-five Dollars
$193,385.00 ("Pre-Construction Phase Fee"), and shall be paid upon completion of the Pre-
construction Phase,or in installments,upon completion of specified Tasks as may be approved
by the Contract Administrator. Pre-construction services for the Project shall include all
services specified in Section 2.5 relating to design review through 100% Construction
Documents for the Project,and other services specified in Section 2.6 of this Agreement, and
all personnel and items required with respect thereto. If any Pre-Construction Services for the
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Project run concurrently with Construction Phase services for the Project Construction
Manager shall not be entitled to any additional fee with respect thereto.
a. The Construction Manager's personnel to be assigned during this phase and their duties
and responsibilities to this Project and the duration of their assignments are shown on
Appendix B.
b. The Pre-Construction Phase Fee includes general overhead; salaries and labor for
necessary staff and consultants required to complete the Pre-Construction Phase Services
specified in this Agreement.
c. If the scope of the Pre-Construction Phase Services is changed materially, the Pre-
Construction Fee may be equitably adjusted. There shall be no adjustments in the Pre-
Construction Fee following the City's acceptance of the GMP proposal.
7.1.2 Construction. Phase General Conditions Fee. Prior to commencement of the Construction
Phase for the Project, the City will issue a Notice to Proceed directing the Construction
Manager to proceed with the Construction Phase.The Construction Manager's compensation
for General Conditions Work or services performed during the Construction Phase shall be a
fixed lump sum amount fee negotiated as part of the GMP, based on a detailed schedule of
General Conditions costs and services that shall be provided by the Construction Manager
("General Conditions Fee"). The General Conditions Fee shall be invoiced and paid in monthly
payments as agreed by the Parties and set forth in the applicable GMP. The first monthly
payment shall become due thirty(30)days following the issuance of the Notice to Proceed by
the City (and the submission by the Construction Manager of a complete and approved
Application for Payment satisfying all requirements of Article 11)and the final monthly payment
shall be paid only when construction of the Project is finally completed and occupancy of the
Project accepted by the City. If construction is authorized only for a part of the Project,the fee
paid shall be proportionate to the amount of Work authorized by the City.
7.1.2.1 Adiustments in Fee. For changes in the Project as provided in Article 9, the General
Conditions Fee for the Project shall be adjusted as follows:
a. The Construction Manager shall be paid an additional fee subject to negotiation
with the City if the Construction Manager is placed in charge of reconstruction of
an uninsured loss excluding any condition that may have been caused from
negligent acts by the Construction Manager, its employees, agents,
Subcontractors and others for whom Construction Manager may be responsible.
b. Should the Contract Time set forth in the GMP Amendment be contractually
extended for additional Work due no fault of the Construction Manager or its
Subcontractors, the Construction Manager's additional General Conditions Fee
will be negotiated and set forth in a Change Order, as an adjustment to the GMP
on a per working day basis, in accordance with the provisions of Article 9. The
Construction Manager's staff during such time extensions shall be established and
set forth in the Change Order.
c. Construction Manager's Exclusive Remedy. In the event the date for Substantial
Completion or Final Completion is extended for Excusable Delay in accordance
with Article 9, the Construction Manager's sole and exclusive remedy is an
extension of the Contract Time for completion of the Work.
7.1.2.2 Costs and Expenses Included in General Conditions Fee.The direct and indirect costs
and expenses for facilities or performance of Work by the Construction Manager for
items which do not lend themselves readily to inclusion in one of the separate trade
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contracts and within this Subsection below, are included in the General Conditions
Fee during the Construction Phase and not otherwise reimbursable:
a. Onsite and Local Office Project Management Staff: Wages,salaries, benefits and
costs associated with Construction Manager's supervisory and other technical,
administrative and clerical Project personnel engaged in supervision and
management of the Work on the Project Site, at the agreed-upon billing rates to
be established as part of the GMP Amendment, but only to the extent not already
included as Cost of the Project under Article 8, and specifically attributable to the
Work performed in connection with the Project, including the Project Manager,
Construction Superintendent,structural superintendent,assistant superintendent,
shop drawing checker, secretary, layout foreman, consultants, estimators, cost
controllers, accountants, office administrative personnel, time keepers, clerks,
safety director, safety coordinator, safety labor, overall project schedule
preparation, detailed bar chart showing the critical path scheduling and scheduler
costs, cost of periodic site visits for supervisory, inspection, oversight, or
management of the Project by specific "home office" personnel previously
approved in writing by the City;
b. Field/Onsite Construction Offices and Supplies including transportation and set-
up of onsite construction office trailers,construction of ramps and stairs for onsite
construction office, interior build-out of onsite construction office, onsite
construction office trailer rental, first aid supplies, reproduction services, monthly
office supplies, Project reference manuals, field office postage, field office
furniture,onsite construction office computer system and software,installation and
equipment of field computer ISDN line, monthly cost for field ISDN/computer line,
onsite construction office photocopier rental and supplies,plan printing(other than
revisions) or document reproduction used for bidding or information purposes
required by the Contract Documents, long-distance telephone calls, telegrams,
postage, package delivery and courier service, hardwired telephone service, and
reasonable expenses of Construction Manager's Jobsite office if incurred at the
Project Site and directly and solely in support of the Work, Project Site
photographs, field office express mail/courier charges, miscellaneous onsite
construction office supplies, safety material and equipment, small tools,
equipment or machinery, miscellaneous hand tool rental equipment (other than
that of the subcontractors), hand tool purchase, hand tool repair, hand tool rental,
job radios,jobsite cleaning labor and material, trash containers, final exterior and
interior cleaning materials and labor other than subcontractors, miscellaneous
cutting and patching, traffic control, off duty police officer(s), alarm system and
monitoring for trailers;
c. Surveys, measurements and layout work reasonably required to perform the
Work;
d. Retention/storage of Project Records;
e. Off-site secure storage space or facilities approved in advance by the City;
f. Miscellaneous expendable items, extended jobsite General Conditions, interest
on monies retained by the City, escalated costs of materials and labor, home
office expenses or any cost incurred that may be allocated from offices of the
Construction Manager or any of its Subcontractors;
g. Other expenses or charges properly incurred and paid in the prosecution of the
Work and services required of Construction Manager pursuant to Sections 2.7 and
2.8 and other provisions of this Agreement, with the prior written approval of the
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Draft Contract No.23-461-01
City, for the provision of management and other related services necessary to
complete the Project in an expeditious and economical manner consistent with
this Agreement and in the best interests of the City, but specifically excluding legal
costs, attorney's fees, court costs and any other fees, costs or expenses already
included as a Cost of the Project in Article 8; and
h. Other costs as may be specified in the GMP Amendment.
Construction Manager agrees that no payment or reimbursement beyond the General
Conditions Fee shall be made for any of the general conditions items set forth in this
section 7.1.2,unless such general conditions costs and expenses are actually incurred
and arise from Changes in the Work approved by the City. Construction Manager
covenants and agrees that it shall not seek, nor is it entitled to, reimbursements or
payments as part of the General Conditions Fee,for any items it has already included
as a Cost of the Project in Section 8.2. Construction Manager's team will at all
times include, at least, the positions listed in its table of organization to be included in
the GMP Amendment. In the event Construction Manager fails to provide such
personnel or other items included within the General Conditions Fee,then the General
Conditions Fee will be adjusted(deducted)accordingly.
7.1.3 Overhead and Profit for Construction Phase. For all overhead, profit and general expenses of
any kind, except as may be expressly included in Article 8 and the GMP Amendment, for
services provided during and related to the Construction Phase of the Project,the Construction
Manager's overhead and profit fee shall be 6.5%of the Cost of the Project plus the General
Conditions Fee ("Construction Overhead and Profit Fee"). For the avoidance of doubt,
Construction Manager shall not be paid any fee on its Construction Overhead and Profit Fee.
The Construction Overhead and Profit Fee shall be paid proportionally to approved
expenditures for Direct Cost Items under Section 8.2, and less retainage in accordance with
Article 11. The City's obligation to pay the Construction Overhead and Profit Fee is subject to
the Guaranteed Maximum Price.The balance of the Construction Overhead and Profit Fee for
the Project, if any, shall be paid upon Final Completion.
i. The fixed Construction Overhead and Profit Fee shall not be subject to increase or
decrease for any Change in the Work or Change Order(whether additive or deductive),
except as provided in Article 9.
ii. In the event that the Certified Cost of the Work shall exceed the Guaranteed Maximum
Price, the Construction Manager shall pay such excess at its own cost and expense, and
the City shall not be required to pay any part of such excess or the Construction Overhead
and Profit Fee and the Construction Manager shall have no Claim against the City on
account thereof.
7.2 Shared Savings.
7.2.1 It is intended that the Construction Manager fee will include a share of the cost savings,if any,
realized during the bidding and construction of this Project completed by Construction
Manager. In the event that the total Certified Cost of the Project, any unused remaining
Construction Manager's Contingency and General Conditions Fee is less than the City-
approved Cost of the Project, Construction Manager's Contingency and the General
Conditions Fee set forth in the GMP Amendment (as the same may be adjusted by Change
Order, including deductive Change Orders for direct purchase of materials pursuant to
Appendix F), less any amounts assessed for damages or liquidated damages pursuant to
Subsection 5.1.3.1(a) through (c), then the difference (hereinafter called "Project Cost
Savings") shall be allocated seventy-five percent (75%) to the City and twenty-five percent
(25%)of the Project Cost Savings to the Construction Manager as an Additional Fee.
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7.2.2 For the avoidance of doubt,City's Contingency and any savings realized for Owner-Purchased
Materials (which savings shall inure solely to the City), shall not be used to calculate Project
Cost Savings. The Additional Fee, if any, shall be paid to the Construction Manager on or
before the date which is thirty(30) days after the later to occur of the following events: (i)the
Construction Manager has complied with all requirements in Article 11 (including Sections
11.13 through 11.15, and (ii) the amount of such fee having been finally determined by the
City as provided in this Agreement.
ARTICLE 8
COST OF THE PROJECT
8.1 With respect to this Project,the City agrees to pay the Construction Manager for the Cost of the Project
as defined in this Article 8. Such payment shall be in addition to the Construction Manager's fees
stipulated in Article 7.
8.2 Direct Cost Items. The Cost of the Project shall include the following items for equipment, materials,
labor,taxes and Subcontractors to complete the Work:
8.2.1 Wages paid for labor of construction workers directly employed by the Construction Manager
to perform the construction of the Work at the Project Site or, with the Project Coordinator's
advance written approval, at off-site workshops;
8.2.2 Wages paid for labor of supervisory or administrative personnel not included in the
Construction Manager's fees stipulated in Article 7, but who are in the direct employ of the
Construction Manager in the performance of the construction Work at the Project Site,provided
Construction Manager has obtained the advance written approval of the Project Coordinator
for such personnel;
8.2.3 Wages paid for labor of the Construction Manager's supervisory or administrative personnel
engaged at factories,workshops, or on the road, in expediting the production or transportation
of materials or equipment required for the Work, but only for that portion of their time required
for and actually dedicated to the Work;
8.2.4 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions,
assessments and benefits required by law or collective bargaining agreements and, for
personnel not covered by such agreements, customary benefits such as sick leave, medical
and health benefits, holidays, vacations and pensions (excluding bonuses), provided such
costs are based on wages and salaries included in the Cost of the Project under Subsections
8.2.1 through 8.2.3;
8.2.5 Temporary Project utilities including the portion of temporary electric hookup not typically paid
by the electrical subcontractor,temporary electrical distribution and meters,monthly temporary
electric charge by Florida Power & Light, HVAC testing electrical charges, temporary water
connection not typically provided by the plumbing subcontractor, temporary water meter,
temporary water deposit, fire hydrant service, temporary fire protection monthly temporary
water service, temporary toilets, temporary construction phone hookup and installation,
temporary construction phone monthly charges, construction phone long distance charges,
cellular phones, site erosion control and Project entrance(s), fencing and covered walkways,
storage containers, storage rental costs, temporary onsite roads, temporary onsite fencing,
temporary onsite gates, street barricades, construction temporary signage, pedestrian
walkway and street occupation fees for construction activities, temporary trash chute and
dumpsters and pest control(mosquitoes).
8.2.6 Cost of all materials, supplies and equipment incorporated in or to be incorporated in the
completed construction of the Project, including costs of transportation and storage thereof,
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and cost of materials in excess of those actually installed(but only to the limited extent to allow
for reasonable waste and spoilage);
8.2.7 Payments due to Subcontractors and Suppliers from the Construction Manager or made by
the Construction Manager to Subcontractors for their Work performed pursuant to subcontracts
or agreements issued in accordance with the Contract Documents;
8.2.8 Costs, including transportation and storage, maintenance, installation, dismantling and
removal of materials,supplies,of all temporary facilities,machinery,equipment,and hand tools
(except hand tools customarily owned by construction workers) which are provided by the
Construction Manager at the Project Site and are fully consumed in the performance of the
Work Cost of items previously used by the Construction Manager shall mean fair market value;
8.2.9 Rental charges for temporary facilities, machinery and equipment(except hand tools) used at
the Project Site, whether rented from the Construction Manager or others, and costs of
transportation, installation, minor repairs and replacements, dismantling and removal thereof.
Rental charges shall be consistent with those generally prevailing in the location of the Project;
8.2.10 Rental rates and charges consistent with those prevailing in the area of the Project (Miami-
Dade County, or, if such information on prevailing rates and charges is not available, South
Florida)on all necessary machinery and equipment,exclusive of hand tools used at the Project
Site, whether rented from the Construction Manager or other. Such rental charges include
installation,repairs and replacements,dismantling,removal,costs of lubrication,transportation
and delivery costs thereof, which are used in the support of a sub-contractor or the
Construction Manager's own forces in the performance of the Work. If the Parties fail to agree
on the standard rates prevailing in the area of the Project,the standard rates shall be deemed
to be the rates shown in the latest edition of the "AED Green Book" prepared by
EquipmentWatch,San Jose, CA("AED"),or,if not shown in AED,the rates shown in the latest
edition of"Tool and Equipment Rental Guide"prepared by Mechanical Contractors Association
of America ("MCA"); or, if not shown in MCA, the rates shown in the latest edition of"Rental
Rate Blue Book for Construction Equipment" published by EquipmentWatch, San Jose, CA
("Blue Book"); or, if not shown in the Blue Book, the latest edition of"Tool and Equipment
Rental Schedule" published by National Electrical Contractors Association, Bethesda, MD
("NECA"). In any case, the Cost of the Project will be charged the lowest of the applicable
"Hourly", "Daily", "Weekly", or"Monthly" rate specified, based on actual use. Each specified
rate is inclusive of all costs and expenses to furnish the equipment(including transportation,
delivery, pickup, fuel, energy costs, consumables, connections, maintenance, wear and tear,
repair, depreciation, storage, tax, overhead and profit). If an hourly rate is used, equipment
shall be charged based upon actual usage within a'/hour;
8.2.11 Cost of bond premiums, insurance premiums for coverage required by the Contract
Documents and in accordance with Appendix E, including costs of City-authorized additional
coverage (such authorization not to be unreasonably withheld) and/or self-insured retentions
in connection with claims against such coverage, which are directly attributed to this
Agreement, subject to the review and approval of the City, which shall not be unreasonably
withheld;
8.2.12 Sales, use, or similar taxes imposed by any governmental authority and paid by the
Construction Manager or its Subcontractors that are related to the Work and for which the
Construction Manager is liable;
8.2.13 Fees and assessments for the building permit and for other permits, licenses and inspections
for which the Construction Manager is required by the Contract Documents to pay;
8.2.14 The cost of corrective Work subject, however, to the GMP and the provisions of Section 6.2,
and except for any corrective Work made necessary because of defective workmanship or
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other causes contributed to by the Construction Manager or its Subcontractors or suppliers.
No costs shall be paid by the City or schedule adjustments made to the Construction Manager
for any expenses made necessary to correct defective workmanship or to correct any Work
not in conformance with the Construction Documents or applicable construction-related codes
or to correct any deficiency or damage caused by negligent acts by the Construction Manager
or its Subcontractors and suppliers;
8.2.15 Fees of laboratories for tests required by the Contract Documents, except those related to
defective or non-conforming Work for which reimbursement is excluded by the provisions of
the Contract Documents or the costs of which Construction Manager is able to recover from
the Subcontractor(s)responsible for the defective or non-conforming Work;
8.2.16 Costs for trash and debris control and removal from the Project Site;
8.2.17 That portion of the reasonable expenses of Construction Manager's supervisory or
administrative personnel incurred while traveling in the discharge of duties connected with the
Work, to the extent and reimbursement limits permitted by Fla. Stat. 112.061 and subject to
the advance written approval of the Project Coordinator;
8.2.18 Costs incurred due to an emergency affecting the safety of persons and property, not directly
or indirectly attributable to the acts or omissions of the Construction Manager or its
Subcontractors or Suppliers.
8.2.19 Costs for watchman, security services and temporary fencing for the Project.
8.2.20 Costs for efficient logistical control of the Project Site, including horizontal and vertical
transportation of materials and personnel; adequate storage; temporary roads; maintenance
of traffic; and off-site parking for and bussing of construction workers and personnel to and
from the Project Site, net of any value or remuneration received from Subcontractors with
regard to such parking or transportation. The foregoing costs in Subsection 8.2.20 may be
included in the GMP Amendment as part of the General Conditions Fees.
8.2.21 Costs for any Project Jobsite items not referenced herein, not normally provided by the
Subcontractors, which will be provided by the Construction Manager as required to complete
the Work.
8.2.22 Cost of providing one set of as-built documents to the City.
8.2.23 Royalties and license fees paid for the use of a particular design, process or product required
by the Contract Documents.
8.2.24 Costs for electronic equipment and software directly related to the Work, with the City's
advance written approval;
8.2.25 Costs of third-party data processing or information technology support for the Project.
8.2.26 Costs of Quality Control and materials testing, unless such costs are incurred to inspect or test
defective or non-conforming Work.
8.2.27 Costs of overtime premium expense if overtime work is necessary to maintain or improve the
Schedule,provided,however,that such costs shall(1)solely be chargeable to the Construction
Manager's Contingency; (2) be limited to any remaining amounts available in the Construction
Manager Contingency, and(3) in no event cause for the GMP to be exceeded.
Notwithstanding anything to the contrary contained in the Contract Documents, the City-
approved Cost of the Project and the Guaranteed Maximum Price shall only be increased or
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decreased by reason of the issuance of a Construction Change Directive or Change Orders
approved in accordance with Article 9 of this Agreement.
8.3 Costs Not to be Reimbursed. The Cost of the Project shall not include the items listed below, as
such items are either expressly not to be reimbursed or are otherwise contemplated as part of
Construction Manager's fees stipulated in Article 7:
8.3.1. Salaries and other compensation of the Construction Manager's principals (exclusive of loss
prevention oversight and operations manager time spent on the Project) and branch office or
departmental heads, non-line staff personnel (including legal, corporate, insurance/risk
management and similar personnel) and other personnel stationed at the Construction
Manager's principal office or offices other than the site office, except as specifically provided
in Section 8.2.
8.3.2. Expenses of the Construction Manager's principal office and offices other than the site office,
except as specifically provided in Section 8.2;
8.3.3. Overhead and general expenses, except as may be expressly included in Section 8.2;
8.3.4. The Construction Manager's capital expenses, including interest on the Construction
Manager's capital employed for the Work;
8.3.5. Costs due to the fault, negligence or failure to fulfill a specific responsibility of the Construction
Manager, Subcontractors of all tiers, and Suppliers or anyone directly or indirectly employed
by any of them or for whose acts any of them may be liable, including costs for the correction
of damaged, defective or nonconforming Work, disposal and replacement of materials and
equipment incorrectly ordered or supplied,and correcting damage to property not forming part
of the Work;
8.3.6. The Construction Overhead and Profit Fee.
8.3.7. Costs,other than costs included in Change Orders approved by the City,that would cause the
Guaranteed Maximum Price to be exceeded;
8.3.8. Costs for Preconstruction Phase Services;
8.3.9. Losses and expenses sustained by the Construction Manager or any Subcontractors at any
tier, not compensated by insurance or otherwise, if such losses and expenses are due to
infidelity on the part of any employee of Construction Manager, any Subcontractor or Supplier,
anyone directly or indirectly employed by any of them, or anyone for whose acts any of them
may be liable, or others to whom the property may be entrusted;
8.3.10. Except to the extent specifically permitted under any other provisions of the Contract
Documents, costs and expenses due to the willful misconduct or gross negligence of
Construction Manager, any Subcontractor, anyone directly or indirectly employed by any of
them, or anyone for whose acts any of them may be liable;
8.3.11. Losses and expenses not covered by insurance where the Construction Manager, or any
Subcontractor,failed to obtain and/or maintain in effect the insurance required to be carried by
the Contract Documents, or where Construction Manager, or any Subcontractor or Supplier,
failed to obtain and/or maintain such insurance in limits and amounts required by the Contract
Documents except to the extent any deductible provided in such required insurance;
8.3.12. Costs and expenses incurred by Construction Manager upon breach of its warranties or
guaranties;
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8.3.13. Costs associated with the relocation of employees, and any travel costs not expressly
permitted in Section 8.2 (including costs for long-distance travel, costs for travel between the
Project Site and the Construction Manager's office(s), and hotel, car rental and airfare costs);
8.3.14. Any amounts to be paid by the Construction Manager for federal, state or local income or
franchise taxes;
8.3.15. Any costs covered as part of the General Conditions Fee in Section 7.1.2;
8.3.16. Rental costs of machinery and equipment, or licensing charges for software and other items,
which are paid or payable to the Construction Manager or a Related Party, except as
specifically consented by the City in writing (which consent shall not be unreasonably
withheld);
8.3.17. Labor, material, and equipment costs or any other costs incurred which should be back-
charged to any Subcontractor, any Sub-Subcontractor,any direct or lower tier supplier,or any
other party for whom the Construction Manager is responsible;
8.3.18. Costs or losses resulting from lost, damaged by misuse or stolen tools and equipment;
8.3.19. Costs of bonding or securing liens or defending claims filed by any Subcontractor of any tier,
any Supplier, any direct or lower tier supplier or any other party for whom any of such parties
or the Construction Manager is responsible arising from nonpayment,unless such nonpayment
is the result of the City's unexcused or wrongful failure to pay the Construction Manager
undisputed amounts as and when due under the Contract Documents;
8.3.20. Costs of self-insured losses (e.g., losses within the deductible limits maintained by the
Construction Manager or any direct or indirect subcontractor),costs covered by any insurance
carried by Construction Manager or a direct or lower tier subcontractor, costs which would
have been covered by the insurance required to be carried by a Construction Manager or a
direct or lower tier subcontractor under the Contract Documents, and costs which would have
been covered by insurance but for failure of the Construction Manager or direct or lower tier
subcontractor to properly submit, process or give notice to the occurrence or claim;
8.3.21. Costs of employee bonuses and executive bonuses whether or not based in whole or in part
on performance related to the Work;
8.3.22. Costs incurred or paid for recruiting employees (whether to third party recruiters or to
employees);
8.3.23. Severance or similar payments on account of terminated employees;
8.3.24. Costs incurred after the Construction Manager's application for final payment;
8.3.25. Any outside legal fees;
8.3.26. Costs of materials and equipment stored off-site, unless approved in advance in writing by the
Contract Administrator.
8.3.27. Any costs not specifically and expressly described in Section 8.2.
8.4. Discounts and Penalties. All discounts for prompt payment shall accrue to the City to the extent the
Cost of the Project is paid directly by the City or from a fund made available by the City to the
Construction Manager for such payments. To the extent the Cost of the Project is paid with funds of
the Construction Manager at its sole expense, all cash discounts shall accrue to the Construction
Manager. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and
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equipment, shall be credited to the Cost of the Project. All penalties incurred due to fault of the
Construction Manager or its Subcontractors for late payment of cost of the Project will be paid by the
Construction Manager and will not be reimbursable as a Cost of the Project.
8.5 No Duplication. Construction Manager hereby covenants and agrees that there shall be no
duplication of payments for any items comprising the Cost of the Project, including any costs related
to General Conditions as set forth in Subsection 7.1.2.2, notwithstanding any itemization, breakdown
or provision contained in the Contract Documents to the contrary.
8.6 Other Provisions Relating to Costs and Expenses.
a. The billing rates charged by the Construction Manager for wages or salaries and associated labor
burden shall be subject to City approval as part of the lump-sum General Conditions Fee and the
composition of such rates shall not be subject to City audit after approval. The Construction
Manager shall bill the City for the Construction Manager's personnel and jobsite labor at the actual
salaries or wages plus labor burden paid by the Construction Manager. If, at any time, it is
determined that any amounts paid by the City for labor costs for the Construction Manager's
personnel exceed the approved billing rates, the Construction Manager shall promptly reimburse
the City for such overpayment (and the City can offset such overpayment against amounts
otherwise due the Construction Manager)
b. Where any cost or expense is subject to the City's prior approval under the Contract Documents
(including Articles 7 and 8), the Construction Manager shall obtain this approval prior to incurring
the cost.
c. The Construction Manager,with the participation of the Project Team as provided in the Contract
Documents, shall select Subcontractors and suppliers who shall provide labor, equipment and
materials related to completion of the Work. As this"buyout" process is completed, the Schedule
of Values shall be revised and the actual costs associated with the line items in the Schedule of
Values shall be incorporated into such schedule of values. Any net savings between the estimated
costs as reflected in the original Schedule of Values and the actual Subcontractor and supplier
award amounts resulting from the buyout process shall be allocated to the Construction Manager's
Contingency.
ARTICLE 9
CHANGE IN THE PROJECT
9.1 Contract Amendments.The City,without invalidating this Agreement,may order changes in the Work
within the general scope of the Contract Documents consisting of additions, deletions or other
revisions, with the GMP and the Contract Time being adjusted accordingly. Adjustments to the Base
GMP or charges to the Construction Contingency shall be in accordance with Section 6.4. Change
Orders may be issued by the City on its own initiative or in response to a proposal by the Construction
Manager, and shall be subject to the Claims process under Article 15.
9.1.1. Changes in the Work may be accomplished by Change Order or Construction Change
Directive. A Change Order shall be based upon agreement between the City and the
Construction Manager; a Construction Change Directive may be issued by the City alone
and may or may not be agreed to by the Construction Manager. Changes in the Work shall
be performed under applicable provisions of the Contract Documents, and the Construction
Manager shall proceed promptly, unless otherwise provided in the Change Order or
Construction Change Directive. No Change Order shall take effect until Construction
Manager delivers a Consent of Surety increasing the Performance Bond and Payment Bond
by the amount of the Change Order.
9.1.2. If City requests a change in the Work, City shall submit a change request to Construction
Manager, in writing. Within seven (7) business days of Construction Manager's receipt of
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such request from the City, Construction Manager shall provide City with a rough "pencil
copy" estimate of the cost and/or time impacts associated with the request. Within twenty-
one (21) days of Construction Manager's receipt of City's initial request, the Construction
Manager shall submit a detailed proposal to the City stating (i) the proposed increase or
decrease, if any, in the Cost of the Project which would result from such a change, (ii) the
effect, if any, upon the Contract Time and/or achievement of any Milestone by reason of
such proposed change,and(iii)supporting data and documentation,including any requested
by the City in its change request.
9.1.3. If the Construction Manager proposes a change in the Work, such proposal must be
accompanied by a detailed cost breakdown in relation to the Project Budget and sufficient
substantiating data to permit evaluation by the City. If the Construction Manager does submit
a proposal within the preceding seven (7) business day time period, the City shall, within
thirty (30) days following its receipt of such proposal, notify the Construction Manager as to
whether the City agrees with such proposal and wishes to accept the Construction Manager's
proposal. If the City agrees with such proposal and wishes to accept the same, the City and
the Construction Manager shall execute a Change Order which at a minimum specifies: i)
the detailed scope associated with the change to the Work; ii)the amount of the adjustment
in the Cost of the Project and the Guaranteed Maximum Price, if any, and (iii) the extent of
the adjustment in the Contract Time or Milestone, if any. In the event the City disagrees with
the Construction Manager's proposal,the City may either(i)notify the Construction Manager
that the City has decided to not proceed with or approve the requested change, or(ii) issue
a Change Order in accordance with Subsection 9.1.5. below.
9.1.4. The increase or decrease in the Cost of the Project resulting from a change in the Project shall
be determined in one or more of the following ways, subject to the provisions of Subsection
8.2.8:
a. by mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation by the Project Coordinator,Architect-Engineer and
City;
b. by unit prices stated in the GMP or subsequently agreed upon;
c. by time and materials cost and a mutually acceptable fixed or percentage fee for the
Construction Manager. Construction Manager expressly acknowledges and agrees that it
has sufficiently calculated and incorporated any and/or all overhead and profit into its cost
proposal using any of the aforementioned methodologies.
9.1.5. If none of the methods set forth above are agreed upon, the Construction Manager, provided
it receives a written Change Order signed by the City with respect to all undisputed amounts
and Work, shall promptly proceed with the Work involved, subject to Construction Manager's
reservation of rights as to disputed amounts. The cost of such Work shall then be determined
on the basis of the reasonable expenditures and savings of those performing the Work
attributed to the change, including a reasonable overhead and profit in accordance with this
Article 9. With respect to any such Change Order Work, the Project Coordinator with the
Architect-Engineer will establish an estimated cost of the Work and the Construction Manager
shall not perform any Work whose cost exceeds that estimate without prior written approval by
the City. In such case,and also under Subsection 9.1.3 above,the Construction Manager shall
keep and present, in such form as the City may prescribe, an itemized accounting together
with appropriate supporting data of the increase in the Cost of the Project as outlined in Article
8.The amount of decrease in the GMP to be allowed by the Construction Manager to the City
for any deletion or change which results in a net decrease in cost for the Project will be the
amount of the actual net decrease.
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9.1.6. If unit prices are included in the Contract or as part of any Change Order, City shall pay to
Construction Manager the amounts determined for the total number of each of the units of
work completed at the unit price stated in the Schedule of Prices Bid associated with such
Work.The number of units contained in the bid is an estimate only, and final payment shall be
made for the actual number of units incorporated in or made necessary by the Contract
Documents, as may be amended by Change Order. If additional unit price work is ordered,
then the Contractor shall perform the work as directed and shall be paid for the actual quantity
of such item(s)of work performed at the appropriate original Schedule of Prices Bid associated
with such Work.
9.1.7. Increases in the Cost of the Project due to a change in the Project attributable to the City,
either by City's agreement thereto or the grant of a Claim under Article 15, may either be
charged to the City's Contingency or result in an increase to the Base GMP, in the sole
discretion of the City. Decreases in the Cost of the Project due to a change in the Project shall
result in a decrease to the Base GMP. If the event of a decrease in the Base GMP as herein
provided, Construction Manager's Contingency will be decreased proportionately.
9.1.8. The Construction Overhead and Profit Fee for all Change Orders shall be the net change in
the GMP, multiplied by the percentage specified for Construction Overhead and Profit in
Section 7.1.3. Subcontractors and Suppliers' overhead and profit markup or fee for Change
Order or Construction Change Directives shall be reasonable, but in no event shall the
aggregate total amount of overhead and profit that each Subcontractor and all lower tier
subcontractors and Suppliers can charge for Work performed pursuant to Change Orders
exceed 10%. For deductive Change Orders, including deductive Change Orders arising from
both additive and deductive items, the deductive amounts shall include a proportionate
corresponding reduction in the overhead and profit fee, as applicable to the Construction
Manager, Subcontractors or Suppliers.
9.1.9. NOT USED
9.1.10. Claims Regarding Scope Changes. A"Scope Change"shall mean Work which either(i)is not
reasonably inferable from the Construction Documents and other Contract Documents, (ii) is
a material change in the quantity, quality, programmatic requirements or other substantial
change in the Contract Documents, or(iii) is an increase or decrease in the Work arising from
any changes required to the Construction Documents by agencies having jurisdiction and
which were not reasonably inferable from the Construction Documents. Construction Manager
acknowledges and agrees that increases or decreases in the Work arising from(i)any matters
implicating or covered by Construction Manager's warranty pursuant to Subsection 2.5.2.4, or
(ii) gaps between Subcontractors' bids, shall not constitute a Scope Change unless
Construction Manager can demonstrate that such Work was not reasonably inferable from the
Construction Documents and other Contract Documents.
a. If the Construction Manager believes that any direction, action, comment or approval by
the City or Architect-Engineer gives rise to or constitutes a Scope Change for which a
Change Order is required, but for which a Change Order has not yet been issued, the
Construction Manager must submit notice to the City within ten(10)days of such direction,
action, comment or approval which it believes constitutes a Scope Change that may
require a Change Order,which shall constitute a Claim.
b. Any such notice shall include the Construction Manager's good faith estimate as to the
cost and schedule impact to the Construction Manager resulting from the direction,action,
comment or approval.The Construction Manager must submit, in accordance with Article
15 of this Agreement, a final Claim to the City within thirty (30) days of such direction,
action,comment or approval,which Claim shall include the actual cost(including a detailed
cost breakdown in relation to the Project Budget and sufficient substantiating data to permit
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evaluation by the City) and schedule impact to the Construction Manager resulting from
the direction, action, comment or approval.
c. Such notice and final Claim are conditions precedent to any cost or schedule adjustment
on the basis of such Claim and,if the Construction Manager does not submit such a notice
within such ten (10) day period and a final Claim within such thirty (30) day period, the
Construction Manager shall be deemed to have waived its right to make such Claim in the
future. If the Construction Manager follows the preceding notice and Claim procedures and
the City agrees with the Claim,the parties shall execute a Change Order implementing the
changes requested in the Claim. If the City does not agree with such a Claim, the parties
shall resolve their disagreement is accordance with Section 15 of this Agreement.
9.1.11. Waiver of Claims. By executing a Change Order,the Construction Manager thereafter waives
the right to assert any further Claim for an increase in the Cost of the Project and the
Guaranteed Maximum Price or an extension Substantial Completion Date or other Milestone
or overall Contract Time based on the subject matter of, or the Claim addressed by, such
Change Order; it being acknowledged and agreed by the Construction Manager that any such
Change Order shall completely address any schedule or cost impact associated with the
subject matter of the Claim.
9.1.12. Approval of Change Orders/Modifications. The City Commission may approve any Change
Order or other Amendment to the Contract Documents. The City Manager may approve
Change Orders or Amendments not exceeding $50,000, and/or Change Orders up to an
amount equal to any remaining City Contingency, if delegated to do so by Resolution of the
City Commission. Change Orders or Amendment exceeding the thresholds identified herein
shall require the advance approval of the City Commission.
9.2. Differing Site Conditions/Concealed Conditions. The Construction Manager acknowledges and
agrees that it has satisfied itself as to what the Construction Manager anticipates will be the character,
quality and quantity of soil, surface and subsurface materials or obstacles that may be encountered by
the Construction Manager at the Project Site including, but not limited to,the nature or amount of any
kind of soil material, the location of any utilities or structures on the Project Site, the composition or
condition of any utility or structure and its contents,the fitness of any material for use as fill or drainage,
or the amount of water to be expected,and that the entire cost risk of such matters, as well as any soil,
surface,subsurface/underground,concealed, unknown, known, latent or other conditions(collectively,
the"Site Conditions"),shall be borne by the Construction Manager as part of the Contract Price unless
such conditions could not have reasonably been identified upon reasonable investigation by the
Construction Manager.The Construction Manager shall under no circumstances assume responsibility
for pre-existing groundwater contamination, or pre-existing contaminated soils that require treatment,
removal or removal and disposal off—site.City makes no representations or warranties whatsoever as
to the Site Conditions. Any information provided by City relating to Site Conditions is provided as
advisory only, as Construction Manager recognizes and agrees that Site Conditions may vary from
those observed by City.Without limiting the generality of the foregoing, but rather in confirmation and
furtherance thereof, the Construction Manager agrees that it shall have no Claim for any increase in
the Contract Price in the event that Site Conditions are encountered or discovered at the Project Site
in the performance of the Work where such conditions could reasonably have been identified upon
reasonable investigation thereof.The Construction Manager expressly acknowledges and agrees that
its pricing of the Work and the determination of the Contract Price were expressly based upon the
Construction Manager's assuming the foregoing cost risks of Site Conditions.
i. If during the course of performing the Work, the Construction Manager encounters subsurface or
concealed conditions at the Project Site and such subsurface or concealed conditions materially
differ from (x) those indicated in, or reasonably inferable from the Contract Documents and (y)
those that are ordinarily encountered and generally recognized as inherent in the work of the
character called for in the Contract Documents (conditions that satisfy (x) and (y) are referred to
as"Unforeseen Site Conditions"),then the Construction Manager shall notify the City within three
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(3) business days of its discovery of Unforeseen Site Conditions, regardless of whether the
Contractor wishes to request an increase in the Contract Price or Contract Time.The Construction
Manager shall not disturb the conditions or perform any Work in the area(s) where the differing
Site Conditions or Unforeseen Site Conditions are encountered prior to allowing the City(and any
of its consultants)to conduct its own inspection.
ii. Upon receipt of written notification of Unforeseen Site Conditions from the Construction Manager,
the City will investigate the Unforeseen Site Conditions and, if it is determined, in the City's sole
discretion, that (a) the Unforeseen Site Conditions could not reasonably have been identified by
Construction Manager during its inspections of the Project Site and(b) materially differ and cause
an increase or decrease in the cost or time required for the performance of any Work,an equitable
adjustment may be made in accordance with Article 11 herein and the other Contract Documents.
An adjustment for Unforeseen Site Conditions shall not be allowed,and any Claim relating thereto
shall be deemed conclusively waived, if the Construction Manager has not provided the required
written notice within three(3) business days of discovery of the Site Conditions, or has disturbed
the Site Conditions prior to City's examination thereof. Should the City determine that the Site
Conditions of the Project Site are not so materially different to warrant a change in the Contract
Price or Contract Time or any other terms of the Contract Documents, Construction Manager shall
be notified of the reasons in writing, and such determination shall be final and binding upon the
Parties hereto.
iii. Where Site Conditions delay the Project, and said delay could have been avoided by reasonable
investigations of the Project Site at any time prior to commencement of the Work in question,such
delay shall not be considered to be an Excusable Delay beyond the control of the Construction
Manager,and no time extension shall be granted pursuant to Article 9. No request for an equitable
adjustment or change to the Contract Time for differing Site Conditions shall be allowed if made
after the date certified as the Substantial Completion Date.
9.3. No Damages for Delay.
9.3.1 No Damages for Delay. NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR
AN EXTENSION OF TIME SHALL BE MADE OR ASSERTED AGAINST CITY BY
REASON OF ANY DELAYS including any Claim for an increase in the Guaranteed Maximum
Price, or payment or compensation to the Construction Manager(or its Subcontractors)of any
kind for direct, indirect, consequential, impact, or other costs, expenses, lost profits,
compensation, reimbursement or damages including costs of acceleration or inefficiency
arising because of delay, disruption, interference or hindrance from any cause whatsoever,
whether such delay, disruption, interference, or hindrance be reasonable or unreasonable,
foreseeable or unforeseeable, or avoidable or unavoidable, and irrespective of whether such
delay constitutes an Excusable Delay and irrespective of whether such delay results in an
extension of the Contract Time; provided, however, Construction Manager's hindrances or
delays are not due solely to fraud, bad faith or willful or intentional interference by the City in
the performance of the Work, and then only where such acts continue after Construction
Manager's written notice to the City of such alleged interference.
9.3.1.1 Construction Manager acknowledges and agrees that Excusable Delay shall not be
deemed to constitute willful or intentional interference with the Construction Manager's
performance of the Work without clear and convincing proof that they were the result
of a deliberate act,without any reasonable and good-faith basis, and were specifically
intended to disrupt the Construction Manager's performance of the Work. The City's
attempts to facilitate or assist Construction Manager in performance of the Work shall
in no way be construed,interpreted and/or be deemed to constitute willful or intentional
interference with the Construction Manager's performance of the Work.
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9.3.1.2 Except as provided herein, Construction Manager hereby waives all other remedies at
law or in equity that it might otherwise have against the City on account of any
Excusable Delay and any and all other events that may, from time to time, delay the
Construction Manager in the performance of the Work. Construction Manager
acknowledges and agrees that, except as specified herein, all delays or events and
their potential impacts on the performance by the Construction Manager are
specifically contemplated and acknowledged by the Parties in entering into this
Agreement and that Construction Manager's pricing of the Work and the determination
of the Guaranteed Maximum Price shall be expressly based on the Construction
Manager's assumption of the risks thereof, and Construction Manager hereby waives
any and all Claims it might have for any of the foregoing losses, costs, damages and
expenses.
9.4. Extensions to the Contract Time.
9.4.1 Excusable Delays. Construction Manager's sole remedy for Excusable Delay is an extension
of the Contract Time for each day of critical path delay and, to the limited extent applicable,
costs as provided in.Subsection 9.4.1.4, but only if the pre-requisites and notice requirements
of Subsection 9.4.4 below have been timely and properly satisfied.An excusable delay is one
that(i)directly impacts critical path activity delineated in the Project Schedule and extends the
time for completion of the Work; (ii)could not reasonably have been mitigated by Construction
Manager,including by re-sequencing,reallocating or redeploying and/or increasing the amount
of its forces to other portions of the Work; and (iii) is caused by Force Majeure (defined in
Section 9.8 below) or other circumstances beyond the control and due to no fault of
Construction Manager or its Subcontractors, material persons, Suppliers, or Vendors
("Excusable Delay"). If two or more separate events of Excusable Delay are concurrent with
each other, Construction Manager shall only be entitled to an extension of time for each day
of such concurrent critical path delay,and Construction Manager shall not be entitled to double
recovery thereon. For illustration purposes only, if two events of Excusable Delay are
concurrent for two days, Construction Manager shall only receive a time extension of a total of
two days, and not four days.
9.4.1.1. Inclement weather may be grounds for an Excusable Delay when rains or other
inclement weather conditions result in Construction Manager being unable to work at
least fifty percent(50%)of the normal work shift on controlling items of Work identified
on the accepted updated progress schedule submitted pursuant to Subsection 2.1.3
of this Agreement. Time extensions for weather delays shall not be automatic and
must be requested in accordance with the notice and other requirements of Subsection
9.4.4. No time extension for weather-related delays will be considered until the
Construction Manager demonstrates that the total number of days in any given month
by which the Construction Manager has been delayed due to adverse weather
conditions in accordance with this Section exceeds the number of days corresponding
with each month below, as follows:
JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC
Days: 06 06 06 06 10 15 16 17 17 13 08 06
Time extensions in any given month shall only be allowable for adverse weather days
in excess of the days corresponding for each respective month as set forth above.
9.4.1.2. If an event of delay satisfying all requirements herein to constitute Excusable Delay
directly arises from an act or omission of the City, Resident Project Representative or
Architect-Engineer relating to their respective obligations under the Contract
Documents, no such act or omission shall be deemed an Excusable Delay unless and
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until the Construction Manager shall have first provided the City with written notice
setting forth a description of the specific acts or omissions adversely affecting the
progress of the Work and the City, Resident Project Representative or Architect-
Engineer shall have failed, within ten (10) business days after receipt of such written
notice, to have responded in any way to the written Notice, (whether agreeing or
disputing Construction Manager's claimed event of delay) or commenced to address
or correct the act or omission described in the Construction Manager's notice; and
provided further, if the City, Resident Project Representative or Architect-Engineer
fails to correct such act or omission, the period of any such Excusable Delay shall be
deemed to have commenced on the date the City received the aforesaid written notice
from the Construction Manager.
9.4.1.3.Any extension of time for Excusable Delay will depend upon the extent to which the
delay affects the Project Schedule and will only extend the scheduled dates for the
items of the Work so delayed and shall be net of any available"float"time included in
the Project Schedule or Construction Schedule. Scheduled dates for other portions of
the Work not so delayed will remain unchanged. Delays which do not affect the Critical
Path of the Project Schedule will not entitle Construction Manager to an extension of
time, regardless of whether they may otherwise satisfy the other requirements for an
Excusable Delay.
9.4.1.4. Construction Manager's sole remedy for the occurrence of Excusable Delays caused
by City(in its proprietary capacity,as opposed to its governmental/regulatory capacity)
and its consultants, including Architect-Engineer or Force Majeure Events shall be an
extension of time for the affected activities on the Project Schedule. In lieu of providing
a time extension for an Excusable Delay, subject to City's approval at its sole
discretion, City and Construction Manager may agree for Construction Manager to
work on approved evening or Saturday shifts. However, nothing contained herein,
shall require the City to agree or permit Construction Manager to work on any evening
and/or Saturday shifts and the failure to grant such permission shall not, in any way,
excuse the Construction Manager from timely performing the Work in accordance with
the approved Project Schedule.
9.4.2. Inexcusable Delays. "Inexcusable Delay" shall mean any delays not included within the
definition 'of Excusable Delay as set forth above including any delay which extends the
completion of the Work or portion of the Work beyond the time specified in the Project
Schedule, including, without limitation, the Substantial Completion Date and any Milestone,
and which is caused by the act,fault, inaction or omission of the Construction Manager or any
Subcontractor,Supplier or other party for whom the Construction Manager is responsible; any
delay that could have been limited or avoided by Construction Manager's timely notice to the
City of such delay; or any delay in obtaining licenses, permits or inspections caused by the
actions or omissions of the Construction Manager or its Subcontractors,Suppliers or any other
party for whom the Construction Manager is responsible An Inexcusable Delay shall not be
cause for granting an extension of time to complete any Work or any compensation
whatsoever, and shall subject the Construction Manager to damages in accordance with the
Contract Documents. In no event shall the Construction Manager be excused for interim
delays which do not extend the Project Schedule, including the Substantial Completion Date,
or any Milestones.
9.4.3. NOT USED.
9.4.4. Prerequisites and Notice Requirements for Extensions of Time. Except as provided in Section
9.1 with respect to Changes in the Work,an extension of the Contract Time will only be granted
by the City under the following circumstances: (a)if a delay occurs as a result of an Excusable
Delay,and(b)the Construction Manager has complied with each of the following requirements
below to the reasonable satisfaction of the City:
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a. Construction Manager shall provide written notice to the City of any event of delay or
potential delay within five (5) days of the commencement of the event giving rise to the
request. The Construction Manager, within ten (10) days of the date upon which the
Construction Manager has knowledge of the delay, shall notify the City, in writing, of the
cause of the delay stating the approximate number of days the Construction Manager
expects to be delayed, and must make a request for an extension of time, if applicable,to
the City, in writing,within ten (10) days after the cessation of the event causing the delay
specifying the number of days the Construction Manager believes that its activities were
in fact delayed by the cause(s)described in its initial notice.
b. The Construction Manager must show to the reasonable satisfaction of the City that the
activity claimed to have been delayed was in fact delayed by the stated cause of delay,
that the critical path of the Work was materially affected by the delay,that the delay in such
activity was not concurrent with any Inexcusable Delay,the delay was not the result of the
performance of unit price Work, and that the delay in such activity will result in a delay of
Substantial Completion Date in the Project Schedule or any other Milestone.
c. The initial notice provided by the Construction Manager under Subsection (a)above shall
provide an estimated number of days the Construction Manager believes it will be delayed,
and describe the efforts of the Construction Manager that have been or are going to be
undertaken to overcome or remove the Excusable Delay and to minimize the potential
adverse effect on the cost and time for performance of the Work resulting from such
Excusable Delay. The mere written notice of an event of delay or potential delay,without
all of the aforementioned required information,is insufficient and will not toll the time period
in which the Construction Manager must provide proper written notice under this Article.
d. Construction Manager's strict compliance with this Section is a condition precedent to
receipt of an extension of the Contract Time. Failure of the Construction Manager to
comply with all requirements as to any particular event of delay,including the requirements
of this Section, shall be deemed conclusively to constitute a waiver, abandonment or
relinquishment of any entitlement to an extension of time and all Claims resulting from that
particular event of Project delay. Once the Parties have mutually agreed as to the
adjustment in the Contract Time due to an Excusable Delay,they shall enter into a Change
Order documenting the same.
If the City and Construction Manager cannot resolve a request for time extension made
properly and timely under this Section within sixty (60) days following submission, the
Construction Manager may re-submit the request as a Claim in accordance with the
procedures set forth in Article 15 of this Agreement.
9.4.5. Construction Manager's Duty. Notwithstanding the provisions of this Agreement allowing the
Construction Manager to claim delay due to Excusable Delay, whenever an Excusable Delay
shall occur,the Construction Manager shall use all reasonable efforts to overcome or remove
any such Excusable Delay, and shall provide the City with written notice of the Construction
Manager's recommendations on how best to minimize any adverse effect on the time and cost
of performing the Work resulting from such Excusable Delay. In furtherance of the foregoing,
whenever there shall be any Excusable Delay, the Construction Manager shall use all
reasonable efforts to adjust the Project scheduling and the sequencing and timing of the
performance of the Work in a manner that will avoid,to the extent reasonably practicable, any
Excusable Delay giving rise to an actual extension in the time for performance of the Work.
If there are corresponding costs associated with any of the measures which the Construction
Manager deems necessary or desirable to minimize any adverse effects resulting from any
Excusable Delay, the Construction Manager shall advise the City of such anticipated
associated costs and shall not proceed with such measures absent the City's executing a
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Draft Contract No.23-461-01
Change Order in connection therewith. Nothing in this Section 9.4 shall, however, be deemed
to entitle the Construction Manager to any adjustment in the Contract Price or the Guaranteed
Maximum Price or any other damages, losses or expenses resulting from an Excusable Delay;
nor shall it be deemed to obligate the City to agree to undertake any recommendations
suggested by the Construction Manager as a means of minimizing the adverse effects of any
Excusable Delay.
9.5 Construction Change Directives. The Project Coordinator or Resident Project Representative on
behalf of the City) and Architect-Engineer will each have authority to approve and issue Construction
Change Directives setting forth written interpretations of the Contract Documents, and ordering minor
changes in the execution of the Work, provided the Construction Change Directive involves no change
in the Contract Price or Contract Time.
9.6 Emergencies. In any emergency affecting the safety of persons or property, the Construction
Manager shall act at its discretion,to prevent threatened damage, injury or loss. Any increase in the
Guaranteed Maximum Price or extension of time claimed by the Construction Manager on account of
emergency work shall be determined as provided in Article 9.
9.7 Hazardous Waste Removal.At the City's expense,the Construction Manager shall or shall cause the
removal, encapsulation, transportation and disposal of any hazardous material as may be required in
connection with the Work. Hazardous material brought by the Construction Manager or the
Subcontractors shall remain their responsibility for proper disposal. Any hazardous material not
specifically shown on the Contract Documents shall be considered a concealed condition and may be
the responsibility of the Construction Manager in a Change Order.
9.8 Force Majeure
9.8.1. A"Force Majeure" event is an event that (1) in fact causes.a delay in the performance of a
Party's obligations under the Contract Documents,and(2)is beyond the reasonable control of
the Party incurring the delay, and (3) is not due to an intentional act, error, omission, or
negligence of such Party, and (4) could not have reasonably been foreseen and prepared for
by such Party at any time prior to the occurrence of the event.Subject to the foregoing criteria,
Force Majeure may include events such as war, civil insurrection, riot, fires, epidemics,
sabotage, explosions, embargo restrictions, quarantine restrictions, transportation accidents,
strikes, floods, strong hurricanes or tornadoes, earthquakes, or other acts of God which
prevent Performance. Force Majeure shall not include technological impossibility, failure of
equipment supplied by Construction Manager, receipt of and incorporation of defective
materials into the Work, shortage of funds, failure of Suppliers to deliver equipment and
materials except where such failure is itself the result of a Force Majeure event, or failure of
Construction Manager to secure the required permits for prosecution of the Work.
9.8.2. If Construction Manager's performance of its contractual obligations under the Contract
Documents is prevented or delayed by an event believed by Construction Manager to be Force
Majeure,Construction Manager shall immediately upon learning of the occurrence of the event
or of the commencement of any such delay, but in no case exceeding the time period set forth
in Subsection 9.4.4, provide written Notice to the City(1)of the occurrence of the delay, (2)of
the nature of the event and the cause thereof, (3)of the anticipated impact on the Work, (4)of
the anticipated period of the delay, and (5) of what course of action Construction Manager
plans to take in order to mitigate the detrimental effects of the event. Construction Manager's
timely delivery to City of the Notice of the occurrence of a Force Majeure event is a condition
precedent to allowance of an extension of time under this Section; however, receipt of such
Notice by City shall not constitute acceptance that the event claimed to be a Force Majeure
event is in fact Force Majeure. The burden of proof of the occurrence of a Force Majeure event
shall be on Construction Manager. Failure to give such Notice promptly and within such time
limit and/or without the information required herein may be deemed sufficient reason for denial
by City of any extension of time.
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Draft Contract No.23-461-01
9.8.3. A Force Majeure event may be grounds for an Excusable Delay. If in the opinion of City the
event was a Force Majeure event, Construction Manager shall be entitled to such extension of
time for completing the Project as, in the opinion of City, is reasonable and equitable.
9.8.4. The suspension of Construction Manager's performance due to a Force Majeure event shall
be of no greater scope and no longer duration than is required. Construction Manager shall
use its reasonable best efforts to continue to perform its obligations hereunder to the extent
such obligations are not affected or are only partially affected by the Force Majeure event,and
to correct or cure the event or condition excusing performance and otherwise to remedy its
inability to perform to the extent its inability to perform is the direct result of the Force Majeure
event.
9.8.5. Construction Manager's obligations that arose before the occurrence of a Force Majeure event
causing the suspension of performance shall not be excused as a result of such occurrence
unless such occurrence makes such performance not reasonably possible. The obligation to
pay money in a timely manner for obligations and liabilities which matured prior to the
occurrence of a Force Majeure event shall not be subject to the Force Majeure provisions.
ARTICLE 10
RIGHT TO PERFORM CONSTRUCTION AND
TO AWARD SEPARATE CONTRACTS; MUTUAL RESPONSIBILITY
10.1. Right to Award Separate Contracts. The City reserves the right to perform construction or
operations related to the Project with the City's own forces, and to award separate contracts to
other contractors, including subcontractors, in connection with other portions of the Project or other
construction or operations on the Project Site or adjacent to the Project Site(collectively, "Separate
Contractors").
10.2. Integration of Work with Separate Contractors. Construction Manager shall afford Separate
Contractors reasonable access to the Project Site for the execution of their work. Construction
Manager shall arrange the performance of the Work so that the Work and the work of the City and
the Separate Contractors are, to the extent applicable, properly coordinated, so that any disruption
or damage to the Work or to any work of the City or of Separate Contractors is avoided or minimized.
In the event Separate Contractors are provided with access to the Project Site, any such Separate
Contractors must indemnify and hold harmless the Construction Manager, City,Architect-Engineer,
Resident Project Representative, and their respective officers and employees, from and against
any and all third-party claims, liabilities, damages, losses, demands, liens, expenses and costs
including reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
intentional wrongful misconduct of Separate Contractor and persons employed or utilized by
Separate Contractor in the performance of this Agreement and the other Contract Documents,
including Subcontractors or Suppliers, at any tier and anyone directly or indirectly employed by
them.
10.3. Coordination. Construction Manager shall coordinate its work with any Separate Contractors,
and shall cooperate with Separate Contractors, as directed by the Project Coordinator.
10.3.1. NOT USED.
10.3.2. Coordination with Separate Contractors may be grounds for an extension of time or any
adjustment in the Guaranteed Maximum Price.
0.4.Vie—of Project Site by Other's. The-Construction Manager shall afford the City and all Separate
Contractors reasonable opportunity for storage of their materials and equipment, and performance of
their work. The_ Construction Manager shall also connect and coordinate its construction and
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Draft Contract No.23-461-01
operations with the City and all Separate Contractors'construction and'operations as required by the
Contract Documents!
10.5. Deficiency in Work of Separate Contractors. If to properly execute a portion of the Work,
Construction Manager depends upon the construction or operations by the City or a Separate
Contractor,the Construction Manager shall, prior to proceeding with that portion of the Work, promptly
report to the City apparent discrepancies or defects in such other construction that renders it unsuitable
for proper execution by the Construction Manager. The Parties shall resolve in good faith any such
discrepancies or defects or any disagreements relating thereto. Failure of the Construction Manager
so to report shall constitute a representation by the Construction Manager to the City that the City's or
Separate Contractor's completed or partially completed construction is fit and proper to receive the
Construction Manager's Work. However, although such representation constitutes a waiver of any
rights of Construction Manager against the City for discrepancies or defects in such Separate
Contractor's work, such representation shall not constitute a waiver of any rights of the Construction
Manager against such Separate Contractor as a result of such discrepancies or defects.
10.6.NOT USED
10.7. The Construction Manager shall promptly remedy damage caused by the Construction Manager or its
Subcontractors to completed or partially completed construction or to property of the City or Separate
Contractors, no later than thirty(30) days following notice by City or any other party of such damage.
ARTICLE 11
PAYMENTS TO THE CONSTRUCTION MANAGER
11.1. Applications for Payment. The Construction Manager shall deliver to the City on a monthly basis,
and review with the City in person in order to obtain the City's approval, itemized Applications for
Payments (each, an "Application for Payment"). Each Application for Payment shall be submitted to
the City and Architect-Engineer immediately after the end of the expiration of the period(i.e.,the month)
(herein each called a "Payment Period") covered by such Application for Payment. The Schedule of
Values shall be allocated to the various portions of the Work. Payment during the Construction Phase
will be based upon percentage of Work completed for each item in the approved Schedule of Values.
Applications for Payment shall be in a form and substance reasonably satisfactory to the City. The
requirements of this Article 11 shall take precedence and control over any conflicting requirements
in the Project Specifications or other Contract Documents.
a. Form of Application:Projected Payment Schedule.The Construction Manager shall make each
Application for Payment on a form approved by the City,which incorporates the approved Schedule
of Values. Construction Manager shall provide up to three(3) hard copies of each Application for
Payment, including supporting documentation, and one electronic copy in native and .pdf format.
b. Supporting Documentation. Together with each Application for Payment, the Construction
Manager shall submit the monthly progress report required by Section 2.1.2 to the City. Payment
will be made on the basis of approved Applications for Payment certified by the Architect-Engineer
and recommended for payment by the City and such supporting documentation as the City may
reasonably require including,without limitation, any Construction Manager and Subcontractor lien
waivers/releases of claims and consents of surety releasing the City from any and all present or
future liability for payment which accrued or may accrue against the City on account of the Work
that is the subject of the Application for Payment (conditioned only on payment); provided,
however, such lien waivers from Subcontractors need only cover the immediately preceding
Application for Payment period. Such supporting documentation will include, but shall not
necessarily be limited to,the following:
i. The Construction Manager's payroll records or certified copies thereof, pertinent to the Cost
of the Work for which payment is requested, if applicable to the Project pursuant to the terms
of the RFQ (i.e. to address federal grant requirements and the like). The Construction
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Draft Contract No.23-461-01
Manager's payroll records shall contain the name, and address of each employee, his or her
correct classification, rate of pay, daily and weekly number of hours worked, itemized
deductions made and actual wages paid, with hourly base rate, hourly fringe rate and hourly
benefit rate clearly indicated.
ii. An updated progress schedule acceptable to City as required by Section 2.1.3 of this
Agreement;
iii. A list of Subcontractors that worked during the Application for Payment period;
iv. A release of lien/claims from the Construction Manager in favor of the City, and releases of
Liens/Claims from each Subcontractor in favor of the Construction Manager and the City,
relative to the Work which was the subject of previous Applications for Payment;
v. A Consent of Surety relative to the Work which is the subject of the pending Application for
Payment;
vi. One hard copy and one electronic copy (in native media format, i.e. .jpg) of aerials and
photographs of the areas of Work for the period that is the subject of the pending Application
for Payment, dated within its native digital/media format;
vii. Verifiable evidence of updated as-built information for Work performed during the payment
period in redline format; CAD format for phased block by block partial substantial completion.
viii. A LEED certification status report, if applicable, including documentation of compliance with
specifications for Work items that have been designated as intended to support the City's
application for LEED certification; and
ix. Any other documentation requested by the Contract Administrator, Project Coordinator, RPR
or any other City designee,to assist in the City's review of applications for payment,including,
without limitation, cancelled checks for prior payment periods covered by prior Applications
of payment if requested by Contract Administrator, Project Coordinator or any other City
designee.
Contract Administrator may elect to waive submission of any particular supporting document
on a case-by-case basis if Construction Manager demonstrates extraordinary extenuating
circumstances for being unable to provide the required documentation, and provided further
that any such waiver in any specific instance shall not in any way constitute a waiver of the
requirement to provide all supporting documentation in every other instance, including any
other Application for Payment.
c. Review Process. Pencil copy draft Applications for Payment shall be submitted to Construction
Manager by Subcontractors on the 20th of each month.Construction Manager will review and have a
draft pencil copy ready for City's and RPR's review and conduct each field walk("Project Site Walk-
through") with Architect-Engineer and/or Resident Project Representative as soon as possible
thereafter. City, Resident Project Representative, and/or Architect-Engineer shall submit all final
comments to Construction Manager within five (5) business days after the Project Site Walk-
through/pencil copy review.Construction Manager will then submit completed,certified and corrected
final edits with all backup to the City or the City's agent(the Resident Project Representative) on or
about the first day of the following month. City acceptance of Applications for Payment will occur and
will only be considered effective after all of the following have been completed; i) Application for
Payment is certified by the Architect-Engineer;ii)Application for Payment is approved and/or certified
by the Resident Project Representative; iii) all releases of liens/claims are properly notarized and
submitted to the City;iv)all required supporting documentation in accordance with Section 11.1(b)of
this Agreement and as may be otherwise required by the other Contract Documents,is submitted;and
v) comments provided by City, Resident Project Representative, and Architect-Engineer from draft
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Draft Contract No.23-461-01
review are satisfactorily addressed.Applications for Payment shall be subject to final approval by the
City. Failure to furnish supporting evidence for amounts invoiced shall result in a reduction of the
amount otherwise due to Construction Manager. Incomplete Applications for Payment will not be
processed. Construction Manager must submit an Application for Payment once each Payment
Period, with the exception of Applications for Payment for release of retainage only, which
Construction Manager must submit separately from Applications for Payment for Work performed
during a Payment Period.
11.2. Right to Withhold Payments. Notwithstanding any provision hereof to the contrary, the City may
withhold payments to the Construction Manager in the following circumstances:
a. In addition to the Performance Bond and Payment Bond and any other security or retainage then
being held by the City, the City may withhold from any payment due or to become due to the
Construction Manager, amounts sufficient to reimburse the City for its expenditures incurred or
that may be incurred on account of the Construction Manager or to secure the following:
i. correction or re-execution of Work which is defective or has not been performed in
accordance with the Contract Documents and which the Construction Manager has failed to
correct in accordance with the terms of this Agreement or any other Contract Documents;
ii. past due payments owed to Subcontractors for which City has not been provided an
appropriate release of lien/claim (whether or not the Work in question is the subject of any
dispute);
iii. the City's remedies arising from any failure to perform the Contract Documents'requirements
or uncured Default of this Agreement by the Construction Manager;
iv. damage to another contractor or third-party (including,without limitation, the property of any
resident or business in the area surrounding the Project Site) which has not been remedied
or, damage to City property which has not been remedied;
v. liquidated damages and/or any other costs incurred by City for extended construction
administration, to the extent permitted by the Contract Documents;
vi. failure of Construction Manager to provide any and all documents required by the Contract
Documents including, without limitation, the failure to maintain as-built drawings in a current
and acceptable state; and
vii. pending or imminent Claims of the City or others including, without limitation, Claims which
are subject to Construction Manager's indemnity obligation under Article 12 hereof,for which
the Construction Manager has not posted bonds or other additional security reasonably
satisfactory to the City.
Except as otherwise specifically provided in this Agreement, in no event shall any interest be
due and payable by the City to the Construction Manager or any other party on any of the
sums retained by the City pursuant to any of the terms or provisions of any of the Contract
Documents.
11.3. NOT USED
11.4. Effect of Application. In presenting an Application for Payment to the City, the Construction
Manager warrants that:
a. Title to the Work,including all materials and equipment,covered by such Application for Payment
will pass to the City, free and clear of any and all liens, claims, security interests or other
encumbrances (for purposes of this Article 8, hereinafter referred to as "Liens"), either by
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incorporation in construction or upon receipt of payment by the Construction Manager,whichever
occurs first, and such Work shall not give rise to any valid Claims against the Performance and
Payment Bond furnished by the Construction Manager.The Construction Manager shall provide
evidence demonstrating the above facts to the reasonable satisfaction of the City upon the City's
request.
b. No Work, or any materials or equipment constituting a portion of the Work, covered by such
Application for Payment will have been acquired by the Construction Manager, or any other
person performing work at the Project Site or furnishing materials or equipment for the Project,
subject to an agreement under which a Lien is retained by the seller or otherwise imposed by
the Construction Manager or such other person.
c. Construction has progressed to the point indicated in the Application for Payment;the quality of
the Work and any goods and materials covered by such Application for Payment are in
accordance with the Contract Documents and Applicable Laws, codes, ordinances, rules and
regulations of governmental authorities having jurisdiction over the Project;and the Construction
Manager is entitled to payment in the amount requested.
11.5. Payments to Subcontractors/Suppliers. No Application for Payment shall include any request for
payment of amounts that the Construction Manager or the Architect-Engineer does not intend to pay
to a Subcontractor because of a dispute or for any other reason.The Construction Manager shall pay
each Subcontractor,except for payments already made directly by the Construction Manager,promptly
out of the amount paid to the Construction Manager on account of such Subcontractor's work, goods
and/or materials, the amount to which said Architect-Engineer and/or Subcontractor is entitled in
accordance with the terms of the Construction Manager's contract with such Subcontractor. The
Construction Manager shall, in its agreement with each Subcontractor, require each Subcontractor to
make payments to its subcontractors in similar manner. The City shall have the right to withhold from
payments to the Construction Manager amounts that the City reasonably believes are owing to a
Subcontractor (from City's past payments) unless the Construction Manager explains the
circumstances of such nonpayment to the satisfaction of the City. Notwithstanding the foregoing, the
City shall have no obligation to pay or to be responsible in any way for payment to any Subcontractor.
11.6. Subcontractors' Rights/No Mechanics' Liens. The rights of all persons supplying labor, materials
and supplies, used directly or indirectly in the prosecution of the Work covered by the Contract
Documents, are governed by the provisions of Section 255.05, Florida Statutes. Nothing in the
Contract Documents shall be construed to confer any benefits or rights or to create any relationships
whatsoever between the City and any Subcontractor, Supplier, laborer or any other party except as
same may be granted, conferred or created by Section 255.05 of the Florida Statutes.
a. If any Subcontractor, supplier, materialman, or laborer, of any tier, or any other person files or
provides notice of a Lien, demand or Claim relating to the Work, or any part thereof or any interest
therein, or any improvements thereon, or against any monies due or to become due to the
Construction Manager on account of any Work, labor, services, materials, machinery, equipment
or other items performed or furnished for or in connection with the Work,the Construction Manager
shall cause such Liens or Claims to be satisfied,released or discharged within thirty(30)days from
the date of filing or notice thereof; provided, however, that the City may extend the thirty(30) day
period if the Construction Manager demonstrates to the satisfaction of the City that such Lien or
Claim cannot be so satisfied, released or discharged in such time period and that the Construction
Manager is proceeding diligently to cause such Liens or Claims to be satisfied, released or
discharged. The City will withhold the amount of the Lien or Claim from payments to be made to
the Construction Manager, pending the satisfaction, release or discharge of the Lien or Claim, in
accordance with all requirements of Florida law including, but not limited to, Sections 255.05 and
255.078, Florida Statutes.
b. To the fullest extent permitted by law, the Construction Manager shall defend, indemnify and hold
the City harmless against any and all Liens Claims, suits,judgments,costs or expenses, including
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reasonable attorneys'fees arising from, by reason of,or in connection with any such Liens,Claims,
suits or judgments.The City shall have the right, at its sole option,to participate in the defense or
resolution of any such Liens or Claims, suits or judgments, without relieving the Construction
Manager of its obligations hereunder or waiving any rights and remedies the City may have in
connection therewith.
11 7 Retainage. The City shall withhold from each progress payment(including,without limitation,the first
progress payment for bonds and insurance) made to the Construction Manager retainage in the
amount of 5%ten percent(0%)of each such payment.
Any reduction in retainage below five percent(5%)shall be at the sole discretion of the City after written
request by Construction Manager.
All requests for release of retainage shall be made in accordance with, and shall be subject to, the
requirements of Section 255.078 of the Florida Statutes, as may be amended. Except as provided by
law, the City shall have no obligation to release or disburse retainage until Substantial Completion of
the Project. Any such request shall be made independently of and separately from any Application for
Payment or other document required by the Contract Documents. Following Substantial Completion,
and after completion of, and payment by the City for, all items on the Substantial Completion Punch
List and/or remaining Work,the Construction Manager may submit a payment request for all remaining
retainage. It shall be the City's sole determination as to whether any of the items have been completed.
For items deemed not to have been completed, the City may withhold retainage up to two times the
total cost to complete such items. In the event that all or any of the Substantial Completion Punch List
items have not been completed on or before the Final Completion Date,then City,in its sole discretion,
may elect to complete some or all of such Substantial Completion Punch List items and apply the
retainage held with respect thereto towards the costs of completion thereof; provided, however, in the
event that such retainage amounts are not sufficient to complete the remaining Substantial Completion
Punch List items, Construction Manager shall promptly pay to or reimburse the City for the amount of
any deficiency. Any interest earned on retainage shall accrue to the benefit of City. City shall disburse
the retainage amounts withheld upon the City's acceptance of the completion of the items for which
they were withheld and, assuming that no other items or conditions have arisen with respect to the
Work, including,without limitation, any defects or other noncompliance with the Contract Documents.
11.8. No Acceptance. No progress payment made by the City to Construction Manager shall constitute
acceptance of any portion of the Work, any goods or materials provided under this Agreement or any
portion thereof. No partial or entire use or occupancy of the Project by the City shall constitute an
acceptance of any portion of the Work or the complete Project which is not in accordance with the
Contract Documents.
11.9. Payment by the City.
a. Approval of Applications for Payment. The City shall use good faith reasonable efforts to
approve or reject (specifying, in the event of rejection, the reasons therefor) each Construction
Manager's certified Application for Payment within fourteen(14)days after receipt thereof,or within
such period of time as may be otherwise permitted by Fla. Stat. 218.735. If reasons for rejection
apply only to a portion of the Work relating to such Application for Payment,only such portion shall
be rejected. An Application for Payment or portion thereof that has been approved by the City is
herein referred to as an"Approved Application for Payment."
b. Frequency of Payments. In accordance with Section 218.735 of Florida Statutes,the City shall
make, subject to the terms and conditions of this Agreement, progress payments for Approved
Applications for Payment, less Retainage as herein provided for and/or withholding of any other
amounts pursuant to the Contract Documents(including,without limitation,withholding of payment
pursuant to Article 8 and any other provisions of the Contract Documents), and shall make such
payments within the twenty-five (25) days after the applicable certified Application for Payment is
marked as received, in accordance with Section 218.74(1)of the Florida Statutes.
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c. No Diversion.The Construction Manager agrees that monies received for the performance of this
Agreement shall be used first for payment due for labor, material, and services for the Project and
taxes thereon, and said monies shall not be diverted to satisfy obligations of the Construction
Manager on other contracts or accounts and/or in any manner which may constitute a violation of
Florida Statute 713.345.
11.10. Release of Subcontractor Retainage. If a Subcontractor has completed its portion of the Work
(including all Substantial Completion Punch List items relating to the Subcontractor's portion of the
Work)pursuant to any given Subcontract,the Construction Manager may request the City to disburse
the Retainage being held by the City in respect of such Subcontractor,after delivering to the City any
necessary consent to such disbursement from any bond sureties in form reasonably satisfactory to
the City. If the City is reasonably satisfied the Subcontractor's work has been completed in
accordance with the Contract Documents and the City has received satisfactory final releases of lien
with respect to the Subcontractor's work,the City may, at its sole discretion, disburse said portion of
Retainage, provided that all other requirements of the Contract Documents are satisfied. Regardless
of whether the City has disbursed said Retainage with respect to any Subcontractor,the twelve(12)
month period referred to in Section 13.2 herein and as otherwise required by the Contract Documents
shall not begin with respect to the portion of the Work performed by such Subcontractor until the
Substantial Completion Date.
11.11. Certified Cost of the Project. As a part of its final Application for Payment hereunder, the
Construction Manager shall deliver to the City a certification as to the total Cost of the Project actually
and properly incurred by the Construction Manager in the performance of the Work (herein such
amount is called the"Certified Cost of the Project"), which certification is subject to the City's audit
rights as set forth in Section 16.13. Within thirty(30) days after receipt of such certification, the City
shall deliver to the Construction Manager written notice of any objections thereto. In the event that
the City shall so object to all or any portion of the certification delivered to it by the Construction
Manager,the City shall have the right to conduct or cause to be conducted its own audit of the books
and records of the Construction Manager relating to the Work and the Cost of the Project. If the audit
and certification of the Cost of the Project performed on behalf of the City differs by more than one
percent(1%)from the certification of the Cost of the Project performed by the initial auditor,then the
City's audit and cost certification shall be binding on the Construction Manager and such certification
shall be deemed the Certified Cost of the Project, unless the Construction Manager objects to the
City's audit and cost certification within thirty (30) days after receipt thereof. In the event the
Construction Manager timely objects to the audit and certification prepared on behalf of the City as
aforesaid,then the differences between such audits and certifications shall be resolved by the parties
in good faith, and the certification of the Cost of the Project as so determined shall, for purposes of
this Agreement, be deemed the Certified Cost of the Project.
11.12. Maximum Reimbursement. Notwithstanding anything to the contrary set forth in the Contract
Documents, in no event shall the Construction Manager be entitled to reimbursement from the City
with respect to the Work for any amount that exceeds the Contract Price.
11.13. Final Progress Payment/Final Completion. At such time as all Work, including all Substantial
Completion Punch List items,is complete in accordance with the Contract Documents and accepted
by the City(except as provided in Section 13.2), the Construction Manager may apply for the Final
Progress Payment in accordance with this Section. Upon receipt of written notice from Construction
Manager that the Work is ready for final inspection and acceptance, Architect-Engineer, City and
RPR shall, within ten (10) days, make an inspection thereof. If Architect-Engineer and Contract
Administrator find the Work acceptable, the requisite documents set forth below have been
submitted, the requirements of the Contract Documents have been fully satisfied, and all conditions
of the permits and regulatory agencies have been met, a Final Certificate of Payment in the form set
forth in Appendix "H" hereto shall be issued by Architect-Engineer, evidenced by its signature,
certifying under oath that the requirements of the Contract Documents have been performed and the
Work is ready for acceptance under the terms and conditions thereof.
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The City will pay the remaining amount of money due the Construction Manager under this
Agreement, provided that the Construction Manager has submitted the following to the City:
a. Consent of any bond sureties to such payment, in a form reasonably satisfactory to the City;
b. Any other documentation establishing and evidencing payment or satisfaction of obligations
including, but not limited to, receipts, releases and final waivers of lien from the Construction
Manager and all Subcontractors,to the extent and in such form as may be reasonably required
by the City;
c. Final bill of materials, if applicable, and final invoice;
d. Any and all manufacturers' warranties, guarantees, maintenance instructions, catalogs and
other similar documentation; all such warranties and guarantees shall be in the name of the
City and run to the benefit of the City; and
e. As required by the Contract Documents, a complete set of the "field set" of drawings in .pdf
format, final "as-built" drawings, as specified in Article 3 stamped, signed and sealed and
approved by the Architect-Engineer and the Construction Manager, together with the compact
disc of such drawings and the final "as-built" bar chart schedule showing the critical path of
scheduled Work activities referenced in said Article 3.
11.14. Waiver of Claims. The release by the City and acceptance of the Final Progress Payment by
Construction Manager shall operate as and shall be a release to the City from all present and
future Claims or liabilities, of whatever kind or nature, arising under, relating to or in connection
with this Agreement for anything done or furnished or relating to the Work or the Project, or from
any act or omission of the City relating to or connected with the Contract Documents, the Work
or the Project, except those Claims or liabilities, if any, for which the Construction Manager has
provided the City with written notice pursuant to and in strict compliance with Article 15 herein
and containing a detailed reservation of rights that identifies the precise nature of the dispute, all
facts in support of Construction Manager's Claim, the particular scope of Work giving rise to the
Claim, and the amount and/or time sought in connection with the Claim.
ARTICLE 12
BONDS, INSURANCE,INDEMNITY AND WAIVER OF SUBROGATION
12.1. Bonds. In accordance with the provisions of Section 255.05, Florida Statutes, the Construction
Manager shall provide to the City, on forms furnished by the City, a 100% Performance Bond and a
100% Labor and Material Payment Bond for this Project, each in an amount not less than the total
construction cost for the Project as defined in Article 8, and inclusive of the Construction Manager's
fees pursuant to Article 7 for the Project. The bonds shall be delivered to City within ten (10) days
after execution of the GMP and shall not expire until expiration of the Warranty Period for the Project.
The Construction Manager shall not commence any construction Work in connection with the Project
until the bonds have been approved by City.
To be acceptable as Surety for Performance Bonds and Labor and Material Payment Bonds,a Surety
Company shall comply with the following provisions:
12.1.1. The Surety Company shall have a currently valid Certificate of Authority, issued by the State
of Florida, Department of Insurance, authorizing it to write surety bonds in the State of
Florida.
12.1.2. The Surety Company shall have a currently valid Certificate of Authority issued by the United
States Department of Treasury under Sections 9304 to 9308 of Title 31 of the United States
Code.
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12.1.3. The Surety Company shall be in full compliance with the provisions of the Florida Insurance
Code.
12.1.4. The Surety Company shall have at least twice the minimum surplus and capital required by
the Florida Insurance Code at the time the invitation to bid is issued.
12.1.5. The Surety Company shall have at least an A-policyholder's rating and a Class VII financial
rating in the latest issue of Best's Key Rating Guide.
12.1.6. The Surety Company must agree not to expose itself to any loss on any one risk in an amount
exceeding ten (10) percent of its surplus to policyholders, provided:
a. Any risk or portion of any risk being reinsured shall be deducted in determining the
limitation of the risk as prescribed in this section. These minimum requirements shall
apply to the reinsuring carrier providing authorization or approval by the State of Florida,
Department of Insurance to do business in this state has been met.
b. In the case of the surety insurance company,in addition to the deduction for reinsurance,
the amount assumed by any co-surety, the value of any security deposited, pledged or
held subject to the consent of the surety and for the protection of the surety shall be
deducted.
12.2. Indemnity.In consideration of the sum of Twenty-Five Dollars($25.00)and other good and valuable
consideration,the sufficiency of which the Construction Manager hereby acknowledges,to the fullest
extent permitted by law, Construction Manager shall defend, indemnify and save harmless City,
Architect-Engineer, Resident Project Representative, and their respective officers and employees,
from and against any and all third-party claims, liabilities, damages, losses, demands, liens,
expenses and costs including reasonable attorney's fees, to the extent caused by the negligence,
recklessness, or intentional wrongful misconduct of Construction Manager and persons employed or
utilized by Construction Manager in the performance of this Agreement and the other Contract
Documents, including Subcontractors or Suppliers, at any tier and anyone directly or indirectly
employed by them. It is expressly understood that the monetary limitation on such indemnification,
if established in a GMP Amendment, shall be the Guaranteed Maximum Price, as may be increased
by duly executed Change Orders.
With respect to Construction Manager's duty to defend claims against the City as set forth in this
Article, Construction Manager shall be entitled to select counsel of Construction Manager's choice
to defend the claim asserted against the City; provided, however, that such counsel shall first be
approved by the City Attorney, which approval shall not be unreasonably conditioned, withheld, or
delayed; and, provided further, that the City shall be permitted, at its cost and expense, to retain
independent counsel to monitor the claim proceeding. The duty to defend set forth in this paragraph
shall be severable and independent from the indemnity obligations otherwise set forth in this Section
12.2, to the extent that if any other provisions of this Section 12.2 are deemed invalid and/or
unenforceable,this duty to defend provision shall remain in full force and effect.
Sums otherwise due to Construction Manager under this Agreement may be retained by City until all
of City's Claims for indemnification under this Agreement have been settled or otherwise resolved.
Any amount withheld pursuant to this Section 12.2 shall not be subject to payment of interest by City.
The execution of this Agreement by Construction Manager shall operate as an express
acknowledgment that the indemnification obligation is part of the bid documents and/or Project
Specifications for the Project and the monetary limitation on indemnification in this Section 12.2 bears
a reasonable commercial relationship to this Agreement.
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Nothing in this Section 12.2 is intended, or should be construed, to negate, abridge or otherwise
reduce the other rights and obligations of indemnity that may otherwise exist in favor of the City.
Nothing in this Section 12.2 is intended to create in the public or any member thereof, a third party
beneficiary hereunder, or to authorize anyone not a party to this Agreement, to maintain a suit for
personal injuries or property damage pursuant to the terms or provisions of this Agreement.
The defense and indemnification obligations set forth in this Section 12.2 shall survive the termination
and/or expiration of this Agreement. This indemnity will be interpreted under the laws of the State of
Florida,including Chapter 725, Florida Statutes.To the extent this indemnification provision does not
comply with Chapter 725, Florida Statutes, as may be amended, this provision shall hereby be
interpreted as the Parties' intention for the indemnification clauses to comply with Chapter 725,
Florida Statutes.
Construction Manager shall require all Subcontractor agreements to include a provision that they
will indemnify and hold harmless the City, its officers, agents, directors, and employees, and
instrumentalities as herein provided.
12.3. Insurance. The Construction Manager and Subcontractors shall comply with the insurance
requirements set forth in Appendix E. City makes no representation or warranty that the coverage,
limits of liability,or other terms specified for the insurance policies to be carried pursuant to Appendix
E are adequate to protect Construction Manager against its undertakings under the Contract
Documents or its liability to any third party, or preclude City from taking any actions as are available
to it under the Contract or otherwise at law. City shall not be limited to the amount of the insurance
premium not paid in the proof of any damages it may claim against Construction Manager arising out
of or by reason of failure of Construction Manager to provide and keep in force the insurance policies
required by and on the terms of Appendix E, and City shall instead be entitled to recover the full
amount of damages available.
ARTICLE 13
SUSPENSION OF WORK; TERMINATION OF THE AGREEMENT;
CITY'S RIGHT TO PERFORM CONSTRUCTION MANAGERS OBLIGATION
13.1. Suspension of Work By Construction Manager. If the City should fail to pay the Construction
Manager within the prescribed time pursuant to Florida Statute 218.735 after City's approval of a
payment request from the Construction Manager, then the Construction Manager may, upon seven
(7) additional days written notice to the City and the Architect-Engineer, stop the applicable Project
until payment of the amount owing has been received.
13.2. Suspension of Work By City.
13.2.1. For Cause. Upon the failure of Construction Manager or its Subcontractors or Suppliers to
comply with any of the requirements of the Contract Documents, including Construction
Manager's failure to maintain proper safety precautions, City shall have the authority to stop
any of the Work affected by such failure until such failure is remedied. In the event of the
issuance of a Stop Work Order by City, City shall not be liable for any costs or expenses
claimed by Construction Manager arising out of such issuance and the Project Schedule
shall not be delayed or extended as a result of such issuance.
13.2.1.1. Upon receipt of any such Notice, Construction Manager shall, unless the Notice
requires otherwise:
a. Immediately discontinue work on the date and to the extent specified in the
Notice;
b. Place no further orders or subcontracts for material, services, or facilities with
respect to the suspended Work other than to the extent required in the Notice;
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c. Promptly make every reasonable effort to obtain suspension upon terms
satisfactory to City of all orders, subcontracts, and rental agreements to the
extent they relate to performance of the Work suspended; and,
d. Continue to protect and maintain the Work, including those portions on which
work has been suspended.
13.2.1.2. Upon receipt of Notice to resume suspended Work, Construction Manager shall
immediately resume performance of the suspended Work to the extent required in
the Notice.
13.2.2. Without Cause. By Notice in writing to Construction Manager,City may suspend at any time,
at its sole option and for any reason including convenience, the performance of all or any
portion of the Work to be performed under the GMP Amendment. Upon such Notice of
Suspension of the Work, City will designate the amount and type of plant, labor, and
equipment to be committed to the Jobsite during the period of suspension. Construction
Manager shall use its best efforts to utilize its plant, labor, and equipment in such a manner
as to minimize costs associated with such suspension.
13.2.2.1. The Construction Manager shall comply with Subsections 13.2.1.1 through
13.2.1.2.
13.2.2.2. As full compensation for such suspension, Construction Manager will be
reimbursed for the following costs, without duplication of any item, to the extent
that such costs were reasonably incurred and directly result from such suspension
of the Work:
a. A standby charge to be paid to Construction Manager during the period of
suspension of the Work, which standby charge shall be sufficient to
compensate Construction Manager for keeping, to the extent required in the
Notice, its organization and equipment committed to the Work in a standby
status;
b. All reasonable costs, as determined to be equitable by City, associated with
demobilization and subsequent remobilization of Construction Manager's
plant, forces, and equipment; and
c. An equitable amount to reimburse Construction Manager for the cost of
maintaining and protecting that portion of the Work upon which work has been
suspended.
d. Any Claim on the part of Construction Manager for such compensation shall
be made within ten (10) business days after receipt by Construction Manager
of a Notice to suspend the Work.
13.2.2.3. If, as a result of any such suspension of the Work, the cost to Construction
Manager of subsequently performing the Work is increased or decreased, an
equitable adjustment will be made in the cost of performing the suspended Work
in accordance with Section 9.1. Any Claim on the part of Construction Manager
for additional time or compensation shall be made within ten (10) business days
after receipt of Notice to resume the Work,and Construction Manager shall submit
a revised Project Schedule for review and approval by City.
13.2.3. In the event such suspension continues for more than ninety(90) days, City may release to
Construction Manager, for the Work satisfactorily completed by Construction Manager,
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approved and accepted by City, any amounts retained by City under the terms of the GMP
Amendment. Such retention shall only be released to Construction Manager after
Construction Manager's complete compliance with the suspension notice and the
requirements of the Contract Documents.
13.2.4. No compensation or extension of time will be granted if suspension results from Construction
Manager's noncompliance with any requirements of the Contract Documents.
13.3. Termination by City for Convenience.
13.3.1. In addition to other rights the City may have at law and pursuant to the Contract Documents
with respect to cancellation and termination of this Agreement, the City may, in its sole
discretion, terminate for the City's convenience the performance of Work under this
Agreement, in whole or in part, at any time upon written notice to the Construction Manager.
The City shall effectuate such Termination for Convenience by delivering to the Construction
Manager a Notice of Termination for Convenience, specifying the applicable scope and
effective date of termination,which termination shall be deemed operative as of the effective
date specified therein without any further written notices from the City required. Such
Termination for Convenience shall not be deemed a breach of this Agreement, and may be
issued by the City with or without cause.
If the City terminates this Agreement other than pursuant to Section 13.3 with respect to this
Project as a whole, the City shall reimburse the Construction Manager for any unpaid Cost
of the Project due it plus that part of the unpaid balance of the Construction Phase Overhead
&Profit Fee in an amount as will increase the payment on account of its fee to a sum which
bears the same ratio to the Construction Phase Overhead & Profit Fee as the Cost of the
Project at the time of termination bears to the GMPs, if established, otherwise to the City's
Construction Budget.The City shall also pay to the Construction Manager fair compensation,
either by purchase or rental at the election of the City, for any equipment retained, as well
as move-out and demobilization costs. In case of such termination of Agreement, at the sole
discretion of the Project Coordinator, the City may require the Construction Manager to
assign to the City any unsettled contractual Claim for which performance of the Work and
nonpayment by the City can be, in the sole discretion of the Project Coordinator, properly
documented. The Construction Manager may, as a condition of receiving the payments
referred to in this Article 13, execute and deliver all such papers and take all such steps
including the legal assignment of its contractual rights as requested by the City, or as the
City may require for the purpose of fully vesting the rights and benefits of the Construction
Manager under such obligations or commitments.
13.3.2. After the establishment of the GMP and/or at the completion of the Pre-Construction Phase
for the Project, if the final cost estimates or lack of funding make the Project no longer
feasible, such determination being at the sole discretion of the City, the City may terminate
this Agreement and pay the Construction Manager its proportionate fees eared to date in
accordance with Section 7.1 (to be calculated on a pro rata basis by reference to the monthly
amounts identified in the Schedule of Values), plus any Work performed and compensable
pursuant to Article 8. Construction Manager shall have no entitlement to any fees for
activities not yet undertaken or authorized by the City.
13.3.3. The payments to Construction Manager pursuant to the foregoing Sections shall be the sole
right and remedy of Construction Manager upon any such termination and Construction
Manager shall have no Claims for damages, including loss of anticipated profits on account
of termination.
13.3.4. Upon receipt of a notice of termination, Construction Manager and its Subcontractors shall,
unless the Notice requires otherwise,and regardless of any delay in determining or adjusting
any amounts due under this Section 13.3:
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13.3.4.1. Immediately discontinue the Work or portions thereof that can be discontinued
without creating a hazardous condition, on the date and to the extent specified in
the Notice.
13.3.4.2. Cancel all outstanding commitments for labor, materials, equipment, and
apparatus on the terminated portion of the Work that may be canceled without
undue cost and take such other actions as are necessary to minimize
demobilization and termination costs for such cancellations. Construction
Manager shall notify City of any commitment that cannot be canceled without
undue cost and City shall have the right to accept delivery or to reject delivery and
pay the agreed upon costs;
13.3.4.3. Immediately deliver to the City all Submittals, Project-related documents, any and
all unfinished documents, and any and all warranties and guaranties for Work,
equipment or materials already installed or purchased.
13.3.4.4. If specifically directed by the City in writing, assign to the City all right,title and
interest of Construction Manager under any contract, subcontract and/or
purchase order, in which case the City shall have the right and obligation to
settle or to pay any outstanding claims arising from said contracts,
subcontracts or purchase orders;
13.3.4.5. Place no further subcontracts or purchase orders for materials, services, or
facilities, except as necessary to complete the portion of the Work not
terminated (if any) under the Notice of Termination for Convenience;
13.3.4.6. As directed by the City, transfer title and deliver to the City (1) the fabricated
and non-fabricated parts, Work in progress, completed Work, supplies and
other material produced or required for the Work terminated; and (2) the
completed or partially completed Project records that, if this Agreement had
been completed, would be required to be furnished to the City;
13.3.4.7. Settle all outstanding liabilities and termination settlement proposals from the
termination of any subcontracts or purchase orders, with the prior approval or
ratification to the extent required by the City (if any);
13.3.4.8. Take any action that may be necessary, or that the City may direct, for the
protection and preservation of the property related to this Agreement that is in
the Construction Manager's possession and in which the City has or may
acquire an interest; and
13.3.4.9. Complete performance of the Work not terminated (if any).
13.3.5. Upon issuance of such Notice of Termination for Convenience, the Construction
Manager shall only be entitled to payment for the Work satisfactorily performed up until
the date of its receipt of such Notice of Termination for Convenience, but no later than
the effective date specified therein. Payment for the Work satisfactorily performed shall
be determined by the City in good faith, in accordance with the Cost of the Work, the
reasonable costs of demobilization and reasonable costs, if any, for canceling contracts
and purchase orders with Subcontractors to the extent such costs are not reasonably
avoidable by the Construction Manager.
13.3.6. Construction Manager shall submit, for the City's review and consideration, a final
termination payment proposal with substantiating documentation, including an updated
Schedule of Values, within thirty (30) days of the effective date of termination, unless
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extended in writing by the City upon request. Such termination amount shall be
mutually agreed upon by the City and the Construction Manager and absent such
agreement, the City shall, no less than fifteen (15) days prior to making final payment,
provide the Construction Manager with written notice of the amount the City intends to
pay to the Construction Manager. Such final payment so made to the Construction
Manager shall be in full and final settlement for Work performed under this Agreement,
except to the extent the Construction Manager disputes such amount in a written notice
delivered to and received by the City prior to the City's tendering such final payment.
13.4. Event of Default.The following shall each be considered a Default. If,after delivery of written notice
from the City to Construction Manager specifying such Default, the Construction Manager fails to
promptly commence and thereafter complete the curing of such Default within a reasonable period
of time, not to exceed fifteen (15) days after the delivery of such notice of Default or, if with respect
to any Non-Monetary Default (as defined below), such default is not capable of being cured within
such fifteen (15) day period, Construction Manager fails to undertake within such period to effect a
cure and diligently and in good faith prosecute the same to conclusion no later than ninety(90)days
following delivery of the notice of Default, it shall be deemed an Event of Default,which constitutes
sufficient grounds for the City to terminate Construction Manager for cause:
13.4.1. Failing to make payments to Subcontractors or Suppliers for materials or labor in accordance
with the respective Subcontracts and Purchase Orders(a"Monetary Default");
13.4.2. Failing to perform any portion of the Work in a manner consistent with the requirements
of the Contract Documents or within the time required therein; or failing to use the
Subcontractors, and Key Personnel as identified, and to the degree specified, in the
Contract Documents,subject to substitutions approved by the City in accordance with this
Agreement and the other Contract Documents;
13.4.3. Failing, for reasons other than an Excusable Delay, to begin the Work required for either
Pre-Construction Services or Construction Phase Services following the issuance of a
Notice to Proceed, respectively;
13.4.4. Failing to perform the Work with sufficient manpower, workmen and equipment or with
sufficient materials, with the effect of delaying the prosecution of the Work in accordance
with the Project Schedule and/or delaying completion of any Milestone or the Project within
the specified time;
13.4.5. Failing, for reasons other than an Excusable Delay, to timely complete any Milestone or
the Project within the specified time;
13.4.6. Failing and/or refusing to remove, repair and/or replace any portion of the Work as may
be rejected as defective or nonconforming with the terms and conditions of the Contract
Documents;
13.4.7. Discontinuing the prosecution of the Work, except in the event of: 1) the issuance of a
stop-work order by the City; or 2) the inability of the Construction Manager to prosecute
the Work because of an event giving rise to an Excusable Delay as set forth in this
Agreement for which Construction Manager has provided written notice of same in
accordance with Subsection 9.4.4 of this Agreement;
13.4.8. A custodian, trustee or receiver is appointed for the Construction Manager, or the
Construction Manager becomes insolvent or bankrupt, is generally not paying its debts
as they become due or makes an assignment for the benefit of creditors, or the
Construction Manager causes or suffers an order for relief to be entered with respect
to it under applicable Federal bankruptcy law or applies for or consents to the
appointment of a custodian, trustee or receiver for the Construction Manager, or
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bankruptcy, reorganization, arrangement or insolvency proceedings, or other
proceedings for relief under any bankruptcy or similar law or laws for the relief of
debtors, are instituted by or against the Construction Manager;
13.4.9. Failing to provide sufficient evidence upon request that, in the City's sole opinion,
demonstrates the Construction Manager's financial ability to complete the Project;
13.4.10. An indictment is issued against the Construction Manager;
13.4.11. Persistently disregarding laws,ordinances,or rules,regulations or orders of a public authority
having jurisdiction;
13.4.12. Fraud,misrepresentation or material misstatement by Construction Manager in the course of
obtaining this Agreement;
13.4.13. Failing to comply in any material respect with any of the terms of this Agreement or the other
Contract Documents.
The Defaults listed in Subsections 13.4.2 through Subsection 13.4.13 shall each be
considered"Non-Monetary Defaults".
In no event shall the time period for curing a default constitute an extension of the
Contract Time or any Milestone or a waiver of any of the City's rights or remedies
hereunder for a Default which is not cured as aforesaid.
13.5. Termination of Agreement for Cause.
13.5.1. The City may terminate the Construction Manager for cause upon the occurrence of an
Event of Default and expiration of the cure period specified in the written notice of Default
or as provided in Section 13.4,or for any other breach of this Agreement or other Contract
Documents by the Construction Manager that the City, in its sole opinion, deems
substantial and material, following written notice to the Construction Manager and the
failure to timely and properly cure to the satisfaction of the City in the time period set forth
in Section 13.4, or as otherwise specified in the Notice of Default.
13.5.2. Upon the occurrence of an Event of Default,and without any prejudice to any other rights
or remedies of the City, whether provided by this Agreement, the other Contract
Documents or as otherwise provided at law or in equity, the City may issue a Notice of
Termination for Cause to Construction Manager, copied to the Surety, rendering
termination effective immediately, and may, subject to any prior rights of the Surety:
a. Take possession of the Project Site and of all materials,equipment,tools,construction
equipment and machinery thereon owned by Construction Manager;
b. Accept assignments of subcontracts;
c. Direct Construction Manager to transfer title and deliver to the City (1) the fabricated
and non-fabricated parts, Work in progress, completed Work, supplies and other
material produced or required for the Work terminated; and (2) the completed or
partially completed Project records that, if this Agreement had been completed,would
be required to be furnished to the City;
d. Finish the Work by whatever reasonable method the City may deem expedient'and
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e. Upon the issuance of a Notice of Termination for Cause, the Construction Manager
shall:
i. Immediately deliver to the City all Submittals and Project-related records in their
original/native electronic format (i.e. CAD, Word, Excel, etc.), any and all other
unfinished documents, and any and all warranties and guaranties for Work,
equipment or materials already installed or purchased;
ii. If specifically directed by the City in writing, assign to the City all right, title and
interest of Construction Manager under any contract, subcontract and/or
purchase order,in which case the City shall have the right and obligation to settle
or to pay any outstanding claims arising from said contracts, subcontracts or
purchase orders;
iii. As directed by the City,transfer title and deliver to the City(1)the fabricated and
non-fabricated parts, Work in progress, completed Work, supplies and other
material produced or required for the Work terminated; and (2)the completed or
partially completed Project records that, if this Agreement had been completed,
would be required to be furnished to the City; and
iv. Take any action that may be necessary, or that the City may direct, for the
protection and preservation of the property related to this Agreement that is in
the Construction Manager's possession and in which the City has or may acquire
an interest.
f. The rights and remedies of the City under Article 13 shall apply to all Defaults that fail to
be cured within the applicable cure period or are cured but in an untimely manner, and
the City shall not be obligated to accept such late cure.
13.6. Recourse to Performance Bond. Upon the occurrence of an Event of Default and the expiration
of the cure period provided in the written notice of Default, in addition to any other remedies
provided by law, the City may terminate this Agreement and make demand upon the Surety to
perform its obligations under the Performance Bond, including completion of the Work, without
requiring any further agreement (including not requiring any takeover agreement). The City may
also charge against the Performance Bond all fees and expenses for services incidental to
ascertaining and collecting losses under the Performance Bond including accounting,
architectural/engineering,and legal fees,together with any and all costs incurred in connection with
renegotiation of this Agreement.
13.7. Costs and Expenses.
13.7.1. All damages, costs and expenses, including reasonable attorney's fees, incurred by the
City as a result of an uncured Default or a Default cured beyond the time limits stated herein
(except to the extent the City has expressly consented, in writing, to the Construction
Manager's late cure of such Default),together with the costs of completing the Work, shall
be deducted from any monies due or to become due to the Construction Manager under
this Agreement, Irrespective of whether the City ultimately terminates Construction
Manager.
13.7.2. Upon issuing a Notice of Termination for Cause, the City shall have no obligation to pay
Construction Manager, and the Construction Manager shall not be entitled to receive, any
money until such time as the Project has been completed and the costs to make repairs
and/or complete the Project have been ascertained by the City. In case such cost and
expense is greater than the sum which would have been due and payable to the
Construction Manager under this Agreement for any portion of the Work satisfactorily
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performed, the Construction Manager and the Surety shall be jointly and severally liable
and shall pay the difference to the City upon demand.
13.8. Termination If No Default or Erroneous Default. If, after a Notice of Termination for Cause is
issued by the City, it is thereafter determined that the Construction Manager was not in default
under the provisions of this Agreement, or that any delay hereunder was an Excusable Delay, the
termination shall be converted to a Termination for Convenience and the rights and obligations of
the Parties shall be the same as if the notice of termination had been issued pursuant to the
termination for convenience clause contained in Section 13.3. The Construction Manager shall
have no further recourse of any nature for wrongful termination.
13.9. Remedies Not Exclusive. Except as otherwise provided in the Contract Documents, no
remedy under the terms of this Agreement is intended to be exclusive of any other remedy, but
each and every such remedy shall be cumulative and shall be in addition to any other remedies,
existing now or hereafter, at law, in equity or by statute. No delay or omission to exercise any
right or power accruing upon any Event of Default shall impair any such right or power nor shall
it be construed to be a waiver of any Event of Default or acquiescence therein, and every such
right and power may be exercised from time to time as often as may be deemed expedient.
13.10. Failure to Pay. If the City should fail to pay the Construction Manager any amount owing
pursuant to an Approved Application for Payment in accordance with the Contract Documents
and after receipt of all supporting documentation required pursuant to Subsection 11.2.1 hereof,
and if the City fails to make such payment within the prescribed time of Florida Statute 218.735,
and unless the City is withholding such payment pursuant to Section 11.5 hereof or any other
provision of this Agreement which entitles the City to so withhold such payment, the
Construction Manager shall have the right to, and may, upon the expiration of the aforesaid
statutory time period to stop its performance of the Work, provided that Construction Manager
has sent a Notice to Cure to the City via certified mail, allowing for a () seven (7) day cure
period. In such event, the Construction Manager shall not be obligated to recommence the
Work until such time as the City shall have made payment to the Construction Manager in
respect of such Approved Application for Payment, plus any actual and reasonable related
demobilization and start-up costs evidenced by documentation reasonably satisfactory to the
City. Except as set forth in this Section 13.10, no act, event, circumstance or omission shall
excuse or relieve the Construction Manager from the full and faithful performance of its
obligations hereunder and the completion of the Work as herein provided for. Appropriate
extensions of time shall be permitted in the event the Work has been stopped due to the City's
failure to make payment on an Approved Application for Payment as referenced herein.
13.11. Materiality and Non-Waiver of Breach. Each requirement, duty, and obligation in the Contract
Documents is material. The City's failure to enforce any provision of this Agreement shall not be
deemed a waiver of such provision or modification of this Agreement. A waiver shall not be effective
unless it is in writing and approved by the City. A waiver of any breach of a provision of this
Agreement shall not be deemed a waiver of any subsequent breach and the failure of the City to
exercise its rights and remedies under this Article 13 at any time shall not constitute a waiver of
such rights and remedies.
13.12. Termination by the Construction Manager. If the Project in its entirety is stopped for a period of
one hundred twenty (120) days under an order of any court or other public authority having
jurisdiction or as a result of an official act of government, such as a declaration of a national
emergency making materials unavailable, through no act or fault of the Construction Manager, its
agents employees, Subcontractors or suppliers, and City and Construction Manager are unable to
reach agreement concerning compensation to Construction Manager during the suspension and
other material matters concerning the status of the Project during the period of suspension, then
with respect to any impacted Project the Construction Manager may, upon thirty(30)days written
notice to the City, terminate the Project and.request payment for all Work performed and
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compensable pursuant to Article 8, the Construction Manager's fees earned to date, and for any
proven loss sustained upon any materials, equipment, tools, construction equipment, and
machinery, including reasonable profit, damages and terminal expenses incurred by the
Construction Manager.
13.13. City's Right to Carry Out the Work. If Construction Manager fails to perform any of its obligations
under this Agreement, including any obligation under or by which it assumes to perform with its own
forces, and fails within seven(7)days after receipt of written notice from the City to commence and
continue correction of such default or neglect with diligence and promptness,the City may,without
prejudice to any other rights or remedies of the City under the Contract Documents or under law,
make good such deficiencies. In such event, the GMP shall be reduced via a deductive Change
Order in the amount of the costs to the City of making good such deficiencies, including expenses
related to any additional services of the Architect-Engineer or Resident Project Representative
made necessary by such default, neglect or failure. The Construction Overhead and Profit Fee
shall be reduced according to the proportionate amount of Work so done or procured to be done
by the City. If the payments then or thereafter due the Construction Manager are not sufficient to
cover such amount, the Construction Manager shall pay the difference to the City.
ARTICLE 14
ASSIGNMENT AND GOVERNING LAW
14.1. Neither the City nor the Construction Manager shall assign its interest in this Agreement without the
written consent of the other,except as to the assignment of proceeds. Notwithstanding the foregoing,
City may assign its interest in this Agreement or any portion thereof to any local or state governmental
body, special taxing district, or any person authorized by law to construct or own the Project. Such
assignee shall be bound to comply with the terms of this Agreement.
14.2. This Agreement shall be governed as to performance, interpretation and jurisdiction by the laws of
the State of Florida,without regard to conflicts of law rules.
14.3. 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 the state courts of Miami-Dade County,
Florida. BY ENTERING INTO THIS AGREEMENT,THE CONSTRUCTION MANAGER 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. CONSTRUCTION
MANAGER SHALL SPECIFICALLY BIND ALL SUBCONTRACTORS TO THE PROVISIONS OF
THIS AGREEMENT AND THE CONTRACT DOCUMENTS. IN THE EVENT OF A CONFLICT
BETWEEN THIS PROVISION AND ANY TERM OR CONDITION IN ANY PROJECT-RELATED
AGREEMENT,THE CONTRACT DOCUMENTS SHALL GOVERN AND TAKE PRECEDENCE.
14.4. Each Party shall bear its own attorney's fees,except in actions arising out of Construction Manager's
duties to indemnify the City under this Agreement,where Construction Manager shall pay the City's
reasonable attorney's fees.
ARTICLE 15
CLAIMS;WAIVER OF REMEDIES;
DISPUTE AVOIDANCE AND RESOLUTION
15.1. The City's liability to Construction Manager for any Claims shall be governed by the following
provisions:
15.1.1. Claims. Claims must be initiated by written notice and, unless otherwise specified in any
other provision of this Agreement, submitted to the other Party within ten (10) days of the
event giving rise to such Claim or within ten (10) days after the claimant reasonably should
have recognized the event or condition giving rise to the Claim, whichever is later. Such
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Claim shall include sufficient information to advise the other Party of the circumstances
giving rise to the Claim,the specific contractual adjustment or relief requested including the
amounts and number of days of delay sought, and the basis of such request. The Claim
must include all job records and other documentation supporting entitlement, the amounts
and time sought. In the event additional time is sought, the Construction Manager shall
include a time impact analysis to support such Claim. The City and/or Resident Project
Representative shall be entitled to request additional job records or documentation to
evaluate the Claim. The Claim shall also include the Construction Manager's written
notarized certification of the Claim in accordance with the False Claims Ordinance,Sections
70-300 et seq., of the City Code. Claims may be submitted in response to a Change Order
issued by the City on its own initiative or in response to a proposal by the Construction
Manager, but not in response to a Change Order issued pursuant to Section 15.2.
a. Claims not timely made or otherwise not submitted in strict accordance with the
requirements of this Article 15 or other Contract Documents shall be deemed
conclusively waived, the satisfaction of which shall be conditions precedent to
entitlement.
b. CONSTRUCTION MANAGER ASSUMES ALL RISKS FOR THE FOLLOWING ITEMS,
NONE OF WHICH SHALL BE THE SUBJECT OF ANY CLAIM AND NONE OF WHICH
SHALL BE COMPENSATED FOR EXCEPT AS THEY MAY HAVE BEEN INCLUDED
IN THE CONSTRUCTION MANAGER'S OVERHEAD AND PROFIT AS PROVIDED IN
THE CONTRACT DOCUMENTS: LOSS OF ANY ANTICIPATED PROFITS, LOSS OF
BONDING CAPACITY OR CAPABILITY LOSSES, LOSS OF BUSINESS
OPPORTUNITIES, LOSS OF PRODUCTIVITY ON THIS OR ANY OTHER PROJECT,
LOSS OF INTEREST INCOME ON FUNDS NOT PAID, INEFFICIENCIES,COSTS TO
PREPARE A BID, COST TO PREPARE A QUOTE FOR A CHANGE IN THE WORK,
COSTS TO PREPARE, NEGOTIATE OR PROSECUTE CLAIMS, AND LOSS OF
PROJECTS NOT BID UPON. NO COMPENSATION SHALL BE MADE FOR LOSS
OF ANTICIPATED PROFITS FROM ANY DELETED WORK.
15.2. Dispute Avoidance and Resolution. The Parties are committed to working together throughout
the Project and agree to communicate regularly with each other at all times so as to avoid and/or
minimize disputes and disagreements. If disputes do arise between the Parties or involving any
Subcontractor as to the interpretation of this Agreement or relating to the Work or the Project,
Construction Manager and City each commit to resolving such disputes in good faith,in an amicable,
professional and expeditious manner so as to avoid any unnecessary losses, delays and disruptions
to the Work.
15.2.1. Claims shall first be submitted to the Project Coordinator for initial recommendation for
determination by the City at the time and in the manner specified in Section 15.1 herein
unless otherwise specified in this Agreement or other Contract Documents. The City shall
render an initial recommendation for determination of such Claim, in writing, as soon as
practicable, but not later than thirty (30) days of receipt of such Claim, unless the Parties
mutually stipulate otherwise in writing or other circumstances warrant a time modification as
determined by the City. Failure to render a written decision within the thirty(30) days, or a
later date if stipulated by the Parties,shall be considered a denial of the Claim submitted by
the claimant.
15.2.2. In order to preserve for review an initial recommendation for determination of the City at
mediation and/or by a court of competent jurisdiction(as applicable),then the Party seeking
review shall notify the other Party in writing within fifteen(15)days of such recommendation
by the City or, if no recommendation,within fifteen (15)days of when the Claim is denied as
a result of inaction by the City. Failure to timely preserve review of the City's written
recommendation or denial by inaction shall constitute a waiver of such Claim or entitlement
to such objection and the recommendation of the City (whether by affirmative written
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recommendation or denial by inaction) shall be deemed final and binding, but subject to
mediation and litigation (as applicable).
15.2.3. If the City agrees to pay a portion of the Claim, the Construction Manager may reserve the
remaining portion of the Claim by executing a conditional release in a Change Order,which
states the remaining amount and time sought and identifies the particular scope of Work to
which the reservation applies. Unspecified amounts or time claimed will not preserve a
Claim or right to a Claim. Each Change Order shall contain a release and waiver of all
Claims as of the date the Construction Manager executes the Change Order, except as
specifically included in a reservation of Claims within the Change Order. The reservation of
Claims shall, as to each reserved individual Claim, state the amount and time sought in the
Claim and identify the scope of Work giving rise to the Claim. Any Claim not included in the
reservation of Claims or that fails to specify the amount and/or time sought are deemed
waived and abandoned.
15.2.4. In the event any Claims which have been timely preserved remain unresolved at Substantial
Completion,then the Parties agree to participate in mediation within sixty(60)days, unless
the City terminates this Agreement, which shall render such mediation moot. The Parties
shall mutually agree to the selection of a mediator,and mediation,which shall be confidential
in the same manner as Court-ordered mediation, shall take place within the 60-day post-
Substantial Completion time period, unless both Parties mutually agree otherwise. The
Parties shall split the mediator's fees equally. Participation in mediation shall be a condition
precedent to filing suit in a court of competent jurisdiction unless otherwise excused by the
terms of this Subsection or stipulated by both Parties in writing.
In the event of a dispute arising after Substantial Completion, Final Payment or Final
Completion, mediation is encouraged but is not a condition precedent to litigation.
15.3. Duty to Continue Performance. Pending resolution of any dispute,the Construction Manager shall
proceed and shall cause its Subcontractors to proceed diligently with the performance of its duties
and obligations under the Contract Documents and the City shall continue to make payments of
undisputed amounts in accordance with the Contract Documents. The failure of the Construction
Manager to continue prosecution of the Work in the event of a pending dispute shall be deemed a
Default pursuant to Section 13.4 of this Agreement.
15.4. Final Dispute Resolution. In the event of a dispute arising after Final Payment or Final Completion,
or a dispute which arose prior to Substantial Completion, has been preserved and which was not
successfully resolved at mediation,a court of competent jurisdiction in Miami-Dade County shall hear
such disputes. As specified in Section 14.13, the Parties hereby waive a trial by jury, which
requirement shall be included in each and every Subcontract,sub-consulting agreement and
purchase order that Construction Manager executes, in connection with its Work on the
Project.
ARTICLE 16
MISCELLANEOUS
16.1. Publicity. Construction Manager shall not engage in any advertising, publicity, or other promotional
activities that in any way directly or indirectly mentions or refers to this Agreement, the relationship
between the Parties created thereby or the services and material furnished there under, without
obtaining the prior written consent of City. Construction Manager shall not display any signs,posters,
or other advertising matter in or on any part of the Work without specific written approval of City.
16.2. Right to Apply Monies Due. In addition to other available remedies, the City shall have the right
to deduct from any funds and monies due or thereafter to become due to the Construction Manager,
including funds retained by the City under the retainage provisions of this Agreement, any amounts
due to the City from the Construction Manager as a result of any losses, expenses, damages,
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obligations or liabilities for which the Construction Manager is responsible pursuant to the provisions
of this Agreement, including liquidated damages, and apply said funds deducted toward the
satisfaction of such losses, expenses, damages, obligations or liabilities.
It is expressly provided, however, that the deduction and application of such funds shall not apply if
the Construction Manager undertakes and makes payment of the amounts so due and payable and
shall not in any event relieve the Construction Manager of its responsibility or liability for any amounts
owed in addition to those amounts deducted by the City.
16.3. Invoices.Invoices shall be submitted in detail sufficient for a proper pre-audit and post-audit thereof.
Invoices for any travel expenses authorized by City shall be submitted in accordance with procedures
specified in Section 112.061, Florida Statutes, governing payments by the State for travel expenses.
16.4. Risk of Loss. Except as provided pursuant to Appendix F for Owner-Purchased Materials, the
risk of loss to any of the Work and to any goods, materials and equipment provided or to be
provided under this Agreement, shall remain with the Construction Manager until block by block
Partial Substantial Completion. Should any of the Work, or any such goods, materials and
equipment, be destroyed, mutilated, defaced or otherwise damaged prior to the time the risk of
loss has shifted to the City, the Construction Manager shall repair or replace the same at its sole
cost. The Performance Bond and Payment Bond or other security or insurance protection
required by the Contract Documents or otherwise provided by the City or the Construction
Manager shall in no way limit the responsibility of the Construction Manager under this Section.
16.5. Damage to Property at Project Site. The Construction Manager shall be liable for any and all
damage or loss to property belonging to the City or others at the Project Site to the extent caused
by the Construction Manager, any Subcontractor or anyone directly or indirectly employed by any
of them,or anyone for whose acts they may otherwise be liable.The costs and expenses incurred
by the Construction Manager under this Section shall not be reimbursable as a Cost of the Project,
except to the extent provided in Section 8.2. Nothing in the foregoing shall preclude the
Construction Manager from paying such costs and expenses out of any insurance proceeds
received by the Construction Manager under the policies of insurance maintained under this
Agreement.
16.6. Damage to Others' Property. The Construction Manager shall exercise due care and take all
precautions during prosecution of the Work including, but not limited to, construction or
excavation, to avoid damage, as a result of the Construction Manager's and its Subcontractors'
operations to existing sidewalks, curbs, streets, alleys, pavements, utilities, adjoining property,
the work of Separate Contractors, and the property of the City and others. The Construction
Manager shall repair any damage thereto caused by the Construction Manager's or its
Subcontractors'operations. Construction Manager shall immediately report any damage caused
to others' property to the Contract Administrator, provided, however,that the costs and expenses
incurred by the Construction Manager under this Section 16.6 shall not be reimbursable by City
and shall be borne by Construction Manager at its sole cost and expense. Nothing in the
foregoing shall preclude the Construction Manager from paying such costs and expenses out of
any insurance proceeds received by the Construction Manager under the policies of insurance
maintained under this Agreement, provided that in no event shall the processing of any insurance
claims in any way relieve, excuse or delay the Construction Manager from remediating, repairing,
and/or otherwise completing all Work in accordance with the requirements of the Contract
Documents. In connection therewith, the City hereby waives all Claims against the Construction
Manager for loss or damage to any of the City's properties which currently adjoin the Project Site,
but only to the extent of the City's actual recovery of property insurance proceeds from its property
insurers. If the Construction Manager fails to repair such damage, then after ten (10) days prior
notice from the City to the Construction Manager,the City shall be entitled to repair such damages
occurring to its property with its own forces or other contractors and to deduct from payments due
or to become due to the Construction Manager amounts paid or incurred by the City, including
overhead, in repairing such damages if, within the ten (10) day period after the City's delivery of
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such written notice to the Construction Manager, the Construction Manager has not commenced
and diligently proceeded with any such repairs and/or completed such repairs if feasible within
the ten (10) day period.
16.7. Construction Manager's Project Records. The Construction Manager's Project-related Records
shall be made available to the City or its authorized representatives, including the Resident Project
Representative and Architect-Engineer, at mutually convenient times. Construction Manager shall
maintain a copy of all contracts (including this agreement and all Subcontracts), Construction
Documents,Change Orders and other Amendments,in good order and marked to record all changes
made during construction; Shop Drawings; product data; samples;as-builts;the most recent Master
Project Schedule and Construction Schedule; applicable handbooks; maintenance and operating
manuals and instructions; and other related documents that arise out of the Work or relate to the
Project, including files, correspondence, documents, receipts, vouchers, invoices, memoranda, and
similar data relating to all Work performed under the Contract Documents (hereinafter collectively
called the "Records") in a proper business-like fashion, conforming to accepted accounting
principles, and in such detail as will properly and accurately reflect the Work performed under this
Agreement and all GMP Amendments,as well as the costs thereof.
16.7.1. City and/or its authorized representatives shall have the right, after reasonable Notice and
at all reasonable times,to examine and make copies of all records.
16.7.2. Construction Manager shall preserve and make available to City and/or its authorized
representative all Records for a period of five (5) years from the date of Final Payment,
termination settlement, or until the conclusion of any Claim, litigation or appeal, whichever is
longer;or for such longer period, if any, required by Applicable Law or regulation.
16.7.3. At City's expense,City or an independent certified public accountant designated by City shall
have the right to audit, copy and inspect said records and accounts at all reasonable times
during the course of such Work and for the above five(5)year period.
16.8. RFQ Proposal Submission. The Construction Manager acknowledges that it was selected for this
Agreement in part by the proposed approaches and plans submitted as part of its RFQ Proposal
Submission. The Construction Manager agrees to provide its services under this Agreement at a
level not inferior to that referenced in its RFQ Proposal Submission.
16.9. Compliance With Applicable Laws. The Construction Manager shall comply, and shall cause all
Subcontractors to comply, with all Applicable Laws of any governmental agencies and authorities
having jurisdiction over the Work, the Project and/or the Project Site, now existing or hereinafter in
effect. Each and every Applicable Law provision required by law to be inserted in the Contract
Documents shall be deemed to be inserted herein and the Contract Documents shall be read and
enforced as though it were included herein,and if,through mistake or otherwise, any such provision
is not so inserted or is not correctly inserted, or is inserted but is subsequently amended,then upon
the application of either Party, the Contract Documents shall forthwith be amended to make such
insertion or to incorporate such amendment. In no event, however, shall the failure to so insert such
provision into the Contract Documents prevent the enforcement of same or relieve the Construction
Manager of its obligation to fully comply with the same.
16.10. Public Entity Crime Information Statement.Construction Manager acknowledges and agrees that
the provisions of Florida Statute 287.133, relating to public entity crimes, shall apply to this
Agreement, which, among other things, provides as follows: "A person or affiliate 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 a public entity, may not submit a bid on a
contract with a public entity for the construction or repair of a public building or public work, may not
submit bids on leases of real property to a public entity, may not be awarded or perform work as a
Construction Manager,supplier, Subcontractor,or consultant under a contract with any public entity,
and may not transact business with any public entity in excess of the threshold amount provided in
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Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on
the convicted vendor list."
16.11. No Personal Liability of Public Officials. In carrying out any of the provisions of the Contract
Documents or in exercising any power or City granted to them hereby,there shall be no liability upon
any City official, their authorized representatives, or any employee of the City, either personally or
as employees or officials of the City, it being understood that in such matters they act as agents and
representatives of the City.
16.12. NOT USED.
16.13. Audit Rights. Construction Manager's records which shall include but not be limited to
accounting records, payroll time sheets, cancelled payroll checks, W-2's, 1099's, written policies
and procedures, computer records, disks and software, videos, photographs, subcontract files
(including proposals of successful and unsuccessful bidders), originals estimates, estimating
worksheets, correspondence, change order files (including documentation covering negotiated
settlements), and any other supporting evidence necessary to substantiate charges related to
the Contract Documents (all the foregoing hereinafter referred to as "records") shall be open to
inspection and subject to audit and/or reproduction at any time during or after the Project, during
normal working hours, by City's agents or its authorized representatives to the extent necessary
to adequately permit evaluation and verification of any invoices, payments or Claims submitted by
the Construction Manager or any of its payees pursuant to the execution of this Agreement.
Such records subject to examination shall also include, but not be limited to, those records
necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they
may apply to costs associated with the Contract Documents.
16.13.1. Records subject to the provisions of the Florida Public Records Act, Chapter 119, Florida
Statutes,shall be kept in accordance with such statute. Otherwise,for the purpose of such
audits, inspections, examinations and evaluations, the City's agent or authorized
representative shall have access to said records from the effective date of this Agreement,
for the duration of the Work, and until 5 years after the date of final payment by the City to
Construction Manager pursuant to this Agreement.
16.13.2. The City's agent or its authorized representative shall have access to the Construction
Manager's facilities, shall have access to all necessary records, and shall be provided
adequate and appropriate work space, in order to conduct audits in connection with any
aspect of the Project or the application of Project funds. The City or its authorized
representative shall give reasonable advance notice of intended audits. City's designated
auditors shall, at a minimum, have the same audit rights provided to the Miami-Dade
County Inspector General's Office and/or any Independent Private Sector Inspector
General as set forth in Section 16.15 below.
16.13.3. If an audit inspection or examination in accordance with this Article discloses contract
billing or charges to which Construction Manager is not contractually entitled,Construction
Manager shall pay over to the City said sum within twenty(20)days of receipt of a written
demand unless otherwise agreed to by both Parties in writing.
16.14. Patents,Trademarks,and Copyrights.
16.14.1. Construction Manager shall grant to City an assignable, irrevocable, nonexclusive,
royalty-free license,for use in connection with operation, maintenance, repair or alteration
of the Work or any portion thereof,with respect to any invention based wholly or in part on
or derived from proprietary information received from City and conceived or first reduced
to practice by Construction Manager, its employees or agents during the course of the
Work.
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16.14.2. Construction Manager further agrees to grant and hereby grants to City an assignable,
irrevocable, nonexclusive, royalty-free license, under all patents, trademarks, copyrights,
trade secrets and similar rights now or hereafter owned or controlled by Construction
Manager, to the extent necessary for the operation, maintenance, repair or alteration of
the Work or any unit or component thereof designed, specified or constructed by
Construction Manager under this Agreement.
16.14.3. Construction Manager further agrees to secure from all Subcontractors, suppliers and
others, and,convey to City, all licenses and other rights to use all patents, trademarks,
copyrights, trade secrets and similar rights associated with the Work, to the extent
necessary for the operation, maintenance, repair or alteration of the Work or any unit or
component thereof designed,specified or constructed by Construction Manager under this
Agreement.
16.14.4. Plans, prints, technical documents and data prepared or developed by Construction
Manager,Subcontractors or Suppliers and furnished to City in the performance of the Work
shall be the property of City and may be used by City without restriction. City shall have
the right to reproduce any and all plans, prints,technical documents or other data received
from Construction Manager that are considered necessary for engineering, construction,
start-up, commissioning, maintenance, or other purposes related to the Project, despite
any notice to the contrary appearing on the document.
16.14.5. Construction Manager shall, at Construction Manager's own expense, defend all suits or
proceedings instituted against City through counsel selected by Construction Manager and
reasonably satisfactory to City, and shall fully indemnify and hold City harmless and
otherwise pay any award of damages and all costs (including court costs and attorney's
fees) assessed against the City, in such suits or proceedings, insofar as the same are
based on (i) any Claim that the material, equipment, apparatus or other item furnished
under this Agreement or the GMP Amendment or any part thereof constitutes an
infringement of any United States patent,trademark or copyright, or(ii)any Claim that the
performance of the Work by Construction Manager, including the use of tools, implements
or construction constitutes an infringement of any United States patent, trademark or
copyright; provided that City shall give to Construction Manager prompt notice in writing of
the institution of any such suit or proceeding and shall furnish Construction Manager(at
Construction Manager's expense) all needed information, authority, and assistance to
enable Construction Manager to defend the same.
If such material,equipment,apparatus,or other item is in any such suit or proceeding held
to constitute infringement and its use is enjoined, Construction Manager, within a
reasonable time, shall either secure for City at Construction Manager's own expense,the
right to continue using said material,equipment, apparatus or other item by suspension of
the injunction or by procuring for City a license to use the infringing material, equipment,
apparatus,or other item. In lieu of the foregoing,Construction Manager at its own expense
and as the City may elect shall replace such material, equipment, apparatus or other item
with non-infringing material, equipment, apparatus or item or shall modify it so that it
becomes non-infringing.
The ultimate remedy shall be without damage or injury to any other property of City and
shall be at Construction Manager's sole expense.
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16.15. Employment Conditions.
16.15.1. No Discrimination;Affirmative Action.The Construction Manager shall comply with City of
Miami Beach Human Rights Ordinance,as codified in Chapter 62 of the City Code,as may
be amended from time to time, prohibiting discrimination in employment, housing, public
accommodations, or public services, on the basis of actual or perceived race, color,
national origin, religion,sex, intersexuality,sexual orientation,gender identity,familial and
marital status, age, ancestry, height, weight, domestic partner status, labor organization
membership, familial situation, political affiliation, or disability. The Construction Manager
shall post (or cause to be posted) in conspicuous places, available to employees and
applicants for employment, notices setting forth the provisions of this non-discrimination
clause. The Construction Manager further agrees that this clause will be incorporated in
all contracts entered into with Subcontractors and all labor organizations furnishing skilled,
unskilled and craft labor or performing any such labor in connection with the Work.
16.15.2. Civil Rights Act. The Construction Manager shall comply with, and shall require all
Subcontractors to comply with, all Federal, State, and local laws, rules, regulations and
ordinances relating to employment and the design and construction of the Project,
including the Civil Rights Act of 1964, Pub. L. 88-352. July 2. 1964. 78 Stat. §701 et seq.,
as amended;the Americans With Disabilities Act of 1990, Pub. L. 101-336, July 26, 1990;
and the City's Human Rights Ordinance, as same may be amended.
16.15.3. Prevailing Wages. If applicable, the Construction Manager shall comply with, and shall
require all Subcontractors to comply with, Sections 31-27 through 31-30 of the City Code,
as same may be amended from time to time, with regard to minimum hourly wage rates
for all employees who provide services pursuant to this Agreement, as follows:
a. The rate of wages and fringe benefit payments for all laborers, mechanics, and
apprentices shall not be less than those payments for similar skills in classifications of
work in a like construction industry as determined by the Secretary of Labor and as
published in the Federal Register, latest revision. All mechanics, laborers, and
apprentices, employed or working directly upon the Project Site shall be paid in
accordance with the above referenced wage rates. Construction Manager shall post
notice of these provisions at the Jobsite in a prominent place where it can be easily
seen by the workers.
b. If the Parties cannot agree on the proper classification of a particular class of laborers
or mechanics or apprentices to be used,the Parties shall submit the question,together
with its recommendation,to the City Manager for final determination.
c. In the event it is found by the City that any laborer or mechanic or apprentice employed
by Construction Manager, or any Subcontractor directly on the Project Site has been
or is being paid at a rate of wages less than the rate of wages required by the ordinance,
the City may(1)by written notice to Construction Manager terminate its right to proceed
with the Work or such part of Work for which there has been a failure to pay said
required wages;and(2)prosecute the Work or portion thereof to completion by contract
or otherwise. Whereupon, City and its sureties shall be liable to City for any excess
costs occasioned to City thereby.
d. Construction Manager shall maintain payrolls and basic records relating thereto during
the course of the Work and shall preserve such for a period of three(3)years thereafter
for all laborers, mechanics,and apprentices working at the Project Site. Such records
shall contain the name and address of each such employee; its current classification;
rate of pay (including rates of contributions for, or costs assumed to provide, fringe
benefits); daily and weekly number of hours worked; deductions made; and actual
wages paid.
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e. Construction Manager shall be required to submit, with each requisition for payment,
any signed and sworn statement of compliance with the prevailing wage rate ordinance,
as may be required by the City. Construction Manager shall submit certified payrolls
for each requisition period. Certified payrolls should include employee name, social
security number, labor classification, hours worked, hourly base rate, hourly fringe rate
and hourly benefit rate.
f. The City may withhold or cause to be withheld from Construction Manager so much of
the payments requisitioned as may be considered necessary to pay laborers and
mechanics, including apprentices, trainees, and guards employed by Construction
Manager or any Subcontractor on the work, the full amount of wages required by the
Contract Documents or terms of the applicable subcontract.
g. If Construction Manager or any Subcontractor fails to pay any laborer, mechanic, or
apprentice employed or working on the Project Site all or part of the wages required by
the Contract documents or terms of the applicable subcontract, the City may, after
written notice to Construction Manager,take such action as may be necessary to cause
suspension of any further payments or advances until such violations have ceased.
h. Construction Manager shall provide monthly reports on prevailing wage requirements
for the Project.
16.15.4. Equal Benefits. Construction Manager certifies and represents that it shall comply with all
applicable provisions of Section 2-373 of the City Code, as same may be amended from
time, with regard to equal benefits for domestic partners of employees. The failure to
comply with this Section shall constitute a material event of default of this Agreement.
16.16. Survival of Provisions. In order that the Parties to this Agreement may fully exercise their rights
and perform their obligations hereunder arising from the performance of the Work, any provisions of
this Agreement that are required to ensure exercise of such rights or performance shall survive
termination of this Agreement regardless of the cause for such termination and regardless of whether
or not such termination applies to all or only part of the Agreement.
16.17. Severability. The invalidity or unenforceability of any portion or provision of this Agreement shall in
no way affect the validity or enforceability of any other portion or provision hereof. Any invalid or
unenforceable portion or provision shall be deemed severed from this Agreement and the balance
of the Agreement shall be construed and enforced as if the Agreement did not contain such invalid
or unenforceable portion or provision. In the event any such provision of this Agreement is declared
invalid, the Parties shall promptly negotiate in good faith new provisions to eliminate such invalidity
and to restore this Agreement as near as possible to its original intent and effect.
16.18. No Waiver. No waiver of any breach or failure to enforce any of the terms, covenants, conditions or
other provisions of this Agreement by either Party at any time shall in any way affect, limit, modify or
waive that Party's right thereafter to enforce or compel strict compliance with every term, covenant,
condition or other provision hereof, any course of dealing or custom of the trade notwithstanding.
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16.19. No Contingent Fee. Construction Manager warrants that it has not employed or retained any
company or person, other than a bona fide employee working solely for Construction Manager 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 Construction
Manager, 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
Price, or otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
16.20. Entire Agreement. The Contract Documents shall constitute the entire agreement between the
Parties with respect to its subject matter and supersedes all prior agreements, representations and
understandings of the Parties, written or oral. No inducements, considerations, promises, or other
references shall be implied in the Contract Documents that are not expressly addressed herein.
[signature page to follow]
•
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Draft Contract No.23-461-01
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first
written above.
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By: By:
Rafael E. Granado, City Clerk Steven Meiner, Mayor
Date:
OHLA BUILDING,INC.
By:
Francisco Chang, Executive Vice President.
Print Name.
Print Name.
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Draft Contract No.23-461-01
APPENDIX A
PROJECT TEAM ASSIGNED REPRESENTATIVES
City of Miami Beach: Elizabeth Miro—Contract Administrator
Francisco Garcia—Project Coordinator
Architect-Engineer: Leo A Daly
Resident Project Representative: TBD
Construction Manager: OHLA Building, Inc.
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APPENDIX B
CONSTRUCTION MANAGER
Pre-construction&Construction Phase Personnel
Preconstruction:
Construction Phase:
To be provided at the time of the GMP submittal
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APPENDIX C
PROJECT SITE
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APPENDIX D
PROJECT SCHEDULE AND MILESTONES
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APPENDIX E
INSURANCE AND BONDING REQUIREMENTS
1. Construction Manager shall submit all supporting documentation and detailed invoices with
respect to insurance and bond premiums required for the Project. City's reimbursement of insurance and
bond premiums shall be for the portion of insurance and bond premiums directly attributable to this
Agreement (i.e. for those contracts actually enrolled or verifiably enrolled in the insurance program).
Premiums shall be net of trade discounts, volume discounts, dividends and other adjustments.
2. The Performance Bond,the Payment Bond, and any Bid Bond in excess of$500,000 must
each be executed by a surety company in good standing with the Florida Office of Insurance Regulation and
adequate rating from A.M. Best indicated in these Contract Documents, which surety is 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.
3. The surety company that is bound by the Performance Bond and Payment Bond,
respectively, shall be responsible for Construction Manager's acceptable performance of the Work under the
Contract and/or for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida
Statutes.
4. The surety company shall hold a current certificate of authority as acceptable surety on
federal bonds in accordance with United States Department of Treasury Circular 570, Current Revisions. If
the amount of the Performance Bond and Payment Bond exceeds the underwriting limitation set forth in the
circular, in order to qualify,the net retention of the surety company shall not exceed the underwriting limitation
in the circular, and the excess risks must be protected by coinsurance, reinsurance, or other acceptable
methods in accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR Section 223.10,
Section 223.11.) Further, the surety company shall provide City with evidence satisfactory to City,that such
excess risk has been protected in an acceptable manner.
5. The City will accept a surety bond from a company in accordance with the requirements
set forth below; provided however, that if any surety company appears on the watch list that is published
quarterly by Intercom of the Office of the Florida Insurance Commissioner, the City shall review and either
accept or reject the surety company based on the financial information available to the City. The following
sets forth, in general,the acceptable parameters for bonds:
Policy- Financial holder's Size
Amount of Bond Ratings Category
$500,001 to$1,000,000 A- Class I
$1,000,001 to$2,000,000 A- Class II
$2,000,001 to$5,000,000 A Class III
$5,000,000 to$10,000,000 A Class IV
$10,000,001 to$25,000,000 A Class V
$25,000,001 to$50,000,000 A Class VI
$50,000,001 or more A Class VII
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INSURANCE REQUIREMENTS
Construction Manager shall provide, pay for and maintain in force at all times during the term of this
Agreement(unless otherwise provided)and any extensions thereof, the following insurance policies:
Commercial General Liability
A. Workers' Compensation Insurance for all employees of the CMR as required by Florida
Statute Chapter 440 and Employer Liability Insurance with a limit of no less than$1,000,000
per accident for bodily injury or disease. Should the CMR be exempt from this Statute, the
CMR and each employee shall hold the City harmless from any injury incurred during
performance of the Contract. The exempt CMR shall also submit (i) a written statement
detailing the number of employees and that they are not required to carry Workers'
Compensation insurance and do not anticipate hiring any additional employees during the
term of this contract or(ii)a copy of a Certificate of Exemption.
B. Commercial General Liability Insurance on an occurrence basis, including products and
completed operations, property damage, bodily injury and personal &advertising injury with
limits no less than$2,000,000 per occurrence. If a general aggregate limit applies,either the
general aggregate limit shall apply separately to this project or the general aggregate limit
shall be twice the required occurrence limit.
C. Automobile Liability Insurance covering any automobile, if CMR has no owned automobiles,
then coverage for hired and non-owned automobiles, with limit no less than $2,000,000
combined per accident for bodily injury and property damage.
D. Professional Liability(Errors&Omissions) Insurance with limits no less than$1,000,000 per
occurrence or claim, and$2,000,000 policy aggregate.
E. Builders Risk Insurance utilizing an"All Risk coverage form,with limits equal to the completed
value of the project and no coinsurance penalty. (City of Miami Beach shall be named as a
Loss Payee on this policy, as its interest may appear. This policy shall remain in force until
acceptance of the project by the City.)
F. Umbrella Liability Insurance in an amount no less than $10,000,000 per occurrence. The
umbrella coverage must be as broad as the primary General Liability coverage.
G. CMR's Pollution Legal Liability(if project involves environmental hazards),with limits no less
than$1,000,000 per occurrence or claim, and$2,000,000 policy aggregate.
Additional Insured—City of Miami Beach must be included by endorsement as an additional insured with
respect to all liability policies (except Professional Liability and Workers' Compensation) arising out of work
or operations performed on behalf of the contractor including materials, parts, or equipment furnished in
connection with such work or operations and automobiles owned, leased, hired or borrowed in the form of
an endorsement to the contractor's insurance.
Notice of Cancellation — Each insurance policy required above shall provide that coverage shall not be
cancelled, except with notice to the City of Miami Beach do EXIGIS Insurance Compliance Services.
Waiver of Subrogation—Contractor agrees to obtain any endorsement that may be necessary to affect the
waiver of subrogation on the coverages required. However,this provision applies regardless of whether the
City has received a waiver of subrogation endorsement from the insurer.
Acceptability of Insurers—Insurance must be placed with insurers with a current A.M. Best rating of A:VII
or higher. If not rated, exceptions may be made for members of the Florida Insurance Funds(i.e. FWCIGA,
FAJUA). Carriers may also be considered if they are licensed and authorized to do insurance business in
the State of Florida.
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Verification of Coverage — Contractor shall furnish the City with original certificates and amendatory
endorsements, or copies of the applicable insurance language, effecting coverage required by this contract.
All certificates and endorsements are to be received and approved by the City before work commences.
However,failure to obtain the required documents prior to the work beginning shall not waive the Contractor's
obligation to provide them. The City reserves the right to require complete, certified copies of all required
insurance policies, including endorsements, required by these specifications, at any time.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
do EXIGIS Insurance Compliance Services
P.O. Box 947
Murrieta, CA 92564 •
Kindly submit all certificates of insurance, endorsements, exemption letters to our servicing agent, EXIGIS,
at:
Certificates-miamibeacht riskworks.com
Special Risks or Circumstances — The City of Miami Beach reserves the right to modify these
requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other
special circumstances.
Compliance with the foregoing requirements shall not relieve the Contractor of his liability and obligation
under this section or under any other section of this agreement.
III. ADDITIONAL TERMS AND CONDITIONS:
1. Notice to City. If the initial insurance expires prior to the completion of the Work, renewal
copies of insurance policies shall be furnished to the City at least fourteen(14)days prior to the date of their
expiration. The insurance policy(ies) must be endorsed to provide the City with at least thirty (30) days'
notice of cancellation and/or restriction.
2. Certificates of Insurance. Construction Manager shall furnish to the City Certificates of Insurance
or endorsements evidencing the insurance coverage specified herein within fifteen (15) days after
notification of award of the Agreement, and shall also furnish to the City a copy of each insurance policy
required by this Agreement.The required Certificates of Insurance shall name the types of policies provided,
refer specifically to this Agreement, and state that such insurance is as required by this Agreement.The
Certificates of Insurance shall be in form acceptable to, and subject to, approval by City. The failure to
provide the Certificates of Insurance within fifteen (15) days shall be the basis for the rescission of the
awarding Agreement. The official title of the certificate holder is City of Miami Beach, Florida.This official
title shall be used in all insurance documentation.
3. Right to revise or reject. City's Risk Management Division reserves the right,but not the obligation,
to review and revise any insurance requirements at the time of insurance contract renewal and/or any
amendments, not limited to deductibles, limits, coverages and endorsements based on insurance market
conditions affecting the availability or affordability of coverage;or changes in the scope of work/specifications
affecting the scope and applicability of coverage.
4. Additional Insured. City shall be expressly included as an Additional Insured on all policies, as
applicable, and with an endorsement that is acceptable to the City. Additional insured certificates for the
City shall read"City of Miami Beach, Florida", 1700 Convention Center Drive, Miami Beach, FL, 33139,Attn:
Risk Management, 3rd Floor.
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5. Notice of Cancellation and/or Restriction. The policy(ies) must be endorsed to provide City with
at least thirty(30)days'notice of cancellation or non-renewal and/or restriction. A copy of the endorsement(s)
shall be provided with the Certificates of Insurance.
6. Duty of Care. Construction Manager's furnishing insurance coverage shall in no way relieve or limit,
or be construed to limit or relieve or limit, Construction Manager or any of its Subcontractors of any
responsibility, liability, or obligation imposed by the Contract Documents, or by Applicable Laws, including,
without limitation, any indemnification obligations which Construction Manager or any of its Consultants,
Design Sub-consultants and Subcontractors have to City thereunder.
7. Construction Manager's Failure to Procure. Construction Manager's failure to procure or maintain
the insurance required by this Appendix E during the entire term of the Work shall constitute a material breach
and automatic Default of the Agreement. In the event of such a breach, the City may exercise all available
rights and remedies hereunder, including the right to immediately suspend or terminate the Agreement
without any further notice to or opportunity to use for Construction Manager or, at its discretion, procure or
renew such insurance to protect the City's interests and pay any and all premiums in connection therewith,
and withhold or recover all monies so paid by the City from the Construction Manager.
8. Waiver of Subrogation. Where permitted by law, Construction Manager hereby waives all rights of
recovery by subrogation or otherwise(including,without limitation,claims related to deductible or self-insured
retention clauses, inadequacy of limits of any insurance policy, insolvency of any insurer, limitations or
exclusions of coverage), against City, and its respective officers, agents, or employees. Certificates of
insurance shall evidence the waiver of subrogation in favor of the City, and that coverage shall be primary
and noncontributory, and that each evidenced policy includes a Cross Liability or Severability of Interests
provision,with no requirement of premium payment by the City.
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Draft Contract No.23-461-01
APPENDIX F
DIRECT PURCHASE PROGRAM
1. The City is generally exempt from taxation and may elect to implement a direct purchase
program whereby it may purchase materials and equipment included in any bid for a portion of the Work
directly from the supplier of such materials or equipment in order to achieve sales tax savings.
2. Any equipment, materials or supplies directly purchased by the City that are included in the
Construction Manager's contract shall be referred to as Owner-Purchased Materials and the responsibilities
of both City and Construction Manager relating to such Owner-Purchased Materials shall be governed by the
terms and conditions of these procedures.
3. Material suppliers shall be selected by the Construction Manager. The Construction
Manager included the price for all construction materials plus applicable taxes in the GMP. City purchasing
of construction materials, if selected, will be administered on a deductive Change Order basis. The Cost of
the Work and Guaranteed Maximum Price amount shall be reduced by the net, undiscounted, amount of the
City's purchase order, plus all sales taxes that would have applied.
4. Construction Manager (including its Subcontractors) shall provide City with a list of all
intended suppliers,vendors,and materialmen for consideration as Owner-Purchased Materials.This list shall
be submitted at the same time as the preliminary schedule of values and the Project/ bar chart schedule
showing the critical path of scheduled work activities. Construction Manager shall submit a description of the
materials to be supplied, estimated quantities and unit prices.
5. Upon request from City, Construction Manager shall prepare a standard Purchase Order
Requisition Form in a form acceptable to the City, to specifically identify the materials which City has, at its
sole option, elected to purchase directly.The Purchase Order Requisition Form shall include:
a) The name,address,telephone number and contact person for the material supplier;
b) Manufacturer or brand, model or specification number of the item;
c) Quantity needed as estimated by Construction Manager or subcontractor;
d) The price quoted by the supplier for the materials identified therein;
e) Any sales tax associated with such quote; and
f) Delivery dates as established by Subcontractor.
6. City to utilize its standard purchase order terms and conditions for Owner-Purchased
Materials. Construction Manager must obtain approval of the City for any proposed deviations from the
standard terms and conditions i.e. payment terms, warranties, retainage, etc. Such Purchase Order
Requisition Form is to be submitted to City no less than thirty(30)days prior to the date required for ordering
such Owner-Purchased Materials, in order to provide sufficient time for City review and approval and to
assure that such Owner-Purchased Materials may be directly purchased by City and delivered to the Project
Site so as to avoid any delay to the Project.
7. After receipt of the Purchase Order Requisition Form,City shall prepare its Purchase Orders
for equipment, materials or supplies. Pursuant to the Purchase Order, the vendor will provide the required
quantities of material at the price established in the vendor's quote to the Construction Manager, less any
sales tax associated with such price. Promptly upon receipt of each Purchase Order, Construction Manager
shall verify the terms and conditions of the Purchase Order prior to its issuance to supplier and in a manner
to assure proper and timely delivery of items. The Project Coordinator, or his or her designee, shall be the
approving authority for the City on Purchase Orders in conjunction with Owner-Purchased materials. The
Purchase Order shall require that the supplier provide the required shipping and handling insurance. The
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Purchase Order shall also require the delivery of the Owner-Purchased Materials on the delivery date(s)
provided by the Construction Manager in the Purchase order Requisition Form and shall indicate F.O.B.
Jobsite.The City's Purchase Orders shall contain, or be accompanied by, the City's exemption certificate, a
Certificate of Entitlement in accordance with applicable law, and must include the City's name, address, and
exemption number with issue and expiration date shown.
8. In conjunction with the execution of the Purchase Orders by the supplier, the Construction
Manager shall execute and deliver to City one or more deductive Change Orders, referencing the full value
of all Owner-Purchased Materials plus all sales tax savings associated with such materials in the bid to
Construction Manager or its Subcontractors.
9. All Shop Drawings and submittals shall be made by the Construction Manager in accordance
with the Contract Documents.
10. Construction Manager shall be fully responsible for all matters relating to the receipt of
materials furnished by City in accordance with these procedures, including verifying correct quantities,
verifying documentation or orders in a timely manner, coordinating purchases, providing and obtaining all
warranties and guarantees required by the Contract Documents, inspection and acceptance of the goods at
the time of delivery, and loss or damage to equipment and materials following acceptance of items by the
City due to the negligence of the Construction Manager or its Subcontractors. The Construction Manager
shall coordinate delivery schedules, sequence of delivery, loading orientation, and other arrangements
normally required by the Construction Manager for the particular materials furnished. The Construction
Manager shall provide all services required for the unloading, handling and storage of materials through
installation. The Construction Manager agrees to indemnify and hold harmless the City from any and all
Claims of whatever nature resulting from nonpayment of goods to suppliers arising from the actions or
directions of Construction Manager.
11. As Owner-Purchased Materials are delivered to the Project Site,the Construction Manager
and Resident Project Representative shall visually inspect all shipments from the suppliers,and approve the
vendor's invoices for materials delivered. The Construction Manager shall assure that each delivery is
accompanied by documentation adequate to identify the Purchase Order against which the purchase is
made. This documentation may consist of a delivery ticket and an invoice from the supplier confirming the
Purchase Order,together with such additional information as the City or Construction Manager may require.
The Construction Manager will verify,in writing,the accuracy of the delivery ticket.The Construction Manager
will then forward the invoice to the City.The City will process and pay directly to the vendor in the manner as
all other City invoices are processed.The City shall have the right to assign City personnel to verify and audit
the accuracy of all Direct Purchase documents. The Construction Manager shall ensure that Owner-
Purchased Materials conform to the Contract Documents and determine prior to incorporation into the Work
if such materials are patently defective, and whether such materials are identical to the materials ordered
and match the description on the bill of lading. If the Construction Manager discovers defects or non-
conformities in the Owner-Purchased Materials, upon such visual inspection,the Construction Manager shall
not utilize such non-conforming or defective materials in the Work and instead shall promptly notify the
Vendor of the defective or non-conforming condition in order to pursue repair or replacement of those
materials without any undue delay or interruption to the Project.Additionally,the Construction Manager shall
notify the City of such occurrence. If the Construction Manager fails to perform such inspection,and otherwise
incorporates Owner-Purchased Materials, the condition of which it either knew about or should have known
about by performance of an inspection,Construction Manager shall promptly take action to remedy the defect
or non-conformity so as not to delay the Work.
12. The Construction Manager shall maintain records of all Owner-Purchased Materials it
incorporates into the Work from the stock of Owner-Purchased Materials in its possession.The Construction
Manager shall account monthly to the City for any Owner-Purchased Materials delivered into the Construction
Manager's possession, including portions of all such materials which have been incorporated into the Work.
13. The Construction Manager shall be responsible for obtaining and managing all warranties
and guarantees for all materials and products as required by the Contract Documents. All repairs,
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maintenance or damage repair calls shall be forwarded to the Construction Manager for resolution with the
appropriate supplier or Vendor.
14. Notwithstanding the transfer of Owner-Purchased Materials by the City to the Construction
Manager's possession,the City shall retain title to any and all Owner Purchased Materials.
15. The transfer of the possession of Owner-Purchased Materials from the City to the
Construction Manager shall constitute a bailment for mutual benefit of the City and the Construction Manager.
The City shall be considered the bailor and the Construction Manager the bailee of the Owner-Purchased
Materials. Owner-Purchased Materials shall be considered returned to the City for purposes of its bailment
at such time as they are incorporated into the Project or consumed in the process of completing the Project.
Bailee shall have the duty to safeguard, store and protect all Owner-Purchased Materials.
16. The City shall purchase and maintain insurance pursuant to the requirements set forth in the
Contract Documents which shall be sufficient to protect against any loss or damage to Owner-Purchased
equipment,materials or supplies.Such insurance shall cover the full value of any Owner-Purchased Materials
not yet incorporated into the Project from the time the City first takes title.
17. The City shall in no way be liable for interruption or delay in the Project, for any defects or
any other problems with the Project,or for any extra cost resulting from delay in the delivery of, or defects in,
Owner-Purchased Materials.
18. On a monthly basis, Construction Manager shall be required to review invoices submitted by
all suppliers of Owner-Purchased Materials delivered to the Project Site during that month and either concur
or object to the City's issuance of payment to the suppliers, based upon Construction Manager's records of
materials delivered to the Project Site and any defects in such materials.
19. In order to arrange for the prompt payment to the supplier, the Construction Manager shall
provide to the City a list indicating the acceptance of the goods or materials in accordance with the
established monthly Payment Request Schedule. The list shall include a copy of the applicable Purchase
Orders, invoices, and delivery receipts of data provided. Checks will be released, delivered and remitted
directly to the suppliers.The Construction Manager agrees to assist the City to immediately obtain partial or
final release of lien waivers as appropriate.
20. At the end of the Project, any salvage materials shall be the property of the City and stored
or removed from the Project Site by the Construction Manager and/or its Subcontractors at the City's
discretion.
Subject to final approval by the Project Coordinator, City anticipates that it will directly purchase the
following items pursuant to this Appendix F: [TBD]
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APPENDIX G
QUALITY CONTROL/QUALITY ASSURANCE
The Construction Manager shall submit, subject to the approval of the City, a comprehensive Quality
Control/Quality Assurance Plan as provided in the Contract Documents that includes the components required
herein and in other provisions of the Contract Documents.The City shall monitor and review the performance of
the Quality Control Plan by the Construction Manager,including observation of inspections and testing activities,
as provided in the Contract Documents. All Submittals required pursuant to the Construction Manager's Quality
Control Plan, or in other provisions of the Contract Documents, shall be delivered to the City, unless otherwise
expressly provided in the Contract Agreement.
The City shall have the right to reject Work which does not conform to the Contract Documents. If the City
determines that a defect or nonperformance exists, the Construction Manager shall cause the defective or
nonconforming condition to be corrected or replaced with a conforming installation, product or result, subject to
the approved Quality Control Plan, provisions of the Contract Documents and approval of City. City's failure to
identify and/or reject any defective or non-conforming Work shall not operate to waive City's right to subsequently
demand that Construction Manager remedy any defective or non-conforming Work in accordance with the
Contract Documents.
1. Quality Control(QC)Plan. The Construction Manager shall submit for the City's approval a Quality Control
Program Plan for the execution of the Work and the Construction Manager shall organize and conduct all
activities to be performed under the Contract Documents with strict attention and adherence to the approved
Quality Control Plan. The scope of the Quality Program Plan shall include the quality assurance and quality
control elements necessary for the procurement, manufacturing, installation, construction, start-up,
integrated Systems testing, and execution of the Work by the Construction Manager and Subcontractors,
and shall comply with the requirements of the Contract Documents. The Quality Control Plan shall include
the preparation of documented quality control procedures and instructions in accordance with the
requirements defined in this Section, as well as those specified in the Contract Documents, specifically the
Construction Documents.
The Construction Manager shall be responsible for controlling the quality of all Work, including the Work of
Subcontractors. The Construction Manager shall include in its Subcontracts those provisions which it
considers necessary to assure that the quality of subcontracted Work will be consistent with that required of
the Construction Manager.
The City may audit and inspect the Construction Manager's and Subcontractors'Quality Control Programs
at any time. Such audits may be conducted on a random or routine basis and may include an audit of the
Construction Manager's inspection records and data. Additionally, the City shall have the right to witness
any quality control tests or inspections and shall have access to all test data, including test procedures,test
specifications and test results. Further, the City shall have the right to conduct independent tests or
inspections (at the City's expense) of any material or equipment to be used in the Work. Such audits,
inspections or tests conducted shall be performed to verify that all Work is performed in compliance with
applicable provisions of the Contract Documents, but shall not relieve the Construction Manager of any of
its obligations under the Contract.
2. Quality Assurance Management. The Construction Manager shall prepare a management structure and
organizational chart which shall reflect a commitment for an effective quality assurance policy, and which
shall define and document its Quality Program Plan approach and objectives for,and commitment to,quality.
The Construction Manager shall ensure that the Quality Program Plan is understood, implemented, and
maintained at all levels of the Construction Manager's organization. Management personnel responsible for
performing quality control and assurance functions shall report directly to the Construction Manager's Project
Executive and Contract Administrator.
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Draft Contract No.23-461-01
a) Quality Assurance Personnel. In its Quality Program Plan,the Construction Manager shall identify the
qualifications and experience of personnel responsible for implementation of quality assurance elements
of the Quality Program Plan,and a description of the duties of the assigned personnel by job description.
Personnel responsible for quality assurance shall be qualified by virtue of skill,education and experience
on projects of similar type and complexity. The City reserves the right to approve the Construction
Manager's QA/QC manager.
b) Quality Assurance Verifications. The Construction Manager shall identify internal verification
requirements, provide adequate resources, and assign trained personnel for verification activities.
Verification activities shall be performed by personnel independent of those having the responsibility for
the Work being performed. Verification activities shall include verifying the adequacy and enforcement
of quality control procedures as they relate to inspections,tests,monitoring of the design, procurement,
construction, installation and start-up of the equipment, materials,Systems and completed Work.
c) Procurement Quality Assurance. The Construction Manager shall establish and employ procedures for
the selection and control of Subcontractors, including suppliers, which will assure the use of qualified
procurement sources and which will provide methods of monitoring the quality levels of the products and
services to ensure that they conform to Contract requirements. The Construction Manager shall select
Subcontractors, in part,on the basis of their ability to meet the Quality Control Plan requirements.
3. NOT USED.
4. Quality Control of Construction,Manufacturing and Installation
The Construction Manager and each Subcontractor shall be responsible for the establishment and
implementation of quality control procedures and instructions for the inspection and testing of manufactured and
installed materials,equipment,and assemblies.
a) Inspection and Testing. The Construction Manager shall conduct a complete review of the Contract
requirements and shall identify all inspections and tests required for procurement, and the installation
and construction of the project Facilities. The Construction Manager shall establish and employ written
receiving inspection procedures to ensure that materials,assemblies,and equipment or other elements
of the Work are not incorporated into the Work until each item has been inspected or otherwise verified
to conform to applicable requirements of the Contract Documents. Verification shall be in accordance
with the Quality Program Plan and other documented procedures of the Construction Manager.
The Quality Control Plan and written procedures for first article inspection, final inspection and testing
shall provide procedures to ensure that upon completion of all required inspections and tests(including
those to be conducted either on receipt of material or equipment or while the material, equipment or
other elements of the Work are in process) the results are satisfactory and in compliance with all
applicable requirements,and that the results are documented in test reports. No material,equipment or
other element of the Work shall be accepted until all the activities specified in the Quality Control Plan
and other documented procedures have been satisfactorily completed and the inspection and testing
results and documentation are available and approved by the Construction Manager. The Construction
Manager shall establish and maintain records which document the fact that each item of material,
equipment or other element of the Work has satisfied all applicable inspection and test criteria and other
requirements.
b) Field Samples and Mock-ups. Field samples and mock-ups shall be prepared at the Project Site or
other location by the Construction Manager as specified in the Contract Documents. Affected finish
Work shall not be started until the Construction Manager's Authorized Representative has accepted as
satisfactory field samples or mock-ups in writing. The City shall be notified in advance and afforded an
opportunity to review field samples and mock-ups before affected finish Work is started.
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Draft Contract No.23-461-01
c) Construction Manager's Control Inspection and Testing. The Construction Manager shall be responsible
for control inspection and testing of all materials,equipment and other elements of the Work prior to their
delivery from a manufacturer, or during construction (e.g., electrical equipment load tests, soil
compaction tests,concrete tests,piping system leakage tests),to ensure compliance with the Contract
Documents. Such inspection and testing shall be performed by a qualified independent testing and
inspection firm, to be engaged by the Construction Manager at its expense, and approved by the City.
The Construction Manager shall submit to the City the name, address,and qualifications,together with
the scope of services, of the proposed testing and inspection firm at least sixty (60) Days prior to
scheduled commencement of any Work involving such inspection or testing. Should the Construction
Manager desire to use more than one firm for control inspection and testing, the required information
shall be submitted for each such proposed firm.
All laboratory testing shall be performed by an independent, qualified testing laboratory, employing
equipment and qualified testing personnel approved by the City.
d) Control of Nonconforming Material, Equipment, or Elements of Work. The Construction Manager shall
establish and maintain a nonconformance system and procedures for uniform reporting,controlling and
disposition of Nonconformance Items (NCI's). Procedures shall be established to prevent the
inadvertent use or installation of nonconforming material, equipment or other elements of the Work.
Control procedures shall provide for identification, evaluation, segregation and, when practical,
disposition of nonconforming material, equipment or other elements of the Work and for notification to
the Construction Manager,the City and all personnel involved in the affected Work. The responsibility
for review and authority for the disposition of nonconforming material,equipment or other Work shall be
as established by the Construction Manager in the approved Quality Control Plan.
e) Corrective Action. The Construction Manager shall establish and maintain written procedures for:
i. Investigating the cause of nonconforming material, equipment or other elements of the
Work and the corrective action needed to prevent recurrence;
ii. Analyzing all processes,work operations,concessions,quality records,service reports,
and complaints of the City to detect and eliminate potential causes of nonconforming
material,equipment, or other elements of the Work;
iii. Initiating preventive actions to deal with problems at a level corresponding to risks
encountered;
iv. Applying controls to ensure that effective corrective actions are taken;and
v. Implementing and recording changes in procedures resulting from corrective action.
f) Handling,Storage, Packaging and Delivery. The Construction Manager shall establish and maintain written
procedures for handling,storage, packaging and delivery of materials,equipment and other elements of the
Work, including coordination with those materials included in the City's Direct Purchase Program. The
Construction Manager shall provide methods and means of handling and provide secure storage areas or
stock rooms that prevent damage or deterioration of materials, equipment and other elements of the Work
pending delivery, use, or incorporation into the Work. Appropriate methods for authorizing receipt and the
release to and from such areas shall be stipulated. The condition of materials,equipment and other elements
of the Work in storage shall be assessed at regular and appropriate intervals.
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Draft Contract No.23-461-01
g) Quality Record. The Construction Manager and Subcontractors shall establish and maintain procedures
for identification, collection, indexing, storage, maintenance and disposition of records concerning the
quality of the Work. Such records shall be maintained at the Project Site and at manufacturing facilities
and shall document achievement of the requirements of this Section, and the effective operation of the
Quality Program Plan. All quality records shall be legible and identifiable as to the material, equipment
or other element of the Work involved. When methods of inspection and testing are changed, the
Construction Manager shall obtain review and acceptance of written procedures from the Owner before
implementation of any.change.
Quality records shall be stored and maintained in such a manner that they are readily retrievable in
facilities that provide a suitable environment to minimize deterioration or damage to prevent loss.
Retention times of quality records shall be established and recorded. Quality records should be made
available,at all times,for evaluation and review by the City.
5. Conformity with Contract Requirements
a) Verification. All Work shall be performed and furnished by the Construction Manager pursuant to,and
in full conformity with, the Contract Documents. Throughout the duration of the Contract, the
Construction Manager will be required to so establish such conformance to the City. In addition,the City
may inspect and audit the Work,at all stages of its manufacture,fabrication,factory testing,construction,
installation, on-site testing, completion and acceptance procedures, at any time. Review, verification
and acceptance of the Work will be accomplished through the design review and construction inspection
and testing process. All design documents shall be checked and verified by the Construction Manager
for compliance with all applicable Contract Documents and with Applicable Laws.
b) No Implied Duties. No right to act granted to the City under this Section,nor any decision made by the
City in good faith either to exercise or not to exercise such right, shall give rise to any implied duty or
responsibility of the City, respectively, to the Construction Manager, any Subcontractor, any of their
agents or employees, or any other person performing any of the Work, or relieve the Construction
Manager from its sole responsibility for performing its obligations hereunder. Review of Submittals and
any action taken by the City with respect to Submittals shall not relieve the Construction Manager from
its sole responsibility for accuracy, completeness, coordination, errors or omissions in the Construction
Manager Drawings, the Construction Manager Contract Documents and Submittals and associated
calculations,or for deviations from the Contract Documents or compatibility of the item with contiguous
or dependent items of the Work.
6. No Interference. The City shall not supervise the Construction Manager's forces or Subcontractors or
perform other duties for the Construction Manager, nor interfere with the management of the Work by the
Construction Manager. Any advice, instruction, direction or other order which the City may give the
Construction Manager shall not be construed as releasing the Construction Manager from fulfilling all of the
terms of the Agreement or other Contract Documents.
7. Refection and Removal of Nonconforminq or Defective Work. As more fully delineated in Section
2.7.17.20, all Work which does not conform to the Construction Manager's warranties or to any other
requirements of the Contract Documents will be considered unacceptable, unless otherwise determined to
be acceptable as provided in the last paragraph of this Section. Any defective condition,whether the result
of poor workmanship,use of materials containing defects,damage through carelessness or any other cause,
found by, or disclosed to,the City shall be removed and replaced by Work and materials which conform to
the Contract Documents or shall be remedied to the satisfaction of the City. Upon failure on the part of the
Construction Manager to comply promptly with any order of the City to remedy, remove or replace Work
which is nonconforming or contains Defects,the Owner may cause such nonconforming Work or Defect to
be remedied or removed and replaced by separate Contractors employed by the Owner at the Construction
Manager's expense. In such event, the costs of such removal, remediation and replacement shall be
deducted from any monies due or to become due the Construction Manager under the Agreement.
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Draft Contract No.23-461-01
In the event the City finds, as a result of monitoring of the Construction Manager's quality assurance and
quality control activities,that any materials,equipment or the finished product in which materials,equipment
or finished product are used are not in conformity with the requirements of the Contract Documents,but that
acceptable Work has,nonetheless, been produced,the Owner shall then determine whether the Work shall
nevertheless be accepted. If the Owner determines that the Work should be accepted, the Owner will
document the basis of acceptance by a Change Order for Diminished Value, which will provide for an
appropriate adjustment in the Contract Sum. Any such acceptance shall not, however, ever result in an
increase of the Contract Sum or the Contract Price.
8. Construction Managers Continuing Obligation. Neither the issuance of the Certificate of Final
Completion, nor the making of Final Progress Payment by the Owner will constitute acceptance of any
portion of the Work which is not in compliance with the requirements of the Contract Documents or constitute
a release or diminution of the Construction Manager's continuing obligations with respect to the Work
pursuant to applicable provisions of the Agreement or other Contract Documents.
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Draft Contract No.23-461-01
APPENDIX H
FORMS AND EXHIBITS
The attached forms will be used throughout the Project,to be due at different times.
TABLE OF CONTENTS FOR FORMS
DESCRIPTION PAGE
Payment Bond&Performance Bond 122
Contractor's Affidavit/Certificate of Contract Completion 126
Contractor's Certification of No Asbestos-Containing Materials 127
Construction Contract Change Order 128
GMP Amendment 129
RFQ and Proposal Submission 133
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Draft Contract No.23-461-01
FORM OF PERFORMANCE BOND
By this Bond,We as Principal,whose principal
business address is , as the
Construction Manager under the agreement dated , 20_, between Principal and the
City of Miami Beach, Florida (hereinafter referred to as "City") for the construction of the
(which agreement and the other Contract Documents referenced therein are
hereinafter referred to as"Contract"),the terms of which Contract are incorporated by reference in its entirety
into this Bond, and _ , a corporation, whose principal business address is
as Surety, are bound to City, as obligee, in the sum of
U.S. dollars($ ), for payment of which we bind ourselves,
our heirs, personal representatives, successors, and assigns,jointly and severally.
THE CONDITION OF THIS BOND is that if Principal:
1. Performs all the work under the Contract, including but not limited to guarantees,warranties and the
curing of latent defects, said Contract being made a part of this Bond by reference, and at the times
and in the manner prescribed in the Contract; and
2. Pays City all losses,damages,expenses,costs and attorney's fees,including appellate proceedings,
that City sustains as a result of default by Principal under the Contract, including but not limited to a
failure to honor all guarantees and warranties or to cure latent defects in the Work or materials within
the time period provided in Section 95.11(2)(b), Florida Statutes; and
3. Performs the guarantee of all work and materials furnished under the Contract for the time specified
in the Contract, including all warranties and curing all latent defects within the time period provided
in Section 95.11(2)(b), Florida Statutes;
Then this bond is void; otherwise it remains in full force.
Surety specifically assumes liability for any and all damages, including but not limited to liquidated damages
set forth in the Contract,arising from Principal's default of the Contract,as well as all latent defects uncovered
in the work of the Principal after final acceptance of the work by the City.
If no specific periods of warranty are stated in the Contract for any particular item or work, material or
equipment,the warranty shall be deemed to be a period of one(1)year from the date of final acceptance by
the City; provided, however, that this limitation does not apply to suits seeking damages for latent defects in
materials or workmanship, such actions being subject to the limitations found in Section 95.11(2)(b), Florida
Statutes.
Whenever the Principal shall be, and is declared by City to be, in default under the Contract, City having
performed City's obligations thereunder, the Surety may promptly remedy the default, or shall promptly:
(1)Complete the Contract in accordance with its terms and conditions; or
(2) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon
determination by Surety of the lowest responsible bidder, or, if City elects, upon determination by City and
Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and City, and
make available as work progresses(even though there should be a default or a succession of defaults under
the Contract or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of
completion less the balance of the Contract Price; but not exceeding, including other costs and damages for
which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term
"balance of the Contract Price" as used in this paragraph, shall mean the total amount payable by City to
Principal under the Contract and any amendments thereto, less the amount properly paid by City to Principal.
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Draft Contract No.23-461-01
The Surety hereby waives notice of and agrees that any changes in or under the Contract and compliance
or noncompliance with any formalities connected with the Contract or the changes does not affect Surety's
obligation under this Bond.
No right of action shall accrue on this bond to or for the use of any person or corporation other than City
named herein. Any action under this Bond must be instituted in accordance with the notice and time
limitations provisions prescribed in Section 255.05(2), Florida Statutes.
Signed and sealed this day of ,20
WITNESSES:
(Name of Corporation)
Secretary By:
(Signature)
(CORPORATE SEAL)
(Print Name and Title)
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By:
Attorney-in-Fact
Address:
[attach copy of Agent's ID card (Street)
Issued by Fla. Ins. Commissioner]
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
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Draft Contract No.23-461-01
FORM OF PAYMENT BOND
By this Bond,We as Principal,whose principal
business address is , and whose telephone number is
,as the Construction Manager under the agreement dated ,20_, between
Principal and the City of Miami Beach, Florida (hereinafter referred to as "City") for the construction of the
(which agreement and the other Contract Documents referenced therein
are hereinafter referred to as "Contract"), the terms of which Contract are incorporated by reference in its
entirety into this Bond, and ,a corporation,whose principal business address
is as Surety, are bound to City, as obligee, in the sum of
U.S. dollars($ ),for payment of which we bind ourselves,
our heirs, personal representatives, successors, and assigns,jointly and severally.
THE CONDITION OF THIS BOND is that if the Principal:
1. Promptly makes payments to all claimants, as defined by Florida Statute 255.05(1), providing
Principal with labor, materials, or supplies, used directly or indirectly by Principal in the prosecution
of the work provided for in the Contract,and in the times and in the manner prescribed in the Contract;
and
2. Pays City all losses,damages,expenses, costs and attorney's fees including appellate proceedings,
that City sustains because of a failure by Principal to make any payments required under the
Contract;
Then this bond is void; otherwise it remains in full force.
A claimant shall have a right of action against the Principal and the Surety for the amount due it. Such action
shall not involve the City in any expense.
A claimant, except a laborer, who is not in privity with Principal and who has not received payment for its
labor, materials, or supplies shall, within forty-five (45) days after beginning to furnish labor, materials, or
supplies for the prosecution of the work, furnish to Principal a notice that he intends to look to the bond for
protection. A claimant who is not in privity with Principal and who has not received payment for its labor,
materials, or supplies shall,within ninety(90) days after performance of the labor or after complete delivery
of the materials or supplies, deliver to Principal and to the Surety, written notice of the performance of the
labor or delivery of the materials or supplies and of the nonpayment.
No action for the labor, materials,or supplies may be instituted against Principal or the Surety unless both of
the above-referenced notices have been given.
Any action under this Bond must be instituted in accordance with the notice and time limitations prescribed
in Section 255.05(2), Florida Statutes.
The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and
compliance or noncompliance with any formalities connected with the Contract or the changes does not affect
the Surety's obligation under this Bond.
[Signature page to follow]
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Draft Contract No.23-461-01
Signed and sealed this day of , 20
Principal
ATTEST:
(Name of Corporation)
By:
(Secretary) (Signature)
(Corporate Seal) (Print Name and Title)
day of , 20
Countersigned by Resident INSURANCE COMPANY:
Florida Agent of Surety
By:
Attorney-in-Fact
Address:
[attach copy of Agent's ID card (Street)
Issued by Fla. Ins. Commissioner]
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
125
CONTRACTOR'S AFFIDAVIT/CERTIFICATE OF FINAL COMPLETION
PROJECT NAME:
CONTRACTOR:
CONTRACT DATE: DATE OF FINAL COMPLETION:
CERTIFICATE OF ARCHITECT-ENGINEER:
I CERTIFY, the work under the above Contract has been satisfactorily completed on the date set forth in
accordance with the terms of the Contract;that the Contractor has submitted its sworn affidavit as evidence
that the Construction Manager has paid all labor, materials, and other charges against the Project in
accordance with the terms of the Contract Document.
Architect-Engineer Name:
By: Date:
CONTINUED ON NEXT PAGE
126
CONTRACTOR'S CERTIFICATION OF NO ASBESTOS-CONTAINING MATERIALS
Project Name:
Project Location:
1 CERTIFY THAT NO MATERIALS CONTAINING ASBESTOS WERE USED IN THE
CONSTRUCTION OF THIS PROJECT.
Contractor's Signature Date
Contractor's Name(Typed)
Street Address:
City, State&Zip:
Telephone ( ) FAX(
FEID Number
127
CHANGE ORDER FORM
Date: Click here to enter a date.
To: Construction Manager
Reason: Choose an item.
1. CHANGE IDENTIFICATION:The following changes are hereby made to the above-referenced Contract:
2. ADJUSTMENT TO CONTRACT AMOUNT: As consideration for the change(s)identified in Section 1,
the Contract is increased/(decreased)by:
DOLLARS $
Original Contract Amount: $
Net of Previous Executed Change Orders: $
Amended Contract Amount(prior to this Change Order): $
The Amount of this Change Order: $
Revised Contract Amount: $
IF NO ADJUSTMENT IS MADE, THE CONTRACT AMOUNT REMAINS UNCHANGED.
3. ADJUSTMENT TO TIME FOR PERFORMANCE: In connection with the change(s) noted in Section 1,
CONSTRUCTION MANAGER'S TIME FOR PERFORMANCE REMAINS UNCHANGED unless specifically noted herein:
Adjustment in Time: 0 Days
This Change Order is an amendment to the Agreement between the Construction Manager and City. The amount and time
change designated herein are the maximum agreed to by both the City and Construction Manager for this Change Order.
Construction Manager attests that the Contract adjustment provided herein is reasonable,and constitutes compensation in full
for all costs, claims, markup, and expenses,direct or indirect, attributable to this or any other prior Change Orders, including
but not limited to compensation in full for any delays, acceleration,or loss of efficiency encountered by Construction Manager
in the performance of the Work through the date of this Change Order, and for the performance of this and any prior Change
Orders by or before the date of Substantial Completion. In consideration of the compensation and time, if any, in this Change
Order, the Construction Manager hereby releases the City from all Claims, demands, or causes of action arising out of the
transactions, events and occurrences giving rise to this Change Order. This written Change Order is the entire agreement
between the City and Construction Manager with respect to this Change Order. No other agreements or modifications shall
apply to this contract amendment unless expressly provided herein.
EXCEPT AS EXPRESSLY MODIFIED HEREIN, THE TERMS AND CONDITIONS OF THE CONTRACT DOCUMENTS
REMAIN UNCHANGED.
Construction Manager:
By: By:
128
GMP AMENDMENT
AMENDMENT NO._TO AGREEMENT BETWEEN
CITY OF MIAMI BEACH AND CONSTRUCTION MANAGER FOR THE
PROJECT
Pursuant to the Agreement dated _ , 201_ between the City and (name of firm)
(Construction Manager) for the Project ("Project"), the City and Construction Manager
hereby agree to amend and modify the Agreement by this GMP Amendment, dated and effective as of
, 201_, to establish a Guaranteed Maximum Price for the Project and time for completion
of the Construction Phase of the Project as set forth below:
ARTICLE 1
SCOPE OF WORK
Construction Manager shall be responsible for and shall perform all Work delineated in and reasonably
inferable from the Contract Documents, including Attachments I through _ below, which are hereby
incorporated into and made a part of the Amendment by this reference:
Attachment No. Description Pages Date
1. List of Construction Documents _through_
2. Completion Schedule _through_
3. Schedule of Values _through_
4. List of Itemized General Conditions _through_
5. List of Subcontractors and Major Suppliers _through_
ARTICLE 2
GUARANTEED MAXIMUM PRICE
Construction Manager's Guaranteed Maximum Price for the Work contemplated in the Contract Documents
or reasonably inferable therefrom, including the Cost of the Project as defined in Section 8 of the
Agreement, the Construction Manager's Construction Overhead and Profit Fee and General Conditions
Fee as defined in Section 7 of the Agreement, and the Construction Manager's Contingency as defined in
Article 6 and set forth below; is dollars, ($ ) (the
"GMP"),which includes the following:
3.11 The Subcontract Costs for Work of Subcontractors and Suppliers selected pursuant to Article 4 of
the Agreement,for the entire Work contemplated in the Contract Documents or reasonably inferable
therefrom, will be based on actual Subcontractor invoices to the Construction Manager up to the
established amount of dollars ($ ), and said amount
stated in this Section 2.1 is included within the GMP.
129
2.2. The General Conditions Fee for all general conditions items and expenses as defined in Section 7.1.2
of-the Agreement, for the entire Work anticipated on this Project are hereby established as a lump
sum amount of dollars($ ), and said lump sum amount
stated in this Section 2.2 is included within the GMP. The items included as General Condition
expenses are listed in the List of Itemized General Conditions attached hereto and incorporated
herein as Attachment No. 5. Construction Manager acknowledges and agrees that the City shall
have no liability for any General Condition costs or expenses, either listed herein or specified in
Section 7.1.2 of the Agreement, beyond payment of the lump sum stated in this Section 2.2 and
Construction Manager agrees that it shall not be entitled to receive any additional compensation from
the City for the General Conditions beyond the lump sum amount unless expressly adjusted by a
Change Order in accordance with the Contract Documents.
2.3. The Construction Overhead and Profit Fee as defined in Section 7.1.3 of the Agreement,for the entire
Work anticipated on this Project, shall be_%of the Cost of the Project(as identified in Section 2.1
above) plus the Construction Manager's General Conditions Fees (as identified in Section 2.2
above), and is included in the GMP. The Construction Overhead and Profit Fee for Change Orders
shall be % of the net change in the GMP, associated with the Work that is the subject of the
Change Order„ except for Change Orders for an extension of the Contract Time due to Excusable
Delays,for which Construction Manager expressly acknowledges and agrees that it shall not receive
any Construction Overhead and Profit Fee and its sole and exclusive remedy is as provided for in the
Agreement. For Subcontractors and Suppliers,the overhead and profit markups or fees for Change
Orders shall not exceed 10% of the Cost of the Project associated with the Work that is the subject
of the Change Order.
2.4. A Construction Manager's Contingency, which shall only be used for the limited purposes specified
in Subsection 6.4.1 of the Agreement, is hereby established in the amount of
($ ), and said amount stated in this Section 2.4 is
included within the GMP. In no event shall the use of the Construction Manager's Contingency cause
for the GMP to be exceeded. The Construction Manager shall be solely responsible for all costs that
exceed the.GMP (as adjusted by Change Order or Construction Change Directive), without any
reimbursement from the City. Construction Manager shall use all diligent, good-faith efforts to
maximize cost savings and minimize use of the Construction Manager's Contingency. Draws made
against the Construction Manager's Contingency shall be made as specified in and to the limited
extent permitted by the Contract Documents.
2.5. The City retains exclusive use and control of the City's Contingency, and all expenditures must be
approved in writing by the City Manager or Project Coordinator by Change Order or Construction
Change Directive in accordance with the Contract Documents. Construction Manager shall not
proceed with any portion of the Work,which it intends to charge against the City Contingency without
first obtaining City's express written authorization to proceed. Any unused City Contingency
remaining at the completion of the Project shall accrue solely to the City, and shall not be used for
purposes of calculating any Project Cost Savings.
2.6. Applications for Payment of the Cost of the Project, General Conditions Fee, the Construction
Overhead and Profit Fee shall be made monthly based upon the percent completion of the Work for
each particular month and in accordance with the Contract Documents.The percent completion shall
be based on the updated and City-approved Construction Schedule as required by the Contract
Documents. The Construction Manager will be required to furnish documentation evidencing all
expenditures for which it seeks payment or reimbursement,and demonstrating that the costs incurred
were necessary for the Work, in accordance with the Contract Documents, including Article 11 of the
Agreement.
2.7. Construction Manager recognizes that this Contract includes work for trench excavation in excess of
five feet deep. Construction Manager acknowledges the requirements set forth in Section 553.63 of
the Florida Statutes entitled Trench Safety Act. Construction Manager certifies that the required
130
trench safety standards will be in effect during the period of construction of the Project and
Construction Manager agrees to comply with all such required trench safety standards. The amount
of dollars($ ) has been separately identified for the cost of
compliance with the required trench safety standards; said amount is included within the GMP.
2.8. The GMP may be adjusted pursuant to the terms herein for Change Order in accordance with the
Contract Documents.
ARTICLE 3
CONTRACT TIME
3.1. The Construction Phase Commencement Date for the Work is . The total
period of time beginning with the Construction Phase Commencement Date through the date required
for Substantial Completion of the Work is ( ) calendar days ("Contract
Time"). THE SUBSTANTIAL COMPLETION DATE IS THEREFORE ESTABLISHED AS
3.2. Pursuant to this Agreement, the parties have established the limitations of liability and liquidated
damages rates set forth in Section 5.1.3.1, which the parties acknowledge and agree apply to this
GMP Amendment and Construction Manager's responsibility to complete the Work within the
Contract Time and achieve the Milestones as stated therein.
ARTICLE 4
ADDITIONAL PROVISIONS
4.1. Pursuant to Subsection 2.5.2.3 of the Agreement, the Construction Manager hereby acknowledges
and agrees that it shall not be entitled to an adjustment in the Project Schedule or the Guaranteed
Maximum Price based on general or local conditions affecting the Project,the Project Site and/or the
performance of the Work, unless otherwise provided for in this Agreement, and the Construction
Manager waives and releases City from any and all Claims associated therewith.
4.2. Pursuant to Subsection 5.2.3 of the Agreement, except to the limited extent of reasonable
acceleration costs funded from the City's Contingency pursuant to Subsection 5.2.3.b.to regain lost
schedule progress directly resulting from Excusable Delays, the Construction Manager hereby
acknowledges and agrees that its pricing of the Work and the determination of the Guaranteed
Maximum Price is expressly based upon the Construction Manager's assuming the cost risks of
taking all steps that may be necessary, including implementation of a Recovery Schedule,
acceleration of the Work, or extraordinary measures, in order to achieve a Milestone or Substantial
Completion. In no event shall Construction Manager be entitled to any other compensation or
recovery of any damages in connection with acceleration or constructive acceleration, including
consequential damages, lost efficiency, opportunity costs or similar remuneration.
4.3. Pursuant to Section 9.2 of the Agreement and based on the information reasonably identified or
inferable from the tests or studies conducted by the City and made available to Construction Manager,
Construction Manager acknowledges and agrees that it has satisfied itself as to what the Construction
Manager anticipates will be the character, quality and quantity of soil, surface and subsurface
materials or obstacles that may be encountered by the Construction Manager at the Project Site,and
the condition of the existing foundations and building structure,including the environmental conditions
identified in the Phase I and Phase II environmental reports provided by the City, and that the entire
cost risk of such matters,as well as any concealed, latent, known, unknown or other conditions,shall
be borne by the Construction Manager as part of the Guaranteed Maximum Price unless such
conditions could not have reasonably been identified upon reasonable investigation during the Pre-
Construction Phase by the Construction Manager. The Construction Manager expressly
acknowledges and agrees that it has had ample opportunity to investigate the Project Site, has had
access to the Project Site since the Effective Date of this Agreement, and agrees that its pricing of
131
the Work and the determination of the Guaranteed Maximum Price were expressly based upon the
Construction Manager's assuming the foregoing cost risks of Project Site conditions.
4.4. All defined terms herein shall have the same meaning ascribed to them in the Agreement or other
Contract Documents. Except as expressly modified herein, the terms and conditions of the
Agreement remain unchanged. In the event of a conflict between the terms of this Amendment and
those of the Agreement,City and Construction Manager agree that the terms of this GMP Amendment
shall prevail and control.
IN WITNESS WHEREOF, the Parties hereto have executed this GMP Amendment the day and year first
written above.
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By: By:
City Clerk Steven Meineij
Mayor
ATTEST: OHLA Building, Inc.
By:
Print Name:
Print Name:
132
RFQ&PROPOSAL SUBMISSION
133
Competitive Bid Reports -C2 B
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: January 31, 2024
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING THE PRECONSTRUCTION
SERVICES AGREEMENT WITH OHLA BUILDING, INC., PURSUANT TO
REQUEST FOR QUALIFICATIONS (RFQ) NO. 2023-461-ND, FOR
CONSTRUCTION MANAGER AT RISK (CMR) FOR THE MIAMI BEACH
POLICE DEPARTMENT (MBPD) HEADQUARTERS RENOVATION
PROJECT; AND AUTHORIZING THE CITY MANAGER AND CITY CLERK
TO EXECUTE THE AGREEMENT.
(ITEM TO BE SUBMITTED IN SUPPLEMENTAL)
SUPPORTING SURVEY DATA
Not Applicable
FINANCIAL INFORMATION
TBD
Applicable Area
South Beach
Is this a"Residents Right Does this item utilize G.O.
to Know" item,pursuant to Bond Funds?
City Code Section 2-14?
' No Yes
Legislative Tracking
Facilities and Fleet Management/Procurement
Page 59 of 2002