20150520 BM1915.20rs
MIAMIBEACH
Presentations & AwardslCity Commission Meeting
City Hall, Commission Chambers,3rd Floor, 1700 Gonvention Center Drive
May 20, 2015
Mayor Philip Levine
Vice-Mayor Jonah Wolfson
Commissioner Michael Grieco
Commissioner Joy Malakoff
Commissioner Micky Steinberg
Commissioner Edward L. Tobin
Commissioner Deede Weithorn
City Manager Jimmy L. Morales
City Attorney Raul J. Aguila
City Clerk Rafael E. Granado
Vrsff us at www.miamibeachfl.gov for agendas and video streaming of City Commission Meetings.
ATTENTION ALL LOBBYISTS
Chapter 2, Article Vll, Division 3 of the City Code of Miami Beach, entitled "Lobbyists," requires
the registration of all lobbyists with the City Clerk prior to engaging in any lobbying activity with
the City Commission, any City Board or Committee, or any personnel as defined in the subject
Code sections. Copies of the City Code sections on lobbyists laws are available in the Office of
the City Clerk. Questions regarding the provisions of the Code should be directed to the Office
of the City Attorney.
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on access for persons with disabilities, and/or any accommodation to review any document or participate in
any city-sponsored proceedings, call 305.604.2489 and select 1 for English or 2 for Spanrsh, then option 6;
ffY users may call via 711 (Florida Relay Service).
ln order to ensure adequate public consideration, ffnecessary, the Mayor and City Commission may move
any agenda item to an alternate meeting date. ln addition, the Mayor and City Commission may, at their
discretion, adjourn the Commission Meeting without reaching all agenda items.
AGENDA
1. Call to Order - 5:00 p.m.
2. Pledge of Allegiance
3. Requests for Additions, Withdrawals, and Deferrals
We are committed to providing excellent public service and safety to allwho live, work, and play in our vibrant, tropical, historic community.
1
Commission Agenda, May 20, 2015
Presentations and Awards
PA1 Certificates Of Recognition To Be Presented To Tamra Sheffman And Carol Scanlon, For Their
Excellence ln Participating ln The 2015 All Women's Air Race Classic, Representing The City Of
Miami Beach.
(Requested By Commissioner Joy Malakoff)
PA2 Certificate Of Recognition To Be Presented To Samantha Narson, Miami Beach Sr. High School
Student, Whose Team Won First Place At The Summit 2015, Varsity All Star's Cheerleading And
Dance Championship.
(Requested by Commissioner Micky Steinberg)
CONSENT AGENDA
C7 - Resolutions
C7A Execute MOU W/ LRPOA And Call Special Mail Ballot Election To Approve Lincoln Road BID1. A Resolution Approving And Authorizing The City Manager To Execute A Memorandum
Of Understanding Between The City Of Miami Beach And The Lincoln Road Property
Owners Association, lnc. ("LRPOA"), To Conduct A Special Mail Ballot Election To
Determine Whether A Majority Of The Affected Property Owners Approve The Creation Of
A Special Assessment District To Be Known As The Lincoln Road Business lmprovement
District, Which Election Shall Be Conducted By The Office Of The City Clerk And Office Of
The City Attorney, And To Provide That LRPOA Shall Cover The Costs Of Conducting
Such Election.
(Office of the City Attorney)
2. A Resolution Calling For A Special Mail Ballot Election To Be Held From June 29, 2015
To July 24, 2015, To Determine Whether A Majority Of The Affected Property Owners
Approve The Creation Of A Special Assessment District To Be Known As The Lincoln
Road Business lmprovement District (The "District"); Providing That The Office Of The
City Clerk And Office Of The City Attorney Shall Conduct Such Election; Providing For
The Form Of Ballot; Directing The City Clerk To Give Notice Of Such Election As
Required By The City Code And State Law; And Authorizing The City Manager To Vote ln
Favor Of The Creation Of The District On Behalf Of The City, Which, As The Owner/
Lessor Under The Ground Lease With The New World Symphony, ls An Affected Property
Owner.
(Office of the City Attorney)
(ltem to be Submifted in Supplementa!)
2
Commission Agenda, May 20,2015
G7 - Resolutions (Continued)
C7B A Resolution Approving And Authorizing The Mayor And City Manager To Provide City
Resources ln Support Of The City's Proposal To Host The U.S. Conference Of Mayors ln 2018;
And Further Authorizing The Mayor And City Manager To Fund Transportation And Youth And
Family Programs For Attendees; And Retroactively Approving The Mayor's Execution Of The
Proposal On Behalf Of The City.
(Sponsored by Mayor Philip Levine)
(Legislative Tracking: Tourism, Culture & Economic Development)
(ltem to be Submitted in Supplemental)
REGULAR AGENDA
R5 - Ordinances
RsA Amend Chapter 6 - Alcoholic Beverages And Chapter 82 - Public Property Sidewalk Caf6
Ordinance - Alcohol Regulations
1. Chapter 6 - Alcoholic Beverages
An Ordinance Amending Chapter 6, Entitled "Alcoholic Beverages," Of The Code Of The
City Of Miami Beach, Florida, Article l, Entitled "ln General," Section 6-3 Thereof, Entitled
"Hours Of Sale," To Terminate The Sale And Consumption Of Alcoholic Beverages At
Sidewalk Cafes At 2:00 a.m., Prohibit The Granting Of Variances From The Provisions Of
Section 6-3(3Xd), And Provide For Penalties; And Providing For Repealer, Severability,
Codification, And An Effective Date. 5:15 p.m. Second Reading Public Hearinq
(Sponsored by Mayor Philip Levine)
(Co-Sponsored by Commissioner Michael Grieco)
(Legislative Tracking: Office of the City Attorney)
(First Reading on May 6, 2015 - R5K1)
2. Chapter 82 - Public Property Sidewalk Caf6 Ordinance - Alcohol Regulations
An Ordinance Amending Chapter 82, Entitled "Public Property," Of The Code Of The City
Of Miami Beach, Florida, By Amending Article lV, Entitled "Uses ln Public Rights-Of-Way,"
Division 5, Entitled "Sidewalk Cafes," Subdivision ll, Entitled "Permit," By Creating Section
82-388 Thereof, Entitled "Hours Of Sale Of Alcoholic Beverages; Enforcement," To
Terminate The Sale And Consumption Of Alcoholic Beverages At Sidewalk Cafes At 2:00
a.m., And Provide That Section 82-388 Shall Be Enforced Pursuant To Section 6-3(8) Of
The City Code; And Providing For Repealer, Severability, Codification, And An Effective
Date. 5:15 p.m. Second Reedinq Public Hearinq
(Sponsored by Mayor Philip Levine)
(Co-Sponsored by Commissioner Michael Grieco)
(Legislative Tracking: Office of the City Attorney)
(First Reading on May 6, 2015 - R5K2)
3
Commission Agenda, May 20, 2015
R5 - Ordinances (Continued)
RsB Sidewalk Cafe - Ocean Drive - Umbrellas
An Ordinance Amending Chapter 82, Entitled "Public Property," Article lV, Entitled "Uses In Public
Rights-Of-Way," Division 5, Entitled "Sidewalk Cafes," Subdivision 2, Entitled "Permit," By
Creating Section 82-389, Entitled "Additional Minimum Standards, Criteria, And Conditions For
Operation Of Sidewalk Cafes On Ocean Drive Between Sth Street And 1Sth Street" To Provide
Minimum Standards For Umbrellas And Awnings, Require Regular Maintenance Of Umbrellas,
And Provide Prohibitions; And Providing For Repealer, Severability, Codification, And An
Effective Date. First Readinq
(Sponsored by Vice-Mayor Jonah Wolfson)
(Legislative Tracking: Office of the City Attorney)
RsC An Ordinance Amending The Firefighters' Relief And Pension Fund To Comply With Applicable
Provisions Of The lnternal Revenue Code And Regulations Thereunder; Amending The Related
Special Acts Of The City By Amending Article Vll, Entitled "Firefighters' Relief And Pension
Fund," By Amending Sections 36 Through 48; Providing For Severability; Repealing All
Ordinances ln Conflict Therewith; Providing For Codification; And Providing An Effective Date.
First Readinq
(Sponsored by Deede Weithorn)
(Legislative Tracking: Human Resources)
RsD An Ordinance Amending And Restating The Miami Beach Employees' Retirement Plan Created
By Ordinance No. 2006-3504, As Subsequently Amended, By Amending Sections 2,4,5, 11,
And 12 Of The Plan To Comply With Applicable Provisions Of The lnternal Revenue Code And
Regulations Thereunder, And Deleting Outdated Language; Providing For Severability; Repealing
All Ordinances ln Conflict Therewith; And Providing An Effective Date. First Readinq
(Sponsored by Deede Weithorn)
(Legislative Tracking: Human Resources)
R7 - Resolutions
R7A A Resolution Approving And Authorizing The Mayor And City Clerk To Execute A Construction
Manager At Risk Agreement With Clark Construction Group, LLC ("Clark"), Pursuant To Request
For Proposals (RFP) No. 2015-129-ME, For Construction Manager At Risk Services For The
Miami Beach Convention Center Renovation And Expansion Project ("Project"), With A Lump-
Sum Pre-Construction Phase Fee ln The Amount Of $2,594,073.
(Office of the City Manager)
R7B A Resolution Accepting The Recommendation Of The City Manager, Pursuant To Request For
Proposals (RFP) No. 2015-103-ME, For The Development Of A Convention Headquarter Hotel
Adjacent To The Miami Beach Convention Center ("Project"); Authorizing The Administration To
Negotiate A Development And Ground Lease Agreement With Portman Holdings, LLC, With Said
Agreement Subject To Prior Approval By The Mayor And City Commission Before Final
Execution Thereof.
(Office of the City Manager)
4
Commission Agenda, May 20,2015
R7 - Resolutions (Continued)
R7C A Resolution Approving And Authorizing The Mayor And City Clerk To Execute Amendment No. 7
To The Professional Services Agreement Between The City Of Miami Beach And Strategic
Advisory Group Dated October 19,2011 For Consulting Services Relative To The Expansion And
Enhancement Of The Miami Beach Convention Center ln An Amount Not To Exceed $358,825,
lncluding All Reimbursable Expenses.
(Office of the City Manager)
R9 - New Business and Commission Requests
RgA Board And Committee Appointments - City Commission Appointments.
(Office of the City Clerk)
RgB Discussion Regarding Rescheduling The June Commission Meeting From June 10,2015 To
June 8, 2015.
(Sponsored by Mayor Philip Levine)
RgC Discussion Regarding City Of Miami Beach Requiring Mandatory Nighttime Closure Of All Ocean
Drive Sidewalk Umbrellas For The Duration Of Memorial Day Weekend.
(Sponsored by Commissioner Michael Grieco)
End of Aqenda
5
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6
PA
PRESENTATIONS
AND
AWARDS
7
Presentations and Awards
PA1 Certificates Of Recognition To Be Presented To Tamra Sheffman And Carol Scanlon,
For Their Excellence ln Participating ln The 2015 All Women's Air Race Classic,
Representing The City Of Miami Beach.
(Requested By Commissioner Joy Malakoff)
PA2 Certificate Of Recognition To Be Presented To Samantha Narson, Miami Beach Sr. High
School Student, Whose Team Won First Place At The Summit 2015, Varsity All Star's
Cheerleading And Dance Championship.
(Requested by Commissioner Micky Steinberg)
Agenda ttem -PALL-oate S-2otf8
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9
c7
RESOLUTIONS
10
C7 - Resolutions
C7A Execute MOU W/ LRPOA And Call Special Mail Ballot Election To Approve Lincoln
Road BID
1.A Resolution Approving And Authorizing The City Manager To Execute A
Memorandum Of Understanding Between The City Of Miami Beach And The
Lincoln Road Property Owners Association, lnc. ("LRPOA"), To Conduct A
Special Mail Ballot Election To Determine Whether A Majority Of The Affected
Property Owners Approve The Creation Of A Special Assessment District To Be
Known As The Lincoln Road Business lmprovement District, Which Election
Shall Be Conducted By The Office Of The City Clerk And Office Of The City
Attorney, And To Provide That LRPOA Shall Cover The Costs Of Conducting
Such Election.
(Office of the City Attorney)
A Resolution Calling For A Special Mail Ballot Election To Be Held From June
29,2015 To July 24,2015, To Determine Whether A Majority Of The Affected
Property Owners Approve The Creation Of A Special Assessment District To Be
Known As The Lincoln Road Business lmprovement District (The "District");
Providing That The Office Of The City Clerk And Office Of The City Attorney
Shall Conduct Such Election; Providing For The Form Of Ballot; Directing The
City Clerk To Give Notice Of Such Election As Required By The City Code And
State Law; And Authorizing The City Manager To Vote ln Favor Of The Creation
Of The District On Behalf Of The City, Which, As The Owner/ Lessor Under The
Ground Lease With The New World Symphony, ls An Affected Property Owner.
(Office of the City Attorney)
(ltem to be Submitted in Supplemental)
2.
Agenda fiem c7A" D"t" s-Fl-711
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12
C7 - Resolutions
C7B A Resolution Approving And Authorizing The Mayor And City Manager To Provide City
Resources ln Support Of The City's Proposal To Host The U.S. Conference Of Mayors
ln 2018; And Further Authorizing The Mayor And City Manager To Fund Transportation
And Youth And Family Programs For Attendees; And Retroactively Approving The
Mayor's Execution Of The Proposal On Behalf Of The City.
(Sponsored by Mayor Philip Levine)
(Legislative Tracking: Tourism, Culture & Economic Development)
(ltem to be Submitted in Supplemental)
Agenda ttem C7 Boate 5-)0^lf13
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14
R5
ORDINANGES
15
19r5.20r5
OFFICE OF THE CITY ATTORNEY
RAUL J. AGUILA, CIry ATTORNEY COMMISSION MEMORANDUM
lo:
From:
Mayor Philip Levine
Members of the City Commission
Date: May 20,2015
3il'"1-*flX'$*a- Q" t-
Subject: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 6, ENTITLED "ALGOHOLIC
BEVERAGES," OF THE CODE OF THE GITY OF MIAM! BEACH, FLORIDA,
ARTICLE !, ENTITLED "IN GENERAL," SECTION 6.3 THEREOF, ENTITLED.,HOURS OF SALE," TO TERMINATE THE SALE AND CONSUMPTION OF
ALCOHOLIC BEVERAGES AT SIDEWALK CAFES AT 2:00 A.M., PROHIBIT THE
GRANTTNG OF VARIANCES FROM THE PROVTSTONS OF SECTTON 6-3(3Xd),
AND PROVIDE FOR PENALTIES; AND PROVIDING FOR REPEALER,
SEVERAB!LITY, CODIFICATION, AND AN EFFECTIVE DATE.
AN ORDINANGE OF THE MAYOR AND CITY GOMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82, ENTITLED "PUBLIC
PROPERTY," OF THE GODE OF THE CITY OF MIAMI BEACH, FLORIDA, BY
AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS.OF.WAY,"
DIVISION 5, ENTITLED "SIDEWALK CAFES," SUBDIVISION I!, ENTITLED..PERMIT,'' BY CREATING SECTION 82.388 THEREOF, ENTITLED "HOURS OF
SALE OF ALCOHOLIC BEVERAGES; ENFORCEMENT," TO TERMINATE THE
SALE AND CONSUMPTION OF ALCOHOLIG BEVERAGES AT SIDEWALK
CAFES AT 2:00 A.M., AND PROVIDE THAT SECTION 82-388 SHALL BE
ENFORCED PURSUANT TO SECTION 6-3(8) OF THE CITY CODE; AND
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
lntroduction
Pursuant to the request of Mayor Philip Levine, the attached Ordinances are submitted for
consideration by the City Commission. The first Ordinance amends Chapter 6 of the City Code,
entitled "Alcoholic Beverages," Article l, Section 6-3 thereof, entitled "Hours of Sale," to
terminate the sale and consumption of alcoholic beverages at sidewalk cafes at 2:00 a.m.,
prohibit the granting of variances from the provisions of Section 6-3(3)(d), and provide penalties
for violations of Section 6-3.
Asenda rtem t85Ao^tW16
Ordinances Terminating Sale of Alcoholic Beverages af Sidewalk Cafes at 2:00 a.m.
May 20, 201 5
Page 2
The second Ordinance amends Chapter 82, Article lV, Division 5, by creating Section 82-388
thereof, to reflect that alcoholic beverages shall not be offered for sale or consumption at
sidewalk cafes between the hours of 2:00 a.m. and 8:00 a.m.
The City's Authority to Regulate the Hours of Sale of Alcoholic Beverages
The State expressly grants the City the authority to establish its own regulations for the time for
sale of alcoholic or intoxicating beverages. Pursuant to Section 562.14, Florida Statutes, no
alcoholic beverages may be sold, consumed, served, or permitted to be served or consumed in
any place licensed to sell alcoholic beverages between the hours of midnight and 7:00 a.m.,
unless a municipality elects to establish its own regulations for the time for sale of alcoholic or
intoxicating beverages. Section 562.14, Florida Statutes, clearly indicates that the State shall
not be responsible for the enforcement of the hours of sale established by municipal ordinance.
ln Wednesdav Nioht, lnc. v. Citv of Fort Lauderdale, 272 So. 2d 502 (Fla. 1972), the Florida
Supreme Court upheld Section 562.14, Florida Statutes, holding that the statute, which relates
to state, municipal, and county regulations of the time for sale of alcoholic and intoxicating
beverages (1) does not contravene Federal and State constitutional guarantees of due process
and equal protection of the laws; (2) does not constitute an unlawful delegation of the powers of
the legislature; and (3) does not contravene any of the prohibitions against special laws or
general laws of local application appearing in Section 1 1 of Article lll of the Florida Constitution.
Florida Courts have held that a municipality exercising its inherent powers may reasonably
regulate the sale of intoxicating liquors and, in providing such reasonable regulations, may
prohibit sale of such liquors within certain zones. State ex rel. Flovd v. Noel, 169 So.5a9 (Fla.
1936). Furthermore, the Florida Attorney General has opined that a municipality may regulate
(1) the hours of sale, (2) zoning of locations in which alcoholic beverages may be sold, and (3)
the sanitary conditions under which alcoholic beverages may be dispensed or served to the
public. Op. Att'y Gen. F|a.,059-73 (1959).
Based upon the foregoing, it is clear that a City may regulate the hours of sale of alcoholic
beverages at sidewalk cafes, provided the regulations are not exercised in an arbitrary or
discriminatory manner, and are grounded upon some reasonable basis of classification with
reference to the subject matter to be regulated. Makos v. Prince, 64 So. 2d 670 (1953). ln
regulating the sale of alcoholic beverages, the City may create regulations that establish
separate zones and the Courts do not require that regulation of hours be uniform throughout the
jurisdictional limits. ld. The Florida Attorney General has opined that different hours may be
provided for in a municipal ordinance, provided there is reasonable relation to the health, safety,
and morals of the community. Op. Att'y Gen. Fla., p. 497 (1950).
To be clear, a business is neither entitled to "grandfathered" status nor entitled to enjoin
enforcement of an ordinance regulating the times during which liquor may be sold. Villaqe of
North Palm Beach v. S & H Foster's lnc., 80 So. 3d 433 (Fla. 4th DCA 2012); Other Place of
Miami. lnc. v. Citv of Hialeah Gardens. 353 So. 2d 861 (Fla. 3d DCA 1977). Further, the courts
have upheld municipal ordinances against claims for injunctive relief against municipal
ordinances regulating the time at which alcoholic beverages may be sold, because
municipalities have the statutory authority to set times for sale of alcoholic beverages. ld.;
Plavpen S., lnc. v. Citv of Oakland Park. 396 So.2d 830 (Fla.4th DCA 1981). Lastly, Florida
Courts have ruled that hours of operation are not a property right. S. Davtona Rests.. lnc. v. Citv
of S. Davtona. 186 So. 2d 78 (Fla. 1st DCA 1966).
17
Ordinances Terminating Sale of Alcoholic Beverages af Sidewalk Cafes at 2:00 a.m.
May 20, 2015
Page 3
Amendments to Chapter 6, "Alcoholic Beverages"
Section 6-3 of the City Code, entitled "Hours of Sale," of Chapter 6, entitled "Alcoholic
Beverages," regulates the hours during which alcoholic beverages may be sold in the City. The
first attached Ordinance amends Section 6-3 by creating Section 6-3(3Xd) to prohibit the sale or
consumption of alcoholic beverages at sidewalk cafes between the hours of 2:00 a.m. and 8:00
a.m. Section 6-3(3)(d) also prohibits the grant of any variances that would allow a sidewalk cafe
permittee to offer alcoholic beverages for sale or consumption between the hours of 2:00 a.m.
and 8:00 a.m.
The first Ordinance also amends Section 6-3 to provide enforcement and penalty provisions for
violations of any provision of Section 6-3. Violators of Section 6-3 would face a civil fine of
$1,000 for a first offense within a 12-month period, $5,000 for a second offense within a 12-
month period, and $10,000 for a third offense within a 12-month period. A fourth or subsequent
offense within a 12-month period would result in a revocation of the violator's certificate of use,
business tax receipt, or certificate of occupancy. Upon a fourth or subsequent offense, the
violator would be prohibited from applying for and obtaining a new sidewalk cafe permit for a
period of two permit years following the permit year in which the sidewalk cafe permittee
incurred the violations. Due to the public safety implications of the sale and consumption of
alcoholic beverages at sidewalk cafes after 2:00 a.m., Section 6-3(8)(b) requires that the sale of
alcoholic beverages in violation of Section 6-3 must be immediately terminated.
A citation under Section 6-3 may be appealed to the City's Special Master within 10 days of
service of the notice of violation. The failure of a named violator to appeal a violation shall
constitute a waiver of the violator's right to appeal, and shall be treated as an admission of the
violation. The special master shall not hear the merits of a notice of violation or consider the
timeliness of a request for appeal if a violator fails to request a hearing within ten days of the
service of the notice of violation. Additionally, the special master shall not be authorized to alter
the penalties prescribed in Section 6-3(8).
Amendments to the Sidewalk Gafe Ordinance
Chapter 82, at Article lV, Division 5 (the "Sidewalk Cafe Ordinance") sets forth regulations for
the City's sidewalk cafes. The second attached Ordinance amends the Sidewalk Cafe
Ordinance by creating Section 82-388, to reflect that alcoholic beverages shall not be offered for
sale or consumption at sidewalk cafes between the hours of 2:00 a.m. and 8.00 a.m. The sale
or consumption of alcoholic beverages in violation of Section 82-388 shall be enforced pursuant
to Section 6-3(8), as amended by the first attached Ordinance.
Fiscal lmpact
The Ordinances are not expected to have any fiscal impact on the City's resources.
18
CHAPTER 6 - ALCOHOLIC BEVERAGES
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CIry OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 6, ENTITLED "ALGOHOLIC
BEVERAGES," OF THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA,
ARTTCLE l, ENTITLED "lN GENERAL," SEGTION 6-3 THEREOF, ENTITLED..HOURS OF SALE," TO TERMINATE THE SALE AND CONSUMPTION OF
ALCOHOLIC BEVERAGES AT SIDEWALK CAFES AT 2:00 A.M., PROHIBIT
THE GRANTING OF VARIANCES FROM THE PROVISIONS OF SEGTION 6.
3(3Xd), AND PROVIDE FOR PENALTIES; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach ("City") regulates the location, size and hours of
operation, and patron age of uses, that permit the sale and consumption of alcoholic beverages
in Chapter 6 of the City Code, entitled "Alcoholic Beverages"; and
WHEREAS, it is in the best interest of the City, and it serves the health, safety, and
welfare of the City's residents and visitors, to require that sidewalk cafes, which are located on
public rights-of-way, terminate the sale and consumption of alcoholic beverages at 2:00 a.m.,
because the sale and consumption of alcoholic beverages at sidewalk cafes can disturb the
quiet enjoyment of the community, cause undesirable noise, result in physical disputes amongst
patrons and passers-by, and contribute to litter, noxious odors, and the general degradation of
the City; and
WHEREAS, the Miami Beach Police Department has requested that the City limit the
hours during which alcoholic beverages may be sold or consumed at sidewalk cafes, because
the sale and consumption of alcoholic beverages at sidewalk cafes implicates the safety of the
City's residents and visitors, as well as the police officers sworn to protect them; and
WHEREAS, this amendment to Chapter 6 of the City Code is intended to ensure that
Officer Eduard Alba of the Miami Beach Police Department is recognized for dedicating himself
to protecting this City and its residents and visitors, and to ensure that other officers are not
endangered; and
WHEREAS, the State expressly grants the City the authority to establish its own
regulations for the time for sale of alcoholic or intoxicating beverages; and
WHEREAS, pursuant to Section 562.14, Florida Statutes, no alcoholic beverages may
be sold, consumed, served, or permitted to be served or consumed in any place licensed to sell
alcoholic beverages between the hours of midnight and 7:00 a.m., unless a municipality elects
to establish its own regulations for the time for sale of alcoholic or intoxicating beverages; and
WHEREAS, Section 562.14, Florida Statutes, clearly indicates that the State shall not be
responsible for the enforcement of the hours of sale established by a municipal ordinance; and
WHEREAS, in Wednesday Niqht. lnc. v. Citv of Fort Lauderdale, 272 So. 2d 502 (Fla.
1972), the Florida Supreme Court upheld Section 562.14, Florida Statutes, holding that the
statute, which relates to state, municipal, and county regulations of the time for sale of alcoholic
19
and intoxicating beverages (1) does not contravene Federal and State constitutional guarantees
of due process and equal protection of the laws; (2) does not constitute an unlawful delegation
of the powers of the legislature; and (3) does not contravene any of the prohibitions against
special laws or general laws of local application appearing in Section 11 of Article lll of the
Florida Constitution; and
WHEREAS, Florida Courts have determined that it is within the police power and
authority for a municipality to change the hours of regulation of alcoholic beverages, because
municipalities have the statutory authority under Section 562.14, Florida Statutes, to restrict the
sale of alcohol; additionally, a municipal ordinance regulating the hours of sale of alcoholic
beverages may be applied to a property incorporated later into the municipality by annexation.
Villaqe of North Palm Beach v. S & H Foster's. lnc., 80 So. 3d 433 (Fla. 4th DCA 2012); and
WHEREAS, Florida Courts have held that a municipality exercising its inherent powers
may reasonably regulate the sale of intoxicating liquors and, in providing such reasonable
regulations, may prohibit sale of such liquors within certain zones. State ex rel. Flovd v. Noel,
169 So. 549 (Fla. 1936); and
WHEREAS, the Florida Attorney General has opined that a municipality may regulate (1)
the hours of sale, (2) zoning of locations in which alcoholic beverages may be sold, and (3) the
sanitary conditions under which alcoholic beverages may be dispensed or served to the public.
Op. Att'y Gen. Fla., 059-73 (1959); and
WHEREAS, the City may regulate the hours of sale of alcoholic beverages at sidewalk
cafes, provided the regulations are not exercised in an arbitrary or discriminatory manner, and
are grounded upon some reasonable basis of classification with reference to the subject matter
to be regulated. Makos v. Prince, 64 So. 2d 670 (1953); and
WHEREAS, such regulations may establish separate zones and do not require that
regulation of hours be uniform throughout the jurisdictional limits. ld.; and
WHEREAS, in fact, the Florida Attorney General has opined that different hours may be
provided for in a municipal ordinance, provided there is reasonable relation to the health, safety,
and morals of the community. Op. Att'y Gen. Fla., p.497 (1950); and
WHEREAS, a business is neither entitled to "grandfathered" status nor entitled to enjoin
enforcement of an ordinance regulating the times during which liquor may be sold. Villaqe of
North Palm Beach v. S & H Foster's lnc.,80 So.3d 433 (Fla.4th DCA2012); Other Place of
Miami, lnc. v. Citv of Hialeah Gardens. 353 So. 2d 861 (Fla. 3d DCA 1977); and
WHEREAS, injunctive relief is not available against the enforcement of a municipal
ordinance regulating the time at which alcoholic beverages may be sold, because municipalities
have the statutory authority to set times for sale of alcoholic beverages. ld.; Plavpen S.. lnc. v.
Citv of Oakland Park. 396 So. 2d 830 (Fla. 4th DCA 1981); and
WHEREAS, Florida Courts have ruled that hours of operation are not a property right. S.
Davtona Rests.. Inc. v. Citv of S. Davtona. 186 So. 2d78 (Fla. 1st DCA 1966); and
WHEREAS, the amendments set forth below are necessary to accomplish the objectives
identified above.
2
20
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. That Section 6-3, entitled "Hours of Sale," of Article l, of Chapter 6, of the City
Code of the City of Miami Beach is hereby amended as follows:
CHAPTER 6
ALCOHOLIC BEVERAGES
ARTICLE l. !n General
Sec. 6-3. Hours of Sale.
The hours of sale of alcoholic beverages shall be according to the following schedule,
except as may be otherwise provided pursuant to subsection (7) (8):
(1)Retail stores for packaqe sales onlv. either as permitted main or accessorv uses.iw
Vendors having a license from the state division of alcoholic beverages and
tobacco for the sale of liquor and other alcoholic beverages for consumption off
the premises shall only offer for sale alcoholic beverages within the hours of 8:00
a.m. and midnight on any day of the week.
Retail stores. includinq qroceru and convenience stores. and qasoline
seruice/fillinq stations, which primarilv offer for sale products other than alcoholic
beveraoes. Retail stores, including grocery and convenience stores, and gasoline
service/filling stations, either as permitted main or accessory uses, which
primarily offer for sale products other than alcoholic beverages may only make
sales of beer and wine in sealed containers for consumption off the premises
between the hours of 8:00 a.m. and midnight on any day of the week.
Alcoholic beveraqe establishments. All establishments licensed as alcoholic
beverageestablishments@,eitheraspermittedmainor
accessory uses, shall only offer alcoholic beveraqes for sale the or on-premises
consumption@withinthehoursof8:00a.m.and5:00a.m.
on any day of the week.
a. Restaurants not operatinq as dance halls or enteftainment establishments.
Restaurants with full kitchen facilities, serving full meals, licensed as alcoholic
beverage establishments (midnight te 5:00 a,m,), but not operating as dance
halls or entertainment establishments, may remain open 24 hours a day;
however, alcoholic beverages may not be offered for sale or on-premises
consumption between the hours of 5:00 a.m. and 8:00 a.m.
b. Restaurants also operatinq as dance halls or entefiainment establishments.
Restaurants with full kitchen facilities, serving full meals, licensed as alcoholicbeverageestablishments@,andalsooperatingas
dance halls, or entertainment establishments, may remain open 24 hours a
d"y; however, alcoholic beverages may not be offered for sale or on-
(2)
(3)
21
(4)
(5)
premises consumption between the hours of 5:00 a.m. and 8:00 a.m., and
dancing and entertainment shall not be conducted between the hours of 5:00
a.m. and 10.00 a.m.
c. Other alcoholic beveraqe establishments. Other alcoholic beverage
establishments (midnight te 5,00 a,m,), not containing restaurants with full
kitchen facilities, shall close at 5:00 a.m. and keep closed the place of
business and not allow any patron or other persons, other than those
employed by the vendor, to remain therein between the hours of 5:00 a.m.
and 8:00 a.m.
d. Srdewa/k cafes. Notwithstandinq the provisions of subsections (3Xa) through
(c), alcoholic beveraqes shall not be offered for sale or consumption at
sidewalk cafes, as defined in section 82-366 of this Code and as otherwise
permitted bv the Citv in accordance with chapter 82. article lV. division 5.
subdivision ll of this Code (as mav be amended from time to time). between
the hours of 2:00 a.m. and 8:00 am. No variances may be qranted from the
provisions of this section 6-3(3Xd) as to the hours of sale or consumption of
alcoholic beveraqes at sidewalk cafes.
Note: For purposes of this section, full kitchen facilities shall mean having
commercial grade burners, ovens. and refrigeration units of sufficient size and
quantity to accommodate the occupancy content of the establishment. Full
kitchen facilities must contain grease trap interceptors, and meet all applicable
city, county, and state codes.
Off-premises packaqe sales bv alcoholic beveraqe establishments. Off-premises
package sales shall be permitted between the hours of 8:00 a.m. and midnight,
for all establishments licensed as alcoholic beverage establishments.
Private clubs. A Private private clubs, either as a permitted main or accessoryuse, shall onlv offer alcoholic
beveraoes for sale or on-premises consumption if the private club, in accordance
with section 6-2(a). secures a license for the distribution or sale of anv alcoholic
beveraoes from the division of alcoholic beveraoes and tobacco of the
department of business and professional requlation of the state. Heur+-ef
Private
clubs licensed as alcoholic beveraqe establishments, either as permitted main or
accessorv uses, shall onlv offer alcoholic beveraoes for sale or on-premises
consumption between the hours of 8:00 a.m. and 5:00 a.m;+bn{sfth{€ugh
, provided that service is made only to members
and guests of members pursuant to Florida Statutes. However, any private club
permitted to remain open after 2:00 a.m. shall purchase an extra-hours license
and must provide for security in its premises by hiring private security guards or
off-duty police officers between the hours of 2:00 a.m. and 5:00 a.m. each day.
Private clubs securing a license from the state division of alcoholic beverages
and tobacco by complying with the requirements of F=S. S 561 .20 for racquetball,
tennis, or golf course facilities may admit members at any time for use of such
facilities, but may not serve alcoholic beverages after 2:00 a.m. each day unless
4
22
such private club is the holder of an extra-hours license and complies with the
above requirements.
(e
(7) (Q) Alcoholic beverage establishments set forth in subsections (3) and (5) permitted
to remain open to serve alcoholic beverages for on-premises consumption until
5:00 a.m. may continue to serve alcoholic beverages (i) until 7:00 a.m. on
January 1 (New Year's Day) or, if January 1 is on a Sunday, until 7:00 a.m. on
Monday if the day that is observed as a national holiday for New Year's Day is on
Monday, and (ii) until 7:00 a.m. during certain major event days or weekends as
may be designated by the city commission or as may be designated by the city
manager following approval by the city commission, under the following
conditions:
a. The police department and the code compliance divisief, department of the
city must be notified by a letter, received no later than 15 business days prior
to either (a) January 1 or (b) the day on which alcohol sales are to be
extended, stating that the alcoholic beverage establishment intends to serve
alcoholic beverages for on-premises consumption until 7:00 a.m.;
b. lf deemed reasonably necessary by the police chief, or the police chiefs
designee, off-duty police officers must be provided at the alcoholic beverage
establishment until 7:00 a.m.;
c. There are no pending City Code violations against the alcoholic beverage
establishment;
d. No delinquent or past due monies are owed to the city;
e. Outdoor entertainment or open-air entertainment is not allowed;
f. No violation of the city's noise ordinance shall be permitted;
g. No violation of the approved fire code occupancy load shall be permitted;
h. All required city permits and licenses are current;
i. The State of Florida alcoholic beverage license is current; and
j. Any other conditions required by the city manager in order to protect the
public health, safety, orwelfare.
Alcoholic beverage establishments set forth in subsections (3) and (5) permitted
to remain open to serve alcoholic beverages for on-premises consumption until
5:00 a.m. may continue to serve alcoholic beverages until 6:00 a.m. on the first
day of daylight savings time in the spring.
23
€) (Z) The city manager may suspend the provisions of subsection ($(6) at any time
to protect the public health, safety, or welfare.
Penalties and enforcement.
a. The followinq penalties shall be imposed for a violation of this section:
L The penaltv for the first violation bv a person or entitv within a 12-
month period shall be a civil fine of $ 1,000.00:
ii. The penaltv for the second violation bv a person or entitv within a
12-month period shall be a civil fine of $ 5,000.00:
iii. The penaltv for the third violation bv a person or entitv within a 12-
month period shall be a civil fine of $ 10,000.00:
iv. Upon a findinq bv the special master that four (4) or more violations
bv a person or entitv have occurred within a 12-month period. the
citv mav initiate proceedinos to revoke the certificate of use.
business tax receipt, or certificate of occupancv of the violator.
cafe permit for a period of two (2) permit vears followino the permit
vear in which the sidewalk cafe permittee incurred the violations.
b. Enhanced penaltv. The followinq enhanced penaltv shall be imposed. in
addition to anv mandatorv fines set forth in subsection (8)(a) above. for
violations of this section:
L The sale of alcoholic beveraoes in violation of this section must be
immediatelv terminated. upon confirmation bv the code compliance
department that a violation has occurred.
c. Enforcement. The code compliance department shall enforce this section.
This shall not preclude other law enforcement aoencies or requlatorv
bodies from anv action to assure compliance with this section and all
applicable laws. lf a code compliance officer (which. as defined in section
70-66, includes a oolice officer) finds a violation of this section. the code
compliance officer shall issue a notice of violation in the manner prescribed
in chapter 30 of this Code. The notice shall inform the violator of the nature
of the violation, amount of fine for which the violator is liable. instructions
and due date for pavinq the fine, that the violation mav be appealed bv
requestins an administrative hearinq before a special master within ten
(10) davs after service of the notice of violation. and that the failure to
appeal the violation within ten (10) davs of service shall constitute an
admission of the violation and a waiver of the riqht to a hearino.
v. A sidewalk cafe permittee that has been issued four (4) or more
violations pursuant to this section or section 82-388 within a permit
vear shall be prohibited from applvinq for and obtainino a sidewalk
6
24
Riohts of violators. pavment of fine: riqht to appear: failure to pav civil fine
or to appeal, appeals from decisions of the special master.
L A violator who has been served with a notice of violation must elect
to either
A. pav the civil fine in the manner indicated on the notice of
violation: or
B. request an administrative hearinq before a special master
to appeal the notice of violation. which must be requested
within ten (10) davs of the service of the notice of violation.
ii. The procedures for appeal bv administrative hearino of the notice of
violation shall be as set forth in sections 30-72 and 30-73 of this
Code. Applications for hearinos must be accomoanied bv a fee as
approved bv a resolution of the citv commission. which shall be
refunded if the named violator prevails in the aopeal.
iii. lf the named violator. after issuance of the notice of violation, fails
to pav the civil fine, or fails to timelv request an administrative
hearino before a special master, the special master mav be
informed of such failure bv report from the officer. The failure of the
named violator to appeal the decision of the officer within the
prescribed time period shall constitute a waiver of the violator's
rioht to an administrative hearinq before the special master. and
shall be treated as an admission of the violation, for which fines and
penalties shall be assessed accordinqlv.
iv. A certified copv of an order imposinq a fine mav be recorded in the
public records, and thereafter shall constitute a lien upon anv real
or personal propertv owned bv the violator, which mav be enforced
in the same manner as a court iudoment bv the sheriffs of this
state. includinq lew aoainst the violator's real or personal propertv.
but shall not be deemed to be a court iudqment except for
enforcement purposes. On or after the sixtv-first (61st) dav
followinq the recordinq of anv such lien that remains unpaid, the
Citv mav foreclose or otherwise execute upon the lien.
v. Anv partv aoqrieved bv a decision of a special master mav appeal
that decision to a court of competent iurisdiction.
vi. The soecial master shall be prohibited from hearinq the merits of
the notice of violation or considerinq the timeliness of a request for
an administrative hearinq if the violator has failed to request an
administrative hearins within ten (10) davs of the service of the
notice of violation.
vii. The special master shall not have discretion to alter the penalties
prescribed in subsection (8)(a) or (8Xb).
25
SECTION 2. GODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this Ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered or
re-lettered to accomplish such intention, and, the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 3. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 4. SEVERABILIW.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this day of
ATTEST:
Rafael E. Granado, City Clerk
(Sponsored by Mayor Philip Levine)
(Sponsored by Michael Grieco)
First Reading:May 6, 2015
Second Reading: May 20,2015
Underscore denotes new language
S*i**nre+tgn denotes removed language
2015.
Philip Levine, Mayor
APPROVED AS TO
FORM AND LANGUAGE
A\D FOR FXEQUTON
.+.t< tl"\- !,-rL-16
City Attorney
F:\ATTO\1(ALN\ORDINANCEs\Alcohol\Alcoholic Beverages Hours of Sale Sidewalk Cafes 2AM.docx tillv
Date
K
26
CHAPTER 82 - PUBLIC PROPERTY
SIDEWALK CAFE ORD!NANCE - ALCOHOL REGULATIONS
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CIry COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82, ENTITLED "PUBLIC
PROPERTY," OF THE CODE OF THE CITY OF MIAMI BEACH, FLORIDA, BY
AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIG RIGHTS.OF.WAY,"
DIVISION 5, ENTITLED "SIDEWALK CAFES," SUBDIVISION II, ENTITLED
"PERMIT," BY CREATING SECTION g2-3gg THEREOF, ENTITLED ,,HOURS
OF SALE OF ALGOHOLIC BEVERAGES; ENFORCEMENT," TO TERMINATE
THE SALE AND GONSUMPTION OF ALCOHOLIG BEVERAGES AT
SIDEWALK CAFES AT 2:00 A.M., AND PROVIDE THAT SECTION 82-388
SHALL BE ENFORCED PURSUANT TO SECTTON 6-3(8) OF THE Ctry
CODE; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFIGATION,
AND AN EFFECTIVE DATE.
WHEREAS, there continues to exist the need for outdoor eating establishments
(sidewalk cafes) in certain areas of the City of Miami Beach ("City") to provide a unique
environment for relaxation and food and/or beverage consumption; and
WHEREAS, the existence of sidewalk cafes encourages additional pedestrian traffic to
these areas; and
WHEREAS, the presence of sidewalk cafes may thus impede the free and safe flow of
pedestrian traffic; and
WHEREAS, in order to facilitate and ensure a safe environment for residents and
visitors at sidewalk cafes, which are located on public rights-of-way, there is a need for
regulations and standards for the existence and operation of sidewalk cafes, including a need to
regulate the hours during which sidewalk cafes may offer alcoholic beverages for sale or
consumption; and
WHEREAS, the City has established permit conditions and safety standards for sidewalk
cafes in order to protect and promote the general health, safety, and welfare of the City's
residents and visitors; and
WHEREAS, it is in the best interest of the City, and it serves the health, safety, and
welfare of the City's residents and visitors, to require that sidewalk cafes, which are located on
public rights-of-way, terminate the outdoor sale and consumption of alcoholic beverages at 2:00
a.m., because the outdoor sale and consumption of alcoholic beverages can disturb the quiet
enjoyment of the community, cause undesirable noise, result in physical disputes amongst
patrons and passers-by, and contribute to litter, noxious odors, and the general degradation of
the City; and
WHEREAS, the amendments set forth below are necessary to accomplish the objectives
identified above.
27
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. ThatSection 82-388 of Subdivision ll, of Division 5, of Article lV, of Chapter32 of
the Code of the City of Miami Beach is hereby created as follows:
CHAPTER 82
PUBLIC PROPERW
Article lV. Uses in Public Rights-of-Way
DtvtstoN s. goewalx cares
***
Subdivision ll. Permit
Sec. 82-388. Hours of sale of alcoholic beveraqes: enforcement.
(s) Alcoholic beveraqes shall not be offered for sale or consumption at sidewalk cafes
between the hours of 2:00 a.m. and 8:00 a.m. Compliance with this section shall be a
condition of maintaininq a sidewalk cafe permit.
(b) A violation of this section shall be enforced and penalties shall be imposed in
accordance with section 6-3(8) of this Code.
Secs. 8ffi 82-389-82-410. Reserved.
SECTION 2. GODIFIGATION.
!t is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and, the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
SECTION 3. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
28
SECTION 4. SEVERABIL!TY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 5. EFFECTIVE DATE.
This Ordinance shalltake effect ten days following adoption.
PASSED and ADOPTED this day of
ATTEST:
Rafael E. Granado, City Clerk
(Sponsored by Mayor Philip Levine)
(Sponsored by Michael Grieco)
First Reading:May 6, 2015
Second Reading: May 20,2015
Underscore denotes new language
S+it<e+nreugh denotes removed language
2015.
Philip Levine, Mayor
APPROVED AS TO
FORM AND LANGUAGE
AND FOR EXECUTION
City Attorney - Date
NK
Mjrr$
F:\ATTO\KALN\ORDINANCES\Alcohol\Alcohol Amendments to Sidewalk Cafe Ordinance.docx
29
54HE | 5U|{0AY, irAY O, 2015 \:lv,iamiilecld,c0m I HIAUI HtRAL"D
:--..*.{
I--
CITY OF MIAMI BEAC}I
:_.=-.-*-...1.ti.i--:-f--$,1.1.......i;1;;!$im$leilH NorlcE oF PUBLIC HEAEING
NCITICE lS HEFEBY given that a public hearing will be held by the
Mayor and City Commissioners of the City of Miami Bsach, Florida,
in the Commission Chambers,Third Floor. City Halt, 1700 Convention
Center Drive. Miami Beach, Florida. on Wednesday, May 20, 2015 at
5:15 p"m,, or as soon thereafter as tho matter can be heard, to consider:
Ghapter 6 -Alcoholic Eeverages
An Ordinance Amending Chapter 6, Entitled "Alcoholic Beveragesj Of
The Code Of The CitV Ol Mlemi Beach, Florida. Article l, Entitlsd "ln
GeneraU' Soction 6-3Thereof, Entitted "Hours Of Sale;" To Tarminate
The Sale And Consumption Of Alcoholic Beverages At Sidewatrk Cafes
At 2:00 a.m., ProhibitThe Granting Of Variances FromThe Provisions
Of Section 6-3(3)(d), And Provide For Panatties; And Providing For
Ftepealer. Severabillty. Codification, And An Effective Date. /nqulries
may be diracted ta the Oflice of the City Attorney ar 305.673.7470.
Chapter 82 - Public Property SidewalkCaf6 Ordinance -Alcohol Regutations
An Ordinance Amending Chapter 82, Entitled "Public Propertyj' Of
The Code OfThe City Of Miami Beach, Florida, By Amending Article lV,
Enlitled "Uses ln Public Rights-Of-Wayi' Division 5, Entitled "Sidewalk
Cafesj' Subdivision ll, Entitled "Permitj' By Creating Section 82-388
Thereof, Entitled "Hours Of Sale Of Alcsholic Beverages; Enforcementl-[b Terminate The Sale And Consumption Of Alcoholic Beverages At
Sidewalk Cafes At 2:00 A.M.. And ProvidaThat $action 82-388 Shall Ba
Enforced fursuantTo Section &3(8) Of The City Code; And Froviding
For Repealer, Severability, Codification. And An Effective Date. lnquiries
may be directed to the Office of the City Attorney at 305.673.747A.
INTEAESTED PARTIE$ are invited to appear at ihis meeting, or be
represented by an agent, or to express their views in tirriting addressed
to ths City Commission, c/o the City Clerk, 1700 Convention Center
Drive, 1"rFloor, City Hall, Miami Beach, Florida 3313$.These items are
available for public inspection during normal business hours in the
City Clerk's Office, 1700 Convention Csnter Drive, '1"! Floor, City Hall,
Miami Beach, Florida 33139.This meeting, or any item herein. may be
continued, and under such cireumstances, additional legal notice need
not be provided.
Pursuanr to Section ?86.0105, Fla. Stat.. the City hereby advises :he
public that if a person decides to appeal any decision made by the
City Commission with r*spect to any matter eonsidered at its meeting
or its hearing, such person must ensura that a verbatim record of the
proceedings is made. which record includesthe testimony and evidence
upon which the appeal is to bs based.This notice does not constitute
consent by the City for the intrsduction or admission of otherwise
inadmissible or irrelevant evidence, nor does it authorize challenges or
appoals not otherwise allowed by law
To requestthese materials in alternateformat, sign language int€rpr6ter
{five-day notice requlred]. information on access for persans with
disabilities, and,Ior any accommodation to review any document or
participate in any City-sponsored proceedings. call 305.6M"2489 and
select 1 for English or 2for Spanish, then option 6;TfY users may call
via 711 {Florida flelay $ervice}.
Hafael E. Granado, City Clerk
City of Miami Beach
30
THIS PAGE INTENTIONALLY LEFT BLANK
31
&
q!!l!r ,\At&&AIWK&th$
To:Mayor Philip Levine Date: May 20,2015
Members of the City Commission
Jimmy Morales, City Manager
RaulAsuila, cityAttorney COMMISSION MEMORANDUM
Commissioner Jonah WolfsonFrom:
Subject:AN ORDINANCE OF THE MAYOR AND C]TY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82, ENTITLED "PUBLIC
PROPERTY," ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS-OF-WAY,"
DIVISION 5, ENTITLED "SIDEWALK CAFES," SUBDIVISION 2, ENTITLED
"PERMIT," BY CREATING SECTION 82-389, ENTITLED "ADDITIONAL
MINIMUM STANDARDS, CRITERIA, AND CONDITIONS FOR OPERATION OF
SIDEWALK CAFES ON OCEAN DRIVE BETWEEN sTH STREET AND 15TH
STREET" TO PROVIDE MINIMUM STANDARDS FOR UMBRELLAS AND
AWNINGS, REQUIRE REGULAR MAINTENANCE OF UMBRELLAS, AND
PROVIDE PROHIBITIONS; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
lntroduction
The attached Ordinance is submitted for consideration by the Mayor and City
Commission. The ordinance modifies Chapter 82, at Article lV, Division 5, which regulates
Sidewalk Cafes. Section 82-389 was added to the code to reflect specific provisions relating to
utilization of umbrellas along the sidewalk cafes located on Ocean Drive between Sth Street and
1Sth Street (hereinafter Ocean Drive sidewalk cafes).
As you may be aware, there continues to exist the need for outdoor eating
establishments (sidewalk cafes) in certain areas of the city to provide a unique environment for
relaxation and food and/or beverage consumption. The existence of sidewalk cafes encourages
additional pedestrian traffic to these areas. However, due to the size of the sidewalks along
Ocean Drive, the presence of sidewalk cafes may impede the free and safe flow of pedestrian
traffic. As a result, there is a need for additional regulation and standards for the existence and
operation of sidewalk cafes along Ocean Drive between Sth Street and 15th Street, to facilitate
and ensure a safe environment in these areas, including regulations on umbrella installation and
use, particularly as the conditions on Ocean Drive deteriorated along the pedestrian pathway.
Currently there are large umbrellas attached to one another, which are then attached to awnings
projecting from the buildings, which results in a tunnel effect along the pedestrian pathway.
A majority of the buildings along Ocean Drive between Sth Street and 15th Street are
listed as contributing buildings within the Ocean Drive - Collins Avenue Local Historic District,
and the National Register of Historic Places Miami Beach Architectural District, the umbrellas
and awnings hide all the architectural beauty that is South Beach. Oversized umbrellas and
Agenda ttem RSB
Date S-Zdtf32
Sidewalk Cafe - Ocean Drive - Umbrellas
Cover Memorandum
May 20,2015
Page 2 of3
awnings have the potential to block historically and aesthetically significant architectural
features.
ln order to protect the health, safety, welfare and tranquility of the community, has
established permit conditions and safety standards, including conditions and standards relating
to street furniture, for sidewalk cafes within the Ocean Drive sidewalk caf6 area, which are
necessary to protect and promote the general health, safety, and welfare of the residents of the
City. The draft ordinance is a second step by the City (the first step being the Mayor's
ordinance amendment as to the hours of alcohol consumption and sales at sidewalk cafes) to
protect the integrity of Ocean Drive.
Content of Ordinance:
The proposed supplemental regulations would provide the following requirements as it
relates to the use of umbrellas within the Ocean Drive sidewalk caf6 area:
(1) All umbrella canopies shall be supported by no more than one center post or one
cantilevered post.
(2) All umbrella canopies shall provide a minimum clearance of seven (7) feet in height as
measured from the sidewalk. The highest point of the umbrella canopy or frame shall not
exceed nine (9) feet in height as measured from the sidewalk.
(3) All umbrella canopies shall be installed parallel to the sidewalk. No canopy shall be
allowed to tilt or be installed on a bias. All open canopies shall remain in a horizontal
position, parallel to the sidewalk.
(4) All umbrella posts or frames shall be installed perpendicular to the sidewalk. No post
or frame may be allowed to tilt or be installed on a bias.
(5) When the canopy is closed the umbrella shall be removed from the sidewalk caf6 and
stored inside the permittee's restaurant, cafe, or bar.
All umbrella canopies shall be round or octagonal.
The umbrella canopy shall bear a circumference of no greater than 36 square feet.
(8) All umbrella bases shall be bolted down into the sidewalk, and the sidewalk cafe
permittee shall obtain a right-of-way revocable permit pursuant to chapter 82, article lll,
division 2 of this Code. The pole or frame shall be removable from the base.
(6)
(7)
(e)The minimum distance or spacing between umbrella canopies shall be two (2) feet.
33
Sidewalk Cafe - Ocean Drive - Umbrellas
Cover Memorandum
.}i4ay 20,2075
Page 3 of3
(10) Each sidewalk caf6 permit shall require a uniform color pattern for installed umbrellas
subject to planning staff approval. The umbrella canopy may consist of no more than two
colors. No umbrella canopies may contain fringes, scallops, or other ornamentation.
(11) The business name or logo may be placed on the umbrella, but may not exceed one
foot in height.
(12) All umbrella canopies shall be fire-retardant, pressure-treated or manufactured of fire-
resistant material.
(13) Rechargeable - battery operated lights facing the table may be installed on the post
or frame, within inside of canopy.
Advertising would be prohibited. Also prohibited would be the clipping, zipping, or fastening of
umbrellas together. No clear plastic or other material could be fastened to the umbrellas.
Further, no awnings or canopies other than those umbrellas specifically authorized in this new
ordinance, may be installed on or over a sidewalk cafe.
Fiscal lmpact: The City requires a sidewalk caf6 permit, and if the umbrella stands are to be
installed in the ROW permanently, a revocable right-of-way permit will be required. Each permit
has an associated fee, and as such there should not be any fiscal impact to the City from the
implementation of this Ordinance.
Recommendation
Approval of ordinance at first reading and schedule second reading, public hearing.
34
SIDEWALK CAFE - OGEAN DRIVE . UMBRELLAS
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
82, ENTITLED "PUBLIC PROPERTY," ARTICLE IV, ENTITLED
"usES lN PUBLIC RIGHTS-OF-WAY," DIVISION 5, ENTTTLED
"SIDEWALK CAFES," SUBDIVISION 2, ENTITLED ,,pERMlT,"
BY CREATING SECTION 82.389, ENTITLED "ADDITIONAL
MINIMUM STANDARDS, CRITERIA, AND CONDITIONS FOR
OPERATION OF SIDEWALK CAFES ON OCEAN DRIVE
BETWEEN sTH STREET AND 15', STREET,, To PRoVIDE
MINIMUM STANDARDS FOR UMBRELLAS AND AWNINGS,
REQUIRE REGULAR MAINTENANCE OF UMBRELLAS, AND
PROVIDE PROHIBITIONS; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, there continues to exist the need for outdoor eatlng establishments
(sidewalk cafes) in certain areas of the City to provide a unique environment for relaxation and
food and/or beverage consumption; and
WHEREAS, the existence of sidewalk cafes encourages additional pedestrian traffic to
these areas; and
WHEREAS, there is a need for additional regulation and standards for the existence and
operation of sidewalk cafes along Ocean Drive, between 5th Street and 1sth Street, to facilitate
and ensure a safe environment in these areas, including regulations on umbrella installation and
use; and
WHEREAS, since the inception of the Sidewalk Cafe Ordinance, the experience along
Ocean Drive has deteriorated along the pedestrian pathway; and
WHEREAS, currently there are large umbrellas attached to one another, which are then
attached to awnings projecting from the buildings; and
WHEREAS, this results in a tunnel effect along the pedestrian pathway; and
WHEREAS, a majority of the buildings along Ocean Drive between Sth Street and 1Sth
Street are listed as contributing buildings within the Ocean Drive - Collins Avenue Local Historic
District, and the National Register of Historic Places Miami Beach Architectural District, and the
umbrellas and awnings hide all the architectural beauty that is South Beach; and
WHEREAS, oversized umbrellas and awnings have the potential to block historically and
aesthetically significant architectural features; and
WHEREAS, the City, in order to protect the health, safety, welfare and tranquility of the
community, has established permit conditions and safety standards, including conditions and
standards relating to street furniture, for sidewalk cafes within the Ocean Drive sidewalk caf6
area, which are necessary to protect and promote the general health, safety, and welfare of the
residents of the City; and
35
WHEREAS, the amendment set forth below is necessary to accomplish all of the above
objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CIry OF MIAMI BEACH, FLORIDA:
SECTION 1. That Chapter 82, Article lV, Division 5, Subdivision 2 is hereby amended as
follows:
CHAPTER 82
PUBLIC PROPERTY
ARTICLE IV. - USES IN PUBLIC RIGHTS.OF.WAY
***
DIVISION 5. . SIDEWALK CAFES
Subdivision ll. - Permit
(a) ln addition to the minimum standards, criteria, and conditions for operation of sideL
cafes codified in section 82-385 of this Code, which shall applv to all sidewalk cafes in- i
sidewalk cafes located on Ocean Drive between 5"' Street and 15"'Street (hereinafter Ocear:
Drive sidewalk cafes). ln the event of a conflict between this section and section 82-385
this Code, the more strinqent of the two provisions shall applv to Ocean Drive sidewalk cafe r
(b) Umbrellas.
fll All umbrella canopies shall be supported bv no more than one center post or
one cantilevered post.
All umbrella canopies shall provide a minimum clearance of seven (7) feet in
heiqht as measured from the sidewalk. The hiqhest point of the umbrella
canopv or frame shall not exceed nine (9) feet in heiqht as measured from the
sidewalk.
All umbrella canopies shall be installed parallel to the sidewalk. No canon:,
shall be allowed to tilt or be installed on a bias. All open canopies shall remarir
in a horizontal position, parallel to the sidewalk.
@
G)
36
tA All umbrella posts or frames shall be installed perpendicular to the side,"
No post or frame mav be allowed to tilt or be installed on a bias.
(!) When the canopv is closed the umbrella shall be removed from the sidew.iii.
caf6 and stored inside the permittee's restaurant, cafe, or bar.
(Q) All umbrella canopies shall be round or octaoonal.
A The umbrella canopv shall bear a circumference of no qreater than 36 square
feet.
(g) All umbrella bases shall be bolted down into the sidewalk, and the sidewalk
cafe permittee shall obtain a rioht-of-wav revocable permit pursuant to chapter
82, article lll, division 2 of this Code. The pole or frame shall be removable
from the base.
€) The minimum distance or spacino between umbrella canopies shall be two ,,.
feet.
fl_Q Each sidewalk caf6 permit shall require a uniform color pattern for installer
umbrellas subiect to planninq staff approval. The umbrella canopy mav consi::
of no more than two colors. No umbrella canopies mav contain frinr,
scallops. or other ornamentation.
fl! The business name or loqo mav be placed on the umbrella, but mav rr,
exceed one foot in heioht.
(12) All umbrella canopies shall be fire-retardant, pressure-treated or manufactured
of fire-resistant material.
(!O Recharqeable - batterv operated liqhts facinq the table mav be installed on the
post or frame. within inside of canopv.
Prohibitions.
fl) No advertisinq mav be placed or installed on umbrellas.
tA No umbrella canopv mav be clipped, zipped, or otheruvise fastened to another
umbrella. Clear plastic or other materials mav not be fastened, rolled or:
otheruvise be attached to umbrella edqes in order to create an enclosure.
(Q Candles, oas liqhtinq, or electric liqhtinq other than the liqhtinq authoriz '
pursuant to subsection (b)(12) shall not be installed on umbrellas.
g) No awninos or canopies other than those umbrellas specificallv authorized in
subsection (b) mav be installed on or over a sidewalk cafe.
37
Secs. g!-388 82-390-824'1 0. Reserved.
SECTION 2. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and, the word "ordinance" may be changed to
"section", "article", or other appropriate word.
SECTION 3. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 4. SEVERABILITY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 5. EFFECTIVE DATE.
This Ordinance shalltake effect ten days following adoption.
PASSED and ADOPTED this day of ,2015.
MAYOR
ATTEST:
CITY CLERK
APPROVED AS
FORM AND LANGUAGE
& FOR EXECUTION
TO
City Attorney Date
First Reading:
Second Reading:
Sponsor: Commissioner Jonah Wolfson
Underscore denotes new language
S+ike$reug+d e notes rem oved lan g u ag e
APPROVED AS TO
FORM & LANGUAGE
38
THIS PAGE INTENTIONALLY LEFT BLANK
39
COMMISSION ITEM SUMMARY
Condensed Title:
An Ordinance of the Mayor and City Commission of the City of Miami Beach, Florida, amending the
Firefighters; Relief and Pension Fund to comply with applicable provisions of the lnternal Revenue
Code and Regulations Thereunder; amending the Related Special Acts of the City by amending
ARTICLE Vll, entitled "Firefighters' Relief and Pension Fund," by amending sections 36 through 48;
providing for severability; repealing all ordinances in conflict therewith; providing for codification;
and idino an effective date.
Ensure expenditure trends are sustainable over the long term
First Reading
Item Summarv/Recom mendation :
The amendments are technical in nature, and should not result in additional cost to the City since all
funding comes from state premium taxes in Ch. 175, Florida Statutes.
The proposed amendments are required by the lnternal Revenue Code (lRC) and IRS regulations,
in order for the Plan to retain its qualified status and comply with the favorable determination letter
from the lRS. Among the changes are amendments making references throughout the document
gender neutral, i.e., firefighters rather than firemen. More substantial elements include the addition
of 16 newly defined terms and amendments to the eight originally included in the ordinance.
Additionally, the proposed ordinance specifies how a retirediseparated member's account is to be
treated until such time as the funds are withdrawn and how survivor benefits are disbursed.
Language further indicates that amounts allocated to a participant's account may not exceed the
limitations set forth in Section 415 of the Code.. The current maximum limit on annual additions to
a participant's defined contribution account under section 415 is $53,000.
Adoption of the ordinance is recommended. lt is further recommended that the second reading and
public hearing be scheduled for the June 10,2015, meeting.
The City has been informed that changes to the ordinance do not have an actuarial impact. A
statement to that effect shall be provided for the second reading and public hearing.
Financial lnformation:
Source of
Funds:
Amount Account
1
2ls
I Totat
Financial lmoac Summary:
-Tabak, Human Resources Director
Clerk's Office Trackin
AGEiIDA NTM RSC
n-Offs:
Departr4pnt Director Assistant City Manager city l anager
scr €gr KGB JLMJ )f'\
E MIAMIBEACH DAIE s- 20_t(40
MIAMIBEACH
Clry ol Mloml Bcoch, 'l 200 Convention Cenler Drive, Miomi Beoch, FL 33139, www.miomibeochfl.gov
COMMISSION MEMORANDUM
Honorable Mayor Philip Levine and
Jimmy L. Morales, City Manager
May 20,2015
TO:
FROM:
DATE:
SUBJECT:
bers of the ity Commission
AN ORDINANCE OF THE MAYOR CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AIVIENDING THE FIREFIGHTERS'
RELIEF AND PENSION FUND TO COMPLY WITH APPLIGABLE
PROVISIONS OF THE INTERNAL REVENUE CODE AND
REGULATIONS THEREUNDER; AMENDING THE RELATED SPECIAL
ACTS OF THE CITY BY AMENDING ARTICLE VII, ENTITLED..FIREFIGHTERS' RELIEF AND PENSION FUND,'' BY AMENDING
SECTIONS 36 THROUGH 48; PROVIDING FOR SEVERABILITY;
REPEALING ALL ORDINANCES IN CONFLICT THEREWITH;
PROVIDING FOR CODIFICATION; AND PROVIDING AN EFFECTIVE
DATE.
FIRST READING
BACKGROUND
We have reviewed the proposed amendments to the Miami Beach Firefighters' Relief and
Pension Fund, attached to the lnternal Revenue Service (lRS) determination letter dated
December 5, 2014 (attached).
An lnternal Revenue Service "determination letter" is issued in response to a request as to the
qualified status of a retirement plan under IRC section 401(a). The determination letter
expresses the Service's opinion regarding the form of the plan, and applies only to the employer
and the plan participants on whose behalf it was issued.
The proposed amendments are required by the lnternal Revenue Code (lRC) and IRS
regulations, in order for the Plan to retain its qualified status and comply with the favorable
determination letter from the lRS. Among the changes are amendments making references
throughout the document gender neutral, i.e., firefighters rather than firemen. More substantial
elements include the addition of 16 newly defined terms and amendments to the eight originally
included in the ordinance.
Additionally, the proposed ordinance specifies how a retired/separated member's account is to
be treated until such time as the funds are withdrawn and how survivor benefits are disbursed.
Language further indicates that amounts allocated to a participant's account may not exceed the
limitations set forth in Section 415 of the Code.. The current maximum limit on annual additions
to a participant's defined contribution account under section 415 is $53,000.
We ore conmiltd lo providlng e-rceller,t public selice and nfe\ to oll vvho live, wo* ond pby in our vibronl, tropcol, historic community41
City Commission Memorandum
May 20,2015
Firefighters' Relief and Pension Fund
Page 2 ot 2
ln summary, the proposed amendments satisfy the IRS requirements for plan qualification.
Further, the amendments memorialize the City's current intent regarding the benefits derived
from the premium taxes as set forth in Ch. 175, Florida Statutes.
While public employers that sponsor retirement plans are not required to apply for a
determination letter, receiving a favorable determination letter provides documentation that the
plan satisfies the applicable qualification standards.
There are several legal and practical advantages to obtaining a determination letter. One legal
advantage is that an IRS determination letter provides a definitive analysis of whether a plan is
qualified. lt also provides the basis for retroactive relief if the Service later changes its position.
One practical advantage of obtaining a determination letter is that the City's auditors will be less
likely to question the qualified status of the Plan.
We have prepared an ordinance incorporating the IRC compliance amendments. The
amendments are technical in nature, and should not result in additional cost to the City since all
funding comes from state premium taxes in Ch. 175, Florida Statutes.
RECOMMENDATION
Adoption of the ordinance is recommended. lt is further recommended that the second reading
and public hearing be scheduled for the June 10,2015, meeting.
The City has been informed that changes to the ordinance do not have an actuarial impact. A
statement to that effect shall be provided for the second reading and public hearing.
Attachment ,
JLM/KGB/S#
T:\AGENDA\201S\May\HUMAN RESOURCES\175 Plan\Memo - IRS Determination and Plan Changes - May 201S.docx
42
II(TERNAI, REVENTIE SERV]CE
P. O. BOX 2508
CINC]NNATI, OH 452OL
DateDEc 0 5 2014
CITY OF TVIIAMI BEACH
C/O ROBERT J FRIEDMAN
HOIJI'AND & IG{IGHT IIJP
701 BRICKEf,IJ A\IE SUITE 3OOO
MIAIVII , FT, 33L31
DEPARTMEI{I OF THE TREASURY
Employer Identif ication Number :
59-1604527
DI,N:
20L024047
Person to contact:
RUTH CHEN
Contact Telephone Number:
(626) 927-L423
rD# 95048
Plan Name:
CITY OF MIAMI BEACH FIREFIGITTERSI
RELIEF AND PENSION FT,]ND
PIan Nuriber: 001
Dear Applicant:
We have made a favorable determination on the plan identified above based
on the information you have supplied. Please keep this letter, the application
forms submitted to requesE this letter and all correspondence witlr ttre Internal
Revenue Service regarding your application for a determination letter in your
permanenL records. You must retain Lhis information to preserve your reliance
on this letter.
Continued gualification of the plan under its present form will depend
on its effect in operaEion. See section 1.401-1-(b) (3) of t,he Income Tax
Regulations. We will review tshe status of the plan in operation periodically.
Ttre enclosed Publi-cation 794 explains the significance and the scope of
this favorabte determination letter based on ttre detsermination reguests
selected on your application torms. publication 794 describes the information
that must be retai-ned to have reliance on this favorable determination letter.
The publication also provides examples of the effect, of a ptan's operati"on on
its qualified stsatsus and discusses the reporLing requirements for qualified
pIans. Please read Publication 794.
This letter relates only to the staUus of your plan under the Internal
Revenue Code- It is noC a determinat,ion regarding the effect of other federal
or local statutes.
This determination letter gives no rel-iance for any qualification change
that becomes effective, any grridance published, or any statutes enacted, after
the issuance of the Cumulative List (unless the item tras been identified in the
Cumulative List) for the cycle under whj-ch this application was submitted.
This letter may not be relied on afLer the end of the plan's first five-
year remedial amendment cycle that ends more than Ewelve months after the
application was regeived. This letter expires on,fanuarY 31, 2014. This
letter considered the 2009 Cumulative List of PIan Qualificauion Reguirements.
This determination letter is applicable for the arnendmenE(s) executed
orL 4-29-L4.
Letter 2002
43
-2-
CITY OF MTAMI BEACI{
This determination letter is based solely on your assertion that t.he plan
is entitled. to be treaEed as a covernmental plan under section 4L4 (d) of the
Int,ernal Revenue Code.
this determination letter is applicable to the plan and related docunents
submitted in conjunction with your application filed during the remedial
amendnent cycle ending 1-3i--l-L.
This is not a determlnation with respect to aIry langnrage in ttre plan or
any amendment to the plan that reflects Sect,ion 3 of Lhe Defense of Marrj.age
Act., Pub. rr. Lo4, l-l-o stat. 2479 (DoMA) or U.S. v. litindsor, 570 U-s- 1,2 (20L3),
which invalidated that section.
We have sents a eopy of this letter to your representative as indicated in
the Form 2848 Power of Attorney or appointee as indicated by the Form 8821 Tax
Inf ormat ion AuEhorizat,ion .
If you have guesEions concerning this matter, please contact the person
whose name and telephone nurnber are shown above.
'' Sincerely, t' ''
G&r t- ef"*Andrew E. Zuckerman
Director, EP Rulings & AgreemeFts
Enclosures:
Pulrlicatiorl 794
Letter 2002
44
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING THE FIREFIGHTERS' RELIEF AND
PENSION FUND TO COMPLY WITH APPLICABLE PROVISIONS OF THE
!NTERNAL REVENUE CODE AND REGULATIONS THEREUNDER;
AMENDING THE RELATED SPECIAL ACTS OF THE CITY BY AMENDING
ARTICLE VI!, ENTITLED "FIREFIGHTERS' RELIEF AND PENSION FUND,"BY AMENDING SECTIONS 36 THROUGH 48; PROVIDING FOR
SEVERABILITY; REPEALING ALL ORDINANCES lN CONFLICT
THEREWITH; PROVIDING FOR CODIFICATION; AND PROVIDING AN
EFFECTIVE DATE.
BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE GITY OF MtAMt
BEACH, FLORIDA:
Section 1. Section 36 of Article Vll of the Related Special Acts of the Gity of Miami
Beach, is amended to read:
Sec. 36. Purpose of Act; supplementary to other Acts.
The purpose of this Act is to implement the provisions of chapter 19112, Acts of Florida,1939,andtoprovidemeanSwherebyfirefighters@oftheCityofMiami
Beach, Florida, may receive benefits from the funds provided for that purpose by Chapter
19112, Acts of Florida, 1939. This Act shall be deemed to supplement any other pension plan of
the City of Miami Beach insofar as benefits 1o fir"fiqhters fir€m€'n#ir€Sighteql are concerned, and
nothing herein shall be construed to in any way affect the operation or benefits of any other
pension plan of the City of Miami Beach, Florida. Sections 5, 6,7 ,8, 9 and 10 of Chapter 19112,
Acts of Florida, 1939, shall continue to apply to the City of Miami Beach except as othenruise
specifically provided for in this Act.
Section 2. Section 37 of Article Vll of the Related Special Acts of the City of Miami
Beach, is amended to read:
Sec.37. Definitions.
The following words and phrases shall, for the purposes of this Act, have the meanings
hereafter respectively ascribed to them. Other words and phrases shall have meanings as
commonly understood with respect to the context; the singular shall include the plural, and the
masculine the feminine:
(a) Account: shall mean the individual account credited on behalf of each Participant
with contributions pursuant to this Act, elioible forfeiture contributions and earninqs
on such contributions.
(b) Account Balance: shall mean the value of a Participant's Account as of the last
Valuation Date.
45
(ga) Active duty: shall mean actual service as a firefishter firemen lfirefighterl with
regular status in the fire division of the City of Miami Beach, or absent from duty on an
approved leave of absence, all as of the time under consideration.
Glb) Board: shall be-unCers+eed-{e mean the Board of Trustees of the Miami Beach
Firefiqhters,@ReliefandPensionFund,asprovidedforherein.
@e) City: shallbe-snder€+ee++e mean the City of Miami Beach, Florida.
(fl Code: shall mean the lnternal Revenue Code of 1986. as amended from time to
time.
(g) Desiqnated Beneficiary. shall mean anv person, persons or entitv desionated bv a
Participant to receive anv benefits oavable under the Fund in the event of the
Participant's death under Code Section 401(aX9) and Treasurv Reoulation Section
1.401(aX9)-4. lf no Desiqnated Beneficiarv has been so desiqnated bv a Participant
prior to the Participant's death, or if no person. persons or entitv so desiqnated
survives the Participant, the Participant's survivinq spouse. if anv, shall be deemed
to be the Desiqnated Beneficiarv: otherwise the Desionated Beneficiarv shall be the
Participant's estate.
(h) Direct Rollover: shall mean a pavment bv the Fund directlv to the eliqible retirement
plan specified bv the Distributee.
(!) Distributee: shall mean a Firefiqhter or former Firefiqhter. ln addition. effective for
distributions made after December 31. 2001. the Firefiqhte/s or former Firefiohte/s
survivino spouse or former spouse who has an interest in the Firefiohter's benefits
under the Fund pursuant to a domestic relations order honored bv the State or the
Citv (if anv) are Distributees with reqard to such interest.
[) Elioible Retired Public Safetv Officer: shall mean a Participant who has retired from
the fire division of the Citv (i) bv reason of disabilitv or (ii) on or after his or her
Normal Retirement Aqe and who is also a "public safetv officer" as defined in Section
402(|X4XC) of the Code and anv applicable quidance thereunder.
ft) Elioible Retirement Plan: shall mean. effective for distributions made after December
31. 2001, anv of the followinq tvpes of plans that accept the Distributee's Eliqible
Rollover Distribution: (i) a qualified plan described in Section 401(a) of the Code: (ii)
an annuitv plan described in Section 403(a) of the Code: (iii) an individual retirement
account or individual retirement annuitv described in Section 408(a) or 408(b) of the
Code, respectivelv: (iv) effective for plan vears after December 31, 2001. an annuitv
contract described in Section 403(b) of the Code: and (v) effective for plan vears
after December 31. 200'1, an elioible plan under Section 457(b) of the Code which is
maintained bv a state. political subdivision of a state, or anv aqencv or
instrumentalitv of a state or political subdivision of a state and which aorees to
separatelv account for amounts transferred into such plan from this Fund.
(lI Elioible Rollover Distribution: shall mean. effective for distributions made after
December 31, 2001. anv distribution of all or anv portion of the balance to the credit
of the Distributee. exceot that an Elioible Rollover Distribution does not include: (i)
anv distribution that is one of a series of substantiallv equal periodic pavments (not
46
less frequentlv than annuallv) made for the life (or life expectancv) of the Distributee
or the ioint lives (or ioint life expectancies) of the Distributee and the Distributee's
Desionated Beneficiarv. or for a specified period of ten vears or more; (ii) anv
distribution to the extent such distribution is reouired under Section 401(a)(9) of the
Code. and (iii) effective for plan vears after December 31. 2001. aftertax amounts
unless such amount is transferred to an individual retirement account or individual
retirement annuitv described in Section 408(a) or 408(b) of the Code. respectivelv, or
transferred to a defined contribution plan qualified under Section 401(a) of the Code
that aqrees to seoaratelv account for such amount.
0d)Firefiqhters@:thefirechief,officers,inspectors,enginemenand
+iremenf+ire+igh+er€], and such other employees of the fire division of the City ef-Miami
Bea€h as the bBoard shall determine to be engaged directly in fire fighting or firepreventionwork,shallbedeemed@Firefiohtersforthepurposesof
this Act.
(en) Fund: shall be+nCersteed-te mean the Miami Beach g+reme++{Firefighters'} Relief
and Pension Fund, as provided for herein.
(q) Fund Year: shall mean the calendar vear.
(p) Normal Retirement Aqe: shall mean attainment of aoe 50: provided, however, that
"normal retirement aoe" shall be adiusted to be the same as such term used in the
Citv Pension Fund for Firefiohters and Police Officers in the City of Miami Beach. as
amended from time to time.
(q) Participant: shall mean everv Firefiohter of the Citv eligible to have moneys credited
to his individual aeeeunt Account and to receive benefits therefrom under the Fund
and this Act .
(flfi) Qualified Health lnsurance Premiums: shall mean premiums for coveraoe for the
Elioible Retired Public Safetv Officer (and his or her spouse and dependents, if
applicable) under accident and health insurance (includino an accident or health plan
within the meaninq of Section 105(e) of the Code) or qualified lonq-term care
insurance contract as defined in Section 7702B(b) of the Code.
(g) Qualified Health lnsurance Premium Distribution: shall mean an amount deducted
from an Eliqible Retired Public Safetv Officer's benefit pavment under the Plan and
paid directlv to the insurer providinq coveraqe for which Qualified Health lnsurance
Premiums are paid. Such amount mav not exceed the amount of the Qualified
Health lnsurance Premiums.
(gt[Q Regular etatus Status: shall have the meaning ascribed to it by Chapter 18696,
Acts of Florida, 1937, commonly known as the Civil Service Act, and the Personnel
Rules of the City e{-I4iami€eaeh.
(q) Retired or Separated Participant: shall mean anv Participant who has separated from
service as a Firefiohter and has an Account Balance with the Fund.
(v)Service:shallmeanalltimeservedasaoftheCityef
Miami Beaeh for which regular compensation is made by the City eflSliamFBeaeh,
47
and all time during which a pa*epant Participant is absent on a-military leave-ef
ebsen€e Leave. lt shall include all leaves-ef-absenee Leaves with pay, but shall not
include leaves ef absenee Leaves during which no regular compensation is made
paid by the City ef Miami Beaeh.
(w) State: shall mean the state of Florida.
ft)fxl Vatuation Oate
Board mav deem necessary.
Section 3. Section 38 of Article Vll of the Related Specia! Acts of the Gity of Miami
Beach, is amended to read:
Sec. 38. Creation of fund; origin of moneys.
There is hereby created in the City of Miami Beach, Florida, a special fund to be known
as the Miami Beach g+rernen+{Firefighters'} Relief and Pension Fund, into which shall be paid
all moneys previously received by the City of Miami Beach under the provisions of Chapter
19112, Acts of Florida, 1939, and Ordinance Number 558 of the City of Miami Beach, which
moneys are now held in trust under Pension Ordinance Number 498 of the City of Miami Beach,
and all moneys which subsequently inure to the City of Miami Beach under the provisions of
Chapter 19112, Acts of Florida, 1939. lmmediately upon taking office, the beard Board shall
request, and the beard Board of trustees Trustees of the Miami Beach Employees Retirement
System shall make payment to the Miami Beach eiremen+{Firefighters'J Relief and Pension
Fund of the accumulated moneys referred to above and held in trust under Ordinance Number
498.
No part of the corpus or income of the Fund shall be used for. or diverted to. purposes
other than for the exclusive benefit of Participants and other persons entitled to benefits under
the Fund and pavino the expenses of the Fund not paid directlv bv anv other partv. No person
shall have anv interest in, or rioht to. anv part of the earninqs of the assets of the Fund, or anv
riqht in. or to. anv part of the assets held under the Fund, except as and to the extent expresslv
provided in this ordinance.
There will be no reversion of the assets of the Fund or Citv or State contributions. except
as permitted bv lnternal Revenue Service Revenue Rulinq 91-4.
Section 4. Section 39 of Article Vll of the Related Special Acts of the City of Miami
Beach, is amended to read:
Sec. 39. Board of trustees Creatien creation; composition; terms of office; officers;
proceed i ngs ; com pensation.
There is hereby created a board of trustees of the Miami Beach girement-{Firefighters'}
Relief and Pension Fund, which beerd Board shall consist of the fire chief, the director of
per€ennel human resources, the assistant e*y Citv manager or other responsible officer or
employee of the eity Citv appointed by him, and two employees of the fire division to be elected
from among the pa*ieipants Particioants of the fund Fund by such pa#r€ipant€ Participants. The
fire chief, director of persennsl human resources and the assistant €r+y gjly manager shall serve
so long as they continue to hold their respective offices, and upon replacement their successors
48
shall succeed to their positions as trustees. The first electlon of trustees from among the
pa*ietpa+g Participants shall be for one office as trustee for a one-year term, and one office as
trustee for a two-year term; thereafter elections shall be for overlapping terms of two-years. The
beerd Board shall annually elect from its membership a chairman and secretary who shall keep
complete minutes of all proceedings of the bead Board, and all actions of the beard Board shall
be by majority vote, a quorum being present. Trustees shall receive no compensation as such.
Section 5. Section 40 of Article Vll of the Related Special Acts of the Gity of Miami
Beach, is amended to read:
Sec. 40. and authority.
The beard Board shall have power and authority as follows:
(a) To have exclusive charge of the investment of any assets in the fund Fund not
needed for the fund's Fund's current obligations, and to invest and reinvest such assets
in accordance with the written investment policy adopted by the beaC Board pursuant to
paragraph (b) below. Board members must discharge their duties with respect to the
plan Fund solely in the interest of the pa+erpane Participants and beneficiaries for the
exclusive purpose of: (i) providing benefits to padieipante Participants and their
beneficiaries; and (ii) defraying reasonable expenses of administering the plan Fund;
with the care, skill, prudence, and diligence under the circumstances then prevailing that
a prudent person acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims; by diversifying the
investments of the plan-Funq so as to minimize the risk of large losses, unless under the
circumstances it is clearly not prudent to do so. Within the limitations of the foregoing
standards and investment policy, the bea+d Board is authorized to acquire and retain in
the fund Fund every kind of investment specifically including, but not limited to stocks,
bonds, securities, debentures, real estate, mutual funds, trusts and other obligations
which persons of prudence, discretion and intelligence acquire or retain for their own
account. The intent of this paragraph is to remove any and all investment restrictions
which are othenryise imposed by Ch. 175, Florida Statutes, and which may be removed.
(b) To adopt and periodically update a written investment policy in accordance with
Section 112.661, Florida Statutes, as such statute may be amended in the future.
(c) To approve loans and claims, and to authorize payments from the fund Fund by
warrants signed by the chairman and secretary of the beaC Board.
(d) To interpret the provisions of this Act where the meaning is not clear or ambiguity
exists; and to promulgate necessary rules respecting the operation of the fund Fund, not
in conflict with the wording or clear intent of this Act.
(e) To authorize expenditures in connection with preliminary research and technical
services, accounting, auditing and general administration of the fund Fund.
(0 To do such other things as may be necessary to implement and provide for the
proper functioning of the fund Fund.
49
Section 6. Section 41 of Article Vll of the Related Special Acts of the City of Miami
Beach, is amended to read:
Sec.41. .
The eusted)' ef all seeurities and eash ef the fund shall be with the ehief finanee effieer ef
the eity; whe shall previde the same preteetien fer sueh seeurities and eaeh as is previded fer
eity funds, The ehief finanee effieer shall issue veuehers against sueh eash ef the fund enly
Section 7. Section 42 of Article Vll of the Related Special Acts of the City of Miami
Beach, is amended to read:
Sec. 42. lndividual @ of @.
lndividual aeeeunts Accounts shall be established for every @
statue(a) Firefiqhter of at the effective date of this Act, @
Firefiohter who has been retired under any e*y Citv pension plan since the adoption of Chapter
19112, Acts of Florida, 1939, or who attains regrula+
s+atusflgqular Status subsequent to the adoption of this Act. To each indiviCual-aeeeunt
Account there shall be credited, as of the date of each payment to the fund Fund by the state
State, an amount of such payment which bears the same ratio thereto that the years of
sery+eeService of each pa*reipa* Participant bears to the years of senlee Service of all
@.Afteradjustmentsbytheprorationofthecostsofpreviouscourtaction,
and preliminary expense, this method of crediting aeeeunts Accounts of individ+als Participants
shall be applied to the present accumulated moneys as of the date of each payment thereof;
and to all subsequent payments to the fund Fund by the state State after proper provisions have
been made for the payment of administrative expenses for the ensuing year. There shall be an
annual determination of interest earned by the investments of the fund Fund, and such interest
earnings shall be prorated to each of the individual aeeeunts Accounts of the pa*ieipants
Participants in the same proportion as the invested funds of the Account of
each pa*ieipant Participant bears to the total funds invested on behalf of the fumd Fund. As of
each J+rne€O Valuation Date there shall be allocated and credited to the aeeeunts Accounts of
pedr€ipen+s Participants who are of regular-€ta+us Reqular
Status as of such date, their share of nonvested forfeitures of terminated pa*ie+pan+s
Participants arising during the prior twelve months, to be made in the same proportion as is the
case above with regard to payments by thei iami
State.
The Board shall value the Fund's assets as of each Valuation Date and shall allocate to
the Account of each Participant his or her share of the increase or decrease in the fair market
value of the Fund's assets.
Except as set forth in this Section 42 and Section 43(d), no further credits shall be made
to a Participant's Account after he or she shall have retired under anv other pension plan of the
Citv. or after he or she shall have separated from service with the Citv or othenruise ceased to
be a Participant in the Fund. However, until completelv distributed to him. a Participant's
Account shall continue to be invested as part of the Fund and shall continue to share in the
investment qains and losses of the Fund in accordance with this Section 42. A Participant shall
continue to receive allocations of contributions and forfeitures after he ceases to be on Reoular
50
Status if such contributions and forfeitures are attributable to a period when he was on Reoular
Status. Each Participant shall remain a Participant in the Fund until his or her Account has
been fullv distributed.
Notwithstandino anv provision of this Act to the contrarv. the maximum amount allocated
to the Participant's Account for anv calendar vear under this Act shall not exceed the limitations
set forth in Section 415 of the Code. as applicable, and anv reoulations issued thereunder. For
DurDoses of Section 415 of the Code. the Limitation Year shall be the same as the Fund Year
and. effective for Limitation Years beoinnino on or after Julv 1, 2007. Compensation shall have
the same meanino as provided in Treasurv Requlations section 1.415-(c)-2, includinq that.
effective for plan vears beoinninq on or after Julv 1. 2001, Compensation shall include amounts
which would have been included in a Participant's oross income but for an election under
Section 132(fl(4) of the Code.
Section 8. Section 43 of Article Vll of the Related Special Acts of the Gity of Miami
Beach, is amended to read:
Sec. 43. Rights and benefits generally of pa#ieipants Participants.
The fund Fund shall provide benefits to pa*ieipants Participants therein as follows:
(a) The beerd Board may approve loans to a pa#ieipant Participant not to exceed the
lesser of (i) his or her total vested @ Account Balance or (ii) five
hundred dollarsin-. Loans shall be mad such eases-a+itis-es*ablished
te-the-satisfaetien Participants on a reasonablv equivalent basis and no loan shall be
made available under this Fund unless it satisfies all of the ffi@ medieal expensee ef a partieipant er his immediate family, er
fer+wiat€xpen€es requirements of an-imm€dia+e-m€mber Section 72(p) of his family,
the Code for treatment as a tax-free loan. Reasonable periods of time shall be allowed
for the repayment of such loans; and interes+' provided that all loans must be repaid
within 5 vears unless such loan is used to acquire a principal residence of the Participant
in which case a 10 vear repavment schedule is allowed. lnterest shall be charged with
respect to the loan amount at the rate of six percent per annum on the unpaid balance.
Such loans shall be made contingent upon the right of the bead Board to effect
repayment by withholding subsequent credits, or by deducting from existing credits the
amount of any loan which is in default in its repayment; and the beard Board may refuse
to make subsequent loans to pa#ierpants Participants who so default.
(b) lf a pa+ieipan+ Participant shall separate from service with the fire division of the City
ef Miami Beaeh for any reason whatsoever prior to retirement Normal Retirement Aqe.exceptasprovidedin(c-.)and(d)below,heshallbeentitledtoa@
distribution from the Fund equal to the his vested ffi Account Balance
at that time.
er ehildren; the entire ameunt te his eredit shall be paid te a deslgnated persen fer the
and burial expenses, the@ legal guardian ef the ehild er ehildren fer their benefit if suelr
51
ehild er ehildren is under the age ef eighteen years ef age er shall be paid te sueh ehild
er ehildren ever the age ef eighteen years ef age fer their benefit, lf there be ne surviving
ef sueh expenses; any exeess ef sueh ameunt shall be paid te the estate ef the
a partieipant
is
subsectie+
(c) lf a Participant shall die while on Active Dutv. he shall be 100% vested in his entire
Account Balance and his Desiqnated Beneficiarv shall be paid the entire amount of his
Account Balance. lf no Beneficiary is desiqnated bv the Participant. the Account
Balance shall be paid to the Participant's estate.
(d) lf a pa*ieipan+ Participant, who has been, or who shall hereafter be _retired fe{fomservice]ordisabilityunderanyotherpensionplanoftheCity@
ef sueh retirernent in sueh manner
as-he shall eleet{e-reeeive-it be 100% vested in his entire Account and he shall be paid
the entire amount of his Account Balance. and he shall further be entitled to receive a
pro-rata share of the payment to the fund Fund by the State next following the date of
such retirement, such sum to be the amount as provided f61 i6 eeetie,n-7 fSection 421of
this Act and the pa*ieipa* Participant shall be entitled to receive such amount at the
time of the payment to the fund by the state in sueh manner as he shall eleet te reeeive
rlEUnd iylhe State.
(e) ln the event of the termination of the Fund. all Participants shall be 100% vested in
their entire Account Balances as of such termination date.
(fl lf permitted bv the Board, a Participant who is an Eliqible Retired Public Safetv Officer
and is receivino benefits under the Fund mav elect to have Qualified Health lnsurance
Premium Distributions made in accordance with this Section 43(fl. Qualified Health
lnsurance Premium Distributions mav be excluded from the oross income of the Eliqible
Retired Public Safetv Officer under Section 402(l) of the Code. subiect to the annual
dollar limitation therein.
(eXglSettlement as provided in subsection (b-.,!ic) and (d,) of this seetiran Section 43
shall be full acquittal of all claims of a pa$ieipant Participant against the fund Fund, and
he shall thereupon cease to be a pa*ieipan+ Participant in the Fund.
(f(hlEach pa*ieipan+ Participant shall be fully (@) vested in
the entire amount in his aeeeunt Account as it exists on June 30, 1983. Any subsequentincreasesin,whetherfromallocationofpremiumtax
refunds, investment earnings, or any other source, shall be vested in accordance with
the following schedule:
TABTE lNSET:
52
Years of
Service
Vested
Percent
Less than 10 None
1 0 or over 100
Any nonvested amounts which are not distributable under (b-.,)Jc-) or (d) above shall be
forfeited by the pa*ieipa* Participant and reallocated to remaining pe#€rpant€
Participants as provided herein in Section 42 of this Act.
(i) A Participant shall receive his benefit in a sinole cash lump sum.
(i) Notwithstandinq anvthinq herein to the contrarv. a Participant's benefits under the
Fund shall commence no later than April 1 of the calendar vear followinq the later of (i)
the calendar vear in which he or she attains aoe 70 1/2: or (ii) the calendar vear in which
eh or she retires. All distributions shall conform to the requlations issued under Section
401(a)(9) of the Code, includinq the incidental death benefit provisions of Section
401(aX9XG) of the Code. Further, such requlations shall override anv provision that is
inconsistent with Section 401(aX9) of the Code. Notwithstandinq anv provision of this
Act to the contrarv, a form of retirement income pavable form this Fund. shall satisfv the
followino conditions:
(i) lf the retirement income is pavable before the Participant's death:
(A) lt shall either be distributed or commence to the Participant not
later than April 1 of the calendar vear followino the later of the
calendar vear in which the Participant attains aqe 70 1/2. or the
calendar vear in which the Participant retires:
(B) The distribution shall commence no later than the calendar vear
defined above: and (x) shall be paid over the life of the Participant
or over the lifetimes of the Participant and his or her spouse. issue
or dependent. or (v) shall be paid over the period extendins not
bevond the life expectancv of the Participant and spouse. issue or
dependent.
Where a form of retirement income pavment has commenced in accordance with
the precedino paragraphs and the Participant dies before his entire interest in the
Fund has been distributed. the remainino portion of such interest in the Fund
shall be distributed no less rapidlv than under the form of distribution in effect at
the time of the Participant's death.
(ii) lf the Participant's death occurs before the distribution of his interest in the
Fund has commenced. Participant's entire interest in the Fund shall be distributed within
five vears of Participant's death. unless it is to be distributed in accordance with the
followinq rules:
(A) The Participant's remainino interest in the Fund is pavable to his spouse.
issue or dependent:
53
(B) The remaininq interest is to be distributed over the life of the spouse, issue
or dependent or over a period not extendinq bevond the life expectancv of the
spouse, issue or dependent: and
(C) Such distribution beqins within one vear of the Participant's death unless the
Participant's spouse. is the sole desionated beneficiarv, in which case the
distribution need not beoin before the date on which the Participant would have
attained aoe 70 1/2 and if the Participant's spouse dies before the distribution to
the spouse beoins. this section shall be applied as if the spouse were the
Participant.
(k) Direct rollovers:
(i) Notwithstandinq anv provision of this Fund to the contrarv that would
otherwise limit a Distributee's election under this paraqraph. a Distributee
mav elect. at the time and in the manner prescribed bv the Board. to have
anv portion of an Eliqible Rollover Distribution paid directlv bv the Fund to
an Elioible Retirement Plan specified bv the Distributee in a Direct
Rollover.
(ii) With respect to distributions after December 31. 2006. a non-spouse
beneficiarv who is a Desiqnated Beneficiarv mav, bv a Direct Rollover. roll
over all or anv portion of his or her distribution to an individual retirement
account the non-spouse beneficiary establishes for purposes of receivinq
the distribution. ln order to be able to roll over the distribution. the
distribution otherwise must satisfv the definition of an Eliqible Rollover
Distribution. Althouoh such non-spouse beneficiarv mav roll over such
distribution. anv distribution made prior to Januarv 1. 2010, is not subiect
to the direct rollover requirements of Code Section 401(aX31) (includino
Code Section 401(aX31)(B), the notice requirements of Code Section
402(fl or the mandatorv withholdinq requirements of Code Section
3405(c)). lf a non-spouse beneficiary receives a distribution from the
Fund. the distribution is not eliqible for a "60-dav" rollover. A non-spouse
beneficiarv mav not roll over an amount which is a required minimum
distribution, as determined under applicable Treasurv Reoulations and
other Revenue Service quidance. lf the Participant dies before his or her
Required Beqinnino Date and the non-spouse beneficiarv rolls over to an
individual retirement account the maximum amount eliqible for rollover,
the non-spouse beneficiary mav elect to use either the S-vear rule or the
life expectancv rule. pursuant to Treasurv Reoulation Section 1.401(aX9)-
3. A-4(c). in determininq the required minimum distributions from the
individual retirement account that receives the non-spouse beneficiary's
distribution.
(iii) lf the Participant's named beneficiarv is a trust. the Fund mav make a
Direct Rollover to an individual retirement account on behalf of the trust.
provided the trust satisfies the requirements to be a Desionated
Beneficiarv.
(iv) With respect to distributions made after December 31, 2007. a Distributee
mav elect to roll over via Direct Rollover an Elioible Rollover Distribution
10
54
to a Roth individual retirement account described in Code Section
408A(b).
(l) Upon the death of a Retired or Separated Participant. such Participant's survivinq
spouse shall have all the distribution options that were available to the Retired or
Separated Participant pursuant to this Section 43.
(m) Notwithstandinq anv provision of this Act to the contrarv:
(i) Effective for plan vears beqinninq after December 12. 1994, contributions,
benefits and service credit with respect to qualified militarv service will be
provided in accordance with Code Section 414(u):
(ii) ln the case of a death occurrino on or after Januarv 1. 2007. if a
Participant dies while performinq qualified militarv service (as defined in
Code Section 414(u)), the survivors of the Participant are entitled to anv
additional benefits (other than benefit accruals relatino to the period of
qualified militarv service) provided under the Fund as if the Participant
had resumed and then terminated emplovment on account of death;
(iii) For benefit accrual purposes. the Fund will treat an Participant who dies
or becomes Disabled on or after Januarv 1. 2007, while performino
qualified militarv service (as defined in Code Section 414(u)) as if the
Participant had resumed emplovment in accordance with his
reemplovment riqhts under USERRA. on the dav precedino death or
disabilitv (as the case mav be) and separated from service on the actual
date of such death or disabilitv:
(iv) For vears beoinninq after December 31. 2008, (1) an individual receivinq
a differential waoe oavment. as defined bv Code Section 3401(hX2). is
treated as an Participant of the emplover makinq the payment, (2) the
differential waqe pavment is treated as compensation. and (3) the Fund is
not treated as failino to meet the requirements of anv provision described
in Code Section 414(uX1)(C) bv reason of anv contribution or benefit
which is based on the differential waqe pavment: and
(v) Effective as of Januarv 1, 2009, for purposes of beinq eliqible to receive a
distribution under the Fund. an individual will be treated as havino been
terminated from emplovment durinq anv period the individual is
performinq service in the uniformed services described in Code Section
3401(hX2XA).
(n) Each Participant, beneficiary or other person entitled to a benefit. before anv
benefit shall be pavable to him or on his Account under the Fund. shall file with the
Board the information that it shall require to establish his riqhts and benefits under the
Fund.
l1
55
Section 9. Section 44 ot Article Vl! of the Related Special Acts of the City of Miami
Beach, is reenacted to read:
Sec. 44. Rights and benefits not subject to encumbrance.
The rights and benefits provided for herein shall not be subject to attachment,
garnishment, execution or any other legal process.
Section 10. Section 45 of Article Vll of the Related Special Acts of the City of Miami
Beach, is amended to read:
Sec. 45. Responsibility of ery gj!y.
The City of Miami Beach shall have no responsibility for the operation of tne fundFunc!
except those specified herein, and shall bear no expense in connection therewith-exeep+cs
Section 11. Section 46 of Article Vll of the Related Specia! Acts of the Gity of Miami
Beach, is amended to read:
Sec. 46. Duties of eiffGjfr attorney.
The eity City attorney shall advise the beard Board in all matters pertaining to their duties
in the administration of the fund Fund, whenever requested; and shall represent and defend the
beerd Board in all suits and actions at law, or in equity, that may be brought against it; and shall
bring all suits and actions in its behalf that may be determined upon by the beaC Board.
Anvthinq herein to the contrarv notwithstandinq, the Board mav elect to emplov independent
legal counsel as it deems necessarv.
Section 12. Section 47 of Article Vll of the Related Special Acts of the City of Miami
Beach, is amended to read:
Sec. 47. Separabilityi_amendme4!.
lf any pe*ie+er+e+iens provision of this Act is for any reason held unconstitutional.
inoperative or void, such holdinq shall ffi, not affect the remaining
pe*iens-sn++ave provisions set forth herein.
As described in Section 36, the sem€{€r€e provisions of this ordinance and effeet-as
@ren the Fund are intended to meet the requirements of a qualified plan
under Section 401(a) of the Code and to be tax-exempt under Section 501(a) of the Code.
Should anv chanoes be required to complv or to continue to
complvwith the provisions of Sections 401(a) and 501(a) of the Code, the Board and the Citv
shall take all appropriate steps to make anv such required chanqes to the Fund.
t2
56
Section 13. Section 48 of Article Vll of the Related Specia! Acts of the Gity of Miami
Beach, is amended to read:
Sec. 48. Repeal of conflicting !aws.
That all All Citv laws. acts and ordinan or parts of Citv laws, acts or ordinances. inconflict hereby are, repealed.
Section 14. Codification. This Ordinance shall be codified in Article Vll of the Related Special
Acts of the City of Miami Beach.
Section 15. Effective date. This Ordinance shall take effect ten days following adoption,
except as otherwise specified herein.
PASSED and ADOPTED by the City Commission of the Gity of Miami Beach this day
2015.
PHILIP LEV!NE
MAYOR
ATTEST:
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTTON
RAFAEL E. GRANADO
CITY CLERK
(Sponsored by Gommissioner Deede Weithorn)
Underscore denotes new lanquaoe
ilr5';
Dote
13
57
City of Miomi Beoch, 1700 Convention Center Drive, Miomi Beoch, Florido 33I39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members df the City
FROM: Jimmy L. Morales, City Manager
DATE: May 20,2015
SUBIECT:AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
M!AM! BEACH, FLORIDA, AIUIFND|NG AND RESTATTNG THE MtAMt BEACH
EMPLOYEES' RETIREMENT PIAN CREATED BY ORDTNANCE NO. 2006.3504,
AS SUBSEQUENTLY AMENDED, By AMENDTNG SECTIONS 2, 4, 5, 11, and 12
OF THE PLAN TO COMPLY WITH APPLICABLE PROVISIONS OF THE
INTERNAL REVENUE CODE AND REGULATIONS THEREUNDER, AND
DELETING OUTDATED LANGUAGE; PROVIDING FOR SEVERABILITY;
REPEALING ALL ORDINANCES lN CONFLICT THEREWITH; AND PROVIDING
AN EFFECTIVE DATE.
HISTORY/BACKGROUND
The attached Ordinance is sponsored by Commissioner Deede Weithorn and provides
amendments to the Miami Beach Employees' Retirement Plan (MBERP) in order for the Plan to
comply with the applicable qualification standards under lnternal Revenue Code (lRC) section
401(a) and for the Plan to retain its qualified status. The Ordinance makes various technical
amendments to the MBERP to comply with IRC qualification standards for a retirement plan. As
noted in the attached Memorandum from pension counsel, the proposed amendments are required
by the IRC and lnternal Revenue Service (lRS) regulations for the Plan to retain its qualified status.
ANALYSIS
A summary of the proposed changes to the Plan is set forth in pension counsel's attached
Memorandum.
ln addition to the technical amendments required for IRC and IRS compliance, the
Ordinance provides a restatement of the entire Plan in one document, pursuantto pension counsel's
recommendation, to reflect all ordinance amendments to the Plan that have been adopted since the
Plan was established in 2006.
FINANCIAL IMPAGT
The City's pension counsel has opined that the amendments should not result in any fiscal
impact to the Plan or to the City. However, pursuant to the Florida Statutes, an actuarial impact
statement is needed and will be provided prior to adoption on second reading.
Agenda ltem F SI\ -DateEOf58
TO:
FROM:
DATE:
RE:
LEWIS, LONCMAN & WALKER, P.A.
All()itNtYsAIIA\r\,
REPLYTo: TALLAHASSEE
MEMORANDUM
Raul J. Aguila, City Attomey
City of Miami Beach
Jim Linn and Jennifer Cowan
I|u[.ay 14,2015
Miami Beach Employees' Retirement Plan - Internal Revenue Code Compliance
Amendments
As requested, we have reviewed the proposed amendments to the Miami Beach Employees'
Retirement Plan enclosed with Robert Friedman's letter of February 2,2015. In our opinion, the
proposed amendments are required by the Internal Revenue Code and IRS regulations, in order
for the Plan to retain its qualified status and receive a favorable determination letter from the
IRS.
The amendments are technical in nature, and include the following provisions:
o Revised definition of o'actuarial equivalent" (section 2.02)o A reference to IRS regulations on differential wage payments (section 4.02).o A provision incorporating Internal Revenue Code requirement that upon a member's
attainment of the normal retirement date the member's benefits under the plan are fully
vested and non-forfeitable (section 5.0 1 (a)7).o A provision incorporating Intemal Revenue Code requirements concerning death benefits
payable to a member who dies during qualified military service (section 5.08).o Deletion of outdated language concerningthe200T-08 early retirement incentive program
(sections 5.12 arrd 5.13(b)14).o A provision incorporating the maximum benefit limitations of Section 415 of the Internal
Revenue Code (section 5.13(b)15).o A provision incorporating Internal Revenue Code requirements concerning the
corrmencement of benefits (section 1 1.07).
Helping Shape Florido's Futureo
T,lvrpl Bny
l00l 3d Avenue west
Suite 670
Bradenton, FL 34205
(941) 7084040
Fax: (941) 7084024
JACKSoNvILLE
245 Riverside Avenue
Suite 150
Jacksonville, FL32202
(904) 353-64r0
Fax: (9M) 353-7619
TALLAHASSEE
2600 Centennial Place
Suite 100
Tallahassee, FL 32308-0572
(850)222-5102
Fax: (850) 224-9242
www.llw-law.com
WESTPALMBEACH
1700 Palm Beach Lakes Blvd.
Suite 1000
West Palm Beach, FL 33401
(561) 640-0820
Fax: (561) @0-8202
59
}u4ay 14,2015
Page2
o Provisions incorporating Internal Revenue Code requirements distributions and rollovers
from the plan (section 12.02).
The ordinance also reflects our recommendation that the retirement plan be restated to
incorporate all amendments that have been adopted since the plan was established in 2006 in one
document. All the ordinances creating and amending the plan are listed at the end of the
ordinance.
An Intemal Revenue Service "determination letter" is issued by the IRS in response to a request
as to the qualified status of a retirement plan under IRC section 401(a). The determination letter
expresses the Service's opinion regarding the form of the plan, and applies only to the employer
and the plan participants on whose behalf it was issued. The IRS issued a favorable
determination letter for the Miami Beach Employees' Retirement Plan on October 15,2014,
conditioned on adoption of the amendments contained in this ordinance.
While public employers that sponsor retirement plans are not required to apply for a
determination letter, receiving a favorable determination letter provides documentation that the
plan satisfies the applicable qualif,rcation standards.
There are several legal and practical advantages to obtaining a determination letter. One legal
advantage is that an IRS determination letter provides a definitive analysis of whether a plan is
qualified. It also provides the basis for retroactive relief if the Service later changes its position.
One practical advantage of obtaining a determination letter is that the City's auditors will be less
likely to question the qualified status of the Plan.
We have prepared an ordinance incorporating the IRC compliance amendments. The
amendments are technical in nature, and should not result in additional cost to the Plan or the
City.
In accordance with section 112.63(3), Florida Statutes, an actuarial impact statement will need to
be prepared before the IRC compliance ordinance is adopted on second reading.
Please let us know if you have any questions.
60
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING AND
RESTATING THE MIAMI BEACH EMPLOYEES' RETIREMENT
PLAN CREATED BY ORDINANCE NO. 2006-3504, AS
SUBSEQUENTLY AMENDED, BY AMENDING SECTIONS 2, 4, 5,
11, AND 12 OF THE PLAN TO COMPLY WITH APPLICABLE
PROVISIONS OF THE INTERNAL REVENUE CODE AND
REGULATIONS THEREUNDER, AND DELETING OUTDATED
LANGUAGE; PROVIDING FOR SEVERABILITY; REPEALINGALL ORDINANCES lN CONFLICT THEREWITH; AND
PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA:
Section 1. The Miami Beach Employees' Retirement Plan created by Ordinance
2006-3504, as subsequently amended, is hereby restated, and amended as
fo!!ows:
Section 1. Creation and Purpose of the Retirement Plan
1. A retirement system is hereby created under and by authority of Chapter
18691 , Laws of Florida, Acts of 1937 , as amended, by merging the
"RETIREMENT SYSTEM FOR GENERAL EMPLOYEES OF THE CITY OF
MIAMI BEACH" created by Ordinance 1901 , as amended (hereinafter referred toas the "Classified System"), with the "RETIREMENT SYSTEM FOR
UNCLASSIFIED EMPLOYEES AND ELECTED OFFICIALS OF THE CITY OF
MIAMI BEACH" created by Ordinance 88-2603, as amended (hereinafter
referred to as the "Unclassified System"), to form the "MlAMl BEACH
EMPLOYEES' RETIREMENT PLAN" which shall be hereinafter referred to as the
"Plan" or the "Retirement Plan." Any references to the Classified System or
Unclassified System in any other provision of the City Charter, Code of
Ordinances, ordinances or resolutions shall be construed to apply to this Plan in
the same manner as applied to the Classified System or Unclassified System.
2. The purpose of the Retirement Plan is to provide retirement and other
related benefits for eligible employees and elected officials of the City and their
beneficiaries or dependents.
Section 2. Definitions
For purpose of the Retirement Plan, certain words and phrases shall have
the meanings ascribed to them in this Article except when the context othenruise
requires. The masculine pronoun, wherever used, shall include the feminine.
61
2.01 "Accumulated Employee Contributions" means the required contributions
paid by any Member as provided in Section 6.2 or credited to the Member
pursuant to Section 6.1(b), together with any interest allowed thereon under this
Plan or previous City retirement system, until such time as the Employee's
service with the City is terminated at the rate, compounded annually, as
determined by the Board from time to time.
2.02 "Actuarial Equivalent" means equivalent when computed at 8.0% interest
per annum on the basis of the RP 2000 Combined Healthy Participant Mortality
Tables with a blendinq of 65% male rate and 35% female rates@
the basis ef mertality tables last adepted by the Beard ef Trustees.
2.03 "Beneficiary" means, the surviving person or persons designated as such
by a Member or Retirant in the last written designation on fib with the Board in
accordance with Section 5.10 (g); in the absence of such survivor or such
designation, it means the estate of the deceased Member or Retirant, as the
case may be.
2.04 "Board of Trustees" or "Board" means the managing board of the Plan as
provided for in Article Vll.
2.05 "City" or "Employer" means the City of Miami Beach, Florida.
2.06 "City Commission" or "Commission" means the City Commission of the
City of Miami Beach, Florida.
2.07 "Classified Employee" means an Employee who is employed in a
classified position under the City of Miami Beach Civil Service Act.
2.08 "Creditable Service" means service credited to a Member under the Plan
as provided in Article lV.
2.09 "Defined Contribution Retirement System" means a plan established by
the City pursuant to Ordinance 92-2813.
2.10 "Domestic Partner" means a person with whom a member has entered
into a domestic partnership as defined in Section 62-126 of the City Code, and
registered and documented according to the requirements of Section 62-127 of
the City Code.
2.11 "Earnings" means base pay, including longevity pay, for personal services
rendered as an Employee, but excluding any payment of overtime, shift
differential or extra compensation allowances such as uniform allowances.
Notwithstanding the foregoing, in the case of any Member who is in a
classification within the CWA bargaining unit who entered service with the City
prior to February 21, 1994 as a Classified Employee, and who was continuously
a member of the Classified System from that date until March 18, 2006,
"Earnings" shall include overtime pay up to a maximum of ten percent (10o/o\
62
above the Member's highest pensionable earnings each year. The definition of
Earnings in the preceding sentence shall apply to Employees in classifications
within the AFSCME bargaining unit who entered the service of the City prior to
April 30, 1993 and to employees in classifications within the GSA bargaining unit
who entered the service of the City prior to August 1, 1993, and who were
Members of the Classified Plan continuously from that date until March 18, 2006,
upon the ratification of a collective bargaining agreement that contains such
definition. Earnings in excess of the limitations set forth in Section aU@)(17\ of
the lnternal Revenue Code, and regulations promulgated thereunder, shall be
disregarded, and no member contributions shall be required on any such excess
2.12 "Elected Officials" means the Mayor, and the members of the City
Commission of the City of Miami Beach.
213 "Employee" means any person employed by the City on a regular basis
who is receiving compensation from the City for personal services, exclusive of
the following groups and classifications:
(a) Persons whose services are compensated on a contractual basis.
(b) Persons employed on a provisiona!, original probationary or other
temporary basis.
(c) Members of boards or commissions, officers, or employees
receiving no salary or a nominal salary on a fee basis.
(d) Members of the City Pension Fund for Firemen and Policemen or
the City Supplemental Pension Fund for Firemen and Policemen in the
City of Miami Beach.
(e) Persons whose regular employment with the City is for less than
thirty (30) hours per week. Provided, however, all persons who were on
the membership rolls of the Classified System as of August 31, 1992 and
became Members of this Plan on March 18, 2006, whose regular
employment is for less than thirty (30) hours per week may continue as
Members of this Plan.
"Employee" also means any person employed on a regular basis for thirty (30) or
more hours per week by the Miami Beach Visitor and Convention Authority, this
Retirement Plan, the Classified Plan, the Unclassified Plan or the City Pension
Fund for Firemen and Policemen.
2.14 (a) "Final Average Monthly Earnings" means one-twelfth of the
average annual earnings of the Member during the two highest paid years
of creditable service except as othenruise provided in this Section 2.14.
Notwithstanding the foregoing, for any Member who became a Member of
the Unclassified System prior to October 18, 1992 and was continuously a
oon,n,,,-,'"mber
of the Unclassified system from that date until March 18' 2006'
63
"Final Average Monthly Earnings" means one-twelfth of the average
annual earnings of the Member during the two highest paid years of
creditable service but shall not in any event be less than one-twelfth of the
earnings of the Member during the twelve months immediately preceding
March 18, 2006.
(b) Notwithstanding Section 2.14(a) above, effective September 30,
2010, "FinalAverage Monthly Earnings" means:
1) For those Members who as of September 30, 2010 have
attained normal retirement age or are within twenty-four (24)
months from normal retirement age, "Final Average Monthly
Earnings" shall have the same meaning as in Section 21a@)
above.
2) For those Members who as of September 30, 2010 are between
twenty-four (24) and thirty-six (36) months from normal retirement
age, "Final Average Monthly Earnings" means one-twelfth (1112) of
the average annual earnings of the Member during the three (3)
highest paid years of creditable service.
3) For those Members who as of September 30, 2010 are between
thirty-six (36) and forty-six (46) months from normal retirement age,
"Final Average Monthly Earnings" means one-twelfth (1112) of the
average annual earnings of the Member during the four (4) highest
paid years of creditable service.
4) For those Members who as of September 30, 2010 are more
than forty-eight (48) months from normal retirement age, "Final
Average Monthly Earnings" means one-twelfth (1112) of the
average annual earnings of the Member during the five (5) highest
paid years of creditable service.
(c) Effective April 23, 2014, Members within classifications in the
AFSCME bargaining unit who were hired prior to September 30, 2010,
may elect to retire for purposes of the Plan but continue employment with
the City for up to sixty (60) months, and have their monthly retirement
benefit paid into a DROP account during the DROP period, in accordance
with Section 5.13.
2.15 "Finance Director" means the Finance Director of the City of Miami Beach
as appointed by the City Manager or such person designated by the City
Manager to perform the duties of Finance Director.
216 "Member" means any Employee included in the membership of the Plan,
as provided in Article lll. A Member who retires shall be deemed a retired
member or a retirant.
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2.17 "Pension" means the monthly amount payable to a Pensioner under the
Plan; the pension shall be due as of the first day of the calendar month next
following the death of the Member or Retirant and shall cease after the payment
due on the first day of the month in which the Pensioner ceases to be entitled
thereto according to the provisions of this Ordinance.
2.18 "Pensioner" means the dependent beneficiary of a Member or Retirant in
receipt of a pension under the Plan as the result of the death of a Member or
Retirant of this Plan, the Classified or Unclassified System, or the Predecessor
System.
2.19 "Physical Examiners" means the physicians provided for in Section 8.060).
2.20 "Predecessor system" means the Retirement System governed by
Ordinance No. 845 as in effect prior to the adoption of the Classified System and
the Unclassified System.
2.21 "Regular lnterest" means interest at the rate or rates determined by the
Board of Trustees as provided in Section 8.6(d).
2.22 "Retirant" means a person in receipt of retirement allowance payments
under the Plan on the basis of his service as an Employee.
2.23 "Retirement allowance" means monthly payments under the Plan to a
Retirant during his lifetime; monthly payments shall be due as of the first day of
each calendar month and shall cease after the payment as of the first day of the
month in which the Retirant's death occurs.
2.24 "Retirement Plan" or "Plan" means the Miami Beach Employees
Retirement Plan created by this ordinance.
2.25 "Unclassified Employee" means an Employee who is employed in a
position that is not a classified position under the City of Miami Beach Civil
Service Act.
2.26 Deferred Retirement Option Plan (DROP) - A program under which a
Member who has reached the normal retirement date may elect to retire for
purposes of the Plan but continue employment with the City for up to thirty-six
(36) months, and have his/her monthly retirement benefit paid into a DROP
account during the DROP period, in accordance with Section 5.13.
Notwithstanding the preceding sentence:
(a) Effective July 17,2013, Members within classifications in the CWA
bargaining unit who were hired prior to October 27, 2010, and Members
not included in any bargaining unit, who were hired prior to September 10,
2010, may elect to retire for purposes of the Plan but continue
employment with the City for up to sixty (60) months, and have their
monthly retirement benefit paid into a DROP account during the DROP
o049487 5-2
65
period, in accordance with Section 5.13.
(b) Effective October 16, 2013, Members within classifications in the
GSAF bargaining unit who were hired prior to July 14,2010, may elect to
retire for purposes of the Plan but continue employment with the City for
up to sixty (60) months, and have their monthly retirement benefit paid into
a DROP account during the DROP period, in accordance with Section
5.1 3.
(c) Effective Apri! 23, 2014, Members within classifications in the
AFSCME bargaining unit who hired prior to September 30, 2010, may
elect to retire for purposes of the PIan but continue employment with the
City for up to sixty (60) months, and have their monthly retirement benefit
paid into a DROP account during the DROP period, in accordance with
Section 5.13.
For members in classifications within the American Federation of State, County
and Municipal Employees ("AFSCME") and Communications Workers of America
("CWA") bargaining units, the terms in this Plan shall have the same meanings
as in Ordinance 789, the Classified Employee's Salary Ordinance, except as
othenryise specifically provided in this Plan.
Section 3. Membership
3.01 Every person who on March 18,2006 was a Retirant, Pensioner, or
vested former member under the Classified System, Unclassified System or
Predecessor System shall automatically become on such date a Retirant,
Pensioner or vested Member, as applicable, under this Plan, and shall continue
to receive or receive in the future under this Plan the benefits paid or payable
under the Classified System, Unclassified System, or Predecessor System.
Every person who on March 18, 2006 was a Member of the Classified System or
Unclassified System shall automatically become on such date a Member of this
Retirement Plan. Any written designation of beneficiary or dependent beneficiary
in effect under the Classified System, Unclassified System or Predecessor
System on March 18,2006 shall continue to be in effect under this Plan unless
subsequently changed or revoked by the Member or Retirant, in writing, in
accordance with the provisions of this Plan Ordinance.
3.02 Any person, other than as provided in Section 3.3 herein, who becomes
an Employee on or after March 18, 2006 shall be a Member of this Plan as a
condition of his employment or office, as of the first day of City employment. An
Employee's acceptance of employment with the city shall constitute authorization
for the city to deduct contributions from the Earnings of the Employee in
accordance with Section 6.02. unless and until the Employee elects not to
participate in this Plan to Section 3.03.
6
66
3.03 Any person serving as an Elected Official, City Manager or City Attorney
shall have the option to reject membership in this Plan, and to participate in
another plan that is approved by the City Commission. Any employee in a
classification within the AFSCME or GSA bargaining units who enter the service
of the City on or after March 18, 2006, and who would otherwise become a
Member of this Retirement Plan, shall have an irrevocable option to reject
membership in this Plan, and elect instead to participate in the Defined
Contribution Retirement System, until such time as a collective bargaining
agreement is ratified that provides for mandatory participation in this Plan.
3.04 An Employee shall cease to be a Member if he dies, retires, ceases to be
an Employee as defined in Section 2.13 herein for any other reason, or elects not
to participate in this Plan in accordance with Section 3.03.
3.05 Any Employee who previously elected to participate in the Defined
Contribution Retirement System, or a defined contribution retirement plan
established for employees of the Miami Beach Visitor and Convention Authority,
the Classified Plan, the Unclassified Plan or the City Pension Fund for Firemen
and Policemen, priorto March 18, 2006 shall have a one-time, irrevocable option
to transfer to this Plan by filing a written election with the Board within six months
from March 18, 2006, but in no event later than the last day of employment.
Employees who elect to participate in this Plan pursuant to this Section 3.5 may
purchase Creditable Service under the Plan for all or a portion of the period of
their participation in the Defined Contribution Retirement System, or a defined
contribution retirement plan established for employees of the Miami Beach Visitor
and Convention Authority, the Classified Plan, the Unclassified Plan or the City
Pension Fund for Firemen and Policemen, in accordance with Section 4.04.
Notwithstanding the foregoing, Employees in classifications within the AFSCME
and GSA bargaining units who previously elected to participate in the Defined
Contribution Retirement System, shall not be eligible to participate in this Plan
unless and until a collective bargaining agreement is ratified that provides for
such participation.
Section 4. Creditable Service
4.01 Each Employee who was a member of the Classified System or
Unclassified System and becomes a Member of this Plan on March 18, 2006
shall be credited with the same amount of creditable service under this Plan to
which the member was credited as of such date under the Classified System or
Unclassified System. A Member shall be credited with creditable service for all
periods of service as an Employee on or after March 18,2006 during which the
Member makes contributions to the Plan in accordance with Article 6. The
creditable service of a Member shall not include service prior to the date the
member elects to receive a refund of Accumulated Employee Contributions in
accordance with Section 5.9 (a).
7
67
4.02 A member who separates from City employment for active duty service in
the Armed Forces of the United States, the United States Merchant Marine or the
United States Coast Guard, voluntarily or involuntarily, shall be entitled to
creditable service under the Plan for the period of such service, provided:
(a) The Member must return to City employment within one (1) year
from the earlier of the date of military discharge or release from active
service, unless othenruise provided by the Uniformed Services
Employment and Reemployment Rights Act (USERRA), (P.L. 103-353).
(b) The Member is entitled to reemployment with the City under the
provisions of the Uniformed Services Employment and Reemployment
Rights Act (USERRA), (P.1. 103-353).
(c) The member pays into the Plan the amount of contributions that
would have been required had the Member remained continuously
employed by the City, based on the member's earnings on the date of
separation from City employment.
(d) The maximum amount of creditable service available under this
paragraph shall be five (5) years.
ln addition, for years beqinnino after December 31.2008. (i) an individual
receivinq a differential waoe pavment, as defined in Section 3401(hX2) of the
lnternal Revenue Code, shall be treated as an emplovee of the emplover making
the payment. (ii) the differential waqe pavment shall be treated as compensation,
and (iii) the plan shall not be treated as failins to meet the requirements of any
provision described in Section 414(uX1XC) of the lnternal Revenue Code by
reason of anv contribution or benefit which is based on the differential waqe
pavment.
4.03
(a) A Member with five (5) or more years of creditable service may, at
any time prior to retirement, elect to purchase up to a maximum of two (2)
years of additional creditable service may at any time prior to retirement
elect to purchase a maximum of two years of additional creditable service
as provided in Section 4.03. Notwithstanding any provision of this Section
4.03, effective September 30, 2013, Members whose classification is
included in the CWA bargaining unit and Members who are not included in
any collective bargaining unit shall not be eligible to purchase additional
creditable service under this Section 4.03. Notwithstanding any provision
of this Section 4.03, effective September 30, 2013, Members whose
classification is included in GSAF bargaining unit shall not be eligible to
purchase additional creditable service under this Section 4.03.
Notwithstanding any provision of this Section 4.03, effective April 23,
2015, Members whose classification is included in the AFSCME
68
bargaining unit shall not be eligible to purchase additional creditable
service under this Section 4.03. The benefit multiplier that the Member is
earning at the time of the election to purchase additional creditable service
pursuant to this Section 4.03 shall be applied to the additional credited
service purchased. To be eligible to purchase additional creditable
service under this Section 4.03, a Member who previously elected to
participate in the Defined Contribution Retirement System (401(a) Plan)
must first purchase all available creditable service in accordance with
Section 4.4. An eligible Member may elect to purchase additional
creditable service under this Section 4.3 for any of the following types of
employment prior to the employee's date of hire by the City, provided that
the Member may not purchase such service if the Member has received or
will receive a pension benefit for the same period of employment under
another retirement plan :
1) Active duty military service in the Armed Forces of the
United States or the Coast Guard.2) Full-time employment with another governmenta! entity.3) Full-time employment in the private sector performing the
same or very similar duties the employee is performing for the City
at the time of his/her election to purchase additional service.
(b) ln order to receive the additional creditable service, the Member
shall pay ten percent (10Vo) of his/her annual rate of pensionable
Earnings, multiplied by the number of years and fractions of a year
purchased, up to a total of two years. For the purpose of this section, the
annual rate of pensionable earnings shall be the rate in effect on the date
of payment and shall include the annual amount of overtime pay for those
Members whose overtime pay is included in Earnings. Payment shall be
made in a single lump sum to the Plan within six (6) months following the
date of the member's election to purchase the additional service.
Notwithstanding the preceding sentence, effective July 17, 2013,
Members whose classification is included in the CWA bargaining unit and
Members who are not included in any collective bargaining unit shall make
payment in a single lump sum to the Plan within twelve (12) months
following the date of the Members election to purchase the additional
service.
(c) For purposes of this Section 4.3, Members may use the value of
accrued sick and/or annual leave for the purchase of additional creditable
service, as follows. Accrued sick leave may be used at the rate of 2
hours of accrued sick leave for the value of each hour used toward the
purchase, provided that the Member must retain at leasl 120 hours of
accrued sick leave after the purchase. Annual leave may be used at the
rate of t hour of accrued annual leave for the value of each hour used
toward the purchase. The total amount of sick and annual leave used for
the purchase of additional creditable service under this Section 4.03 shall
69
be deducted from the maximum amount of leave allowed for payout to the
Member upon termination of employment.
(d) Members may pay for some or all of the cost of additional
creditable service purchased pursuant to this Section 4.03 by direct
transfer or rollover of funds from a 401 (a) or 457 plan, provided the
401(a) plan or 457 plan permits such direct transfers.
(e) Notwithstanding the forgoing, Employees in classifications within
the AFSCME bargaining unit and the GSA bargaining unit shall not be
eligible to purchase additional creditable service under this Section 4.03
unless and until a collective bargaining agreement is ratified that provides
for such purchase.
(f) Amounts paid or transferred to this Plan for the purchase of
creditable service under this Section 4.03 shall be considered
accumulated employee contributions as that term is defined herein, and
Members shall be 10Oo/o vested in such amounts.
(g) Notwithstanding any other provision of this Section 4.3, in no event
may the maximum benefit percentage applicable to the member be
exceeded as the result of any purchase of creditable service.
4.04 Purchase of Creditable Service by Members Who Previously Participated
in the Defined Contribution Retirement System.
(a) Any Employee who previously elected to participate in the Defined
Contribution Retirement System (401(a) Plan) prior to March 18, 2006,
and who becomes a Member of this Plan on or after March 18, 2006, may
purchase Creditable Service under this Plan for all or a portion of the
period of their participation in the Defined Contribution Retirement System,
by paying into the Plan an amount equal to the sum of the required
employer and employee contributions to the Classified Plan or
Unclassified Plan (whichever plan in which the Member was eligible to
participate) for each fiscal year of service, or portion thereof, purchased,
as reflected in the actuarial valuation report for that year; plus interest at
the rate of 8.5 percent for Classified Employees and 9.0 percent for
Unclassified Employees, calculated from the end of each applicable fiscal
year through the date of payment. Notwithstanding the preceding
sentence, for any Creditable Service purchased pursuant to this
subsection (a) that relates to employment during the 2005-2006 fiscal
year, if full payment for such service is made on or before May 1, 2006,
the payment amount for such service shall be twenty percent (20Yo) of the
Employee's earnings for the period purchased, with no interest on the
amount paid for such service. ln any event, full payment all service
purchased pursuant to this subsection (a) must be made within six (6)
months from March 18, 2006 and cost estimates have been provided to
10
70
the Employee, but in no event later than the last day of employment. ln
the case of an employee who elects to transfer or roll over assets from the
Defined Contribution Retirement System to purchase creditable service
pursuant to this subsection (a), the requirements of the preceding
sentence as to such assets shall be satisfied by the employee's
irrevocable authorization to transfer or roll over such assets, executed on
or before the last day of employment. Each employee electing this option
may purchase creditable service under this Plan for the period from the
date the employee entered the Defined Contribution Retirement System
through the effective date of membership in this Plan, or any portion
thereof. !f a Member elects to purchase less than the full period of
participation in the Defined Contribution Retirement System, the first
period of purchase shall be for the same fiscal year in which the Employee
was first authorized to purchase service pursuant to this subsection (a),
the second period of purchase shall be for the immediately preceding
fiscal year and so on, until the Member purchases the amount of
creditable service desired. A Member shall not be permitted to select
those years that result in the lowest purchase amount. Notwithstanding
any other provision of this Section 4.4, tn no event may the maximum
benefit percentage applicable to the member be exceeded as the result of
any purchase of Creditable Service.
(b) Any Employee who previously elected to participate in a defined
contribution retirement plan established for employees of the Miami Beach
Visitor and Convention Authority, the Classified Plan, the Unclassified
Plan or the City Pension Fund for Firemen and Policemen, prior to March
18, 2006, and who becomes a Member of this Plan on or after March 18,
2006, may purchase Creditable Service under this Plan for all or a portion
of the period of their participation in such defined contribution retirement
plan on or after October 18, 1992, during which such Member was
employed on a regular basis for thirty (30) or more hours per week, by
paying into the Plan an amount equal to the sum of the required employer
and employee contributions to the Classified Plan for each fisca! year of
service, or portion thereof, purchased, as reflected in the actuarial
valuation report for that year; plus interest at the rate of 8.5 percent
calculated from the end of each applicable fiscal year through the date of
payment. Notwithstanding the preceding sentence, for any Creditable
Service purchased pursuant to this subsection (b) that relates to
employment during the 2005-2006 fiscal year, if full payment for such
service is made on or before May 1, 2006, the payment amount for such
service shall be twenty percent (20Yo) of the Employee's earnings for the
period purchased, with no interest on the amount paid for such service. !n
any event, full payment for all service purchased pursuant to this
subsection (b) must be made within six (6) months after March 18, 2006
and cost estimates have been provided to the Employee, but in no event
later than the last day of employment. ln the case of a Member who
elects to transfer or roll over assets from a defined contribution retirement
11
71
plan established for employees of the Miami Beach Visitor and Convention
Authority, the Classified Plan, the Unclassified Plan or the City Pension
Fund for Firemen and Policemen to purchase creditable service pursuant
to this subsection (b), the requirements of the preceding sentence as to
such assets shall be satisfied by the Member's irrevocable authorization to
transfer or roll over such assets, executed on or before the last day of
employment. !f a Member elects to purchase less than the full period of
participation in the defined contribution retirement plan, the first period of
purchase shall be for the same fiscal year in which the Employee was first
authorized to purchase service pursuant to this subsection (b), the second
period of purchase shall be for the immediately preceding fiscal year and
so on, until the Member purchases the amount of creditable service
desired. A Member shall not be permitted to select those years that result
in the lowest purchase amount. Notwithstanding any other provision of
this Section 4.4, in no event may the maximum benefit percentage
applicable to the Member be exceeded as the result of any purchase of
creditable service,
(c) A Member who elects to purchase creditable service under this
Section 4.4 may pay for such service in one or a combination of the
following manners:
1) Direct transfer or rollover from the Defined Contribution
Retirement System, 457 plan or other eligible plan in accordance
with Section 12.3, provided the other retirement system or plan
permits such direct transfers or rollovers for the purchase of
creditable service under this Plan. The full value of assets,
including any outstanding loans, transferred from a Member's
account in the Defined Contribution Retirement System, or from a
defined contribution retirement plan established for employees of
the Miami Beach Visitor and Convention Authority, the Classified
Plan, the Unclassified Plan or the City Pension Fund for Firemen
and Policemen that permits such direct transfers or rollovers for the
purchase of creditable service under this Plan, will be credited
toward the purchase of creditable service under this Section 4.4. A
Member must pay off any loan balance existing at the time of
transfer from the Defined Contribution Retirement System, or from
a defined contribution retirement plan established for employees of
the Miami Beach Visitor and Convention Authority, the Classified
Plan, the Unclassified Plan or the City Pension Fund for Firemen
and Policemen, by making payments to this Plan in the same
manner and at the same rate of interest as the payments that were
made to the Defined Contribution Retirement System or defined
contribution retirement plan prior to the transfer. ln the event full
payment of all outstanding loan balances is not made prior to
termination of employment, the Member's creditable service shall
be adjusted to reflect the payments actually made.
12
72
2) Cash Payment.
3) A Member who is employed by the City at the time creditable
service is purchased pursuant to this Section 4.4 may use the value
of accrued sick and/or annual leave as follows. Accrued sick leave
may be used at the rate of 2 hours of accrued sick leave for the
value of each hour used toward the purchase, provided that the
Member must retain at least 120 hours of accrued sick leave after
the purchase. Annual leave may be used at the rate of t hour of
accrued annual leave for the value of each hour used toward the
purchase. The total amount of sick and annual leave used for the
purchase of additional creditable service under this Section 4.4
shall be deducted from the maximum amount of leave allowed for
payout to the Member upon termination of employment.
(d) Amounts paid or transferred to this Plan for the purchase of
creditable service under this Section 4.4, excluding any outstanding loan
balances, shall be considered accumulated employee contributions as that
term is defined herein, and Members shall be 100% vested in such
amounts.
(e) Notwithstanding any other provision of this Section 4.4, the
provisions of this Section 4.4 shall not apply to Employees within
classifications in the AFSCME and GSA bargaining units until a collective
bargaining agreement containing such provisions is ratified. If a collective
bargaining agreement applying the provisions of this Section 4.4 to
Employees within classifications in the AFSCME or GSA bargaining units
is ratified on or before April 1, 2006, for any Employee who purchases
Creditable Service purchased pursuant to subsection (a), above, that
relates to employment during the 2005-2006 fiscal year, and makes full
payment for such service within sixty (60) days following ratification of the
collective bargaining agreement, the payment amount for such service
shall be twenty percent (20Yo) of the Employee's earnings for the period
purchased, with no interest on the amount paid for such service.
4.05 Purchase of Creditable Service by Members Who Previously had
Creditable Service Under the Classified Plan.
(a) Any Employee who was employed on March 18, 2006, and
becomes a Member of this Plan on or before September 18,2006, and
who previously had creditable service under the Classified Plan but who
separated from employment as a Classified Employee prior to becoming
fully vested in the Classified Plan, may purchase Creditable Service under
this Plan for all or a portion of the period of their creditable service under
the Classified Plan, by paying into the Plan an amount equal to the sum of
the required employer and employee contributions to the Classified Plan
for each fiscal year of service or portion thereof purchased, plus interest at
0049487 5 -2 13
73
the rate of eight and one-half percent (8.5%) from the end of each
applicable fiscal year through the date of payment. Full payment must be
made within six (6) months after March 18, 2006.
(b) Notwithstanding the provisions of subsection (a), above, any
Employee who was employed on March 18, 2006 and becomes a Member
of this Plan on or before September 18, 2006, and who was promoted
from a classified position to an unclassified position with no break in City
service prior to March 18. 2006 and received a refund of member
contributions from the Classified Plan, may purchase Creditable Service
under this Plan for all or a portion of the period of their creditable service
under the Classified Plan, by paying into the Plan an amount equal to ten
percent (10%) of their annual rate of pensionable Earnings, multiplied by
the number of years and fractions of a year purchased, plus interest at the
rate of 9.0% calculated from the end of each applicable fiscal year through
the date of payment. Full payment for Creditable Service purchased
pursuant to the preceding sentence must be made within six (6) months
from March 18, 2006.
(c) Notwithstanding any provision of this Section 4.05, this Section
4.05 shall have no application to persons employed by the Miami Beach
Visitor and Convention Authority, the Classified Plan, the Unclassified
Plan or the City Pension Fund for Firemen and Policemen on March 18,
2006.
4.06 Purchase of Creditable Service for lnitial Probationary Period. Any
Member who did not receive credit under a City retirement plan, other than a
Section 457 plan, during their employment as a provisional or probationary
employee, ffi?y, at any time prior to retirement, purchase Creditable Service
under this Plan for all or a portion of such provisional or probationary
employment, by paying into the Plan an amount equal to member contribution
rate in effect during the period of such provisional or probationary employment,
plus interest compounded annually based on the regular rate of interest in effect
at the time of the purchase. lf the member elects to purchase Credited Service
for less than the entire period of provisional or probationary employment, only the
most recent period of provisional or probationary employment shall be claimed.
Notwithstanding, any other provision of this Section 4.06, in no event may the
maximum benefit percentage applicable to the member be exceeded as the
result of any purchase of Creditable Service.
Section 5. Benefits
5.01 Normal Retirement
(a) Normal Retirement Date
1) Except as othenrise provided in this subsection (a), the
14
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normal retirement date shall be the first day of the calendar month
coincident with or next following the attainment of age fifty-five (55)
and completion of five (5) or more years of creditable service.
2) Notwithstanding the provisions of paragraph (1), above, the
normal retirement date of a Member who became a member of the
Unclassified System prior to October 18, 1992 and was
continuously a member of the Unclassified System from that date
until March 18, 2006, shall be the first day of the calendar month
coincident with or next following the attainment of age fifty (50) and
completion of five (5) or more years of creditable service.
3) Notwithstanding the provisions of paragraph (1), above, the
normal retirement date for Members in classifications within the
CWA (MBEBA) bargaining unit who entered the service of the City
prior to February 21, 1994 and who were Members of the Classified
Plan continuously from that date until March 18, 2006, shall be the
first day of the calendar month coincident with or next following the
attainment of age 50 and completion of five (5) or more years of
creditable service.
4) Notwithstanding the provisions of paragraph (1), above, the
normal retirement date for Members in classifications within the
AFSCME bargaining unit who entered the service of the City prior
to April 30, 1993 and who were Members of the Classified Plan
continuously from that date until March 18, 2006, shall be the first
day of the calendar month coincident with or next following the
attainment of age fifty (50) and completion of five (5) or more years
of creditable service, until a collective bargaining agreement is
ratified that provides a normal retirement date in accordance with
paragraph (1), above.
5) Notwithstanding the provisions of paragraph (1), above, the
normal retirement date for Members in classifications within the
GSA bargaining unit or any Employee classified as "Other" who
entered the service of the City prior to August 1, 1993 and who
were Members of the Classified Plan continuously from that date
until March 18, 2006, shall be the first day of the calendar month
coincident with or next following the attainment of age fifty (50) and
completion of five (5) or more years of creditable service, until a
collective bargaining agreement is ratified that provides a normal
retirement date in accordance with paragraph (1), above.
6) Notwithstanding the provisions of paragraph (1), above, the
normal retirement date for Members in classifications within the
AFSCME bargaining unit who entered the service of the City after
on or April 30, 1993, and Members in classifications within the GSA
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(b)
bargaining unit who entered the service of the City on or after
August 1, 1993, shall be the first day of the calendar month
coincident with or next following the attainment of age sixty (60)
and the completion of ten (10) or more years of creditable service,
until a collective bargaining agreement is ratified that provides a
normal retirement date in accordance with paragraph (1), above.
7) Upon attainment of the Member's normal retirement date as
provided for in this subsection (a). the Member's benefits under this
Plan shall be fullv vested and nonforfeitable.
Normal Retirement Benefit
1) Except as otherwise provided in this subsection (b), the
normal retirement benefit shall be payable to a Member on or after
the normal retirement date in an amount equa! to three percent
(3%) of final average monthly earnings multiplied by creditable
service, up to a maximum of eighty percent (80%) of final average
monthly earnings.
2) Notwithstanding the provisions of paragraph (1) above, the
normal retirement benefit payable to Members in classifications
within the AFSCME bargaining unit who entered the service of the
City prior to April 30, 1993 and who were Members of the Classified
Plan continuously from that date until March 18,2006, shall be
three percent (3%) of final average monthly earnings multiplied by
creditable service for the first fifteen (15) years of such service, and
four percent (4o/o) of final average monthly earnings multiplied by
creditable service for each year in excess of fifteen (15), to a
maximum of ninety percent (90%) of final average monthly
earnings.
3) Notwithstanding the provisions of paragraph (1), above, the
normal retirement benefit payable to Members in classifications
within the CWA (MBEBA) bargaining unit who entered the service
of the City prior to February 21, 1994 and who were Members of
the Classified Plan continuously from that date until March 18,
2006, shall be three percent (3%) of final average monthly earnings
multiplied by creditable service for the first fifteen (15) years of such
seryice, and four percent (4%) of final average monthly earnings
multiplied by creditable service for each year in excess of fifteen
(15), to a maximum of ninety percent (90%) of final average
monthly earnings.
4) Notwithstanding the provisions of paragraph (1), above, the
normal retirement benefit payable to Members in classifications
within the GSA bargaining unit or any Employee classified as
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"Other" who entered the service of the City prior to August 1 , 1993
and who were Members of the Classified Plan continuously from
that date until March 18, 2006, shall be three percent (3%) of final
average monthly earnings multiplied by creditable service for the
first fifteen (15) years of such service, and four percent (4%) of final
average monthly earnings multiplied by creditable service for each
year in excess of fifteen (15), to a maximum of ninety percent
(90%) of final average monthly earnings.
5) Notwithstanding the provisions of paragraph (1), above, the
normal retirement benefit payable to a Member who became a
member of the Unclassified System prior to October 18, 1992 and
was continuously a member of the Unclassified System from that
date until March 18, 2006, shall be four percent (4%) of final
average monthly earnings multiplied by creditable service prior to
that date, and three percent (3%) of fina! average monthly earnings
multiplied by creditable service after that date, up to a maximum of
eighty percent (80%) of final average monthly earnings.
Notwithstanding any other provision of this Plan, in determining the
normal retirement benefit payable to Unclassified Employees,
earnings shall be as defined in Section 2.11 except that annual
payments for unused leave (excluding annual or sick leave) shall
be included.
6) Notwithstanding the provisions of paragraph (1), above, the
normal retirement benefit payable to a Member who has served as
an Elected Official, City Manager or City Attorney shall be four
percent (4o/o) of final average monthly earnings multiplied by the
number of years of creditable service as an Elected Official, City
Manager or City Attorney; and the percentage rate in effect under
the Classified System, Unclassified System or this Plan, as
applicable, for any other periods of City employment multiplied by
the number of years of creditable service in such employment; up
to a maximum of eighty percent (80%) of final average monthly
earnings. Notwithstanding any other provision of this Plan, in
determining the benefit payable under this paragraph (6), earnings
as an Elected Official, City Manager or City Attorney shall include
totalW-2 compensation plus any other payments or allowances, up
to the limitations set forth in Section 401(a)(17) of the lnternal
Revenue Code and regulations promulgated thereunder.
Notwithstanding any other provision of this Plan, the normal
retirement benefit payable to a Member who has served as an
Elected Official and is subsequently employed, without a break in
seryice, by the City in another position as a member of this Plan for
a period of at least five additional years, shall be equal to the sum
of the retirement allowance payable based on the member's
creditable service and final average monthly earnings as an Elected
17
77
Official, plus the retirement allowance payable based on the
member's creditable service and final average monthly earnings for
the period of employment subsequent to service as an Elected
Official, up to a maximum of eighty percent (80%) of final average
monthly earnings during employment subsequent to service as an
Elected Official. ln the event a Member who has served as an
Elected Official and is subsequently employed, without a break in
service, by the City in another position as a member of this Plan for
a period of less than five additional years, such Member shall not
be entitled to a benefit from this Plan for the period of employment
subsequent to service as an Elected Official, but shall be entitled to
a refund of accumulated employee contributions for such period of
service.
5.02 Early Retirement
(a) Any Member who was a member of the Classified System and
became a Memberof this Plan on March 18,2006, may retire priortothe
normal retirement date and receive an early retirement benefit in
accordance with this Section 5.2. To be eligible for an early retirement
benefit, such Member must have attained age fifty (50), and the sum of
the Member's attained age (last birthday) and complete years of creditable
service must not be less than seventy-five (75). The early retirement
benefit shall commence on the first day of the calendar month next
following receipt of written application therefor by the Board.
(b) The early retirement benefit shall be the actuarial equivalent of a
deferred benefit commencing on the Member's normal retirement date and
computed in accordance with Section 5.1 on the basis of final average
monthly earnings and creditable service as of the date of retirement.
5.03 Partial Lump Sum Distribution. A Member who terminates City
employment and retires on or after the normal retirement date and on or after
March 18, 2006, shall have the option of receiving up to twenty-five percent
(25o/o) of the actuarial value of his/her normal retirement allowance in a lump sum
distribution. For example, if a member's normal retirement allowance is $2,000
per month, the Member may elect to receive, in lieu of such monthly benefit, a
monthly benefit in the amount of $1,500 per month plus a single lump sum
distribution equa! to the actuarial value of the other $500 monthly benefit. The
lump sum distribution shall be calculated using the same discount rate, mortality
rates and other assumptions and cost methods used in the most recent actuarial
valuation report for the Plan. The partial lump sum distribution option is
available only to Members who are eligible for a normal retirement allowance,
and is not available in connection with any other benefit payable under the Plan.
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5.04 Vested Retirement Allowance
(a) Any Member who was a member of the Unclassified System and
became a Member of this Plan on March 18, 2006, with five or more years
of creditable service and whose service with the City is terminated prior to
the normal retirement date, shall be eligible for a refund of accumulated
employee contributions; or the member may elect to not receive the refund
but instead, in lieu of a refund of accumulated employee contributions,
apply for a vested retirement allowance in accordance with this Section
5.4.
(b) Any Member who was a member of the Classified System and
became a Member of this Plan on March 18, 2006, whose service with the
City is terminated voluntarily or involuntarily, prior to the date as of which
he would first become eligible for retirement on a normal or early service
retirement allowance shall be entitled, in lieu of a refund of his
accumulated employee contributions, to apply for a vested retirement
allowance in accordance with this Section 5.04.
(c) The vested retirement allowance payable under this Section 5.4
shall be a deferred allowance commencing on the earliest date as of
which a Member, with the years of creditable service upon termination of
employment, would first be eligible for normal retirement benefits, and
shall be equal to the amount computed in accordance with Section 5.1 on
the basis of the Member's final average monthly earnings and creditable
service at the time of termination, and the Member's age as of the date on
which payment of the allowance commences.
5.05 Disability RetirementAllowance
(a) Upon the written application of a Member or the City Manager, a
Member who has five (5) or more years of creditable service may be
retired by the Board on an ordinary disability retirement allowance on the
first day of a calendar month next following the granting of such
application; provided that the Physical Examiners, after a medical
examination of such Member, shall certify that the member is totally
incapacitated, mentally or physically, for the further performance of duty,
that such incapacity is not the result of habitual use of narcotics or alcohol,
misconduct, service in the Armed Forces, self-inflicted injury or disability
sustained through other employment, that such incapacity is likely to be
permanent and that such Member should be retired.
(b) Upon the written application of a Member or the City Manager, any
Member who has been totally and permanently incapacitated for the
performance of his duties as the natural and proximate result of an
accident occurring while in the actual performance of duty at some definite
time and place, without willfu! negligence on the member's part, may be
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retired by the Board on a Service-connected disability retirement
allowance, and not on an ordinary disability retirement allowance, on the
first day of a calendar month next following the execution and granting of
such application; provided that the Physical Examiners, after a medical
examination of the Member, shall certify that the member is totally
incapacitated, mentally or physically for the further performance of duty,
that such incapacity is likely to be permanent and that he should be
retired.
(c) The disability retirement allowance payable to a Member retiring
under the provisions of this Section 5.05 shall be an amount computed as
a normal retirement benefit in accordance with Section 5.01, on the basis
of the Member's final average monthly earnings and creditable service at
the time of disability retirement; provided, that the amount of such
allowance shall be modified in accordance with the following subsections
(d) and (e).
(d)
1) The allowance payable to a disability Retirant prior to the
normal retirement date shall not be less than thirty-five percent
(35%) of his final average monthly earnings as of the date of
disability if an ordinary disability retirement allowance is payable,
and not less than sixty-five percent (65%) of such final average
monthly earnings if a service connected disability retirement
allowance is payable. Notwithstanding the foregoing, for Members
who are in classifications within the AFSCME bargaining unit and
who entered the service of the City prior to April 30, 1993, Members
who are in classifications within the CWA bargaining unit and who
entered the service of the City prior to February 21, 1994, Members
who are in classifications within the GSA bargaining unit and who
entered the service of the City prior to August 1, 1993, and
Members who are classified as "Other" who entered the service of
the City prior to August 1, 1993, the minimum service connected
disability retirement allowance payable prior to such member's
normal retirement date shall be seventy-five percent (75o/o) of such
final average monthly earnings.
2) The allowance payable to a disability Retirant after the
normal retirement date shall be an amount computed as a normal
retirement benefit on the basis of the final average monthly
earnings and number of years of creditable service the Member
would have had if he had continued in service without interruption
until the normal retirement date at the maximum rate of pay in
effect at the time of his retirement for the classification from which
the Member retired, provided that such allowance shall not exceed
the amount payable to the Member as a disability retirement
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80
allowance prior to the normal retirement date and shall not be less
than the normal retirement benefit at the normal retirement date.
"Normal retirement date" as used in this Section 5.05 means the
date determined in accordance with Section 5.01(a) on the
assumption that the period of disability retirement is deemed to be
active service as an Employee for this purpose.
(e) Any amounts which may be paid or payable on account of disabilityto the Member or the Member's dependents under the Workers'
compensation Act, exclusive of fixed statutory payments for the loss of
any bodily member, shal! be offset against and payable in lieu of that part
of the disability retirement allowance provided under the Plan for the same
disability, in such equitable manner as the Board shall determine.
(0
1) During the period of disability retirement prior to the normal
retirement date, the Retirant's annual earnings from employment
(including self-employment) shall not exceed an amount which,
when added to the disability retirement allowance payments
received by him, would result in a combined earned income of one
hundred twenty-five percent (125Vo) of the maximum current salary
for the classification from which the member retired if he is
receiving a service-connected disability retirement allowance, or
one hundred percent (100%) of such maximum salary if he is
receiving an ordinary disability retirement allowance; otherwise
payments of the disability retirement allowance shall be withheld to
the extent that the combined earned income exceeds the maximum
permissible amount. The Member must agree at the time of
disability retirement, before any benefits are paid under the Plan, to
furnish annually to the Board, before May 1 of each year, a copy of
the Member's Federal lncome Tax return for the prior year, and any
other information which the Board may require. When the
Retirant's combined earned income exceeds the maximum
permissible amount determined on the basis of the maximum salary
as of January 1 of the prior year for the classification from which the
Member retired, future payments of the disability retirement
allowance shall be withheld until the total sum withheld equals the
amount by which the Member's combined earned income for theprior year exceeded the maximum permissible amount.
Restrictions on earnings shall not be applicable after the Retirant's
normal retirement date.
2) Notwithstanding the provisions of paragraph 1, above, any
member of the Classified System who became a Member of this
Plan on or after March 18, 2006, and who retires on a disability
retirement on or after July 1 , 1995, shall be subject to the benefit
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adjustments in this paragraph 2. During the period of such
Member's disability retirement, the Retirant's annual earnings from
employment (including self-employment) shall not exceed an
amount which, when added to the disability retirement allowance
payments received by him, would result in a combined earned
income of two hundred percent (200%) of the maximum current
salary for the classification from which the Member retired if the
Member is receiving a service-connected disability retirement
allowance, or one hundred percent (100%) of such maximum salaryif the Member is receiving an ordinary disability retirement
allowance; otherwise payments of the disability retirement
allowance shall be withheld to the extent that the combined earned
income exceeds the maximum permissible amount. The Member
must agree at the time of his disability retirement, before any
benefits are paid under the Plan, to furnish annually to the Board,
before May 1 of each year, a copy of the Member's Federal lncome
Tax return for the prior year, and any other information which the
Board may require. When the Retirant's combined earned income
exceeds the maximum permissible amount determined on the basis
of the maximum salary as of January 1 of the prior year for the
classification from which the Member was retired, future payments
of disability retirement allowance shall be withheld until the total
sum withheld equals the amount by which the Member's combined
earned income for the prior year exceeded the maximum
permissible amount.
3) The term "earned income" shall be defined by Section
a3(c)(2) of the lnternal Revenue Code to mean wages, salaries,
tips, and other employee compensation, plus the amount of the
taxpayer's net earnings from self-employment for the taxable year
(within the meaning of Section 1402(a) of the Internal Revenue
Code).
(g) Any Retirant who is receiving a disability retirement allowance shall
be subject, prior to the normal retirement date, to re-examination by the
Physical Examiners either upon request of the Retirant. The Board or the
City Manager, and the Physical Examiners shall report their conclusions
as to the continuance of the incapacity. ln the event that such disability
shall not continue to incapacitate the Retirant for service acceptable to the
City, in accordance with requirements of the Human Resources
Department, the City Manager may require that such Retirant be returned
to active duty at work which is the same or of similar nature to the work he
performed prior to his incapacity, or returned to other work within the limits
of his mental or physical capacities, at a rate of compensation not less
than seventy percent (70%) of the pay to which he would have been
entitled at the time of the Member's return to active service for the grade of
service occupied by the Retirant prior to incapacity. Upon any such return
22
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to active duty, the Retirant shall be restored to service as a Member, the
disability retirement allowance shall be terminated, the Member shall
resume contributing to the Plan based on the earnings received upon
reemployment, and the period during which the member was receiving a
disability retirement allowance shall be included in creditable service for all
purposes of the Plan.
(h) lf any Retirant in receipt of a disability retirement allowance is found
by the Physical Examiners, prior to the norma! retirement date, to be no
longer incapacitated but is not restored to service as a Member because
of the member's own refusal to accept employment offered in accordance
with the foregoing paragraph, the disability retirement allowance shall be
terminated, and the period during which the member was receiving a
disability retirement allowance shall in no event be added to the creditable
service acquired prior to the incapacity.
5.06 Active Service Death Benefits
(a) Upon receipt of evidence, satisfactory to the Board, of the death of
a Member who has three (3) or more years of creditable service, a
monthly pension shall be paid to the surviving spouse or domestic partner
of the deceased Member, provided that said spouse had been married to
the Member, or the domestic partnership has been registered for at least
one (1) year immediately prior to the date of his death. lf there is no
surviving spouse or domestic partner entitled to such pension, the pension
shall be paid to the dependent child or children of the deceased Member,
divided in such manner as the Board in its discretion shall determine, to
continue until every such child dies or attains twenty-one (21) years of
age.
(b) The monthly pension payable to the person or persons entitled
thereto in accordance with the subsection (a), above, shall be equal to
one-half of the amount computed as a normal service retirement
allowance in accordance with Section 5.01, as though the date of the
Member's death were the normal retirement date, on the basis of the
Member's final average monthly earnings and creditable service at the
time of death; provided that, for members of the Classified System who
became members of this Plan on March 18,2006, such pension shall not
be less than thirty percent (30%) nor more than forty percent (4oo/o) of final
average monthly earnings; further provided that, in the case of a person
who became a Member of the Classified System prior to November
1,1976, if the Accumulated Employee Contributions credited to the
Member at the time of death are less than would have been credited to
him if he had contributed at the rate of six per centum (6%) of his earnings
from the time he became a participant under the predecessor system
governed by Ordinance No. 845, the pension computed in accordance
with the foregoing provisions of this paragraph shall be reduced by half of
0049481 5-2 23
83
the amount by which the retirement allowance of the deceased Member
would have been reduced if he were retiring on a normal or early service
retirement allowance as of the date of his death; and further provided that,
if the pension is payable to a spouse or domestic partner who is more than
fifteen (15) years younger than the Member, the pension shall be reduced
to an amount which is the actuarial equivalent, of the pension payable to
the spouse if said spouse or domestic partner were exactly fifteen (15)
years younger than the deceased Member. ln the event of the death of
the spouse or domestic partner after pension payments have commenced,
a pension computed in accordance with the foregoing sentence but prior
to any reduction because of the difference in the ages of the deceased
Member and the surviving spouse or domestic partner shall be paid to the
dependent child or children of the deceased Member under twenty-one
(21) years of age, divided in such manner as the Board in its discretion
shall determine, until every such child dies or attains twenty-one (21)
years of age.
5.07 Death Benefits after Retirement
(a) Upon receipt of evidence, satisfactory to the Board, of the death of
a Retirant, a monthly pension shall be payable to the surviving spouse or
domestic partner of the deceased Retirant, provided that the spouse had
been married to the Retirant or the domestic partnership was registered
on the date of retirement or termination of service, whichever occurred
first, and for a least one (1) year priorto such date; and further provided,
that if the Retirant had elected an option in accordance with Section 5.09
which was in effect at the time of his death, monthly benefits shall be
continued after his death, in lieu of benefits under this Section 5.07, in
accordance with the option.
(b) The monthly pension payable to the surviving spouse or domestic
partner of a deceased Retirant pursuant to the foregoing paragraph of this
Section 5.07 shall be equal to fifty percent (50%) of the retirement
allowance which would have been payable to the deceased Retirant if the
Retirant had been alive at the time of the monthly payment; provided, that,
if the surviving spouse or domestic partner is more than fifteen (15) years
younger than the deceased Retirant, such monthly pension shall be
reduced to an amount which is the actuarial equivalent of such pension for
a spouse exactly fifteen (15) years younger than the deceased Retirant.
(c) lf any such deceased Retirant is not survived by a spouse or
domestic partner entitled to a pension in accordance with the foregoing
paragraphs of this Section 5.07, or if the death of such a spouse or
domestic partner occurs after pension payments have commenced in
accordance with the foregoing paragraph, the pension which would
othenrise have been payable to a surviving spouse or domestic partner
eligible therefor and not more than fifteen (15) years younger than the
0049487 5-2 24
84
deceased Retirant shall be payable to the dependent child or children of
the said deceased Retirant, if any, divided in such manner as the Board in
its discretion shall determine, to continue until every such child 1) marries
or dies, or 2) attains eighteen (18) years of age or twenty-two (22) years of
age in the case of a child who is a fulltime student in high school or
college; provided that in the case of a physically or mentally disabled child,
the pension shall continue until the child recovers from the disability. As
used in this paragraph, a "physically or mentally disabled child" is one who
1) is unmarried, 2) is entitled to and receives a child's disability benefit
based upon determination by the Social Security Administration that the
child is unable to do any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than twelve (12) months and 3) was
suffering from such impairment prior to attaining eighteen (18) years of
age (or twenty-two (22) years of age in the case of a child who was a full
time student in high school or college. Notwithstanding the foregoing, only
children who were dependent beneficiaries of the Retirant on the date of
retirement or termination of service, whichever is first, shall be eligible for
a pension under this paragraph.
(d) lf there are no pension benefits payable to a surviving or domestic
partner, child or children pursuant to paragraphs (a), (b) or (c) above, then
the aforementioned pension shall be paid to the dependent parent, if any,
of the deceased member. lf both parents are dependent, such benefit
shall be shared equally between them.
(e) Notwithstanding any provision of this Section 5.07 to the contrary,
in the event that an optional benefit had been elected by a Retirant in
accordance with Section 5.07, and such election is in effect at the time of
the Retirant's death, monthly benefits, if any, shall be payable after death
to the person designated as the contingent annuitant in accordance with
the optional election, and no benefits shall be payable as a result of the
death of the Retirant under this Section 5.07.
5.08 Death Benefits for Death Durinq Qualified Military Service. In the case of
a death or disability occurrinq on or after January 1. 2007, if a Member dies while
performinq qualified military service (as defined in Section 414(u) of the lnternal
Revenue Code). the survivors of the Member are entitled to anv additional
benefits (other than benefit accruals relatinq to the period of qualified militarv
service) provided under the Plan as if the Member had resumed and then
terminated employment by the Citv on account of death.
5.095€8
(a)
oo494A15-2
Optional Benefits
ln lieu of the normal or early retirement benefits provided in
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Sections 5.01 and 5.02, above, a Member may elect to receive an optional
benefit under this Section 5.09. The optional benefit is the actuarial
equivalent of the Member's normal or early retirement benefit. lf the
member's written election of an optional benefit is received by the Board at
least thirty (30) days prior to the date of commencement of retirement
benefits, the election of the optional benefit shall become effective on the
date the retirement benefit commences. lf such election is received by
the Board at any later date it shall become effective thirty (30) days after
the date the retirement allowance commences.
(b) A Member who elects an optional benefit must designate a
contingent annuitant to receive a benefit following the Member's death. A
Member may designate his/her spouse, domestic partner, child or any
other person who is shown, on the basis of evidence satisfactory to the
Board, to be dependent upon or receiving substantial support from the
Member, as the contingent annuitant; provided, if the contingent annuitant
is a minor child, the retirement benefit shall not be payable under the
option after the death of the Member after the minor child attains twenty-
one (21) years of age. If the designated contingent annuitant is the
Member's spouse or domestic partner on the date of retirement or
termination of service, whichever occurred first, and for at least one (1)
year prior to such date, the monthly benefit payable under the option to
the Member and the surviving contingent annuitant shall be the actuarial
equivalent of the benefit which would have been payable in the absence of
the member's election to receive an optional benefit, as a retirement
benefit to the Member after retirement and as a pension after the
Member's death to the surviving spouse or domestic partner in
accordance with Section 5.07; otherwise, the monthly benefit payable
under the option shall be the actuarial equivalent of the retirement
allowance payable only to the Member after retirement and prior to the
election of an optional benefit.
(c) The election of an optional benefit may not be revoked or changed
by the Member but, if the Member or the contingent annuitant designated
under the option dies prior to the date the option becomes effective, the
election shall thereby be revoked.
(d) A member may elect one of the following optional benefits:
Option 1. A reduced retirement benefit payable during the Member's life,
and after the Member's death the same monthly benefit shall be paid to
the Member's contingent annuitant for the contingent annuitant's lifetime;
or
Option 2. A reduced retirement allowance payable during the Member's
life, and after the member's death an allowance equal to two-thirds (2/3) of
the Member's reduced monthly allowance shall be paid to the contingent
26
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annuitant for the contingent annuitant's lifetime.
5.1Offi Refund of Accumulated Employee Contributions
(a) A Member may elect in writing, in a form and manner determined
by the Board, upon ceasing to be an Employee for any cause other than
retirement or death, to receive in one sum the Accumulated Employee
Contributions credited to the Member.
(b) Upon receipt of a refund of accumulated employee contributions, all
creditable service shall be canceled, such creditable service shall not be
reinstated if the Member is reemployed by the City in the future, and the
Member shall be considered a new Member as of the date of
reemployment.
(c) Upon receipt of evidence satisfactory to the Board, of the death of a
Member prior to the commencement of retirement benefits, with no
surviving spouse, domestic partner or dependent children entitled to
receive a pension as provided in Section 5.05, the amount of the
Member's Accumulated Employee Contributions at the time of death shall
be payable in one sum to the Member's designated beneficiary if living,
othenruise to such Member's estate.
(d) Upon receipt of evidence satisfactory to the Board, of the death of a
Retirant who is not survived by a spouse, domestic partner or dependent
children entitled to a pension in accordance with Section 5.07, provided
the Member has not elected an optional benefit that has become effective,
any excess of Accumulated Employee Contributions at retirement over the
sum of the retirement benefit payments received shall be paid in one sum
to the Member's designated beneficiary if living, otherwise to such
Member's estate.
(e) Upon receipt of proof satisfactory to the Board, of the death of the
survivor of a Retirant and the contingent annuitant under an option, if an
option has been elected and has become effective, any excess of the
Retirant's Accumulated Employee Contributions at the time of retirement
over the sum of the benefit payments received shall be paid to the
Retirant's beneficiary if living, otherwise to the estate of the survivor of
such Retirant and contingent annuitant.
(0 Upon receipt of proof satisfactory to the Board, that no further
benefits are payable as the result of the death of a Member prior to the
commencement of any retirement benefit, the excess, if any, of the
Accumulated Employee contributions at the time of his death over the
benefit payments received by the Member's spouse or domestic partner
and dependent children shall be paid in a single sum to the Member's
o0494A7 5-2 27
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designated beneficiary if living, otherwise to such Member's estate.
(g) Upon receipt of proof satisfactory to the Board, that no further
benefits are payable as the result of the death of a Retirant, the excess of
the Retirant's Accumulated Employee Contributions at retirement over
benefit payments received by the Retirant, the Retirant's spouse or
domestic partner and dependent children shall be paid in one sum to the
Retirant's designated beneficiary if living, otherwise to such Retirant's
estate.
(h) A Member's beneficiary for receipt of the single sum payments in
accordance with this Section 5.10 must have been designated by the
Member in writing and filed with the Board prior to the member's death. A
Member may designate more than one beneficiary for this purpose;
provided that in such event the Member must specify the manner in which
payments to the multiple beneficiaries shall be allocated, The Member
may also designate alternate beneficiaries with a specified order or
priorities for entitlement to single sum payments in the event of death. A
Member may change the designated beneficiary or beneficiaries by similar
written designation. A designation, revocation or change of the contingent
annuitant under an optional benefit may be made only as provided in
Section 5.09.
5.tt#0 Post RetirementAdjustments
(a) The benefits payable to Retirants and Pensioners on the effective
date of Ordinance 2006-3504, March 18, 2006, and the benefits
commencing in accordance with Ordinance 2006-3504 on or after such
date shall be continued without change except as increased in accordance
with this Section 5.11
(b) "lmprovement Factor" for the purpose of this Section 5.11 means
an increase of two and one-half percent (2.5%o) per annum in retirement
allowances or pensions for each year commencing on October 1 following
the completion of 364 days after the commencement date of the
retirement allowance or, if applicable to pensions payable as the result of
the death of a Member prior to his retirement, one full year after the
commencement date of the pension. The lmprovement Factor shall be
compounded, and shall be applied to the retirement allowance or pension
payable as the result of the retirement, termination or death of a Member,
whichever is applicable.
(c) The return of a disability Retirant to employment with the City prior
to the normal retirement date in accordance with Section 5.05(9) shall be
governed by said Section 5.05(g). Return of such a person to
employment with the City after the normal retirement date, as defined in
Section 5.01(a), or after the date as of which he ceased to be entitled to a
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disability retirement allowance pursuant to Section 5.05(h) shall be
governed by the provisions of Paragraph (a) or (b) of this Section 5.11,
whichever is applicable at the time of such return.
(d) Upon the death of a Retirant, the pension payable thereafter to his
dependent beneficiary shall be based on the retirement allowance payable
as of the date of such death, including the benefit improvements granted
in accordancewith this Section 5.11, and on each October 1 subsequent
to such death the lmprovement Factor shall be applied to the then-current
retirement allowance.
flA* Return to Active Service
(a) !f a former Member who is entitled to a vested retirement allowance
not yet payable returns to service with the City as an Employee before
such allowance has become payable, he shall again become a Member,
but benefits payable with respect to earnings and creditable service after
the Member's reemployment shall be based on the provisions applicable
to a Member whose employment with the City commences on the date of
reemployment. He shall contribute to the Plan at the rate required,
pursuant to Section 6.02, of Employees who become Members for the first
time. Creditable service rendered before and after the Member's return to
service shall be considered for the purpose of determining the benefit
payable; provided, in the event of the Member's subsequent termination of
employment for reasons other than death or retirement, only creditable
service rendered after reemployment shall be considered for the purpose
of determining entitlement to a vested retirement benefit based on service
rendered after reemployment. Upon subsequent retirement, the Member's
retirement benefit shall be equal to the sum of the amounts computed on
the basis of final average monthly earnings and creditable service with
respect to each period of service as an Employee; provided that the
retirement allowance shall not exceed the retirement allowance which
would have been payable if creditable service had been one period of
continuous service.
(b) Should a Retirant, other than a disability Retirant restored to
service in accordance with Section 5.05(h). be employed by the City as an
Employee, such Member's retirement benefit shall cease and the Member
shall again become a Member of the Plan, but benefits payable with
respect to the Member's earnings and creditable service after
reemployment shall be based on the provisions applicable to a Member
whose employment with the city commences on the date of
reemployment. The Member shall contribute at the rate required,
pursuant to Section 6.02, of Employees who become Members for the first
time. An amount equal to the excess, if any, of the Member's
Accumulated Employee Contributions at the time of his retirement over the
amount of retirement benefits received shall be credited as Accumulated
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Employee Contributions as of the date of reemployment. Creditable
service rendered before and after reemployment shall be considered for
the purpose of determining entitlement to a normal or early service
retirement allowance upon subsequent retirement. Upon subsequent
retirement, the Member's retirement allowance shall be equal to the sum
of the retirement allowance payable during the previous retirement,
adjusted actuarially, if reemployment is prior to the normal retirement
date, for the period from the date of reemployment to the date of
subsequent retirement or normal retirement date, whichever occurs first,
plus the amount computed as a retirement allowance on the basis of final
average monthly earnings and creditable service for the period after the
last date of reemployment; provided that the tota! retirement benefit shall
not exceed the retirement allowance which would have been payable if all
years of creditable service had been a continuous period. lf an option had
been elected and in effect at the time of reemployment, the option shall
continue to be in effect after reemployment, with respect to the retirement
benefit payable prior to reemployment.
(c) The return of a disability Retirant to employment with the City prior
to the normal retirement date in accordance with Section 5.05(g) shall be
governed by said Section 5.05(9). Return of such a person to
employment with the City after the normal retirement date, as defined in
Section 5.05, or after the date as of which he ceased to be entitled to a
disability retirement allowance pursuant to Section 5.05(h) shall be
governed by the provisions of Paragraph (a) or (b) of this Section 5.12,
whichever is applicable at the time of such return.
(d) Should a Pensioner be employed by the City in any capacity for
which regular compensation is paid, the Pension shall cease to be paid to
said Pensioner for the period of such employment, and such person shall
be subject to the provisions of this Ordinance as any other person
employed by the City. Upon termination of such employment, such
person shall elect to receive either the benefit to which he was previously
entitled as a Pensioner if still eligible therefore or the benefit, if any, to
which he is othenrise entitled on the basis of his membership in this Plan.
Effeetive Oeteber 27; 20O7; a veluntary early retirement ineentive pregram
(ERIP) shall be established in aeeerdanee with the fellewing terms, The ERIP
@iee-en er Uetere Uanuary ZS,
terminate City empleyment and retire after all ERIP eligibility requirements, but
net later than January 25; 2008, The ameunt ef the retiremenf benefit payable te
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90
5.13 A deferred retirement option plan (DROP) is hereby established for eligible
members as follows:
(a) Eligibility and participation:
1) A Member who attains the normal retirement date shall be
eligible to participate in the DROP.
2) A Member's election to participate in the DROP shall be
irrevocable. A Member may participate in the DROP only once.
3) An eligible Member may participate in the DROP for a
maximum of thirty-six (36) months. Notwithstanding the preceding
sentence:
(a) Effective July 17,2013, Members within classifications in
the CWA bargaining unit, who were hired prior to October 27,
2010, and Members not included in any collective bargaining
unit, who were hired prior to September 10, 2010, may
participate in the DROP for a maximum of sixty (60) months.
(b) Effective October 1, 2013, Members within classifications
in the GSAF bargaining unit, who were hired prior to July 14,
2010, may participate in the DROP for a maximum of sixty
(60) months.
4) An eligible Member who elects to participate in the DROP
must provide at least thirty (30) days' advance written notice to the
City of his or her election to participate in the DROP. A Member
who elects to participate in the DROP may elect to terminate DROP
participation and City employment sooner than the maximum
DROP period, with thirty (30) days' advance written notice to the
City.
5) Effective July 17, 2013, any Member within classifications in
the CWA bargaining unit, and any Member not included in any
collective bargaining unit, who previously executed an election form
entitling him/her to participate in the DROP for a period of less than
sixty (60) months and whose DROP period ceases between July 1,
2013 and July 16, 2016, shall have a one-time opportunity to submit
an irrevocable amended election from provided by the Board, within
thirty (30) calendar days following the effective date of this ordinance,
extending his or her DROP period to a maximum of sixty (60) months
in total. Effective October 16,2013, any Member within classifications
31
91
in the GSAF bargaining unit, who previously executed an election
form entitling him/her to participate in the DROP for a period of less
than sixty (60) months and whose DROP period ceases between
October 16, 2013 and October 15, 2016, shall have a one-time
opportunity to submit an irrevocable amended election from provided
by the Board, within thirty (30) calendar days following the effective
date of this ordinance, extending his or her DROP period to a
maximum of sixty (60) months in total. Effective April 23, 2014, any
Member within classifications in the AFSCME bargaining unit, who
previously executed an election form entitling him/her to participate in
the DROP for a period of less than sixty (60) months and whose
DROP period ceases between April 23, 2014 and April 22,2015,
shall have a one-time opportunity to submit an irrevocable amended
election from provided by the Board, within thirty (30) calendar days
following the effective date of this ordinance, extending his or her
DROP period to a maximum of sixty (60) months in total.
(b) DROP plan features:
1) An eligible Member who elects to participate in the DROP will
be considered to have retired for purposes of the Plan upon entry
into the DROP, except that such Member shall be eligible to vote for
and serve as an Employee member of the Board of Trustees during
the DROP participation period. The Member's monthly retirement
benefit, determined in accordance with the Plan based on years of
creditable service and final average monthly earnings at the time the
Member enters the DROP, will be paid into the Member's DROP
account every month during the DROP period.
2) No Member contributions shall be required after a Member
enters the DROP, and the Member will not accrue any additional
creditable service or any additiona! benefits under the Plan after
entering the DROP. No City normal cost contributions shall be
required after a Member enters the DROP and DROP participants
shall be excluded from the covered payroll for the Plan.
3) A Member who elects to participate in the DROP shall not be
eligible for disability or preretirement death benefits under the Plan;
nor shall a Member be eligible for any post retirement adjustment
provided in Section 5.11 during the DROP participation period.
4) A Member who elects to participate in the DROP shall retain
the earned balance of annual and sick leave as of the date of entry
into the DROP, and shall continue to earn annual and sick leave
during the DROP period, in accordance with applicable City
ordinances. Alternatively, at the time of entry into the DROP, a
Member may request full or partial payment of the earned balance of
32
92
annual and sick leave as of the date of entry into the DROP, up to the
maximum allowed by applicable City ordinances for employees who
terminate City employment, but reduced by the amount of annual and
sick leave used for the purchase of additional credited service under
Section 4.3, if any, at the Member's rate of compensation upon
entering the DROP; provided that the Member must retain at least 120
hours of accrued sick leave after any such payment. Upon termination
of City employment, a Member who has participated in the DROP
shall be eligible to receive payment for the earned balance of annua!
and sick leave as of the date of termination, up to the maximum
allowed by applicable City ordinances for employees who terminate
City employment, but reduced by the amount of annual and sick
leave for which payment was received upon entry into the DROP, if
any; and further reduced by the amount of annual and sick leave
used for the purchase of additional credited service under Section
4.3, if any. ln no event shall payments for accrued annual or sick
leave be included in a member's Earnings for purposes of the Plan.
5) As a condition of participating in the DROP, the Member
must agree to terminate City employment at the conclusion of the
DROP period, and to submit an irrevocable letter of resignation
stating this prior to entering the DROP. A Member who elects to
participate in the DROP must also submit an irrevocable written
DROP election prior to entering the DROP on a form provided by
the Board. Notwithstanding the preceding sentence:
(a) Eligible Members who are participants in the DROP on July 1,
2013, shall be given a one-time opportunity to submit an
irrevocable amended election form, as provided in Section 5.13 (a)
5., extending the DROP period to a maximum of sixty (60) months
in total.
(b) Eligible Members who are participants in the DROP on October
1, 2013, shall be given a one-time opportunity to submit an
irrevocable amended election form, as provided in Section 5.13 (a)
5, extending the DROP period to a maximum of sixty (60) months in
total. Notwithstanding the preceding sentence, eligible Members
whose classifications are covered by the AFSCME bargaining unit
who are participants in the DROP on April 23,2014, shall be given
a one-time opportunity to submit an irrevocable amended election
form, as provided in Section 5.13 (a) 5, extending the DROP period
to a maximum of sixty (60) months in total.
6) At the conclusion of the DROP period and upon termination
of City employment, the Member's monthly retirement benefit shall
be paid to the Member in accordance with the Plan. ln the event of
33
93
the Member's death during or at the conclusion of the DROP
period, a benefit may be payable in accordance with Section 5.07.
7) Participation in the DROP is not a guarantee of City
employment, and DROP participants will be subject to the same
terms and conditions of employment that are applicable to
employees who are not DROP participants.
8) During participation in the DROP, the Member's monthly
retirement benefit will be paid into the DROP account, and shall be
credited/debited with earnings/losses as provided herein. The
Member may direct that their DROP account be invested in any of the
investment options approved by the Board, on forms provided by the
Board. Any gains on the Member's DROP account investments shall
be credited to the Membe/s DROP account; and any losses incurred
by the Member shall be deducted from the Member's DROP account
balance, and shall not be made up by the City or the Retirement Plan.
A Member's DROP account shall only be credited or debited with
earnings/losses while the Member is a participant in the DROP.
9) A DROP participant may designate a beneficiary or
beneficiaries for his/her DROP account on a form provided by the
Board.
10) Within thirty (30) days following a DROP participant's
termination of City employment or death, whichever occurs first, the
Member, or in the event of the Member's death the Membe/s
designated beneficiary, may submit a written election on a form
approved by the Board, to receive the Member's entire DROP
account balance, which shall be distributed to the Member (or in the
event of the Member's death, to the Member's designated
beneficiary or estate in accordance with paragraph (b)9., below) in
a cash lump sum, unless the Member elects to have all or any
portion of an eligible rollover distribution paid directly to an IRA or
eligible retirement plan specified by the Member in a direct rollover.
Any such direct rollover shall be processed in accordance with
Article 12 of the Plan. ln the event a Member or designated
beneficiary does not submit a written election to receive a
distribution of the Member's DROP account balance within thirty
(30) days following the Member's termination of City employment or
death, the Member's DROP account shall be maintained by the Plan
but shall not be credited with earnings/losses after thirty (30) days
following the Member's termination of City employment or death.
11) lf a DROP participant dies before his or her DROP account
is distributed, the participant's designated beneficiary shall have
the same rights as the participant with respect to the distribution of
34
94
the DROP account. lf the participant has not designated a
beneficiary, the DROP account balance shall be paid to the
Member's estate.
12) The Board of Trustees shall make such administrative rules
as are necessary for the efficient operation of DROP, but shall not
adopt any rule that is inconsistent with this Ordinance or the Plan.
13) The DROP shall be administered so that the Plan remains
qualified under the lnternal Revenue Service Code and in
compliance with applicable laws and regulations.
14)
ERIP must terminate City empleyment and retire after meeting all
ERIP eligibility requirements; but net later than January 25, 2008,
The ameunt ef the retirement benefit payable te Mernbers whe
retirement,
Limit under Section 415(b) of the lnternal Revenue Code.
Notwithstandinq anv other provisions of this Plan. the retirement
benefit of a Member shall be reduced to the extent that it exceeds
amounts specified in Section 415(b) of the lnternal Revenue Code.
For purposes of the application of Section 415(b), each Member's
compensation shall be determined in accordance with Section
1.415(c)-2 and shall be defined as remuneration for services to the
City includinq waqes, salaries, fees for professional services and
other amounts for personal services actually rendered in the
course of employment with the Citv to the extent that such
amounts are included in gross income (or to the extent amounts
would have been received and includible in qross income but for
an election under Internal Revenue Code section 125(a). 132(fl(4),
402(eX3), 402(hX1XB), 402(k) or 457(b)). and compensation in
excess of the limitations set forth in Section 401(aX17) of the
lnternal Revenue Code. and requlations promulqated thereunder,
shall be disreqarded.
35
95
Section 6. Financing
6.01 Assets of Predecessor System
(a) All moneys, investments and assets of the Classified System and
Unclassified System as of March 18, 2006 shall become assets of this
Plan as of such date.
(b) The amount credited to each member of the Classified System and
Unclassified System as "Accumulated Employee Contributions" as of
March 18, 2006 shall be credited to each such Member under this Plan on
such date as Accumulated Employee Contributions.
6.02 Contributions by Members
(a) Each Member shall contribute to the Plan eight percent (8%) of
earnings, except as otherwise provided in this Section 6.02.
Notwithstanding the preceding sentence, effective July 14, 2010 each
Member in a classification within the AFSCME an GSA bargaining units,
and each Unclassified and "Other" Member, shall contribute to the Plan
ten percent (10Yo) of earnings, except as othenruise provided in this
Section 6.02. Notwithstanding the first sentence of this subsection (a),
effective November 27, 2010, each Member in a classification within the
CWA (MBEBA) collective bargaining unit shall contribute to the Plan ten
percent (10Yo) of earnings except as othenrvise provided in this Section
6.02, and contingent on state approval of the actuarial impact statement
confirming a reduction in the City's annual required pension contribution
for fiscal year 2010-2011 associated with the pension changes contained
in the 2009-2012 CWA collective bargaining agreement of at least
$1,000,050. The contributions made by each Member to the Plan shall be
deducted from the Member's Earnings and designated as Employer
contributions pursuant to section 414(h) of the Internal Revenue Code.
Such designation is contingent upon the contributions being excluded from
the Members' gross income for Federal lncome Tax purposes. For all
other purposes of the Plan, such contributions shall be considered to be
Member contributions.
(b) Notwithstanding subsection (a) above, all persons entering service
with the City prior to April 1, 1993 who are in the classifications within the
AFSCME bargaining unit; all persons entering service with the City prior to
February 21, 1994 who are in classifications within the CWA (MBEBA)
bargaining unit, and all persons entering service with the City prior to
August 1,1993 who are in classifications within the GSA bargaining unit or
classified as "Othe/' who were members of the Classified Plan
continuously from the date they entered service with the City until March
18, 2006, shall contribute to the Plan ten percent (10%o) of their earnings
throughout their service as a Member of this Plan. Notwithstanding the
o0494415-2 36
96
preceding sentence, effective July 14, 2010 each Member described in the
preceding sentence who is in a classification within the AFSCME or GSA
bargaining units shall contribute to the Plan twelve percent (12%) of
earnings; and effective January 18, 2010, each Member described in the
preceding sentence, classified as "Other" shall contribute to the Plan
twelve percent (12Yo) of earnings. Notwithstanding the first sentence of
this subsection (b), effective November 27,2010, each Member described
in the first sentence of this subsection (b) who is in a classification within
the CWA (MBEBA) bargaining unit shall contribute to the Plan twelve
percent (12o/o) of earnings, contingent on state approval of the actuarial
impact statement confirming a reduction in the City's annual required
pension contribution for fiscal year 2010-2011 associated with the pension
change as contained in the 2009-2012 CWA collective bargaining
agreement of at least $1,000,050.
(c) Notwithstanding subsection (a), above, Members of the
Unclassified System who entered service with the City prior to October 18,
1992, were continuously members of the Unclassified System from that
date until March 18, 2006, and who became Members of this Plan on
March 18, 2006, shall contribute to the Plan ten percent (10%) of their
earnings. Notwithstanding the preceding sentence, effective January 18,
2010, each Member described in the preceding sentence shall contribute
to the Plan twelve percent (12Yo) of earnings.
(d) Notwithstanding subsection (a), above, 'Members who are in
classifications within the CWA bargaining unit, members of the Classified
System who became Members of this Plan on March 18, 2006, and are
not in any bargaining unit, and members of the Unclassified System who
became Members of this Plan on March 18, 2006, who accrue the
maximum retirement benefit payable under the Plan and continue in City
employment, shall contribute to the Plan an amount equal to the
applicable percentage contribution in accordance with subsections (a), (b)
and (c), above, but such percentage shall be applied only to the amount of
earnings in excess of such Members' rate of earnings at the time the
member accrued the maximum retirement benefit payable under the Plan.
For example, if a Member with earnings of $2,000 each pay period attains
the maximum benefit percentage payable under the plan (80% or g0%,
depending on which cap applies to the member), the employee
contribution will cease until the member has earnings in excess of $2,000,at which time the Employee contribution would be 10% (or 12o/o,
depending on the contribution rate that is applicable) of the excess over
$2,000. lf the member's earnings increase to $2,500 per pay period, the
Member would contribute $50.00 (at the 10% contribution rate) each pay
period. The limitation on member contributions provided in this subsection
shall apply to Members in classifications within the AFSCME and GSA
bargaining units upon ratification of a collective bargaining agreement that
oonrn,u-,0'ovides
for such limitation'
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97
(e) Notwithstanding subsections (a) and (b) above, for members who
are in classifications within the AFCSME bargaining unit:
1) For Members hired prior to April 30, 1993, the employee
contribution shall be twelve percent (12%\ of earnings effective July
14,2010 through Apri! 30, 2013; ten percent (10%) of earnings
effective May 1 ,2013 through April 23, 2014; and twelve percent
(12Yo) of earnings effective April 23, 2014.
2) For Members hired on or after April 30, 1993 and before
September 30, 2010, the employee contribution shall be ten
percent (10%) of earnings effective July 14, 2010 through April 30,
2013; eight percent (8%) of earnings effective May 1 , 2013 through
April 23, 2014; and ten percent (10%) of earnings effective April 23,
2014.
3) For members hired on or after September 30, 2010, the
employee contribution shall be ten percent (10o/o) of earnings.
4) The employee contribution provided in paragraphs 1 . and 2.
above shall decrease by two percent (2o/o) of earnings when the
Plan actuary confirms that the City's annual required contribution to
the Plan is twenty-three and one-half percent (23.5%) of
pensionable payroll or less. The two percent decrease in the
employee contribution shall take effect on the same date as the
City's annual required contribution of twenty-three and one-half
percent (23.5o/o) of pensionable payroll or less.
6.03 Contributions by City
(a) lt is the intent of this Ordinance that the City contribute to the Plan
each year the amounts actuarially determined to be required, in addition to
contributions by Members, to cover the cost of the benefits provided by
the Plan. All administrative expenses shall be paid by the Plan. Effective
September 30,2013, the City shall annually contribute no less than the
net City's "normal cost" of the Plan. The net "normal cost" is the annua!
cost of the Plan net of Member contribution assigned to the current Plan
year. lf the net City "normal cost" for any Plan year exceeds the City's
annual required contribution as determined in accordance with Part Vll,
Chapter 112, Florida Statutes, the excess shall be held in reserve as part
of Fund assets, designed as the pension stabilization fund, and shall be
used to offset the City's annual required contribution to any Plan year as
determined by the City. The pension stabilization fund shall be accounted
for separately and not included as assets of the Fund for Plan's valuation
purposes, and shall be annually credited or debited with gains and losses
38
98
at the same rate of return as the overall net market rate of return on Fund
investments.
(b) An actuarial valuation investigation of the Plan shall be performed
annually to determine the contribution payable by the City. On the basis
of regular interest and of such mortality and service tables as shall be
adopted by the Board of Trustees, the actuary shall determine,
immediately after making each valuation, the percentage of the
compensation of all Members required, in addition to contributions payable
by such Members, as contributions payable by the City to provide the
benefits of the Plan currently accruing to such Members; the rate per
centum so determined shall be known as the "Normal Contribution Rate"
and the contributions based on this rate shall be known as "Normal
Contributions." ln addition, the actuary shall determine the part of the
liabilities for benefits under the Plan not covered by assets in hand, future
contributions of Members and future normal contributions of the City and
this amount shall be known as the "Unfunded Accrued Liability"; the
percentage of compensation of Members determined to be payable on
account of such liability shall be known as the "Accrued Liability
Contributions Rate". Also, the actuary shall determine the percentage of
compensation necessary to provide for payment of the administrative
expenses of the Plan and this rate shall be known as the "Administrative
Cost Rate". The actuary shall recommend on the basis of each valuation
a Norma! Contribution Rate and an Accrued Liability Contribution Rate
and an Administrative Cost Contribution Rate.
(c) lt is the intention of this Ordinance that contributions be set at such
levels, as recommended by the Actuary designated by the Board, as to
provide for a systematic amortization of any unfunded accrued liability
over a period of thirty (30) years from the date as of which such liability is
incurred.
(d) During the Plan year beginning October 1 ,2013, and at least once
every three years thereafter, there shall be an experience study of the
Plan's actuarial assumptions performed by the actuary selected by the
City. The actuary shall make recommendations for any changes and
assumptions based on the results of the experience study. ln the event
the Board of Trustees or Plan actuary disagrees with the recommended
assumption changes, the Board or Plan actuary shall present the basis of
their disagreement and justify any deviation from the recommended
assumptions to the City Commission.
(e) Effective September 30,2013, the City shall require five, ten and
twenty year projections of required pension contributions as part of the
annual actuarial valuations for the Plan. These projections shall be based
on current actuarial assumptions for the Plan. The projections shall be
39
99
updated to reflect the cost of any proposed benefit enhancement before
the City Commission agrees to the enhancement. The cost of these
studies shall be funded separately from the annual contribution to the
pension plan.
6.04 Contributions by other Agencies. The Miami Beach Visitor and Convention
Authority, this Plan, the Classified Plan, the Unclassified Plan, and the City
Pension Fund for Firemen and Policemen shall contribute to this Plan the same
percentage of payroll rate as the City on behalf of employees who become
members of this Plan.
Section 7. Preservation of Benefits Plan
7.01 The Preservation of Benefits Plan adopted in Resolution No.89-19808 is
incorporated herein and revised as set forth in this Article 7. The Preservation of
Benefits Plan is established as a qualified governmental excess benefit
arrangement pursuant to section 415(m) of the lnternal Revenue Code. The
Preservation of Benefits Plan is provided for the purpose of providing benefits to
a payee (Retirant or Beneficiary) of this Retirement Plan whose benefits would
otherwise be limited by section 415(b) of the lnternal Revenue Code.
7.02 A payee of the Plan shall participate in the Preservation of Benefits Plan
whenever his or her earned benefit under the Plan exceeds the benefit maximum
established under section 415(b) of the lnternal Revenue Code. Participation in
the Preservation of Benefits Plan shall continue for as long as the payee's earned
benefit under the Plan is reduced by the application of the maximum benefit limit
under section 415(b) of the lnternal Revenue Code.
7.03 On and after March 18, 2006, the City shall pay to each eligible payee of
the Plan who retires on or after such date, a supplemental benefit equal to the
difference between the amount of the payee's monthly retirement benefit which
would have been payable under the Plan if not for a reduction due to the
application of section 415(b) of the lnternal Revenue Code, and the reduced
monthly retirement benefit as paid to the payee. The Preservation of Benefits
Plan benefit shall be computed and payable under the same terms and
conditions and to the same person as would have applied under the Plan were it
not for the reduction resulting from the application of section 415(b) of the
lnternal Revenue Code.
7.04 The benefits paid under the Preservation of Benefits Plan shall not be
subject to execution, garnishment, attachment, or any other process of any court
with respect to a payee under the Preservation of Benefits Plan.
7.05 The Preservation of Benefits Plan shall be unfunded within the meaning of
the federal tax laws. No payee contributions or deferrals, direct or indirect, by
election or othenryise shall be made or allowed under the Preservation of Benefits
Plan.
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7.06 The Preservation of Benefits plan shall be administered by the City.
Benefits due under the Preservation of Benefits plan as determined by the City
Finance Director shall be paid timely by the City. The Finance Director may
make modifications to the benefits payable under the preservation of benefits
plan as may be necessary to maintain compliance with section 415(m) and other
relevant sections of the lnternal Revenue Code. The Board of Trustees shall
furnish to the City all records necessary for the administration of the Preservation
of Benefits Plan, including, but not limited to, the making of requisite calculations
and disbursements under the Preservation of Benefits Plan.
Section 8. Board of Trustees
8.01 The Plan created by this Ordinance shall be construed as a trust and shall
be administered by a Board of Trustees. The Board shall have the general
responsibility for the proper operation and management of the Plan and for
making effective the provisions of this Ordinance.
8.02 The Board shall consist of nine (9) persons, each of whom shall be
designated as a trustee, as follows:
(a) Three Members of the Plan elected by Employees who are
Members of the Plan;
(b) Two (2) Retirants elected by the retired Members of the Plan; and
(c) Four persons appointed by the City Manager;
8.03 The elected members of the Board of Trustees of the Classified System
shall continue to serve as the elected Trustees of this Plan for the remainder of
their terms. The City Manager may reappoint some or all of the Trustees who
were appointed to serve as Trustees of the Classified System, or may appoint
new Trustees to serve as appointed Trustees of this Plan. Elected Trustees shall
serve for three (3) year terms and the rules governing their election shall be as
prescribed by the Board. Appointed Trustees shall serve at the pleasure of the
City Manager.
8.04 Each trustee shall take an oath of office within ten (10) days after his
election or appointment. A trustee shall serve without compensation but shall be
reimbursed for any expenses incurred as the result of service as a trustee.
8.05 The Board shall annually elect from its membership a Chairman and a
Vice Chairman and shall elect a Secretary from among the City Manager's
appointees. Each trustee shall be entitled to one (1) vote, and five (5) concurring
votes shall be necessary for a decision by the trustees at any meeting of the
Board.
8.06 The Board shall have, in addition to all other powers and duties arising out
of this Ordinance not otherwise specifically reserved or delegated to others, the
41
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following specific powers and duties:
(a) Hold regular meetings at least quarterly in each year and special
meetings at such time as a majority of the Board or the Chairman may
deem necessary.
(b) Establish rules and regulations to implement the provisions of this
Ordinance, and formulate policy for the proper administration of the Plan
and the transaction of its business.
(c) Consider and pass on all applications for retirement and other
benefits, authorize the granting of all retirement allowances, pensions and
lump sum settlements, and suspend any payment or payments, all in
accordance with the provisions of this Ordinance.
(d) Adopt from time to time service and mortality tables and the rate of
regular interest for use in actuarial calculations in connection with the
Plan.
(e) Submit to the City Manager on or before July 1 of each year an
estimate of the amount of appropriation required for the purpose of the
Plan for the following fiscal year. Any expenditure of the Board in excess
of the amounts appropriated by the City in any budget category must be
approved in advance by the City Manager and City Commission.
(f) Employment of such actuarial, legal or investment counsel or
specialized technical assistance as may be required for the efficient
operation of the Plan.
(g) Maintain accounts and records showing the fiscal transactions of
the Plan and keep in convenient form such data as may be necessary for
the actuarial valuations of the Plan; require from each person covered
under the Plan such information as shall be necessary for the proper
operation of the Plan; require the maintenance of adequate accounting
records which shall at all times reflect the financial condition of the Plan.
(h) Provide for the receipt of all payments made to the Plan and
records thereof, and cause them to be deposited immediately with the
custodian of the fund.
(i) Keep a permanent record of all proceedings of the Board which
shall be tape recorded and available for examination by any Member,
Retirant or Pensioner, or by any Officer of the City.
(j) Designate for specified periods, or as occasion may require, three
(3) physicians who are not eligible for membership in the Plan as Physical
Examiners; such Physical Examiners shall arrange for, and conduct, all
physical and mental examinations required under this Ordinance, shall
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investigate all essential statements and certificates in connection with
applications for disability retirement, and shall report in writing to the
Board their conclusions and recommendations upon all matters referred to
them.
(k) Be the legal custodian of all cash and securities of the Plan, invest
and reinvest all cash not required to meet current disbursements in
securities; and subject to the limitations of this Ordinance, the Board shall
have full power to hold, purchase, sell, assign, transfer and dispose of any
of the securities and investments as well as the proceeds of such
investments.
(l) Provide for certification on its behalf of all warrants issued in
accordance with actions of the Board authorizing payments for benefits,
expenses and investments out of funds belonging to the Plan, and provide
for certification on its behalf of all amounts required by the Plan to be
levied as taxes by the City.
(m) Cause a general investigation to be made by a Consulting Actuary,
at least once every three (3) years, and cause recommendations to be
furnished as a result of such investigation as to the actuarial tables and
rates of contributions to be used.
(n) Cause an audit of the affairs of the Plan to be made annually, with
interim quarterly reports by an independent Certified Public Accountant,
and submit a copy thereof to the City Manager as soon as possible after
the end of each fiscal year.
(o) Accept any gift, grant or bequest of any money or securities under
the terms designated by the grantor, or, if no special purpose or allocation
is specified, for credit to the funds of the Plan.
(p) Make available to Members, Retirants and Pensioners a financial
statement including a summary of the report of the Certified Public
Accountant, and issue to each Member, as soon as practicable following
the close of each fiscal year, an individual statement showing the
Accumulated Employee Contributions standing to his credit.
(q) Require the preparation of an annual report as of the close of each
fiscal year for submission to the City Commission; said report shall
embody, among other things, a financial balance sheet and a statement of
receipts and disbursements for the fiscal year, schedules of acquisitions
and sales or exchanges of investments, a statement of investments
owned at the close of the fiscal year and other pertinent financial and
operating data.
(r) Establish rules governing the election of the trustees as described
oon,n,,,-r'n
section 8'02 (a) and to'*la
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(s) May appoint an Administrator of such Pension Plan and fix the
terms of employment of such Administrator who shall serve at the
pleasure of the Board.
Section 9. lnvestments
9.01 The assets of the Plan, in excess of the amount required to meet current
operations or pension and retirement payments, shall be invested in accordance
with the following paragraph.
The trustees shall, in acquiring, investing, reinvesting, exchanging, retaining,
selling and managing property for the benefit of the Plan, exercise the judgment
and care under the circumstances then prevailing, which men of prudence,
discretion and intelligence exercise in the management of their own affairs, not in
regard to speculation but in regard to the permanent disposition of their funds,
considering the probable income as well as the probable safety of their capita!.
Within the limitations of the foregoing standard, a trustee is authorized to acquire
and retain every kind of property, real, personal or mixed, and every kind of
investment specifically including, but not by way of limitation, bonds, debentures
and other corporate obligations, and stocks, preferred or common, which men of
prudence, discretion and intelligence acquire or retain for their own account and,
within the limitations of the foregoing standard, a trustee may retain property
acquired, without limitation as to time and without regard to its suitability for
original purchase.
9.02 All investments shall be clearly marked to indicate that they are a part of
the assets of the Plan, and to the extent possible they shall be so registered.
9.03 Transactions involving the sale of bonds and simultaneous purchase of
other bonds for substantially the same consideration may be treated as
exchanges rather than two separate transactions. No adjustments shall be madein investment valuations for ordinary current market price fluctuations, but
reserves may be provided for anticipated losses upon redemption as determined
by the Board.
9.04 Except as othenruise herein provided, no trustee or employee of the Board
shall have any direct interest in the income, gains or profits of any investments
made by the Board, nor shall any such person receive any pay or emolument for
services in connection with any investment. Proof that any such person violated
any of these restrictions shall make such person guilty of a misdemeanor or
felony, as the case may be, and such person shall be punishable therefor as
provided by law.
9.05 Beginning January 1, 2010 the Board shall proceed to sell, redeem,
divest, or withdraw all publicly traded securities of any corporation or other
business entity conducting business with the countries of Sudan and lran, as
follows:
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(a) Sections 215.442 and 215.473, Florida Statutes, require the State
Board of Administration (SBA) to make its best efforts to identify
"Scrutinized Companies," as defined in section 215.473(t\, Florida
Statutes. The SBA has created a list of such companies ("scrutinized
companies list"), which state law requires be notified and ultimately
divested by the Florida Retirement System (FRS).
(b) The definition of "scrutinized company" as to Sudan generally
includes a company with business operations in Sudan with revenues or
assets linked to oil-related or power-production activities under certain
circumstances, is complicit in Darfur genocide, or the company supplies
military equipment within Sudan under certain conditions.
(c) The definition of "scrutinized company" as to lran general includes
a company with business operations that involve the Government of lran
or certain companies, and have revenues or assets linked to lran and
i nvolve oil-related or mineral-extraction u nder certai n cond itions.
(d) "Scrutinized company" also includes any company that is complicit
in the Darfur genocide.
(e) Notwithstanding any provision of this Plan to the contrary, the
Board, or its designee, shall annually survey all corporations or other
business entities in which the assets of the Retirement System are
invested in order to ascertain whether any of the assets of the Retirement
System are invested in a corporation or other business entity that is
appears on the SBA Scrutinized Companies List, as periodically amended.
(f) The Board, on or before the first day of January of each year, shall
make available to the public the findings of its survey.
(g) Notice of the provisions of this section shall be given to investment
managers for the Retirement System.
(h) The Board and its named officers or investment advisors may not be
deemed to have breached their fiduciary duty in any action taken to
dispose of any such security, and the Board shalt have satisfactorily
discharged the fiduciary duties of loyalty, prudence, and sole and lexctusive
benefit to the members of the Plan and their beneficiaries if the actions it
takes are consistent with the duties imposed by section 21s.473, Florida
Statutes and the manner of the disposition, if any, is reasonable as to the
means chosen.
(i) The divestiture of any security pursuant to this section must be
completed by september 30 of any year following identification of
Retirement System assets invested in a corporation or other business
entity appearing on the SBA Scrutinized Companies List.
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Section 10. Administration
10.01 Pension Administrator
The Pension Administrator shall have responsibility for the administration
of the Plan. As such, he will have responsibilities which shall include, but not
necessarily be limited to, the duties specified in this Section 10.01.
(a) The Pension Administrator shall establish and maintain records on
all persons covered under the Plan.
(b) The Pension Administrator shall verify the amounts entered by the
Payroll Department as deductions for contributions by Employees to the
Plan and shall certify all payrolls on which such deductions are entered.
(c) The Pension Administrator shall receive applications for retirement
and other benefits, compute retirement allowances, pensions and lump
sum settlements, compute and credit interest to individual accounts and
make such analyses, computations and other determinations and records
as the Board may deem necessary for the efficient operation of the Plan.
(d) !t shall be the duty of the Pension Administrator to notify the Board
of any new Members, withdrawal of Members, applications for retirement
and lump sum payments, and such other personnel information as the
Board may require.
(e) The Pension Administrator shall maintain necessary records to
show receipts by payroll deductions, City contributions, donations and
investment returns, and to show disbursements for retirement allowances,
pensions and lump sum settlements. He shall also keep such other
financial records of the moneys and investments of the Plan as the Board
deems necessary.
(0 All payments from the funds of the Plan shall be made by the
Pension Administrator only upon vouchers signed by the Chairman of the
Board of Trustees. A duly attested copy of a resolution of the Board
bearing on its face the specimen signature of the Pension Administrator
shall be filed as authority for making payments upon such vouchers. No
voucher shall be drawn unless it shall have been previously authorized by
resolution of the Board, except that the Board may, by resolution authorize
the Pension Administrator to issue vouchers for refunds of Accumulated
Employee Contributions in accordance with Section 5.10 and for minor
adjustments in contributions by Employees.
(g) For the purpose of meeting current disbursements, cash equal in
amount, as nearly as practicable, to the regular demands for the ensuing
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month shall be kept available in deposit.
10.02 City Attorney
(a) The City Attorney shall serve as legal advisor of the Board when
requested to do so, and his services on behalf of the Board shall not be
compensated add itionally.
10.03 Legal Counsel
(a) The Board shall be vested with the authority to retain private legal
counsel for representation thereof.
(b) Counsel retained hereunder shall be subject to the approval of the
City Commission.
Section 11. General
11.01 The Assets of the Classified and Unclassified Systems as of March 18,
2006 shall become the assets of this Plan on such date. The assets of the Plan
shall be invested as one fund, and no particular person, or group of persons,
shall have any right in, or to, any specific security or property, or in or to any item
of cash, other than an undivided interest in the whole, as specified in the
provisions of this Ordinance.
11.02 All the funds of the Plan shall be held in trust for use in providing the
benefits of the Plan and paying its expenses not paid direcfly by the City;
provided that no part of the corpus or income of the funds shall be used for, or
diverted to, purposes other than for the exclusive benefit of members or their
beneficiaries under the Plan prior to the satisfaction of all liabilities for benefits
with respect to them or for the administrative expenses of the Plan. ln case of
termination of the Plan, or in the event of the discontinuance of contributions
thereunder having the effect of such termination, the rights of all members of the
Plan to benefits accrued to the date of such termination or discontinuance, to the
extent then funded, shall be nonforfeitable.
11.03 All retirement allowances, pensions, and other benefits payable under the
provisions of this Ordinance, and all accumulated credits of Employees in the
Plan shall not be assignable.
11.04 Any person who shall knowingly make any false statement, or shall falsify,
or permit to be falsified, any record or records of the Plan in any attempt to
defraud the Plan shall be guilty of a misdemeanor, and shall be punishable
therefor, upon conviction, by a fine of not more than One Thousand Dollars
($1,000.00) or imprisonment for not more than ninety (90) days, or both, in the
discretion of the Court.
11.05 No provision of any ordinance, which provides wholly or parfly, at the
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expense of the City, for retirement allowances, pensions, or other benefits for
employees of the City, their widows or other dependents, shall apply to persons
covered by the Plan established by this Ordinance.
11.06 Any changes in contributions or benefits contained in this Ordinance shall
apply prospectively to Members who are employed by the city on March 1g,
2006 who retire on or after such effective date, and to Members who enter the
service of the City after such effective date.
11.07 Effective as of March 18.2006. notwithstandinq anythinq herein to the
contraU, a member's benefits shall commence no later than Aoril 1 of the
calendar vear followinq the later of (a) the calendar vear in which he or she
attains aqe 70 % or (b) the calendar year in which the member retires. All
distributions from the Plan shall conform to the requlations issued under Section
401(a\(9) of the Internal Revenue Code, includino the incidental death benefit
provision of Section 401(aX9XG) of the lnternal Revenue Code. Further. such
reaulation shall override any Plan provision that is inconsistent with Section
401(aX9) of the lnternal Revenue Code.
an
retirement income payable from this plan shall satisfv the followinq conditions:
(a) lf the retirement income is payable before the member's death:
1) lt shall either be distributed or commence to the member not
later than April 1 of the calendar vear followino the later of the
calendar year in which the member attains aoe 70 1/2, or the
calendar vear in which member retires:
2) The distribution shall commence not later than the calendar
vear defined above: and (a) shall be paid over the life of the
member or over the lifetimes of the member and spouse. issue or
deDendent. or (b) shall be paid over the period extendinq not
beyond the life expectancv of the member and spouse, issue or
dependent.
Where a form of retirement income payment has commenced in
accordance with the precedinq paraqraphs and the member dies before
his entire interest in the plan has been distributed, the remaininq portion of
such interest in the plan shall be distributed no less rapidlv than under the
form of distribution in effect at the time of the member's death.
(b) lf the member's death occurs before the distribution of his interest in
the plan has commenced, member's entire interest in the plan shall be
distributed within five vears of member's death. unless it is to be
distributed in accordance with the followinq rules:
1) The member's remainino interest in the Plan is payable to his
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spouse, issue or dependent:
2) The remaininq interest is to be distributed over the life of the
spouse, issue or dependent or over a period not extendinq bevond
the life expectancv of the spouse. issue or dependent: and
3) such distribution beqins within one vear of the member's death
unless the member's spouse. is the sole desiqnated beneficiary, in
which case the distribution need not beoin before the date on which
the member would have attained aqe 70 1/2 and if the member's
spouse dies before the distribution to the spouse beqins, this
section shall be applied as if the spouse were the member.
Section 12. Rollover Distributions
12.01 Election by Distributee
This Article applies to distributions made on or after Janu ary 1, 1993.
Notwithstanding any provision of this Ordinance to the contrary that would
othenruise limit a distributee's election under this Article, a distributee may elect,
at the time and in the manner prescribed by the plan administrator, to have any
portion of an eligible rollover distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
12.02 Definitions
For purposes of this Article, the following definitions shall apply:
(a) Eligible rollover distribution: An eligible rollover distribution is
any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include:
any distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under Section a01(a)(9) of the lnternal Revenue
Code; and the portion of any distribution that is not includible in gross
income.
(b) Eligible retirement plan: An eligible retirement plan is individual
retirement account described in Section 408(a) of the lnternal Revenue
Code, an individual retirement annuity described in Section 408(b) of the
lnternal Revenue Code, an annuity plan described in Section 403(a) of the
lnternal Revenue Code, an eligible deferred compensation plan described
in section 457(b) of the lnternal Revenue Code which is maintained by an
oo49481 5 -2 49
109
eligible employer described in section 457(e)(1)(A) of the lnternal
Revenue Code and which agrees to separately account for amounts
transferred into such plan from this Plan, an annuity contract described in
section 403(b) of the lnternal Revenue Code, or a qualified trust described
in section 401 (a) of the lnternal revenue Code that provides or accepts
the distributee's eligible rollover distribution. Effective for distributions
made after December 31. 2001. an elisible retirement plan shall also
mean an annuity contract described in Section 403(b) of the lnternal
Revenue Code and an elisible plan under Section 457(b) of the lnternal
Revenue Code which is maintained by a state, political subdivision of a
state. or any aqency or instrumentalitv of a state or political subdivision of
a state and which aqrees to separatelv account for amounts transferred
into such plan from this Plan
irenrent
anri{*it1c
(c) Distributee: A distributee includes an Employee or former
Employee. ln addition, the Employee's or former Employee's surviving
spouse or domestic partner are distributees with regard to the interest of
the spouse or domestic partner. Effective as of Januarv 1, 2008, an
Employee's or former Emplovee's non-spouse Beneficiary is a distributee
with reqard to the interest of the Employee or former Employee.
(d) Direct rollover: A direct rollover is a payment by the plan to the
eligible retirement plan specified by the distributee. Effective as of January
1. 2008, a non-spouse Beneficiary may make a direct rollover onlv to an
"inherited" individual retirement account as described in Section 408(b) of
the lnternal Revenue Code. lf a non-spouse Beneficiary receives a
distribution from the Plan. the distribution is not eliqible for a 60-day (non-
direct) rollover.
3. Rollovers or Transfers into the Fund. on or after March 18, 2006, the
Plan will accept an eligible rollover distribution or direct transfer of distribution for
the purchase of credited service pursuant to Section 4.4 as follows:
(a) Transfers, Direct Rollovers or Member Rollover Contributions from
Other Plans. The Plan will accept either a direct rollover of an eligible
rollover distribution or a member contribution of an eligible rollover
distribution from a qualified plan described in section 403(a) of the Code,
from an annuity contract described in section 403(b) of the Code, or from
an eligible plan under section 457(b) of the Code, which is maintained by
a state, political subdivision of a state, or any agency or instrumentality of
a state or political subdivision of a state. The Plan will also accept legally
permissible Member requested transfers from eligible retirement plans.
(b) Member Rollover Contributions from 401 (a) Plans and lRAs. The
500049447 5-2
110
plan will accept a member rollover contribution of the portion of a
distribution from qualified plan described in section 401 (a) of the Code, or
from an individual retirement account or annuity described in section
408(a) or 408(b) of the Code, that is eligible to be rolled over and would
otherwise be includible in the member's gross income.
Section 13. Employees hired on or after September 30, 2010
Notwithstanding any other provision of the Plan, for employees hired on or after
September 30, 2010, other than employees hired in classifications within the
CWA (MBEBA) bargaining unit, the provisions of the Miami Beach Employees'
Retirement Plan created by Ordinance 2006-3504, as subsequently amended,
shall be applicable, except as set forth in paragraphs (a) through (i.) below.
Notwithstanding any other provision of the Plan, for employees hired on or
after October 27, 2010 in classifications within the CWA (MBEBA) bargaining
unit, the provisions of the Miami Beach Employees' Retirement Plan created by
Ordinance 2006-3504, as subsequently amended, shall be applicable, except
as set forth in paragraphs (a) through (i ) below.
(a) The normal retirement date shall be age 55 with at least thifi (30)
years of creditable service, or age 62 with at least five (5) years of
creditable service.
(b) The early retirement date shall be the date on which the member's
age plus years of creditable service equal 75, with a minimum age of 55
(c) Final average monthly earnings shall be an average of the highest
five (5) years of employment.
(d) The benefit multiplier shall be 25% multiplied by the member's
years of creditable service, subject to a maximum of 80% of the member's
FAME.
(e) The retiree Cost of Living Adjustment shall be 1.5% per year, with
the first adjustment deferred to one year after the end of the DROP.
(0 The employee contribution shall be 10o/o of salary.
(g) The standard form of benefit shall be a lifetime annuity.
(h) Members who separate from City employment with 5 or more years
of creditable service but prior to the normal or early retirement date shall
be eligible to receive a normal retirement benefit at age 62.
(i) Employees shall be eligible to enter the DROP at the normal
retirement age specified in paragraph a, above, and may participate in the
DROP for a maximum of 5 years.
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Section 14. Application to Members of the CWA bargaining unit who terminate
City employment following ratification of the 2003-2006 collective bargaining
agreement and before March 18, 2006
14.01. All provisions of this plan that are applicable to employees in
classifications within the CWA bargaining unit shall apply to such employees who
are employed on the date the 2003-2006 collective bargaining agreement
between the City and the CWA is ratified by the CWA bargaining unit and who
terminate City employment after that date, but prior to March 18, 2006, under the
following conditions:
(a) On or after February 1, 2006, the employee must submit a letter of
resignation/retirement to their respective Department Head and the City
Labor Relations Director providing a minimum of two (2) weeks notice,
(i.e., the employee will agree to work a minimum of ten (10) additional
working days (not including sick or annual leave time); and
(b) The employee will leave any accrued sick or annual leave time with
the City until they exercise any retirement options contained in this
ordinance; and
(c) Following the second reading of the this ordinance, the employee
will have a period not to exceed twenty (20) days to submit all changes
and any required monetary payments for the buyback and/or 401A
conversion to the Pension Office.
(d) ln the event that the election and/or full payment is not made within
the specified twenty (20) day time frame, there will no changes made to
the pension for that employee, and any accrued sick or annual leave shall
be paid to the employee.
Section 2. lncorporation by Reference of Resolution No. 2013-28290.
Resolution No. 2013-28290, accepting the recommendations of the
Finance and Cihrrwide Projects Committee at its May 13,2013 meeting, to adopt
the Budget Advisory Committee's proposed policies and guidelines in order to
ensure long term pension reform, is incorporated herein by reference pursuant to
Ordinance No. 201 3-3806.
Section 3. Conflicts and Severability.
(a) All Ordinances, and parts of ordinances, in conflict herewith shall
be and the same, are hereby repealed.
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(b) !n the event any article, section, paragraph, sentence, clause, or
phrase of this Ordinance shall be adjudicated invalid or unconstitutional, such
adjudication shall in no manner affect the other articles, sections, paragraphs,
sentences, clauses or phrases of this Ordinance, which shall be and remain in
full force and effect as fully as if the item so adjudged invalid or unconstitutional
was not originally a part hereof.
Section 4. Effective Date.
This Ordinance shall take effect the _ day of 2015.
PASSED and ADOPTED this day of 2015.
PHILIP LEVINE
MAYOR
ATTEST:
APPROVED AS TO
FORM & TANGUAGE
& FOR EXECUTION
RAFAEL E. GRANADO
CITY CLERK
(Sponsored by Commissioner Deede Weithorn)
Underscore denotes new lanquage
(Ordinance Nos. 2006-3504, 2006-3530, 2007-3575, 2009-3626, 2009-3664,
20 1 0-3693, 20 1 0 -37 06, 20 13-3 806, 201 4-3937, 20 1 4 -3964)
,(",, -Dote
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R7
RESOLUTIONS
114
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Approving And
Authorizing The Mayor And City Clerk To Execute A Construction Manager At Risk Agreement With Clark
Construction Group, LLC ("Clark"), Pursuant To Request For Proposals (RFP) No. 2015-129-ME, For
Construction Manager At Risk Services For The Miami Beach Convention Center Renovation And Expansion
COMMISSION ITEM SUMMARY
On February 11,2015, the City Commission elected to re-bid the Project under a Construction Manager-at-Risk
(CMR) prqect delivery method, an approach that allows for the continued development of the design for the
Project with the benefit of input from the Construction Manager prior to establishment of the Guaranteed
Maximum Price (GMP) for the Project, currently anticipated to occur on or about October, 2015.
On March 2, 2015 a request for proposal was issued, advertised and emailed to national and local construction
management firms. Only one proposal was received from Clark Construction ("Clark").
On April 15,2015, the City Commission authorized the Administration to eliminate the RFP Evaluation Committee
and open Clark's sealed proposal, to permit the City Manager to proceed with the due diligence process and
make a recommendation to the City Commission concerning award. On April 29, 2015, the City Commission
accepted the recommendation of the City Manager to award the RFP to Clark and authorized the Administration
to enter into negotiations with Clark, subject to prior approval of the final agreement by the Mayor and City
Commission.
The Construction Manager at Risk Agreement attached and incorporated as Exhibit "A" hereto, provides for the
Construction Manager to perform Pre-Construction Phase Services; creates a process for the development of a
Guaranteed Maximum Price ("GMP") for the Project, subject to City Commission approval of a GMP Amendment;
fixes the Construction Manager's Overhead and Profit Fee for the duration of the Project; and establishes the
contract terms and provisions that detail the City's and the Construction Manager's rights and responsibilities with
respect to the Project, including with respect to the construction phase and post-construction phase of the
Project.
GMR Fee Proposal
Clark initially proposed a CMR fee equating to 3.95% of the work they manage. This equated to a fee of
approximately $19 million based on the current budget. Clark has agreed to reduce their fee to 3.8% of the work
they manage, or to $18.3 million based on the current budget.
Pre-Guaranteed Maximum Price ("GMP") Services Proposal
Clark initially proposed a Pre-GMP Services Fee of $3,669,799. The Pre-GMP Services Fee has been reduced
to $2,594,073, a reduction of $1 ,075,726 (assuming a successful GMP negotiation). lf a successful GMP cannot
be reached, the City is to pay an additional $400,000 demobilization fee.
The Administration recommends the adoption of the Resolution.
Advisory Board Recommendation:
Financial lnformation:
Source of
Funds:
Amount Account
1 $2,s94,073 Fund 429 - Line of Credit| (<ul
qBPr
2
Total $2,594,073
Financial lmpact Summary: N/A
lmprove alliance with key business sectors, namely hospitality, arts & international business with a focus on
enhanced culture. entertainment & tourism.
Supporting Data Environmental Scan, etc N/A
Item Summary/Recommendation :
Department Dirpctor Assistant City Manager
-
City al?qer
MHflH .W,,hPW JLM lvt
:\AGENDA\20 1 5\May\MBCC\CMAR Agreement Agreement Execution - SUMMARY
AGENDA 'IE"
R7A
onre 5-Zo-(S-MIAMIBEACH 115
MIAMIBEACH
City of Miomi Beoch, 1700 Convention Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members
FROM: Jimmy L. Morales, City Manager
the City
DATE: May 20,2015
SUBJECT:A RESOLUTION OF THE MAYOR1AND CITY GOMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA,AND AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE A CONSTRUCTION MANAGER AT RISK
AGREEMENT WITH CLARK CONSTRUCTTON GROUP, LLc (,,CLARK"),
PURSUANT TO REQUEST FOR PROPOSALS (RFp) NO. 2015-129-ME, FOR
CONSTRUCTION MANAGER AT RISK SERVICES FOR THE MIAM! BEACH
CONVENTION CENTER RENOVATION AND EXPANSION PROJECT
("PROJECT").
ADMINISTRATION REGOMM ENDATION
Adopt the Resolution.
FUNDING
$2,594,073 Fund 429 - Line of Credit
KEY INTENDED OUTCOME
lmprove alliance with key business sectors, namely hospitality, arts & international business with
a focus on enhanced culture, entertainment & tourism.
BACKGROUND
On February 11,2015, the City Commission elected to re-bid the Project under a Construction
Manager-at-Risk (CMR) project delivery method, an approach that allows for the continued
development of the design for the Project with the benefit of input from the Construction Manager
prior to establishment of the Guaranteed Maximum Price (GMP) for the Project, currently
anticipated to occur on or about October, 2015.
On March 2,2015 a request for proposal was issued, advertised and emailed to national and local
construction management firms. Proposals were due on April 9,2015. Only one proposal was
received from Clark Construction ("Clark").
On April 15, 2015, the City Commission authorized the Administration to eliminate the RFP
Evaluation Committee and open Clark's sealed proposal, to permit the City Manager to proceed
with the due diligence process and make a recommendation to the City Commission concerning
award. On April 29, 2015, the City Commission accepted the recommendation of the City
Manager to award the RFP to Clark and authorized the Administration to enter into negotiations
with Clark, subject to prior approval of the final agreement by the Mayor and City Commission.
116
Request for Proposals (RFP) No. 2015-129-ME for Construction Manager at Risk Seryrces
May 20,2015
Page 2 of 5
The negotiated Construction Manager at Risk Agreement attached and incorporated as Exhibit "A"
hereto, provides for the Construction Manager to perform Pre-Construction Phase Services;
creates a process for the development of a Guaranteed Maximum Price ("GMP") for the Project,
subject to City Commission approval via a GMP Amendment; fixes the Construction Manager's
Overhead and Profit Fee for the duration of the Project; and establishes the contract terms and
provisions that specify the City's and the Construction Manager's rights and responsibilities with
respect to the Project, including with respect to the construction phase and post-construction
phase of the Project.
ANALYSIS
Key Contractual Terms
The attached contract includes the following key contractual terms:
1. Comprehensive scope of services for Pre-Construction Phase Services, Construction Phase
Services, and the Post-Occupancy/Close-out Phase;
2. Process and timeline for development of the Guaranteed Maximum Price for the Project based
on 65% completed Construction Documents, subject to City Commission approval of a GMP
Amendment;
3. Competitive "open book" trade bidding for work performed by Subcontractors and Suppliers;
4. Detailed provisions for Quality Assurance/Quality Control to ensure City's quality requirements
are met;
5. Schedule requirements and specified damages for failure to achieve key Art Basel milestones,
as well as liquidated damages in the amount of $15,000 per day for failure to timely achieve
Substantial Completion (currently anticipated to be May 31 , 2018);
6. Shared savings split in the event the final cost of the Project is certified to be within the GMP,
with 75% of savings to City and 25o/o to Construction Manager;
7. Obligation to develop plans for local workforce hiring to maximize the employment of City of
Miami Beach and Miami-Dade County residents, with periodic reporting to measure success;
and
8. Detailed audit rights in favor of City of Miami Beach and Miami-Dade County (in accordance
with Miami-Dade County General Obligation Bond grant requirements).
CMR Fee Proposal
Clark initially proposed a CMR fee equating to 3.95% of the work they manage. This equated to
a fee of approximately $t9 million based on the current budget. Clark has agreed to reduce
their fee to 3.8% of the work they manage, or to $18.3 million based on the current budget.
lnitial anecdotal research indicated CMR fees typically ranged from 2.75o/o to 3.0%. Detailed
research has revealed that actual fees are typically higher. Below is a summary of comparable
CMR fees for local and national projects:
117
Requesf for Proposals (RFP) No. 2015-129-ME for Construction Manager at Risk Seryices
May 20, 2015
Page 3 of 5
Year* Const. Cost Fee
Miami Marlins Ballpark HunUMoss JV 2012 $620m 3.15o/o
Miami Science Museum Suffolk Current $109m 3.5o/o
Boston Conv. & Expo Center ClarUHubert
Hunt 2004 $463m < 3.95%
Amway Center Orlando Hunt 2010 $480m < 4o/o
Orlando Performing Arts Center Balfour Beatty 2014 $200m < 4o/o
Orlando Phase V HunVClark JV 2003 $520m 4%
Phoenix CC Expansion Hunt 2008 $552m 4o/o
Music City Center Nashville Clark 2013 $372m 4.25o/o
McCormick Place HQ Hotel Clark Current $335m 4.50o/o
McCormick Place Events Center Clark Current $142m 5.250/o
MIA South Terminal Parsons-
Odebrecht 2007 $840m 60/o
MIA North Terminal Parsons-
Odebrecht 2014 $1,450m 60/o
*Date Completed
ln cases where "<" is indicated, meaning less than, the
recall the exact fee percentage.
project manager contacted could not
While the fee is higher than the City's budget of 3o/o or $14.6 million, the additional fee will not
increase the maximum construction budget of $500.3 million. The additional fee will be funded
from contingencies that are built into the current construction budget.
Pre-Guaranteed Maximum Price ("GMP") Services Proposal
The CMR Contract incorporates three key contractual phases:
1. The contract that the City Commission is considering focuses on; i) the CMR Fee, ii) a
fixed price to not exceed for Pre-GMP services (May 2015 through October 2015), and
iii) the general contractual terms and conditions.
2. ln October of 2015, the City Commission will consider a "GMP Amendment" that will be
the result of the pre-GMP services, a five-month process to agree upon a GMP,
including Clark's long{erm staffing costs to manage the construction.
3. The project will then be competitively bid over the next several months. Any savings as
a result of the competitive bidding, below the GMP, is contemplated to be spilt 75o/o lo
the City and 25% to Clark. The $400+ million worth of construction trade subcontracts
will be competitively bid pursuant to an "open book" contracting process. ln addition, the
bidding of the trades following the GMP Amendment in October,2015 will be based on
much further-completed design packages, thereby bringing greater certainty to the bid
118
Requesf for Proposals (RFP) No. 2015-129-ME for Construction Manager af Rlsk Seryices
May 20, 2015
Page 4 of 5
process and pricing that better reflects the costs actually required to complete the
Project.
Clark initially proposed a Pre-GMP Services Fee of $3,669,799. The Pre-GMP Services Fee has
been reduced to $2,594,073, a reduction of $1,075,726 (assuming a successful GMP negotiation).
lf a successful GMP cannot be reached, the City is to pay an additional $400,000 demobilization
fee. Below summarizes the changes in the Pre-GMP Fee:
-lnif"rsl Fropp"s:!Ng_egliete{ pgnlragt
$2.424.269 Staffrng
$2,167,898
. Reduced hours to provide for
5121- 10/31 only
. Added senior oversight & permit
expediter for non-City permits
. $160,000 average annual comp
. $255,000 average comp + burden
. $256,271 reduction
530,530 Expenses
$326,1 75
. Postponed trailer costs
to post GMP
. Reevaluated travel expenses
. $204,355 reduction
715,000 Fee $100,000
. $615,000 reduction
3,669,799
-0-
S u btota l
Demobilization
Tctal
2,594,073
. $1,075,726 reduction
1$2,500
ooofufs;t
400,000
. Paid only if do not come to
agreement on GMP
$2,994,073
$675,726 reduction$3,669,799
119
Requesf for Proposals (RFP) No. 201 5-129-ME for Construction Manager at Risk Servrces
May 20, 2015
Page 5 of 5
The negotiated fee assuming a successful GMP negotiation is $94,073 higher than the City's
budget of $2.5 million. The additional fee will not increase the maximum construction budget of
$500.3 million. The additional fee will be funded from contingencies that are built into the
construction budget.
CONCLUSION / RECOMMENDATION
The Administration recommends that the Mayor and City Commission direct the Administration
to execute the attached Construction Manager At Risk Agreement with Clark Construction Group,
LLC ("Clark"), pursuant to Request for Proposals (RFP) No. 2015-129-ME, for construction
manager at risk services for the Miami Beach Convention Center Renovation and Expansion
Project ("Project").
Attachments:
Exhibit A - Construction Manager At Risk Agreement with Clark Construction Group, LLC
JLM / MT / AD/ MH
T:\AGENDA\201S\May\MBCC\CMAR Agreement with Clark Construction\MBCC CMR Agreement Execution -
MEMO.docx
120
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A CONSTRUCTION MANAGER AT RISK AGREEMENT WITH
CLARK CONSTRUCTION GROUP, LLC ("CLARK"), PURSUANT TO REQUEST FOR
PROPOSALS (RFP) NO. 201s-129-ME, FOR CONSTRUCTTON MANAGER AT RISK
SERVICES FOR THE MIAMI BEACH CONVENTION CENTER RENOVATION AND
EXPANSION PROJECT ("PROJECT"), WITH A LUMP-SUM PRE-CONSTRUCTION
PHASE FEE IN THE AMOUNT OF $2,594,073.
WHEREAS, Request for Proposals No. 2015-129-ME (the RFP) was issued on March 2,2015,
with an opening date of April g, 2015; and
WHEREAS, a voluntary pre-proposal meeting was held on March 1g, 2015; and
WHEREAS, the City received one (1) proposal from Clark; and
WHEREAS, on April 15, 2015, the City Commission authorized the Administration to eliminate
the RFP Evaluation Committee and open Clark's sealed proposal, to permit the City Manager to proceed
with the due diligence process and make a recommendation to the City Commission concerning award;
and
WHEREAS, on April 29, 2015, the City Commission accepted the recommendation of the City
Manager to award the RFP to Clark and authorized the Administration to enter into negotiations with
Clark, subject to prior approval of the final agreement by the Mayor and City Commission; and
WHEREAS, the Construction Manager at Risk Agreement attached and incorporated as Exhibit
"A" hereto, provides for the Construction Manager to perform Pre-Construction Phase Services; creates a
process for the development of a Guaranteed Maximum Price ("GMP") for the Project, subject to City
Commission approval of a GMP Amendment; fixes the Construction Manager's Overhead and profit Fee
for the duration of the Project; and establishes the contract terms and provisions that detail the City's and
the Construction Manager's rights and responsibilities with respect to the Project, including with respect to
the construction phase and poslconstruction phase of the Project.
NOW, THEREFORE, BE !T DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve and
authorize the Mayor and City Clerk to execute the Construction Manager at Risk Agreement with Clark
Construction Group, LLC attached hereto as Exhibit "A," pursuant to Request for Proposals (RFp) No.
2015-129-ME, for Construction Manager at Risk Services for the Miami Beach Convention Center
Renovation and Expansion Project, with a lump-sum Pre-Construction Phase Fee in the amount of
$2,594,073.
PASSED AND ADOPTED this day of 2015.
ATTEST:
Philip Levine, Mayor
APPRO\trD AS TO
FORM & IAhIGUACE
& FOR EXECUnOL
Rafael E. Granado, City Clerk
Wsl6CllyAtlotney f1g1>121
Exhibit "A"
Construction Manager at Risk Agreement
By and Between
The City of Miami Beach, Florida
And
Clark Construction Group, LLC
For The
MIAMI BEACH CONVENTION CENTER
RENOVATION AND EXPANSION PROJECT
Resolution No.
RFP No. 2015-129-ME
122
TABLE OF CONTENTS
ARTICTE 1
THE PROJECTTEAM AND EXTENT OF AGREEMENT
ARTICLE 2
CONSTRUCTION MANAGER'S SERVICES
ARTICLE 3
RESPONSI BI LITI ES OF CITY, ARCH ITECT.ENG I N EER, AN D OWN ER'S RE PRESE NTATIVE
ARTICLE 4
PERFORMANCE OF WORK AND SUBCONTRACTS
ARTICTE 5
SCHEDULE, TIM E OF COMMENCEMENT AND SUBSTANTIAL COM PLETION
ARTICLE 5
GUARANTEED MAXIMUM PRICE FOR CONSTRUCTION
ARTICLE 7
CONSTRUCTION MANAGER'S FEE
ARTICTE 8
COSTOFTHE PROJECT
ARTICLE 9
CHANGE IN THE PROJECT
ARTICLE 10
RIGHTTO PERFORM CONSTRUCTION ANDTO AWARD SEPARATE CONTRACTS; MUTUAL RESPONSIBILITY
ARTICTE 11
PAYMENTS TO THE CONSTRUCTION MANAGER
ARTICLE 12
BONDS, INSURANCE, INDEMNITYAND WAIVER OF SUBROGATION
ARTICLE 13
SUSPENSION OF WORK; TERMINATION OF THE AGREEMENT; CITY'S RIGHTTO PERFORM CONSTRUCTION
MANAGER'S OBLIGATION
ARTICLE 14
ASSIGN MENT AND GOVERNING LAW
ARTICTE 15
CLAIMS; WAIVER OF REMEDIES; DISPUTE AVOIDANCE AND RESOLUTION
ARTICTE 15
MISCELLANEOUS
1
1
10
10
36
36
40
40
46
46
55
55
58
58
62
62
67
67
75
75
77
77
84
84
86
86
93
93
94
94
95
96
123
APPENDICES
APPENDIX A
PROJECT TEAM ASSIGNED REPRESENTATIVES
APPENDIX B
CONSTRUCTION MANAGER
APPENDIX C
PROJECT SITE
APPENDIX D
PROJECT PHASES OF THE WORK AND MILESTONES
APPENDIX E
INSUMNCE AND BONDING REQUIREMENTS
APPENDIX F
DI RECT PURCHASE PROGRAM
APPENDIX G
DISPUTE AVOIDANCE PANEL
APPENDIX H
SOFTWARE FU NCTIONAL REQU IREMENTS
APPENDIX I
QUAttW CONTROL/QUAIITY ASSU RANCE
APPENDIX J
FORMS AND EXHIBITS
105
105
106
106
L07
L07
108
108
LLL
111
116
116
119
119
L25
L25
L28
L28
133
133
124
CONSTRUCTION MANAGER AT RISK AGREEMENT
THIS AGREEMENT is made this
-
day of May, 2015, and is between the City of Miami Beach,
Florida, a municipal corporation of the State of Florida ("City'), as Owner, and
Clark Construction Group, LLC
2502 North Rocky Point Drive, Suite 200
Tampa, FL 33607
Phone 813 636-4422
FED lD: 56-2447399
("Construction Manager'').
RECITALS
WHEREAS, the City wishes to develop, design and construct the Project (as hereinafter defined) on a
certain parcel of land located in the City, which parcel of land is more particularly described in Appendix C
attached hereto (the "Project Site"); and
WHEREAS, pursuantto a Requestfor Proposals RFP No.2015-129-ME (the "RFP"), the City requested
proposals from qualified firms for Construction Management-at-Risk Services for the Project in
accordance with the terms and conditions of the Contract Documents (as hereinafter defined); and
WHEREAS, the Construction Manager submitted its response to the RFP (the "RFP Proposal
Submission") and was deemed the most qualified for the performance of the services described in the
RFP, which RFP Proposal Submission and RFP are attached hereto in Appendix J; and
WHEREAS, Construction Manager represents that it possesses the requisite expertise and desires
to be engaged by the City as the Construction Manager at Risk to provide the services as set forth
herein; and
WHEREAS, the City Commission has authorized the Mayor to execute and enter into this Agreement
by Resolution No. 2015-_ adopted May _, 2015;
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
THE PROJECT TEAM AND EXTENT OF AGREEMENT
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 RFP 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 Proiect 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. The specific representatives of the Project Team are shown in Appendix
A attached hereto.
125
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 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 Aqreement. 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. ln cases of conflict between
Contract Documents, the order of precedence of the Contract Documents shall be as follows:
a. Change Orders and other Contract Modifications to this Agreement
(excluding the Construction Documents);
b. This Agreement and all appendices and schedules attached hereto
(excluding the Construction Documents);
writing by the City;
c. Modifications to the completed Construction Documents, as approved in
d. The completed Construction Documents, as approved in writing by the
City.
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 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 detail plans which may be prepared or approved by City after the execution of
the Contract and which may be fairly inferred from the original specifications and plans are to be deemed
a part of such specifications and plans, and that portion of the Work shown thereby shall be performed
126
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, (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 othen'yise 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 otherurise specifically
defines such word.
1.3.1.8. The Recitals, appendices 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 obllgation, enforceable according to the terms thereof.
1.4.1 . Construction Manager covenants, represents and warrants to City that:
1.4.1.1. lt is a business organization duly organized, validly existing and in good
standing under the laws of the State of Maryland, 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. lt 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;
1.4.1.4. lt 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 lndependent 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
127
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.
..Ap.@s,'meanSalllaws,codes(includingbuildingcodes),ordinances,rulesandregu|ations
of governmental authorities having jurisdiction over the Project or the Parties.
"&hj,l!SILE!.@I" means Fentress Architects, 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).
..@',meanSthatportionoftheGMPreflecting(a)theCostoftheProject,and(b)the
Construction Manager's Fee under Subsections 7.1.2 and 7.1.3.
"9-hg!g.,,1QI{gl" 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 Contract Documents.
"gE" means the City of Miami Beach, a Florida municipal corporation, having its principal offices at
1700 Convention Center Drive, Miami Beach, Florida 33139. ln 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. ln the event City exercises its regulatory authority as a governmental body, including to its
regulatory authority for code inspections and issuance of building 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.
"Citv Commission" means the governing and legislative body of the City.
"Citv's Construction Budqet" means City's funds budgeted for construction of the Project, which shall
include a budget for the parking components and a separate budget for the remainder of the Project
(which may not utilize any of the funds allocated for parking due to bond financing constraints). The City's
Construction Budget is $500,300,000.00, including all Construction Manager fees, Costs of the Project
and the Construction Manager's Contingency as 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.
"Citv's Continsencv" or "Gitv Continqencv" 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 Project,
as well as additional expenses expressly chargeable to the City or othenruise 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 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 and shall not constitute or be used to calculate Project Cost Savings.
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"Gitv Manaqer" 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 Project Coordinator)
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. 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.
..@,'meanSthepersondesignatedbyConstructionManagerasitslead
representative to the City. The Construction Manager 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.
"9Etg!3E!Lty" 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.
..,'meanSawrittendirectivetoeffectchangestotheWork,
prepared by the Architect-Engineer and executed by the City.
..@,'meanSandiscomprisedoftheConstructionManager'sContingencyand
the separate City Contingency.
..@''meanSalltechnicaldrawingsandotherdocumentsissuedbytheArchitect.
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 (including Division 1 through _
of the Specifications).
..@,'meanSClarkConstructionGroup,LLCanditssuccessorsandassigns,andis
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. 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.
..''meanSthatportionoftheGMPavailableforusebythe
Construction Manager to defray the increased Cost of the Project reasonably and necessarily incurred by
the Construction Manager due to unforeseen circumstances relating to construction of that 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. ln no event shall the use
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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.
"@tgg!jqf@" means that period set forth in the Project Schedule beginning on the effective
date as set forth in a Notice to Proceed 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 Construction Phase may include the
period required to complete the Construction Documents following the issuance of the Notice to Proceed,
to the extent such documents remain incomplete.
"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 cost and resource-loaded critical path
method working schedule of Work activities of Construction Manager and Subcontractors, and
identifying intermediate Milestones.
"Construction Superintendent" means the Construction Manager's representative who is responsiblefor continuous field supervision, coordination, and completion of the Work. The Construction
Superintendent is responsible for management of the Project Site and tasks including organization and
coordination of the Work of Subcontractor employees, keeping cost records on Work performed and
materials, controlling of costs in materials and wages; exercising control over rate of construction
progress to assure completion of the Project within the Project Schedule; inspecting Construction
Work to enforce conformity to the Contract Documents and supervising trades, subcontractors,
clerical staff, and other personnel employed in the construction.
..@,'meanSthisAgreementandallappendices,exhibitsandschedulesattached
hereto; Change Orders and other duly executed Contract Modifications to this Agreement, including the
GMP Amendment; and the completed Construction Documents and modifications to the Construction
Documents, each as approved by the City
"Gontract Modification" means a written order (including Change Orders and Construction Change
Directives) changing the scope of the Work, the amounts City is obligated to pay for the full and complete
performance of the Work, the Project Schedule, or any other rights, duties or obligations of the Parties
issued to Construction Manager by City after the Effective Date of this Agreement.
..@,,meanStheamountestablishedintheContractDocumentsasthetotalamounttheCity
is obligated to pay for full and complete performance of all of the Work required by the Contract
Documents, 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 in the GMP Amendment, and as may be amended by Change Order.
..@4cr''ShallmeantheentiretyoftheMiamiBeachConventionCenterfacilitylocatedat
1901 Convention Center Drive, Miami Beach, Florida, and as depicted or described in the Project Site in
Appendix C.
,.@&igg!''meansthecostsnecessarilyincurredduringtheConstructionPhaseoftheProject
and paid by the Construction Manager, as prescribed by Article 8.
r'998" and/or all references to numbers of days in the Contract Documents, shall be construed to mean
calendar days, unless specifically noted otheruvise. 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.
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..@,'meanSdesignservicesandcertificationstheConstructionManageris
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.
"Desiqn Deyelopment 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.
"Effeeltive Date of this Aqreement" means the date specified in the introductory clause of this
Agreement.
"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.
"E!gllg11p!g!b" 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.
..@',meanSthedateonwhichFinalCompletionisdeclaredbyCitytohave
occurred.
"fu|hg@!!S" means inspection of the Work by City and Construction Manager pursuant to the
Contract Documents to establish Final Completion.
"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 Fee 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.
"@!@!S!@g]" 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.
"@|fuEg!" 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.
,,@@',meanSanyhazardousmaterialsorhazardoussubstancesasdefinedinthe
Comprehensive Environmental, Response, Compensation and Liability Act ("CERCLA") or the Resource
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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.
..@''meanSthenotificationprovidedtotheCityandtheArchitect-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, and shall include the specific
Milestones set forth in Appendix D and further delineated in the Project Schedule.
"&!!qjq@gd" 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 othenryise 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.
..@''meansthedateonwhichtheNoticetoProceedisissuedtoConstruction
Manager, or the date stated in the Notice to Proceed as being the Notice to Proceed Date, whichever is
later.
..@''meanSHilllnternational,lnc.,theentityengagedtoassisttheCityin
monitoring all aspects of the Work to confirm that the Construction Manager delivers a Project that is in
accordance with the requirements of the Contract Documents. lf the City terminates its agreement with
the Owner's Representative, either the City shall engage a new Owner's Representative or the Project
Coordinator shall serve in the capacity of Owner's Representative and shall be responsible for all
functions of the Owner's Representative delineated in this Agreement.
"Parties" means City and Construction Manager, and "Party" is a reference to either City or Construction
Manager, as the context may indicate or require.
"&4.ry!S!g!!g" 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.
..,'meanStheservicestheConstructionManagershallperformprior
to the Notice to Proceed for the Construction Phase, as set forth more fully in Sections 2.5 and 2.6 of
this Agreement.
"Plgigg!" means the complete renovation of the Convention Center, including an expansion of a
ballroom and auxiliary spaces; parking above portions of the Convention Center; exterior landscaping and
a 6.5 acre public park; the renovation of Convention Center Drive, including relocation of utilities; 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.
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..&j@I''meanSMariaHernandez,ProjectDirectorfortheMiamiBeachConvention
Center District, or any other individual(s) designated in writing by the City Manager, who shall be the
City's authorized representative to coordinate and facilitate (on behalf of the City) all matters related to
the Project.
"fui !Sg!!.S," shall have the meaning ascribed to it in Subsection7.2.1.
"fuigglJglggl" means the Project Manager for the Construction Manager.
"Plgis!gt-&Edg!9" or "@g!9" means the City-approved and accepted detailed cost and resource-
loaded critical path method master schedule 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.
"hig1!-s" shall have the meaning ascribed to it in the Recitals.
"&ig!.fg@" means the Construction Manager, the Project Coordinator and other designated City
representatives, the Owner's Representative and the Architect-Engineer.
"Punch List" means the list or lists prepared by Construction Manager, the Architect-Engineer, Owner's
Representative, and the City, identifying matters that remain to be completed between achievement of
Substantial Completion and Final Completion in order that Final Completion can be declared by City to
have occurred.
"l@L&.dy" 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.
"RFP Proposal Submission" means the response to the RFP submitted by the Construction Manager
during the selection process attached hereto as part of Appendix J, 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 RFP
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 the level of services represented therein.
..@,,meanSawrittenschedulesettingforththedetailedanditemizedcost
breakdown, inclusive of labor, material, and taxes of all elements comprising the GMP set forth in the
GMP Amendment.
"9h9tr!ryi!.S," 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.
,.@I(s)''meanSanyperSonorentitywithwhomtheConstructionManagercontractsto
perform any part of the Work or to supply materials in relation to the Work. ln 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.
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..@',shallbedeemedtohaveoccurredwhentheWork(includingallmeeting
rooms, all exhibition space, all food service facilities, all vertical transportation, all life support and safety
systems, all ballrooms and all public space), 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 the issuance of a certificate of occupancy or
completion by the authority having jurisdiction, and a Certificate of Substantial Completion by the
Architect-Engineer and acceptance of such certificate by the City.
..@''meanSthedateonwhichSubstantialCompletionoftheWorkis
declared by City to have occurred.
..@''meanSthedetailedanalysisofsystems,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.
"s49!g] or "Sgpp!!gI" 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, licenses, tests, inspections, 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, 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.
1.7 The Parties acknowledge that the progress of the Project is subject to the continued participation
and cooperation of third parties, which can affect both the availability and timing of funding, as well as
critical path activities involving the design and construction of projects that are outside of this Agreement,
but affect this Project. Accordingly, there is no representation by City that the amount, timing, or
sequence of the Work will occur as anticipated. Construction Manager will have no Claim for delay in
initiating the Work.
ARTICLE 2
CONSTRUCTTON 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 RFP Proposal Submission. The services described or
specified shall not be deemed to constitute a comprehensive specification having the effect of excluding
services not specifically mentioned. Unless otherwise provided in this Agreement, or as agreed 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 or Owner's
Representative, and Construction Manager shall submit such materials to Owner's Representative for
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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. Proiect Manaqement lnformation Svstem (PMIS).
2.1.1.1. Commencing immediately after the Effective Date of this Agreement, the
Construction Manager shall implement and utilize throughout the life of this Agreement the Project
Management lnformation System (PMIS) as described herein or modified by mutual agreement. The
PMIS shall include suitable management systems and work plans, including software, for the Project
relative to Project safety, quality assurance, managing and controlling the Work and all construction,
scheduling and contracting services and all other services to be provided to the City hereunder, and shall
substantially meet the functional single source solution requirements set forth in Appendix H.
Construction Manager shall implement and use the City's e-BuilderrM 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 underthe PMIS 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. Furthermore, the PMIS shall provide a sound basis for identifying
variances and problems and shall serve as a resource for making management decisions. Utilizing
computerized systems, reports shall be prepared and furnished to the members of the Project Team
monthly. Data within the PMIS shall be accessible electronically (via website) at all times by the
members of the Project Team and sent as requested to Project Team.
2.1.1.3. lf requested by the Project Coordinator or Owner's Representative, the
Construction Manager shall conduct a comprehensive workshop for participants designated by the
Prolect Coordinator and additional seminars as required to provide instruction to members of the Project
Team to facilitate each participant's use and understanding of the PMIS. Furthermore, the workshop shall
emphasize function and organization of the PMIS during the design and construction of the Project; and
shall establish, with the full concurrence of the Project Team, procedures for accomplishing the
management control aspect of the Prolect. All information conveyed in the instruction workshop shall
have the full concurrence of the Project Coordinator or Owner's Representative.
2.1 .1.4. The PMIS shall include the following major elements:o Narrative Reports and Monthly Progress Reportso Schedule Control,. Cost Control, and Estimating,. Project Accounting,e Accounting and Payment,. Action Reports,. Critical lssues Look Ahead,o Test and lnspection Reports,o Permits,. Request for lnformation (RFl's),o Submittals,. Non-Conforming Work Reports,o Safety and lncident Reports,. Meeting Minutes, and. Site CM and Subcontractor Daily Reports
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2.1.2. Narrative Reportinq.
2.1.2.1. The Construction Manager shall prepare monthly written reports as described
hereunder. All written reports shall be in 8 112" X 1 1" 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 any permitting authority.
b. A Monthly Cost Narrative describing the current construction cost
estimate status of the overall Project. Contract Modification or potential Claim status (i.e., amount, reason
for change, responsibility) 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 Accounting Narrative describing the current cost and payment
status of the entire Project. This report shall relate current encumbrances and expenditures to the budget
allocations.
e. A Monthly Construction Progress Report during the Construction Phase
summarizing the Work of the various Subcontractors. This report shall include information from the
weekly Jobsite 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 Progress Report must be approved and accepted by
the City, the Owner's Representative and Architect-Engineer, and will establish the format to be used for
each subsequent monthly Progress Report. Construction Manager shall index, bind and tabulate the
monthly Progress Report in a manner acceptable to the City. The Progress Reports shall include photos
documenting the progress of the Work. The photos will be 8" x 10" in size, with the date and location
noted on the back of each photo. A back-up flash drive or CD of the photos is to accompany the
photographs. The Progress Reports and Project photos are to be made an attachment to the
Construction Manager's monthly Application for Payment.
f. A Daily Construction Diary 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 Project Team. A bound copy of the complete diary shall be submitted to the City at the
conclusion of the Project.
g. 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 or
Owner's Representative.
2.1.2.3. The written reports outlined in Subsection 2.1.2.2 above shall be bound with
applicable computer reports and submitted monthly during the Pre-Construction Phase based on the
then-current available Construction Documents, and monthly during the Construction Phase. Copies shall
be transmitted to the members of the Project Team and others designated by the Project Coordinator with
the monthly Application for Payment. Additional copies of the report outlined in Subsection 2.1.2.2(a) shall
be bound separately and distributed monthly as directed by the Project Coordinator. Certain electronic
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copies of reports shall be transmitted electronically to the Project Coordinator and others as may be
designated by the Project Coordinator.
2.1.3. ScheduleControl.
2.1.3.1. Master Proiect Schedule. Within thirty (30) days after the effective date of this
Agreement, the Construction Manager shall develop and submit a master Project Schedule covering the
planning and design approvals, 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. As the Project Schedule will be the basis for payment,
no payment for Construction Phase Services can be made until the Construction Manager has submitted
an acceptable City-approved Project Schedule.
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 Owner's
Representative 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 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
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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. Occupancv 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.
2.1.5. Proiect Accountinq. The Construction Manager shall utilize its standard accounting
system that will enable the Project Team to plan effectively and to monitor and control for the Project the
funds available, cash flow, costs, Contract Modifications, payments, and other major financial factors by
comparison of budget, estimate, total commitment, amounts invoiced, and amounts payable. The Project
accounting system utilized by Construction Manager will serve as a basic accounting tool and an audit
trail. The Construction Manager will retain all Project files in a manner consistent with proper accounting
procedures in accordance with GAAP standards (or other comparable standards if specified by the City)
that are sufficient for an audit by the City for a period of 5 years after Final Completion. The Project
accounting system will include the following reports:
a. Cost Status Report presenting the budget, estimate, and baseline costs
(awarded subcontracts and purchase orders) for any given subcontract or budget line item, including
notations of remaining subcontracts necessary for complete buyout of the Work. lt shall show approved
Contract Modifications for each subcontract that, when added to the base-line costs, will become the
revised costs. Pending contract modifications will also be specifically identified and incorporated into the
Cost Status Report to illustrate the total estimated probable cost to complete the Project.
b. Pavment Status Report showing the value in place (both current and
cumulative), the amount invoiced to Construction Manager (both current and cumulative), the amount
paid by the Construction Manager to date, the retainage, the amount payable (both current and
cumulative), and the balance remaining. A summary of this report shall accompany each Application for
Payment.
c. Detailed Status Reoort showing the complete activity history of each item
in the Project accounting structure. lt shall include the budget, estimate and base-line costs figures for
each subcontract. lt shall give the contract modification history including contract modification numbers,
description, proposed and approved dates, the proposed and approved dollar amounts and detailed
reasons for the contract modification, and parties responsible. lt shall also show all pending or relected
contract modifications. The payment history shall include the date, value-in-place, retainage, and
accounts payable.
d. Cash Flow Diaqram showing the Projected accumulation of cash
payments by the Construction Manager against the applicable Project Cash flow Projections shall be
generated for anticipated monthly payments as well as cumulative payments.
e. Job Ledqer shall be maintained as necessary to supplement the
operation of the Project accounting system. The job ledger will be used for this Project to provide
construction cost accountability for general conditions work, on-site reimbursable expenses, and costs
requiring accounting needs.
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f. 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.
2.1.6. Proiect Manual/Manaqement Plans.
2.1.6.1.Within forty-five (45) days of the Effective Date of this Agreement, 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. ln addition five copies of the Project Manual and any updates shall be
submitted to the Project Coordinator and Owner's Representative.
2.1.6.2.Contents of Proiect Manual. The Project Manual shall describe in detail the
procedures for executing the Work and the organizations participating in the Project. The Project Manual
shall serve as the Project management plan, and shall include as a minimum the following sections:
a. Proiect and Proiect Definition. The known characteristics of the Project
shall be described in general terms that will provide the participants a basic understanding of the Project.
b. Proiect and Proiect Goals. A description of the goals and objectives for
the Project including a general discussion of schedule, budget, physical, technical and other objectives.
c. Proiect and Proiect Strateqv. A narrative description of the Project
delivery methods to be utilized to accomplish the Project and Project goals.
d. Proiect and Proiect Work Plan. A matrix display of the Work to be
performed by the each member of the Project Team during each phase of the Project, including a matrix
for email distribution lists, identifying the members of the Project Team and their respective personnel
who should receive email communications with respect to the various aspects of the Project.
e. Proiect Orqanization. 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.
f. Resoonsibilitv Performance Chart. A detailed matrix showing the specific
responsibilities and interrelationships of the Project Team. The responsibility performance chart shall
indicate primary and secondary responsibility for each specific task required to deliver this Project. The
Construction Manager shall develop a similar chart for the personnel within its own organization who are
assigned to the Project, and for the personnel of the members of the Project Team from data supplied by
each.
g. Construction Plan. Construction Manager shall develop and submit to
the Project Coordinator, Owner's Representative 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.
h. Flow Diaqrams. Charts displaying the flow of information and the
decision process for the review and approval of Shop Drawings and submittals, progress and contract
modifications.
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i. Communication Procedures. The Construction Manager shall establish
written procedures for communications and coordination required between Project Team members
throughout the Project. Procedures shall cover such items as correspondence, minutes, reports,
inspections, team meetings, technical reviews, design reviews, and other necessary communications.
The Construction Manager shall use electronic communication whenever possible.
j. Safetv 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.
k. Qualitv Assurance/Qualitv 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 I to ensure that matedals furnished and quality of Work performed
are in accordance with the Construction Documents.
l. Crrsis Manaoement PIan. The Construction Manager shall develop a
crisis management plan describing a general approach to and contacts in case of crisis situations, e.g.,
hurricane, riot, etc. that permits, to the fullest extent possible, uninterrupted Work or prompt resumption of
the Work.
m. Labor Relations Plan. The Construction Manager shall develop, in
consultation with the Project Team, an approach to labor relations for the Project that assures, to the
fullest extent possible, the uninterrupted completion of the Project in accordance with the Project
Schedule and budget, and a plan for maximizing the employment of Miami Beach and Miami-Dade
County residents in the construction of the Project. The plan will include provisions for monthly progress
reporting in a format approved by the Owner's Representative to monitor success.
n. Securitv Plan. The Construction Manager shall develop and maintain a
comprehensive plan to protect the Project Site and 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.
o. Public Relations Plan. The Construction Manager shall assist the Project
Team, as requested, in developing and implementing a comprehensive public relations plan including
community outreach efforts to inform local small and medium size businesses of potential impacts of the
construction on their operations. The Construction Manager shall assist the Project Team in coordination
with other entities impacted by the Prolect.
p. Commissioninq Plan. The Construction Manager, in coordination with the
Project Team, shall develop a commissioning plan that will be implemented during the design and
Construction Phase, which will provide a smooth and successful City or tenant occupancy of the Project.
The purpose of the commissioning plan is to ensure that building systems perform interactively according
to the design intent and the City's and it's tenant's operational needs. Specific objectives include:
i. Applicable equipmenUsystems are installed properly and receive
adequate operational checkout by installing Subcontractors;
ii. Verification and documentation of proper performance for
installed equipment and systems;
iii. Verification that the design intent is being met continually;
iv. Documentation that operations and maintenance plans left on
site are complete;
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adequately trained;
the construction of the Project;
v. Documentation that the City's operating personnel are
vi. Documentation that record plans are accurately prepared during
vii. lnteraction with permitting authorities to facilitate the issuance of
a Certificate of Occupancy; and
viii. Review of Contract Documents for warranty effective dates to
coincide with Substantial Completion for the Project, or such other dates as provided for by the Contract
Documents.
q. Market Analvsis and Bidders Plan. Within sixty (60) days after the
effective date of this Agreement, the Construction Manager shall submit a written "Construction Market
Analysis and Prospective Bidders Report" reporting on availability of labor, material, equipment, potential
bidders, and possible impact of any shortages or surpluses of labor or material, setting out
recommendations and providing information as to prospective bidders for the Project. The Construction
Manager shall develop a plan for stimulating interest of qualified contractors in bidding on the Work and
familiarizing those potential bidders with the requirements of the Project.
r. Maintenance of Traffic and Jobsite Loqistics. 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. The plan shall include plans and other documents illustrating the
scale and relationship of Project components based on the Project's current and known future
requirements, planned road closures, Project Schedule and construction budget requirements. 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.
s. Risk Manaqement Plan. The Construction Manager will identify those
issues which could impact the successful and timely completion of the Project within the approved Project
baseline on a risk register. The Construction Manager will identify, evaluate, and assess Project risks
using a SWOT analysis (strengths, weaknesses, opportunities and threats) sufficiently to develop
customized Project control strategies that maintain visibility and ensure timely initiation of corrective
actions should they be required. Assessed risk levels will determine the control level to be used for each
project element incorporating planned risk responses to mitigate potential impacts.
t. Direct Purchase Proqram PIan. Construction Manager shall develop a
plan and procedures to implement the Direct Purchase Program in accordance with Appendix F of this
Agreement.
2.2. Construction Manaqer'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. Kev Personnel. The personnel presented in the Construction Manager's RFP 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 the Project through the
duration of this Project and shall not be reassigned without the priorwritten approval of the City'sProject
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,
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inspect provide general direction of the Work in progress. The CM's Project Manager and the
Construction Superintendent shall be assigned to the Project on a fulltime 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.
2.2.2. Other Personnel. For all other positions listed in the staffing plan, if applicable, the
Construction Manager shall provide resumes to the Project Coordinator of the persons being proposed to
staff those positions. The City reserves the right to disapprove any person proposed, and the
Construction Manager shall offer substitutes therefore. lt is expressly understood that failure of the City to
disapprove a person does not confer the City's approval of such person. At any time, the Project
Coordinator has the reasonable right to request removal and replacement of any Construction Manager's
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. Coooeration with Proiect Team. The Construction Manager shall cooperate with and
assist the Owner's Representative, 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 Proiect 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, the
Architect-Engineer, and Owner's Representative 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 Owner's Representative, 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 Contractor any of its obligations pursuant to the Contract Documents.
2.4. Administrative Records. The Construction Manager will maintain at the Project Site, unless
agreed to otherwise by the Project Coordinator, on a current basis, files and records including the
following:
. Punch Lists
' Cost Proposal Requests. Bid Analysis/Negotiations/Award lnformation Contracts/Purchase Orders w/changes. Material/EquipmentRecords. Delivery Logs. Payment Records
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. Transmittal Records. lnspection Reports. Project Schedule and Construction Schedule and Updates thereto. Suspense (Tickler) Files of Outstanding Requirements. Prevailing Wage Reports. Shop Plan Submittal/Approval Logs. Contract Documents. Warranties and Guarantees. Cost Accounting Records:. Labor Cost Records. Material Cost Records. Equipment Cost Records. Payment Record Requests. Subcontractor Pay Exception Report. Meeting Minutes. Cost-Estimates. Bulletin Quotations. Lab Test Reports. lnsurance Certificates and Bonds. Technical Standards. Design Handbooks. "As-Built" Marked Prints. Operating & Maintenance lnstruction. Daily Progress Reports & Subcontractor Daily Reports. RFls, 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-Gonstruction Services.
ln addition to any other services fo be pertormed during the pre-Construction Phase as may be
specified elsewhere in the Contract Documents, the Construction Manager shatt pertorm the
fol I owi n g P re- Con stru ctio n P h a se Seryices.'
2.5.1. Preliminarv 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 or Owner's
Representative. 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 be responsible for the proper identification and location of all utilities,
services and other underground facilities that 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. Proiect Schedule and Phasino Plan Review and Recommendations. Construction
Manager shall develop a phasing plan that is consistent with the Convention Center Construction Period
Booking Policy set forth in City Resolution No. 2015-28995 and permits 100% of the Convention
Center and other areas of the Project Site (as listed in Sections 2.1 and 2.2 of Appendix D) to be
available for the Art Basel exhibition events each year. Within sixty (60) days after the effective date of
this Agreement, Construction Manager shall provide an assessment of and recommendations with
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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 and in
particular, the Art Basel 2016 Milestone and Art Basel 2017 Milestone. 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. Desiqn Review and Recommendations
2.5.2.1. Review and Recommendations
a. The Construction Manager, as part of its Pre-Construction Phase
Services, shall follow the development of design through final Construction Documents, reviewing the in-
progress Design Development Documents, and familiarize itself thoroughly with the evolving Construction
Documents.
b. 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
Owner's Representative.
c. 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
schematic design 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 fifteen (15) days receipt of
documents from the Architect-Engineer. lf 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.
d. 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.
e. 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.
f. The Construction Manager shall continuously monitor the impact of
proposed design on the Project Schedule and recommend adjustments in the Design Development
Documents, Construction Documents or construction bid packaging to ensure completion of the Project in
the most expeditious manner possible.
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g. 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.
h. 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 Design Development Documents and Construction Documents will be coordinated and
reconciled, scheduled during any phase of the Work.
i. 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.
j. Construction Manager shall be fully responsible for 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. Preliminarv 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 Owner's Representative 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. lnitial Proiect Estimate. The Construction Manager shall prepare an
Estimate for the Project (based on the most current Design Development Documents available on the
Effective Date of this Agreement) on or about July 2,2015.
c. Proiect Estimate Uodates. 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, 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 otherurrise affecting the Project; 4) the adequacy of the Project Site for lay-down, storage
and parking; and 5) the character of equipment and facilities needed preliminary 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
estimating properly 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. ln confirmation and furtherance of the foregoing, the Construction Manager shall
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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.
2.5.2.4. Review of Construction Documents, Construction Manaqer's Warrantv, and
Citv's Disclaimer of Warrantv. Within forty-five (45) days after receiving Construction Documents for this
Project, the Construction Manager shall perform a specific review of the Construction Documents for each
of the following: clarity, consistency and coordination; construction feasibility; practicality; and apparent
defects. Promptly after completion of the review, 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 MANAGER SHALL WARRANT, WITHOUT ASSUMING ANY
ARCHITECTURAL OR ENGINEERING RESPONSIBILITY, THAT THE CONSTRUCTION DOCUMENTSARE 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 MODIFICATION FOR
ADDITIONAL COSTS OR TIME DUE TO REASONS INVOLVING 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 UNFORESEEN CONDITIONS
(EXCEPT DTFFER|NG S|TE CONDTTTONS AS pROVtDED tN SECTTON 9.2).
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 Planninq.
2.6.1. Lonq 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 or Owner's
Representative, of any problems or prospective delay in delivery. When such items are to be fabricated
and partially or totally paid for by the City prior to the arrival of such items at the Project Site, the
Construction Manager shall require the assembler or manufacturer to provide a Uniform Commercial
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Code (UCC) Form No. 1, clearly establishing that the City has rights and privileges with regard to the item
that has been paid for.
2.6.2. Seoarate Subcontracts Planninq. The Construction Manager shall review the design and
phasing plans for this Project with the Architect-Engineer and make recommendations in writing to the
Project Team with respect to dividing the Work in such manner as will permit the Construction Manager to
take bids and award separate construction subcontracts on the current schedule while the design is being
completed. The evaluation shall speak to the benefits of the speed of erection and early completion of the
Project overall. The Construction Manager shall take into consideration such factors as natural and
practical lines of severability, sequencing effectiveness, access and availability constraints, total time for
completion, construction market conditions, availability of labor and materials, community relations and
any other factors pertinent to saving time and cost.
2.6.3. lnterfacinq. ln 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 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 lnterest. 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
approximately 65-75% 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 shallcontained detailed cost estimates on the basis of a quantitative materialtake-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. The City currently anticipates that
the Construction Manager shall submit its GMP Proposal on or about October 1, 2015, based on
approximately 65% completed Construction Documents.
a. lf 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. ln addition, the Construction Manager
shall immediately advise the City of any adjustments to any Estimate which would cause the Project cost
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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 four (4) 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
2.6.7. Exoedited Permittinq Services. Construction Manager shall be responsible for
subcontractlng with a firm to provide expedited permitting services in connection with all permits required
for the Project, and for coordinating all Work associated with obtaining all appropriate permits from all
agencies having jurisdiction.
2.6.8. Earlv Bid Procurement. As part of its Pre-construction Phase Services and prior to the
City's consideration or acceptance of the GMP Proposal, Construction Manager shall solicit bids for
certain bid packages that may be necessary to permit the commencement of construction Work on or
about December 12,2015, in accordance with the subcontractor bid process delineated in Article 4 and
other applicable provisions of the Contract Documents. Such bid packages shall be determined in
consultation with the Project Team and shall be subject to the Project Coordinator's advance written
approval, and may include solicitation of bid packages for foundations, demolition, utilities, steel or other
Work. ln no event shall any Subcontract or bid package be awarded (1) prior to the City Commission's
acceptance of a GMP Amendment, and (2)without the City Manager's advance written approval.
a. The intent of such procurement efforts is to solicit and evaluate bids,
negotiate and finalize draft subcontracts that are ready to be awarded simultaneously with execution of a
GMP Amendment or shortly thereafter, in the event the City Commission at its sole and absolute
discretion accepts a GMP Amendment, to permit commencement of construction activity on or about
December 12,2015.
b. During the Pre-Construction Phase Services period, Construction
Manager shall identify all appropriate resources and personnel to perform all such early procurement and
related Work in accordance with all applicable provisions of the Contract Documents, in the same manner
as set forth in the Contract Documents for such Work during the Construction Phase that may be required
for commencement of construction activity on or about December 12, 2015, (including permitting,
scheduling, coordination, subcontractor interfacing and the like).
2.7. ConstructionPhase.
ln addition to any other services fo be pertormed during the Construction Phase, as may be
specified elsewhere in this Agreement, the Construction Manager shall pertorm the following
Con stru cti o n P h ase selices.'
2.7.1. Construction Manaqer'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
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Subcontractors and provide all services required by the Contract Documents. Construction Manager
shall not transfer or move either 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 Authoritv. 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. At all times 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; Contract Modifications in progress; schedules for Contract Modifications; 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.
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.
2.7.3.3. Construction Manager shall develop, monitor and update the phasing plan for the
Project, which shall provide for the entirety of the Project Site to be available for the Art Basel exhibition
events each year and for the MBCC to remain open during the construction period consistent with City
Resolution No. 2015-28995. Construction Manager shall provide recommendations on an on-going basis
with regard to accelerated or fast{rack scheduling, procurement, or phased construction. The
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Construction Manager shall take into consideration cost reductions, cost information, constructability,
provisions for temporary facilities and procurement and construction scheduling issues.
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. QualiW Control. ln accordance with the requirements of Appendix l, 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 ArchiteclEngineers' 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 Project Coordinator
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 lnterfacinq. 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 contract modifications 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 contract modification from the City. Before any Work is begun
on any contract modification, 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
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
maintain a suspense control system to promote expeditious handling. 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 lnformation form (as provided by the Owner's
Representative). The Construction Manager shall maintain a document control/correspondence log
system to promote expeditious handling of all submittals and Requests for lnformation. 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
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the safety of its personnel, property, and its operations for performing in accordance with the Contract
Documents.
2.7.8. General Coordination. ln 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 Adiacent 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. The Construction Manager shall coordinate with the Architect-Engineer
regarding the submittal of all required documents for permits. With respect to permits issued by the City
of Miami Beach Building Department, such permitting may involve a phased permitting approach for the
Project, subject to such conditions or parameters as the Building Department may establish at its sole
discretion. The Construction Manager shall be responsible for securingall necessary building permits, all
necessary 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. 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 Owner's
Representative) 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.
2.7.11. Field Questions. Construction Manager shall develop, in conjunction with the City and
Architect-Engineer, procedures acceptable to the City, the Owner's Representative and Architect-
Engineer for implementing, documenting, reviewing and processing field questions and responses, field
variance authorizations and Field Orders, minor changes and Change Orders due to scope and
modifications. Construction Manager shall cooperate with the City, Owner's Representative and Architect-
Engineer to develop systems and procedures to be used by the Project Team and the Subcontractors to
facilitate quick and accurate communications and to provide for an up to date submittal log accessible to
the Project participants. Construction Manager shall recommend necessary or desirable changes to the
Project Team, review requests for changes submitted by Subcontractors, negotiate Subcontractor's
proposals, submit recommendations to Architect-Engineer, the City and the Owner's Representative, and
if they are accepted by the City, then prepare Change Orders for execution by the appropriate parties.
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
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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 with
the Contract Documents and is coordinated with other related Work. ln collaboration with Architect-
Engineer and the Owner's Representative, 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. Safetv and Securitv Proqram. 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-mandated safety
requirements and programs. The Construction Manager shall designate a full{ime staff member as the
Project safety director 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 the Project at all hours,
including evenings, holidays and non-work hours. Such precautions may include provision of security
guards.
2.7.14. lnspection Coordination. The Construction Manager shall coordinate all technical
inspection and testing provided by professionals designated by the City, Project Coordinator, Owner's
Representative, 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
Owner's Representative 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. lf 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 Owner's
Representative, the City, 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. lf
any of the Work should be covered up without approval or consent of City's Prolect Coordinator, or without
necessary test and inspection, Construction Manager shall, if required by City's Project Coordinator or by
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public authorities, uncover such Work for examination and testing, and shall re-cover same at Construction
Manager's expense.
2.7.15. Art in Public Places ("A|PP") 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.
2.7.16. 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 fulltime
representation at the Project Site to become familiar in detail with 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 allApplicable Laws.
2.7.17.2.Dailv Loqs. Construction Manager shall maintain a log and electronic
database of daily activities for the Project including, at a minimum, the following information in a bound
log: the day, date, weather conditions and how any weather condition affected the progress of the Work;
time of commencement of work for the day; 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, Owner's Representative 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 Owner's Representative, the Architect-Engineer, and the
inspectors upon request. Construction Manager shall also require all Subcontractors to provide
independent daily logs of activity.
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 in accordance with the approved security plan.
2.7.17.4. Job Meetinos. 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. The Construction Manager shall advise
the other Project Team members of their required participation in any meeting or inspection, giving each
approximately one week's notice, unless such notice is made impossible by conditions beyond the
Construction Manager's control. The Construction Manager shall hold Jobsite meetings at least once
every two (2) weeks with the Project Team. Construction Manager shall prepare and distribute minutes of
each meeting promptly and no later than three (3) business days after each meeting.
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2.7.17.5.Proiect Team Meetinqs. The Construction Manager, Project Coordinator,
Owner's Representative 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 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 Drawinqs 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 Equioment Exoeditinq. 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.Pavments to Subcontractors. Construction Manager shall review and
process invoices from Subcontractors and Suppliers.
2.7.17.9.Document lnterpretation. 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 Proiect 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, Owner's
Representative and the City.
2.7.17.12. Siqnaqe. 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. Printino. Construction Manager shall arrange for the printing and
distribution of all required bidding documents and Shop Drawings, including the sets required by any
perm itting authority's inspectors.
2.7.17.14. Cleaninq. Construction Manager shall cause the Subcontractors to keep
the premises where the Work is undenaray reasonably free from accumulations of waste material or
rubbish. Upon Substantial Completion of portions of the Work, the Construction Manager shall cause the
appropriate Subcontractors to remove all rubbish, tools, scaffolding and surplus materials from and about
the Project Site and leave such Work area clean and ready for occupancy.
2.7.17.15. Protection of Propertv. Construction Manager shall take all reasonable
precautions for the safety of, and shall monitor the Subcontractors for reasonable protection to prevent
damage, injury or loss to all the Work and all materials and equipment to be incorporated therein, whether
in storage on or off the Project Site, under the care, custody or control of the Construction Manager or a
Subcontractor, and other property at the Project Site or adjacent thereto, including walks, pavements,
roadways, structures and utilities not designated for removal, relocation or replacement in the course of
construction. The Construction Manager shall cause all Subcontractors and other agents of Construction
Manager to protect City's property from loss or injury that may arise in connection with the Work.
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2.7.17.16. Severe Weather/ Storm and Hurricane Preoaredness. Construction
Manager shall submit to the City a Hurricane Preparedness Plan (HPP)within thirty (30)days following the
GMP Amendment. 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 Project Coordinator, 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 for additional Work relating to hurricane
waming 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 9.4. ln no event shall Construction Manager be
entitled to damages (other than General Conditions, if any, as set forth in Subsection 9.4.1.4) for any such
delay.
2.7.17.17. LEED lnitiatives. Construction Manager shall implement the agreed-upon
LEED initiatives and certification process, which at a minimum shall include satisfying all of the
requirements associated with the then current USGBC Silver LEED certification. Construction Manager
shall endeavor to obtain Gold LEED certification, if feasible and within the Project budget.
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. MBCC Event Coordination. Construction Manager shall meet with the
Convention Center Manager not less than bi-weekly to discuss construction activities and event activity
occurring at the operational part of the Convention Center.
2.7.17.20. Defective or Non-Conforminq 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, Owner's Representative 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.
Labor required for correction of non-conforming work is to be manned separately from that of the Work on the
Project Schedule and shall be appropriately reflected in updated Project Schedule resource loading. 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
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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. ln 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 Construction Manager
from responsibility or liability for such fault, defect or non-conforming Work.
2.7.17.21. Contract Modification Administration. Construction Manager shall
administer contract modifications 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 contract modifications to incorporate the changes or extra work into the
subcontracts and process each contract modification 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 contract modifications and substitutions proposed by the Subcontractor and shall
make recommendations to City. City shall have the option to reject proposed contract modifications and
substitutions. Any Work performed under a proposed contract modification 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 contract modification, the Construction Manager shall submit to the Project
Team the estimated cost of, or savings attributable to, such contract modification and the estimated
impact thereof on the Project Schedule. No contract modification 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 contract modification shall become a part of the Contract
Documents, and the Construction Manager shall promptly cause the performance of the Work so
changed to proceed. ln the event a contract modification 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 contract modification 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, in consultation
with the Project Team, 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. lf 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. lf approved
by the Project Coordinator, the Construction Manager shall process a contract modification.
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. lf the
Construction Manager wishes the Architect-Engineer to conduct a pre-substantial completion inspectionin conjunction with its own forces, the ArchiteclEngineer shall coordinate with the Owner's
Representative and prepare the pre-substantial completion punch list from which the Construction
Manager will develop a completion schedule. The Architect-Engineer will issue a certificate of substantial
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completion when the Work on its pre-substantial completion punch list has been accomplished. Within
three weeks after Substantial Completion, Construction Manager shall conduct walkthrough inspections
of the Project and promptly advise City in writing of any known or observable defects or deficiencies in the
Project and of any known or observable non-conformance of the Work with the Contract Documents and
no later than three (3) days following such walkthrough inspections. Construction Manager shall ensure
timely correction of any defects or deficiencies in the Work no later than thirty (30) days following such
walkthrough inspections.
2.7.17.26. Record Plans/Drawinqs. During the progress of the Work, the
Construction Manager shall require the plumbing, air conditioning, heating, ventilating, elevator, and
electrical Subcontractors to record on their field sets of plans the exact locations, as installed, of all
conduit, pipe and duct lines whether concealed or exposed which were not installed exactly as shown on
the contract plans. Construction Manager shall also record all plan revisions that have been authorized by
Contract Modification that effect wall or partition locations, door and window locations and other template
changes. Accurate dimensional locations for all items shall be recorded. The exact routing of conduit runs
and underground utilities shall be shown on these plans. 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 Parkinq and Transportation of Construction Workers to and from
Proiect Site. Construction Manager acknowledges and agrees that there will be no labor parking
available at the Project Site, except for approximately 100 spaces available collectively for Construction
Manager's management personnel and other members of the Project Team at the surface parking lot
known as the "P-lot" and located on the Project Site. Construction Manager shall make all arrangements
for off-site parking and shuttle transportation services to and from the Project Site for all construction
workers performing work on the Project, except for any other arrangements authorized with the advance
written approval of the Project Coordinator, at her sole discretion.
2.7.17.28. Public lnformation Officer. Construction Manager shall employ or
subcontract a professional Public lnformation Officer, approved by the Project Coordinator, to coordinate
the public information component of the Work. The Public lnformation Officer shall be responsible for
writing public involvement plans for the Project; identifying potential impacts to the public as a result of the
prosecution of the Work; preparing and disseminating collateral materials to the public; developing
strategic alliances and partnerships with the community; preparing and presenting project information for
meetings; coordinating resolution of issues; maintaining a database of stakeholders; preparing
information for City website updates; performing media responses in writing, as needed; coordinating
formal and informal public meetings; and executing other duties relevant to the position, as deemed
necessary by the Project Coordinator. At a minimum, the Construction Manager's public relations,
community involvement and customer service work, as it relates to the Project, shall include (1)
developing a Public lnvolvement Plan and Project-related informational material; (2) communicating
Project information and addressing concerns; (3) preparing related media communications and
informational materials; (4) coordinating emergency communications; (4) developing presentations
(including audio/video presentations) and talking points; (5) planning, organizing and attending special
events and meetings; (6) writing newsletters and feature stories; and (7) translating collateral material
developed for the Project. 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. All charges by utility companies for
temporary support of its utilities shall be paid for by the Construction Manager. All costs of permanent
utility relocation to avoid conflict shall be the responsibility of the utility company involved. Construction
Manager shall coordinate its activities with any and all public and private utility providers occupying the
right-of-way. City shall pay for costs associated with relocation and support of any utility previously
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unidentified as of the effective date of the GMP Amendment that may be in conflict with or endangered by
the proposed Work.
2.8. Post-Construction.
ln addition to any other sentices to be performed during the Construction Phase, as may be
specified elsewhere in this Agreement, the Construction Manager shall perform the following
Post-Con structi on Ph ase seryices.'
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. Commissioninq. Construction Manager shall assist City and Architect-Engineer in
preparing 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 City and Owner's Representative, coordinate, schedule and observe
the checkout of utilities, 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/Drawinos. 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. Citv Occupancv. The Construction Manager shall provide consultation and Project
management to facilitate City occupancy and provide transitional services to get the Work, as completed
by the Construction Manager or Subcontractors, "on line" in such conditions as will satisfy City operational
requirements.
2.8.7. Post-Occuoancv lnsoection. Ten (10) months after the Substantial Completion Date,
Construction Manager shall, together with the Architect-Engineer and the City, attend a final post-
occupancy inspection of the Work to ensure that the Work comports with all warranties and guarantees
and satisfies the requirements of the Contract Documents. Construction Manager shall correct any
deficiencies noted during such inspection within thirty (30)days, unless othenarise approved by the City.
2.8.8. Traininq. 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.
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2.8.8.1. Separate training sessions shall be conducted for equipmenUsystem 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.
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. Warrantu. The Construction Manager warrants 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 others as required by 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. Also, the Construction Manager shall conduct, jointly with the City and the Architect-Engineer, a
warranty inspection ten (10)months after Substantial Completion.
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.|f 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 othenarise 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.
2.9. Proiect CIoseout. ln 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 OWNER'S REPRESENTATIVE
3.1. Citv'sResponsibilities.
3.1.1. Proiect Coordinator. The City 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 full authority to require the Construction Manager to comply with the Contract
Documents.
3.1.2. Architect-Enqineer. The City has retained the Architect-Engineer to serve as the Architect
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.
3.1.3. Owner's Representative. The City has retained an independent Owner's Representative
to assist the City with its oversight of the Project. The Owner's Representative shall serve as the day{o-
day contact with the Construction Manager and Project Team for all purposes, and shall monitor
Construction Manager's performance in accordance with the Contract Documents. The Owner's
Representative shall have the authority to issue directives and notices on behalf of the City. The Owner's
Representative responsibilities are delineated in Section 3.3 below.
3.1.4. Citv's lnformation. 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.
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3.1.5. Plans and Soecifications. The Construction Managerwill be furnished a reproducible set
of all Construction Documents for bid documents reasonably necessary and ready for printing.
3.1.6. Cost of Survevs & 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.
3.1.7. Fundinq. Notwithstanding any provision herein to the contrary, the City's obligations
under this Agreement with respect to the Construction Phase or any portion thereof shall be subject to
and contingent upon the City's obtaining the full amount of all financing and the availability of bond
proceeds and earnings or other funding that the City may require for the Project. ln the event this
contingency is not satisfied and City does not obtain the necessary financing or sufficient funding to
proceed with any portion of the Project and/or this Agreement, City shall notify Construction Manager in
writing, and this Agreement shall be null and void and City shall have no further obligations under this
Agreement, other than to compensate Construction Manager for Work performed satisfactorily under any
previously authorized Notice to Proceed. Except as set forth herein, Construction Manager hereby
waives any other rights or remedies at law or in equity with regard to any matter arising out of this Section
3.1.7.
a. ln the event the City fails to make payments because of the unavailability
of such bond proceeds and earnings, the Construction Manager shall have the right to stop its
performance of the Work pursuant to Section 13. t hereof.
3.1 .8. Lines of Authoritv. The City and Project Coordinator shall establish and maintain lines of
authority for their personnel and shall provide this definition to the Construction Manager and all other
affected parties.
3.1.9. Permittinq & Code lnsoections. The City may retain a threshold inspector, if required by
Chapter 553, Florida Statutes, and any other inspectors as the City deems necessary.
3.1.10. Approvals. Wherever the Contract Documents require or provide for City approval, such
approval must be evidenced in writing to be effective.
3.2. Architect-Enqineer'sResponsibilities.
3.2.1. The Architect-Engineer shall provide administration of this Agreement and its 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 City, by and through
the Owner's Representative, 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, the City and the
Owner's Representative 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 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
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ArchitectEngineer may attend Project construction meetings.
d. Architect-Enqineer's 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. Chanqes. 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 Manaqer Not Relieved bv Architect-Enqineer or Proiect
Coordinator Activitv. 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 or Project Coordinator or by employees or
representatives of the Architect-Engineer or Project Coordinator.
S. Architect-Enoineer, Citv and Owner's Reoresentative Not Resoonsible
for Means or Methods. The Architect-Engineer, City, and Owner's 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 Owner's
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-Enqineer's and Owner's Representative's Review and
Architect-Enqineer's Certification of Pav Applications. The Architect-Engineer and Owner's
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 ArchitecG
Engineer, Owner's 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-Enqineer 's Authoritv to Reiect Work. The Architect-Engineer
will have the authority to reject Work which does not conform to the Contract Documents, provided thatthe 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 ArchiteclEngineer, 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, 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
Owner's Representative to the Construction Manager.
j. Chanqe Orders, Construction Chanqe Directives, and Minor Chanqes in
the Work. The Architect-Engineer and Owner's Representative may assist the City in the review of all
Change Orders, Construction Change Directives, and Field Orders, and the Architect-Engineer may
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authorize minor changes in the Work as provided in Article g. Such changes will be communicated
through the Owner's Representative to the Construction Manager.
k. Substantial and Final Completion Determination. The Architect-Engineer,
Owner's Representative 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 fonruard 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.
l. Architect-Enqineer's lnterpretation 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 Owner's Representative or Project Coordinator.
m. Bindinq Effect of Architect-Enqineer's Decisions and lnterpretations. 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 Project Coordinator.
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. Owner's Representative Role. The Owner's Representative may provide oversight and
administrative support services to the City during all phases of the Project and shall have the right and
authority to issue directives and notices on behalf of the City to require the Construction Manager to
comply with the Contract Documents. Such services may include the following:
3.3.1. Observing the progress of all Work to ensure the Work is being performed in accordance
with the Contract Documents and all approved Construction Manager plans and processes;
3.3.2. Reviewing Construction Manager Applications for Payment for accuracy and
completeness and coordinating the certification process. Further, the Owner's Representative will
recommend full, partial or appropriate non-payment to the City;
3.3.3. Recommending to the City that it take actions pursuant to the Contract Documents to
ensure the faithful performance by Construction Manager of this Agreement, which recommendations,
may include, but shall not be limited to, withholding of certificates or approvals of Applications for
Payments, or rejecting of non-conforming or defective Work in consultation and coordination with the
Architect-Engineer; requiring efficient superintendence and operation by the Construction Manager, and
the like;
3.3.4. Monitoring the Subcontractor bidding processes, reviewing trade bids and supporting
documentation, attending opening of Subcontractor bids, and making recommendations to the City with
regard thereto;
3.3.5. Facilitating the City's approval of modifications to the Construction Documents, and/or
acting on behalf of the City with respect thereto;
3.3.6. Conducting, attending and facilitating meetings among members of the Project Team;
3.3.7. lmplementing a communication system plan for the distribution of meeting minutes,
written and oral communications, Requests for lnformation, progress reports, submittals, changes, test
reports, Applications for Payment, payments, logs and other information;
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3.3.8. Reviewing the Project Schedule, Construction Schedule and other schedule submittals
required under this Agreement and making recommendations to the City with regard thereto;
3.3.9. Reviewing the progress reports required to be submitted by Construction Manager under
this Agreement, including the Daily Reports, Schedule Reports, the Monthly Updated Schedules and
Construction Budget Reports;
3.3.10. Reviewing Change Order proposals, Change Orders, Construction Change Directives,
and Field Orders and making recommendations to the City with regard thereto; and
3.3.11. CoordinatingtheCity'sresponsibilitieswithrespecttoaDirectPurchaseProgram,if one
is established for the Project;
3.3.12. Monitoring the Project Site and observing the Work and progress of Construction;
3.3.13. Monitoring, verifying and coordinating the QA/OC process;
3.3.14. lssuing instructions and directives on behalf of the City (provided, however, that only the
City shall have the authority to authorize Change Orders;
3.3.15. Coordinating all Project Team members, including City consultants and other third-
parties; and
3.3.16. Reviewing and monitoring all Construction Manager processes and procedures for
adherence to the Contract Documents and advising City of deviations and discrepancies, and making
recommendations with respect to corrective actions and mitigation strategies when necessary.
3.4. Lines of Communication. For purposes of efficient administration of the Contract Documents:
a. Communications with Subcontractors and Supoliers. The City, Owner's
Representative 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 Citv and Architect-Enqineer. The Construction
Manager shall communicate with the City and ArchiteclEngineer (and its sub-consultants) only through
the Owner's Representative or the Architect-Engineer, as the context may require. lf communications are
made directly to the Project Coordinator or Architect-Engineer, Construction Manager shall copy the
Owner's Representative, 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 (including the Project Coordinator) or the Architect-
Engineer, the Owner's Representative shall be copied on such transmittal or notice.
c. CommunicationswithSeoarateContractors. Communicationsbetween
the Construction Manager and Separate Contractors shall be through the Owner's Representative.
d. The Parties may supplement the foregoing in the Project Management
Plan and the detailed matrix to be utilized for Project communications.
ARTICLE 4
PERFORMANCE OF WORK AND SUBCONTRACTS
4.1 Performance of Work bv Construction Manaoer. lt 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,
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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.
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, on
subcontracts where the bid exceeds $250,000.00, 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.9. 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, Owner's Representative 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. Any member of the Project Team may 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 othenruise
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, Owner's Representative and Architect-Engineer.
lnstructions 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 ArchiteclEngineer, 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. ln the event that questions are raised which require an interpretation of the bid packages
or othenadse 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 with the Owner's Representative
and Architect-Engineer. The Owner's Representative 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 bid
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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 Owner's Representative and the
Architect-Engineer, shall conduct pre award conferences with the recommended bidders and shall gather
documentation for contract execution from such bidders. lf 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. ln 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 Gitv'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 or Owner's Representative, 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 withln 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. lf the Project Coordinator or Owner's Representative
objects to a duly qualified, responsible Subcontractor or Supplier award by Construction Manager, the
Construction Manager shall select an acceptable substitute. lf the substituted Subcontractor's bid
exceeds the lowest responsive, responsible bid proposed for award by the Construction Manager, or the
time allocated in the approved Project Schedule for that Work, the Construction Manager shall be entitled
to a Change Order to cover the additional costs and/or time occasioned by such substitution.
4.5 Third Partv 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 RequiredSubcontractConditions.
4.6.1 Subcontractual 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 Owner's 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 SubcontractRequirements.
4.6.2.1.Suoervision. The Subcontractor must agree to provide field (on-site)
supervision through a named superintendent for each trade (general concrete forming and
placement, masonry, mechanical, plumbing, electrical and roofing). ln addition, the Subcontractor
shall assign and name a qualified employee for scheduling direction for its Work. The supervisory
employees of the Subcontractor (including field superintendent, foreman and schedulers at all levels)
must have been employed in a supervisory (leadership) capacity of substantially equivalent level on
a similar Project for at least two years within the last five years. The Subcontractor shall include a
resume of experience for each employee identified by 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-d-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;
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 othenarise;
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vil.that Construction Manager and Subcontractor acknowledge
that (i) they are each entering into a contract for the construction of a public building 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.
vilt.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;
xt.
xii.
that Subcontractor assign all warranties directly to the City,
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, Owner's Representative,
or Architect-Engineer shall be as provided by the Contract Documents;
xilt.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
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
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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 Pavment Bonds. lf 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. lf 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 Resoonsibilities 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 Owner's Representative 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.
4.6.7 Subcontractor Chanqe 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, Owner's Representative
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 Emplovment. lt 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
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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 monthly progress reports to be submitted
to the City Commission documenting success throughout the Project duration. Construction Manager shall
provide the services delineated in its RFP Proposal Submission, Tab 2, Approach to Local Workforce Hiring.
4.7. Limitations on Construction Manaqer Biddino and Performance of Trade Work. lf 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 and Owner's Representative 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 ('l) 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 Project Coordinator 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. Reportinq of Bid Buvouts. 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 Owner's Representative monthly and with Construction Manager's
recommendation for selection of a bid/proposal for each subcontracting package.
ARTICLE 5
SCHEDULE. TIME OF COMMENCEMENT AND SUBSTANTTAL 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 limitations necessary to maintain the critical path and all deadlines established in the
Contract Documents.
5.1.1. Proiect Schedule. At the time a GMP is established, as provided for in Article 6, the
Project Team shall establish Milestones for completion of various phases of the Work (including the
Milestones set forth in Appendix D), 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. 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 described in Section 2.1.
of Appendix D with respect to the Art Basel 2016 Milestone, and described in Section 2.2 of Appendix D
with respect to the Art Basel 2017 Milestone on the fixed and critical dates specified in Sections 2.1 and
2.2 of Appendix D; and (iii) Substantial Completion must occur no later than the date specified for
Substantial Completion in the GMP Amendment. Construction Manager acknowledges and agrees that
the Prolect Schedule shall be expressly structured to accommodate the fixed dates for the Art Basel 2016
Milestone and Art Basel2017 Milestone and the City's needs with respect thereto.
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5.1.3. Construction Manaoer's Resoonsibilitv 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 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 Pro.lect 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
othen'vise due the Construction Manager the amounts as follows:
Art Basel 2016 Milestone. Upon failure of Construction Manager to meet the Art
Basel 2016 Milestone, City shall deduct from monies othenruise due the Construction Manager the actual
costs and expenses incurred by the City and/or its licensee, Art Basel U.S. Corp., with respect to the
cancelation or relocation of the Art Basel event (including the refund of Art Basel U.S. Corp.'s license fees,
loss of exhibitor and other revenue to Art Basel U.S. Corp., costs associated with securing alternative
accommodations or temporary tent structures that may be acceptable to Art Basel U.S. Corp. and other
logistical expenses related thereto), up to the not-to-exceed amount of One Million Dollars ($1,000,000.00).
Art Basel 2017 Milestone. Upon failure of Construction Manager to meet the Art
Basel2017 Milestone, City shalldeductfrom monies otherwise due the Construction Managerthe actual
costs and expenses incurred by the City and/or its licensee, Art Basel U.S. Corp., with respect to the
cancelation or relocation of the Art Basel event (including the refund of Art Basel U.S. Corp.'s license fees,
loss of exhibitor and other revenue to Art Basel U.S. Corp., costs associated with securing alternative
accommodations or temporary tent structures that may be acceptable to Art Basel U.S. Corp. and other
logistical expenses related thereto), up to the not-to-exceed amount of One Million Five Hundred Thousand
Dollars ($1,500,000.00).
c. Substantial Comoletion. 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 othenrrise due the Construction Manager a
liquidated amount assessed daily until Substantial Completion of the Project, in the amount of Fifteen
Thousand Dollars ($15,000) per day.
5.1.3.2. Construction Manager acknowledges and agrees that the liquidated damages amounts in
Subsection 5.1.3.1(c) ("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. Such damages
may include loss of convention-related business and associated revenues to the City resulting therefrom
(including revenues derived directly from use of the Convention Center and the parking components, and
from resort tax revenues generated by convention/event attendees); injury to the credibility and
reputation of City's Convention Center business and with the convention, trade and event shows and
members of the general public who plan to attend such shows; and additional costs of administering this
Agreement, including Project staff, legal, accounting, consultants and overhead and other administrative
costs. 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) through 5.1.3.1(c) 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.
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5.1.3.4. Liquidated Damages and/or other damages provided for in Section 5.1.3.1(a)through
5.1.3.1(c) 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 or other damages provided for in Section 5.1.3.1 shall apply
solely to claims arising from delay in meeting the specific Milestone 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.
All such costs shall be deducted from the monies othenarrise due Construction Manager for performance of
Work under this Agreement by means of unilateral credit Change Orders issued by City.
5.1.3.7 . With respect to the Art Basel 2016 Milestone and Art Basel 2017 Milestone, at any point
in time when the City reasonably believes that such Milestones will not be achieved following review of
Construction Manager's proposed recovery plan to regain lost schedule progress pursuant to Section 5.2
of the Agreement, the City shall be entitled, but not required, to withhold from any amounts othenruise due
the Construction Manager the applicable damages amount specified in this Section in an amount not-to-
exceed One Million Dollars ($1,000,000.00) for the Art Basel 2016 Milestone and not-to-exceed One
Million Five Hundred Thousand Dollars ($1,500,000)for the Art Basel 2017 Milestone. City anticipates
making its determination as to whether it reasonably believes that the Milestone will be achieved no later
than July 15, 2016 and July 15, 2017 , respectively, as by those dates City and/or Art Basel U.S. Corp. will
incur significant costs and expenses with respect to securing alternative accommodations or temporary
tent structures for the Art Basel events and moving forurrard with the associated logistical, operational and
coordination efforts required to implement an alternative solution as a result of delays.
5.1.3.8. ln 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.
5.1.3.9. ln agreeing to bear the risk of delays for completion of the Work except for extensions
approved in accordance with the Contract Documents, the Construction Manager agrees that, except and
only to the extent provided othenrrrise in the Contract Documents, the occurrence of events of delay shall
not excuse the Construction Manager (and its Subcontractors and Suppliers) from the obligation to
achieve the Art Basel 2016 Milestone and Art Basel 2017 Milestone and full completion of the Work within
the Contract Time, and shall not entitle the Construction Manager to an adjustment of the GMP, except as
specified in the Contract Documents.
5.1 .4. No lnterference. The Construction Manager recognizes and acknowledges that the
Convention Center is an extremely important, very large convention center and, as a result, is a very
significant economic element of the convention and tourism business for the City and Miami-Dade
County. Hundreds of thousands of visitors from all over the world annually attend events, shows, and
conventions at the Convention Center, which are scheduled throughout the year. lt is imperative that
these visitors, as well as those who sponsor, manage, and conduct these events, shows, and
conventions at the Convention Center have a totally satisfactory experience while at the Convention
Center and in the nearby area. These people are the guests and customers of the Convention
Center. They have selected and elected to come to Miami Beach, Florida and the City wants them to
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continue to make that choice. Therefore, all diligent good-faith efforts must be made by the
Construction Manager on a continuous basis to effectively make all Work as transparent to
Convention Center guests and customers as is reasonably possible. ln addition, the City Commission
has adopted a Convention Center Construction Period Booking Policy in Resolution No.2015-28995,
to (i) accommodate only those events that have requested the booking of dates during the construction
period as of April 13, 2015; (ii) authorize the closure of the Convention Center during the following
periods: October 19,2016 through November 16,2016; December 10,2016 through April 30, 2017;and
October 17, 2017 through November 22, 2017; and (iii) permit the phasing of the Work so as to facilitate
making all four (4) main exhibition halls available each year for Art Basel, in view of the importance to
the City of the annual Art Basel exhibition. Construction Manager acknowledges and agrees that this
Agreement, the Project Schedule and phasing thereof have been expressly structured to
accommodate the annual Art Basel exhibitions at the Convention Center and permit the City's
continued hosting thereof as specified in Sections 2.1 and 2.2 of Appendix D, in view of this
international event's importance to the City and Miami-Dade County.
The Construction Manager also acknowledges and understands that, during its performance of
the Work, areas adjacent to and around the Project Site such as the Fillmore Miami Beach at the Jackie
Gleason Theater, Miami Beach City Hall, the Miami Beach Botanical Gardens, and that events will
continue to take place at the Convention Center, as specified in City Resolution No 2015-28995, may be
occupied by members of the public and employees and other parties.
The Construction Manager covenants and agrees that it shall at all times perform the Work,
and cause all Subcontractors and representatives of Construction Manager to perform the Work, so
as to exercise a diligent good-faith effort to minimize interference with the business operations of the
City, guests and customers of the Convention Center, members of the public and employees and
other parties associated with adjacent businesses and operations, 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 or 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 properties adjacent to and around the Project Site. The Construction Manager
must 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. lf any such interference does occur, the
Construction Manager must act immediately to remedy the same.
lf any of the Construction Manager's construction or other activities interfere with or
otheruvise disrupt the City's operations, any of the Convention Center's exhibitions, any activities of
any exhibitor of the City, or any attendee of the Convention Center, the Construction Manager shall,
within one (1) hour of notice from the City, remedy or otherwise correct the cause of such
interference or disruption.
Notwithstanding the foregoing, in recognition that construction activity may impact operational
conditions at the Center, City will make a diligent good-faith effort to cause for the license
agreements with Convention Center customers to include an acknowledgement by licensees that (i)
there may be times where normal construction activities may create noise, vibration, dust, or other
environmental impacts that may be observable to licensees, (ii) there may be modifications to the
entry, egress, loading, and circulation spaces that may include the creation of temporary passages
within the Center that may occur within or adjacent to areas of active construction, the relocation of
entry or exiting doors, the assignment of specific loading docks, and other temporary adjustments to
the movement of people and freight through the Center, and (iii) such conditions are an anticipated
element of the use of the Center.
5.2. Proqress in Accordance with Schedule / Recoverv Schedule. The Milestones and
Substantial Completion dates shall not be modified except by a Contract Modification. The Construction
Manager shall prosecute the Work, and shall cause all Subcontractors to prosecute the Work, so that the
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delivery of all Milestones and Substantial Completion shall be in accordance with the approved Project
Schedule.
5.2.1. lf the Work on any critical path item or activity delineated in the Project Schedule is
delayed for a period which exceeds 5% of the days remaining until a completion deadline for a Milestone
set forth in Appendix D or othenrrvise 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 the Recovery Schedule, Construction Manager will resubmit a revised Recovery
Schedule incorporating City's comments. lf 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. lf 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 othenrrvise (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, as may be necessary to bring the Work into conformity with
the Project Schedule and achieve the Milestones set forth in Appendix D, 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. lf 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
(including the fixed Art Basel 2016 Milestone and Art Basel 2017 Milestone), then as an alternative to
allowing an extension of time, the City shall 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-directed acceleration or extraordinary measures, plus Construction
Manager's overhead and profit for Change Order Work as set forth in the Contract Documents
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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
critical Milestones set forth in Appendix D. ln 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. ln 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 occupancy, use and operability of the Project or safety has been
completed, including all structural, mechanical and electrical Work in accordance with the Contract
Documents;
5.3.2. 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. Operational testing, whether by Subcontractor, or Construction Manager, or both, has
been successfully completed;
5.3.5. Construction Manager has delivered to the City a Substantial Completion Punch List of all
remaining items of Work to be completed or corrected, prepared by Construction Manager, coordinated
by the Owner's Representative and certified for completeness and accuracy by the Architect-Engineer
(provided, however, that failure to include any items on such list does not alter the responsibility of the
Construction Manager to complete all Work in accordance with the Contract Documents);
5.3.6. Except for the Substantial Completion Punch List, Construction Manager has corrected
all defects, deficiencies and/or discrepancies to the entire Work as identified by City and City has
accepted such corrections in writing; and
5.3.7. Construction Manager has delivered evidence that all permits have been satisfied and
closed, and that a temporary certificate of completion and/or temporary 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.
5.4. Notice of Substantial Comoletion. 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 Notice of Substantial Completion (or Notice of
Partial Substantial Completion, as applicable).
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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 Contract Documents,
the City will then prepare a Notice of Substantial Completion which shall establish the Substantial
Completion Date, shall state the responsibilities of Construction Manager, if any, 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. lf the City
issues a Notice 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
Notice 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 Notice of Substantial
Completion until all of the criteria for achieving Substantial Completion as identified in Section 5.3 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 Notice 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 occupancy, as applicable, is issued for the
portion of the Work for which a Certificate of Partial Substantial Completion is being sought and/or all
conditions or requirements of authorities having jurisdiction are complied with, to permit the City to utilize
and occupy that portion for its intended use in accordance with the Contract Documents without material
interference from any incomplete or improperly completed items of Work;
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 completed portion;
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 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 Oecupancv. Beneficial Occupancy shall occur when 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.
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5.6.1. Construction Manager acknowledges and agrees that the City intends to and shall take
Beneficial Occupancy of the portions of the Work and Project Site described in Section 2.1 of Appendix D
with respect to the Art Basel 2016 Milestone, and described in Section 2.2 of Appendix D with respect to
the Art Basel 2017 Milestone, either concurrently or prior to Substantial Completion of the Phase 1A Work
or Phase 2N2B Work, respectively. Construction Manager acknowledges and agrees that the Project
Schedule is expressly structured to accommodate the Art Basel 2016 Milestone and Art Basel 2017
Milestone and the City's needs with respect thereto.
5.6.2. ln the event the City determines, pursuant to Section 5.2, that the Phase 1A Milestone or
Phase 2N2B Milestone set forth in Appendix D cannot timely be achieved or is not likely to be achieved,
Construction Manager shall nevertheless take all steps that may be necessary, including implementation
of a Recovery Schedule, acceleration of the Work, or extraordinary measures, to prosecute the Work and
meet the criticalArt Basel 2016 Milestone or Art Basel 20'17 Milestone and deliver Beneficial Occupancy
of the portions of the Work and Project Site as outlined in the Contract Documents.
5.6.3. Except to the limited extent of reasonable acceleration costs funded from the City's
Contingency pursuant to Subsection 5.2.3.b., 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 steps that may be necessary, including implementation of a Recovery Schedule, acceleration of
the Work, or extraordinary measures, in order to achieve the critical Art Basel 2016 Milestone, Phase 1A
Milestone, Art Basel 2017 Milestone and Phase 2N2B Milestone.
5.6.4. 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.
5.6.5. 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 or
for the performance of Work not complete at the time of Beneficial Occupancy. Prior to Beneficial
Occupancy, the Construction Manager shall obtain a temporary certificate of occupancy and/or
completion, as applicable, and/or otheruvise satisfy all conditions or requirements of any agencies having
jurisdiction (including fire watch or other conditions that may be imposed under City special event permits,
if such permits are required). Prior to the anticipated date of Beneficial Occupancy, the Construction
Manager shall instruct City personnel as necessary for the proper operation and maintenance of all
equipment and machinery that will serve the portion of the Work being occupied.
5.6.6. 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.
5.6.7. Construction Manager's insurance on the unoccupied or unused portion or portions of the
Pro1ect Site shall not be canceled or lapsed on account of such Beneficial Occupancy.
5.6.8. lnspections Applicable to Beneficial Occupancy or Partial Substantial Completion.
a. Prior to Beneficial Occupancy or Partial Substantial Completion of the
Phase 1A Work or Phase 2N2BWork, the City, Owner's Representative and Construction Manager shall
inspect the portion of the Work being occupied so as to fully document the condition of the Work at the
time the City takes Beneficial Occupancy. Construction Manager shall also coordinate any inspections
that may be required by the Builder's Risk insurer or others in connection with the portion of the Work
being occupied.
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b. Once the City no longer requires the use of the portion of the Work to be
occupied (i.e. following the conclusion of the December 2016 or December 2017 Art Basel events), City
shall notify Construction Manager of the availability of the premises, to permit Construction Manager to
coordinate the completion of any remaining Work. Prior to commencement of such Work, a follow-up
inspection by the City, Owner's Representative and Construction Manager shall be conducted so as to
document the condition of the Work at the conclusion of City's temporary use of the occupied premises.
Construction Manager shall have seven (7) days to provide written notice to the City of any damage to
any portion of the Work allegedly attributed to City's use of the area being occupied, and any Claims
related thereto shall be reviewed and/or resolved pursuant to Article 15. lf City and Construction
Manager cannot reach agreement with respect to any such Claim, Construction Manager may reserve its
rights by stating the precise nature of the dispute, all facts or documentary evidence supporting the Claim,
the particular scope of Work associated with the Claim, and the amount and/or time sought in connection
with the Claim. Construction Manager shall then proceed to complete the Work and may not refuse to
complete Work that is the subject of a dispute or Claim.
5.7. Fina! Completion. Final Completion of the Project shall be deemed to have occurred if all the
following have occurred:
5.7.1. Substantial Completion 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;
5.7.3. All spare parts and special tools 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 Notice of Substantial Completion issued on the basis of partial completion of the
Project, or a partial or temporary certificate of occupancy or completion, as applicable;
5.7.6. Construction Manager has delivered evidence 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 and/or certificate of occupancy (as applicable) has been issued by the
authority having jurisdiction, and the Project or designated portion thereof is sufficiently complete in
accordance with the Contract Documents and can be used for its intended purpose for uninterrupted
operation.
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;
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 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;
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5.7.11. Construction Manager has delivered to City all other submittals required by the Contract
Documents, including all installation, 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. lf 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;
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.
ARTICLE 6
GUARANTEED MAXIMUM PRICE FOR CONSTRUCTION
6.1. The initial schedule prepared by the Construction Manager for the Prolect 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. Notwithstanding the foregoing,
prior to submission of the GMP Proposal, the City may issue a Notice to Proceed to Construction
Manager with certain initial preparatory and demolition Work, as authorized via a Change Order in
accordance with the Contract Documents following the subcontractor bid process delineated in the
Contract Documents.
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. ln 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.
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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. lf 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 otherurise complete with other forces or take such
action, if any, that the City may determine is in its best interest. ln this event, the Construction Manager
shall not perform any other services for the Project, and Construction Manager's sole compensation shall
be limited to ('l)Construction Manager's Pre-Construction Phase Fee as specified in Section 7.1.1:(2)a
lump-sum demobilization/termination fee in the amount of $400,000; and (3) any unpaid amounts due for
any remaining undisputed Work performed pursuant to any Notice to Proceed prior to the date thereof. ln
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 Gontinsencv. ln 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 Manaqer's Continqencv. 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) costs of the Project pursuant to
Section 8.2 that were not specifically foreseeable or quantifiable as part of the GMP Amendment or
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; (2) 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; (3) increased Costs of the Project solely
to the limited extent 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. lf 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. lf bids are received above the
applicable line item in the GMP, the deficiency will be charged to the Construction Manager's
Contingency, however such events shall not be cause to increase the Base GMP.
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
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made against the Construction Manager's Contingency shall be reported to the Project Coordinator and
Owner's Representative on a monthly basis with all all associated supporting documentation sufficient to
evidence each draw against the Construction Manager's Contingency.
b. The Project Coordinator, Architect-Engineer and/or Owner's
Representative shall have the authority to verify all actual costs charged to the Construction Manager's
Contingency. The City, through the Project Coordinator or Owner's Representative, 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 otherurrise 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. ln 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 efforts to maximize
cost savings and minimize use of the Construction Manager's Contingency.
6.4.2. Citu's Continqencv. 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. ln the event of Excusable Delay, reasonable acceleration costs to meet
Milestones, if approved 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. lncreased 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 othenarise 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.
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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, Owner's Representative and/or Project Coordinatorshall
have authority to verify the actual costs.
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. ln 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 FEE
7.1 ln 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.
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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
Two Million Five Hundred Ninety Four Thousand and Seventy-Three Dollars $2,594,073 ("Pre-
Construction Phase Fee"), and shall be paid in five (5) equal installments, with the first payment to be
made on July 1,2015. 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, including all permit expediting services and early bid
procurement, and all personnel and items required with respect thereto. Pre-Construction Services for
the Project shall run concurrently with Construction Phase services for the Project and Construction
Manager shall not be entitled to any additional fee with respect thereto, unless the GMP Proposal period
is extended by the City. lf the GMP Proposal period is extended by the City beyond October 31 , 2015,
Construction Manager shall be paid an additional fixed Pre-Construction Phase Fee in the amount of
$22,171 per business day until such time as a GMP is either accepted or rejected in accordance with
Article 6.
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; cost engineering/estimating, scheduling; information technology set-up;
project information technology, including computers, cellphones, information management systems and
software (including e-builder licenses), and other technology and support; contract administration; office
expenses, including postage; permit expediting fees; printing and copying, including drawing
reproductions; consulting fees; legal or accounting fees; cost of money; taxes; insurance premiums and
deductibles; purchase or rental of equipment; utilities; travel; per diem; fines, penalties and/or damage
awards.
c. lf 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 first 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. lf 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.
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b. Should the Contract Time set forth in the GMP Amendment be
contractually extended for Excusable Delay or 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 Manaqer's Exclusive Remedv. ln 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 and payment of additional General Conditions Fee as provided in Subsection
9.4.1.4.
7.1.2.2 Costs and Expenses lncluded 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 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,
CPM scheduling and scheduler costs, cost of periodic site visits for supervisory, inspection, oversight, or
management of the Project by specific "home office" personnel previously approved in writing by the City;
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 |SDN/computer line, onsite construction offlce
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;
the Work;
c. Surveys, measurements and layout work reasonably required to perform
d. Retention/storage of Project Records;
e. Off-site secure storage space or facilities approved in advance by the
f. Miscellaneous expendable items, extended jobsite General Conditions
City;
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(unless such extended jobsite General Conditions are compensable pursuant to Section 9.4.1.4, in which
case Construction Manager shall be entitled to a Change Order for those costs), 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 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 theCity 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
asaCostof theProjectinSection8.2. 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. ln 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 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 fee shall be 3.80% of the Cost of the Proiect 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 ltems 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 Substantial 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. ln 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 Savinqs.
7.2.1 lt 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. ln
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 (hereinaftercalled "Project Cost Savings")shall be
allocated seventy-five percent (75%) to the City and twenty-five percent (25o/o) 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.
7.2.3 Notwithstanding any provision to the contrary herein or in the other Contract Documents,
in no event shall Construction Manager be entitled to any Additional Fee whatsoever for any Project Cost
Savings if the fixed and critical Art Basel 2016 Milestone or Art Basel 2017 Milestone is not achieved,
without regard to the cause or fault thereof, unless such failure is due to Excusable Delays caused by the
City.
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 ltems. 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
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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, 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. Such rental
charges shall include, but not be limited to, the Construction Manager cost of opening a new office
specifically for the Project during the Pre-Construction Services Phase, prior to the establishment of an
office at the Project Site, except as set forth in 8.3. Rental charges shall be consistent with those
generally prevailing in the location of the Project. The Construction Manager shall obtain bids for all
temporary facilities, machinery and equipment to be rented from no less than three (3) responsible
suppliers. lf the cumulative total of rental charges in connection with any single item is in excess of sixty
percent (60%) of its fair market value as of the date that such item is intended to be first put into service in
connection with the Work, then such item shall be purchased instead of rented, and sold at the
completion of the Work. All proceeds from such sales shall be credited to the City as a deduction from the
Cost 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. lf 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"). ln 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). lf an hourly rate is used, equipment shall be
charged based upon actual usage within a lzhour;
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;
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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 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 of materials and equipment suitably stored off-site at a mutually acceptable
location, subject to the City's prior approval.
8.2.22 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.
8.2.23 Cost of providing one set of as-built documents to the City.
8.2.24 Royalties and license fees paid for the use of a particular design, process or product
required by the Contract Documents.
8.2.25 Costs for electronic equipment and software directly related to the Work, with the City's
advance written approval;
8.2.26 Costs of third-party data processing or information technology support for the Project.
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8.2.27 Costs of Quality Control and materials testing, unless such costs are incurred to inspect
or test defective or non-conforming Work.
8.2.28 Costs associated with employee drug screen or other background check related
expenses
8.2.29 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.
8.2.30 Costs of temporary measures that may be required to ensure that, consistent with the
Construction Period Booking Policy setforth in City Resolution No.2015-28995 and the phasing plan for
the Project, the portions of the Convention Center where events are scheduled to take place during the
Construction Phase are fully operational and available for occupancy and use by the public, vendors and
others, 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 decreased by reason of the
issuance of a Construction Change Directive or Change Orders approved in accordance with Article g 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 othenrrise 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 othenayise, if such losses and expenses are
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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;
8.3.1 1. 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;
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.9., 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);
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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 incurred without prior written approval from the City
Attorney, which approval is at the sole and absolute discretion of the County Attorney.
8.3.26. 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 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 Relatinq to Gosts 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. lf, 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 !N THE PROJECT
9.1 Contract Modifications. 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. Contract
Modifications 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.
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9.1.1. Changes in the Work may be accomplished afterexecution of this Agreement, and
without invalidating this Agreement, by Change Order or Construction Change Directive. A Change
Order shall be based upon agreement between the City and the Construction Manager; a Construction
Change Directive may be issued by the City alone (or Owner's Representative on behalf of the City)
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. lf 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
such request, 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. lf 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. lf 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. lf 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, if any, and
associated General Conditions costs, if any. ln 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 withdraw its requested change, or (ii) issue a Construction Change Directive 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 times and materials cost and a mutually acceptable fixed or
percentage fee for the Subcontractor; or
d. by the method provided in Subparagraph 9.1.3.
9.1.5. lf none of the methods set forth above are agreed upon, the Construction Manager,
provided he receives a written Construction Change Directive signed by the City, shall promptly proceed
with the Work involved. 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 Construction Change Directives, the
Owner's Representative 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. ln such case, and also under Subsection 9.1.3 above, the Construction Manager
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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.
9.1.6. lf 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. lf 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. lf unit prices are stated in the GMP or subsequently agreed
upon, and if the quantities originally contemplated are so changed in a proposed Contract Modification
that application of the agreed unit prices to the quantities of Work proposed will cause substantial inequity
to the City or the Construction Manager, the applicable unit prices and the GMP shall be equitably
adjusted.
9.1.7. lncreases 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. lf 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 Manager's fee for Construction Overhead and Profit for all Change
Order or Construction Change Directives shall not exceed 3.80Yo of the net change in the Cost of the
Project. 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 limitation on the
amount of overhead and profit that each Subcontractor and all lower tier subcontractors and Suppliers
can charge for Work performed pursuant to Change Orders and Construction Change Directives exceed
the overhead and profit fee as provided for the performance of the original scope of Work set forth in each
Subcontract and specified as part of the GMP Amendment.
9.1.9. Except as provided in Section 6.5.2 for deductive Change Orders for Owner-
Purchased Materials, for all other deductive Change Orders in excess of One Million Dollars
($1,000,000), including deductive Change Orders in excess of One Million Dollars ($1,000,000) arising
from both additive and deductive items, the deductive amounts shall include a proportionate reduction in
the Construction Overhead and Profit Fee in an amount equal to 3.80% of the net change in the Cost of
the Project, plus any other markups or costs hereto applied to the direct costs of the net reduction.
9.1.10. Claims Reqardino Scooe Chanqes. A "Scooe Chanqe" 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. lf 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.
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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 a final Claim to the City within
thirty (30) days of such direction, action, comment or approval, which Claim shall include the actual
cost (including a detailed cost breakdown in relation to the Project Budget and sufficient
substantiating data to permit evaluation by the City) and schedule impact to the 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. lf
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. lf 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 in the 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, or the Claim addressed by, such Change Order.
9.1.12. Aoproval of Chanqe Orders/Modifications. The City Commission may approve any
Change Order or other Contract Modification to the Contract Documents. The City Manager may approve
Change Orders or other Modifications to the Contract Documents, up to an amount equal to any
remaining City Contingency. Change Orders or Contract Modifications exceeding any available City
Contingency shall require the advance approval of the City Commission.
9.2. Differinq Site Conditions/Concealed Conditions City, at its discretion, shall conduct certain
tests or studies for purposes of minimizing risks related to site conditions, and shall provide Construction
Manager with the reports or other data or information identified as a result of such tests. As part of the
GMP Amendment, Construction Manager shall acknowledge and agree that based on the information
identified by the foregoing tests and information reasonably inferable therefrom, 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 ll 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 by the Construction
Manager. 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 Cost of the
Project or the Guaranteed Maximum Price in the event that soil, surface, subsurface, concealed,
unknown, known, latent or other conditions are encountered or discovered at the Project Site in the
performance of the Work where such conditions were reasonably identified by or inferable from the
foregoing tests.. The Construction Manager expressly acknowledges and agrees that its pricing of 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.
9.2.1 lf subsurface or latent physical conditions that could not have reasonably been identified
upon prior investigation are encountered at the Project Site differing materially from those indicated in the
Contract Documents, or if unknown physical conditions of an unusual nature differing materially from
those ordinarily encountered and generally recognized as inherent in the Work provided for in the
Contract Documents are encountered at the Project Site, Construction Manager shall promptly notify the
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Owner's Representative within three (3) business days of the specific differing conditions before the
Construction Manager disturbs the conditions or performs the affected Work.
9.2.2 Upon receipt of written notification of differing site conditions from the Construction
Manager, the Owner's Representative will investigate the conditions, and if it is determined that the
conditions materially differ and cause an increase or decrease in the cost or time required for the
performance of any Work, an equitable adjustment will be made in accordance with this Article from the
City's Contingency. An adjustment for a differing site condition shall not be allowed, and shall be deemed
conclusively waived, unless the Construction Manager has provided the required written notice within
three (3) business days of discovery of the condition. Should the Owner's Representative determine that
the conditions of the Project Site are not so materially different to warrant a change in the terms of the
Contract Documents, Construction Manager shall be notified of the reasons in writing, and such
determination shall be final and Construction Manager shall proceed to complete the Work and may not
refuse to complete Work, even if it is the subject of a Claim.
9.3. No Damaqes for Delav.
9.3.1 No Damaqes for Delav. Except as provided in Subsection 9.4.1.4, 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.
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 Delavs. 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 satisfied. An excusable delay is one that (i) directly impacts
critical path activity delineated in the Project Schedul'e and extends the time for completion of the Work;
(ii) could not reasonably have been mitigated by Construction Manager, including by re-sequencing,
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reallocating or redeploying 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"). lf 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.
9.4.1 .1. lnclement 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 by which the Construction Manager has been
delayed due to adverse weather conditions exceeds the normal or average number of days of adverse
weather for the South Florida region as determined by the National Oceanic and Atmospheric
Administration, U.S. Department of Commerce or other reliable report or resource identified in Division 1.
9.4.1.2. lf an event of delay satisfying all requirements herein for Excusable Delay directly
arises from an act or omission of the City, Owner's 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 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, Owner's Representative or Architect-Engineer shall have failed, within ten (10) days
after receipt of such notice, to have responded or commenced to address or correct the act or omission
described in the Construction Manager's notice; and provided further, if the City, Owner's 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.
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 and additional General Conditions for Construction Manager
and its Subcontractors solely to the limited extent provided herein and provided such Excusable Delay is
not concurrent with any Unexcusable Delay. lf and to the extent the Contract Time is extended for
Excusable Delays, the General Conditions Fee may be increased by the Construction Manager's
reasonable and verified additional General Conditions costs as delineated in Article 7.1.2 lo the extent
directly and solely attributable to the extension of the Contract Time on account of such Excusable Delay,
and only to the extent the Construction Manager demonstrates to the City's reasonable satisfaction that
the Construction Manager's actual out-of-pocket costs for such General Conditions items as delineated in
Article 7.1.2 has or shall exceed the maximum amount set forth in the Contract Documents for the
General Conditions Fee.
9.4.1.5. For all other Excusable Delays not specified in Subsection 9.4.1.4, including
weather-related delays, permit delays not caused by the acts or omissions of Construction Manager, and
Excusable Delays that may occur jointly or concurrently with Non-Excusable Delays, Construction
Manager's sole remedy shall be an extension of time for the affected activities on the Project Schedule.
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9.4.2. Unexcusable Delavs. "Unexcusable 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 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 Unexcusable 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. ln no event shall the
Construction Manager be excused for interim delays which do not extend the Project Schedule or
any Milestones.
9.4.3. No Extension of Time Available for Certain Fixed Milestone Dates. Except in the event of
Excusable Delays, in no event shall any extension of time apply to or relieve the Construction Manager of
its obligation to timely achieve the Art Basel 2016 Milestone and Art Basel 2017 Milestone, or otherwise
operate to extend the critical dates thereof. As provided in Section 5.2.3.b. of this Agreement, the City
may direct the Construction Manager to accelerate the Work to meet the Art Basel 2016 Milestone and
Art Basel 2017 Milestone, and any and all costs or impacts whatsoever incurred by the Construction
Manager in accelerating the Construction Manager's Work or taking other measures to overcome or
absorb such delays or events in an effort to complete the Work and meet the Art Basel 2016 Milestone
and Art Basel 2017 Milestone dates, regardless of whether the Construction Manager successfully does
so or not, shall be the sole responsibility of the City.
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:
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 Unexcusable 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 in the Project Schedule.
c. The initial notice provided by the Construction Manager under
Subsection (a) above shall 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.
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
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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.
lf the City and Construction Manager cannot resolve a request for time extension 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 Manaoer's Dutv. 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. ln 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.
lf 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 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 Minor Chanqes ln The Proiect. The Project Coordinator (or Owner's Representative on behalf
of the City) and Architect-Engineer will each have authority to order minor changes in the Project not
involving an adjustment in the GMP or an extension of the Contract Time and not inconsistent with the
intent of the Construction Documents for the Project. Such changes shall be effected by Field Order or
other written order, interpretation, or supplemental instruction. Documentation of changes shall be
determined by the Project Team, included in the Project Manual and displayed monthly in the PMIS.
Changes shall be approved by the Project Coordinator, and the Architect-Engineer.
9.6 Emerqencies. ln 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 g.
9.7 Hazardous Waste Removal. 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 Contract Modification.
9.8 Force Maieure
9.8.1. A "Force Majeure" event is an event that (i) in fact causes a delay in the performance of a
Party's obligations under the Contract Documents, and (ii) is beyond the reasonable control of the Party
incurring the delay, and (iii) is not due to an intentional act, error, omission, or negligence of such Party,
and (iv) could not have reasonably been foreseen and prepared for by such Party at any time prior 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,
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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. lf Construction Manager's performance of its contractual obligations 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 less than the time period set forth in Subsection 9.4.4 (i) of the occurrence of the delay, (ii) of
the nature of the event and the cause thereof, (iii) of the anticipated impact on the Work, (iv) of the
anticipated period of the delay, and (v) 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 may be deemed sufficient reason for denial by City of any extension of
time.
9.8.3. lf 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. ln determining whether any such extension shall be granted and in determining the length
of such extension, City may take into consideration any omissions or alterations in the Work or
equipment, materials and apparatus required by the Contract Documents whereby, in its opinion, the time
necessary for completion has been reduced.
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 othenarrise 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 1O
RIGHT TO PERFORM CONSTRUCTION AND
TO AWARD SEPARATE CONTRACTS: MUTUAL RESPONSIBTLITY
10.1. Riqht to Award Seoarate 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, including, any developer,
contractor or subcontractor engaged to develop, design or construct a Convention Center
headquarters hotel ("Headquarters Hotel Project") on a site adjacent to the Project Site (collectively,
"Separate Contractors"). The City anticipates entering into a long{erm lease/development agreement
for the Headquarters Hotel Project no earlier than November,2016, if the City obtains City
Commission and voter referendum approval, provided, however, that such long-term
lease/development agreement is not a condition of the Parties' obligations hereunder.
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10.2. Inteqration of Work with Separate Gontractors. Construction Manager shall afford Separate
Contractors reasonable access to the Project Site for the execution of their work. Following the request
of the City, the Construction Manager shall prepare a plan in order to integrate the work to be
performed by the City or by Separate Contractors with the performance of the Work, and shall submit
such plan to the City for approval. The 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 integrated, joined in an acceptable manner and performed in the proper
sequence, so that any disruption or damage to the Work or to any work of the City or of Separate
Contractors is avoided.
10.3. Coordination. Construction Manager shall conduct its work so as not to interfere with or
hinder the progress of completion of the construction performed by Separate Contractors, and
Construction Manager and such other contractors shall cooperate with each other as directed by the
Project Coordinator.
10.3.1. The Construction Manager shall provide for coordination of the activities of the
Construction Manager's (and its Subcontractors') own forces with the activities of each Separate
Contractor and the City. The Construction Manager shall participate with all Separate Contractors and the
City in reviewing and coordinating the schedules of the City and the Separate Contractors with the Project
Schedule when directed to do so by the City. The Construction Manager shall make any revisions to the
Project Schedule (but without extending the Substantial Completion Date) deemed necessary after a joint
review with the City and mutual agreement.
10.3.2. Coordination with Separate Contractors shall not be grounds for an extension of time or
any adjustment in the Guaranteed Maximum Price. Construction Manager agrees that its pricing of the
Work and the determination of the Guaranteed Maximum Price were expressly based upon the
Construction Manager's assumption of the foregoing cost risks.
10.4. Use of Proiect Site. 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 operations with the City and
all Separate Contractors'construction and operations as required by the Contract Documents.
10.5. Deficiencv in Work of Separate Contractors. lf part of the Construction Manager's Work
depends for proper execution or results upon 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 and results by the Construction Manager, and no later than five (5) business days
following discovery of any such apparent discrepancies or defects in such other construction. 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, 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. Claims lnvolvinq Separate Contractors. Except as provided below, the Construction Manager
shall assume all liability, financial and otherwise, in connection with the Work. To the fullest extent
permitted by law, the Construction Manager shall defend and save harmless the City against any and all
damages or Claims that may arise because and to the extent of inconvenience, delay or loss caused by
the Construction Manager.
10.6.1. ln the event that the Construction Manager unnecessarily and unreasonably delays the
work of Separate Contractors by not cooperating with them, or by not affording them reasonable
opportunity or facility to perform their work as specified, the Construction Manager shall, in such event,
pay all reasonable costs and expenses incurred by such Separate Contractor(s) due to any such delays.
The Construction Manager hereby authorizes the City to deduct the amount of such reasonable costs and
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expenses from any monies due or to become due, including Retainage, to the Construction Manager
under this Agreement.
10.6.2. lf, through the acts or omissions of the Construction Manager or any Subcontractor, any
Separate Contractor shall suffer loss or damage to its work, the Construction Manager agrees to
compensate such Separate Contractor for any such loss or damage. lf such Separate Contractor shall
assert any claim or bring any action against the City on account of any damage alleged to have been
sustained, the City shall notify the Construction Manager, who, at its sole cost and expense, shall defend,
indemnify and save harmless the City and pay and satisfy any judgment or award entered against the
City in any such action and shall pay all costs and expenses, legal and otherwise, incurred by the City
therein or thereby, including reasonable attorneys' fees.
10.6.3. Subject to the last sentence of this paragraph, the Construction Manager agrees that,
despite the fact that such Separate Contractor is not in privity of contract with the Construction
Manager, such Separate Contractor shall have the right to bring a direct cause of action against the
Construction Manager for its (and its Subcontractors') acts and omissions under this Agreement
which result in damages or losses to such Separate Contractor. The foregoing agreement of the
Construction Manager shall, however, only be enforceable by separate contractors who grant such a
direct cause of action to the Construction Manager under their respective separate contracts with the
City and who have also agreed to assume the liabilities and obligations assumed by the Construction
Manager under this Section 10.6.
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 Pavment. Along with the cost reports required under Section 2.1, the
Construction Manager shall deliver to the Owner's Representative every month, and shall review with the
Owner's Representative in person in order to obtain the City's approval, itemized monthly Applications for
Payments showing in detail all monies paid out, all releases of liens and waivers for Subcontractors and
suppliers who have been paid, and the amount of the Construction Manager's fees due as provided in
Article 7 (each, an "Application for Payment"). Each Application for Payment shall be submitted to the City
each month 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.
11.1.1 The Schedule of Values allocated to the various portions of the Work shall be prepared
on the basis of the City's Construction Budget (and may be updated based on any subsequent
modifications thereto), and will be used as a basis for reviewing and approving the Construction
Manager's Applications for Payment. Payment during the Construction Phase will be based upon
percentage of Work completed for each item in the approved Schedule of Values.
11.1.2 The Construction Manager's Pre-Construction Phase Fee, General Conditions Fee, and
Construction Overhead & Profit Fee shall be shown as separate line items on the Schedule of Values.
Payment of the Construction Manager's Overhead and Profit shall be calculated based on approved
invoiced amounts for Direct Cost ltems under Section 8.2. The billable Construction Phase fees set forth
in Subsections7.1.2 and7.1.3 will be paid in equal monthly installments, subject to Subsection7.1.2.1.
Payments by the City to the Construction Manager shall be made upon satisfaction of applicable
provisions governing testing, inspection and acceptance.
11.2. Form of Application: Proiected Pavment Schedule. The Construction Manager shall make
each Application for Payment on AIA Form G702 or other form approved by the City, which incorporates
the Fixed Construction Budget and the Schedule of Values. For each line item, the Construction Manager
shall state the approved cost, the cost to date, and the projected total cost, and retainage held (if any),
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shall state that the projected total cost shall not exceed the approved cost, as adjusted by Change Order.
Each Application for Payment shall also state the actual costs incurred by the Construction Manager for
the Payment Period covered by such Application for Payment.
ln order to assist the City in its management of the cash needs for the Project, within thirty (30) days
after the Contract Date, the Construction Manager shall submit to the Owner's Representative a
schedule of anticipated payment requests (the "Projected Payment Schedule"), setting forth the
Construction Manager's best estimate of the amounts for which it will be requesting payment with each
Application for Payment to be submitted by it during the balance of the City's then current fiscal year.
Thereafter, no later than ninety (90) days prior to the commencement of each ensuing fiscal year for
the City, the Construction Manager will present the Owner's Representative with a new Projected
Payment Schedule applicable to the upcoming fiscal year. The Parties acknowledge and agree,
however, that although the Projected Payment Schedules are to serve as a cash management aid to
the City, the amounts shown in any such schedules shall not be determinative of the actual amounts to
be paid to the Construction Manager during the fiscal year covered thereby.
11.2.1 Supportino Documentation. Together with each Application for Payment and as a
condition of payment thereof, the Construction Manager shall submit the monthly progress report required
by Section 2.4 hereof to the Owner's Representative. Payment will be made on the basis of approved
Applications for Payment certified by the Architect-Engineer and recommended for payment by the
Owner's Representative and such supporting documentation as the City may reasonably require,
including 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 covered by the current Application for Payment
(conditioned only on payment); provided, however, such lien waivers/releases of claims from
Subcontractors need only cover the immediately preceding Application for Payment. Such supporting
documentation will include, but shall not necessarily be limited to, the following:
a. Name, classification, date, daily hours, total hours, and rate for each
employee, supervisor, manager, laborer and foreman of the Construction Manager.
b. Designation, dates, daily hours, and rental rate for each unit of machinery
and equipment.
c. Quantities of materials and prices.
d. Transportation of materials.
e. Cost of insurance and taxes, with each item listed separately.
f. Receipted invoices for all services provided, materials used and
transportation charges. lf materials for the Work are not specifically purchased for this Work but are
taken from stock, then in lieu of invoices, the Construction Manager shall furnish. or cause to be
furnished, an affidavit certifying that such materials were from its or its Subcontractor's stock, that the
quantity claimed was actually used, that the supplier(s) of such "in stock" materials have been paid, and
that the price and transportation claimed represent the actual cost to the Construction Manager. The
price quoted for such material shall be reasonable and acceptable to the City as per the normal industry
practice.
g. For any cost reimbursable labor performed outside of the General
Conditions Fee, the Construction Manager's payroll records or certified copies thereof, pertinent to the
Work for which payment is requested. The Construction Manager's payroll records shall contain the
name, address and social security number of each employee, his or her correct classification, rate of
pay, daily and weekly number of hours worked, itemized deductions made and actual wages paid, with
hourly base rate, hourly fringe rate and hourly benefit rate clearly indicated.
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h. An updated progress schedule and updated Schedule of Values
acceptable to City as required by the Contract Documents;
i. A list of Subcontractors that worked during the Application for Payment
period;
j. A release of claims from Construction Manager in favor of the City, and
from each Subcontractor in favor of the Construction Manager, relative to the Work which was the
subject of previous paid applications;
k. A Consent of Surety form relative to Work which is the subject of the
pending pay application if requested by Owner;
l.A Monthly Utilization Report Form;
Updated as-built information for Work performed during the payment
period;
n. A LEED certification status report, 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
o. Any other reasonable documentation requested by the Owner's
Representative or Project Coordinator to assist in the City's review of applications for payment
The Project Coordinator 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, provided, however, that any such waiver in any
specific instance shall not be a waiver of the requirement to provide all supporting documentation in
every other instance.
11.2.2 Review Process. Pencil copy draft applications for payment shall be submitted to
Construction Manager by subcontractors and sub-consultants on the 20th of each month. Construction
Manager will review and have a draft pencil copy ready for Owner's Representative review and field walk
with Architect-Engineer no later than the 25th day of the month. Owner's Representative and Architect-
Engineer shall submit all final comments to Construction Manager five (5) days after the field walk/pencil
copy review. Construction Manager will then submit completed, certified and corrected final edits with all
backup to the Owner's Representative on 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: 1) the Application for Payment is certified by the Architect-Engineer; 2)all lien releases
properly notarized and submitted; 3) all required supporting documentation in accordance with
Subsection 11.2.1 of this Agreement is submitted and amounts therein match the amounts set forth in the
Application for Payment; and 4) Owner's Representative and Architect-Engineer's comments from draft
review are satisfactorily addressed. Applications for Payment shall be subject to approval by the City.
Failure to furnish supporting evidence for amounts invoiced shall be result in a reduction of the amount
otherwise due to Construction Manager. lncomplete pay applications will not be processed. For the
avoidance of doubt, no Application for Payment shall be deemed submitted or complete unless and until
the review process established in this Subsection 11.2.2herein has been completed and all the items
listed in this Subsection and all supporting documentation or items required by the Contract Documents
(including Subsection 11.2.1 above) have been delivered to and received by the Owner's Representative
and the Architect-Engineer.
11.3. Final Pavment. Final payment constituting the unpaid balance of the Cost of the Project,
retainage and the Construction Manager's fee for the Project shall be due and payable upon Final
Completion as described in the Contract Documents. However, if there should remain Work to be
completed, the Construction Manager, the Project Coordinator and the Architect-Engineer shall list those
m.
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items prior to receiving final payment for the Project and the City may retain a sum equal to 200% of the
estimated cost of completing any unfinished Work, provided that said unfinished items are listed
separately and the estimated cost of completing any unfinished items are likewise listed separately.
Thereafter, City shall pay to Construction Manager monthly the amount retained for each incomplete item
after each of said items is completed. Final Payment shall not relieve Construction Manager of any
obligation under Contract warranty, guaranty and indemnification provisions and such other provisions
that survive the termination of the Contract.
11.4. Pavments for Materials and Equipment. Construction Manager may invoice City and City will
pay for expenditures for materials and equipment received on the Project Site or another location prior to
being consumed during construction or incorporated into the Work if the equipment and materials are in
conformance with the Contract Documents, are received, inventoried and stored properly, City approves
and accepts the same, and City acquires title upon payment therefore. Construction Manager
nevertheless retains full responsibility for care, custody and control of such materials and equipment.
11.5. Budqet Balancinq Requirement: Riqht to Withhold Pavments. Any provision hereof to the
contrary notwithstanding, the City may withhold payments in the following circumstances:
11.5.1 lf the City, in its good faith judgment, reasonably determines that the portion of the
approved cost for any budget category line item then remaining unpaid (or which will be remaining
unpaid if all payments theretofore and then being requested by the Construction Manager are made)
will not be sufficient to complete the Work attributable to the applicable line item (a "Shortfall Line
Item") in accordance with the Contract Documents, no additional payments will be due the
Construction Manager hereunder for Work attributable to such line item unless and until the
Construction Manager performs a sufficient portion of the Work attributable to the applicable line item
in accordance with the Contract Documents (and provides evidence reasonably satisfactory to the
City of the performance thereof and payment therefor) so that such portion of the approved cost then
remaining unpaid is reasonably determined by the City to be sufficient to complete such Work.
11.5.2 ln 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
the Construction Manager amounts sufficient to reimburse the City for its expenditures for the account
of the Construction Manager or to secure (1) 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; (2) past due payments to
Subcontractors which are not being disputed by the Construction Manager or a Subcontractor in good
faith, and for reasons disclosed to the City, until an appropriate release of lien/claim is provided; (3) the
City's remedies in consequence of any failure to perform the Contract Documents' requirements or
uncured default of this Agreement by the Construction Manager, including City's performance of Work;
(4) damage to another contractor or third-party not remedied or damage to City property not remedied;
(5) liquidated damages and other costs incurred by City for extended construction administration; (6)
failure of Construction Manager to provide any and all documents required by the Contract Documents,
including failure to maintain as-built drawings in a current and acceptable state; (7) pending or
imminent claims of the City or others, including, Claims which are subject to Construction Manager's
indemnity obligation under Section 12.2 hereof for which the Construction Manager has not posted
bonds, obtained required insurance policies, or other additional security reasonably satisfactory to the
City; and (8) any amounts charged to the Construction Manager's Contingency without the Project
Coordinator's consent, for which the City, through the Project Coordinator or Owner's Representative,
disputes the legitimacy or reasonableness of the costs charged (either as not being reasonable or
necessary expenses, or othenryise as not being legitimate costs of the Project pursuant to Section 8.2
of the Agreement).
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.
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11.6. Applications for Materials and Equipment. Applications for Payment may include a request
for payment for materials and equipment incorporated into the Work. That portion of any payment
which is requested on account of materials or equipment delivered and suitably stored at the Project
Site, or at other locations approved by the City, which approval shall not be unreasonably withheld,
but not incorporated into the Work shall be permitted only if approved in advance by the City, which
approval shall not be unreasonably withheld. lf required by the City, such payment shall be
conditioned upon submission to the City of bills of sale or upon such other procedures as will
establish the City's title to such materials and equipment and othenryise adequately protect the City's
interest therein, including applicable insurance, suitable provisions for storage (including procedures
for segregating such materials or equipment from other property of the Constructlon Manager and/or
applicable Subcontractor, supplier or fabricator, and designating same as having been acquired for
the Project), suitable arrangements for transporting such materials and equipment to the Project Site
and UCC filings. The provisions of this Section permitting payments in respect of materials and
equipment stored off-site, as hereinbefore provided, shall apply notwithstanding the fact that such
materials or equipment may have to be fabricated prior to their incorporation into the Project. All
such requests for stored materials will be subject to the City's or their Representative's physical
inspection.
11.7. Effect of Application. ln presenting an Application for Payment to the City, the Construction
Manager warrants that:
11.7.1 Title to the Work, including all materials and equipment, covered by such Application
for Payment will pass to the City, free and clear of liens, claims, security interests or other
encumbrances (for purposes of this Article 11, hereinafter referred to as "Liens"), either by
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 Bond 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; and
11.7.2 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 othenryise imposed by the Construction
Manager or such other person; and
11.7.3 The design and construction have progressed to the point indicated in the Application
for Payment; the quality of the Work and any goods and materials covered by such Application for
Payment are in accordance with the Contract Documents and applicable laws, codes, ordinances, rules
and regulations of governmental authorities having jurisdiction over the Project; and the Construction
Manager is entitled to payment in the amount requested; and
11.7.4 The Construction Manager and its subcontractors of any tier are not in breach of
applicable conflict of interest provisions of state law with respect to this Agreement and have not been
debarred from bidding on work by the State or the City.
11.8. Accountins. Except for the Construction Manager's Fee and any Additional Fee, all sums paid to
the Construction Manager pursuant to this Agreement shall constitute a trust fund for the purpose of
performance of the Work and the construction, furnishing, and equipping of the Project in accordance with
the Contract Documents. At least ten (10) days prior to the submission of each monthly Application for
Payment, beginning with the second Application for Payment submitted hereunder, the Construction
Manager shall furnish to the City a certified statement accounting for the disbursement of funds received
from the City. Such statement shall itemize all disbursements to Subcontractors and vendors and shall be
accompanied by copies of subcontract payment vouchers substantiating actual expenditures. Vouchers
covering final payments to Subcontractors and other parties furnishing labor and materials in connection
with performance of the Work shall be accompanied by a release from each such party in the form
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approved by the City. However, no provision hereof shall be construed to require the City to see to the
proper disposition or application of the monies so paid to the Construction Manager.
11.9. Pavments to Subcontractors. 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 or
materials, the amount to which said 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 sub-
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.
11.10. Retainaqe. The City shall withhold from each progress payment made to the Construction
Manager, except for amounts due for the General Conditions Fee, Construction Manager's bonds and
insurance, and Construction Manager's purchase Orders for materials and equipment purchased directly
by Construction Manager for the performance of its Work (i.e. purchases other than for the Work of
Subcontractors or self-performed trade Work), retainage in the amount of ten percent (10%) of each
such payment until fifty percent (50%) of the Work has been completed. The Work shall be
considered 50% complete on the later of (i) the point at which the City has expended 50% of the
approved Cost of the Project together with all costs associated with existing change orders or other
additions or modifications to the construction services provided for in this Agreement, or (ii)
substantial completion of the Phase 1A and Phase 1B Work.
Thereafter, the City shall reduce to five percent (5%) the amount of retainage withheld from each
subsequent progress payment made to the Construction Manager, until Substantial Completion as
provided in Sections 5.4 and 5.5. 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. Upon receipt by the Construction Manager of a Notice of Substantial Completion
pursuant to Section 5.4, fully executed by the City establishing the Substantial Completion Date, and
after completion of all items on the punch list and/or other incomplete work, the Construction
Manager may submit a payment request for all remaining retainage. lt 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 (2) times the total cost to complete such
items. Any interest earned on retainage shall accrue to the benefit of City. City shall disburse the
amounts withheld upon the City's acceptance of the completion of the items for which they were
withheld. City may require a consent of surety to the release of retainage. ln the event that all or
any of the 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 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 Punch List items,
Construction Manager shall promptly pay to or reimburse the City for the amount of any deficiency.
11.11. No Acceptance. No progress payment made by the City shall constitute acceptance of the
Work or 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.
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11.12. Pavment bv the Gitv.
11.12.1.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 Application for Payment within fourteen (14) days after receipt thereof
or within such time as otherwise permitted by Fla. Stat. 218.735, following the review process set
forth in Subsection 11.2.2. lf reasons for rejection apply only to a portion of such Application for
Payment, only such portion shall be rejected. An Application for Payment or portion thereof that has
been approved by the City is herein referred to as an "Approved Application for Payment."
11.12.2.Frequency of Payments. ln accordance with Section 218.735 of the Florida
Statutes, the City shall, subject to the terms and conditions of this Agreement, make progress
payments in respect of Approved Applications for Payment, less Retainage as herein provided for
and/or withholding of any other amounts pursuant to the Contract Documents (including withholding
of payment pursuant to Subsection 11.5.2 of this Agreement), and shall use good faith reasonable
efforts to make such payments within the twenty-five (25) days after the applicable Application for
Payment is marked as received, in accordance with Section 218.74(1) of the Florida Statutes.
11.12.3.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.
11.13. Release of Subcontractor Retainaoe. lf a Subcontractor has completed its portion of the
Work (including all punch list items) 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. lf 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 Retainage, provided that all other requirements of the Contract
Documents are satisfied.
11.14. Final Proqress PavmenUFina! Comoletion. At such time as (i) all Work, including all punch list
items, is complete in accordance with the Contract Documents, all Final Completion requirements in
Section 5.7 have been satisfied and City has issued a Certificate of Final Completion, and (ii) the
Construction Manager has commenced the training program in Subsection 2.8.8 in respect of such Work
and has identified to the City the representatives of the Construction Manager to be available during
such period as provided for in Subsection 2.8.8 hereof, the Construction Manager may apply for the final
progress payment, and the City will pay the remaining amount of money due the Construction Manager
under this Agreement, provided that the Construction Manager has submitted a consent of surety to
such final payment in a form reasonably satisfactory to the City and all documents called for in Section
5.7, and provided further, with respect to the final payment and the payment of any Additional Fee to be
made upon completion of the entire Project, that the Certified Cost of the Project shall have been finally
determined and completed in accordance with Section 1 1 .15 hereof.
11.15. Certified Cost of the Proiect. As a part of its final Application for Payment hereunder, the
Construction Manager shall deliver to the City an audit of the Cost of the Project and 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
audit and certification shall be prepared by an accounting firm, independent of both parties, selected
by the Construction Manager and subject to the written approval of the City, which approval shall not
be unreasonably withheld. The Certified Cost of the Project so determined shall be binding upon the
Construction Manager and upon the City unless, within thirty (30) days after receipt of such audit and
certification, the City shall deliver to the Construction Manager written notice of its objections thereto.
ln the event that the City shall so object to all or any portion of the audit and certification delivered to
it by the Construction Manager, the City shall have the right to conduct or cause to be conducted its
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own audit of the books and records of the Construction Manager relating to the Work and the Cost of
the Project. lf 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. ln 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.
11.16. Maximum Reimbursement. Notwithstanding anything to the contrary set forth in the Contract
Documents, in no event shall the Construction Manager be entitled to reimbursement in respect of the
Cost of the Work in an amount in excess of the lesser of the City-approved Cost of the Project as set forth
in the GMP Amendment (and as adjusted from time to time by Change Order) and the amount finally
determined as aforesaid to be the Certified Cost of the Project. lf and to the extent the Construction
Manager has received payment in respect of the Cost of the Project in an amount in excess of the
Certified Cost of the Project, the Construction Manager shall reimburse such excess to the City within ten
(10) days after the Certified Cost of the Project has been finally determined. Any portion of the
Construction Overhead and Profit Fee or any Additional Fee undisbursed by the City, and any Retainage
still held by the City at such time may be applied to and offset against any such excess amounts to be
repaid by the Construction Manager to the City. ln the event that the Certified Cost of the Project is equal
to or less than (i) the City-approved Cost of the Project (as adjusted from time to time by Change Order),
plus (ii) any amounts applied by Construction Manager from the Contingency, then if and to the extent the
Construction Manager has not been reimbursed for the entire Certified Cost of the Project such deficiency
shall be paid by the City to the Construction Managerwithin ten (10)days afterthe Certified Cost of the
Project has been finally determined.
11.17. Waiver of Glaims. The acceptance of the payment and release of the final payment 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 a detailed reservation of rights that identifies the precise nature of the dispute, all facts or
supporting 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. ln 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 100o/o 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 Prolect. 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 lnsurance, authorizing it to write surety bonds in the State of Florida.
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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.
12.1.3. The Surety Company shall be in full compliance with the provisions of the Florida
lnsurance Code.
12.1.4. The Surety Company shall have at least twice the minimum surplus and capital required
by the Florida lnsurance 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 Vll
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
lnsurance to do business in this state have been met.
b. ln 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. lndemnitv. ln 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
and Architect-Engineer, 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. lt 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 othenruise set forth in this Section 12.2, lo 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 fullforce 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 othenrrrise 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 12.2bears 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 othenrrise reduce
the other rights and obligations of indemnity that may othen'yise 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. lnsurance. 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 othenrvise 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;
CIry'S RIGHT TO PERFORM CONSTRUCTION MANAGER'S OBLIGATION
13.1. Suspension of Work Bv Construction Manaqer. lf the City should fail to pay the Construction
Manager within forty-five (45) days 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,
Owner's Representative and the Architect-Engineer, stop the applicable Project until payment of the
amount owing has been received.
13.2. Suspension of Work Bv Citv.
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. ln 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.
Notice requires othenruise:
Upon receipt of any such Notice, Construction Manager shall, unless the
a. lmmediately discontlnue 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;
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,
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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.
through 13.2.1.2.
13.2.2.2.
The Construction Manager shall comply with Subsections 13.2.1.1
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.lf, 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. ln 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, 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.
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13.3. Termination bv Gitv for Convenience.
13.3.1. ln 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.
lf 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, othenrvise 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. ln 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:
13.3.4.1.lmmediately 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.lmmediately 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.
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13.3.4.4.lf 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 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. lf, 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 Managerfails 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");
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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 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;
An indictment is issued against the Construction Manager;
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".
ln 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.
13.4.10.
13.4.11.
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13.5. Termination of Agreement for Cause.
'l 3.5.1. The City may terminate the Construction Managerforcause 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 otherurise 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
othen'vise 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
e. Upon the issuance of a Notice of Termination for Cause, the
Construction Manager shall:
i. lmmediately 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. lf 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.
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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, 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, lrrespective 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. ln 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 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 lf No Default or Erroneous Default. lf, 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 Pav. lf the City should fail to pay the Construction Manager any material amount
owing pursuant to an Approved Application for Payment in accordance with the Contract
Documents and after receipt of all supporting documentation required pursuant to Subsection 11.2.1
hereof, and if the City fails to make such payment within forty-five (45) days after receipt of written
notice from the Construction Manager identifying the Approved Application for Payment for which
payment is outstanding, then, 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 upon the expiration of the aforesaid ninety (90) day
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. ln 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,
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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.
13.11. Materialitv 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 bv the Gonstruction Manaqer. lf 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 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. Citv's Riqht to Carrv Out the Work. lf 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. ln 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 Owner's 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. lf 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. Disputes relating to this Section may be the subject a
Claim that may be submitted to the Dispute Avoidance Panel, if one is established pursuant to Article
15.
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 LITIGATTON
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RELATED TO, OR ARISING OUT OF THE PROJECT. CONSTRUCTION MANAGER SHALL
SPECIFICALLY BIND ALL SUBCONTRACTORS TO THE PROVISTONS OF THIS AGREEMENT AND
THE CONTRACT DOCUMENTS.
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 othenrrrise 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 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. ln the event additional time is sought, the Construction Manager shall include
a time impact analysis to support such Claim. The City and/or Owner's Representative shall be entitled to
request additionaljob 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
Contract Modification issued by the City on its own initiative or in response to a proposal by the
Construction Manager, but not in response to a Contract Modification issued pursuant to Section 15.2.
a. Claims not timely made or othenruise 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 tN 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, INEFFIGIENCIES,
COSTS TO PREPARE A BID, COST TO PREPARE A QUOTE FOR A CHANGE tN 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 regulady with each other at all times so as to avoid and/or
minimize disputes and disagreements. lf 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 Citv 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. The City may establish a Dispute Avoidance Panel in accordance with Appendix G. lf the
Project has a Dispute Avoidance Panel, the Construction Manager must discuss the disputed issue at a
Dispute Avoidance Panel meeting before submitting a Claim. Failure to discuss the disputed matter at a
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Dispute Avoidance Panel meeting shall constitute a waiver of any Claim arising from that matter, if and to
the extent the failure to raise the issue is prejudicial to the other Party. lf established, only Claims which
seek amounts in excess of $50,000, seek time which would delay achieving any of the Milestones
established by this Agreement and/or are othenruise stipulated by mutual agreement of the Parties in
writing, shall be subject to determination by the Dispute Avoidance Panel. lf submitted to the Dispute
Avoidance Panel, the Parties shall adhere to the procedures set forth in Appendix G unless othenruise
specified.
15.2.2. ln the event that the City does not elect to establish a Dispute Avoidance Panel, or the
Claim does not meet the requirements for submission to the Dispute Avoidance Panel as set forth in
herein, then all such Claims shall first be submitted to the Owner's Representative for initial
recommendation for determination by the City at the time and in the manner specified in Section 15.1
herein unless othenarise specified in this Agreement or other Contract Documents. The Owner's
Representative shall render an initial recommendation for determination of such Claim, in writing, as soon
as practicable, but not later than forty-five (45) days of receipt of such Claim, unless the Parties mutually
stipulate othenrvise in writing or other circumstances warrant a time modification as determined by the
Owner's Representative or City. Failure to render a written decision within the forty-five (45) days, or a
later date if stipulated by the Parties, shall be considered a denial of the Claim submitted by the claimant.
15.2.3. ln order to preserve for review an initial recommendation for determination of the Owner's
Representative 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 Owner's Representative or, if no recommendation, within fifteen (15) days of when the Claim is
denied as a result of inaction by the Owner's Representative. Failure to timely preserve review of the
Owner's Representative's written recommendation or denial by inaction shall constitute a waiver of such
Claim or entitlement to such objection and the recommendation of the Owner's Representative (whether
by affirmative written recommendation or denial by inaction) shall be deemed final and binding, but
subject to mediation and litigation (as applicable).
15.2.4. lf 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.
15.2.5. ln 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 otherurrise. 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.
ln 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. Dutv 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
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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. ln the event of a dispute arising after Final Payment or Final
Completion, or a dispute which arose prior to Substantial Completion, has been preserved with respect to
a decision of the Dispute Avoidance Panel and/or Owner's Representative (as applicable) and which was
not successfully resolved at mediation, a court of competent jurisdiction in Miami-Dade County shall hear
such disputes. The Parties hereby waive a trial by jury, which requirement shall be included in each and
every Subcontract, sub-consulting agreement and purchase order that Construction Manager executes, in
connection with its Work on the Project.
ARTICLE 16
MISCELLANEOUS
16.1. Publicitv. 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. Riqht to Applv Monies Due. ln 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, 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. lnvoices. lnvoices shall be submitted in detail sufficient for a proper pre-audit and post-audit
thereof. lnvoices 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 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. Damaqe to Propertv at Proiect 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.
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16.6. Damaqe to Others'Propertv. The Construction Manager shall 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, and the Construction Manager shall repair any damage thereto caused by the
Construction Manager's or its Subcontractors' operations. 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. ln
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 extentof the City's actual recovery of property insurance proceeds from its property insurers. lf 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 such written notice to the
Construction Manager, the Construction Manager has not commenced and diligently proceeded with
any such repairs.
16.7. Construction Manaqer's Proiect Records. The Construction Manager's Project-related
Records shall be made available to the City or its authorized representatives, including the Owner's
Representative and ArchiteclEngineer, 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 Contract Modifications, 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 andior 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. At the end of the five (5) year period, if
Construction Manager proposes to destroy the Project Records, Construction Manager shall notify City in
writing and offer to deliver the Project Records to City at City's expense.
16.8. RFP 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 RFP Proposal
Submission. The Construction Manager agrees to provide its services under this Agreement at a level not
inferior to that referenced in its RFP Proposal Submission.
16.9. Tax Credits. REGs. Financial lncentives. The Project includes various requirements to achieve
energy efficiencies and meet certain environmental or energy-related standards, including American
Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and LEED standards, which
may result in the availability of federal and/or state tax credits, including deductions under Section 179D
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of the lnternal Revenue Code, renewable energy credits, and other financial incentives (collectively
hereinafter "lncentives"). The City is and shall be the sole recipient and beneficiary of any and all such
lncentives, which shall be distributed, disbursed and/or assigned in City's sole discretion. The
Construction Manager, Architect-Engineer, and Subcontractors shall have no right to any lncentives,
except as othenarise agreed to in writing by City. City and Construction Manager shall explore all
available opportunities for assignment or allocation of any available lncentives to the Construction
Manager, Architect-Engineer or Subcontractors, as applicable, subject to valuation of the lncentives and
negotiation of terms and conditions that are equitable with respect to any assignment or allocation of
lncentives.
16.10. 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 othenrvise, 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. ln 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.
16.11. Public Entitv Crime lnformation Statement. "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 Section 287.017, for CATEGORY TWO for
a period of 36 months from the date of being placed on the convicted vendor list."
16.12. No Personal Liabilitv of Public Officials. ln 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.
16.13. [NOT USED]
16.14. Audit Riqhts. 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.
16.14.1.Records subject to the provisions of the Florida Public Records Act, Chapter 1 19,
Florida Statutes, shall be kept in accordance with such statute. Othenryise, for the purpose of such audits,
inspections, examinations and evaluations, the City's agent or authorized representative shall have
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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.
16.14.2.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 lnspector General's Office and/or any lndependent Private
Sector lnspector General as set forth in Section 16.15 below.
16.14.3.lf 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, and Construction Manager shall pay for the audit at its sole
cost and expense.
16.15. Miami-Dade Countv's Audit Riqhts. Pursuant to various agreements with Miami-Dade County
("County") related to funding for the Project, Miami-Dade County shall have the following audit rights:
16.15.1.lndependent Private lnspector General Reviews. The County has the right to
retain the services of an lndependent Private Sector lnspector General ('lPSlG"), whenever the County
deems it appropriate to do so. Upon written notice from the County to the City and/or Construction
Manager, Construction Manager shall make available to the IPSIG all requested records and
documentation pertaining to the Project for inspection and reproduction. The County shall be responsible
for the payment of these IPSIG services, and under no circumstance shall the City or Construction
Manager incur any charges relating to these IPSIG services. Nothing contained in this provision shall
impair any independent right of the County to conduct an audit or investigate the operations, activities and
performance of the City in connection with its agreements with Miami-Dade County.
16.15.2.Miami-Dade Countv lnspector General Review. Construction Manager
acknowledges and agrees that the Miami-Dade County's Office of the lnspector General may, on a
random basis, perform audits relating to the Project and is authorized and empowered to review past,
present and proposed County and City contracts, transactions, accounts, records, agreements and
programs relating to the Project. ln addition, the lnspector General has the power to subpoena
witnesses, administer oaths, require the production of records and monitor existing projects and
programs. Monitoring of an existing project or program may include a report concerning whether the
project is on time, within budget and in conformance with plans, specifications and applicable law. The
lnspector General is empowered to analyze the necessity of and reasonableness of proposed change
orders to a contract. The lnspector General is empowered to retain the services of independent private
sector inspectors general (lPS|G) to audit, investigate, monitor, oversee, inspect and review operations,
activities, performance and procurement process, including project design, specifications, proposal
submittals, activities of the City, its officers, agents and employees, lobbyists, County staff and elected
officials to ensure compliance with contract specifications and to detect fraud and corruption.
a. Upon written notice to the City from the lnspector General or IPSIG
retained by the lnspector General, the City shall make all requested records and documents available to
the lnspector General or IPSIG for inspection and copying. The lnspector General and IPSIG shall have
the right to inspect and copy all documents and records in the Construction Manager's possession,
custody or control which, in the lnspector General's or IPSIG's sole judgment, pertain to performance of
the contract, including original estimate files, change order estimate files, worksheets, proposals and
agreements form and which successful and unsuccessful Subcontractors and suppliers, all project-related
correspondence, memoranda, instructions, financial documents, construction documents, proposal and
contract documents, back-charge documents, all documents and records which involve cash, trade or
volume discounts, insurance proceeds, rebates, or dividends received, payroll and personnel records,
and supporting documentation for the aforesaid documents and records.
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b. At all pertinent times, Construction Manager shall comply with the
requirements of Section 2-1076 of the Miami-Dade County Code, and shall maintain all files, records,
accounts of expenditures with respect to the Work, and such records shall be maintained within Miami-
Dade County and made available to the City and County representatives.
16.16. Patents, Trademarks. and Copvriqhts.
1 6.1 6.1 .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.
16.16.2.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.
16.16.3.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.
16.16.4.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.
16.16.5.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.
lf 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. ln 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 othbr property of City and shall be at
Construction Manager's sole expense.
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16.17. Emplovment Conditions.
16.17.1.No Discrimination: Affirmative Action. The Construction Manager shall not
discriminate against any workers, employees, or applicants, or any member of the public, because of
race, creed, color, religion, age, sex, sexual orientation or national origin, nor othenarise commit an unfair
employment practice. The Construction Manager shall take affirmative action to ensure that applicants
are granted or denied employment, and that employees are treated during employment, without regard to
their race, creed, color, religion, age, sex, sexual orientation or national origin. Such affirmative action
shall relate to, but not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation;
and selection for training, including apprenticeship. The 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.
16.17.2.Civil Riqhts 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.
16.17.3.Prevailins Waqes. 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, General Decision No. FL150027, dated 0110912015). 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. lf 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. ln 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 actualwages 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, address and social security number, labor
classification, hours worked, hourly base rate, hourly fringe rate and hourly benefit rate
f. The City may withhold or cause to be withheld from 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. lf 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.
16.17.4.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.
16.18. Survival of Provisions. ln 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.
16.19. Severabilitv. 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. ln 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.
16.20. 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.
16.21. No Continoent 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.
16.22. Claims for Damaqes
Except as to damages and/or liquidated damages pursuant to Subsection 5.1.3.1(a)through Subsection
5.1.3.1(c), the Construction Manager and City waive Claims against each other for consequential
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damages arising out of or relating to this Contract in excess of Five Million Dollars ($5,000,000) (the
"Claim Limit"); provided, however, that no Party shall be entitled to recover such damages until the total
aggregate amount of such damages suffered or incurred by such Party exceeds Two Hundred Thousand
Dollars ($200,000) (the "Threshold Amount"). To the extent the amount of such damages exceeds the
Threshold Amount, the Construction Manager or City, as the case may be, shall be entitled to recover the
Threshold Amount as well as the amount of its damages in excess of the Threshold Amount. The
claiming Party agrees first to look to any available insurance with respect to any Claim; and the Threshold
Amount and Claim Limit will be applicable to damages in excess of such available insurance.
The consequential damages to which the foregoing limited waiver applies shall be limited to the following:
16.22.1damages incurred by the City for rental expenses, for losses of use, income, profit,
financing, business and reputation, and for loss of management or employee productivity or of the
services of such persons, except for damages and/or liquidated damages pursuant to Subection
5.1.3.1(a) through Subsection 5.1.3.1(c), which shall not be subject to the Claim Limit or the Threshold
Amount; and
16.22.2 damages incurred by the Construction Manager for principal office expenses including
the compensation of personnel stationed there, for losses of financing, business and reputation, and for
loss of profit and other damages specified in Section 1 5.1 .1(b) hereof.
This mutualwaiver is applicable, without limitation, to all consequential damages due to either party's
termination in accordance with Article 13. Nothing contained in this Section 16.22 shall be deemed to limit
or preclude an award of liquidated damages, when applicable, in accordance with the requirements of the
Contract Documents. Further, nothing set forth in this Section 16.22 shall be deemed to be a waiver or
limitation on any Party's right to direct damages for any breach of the other Party's obligations under the
Contract Documents.
16.23. Entire Aqreement. 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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lN 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:
City Clerk Philip Levine, Mayor
APPT{OVED AS TO
FORM & IANGUAGE
By:
& FOR EXECUTION
Q.rt ^ '('wCttfnomey E\f E
CLARK CONSTRUCTION GROUP. LLC
Sidney J. Jordan
Division CEO/President
Northern & Southern Region
ATTEST.
By:
Print Name:
Print Name
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APPENDIX A
PROJECT TEAM ASSIGNED REPRESENTATIVES
City of Miami Beach:
Maria Hernandez, Project Director, Convention Center District (Project Coordinator)
Email: MariaHernandez@miamibeachfl.oov
Thais Vieira, Senior Project Manager
Email: ThaisVieira@miamibeachfl.qov
Architect-Engineer:
John Kudrycki, Fentress Architects
Email: Kudrvcki@fentressarchitects.com
Owner's Representative:
Deborah Palmer, Hill lnternational
Email: DeborahPalmer@hillintl.com
Eladio Castrodad
Email: EladioCastrodad@hillintl.com
Construction Manager:
Mark Eames, Project Manager
Email: mark.eames@clarkchicaqo.com
Bill Dooling, Construction Superintendent
For other Construction Manager personnel, see Appendix B.
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APPENDIX B
Construction Manaqer
Pre-construction & Construction Phase Personnel
Office Staff
William Dean - Executive Vice President
James Faddis - Senior Estimator
Mark Eames - Senior Project Manager
David Gillam - Project Manager
On-Site Staff
Sarah Earle - Assistant Project Manager
William Dooling - Project Superintendent
John Hockensmith- Assistant Project Superintendent
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APPENDIX D
PROJECT PHASES OF THE WORK AND MILESTONES
1. Phases of the Work
1.1. Phasing Plan TBD with input from the Construction Manager.
2. The Project Schedule shall include the following Milestones:
2.1. 'nrt gasel 2016 Miles " shall mean the November 16,2016 date by which, without
regard to whether Substantial Completion of the Phase 1A Work is timely achieved, Construction
Manager shall deliver the Project Site for load-in for the December 3, 2016 Art Basel exhibition, and by
which the Construction Manager must obtain a temporary certificate of occupancy and/or completion, as
applicable, and/or otheruvise satisfy all conditions or requirements of any agencies having jurisdiction
(including fire watch or other conditions that may be imposed under City special event permits, if such
permits are required) so as to permit the following portions of the Project Site to be fully operational and
available for occupancy and use by the public, vendors and others, including:
i. the main floor exhibition spaces (Halls A through D), with removal of the north/south
temporary divider walls or partitions so as to provide open and uninterrupted access within and
throughout Halls A through D;
il.the new first floor north junior ballroom;
north loading dock areas and full and open access to loading docks;
iv. first-floor interior West Concourse and East Concourse areas so as to permit safe public
access to the Exhibition Halls A through D and other areas of the Convention Center from Washington
Avenue and Convention Center Drive;
v. the existing Convention Center spaces not under construction as part of the Phase 1A
Work, including the existing Convention Center kitchen, south meeting rooms and existing south second-
level spaces, second level east and west corridor meeting rooms;
vi. operational restrooms (or an appropriate number of portable or temporary restrooms),
sufficient to permit use of the Convention Center by up to 20,000 daily guests;
vii. support spaces or "back-of-house" areas for the areas identified in subsections (i)
through (v);
viii.exterior enclosure of the Convention Center building, sufficient to permit the use of the
foregoing interior areas identified in subsections (i) through (vii), even if certain aspects of the exterior
faEade, including the exterior fins, are not othenrrrise completed;
ix. interiors sufficient for occupancy or for temporary use, i.e. with temporary partitions to
protect uncompleted areas, temporary flooring if necessary, and other similar temporary measures if
required to protect or enclose areas that remain uncompleted by the November, 2016 milestone date
x. temporary or permanent HVAC, security systems, sprinkler systems, mechanical,
electrical, plumbing, lighting, accessibility, and life safety systems sufficient to meet all conditions or
requirements of authorities having jurisdiction for occupancy/use by the public;
ilr
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xi. a clean and open Convention Center Drive, 18th Street, and 19th Street within the Project
Site;
xii. fencing of the P-lot with appropriate fence screens to limit public view of construction
staging area and enhance aesthetics of the Project Site;
xiii. use of 50% of P-lot for parking or event tent space(s);
xiv. removal of equipment, machinery, tools, materials, and debris, as well as general clean-
up, so as to make the Project Site suitable for use by Art Basel and its event patrons.
2.2. 'nrt easel 2017 Miles " shall mean the November 22, 2017 date by which, without
regard to whether Substantial Completion of the Phase 2N2B Work is timely achieved, Construction
Manager shall deliver the Project Site for load-in for the December 3,2017 Art Basel exhibition, and by
which the Construction Manager must obtain a temporary certificate of occupancy and/or completion, as
applicable, and/or otherwise satisfy all conditions or requirements of any agencies having jurisdiction
(including fire watch or other conditions that may be imposed under City special event permits, if such
permits are required) so as to permit the following portions of the Project Site to be fully operational and
available for occupancy and use by the public, vendors and others, including:
the main floor exhibition spaces (Halls A through D), with removal of the
north/south temporary divider walls or partitions so as to provide open and uninterrupted access within
and throughout Halls A through D;
the new first floor north junior ballroom and first floor south junior
ballroom;
docks;
iii. north and south loading dock areas and full and open access to loading
iv. first-floor interior West Concourse and East Concourse areas so as to
permit safe public access to the Exhibition Halls A through D and other areas of the Convention Center
from Washington Avenue and Convention Center Drive;
east Convention Center kitchen;
vi.
vil.
the new north kitchen or, if the new kitchen is not completed, the existing
second level spaces delineated as part of the Phase 2N2BWork;
operational restrooms (or an appropriate number of portable or
temporary restrooms), sufficient to permit use of the Convention Center by up to 20,000 daily guests;
viii. support spaces or "back-of-house" areas for the areas identified in
subsections (i) through (vii);
ix. exterior enclosure of the Convention Center building, sufficient to permit
the use of the foregoing interior areas identified in subsections (i) through (viii), even if certain aspects of
the exterior fagade, including the exterior fins, are not otherwise completed
x. interiors sufficient for occupancy or for temporary use, i.e. with temporary
partitions to protect uncompleted areas, temporary flooring if necessary, and other similar temporary
measures if required to protect or enclose areas that remain uncompleted by the November,2017
milestone date
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xi. temporary or permanent HVAC, security systems, sprinkler systems,
mechanical, electrical, plumbing, lighting, accessibility, and life safety systems sufficient to meet all
conditions or requirements of authorities having jurisdiction for occupancy/use by the public;
xii. a clean and open Convention Center Drive, 18th Street, and 19th Street
within the Project Site;
xiii. fencing of the P-lot with appropriate fence screens to limit public view of
construction staging area and enhance aesthetics of the Project Site;
xiv. use of 50% of P-lot for parking or event tent space(s);
xv. removal of equipment, machinery, tools, materials, and debris, as well as
general clean-up, so as to make the Project Site suitable for use by Art Basel and its event patrons.
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APPENDIX E
INSURANGE AND BONDING REQUIREMENTS
1. Construction Manager shall submit all supporting documentation and detailed invoices
with respect to insurance and bond premiums. 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 lnsurance
Regulation and adequate rating from A.M. Best indicated in these Contract Documents, 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. lf the amount of the Bond exceeds the undenrrrriting limitation set forth in the circular, in order
to qualify, the net retention of the surety company shall not exceed the underu,yriting limitation in the
circular, and the excess risks must be protected by coinsurance, reinsurance, or other methods in
accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR Section 223.10, Section
223.11.) 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 lntercom of the Office of the Florida lnsurance 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 ll
$2,000,001 to $5,000,000 A Class lll
$5,000,000 to $1 0,000,000 A Class lV
$10,000,001 to $25,000,000 A Class V
$25,000,001 to $50,000,000 A Class Vl
$50,000,001 or more A Class Vll
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INSURANCE REQUIREMENTS
1. BUILDER'S RISK
City shall obtain and maintain Builder's Risk insurance for the Project, providing coverage for
all risks of direct physical loss or damage including flood, earthquake, and named windstorm, as more
fully described in the original policy wording. Construction Manager, and all Subcontractors of every tier
performing a portion of the Work on the Project, shall be additional insureds under the Builder's Risk
insurance, as their respective interests appear. The Builder's Risk insurance will provide for property in
the course of construction, including off-site storage, transit, buildings, structures, fixtures, materials,
foundations, machinery and equipment, cold testing, and damage to existing property business
interruption at the Miami Beach Convention Center, all as more fully described in the original policy
wording. The Builders Risk insurance shall be written to insure the Project's completed value or such
other amounts as may be agreed-upon by City and Construction Manager, based on the consideration of
the costs and/or commercial availability of such coverage. Construction Manager shall be responsible for
deductibles under the Builder's Risk insurance up to $25,000 per occurrence. The policy shall be written
such that the building can be occupied during the project, and coverage will remain in force. The builders
risk coverage shall terminate only upon acceptance of the completed project by the City, and only when
the City has had an opportunity to report and insure the additional values under the City's property
insurance program.
2. CONTRACTOR.CONTROLLED INSURANCE PROGRAM
Construction Manager shall provide, pay for, and maintain in force until all times during the term
of this Agreement (unless othenrrise provided) and any extensions thereof, a Contractor Controlled
lnsurance Program ("CClP') for the Project with the insurance coverages set forth in this Appendix E.
2.1. Parties of all tiers performing labor or services at the Project Site shall be eligible to enroll
in the CCIP for the Project duration. The CCIP will provide to Enrolled Parties (as defined below)
Workers' Compensation and Employer's Liability insurance, Commercial General Liability insurance,
Excess Liability insurance, as summarily described below, in connection with the performance of the
Work ("CClP Coverages").
2.2. Summarv of GCIP Coveraqes. CCIP Coverages shall apply only to those operations of
each Enrolled Party performed at the Project Site in connection with the Work. An Enrolled Party's
operations away from the Project Site, including product manufacturing, assembling, or otherurise, shall
only be covered if such off-site operations are identified and are dedicated solely to the Project. The
CCIP shall provide the following insurance to eligible and Enrolled Parties:
a) Workers' Compensation insurance at the Statutory Limit in compliance with
the Workers' Compensation Law of the State of Florida, and in compliance with all federal laws, including
U.S. Longshore & Harbor Workers Act, and Jones Act coverage, where appropriate.
This insurance is primary for all occurrences at the Project Site.
Emplover's Liabilitv lnsurance with the following limits:
Bodily lnjury by Accident, each accident
Bodily lnjury by Disease, each employee
Bodily lnjury by Disease, policy limit
$1,000,000
$1,000,000
$1,000,000
This insurance is primary for all occurrences at the Project Site.
b) Commercial General Liabilitv lnsurance provided on ISO Occurrence Form, or
its equivalent, with the following limits:
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Each Occurrence Limit
General Aggregate Limit for all Enrolled Parties
Products & Completed Operations Aggregate
for all Enrolled Parties
$2,000,000
$4,000,000
$4,000,000
Ten (10)Years Products & Completed Operations Extension
This insurance is primary for all occurrences at the Project Site.
c) Excess Liabilitv lnsurance (over Employer's Liability & General Liability), with
the following limits:
Combined Single Limit
General Annual Aggregate for all Enrolled Parties
Products & Completed Operations Aggregate
for all Enrolled Parties
$200,000,000
$200,000,000
$200,000,000
Ten (10)Years Products & Completed Operations Extension
2.3. Except as to the Workers' Compensation policy, shall name City, Architect-Engineer
Architects, Hill lnternational, lnc., Global Spectrum, their respective officers, agents and employees, and
any additional entities as City may request, as additional insureds of the CCIP.
2.4. Construction Manaqer's CGIP Obliqations. Construction Manager shall furnish City
with monthly reports concerning the status of enrolled parties, and excluded parties and other information
as may be requested by the City.
2.5. For all policies provided under this Section, the policy(ies) must be endorsed to provide
City with at least ninety (90) days' notice of cancellation and/or restriction.
2.6. Construction Manager shall furnish to the City Certificates of lnsurance or endorsements
evidencing the insurance coverage specified above within fifteen (15) days after notification of award of
the Agreement. The required Certificates of lnsurance shall name the types of policies provided, refer
specifically to this Agreement, and state that such insurance is as required by this Agreement. The
Certificate of lnsurance shall be in form similar to and contain the information set forth in a standard
Accord form 25-S. The failure to provide the Certificate of lnsurance within fifteen (15) days shall be the
basis for the rescission of the awarding Agreement. Additional insured certificates for the City shall read
"City of Miami Beach, Florida", 1700 Convention Center Drive, Miami Beach, FL,33139, Attn: Risk
Management, 3'd Floor.
2.7. Riqht to revise or reiect. City's Risk Management Division reserves the right, but not
the obligation, to review and revise any insurance requirements at the time of contract renewal and/or any
amendments, including deductibles, limits, coverages and endorsements based on insurance market
conditions affecting the availability or affordability of coverage; or changes in the scope of
work/specif icati ons affecti n g the appl icabil ity of covera ge.
2.8. Dutv of Care. Nothing contained in this Appendix E shall relieve the Construction
Manager or any of its Subcontractors of any tier of their respective obligations to exercise due care in the
performance of their duties in connection with the Work, and to complete the Work in strict compliance
with the Contract Documents.
2.9. Construction Manaqer'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 of the Agreement. ln 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 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 from the Construction
Manager.
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2.10. Waiver of Subroqation. Where permitted by law, Construction Manager hereby waives
all rights of recovery by subrogation or othen,vise (including 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. Certificate 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 lnterests
provision, with no requirement of premium payment by the City.
2.11. As part of the GMP Amendment, City reserves the right to elect to implement an Owner
Controlled insurance Program at least equal to the Contractor Controlled lnsurance Program.
3. OTHER INSURANCE
Construction Manager shall also provide, pay for and maintain in force until all times during the
term of this Agreement (unless othenrrrise provided) and any extensions thereof, the following insurance:
3.1 . Business Automobile Liability with minimum limits of One Million Dollars ($1,000,000) per
occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage
must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability
policy, without restrictive endorsements, as filed by the lnsurance Services Office, and must include:
Owned Vehicles.Hired and Non-Owned Vehicles.
3.2. Pollution Liability, which covers mitigation expenses and third-party liability in the
minimum amount ofTen Million Dollars ($10,000,000) per claim, subject to a maximum deductible
acceptable to the City. Such policy shall include an annual policy aggregate in the amount of Twenty
Million Dollars ($20,000,000) and name City as additional insured. Construction Manager shall indicate
the deductible for this coverage on its Certificate of lnsurance.
3.3. lf the initial insurance expires prior to the completion of the Work, renewal copies
of policies shall be furnished at least fourteen (14) days prior to the date of their expiration. The
policy(ies) must be endorsed to provide the City with at least thirty (30) days' notice of cancellation
and/or restriction.
3.4. Construction Manager shall furnish to the City Representative Certificates of lnsurance or
endorsements evidencing the insurance coverage specified herein within fifteen (15) days after
notification of award of the Agreement. The required Certificates of lnsurance shall name the types of
policies provided, refer specifically to this Contract, and state that such insurance is as required by
this Agreement. The Certificate of lnsurance shall be in form acceptable to and subject to approval by
City. The failure to provide the Certificate of lnsurance within fifteen (15) days shall be the basis forthe
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. Construction Manager, at City's
request, may review a certified copy of any insurance policy specified herein.
3.5. City's Risk Management Division reserves the right, but not the obligation, to review and
revise any insurance requirements at the time of contract renewal and/or any amendments, including
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
applicability of coverage.
3.6. City, Architect-Engineer Architects, Hill lnternational, lnc. and Global Spectrum shall be
expressly included as an Additional lnsured 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 CenterDrive, MiamiBeach, FL,33139, Attn: Risk Management,3'd Floor.
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3.7. Notice of Cancellation and/or Restriction-The policy(ies) must be endorsed to provide
City with at least ninety (90) days' notice of cancellation or non-renewal and/or restriction. A copy of the
endorsement(s) shall be provided with the Certificates of lnsurance.
3.8. City's review of Construction Manager's insurance policies, or Construction Manager's
furnishing of insurance coverage, shall in no way relieve or limit, or be construed to relieve or limit,
Construction Manager or any of its Subcontractors of any responsibility, liability, or obligation imposed by
the Contract Documents, or by law, including any indemnification obligations which Construction Manager
or any of its Subcontractors have to City thereunder.
3.9. 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 of the Agreement. ln 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 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 from the Construction
Manager.
3.10. Waiver of Subroqation. Where permitted by law, Construction Manager hereby waives
all rights of recovery by subrogation or othenarise (including 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. Certificate 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 lnterests
provision, with no requirement of premium payment by the City.
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APPENDIX F
DIRECT PURCHASE PROGRAM
1. The City is generally exempt from taxation and may elect to implement a direct purchase
program whereby lt 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 ProjecUCPM Schedule.
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
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and handling insurance. The 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 numberwith issue and expiration date shown.
8. ln 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 Owner's 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 fonrrard 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. lf 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.lf 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.
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13. The Construction Manager shall be responsible for obtaining and managing allwarranties
and guarantees for all materials and products as required by the Contract Documents. All repairs,
maintenance or damage repair calls shall be forwarded to the 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 shallpurchase and maintain insurance pursuant to the requirements setforth 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. ln 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 Prolect 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
DISPUTE AVOIDANCE PANEL
1. PURPOSE. The purpose of this dispute avoidance process is primarily to assist in the
prevention of disputes between the City and Construction Manager and the mitigation of impacts to the
Project, and secondarily to assist in the resolution of disputes and Claims between the Construction
Manager and City arising out of the Contract Documents. The intent of the establishment of the
DISPUTE AVOIDANCE PANEL ("PANEL") is to facilitate contemporaneous agreement as to the
resolution of events occurring during the progress of the Work, and if agreement cannot be quickly
reached, then to fairly and impartially consider disputes placed before it and to provide verbal or written
recommendations for resolution of these disputes to both the City and the Construction Manager. All
decisions of the PANEL are non-binding on the Parties.
2, PANEL SCOPE
2.1 Operations: The PANEL will formulate its own rules of operation, which will be kept
flexible to adapt to changing situations. The City and Construction Manager will keep the PANEL
informed of construction activity and progress of the Work by submitting to the PANEL monthly written
progress reports and other relevant data. Selected Project records including schedule updates, Requests
for lnformation, Requests for Work Orders, and Requests for Change Orders, will be furnished to the
PANEL at the same time as they are initially furnished to the other parties engaged on the projects. The
PANEL will visit the Project at regular intervals and at times of critical construction events and meet with
the representatives of the City and Construction Manager based upon a mutually agreed upon schedule
to be determined at the initial meeting.
2.2 Membership of the PANEL: The PANEL shall consist of three neutral members
who shall not have been previously employed in any capacity for either Party; provided however that,
prior services as a dispute panel member shall not automatically disqualify a potential member. One
member shall be nominated by Construction Manager a n d one member shall be nominated by City.
Unless reasonably objected to by the other Party, the nominees shall be appointed to the PANEL. The
third member, who shall serve as Chair, shall be selected by agreement of the Parties or, if the Parties
are unable to reach agreement within fifteen (15)days after the award of the Agreement and priorto
the Notice to Proceed Date for the Construction Phase, by the two party-appointed members. Unless the
Parties agree otheruuise, each PANEL member shall have significant construction experience, with at
least two of the three Panel members not being lawyers.
2.3 Meetinqs'confidentialitv: The first meeting of the PANEL shall occur within thirty
(30) days of the Effective Date of NTP2. Subsequent meetings will be regularly held on site as set forth in
Frequency of Meetings below. Statements made in regular meetings of the PANEL will be confidential
and inadmissible to the same degree as proceedings in a Court-ordered mediation under Florida law.
Each meeting will consist of an informal round table discussion and, if possible, a field inspection of the
work. The round table discussion will be attended by representatives of the City and Construction
Manager. The round table discussions shall include discussions with the City and Construction Manager
that address the following items: construction Work accomplished since the last meeting, current status of
the Work, the current and future schedule, payment status, potential future problems that may come
before the PANEL, proposed solutions to those problems, and an update regarding previously handled or
ongoing problems. lt is contemplated that other Prolect participants will be invited to attend regular
PANEL meetings, including Architect-Engineer, major Subcontractors of the Construction Manager,
and Hill, the Owner's Representative firm. ln addition to round table discussions, agendas for regular
meetings of the PANEL may include the following topics:
2.3.1 Discussions involving representatives of the Parties with respect to any
issues that have arisen or have been properly presented to the PANEL through the below stated Request
for Conference process. lssues that were not submitted to the PANEL pursuant to the procedures
delineated herein shall not be presented to the PANEL for consideration without the agreement of both
Parties.
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2.3.2 Rebuttals, if requested, by representatives of the Parties with respect to
issues raised by the representatives of the other Party.
2.3.3 Set a tentative date for next meeting.
2.4 Disputed Matters:
2.4.1 Only Disputed Matters can be referred to the Panel for review and
recommendation. A Disputed Matter means a "Claim" as defined in Section 1.6 and Article 15 of the
Agreement, which seeks an amount in excess of $50,000, seeks time which would delay achieving any of
the Milestones established by this Agreement and/or is otherwise stipulated by mutual agreement of the
Parties in writing.
2.4.2 Only Disputed Matters which have been duly preserved under the terms of the
Agreement and are compliant with Article 15 and Subsection 9.4.4 as applicable, thereof are eligible to be
heard by the PANEL.
3. Frequency of Meetings: ln order for the PANEL to become familiar with the Project
circumstances, it will begin to meet at least once per month following the Notice to Proceed for the
Construction Phase. lf conditions warrant, the Chair, in consultation with other PANEL members, the
Construction Manager and the City, may reduce/increase the time between meetings to better serve the
Parties. Factors to be considered when setting the time between meetings include Work progress,
occurrence of unusual events and the number and complexity of ongoing or potential disputes.
4. PROCEDURE FOR SCHEDULING DISPUTED MATTERS BEFORE THE PANEL. The
Parties should attempt to resolve potential disputes without resorting to use of the PANEL. However, in
the event that a resolution is unlikely, the following procedures must be followed:
4.1 Before referring a matter to the PANEL for a Conference, a Party that desires to
initiate a PANEL Conference must first submit a letter titled Notice of Disagreement to his/her counterpart
from the other Party describing the issue that has arisen. The Party receiving the notice shall have seven
(7) days from receipt of the Notice of Disagreement to submit a response. lf, after fourteen (14) days from
the initial receipt of the Notice of Disagreement, the issue has not been resolved, the Party who sent the
original Notice of Disagreement may file a written Request for a Conference to the PANEL and the matter
will be scheduled before the PANEL at the next quarterly PANEL Conference. The written Request shall
contain a copy of the initial Notice of Disagreement and the response to this Notice, if any, by the other
Party. No Request may be filed with the PANEL without first having complied with the Notice of
Disagreement requirements of this Section.
4.2 PANEL Conferences shall be scheduled on a quarterly basis to hear all pending
Disputed Matters which have not been resolved following compliance with Section 4.1 herein. Upon
receipt of a Request for a Conference, the Chair will schedule the matter for the next quarterly PANEL
Conference at a location in Miami Beach, Florida. However, no pending Disputed Matter shall be heard
at a PANEL Conference without at least thirty (30) days' notice from the date the written Request for
Conference is received unless both Parties stipulate otherwise. The Parties may request that the matter
be deferred in the event that additional preparation is necessary. The Parties may request an informal
verbal PANEL recommendation, or the Parties may request a formal written recommendation from the
PANEL.
4.3 The Parties shall provide to the PANEL appropriate supporting documentation no
later than fourteen (14) days before the commencement of the Conference, along with an optional
position paper, as appropriate. The Parties shall provide rebuttal papers, if any, no later than five (5)
days before the Conference.
4.4 The Party submitting the Request shall be responsible to provide the PANEL with
three (3) copies of each document submitted with the Request, one for each PANEL member. The Party
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furnishing any written documentation to the PANEL shall also furnish copies of such information to the
other Party concurrently when furnishing the documents to the PANEL. The PANEL may request that
additional written documentation and explanations from both Parties be sent to each member and to the
other Party for study before the Conference begins.
4.5 Both Parties will be afforded an opportunity to be heard by the PANEL and to offer
documents and other information to substantiate their respective positions. However, all documentation
presented at the Conference must have been provided to the other Party and the PANEL at least five (5)
days prior to the Conference or as othenavise required by Section 4.3 herein. The PANEL members may
ask the Parties questions, request clarification, or ask for additional data. The Parties may not question
or examine each other at a Conference. ln large or complex disputes, additional Conference days may
be necessary in order to consider and fully understand all the documentation and other information
presented by both Parties.
4.6 All of the PANEL's written recommendations for resolution of disputes will be given
to the City and the Construction Managerwithin ten (10) days of completing the Conference(s). ln cases
of extreme complexity, both Parties may agree to allow additional time for the PANEL to formulate its
recommendations. The PANEL's initial 10-day written recommendation will address contractual
entitlement and the number of days of extension of time, if at issue. The Parties will have seven (7) days
after the 10-day written recommendation to resolve the issue. The Parties may, but are not required to,
agree to mediate the resolution during this 7-day period. lf the Parties cannot agree on the resolution of
the 1O-day written recommendation during this 7-day period, the PANEL shall issue a subsequentwritten
recommendation addressing monetary damages no later than twenty-four (24) days from completion of
the Conference.
4.7 No provisions associated with the PANEL shall in any way abrogate the
Construction Manager's responsibility for preserving a Claim filed in accordance with the requirements set
forth in the Contract Documents.
4.8 ln the event that the City is not in agreement with a decision or
recommendation of the PANEL, the City may elect to issue a Work Order or Change Order, with an
appropriate reservation of its rights.
4.9 The PANEL's recommendations shall be non-binding and solely intended to
facilitate the Parties' settlement communications. All records and written recommendations of the PANEL
will be inadmissible as evidence in any subsequent court proceeding or other dispute resolution
proceeding as privileged mediation/settlement communications, to the fullest extent permitted by law and
the applicable rules of procedure.
4.10 By mutual agreement of the Parties and the PANEL, the steps listed under this
Section may be omitted and the time periods shortened in order to hasten resolution.
5. NEUTRALIry OF PANEL MEMBERS. All PANEL members shall act impartially and
independently when performing their functions as PANEL members including in the consideration of any
provisions of the Contract Documents and the facts and conditions surrounding any written Request to
the PANEL by the City or the Construction Manager. Ex parte communications between a PANEL
member and any Party are strictly prohibited. PANEL members shall not discuss or communicate with
any Party without the other Party being present. Seeking any PANEL member's advice or consultation is
expressly prohibited, unless it is done in the open at a PANEL meeting and in the presence of the other
Party.
6. RECORDS OF MEETINGS. While the PANEL may take notes or keep other records
during the consideration of a Notice of Disagreement, it is not necessary for the PANEL to keep a formal
record. lf possible, it is desirable to keep the Conferences completely informal. However, records of the
formal Conferences in regards to Notices of Disagreements will be transcribed by a court reporter if
requested by one Party. The Party requesting the court reporter shall be responsible for any costs. Audio
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and/or video recording of the meeting is prohibited without prior written agreement by the PANEL and the
Parties.
7. RECOMMENDATIONS OF THE PANEL. All written recommendations of the PANEL
shall be executed by all PANEL members and supported by at least two members. Recommendations will
be based on the pertinent provisions of the Contract Documents and the facts and circumstances
involved in the dispute. This provision shall not prevent the PANEL from issuing informal verbal
recommendations.
8. RECONSIDERATIONS. Either Party may seek written reconsideration of a written
recommendation within three (3) business days of receipt of such recommendation from the PANEL.
9. CONSTRUCTION SITE VISITS. The PANEL members shall visit the Project Site on a
regular basis to keep abreast of construction activities and to develop a familiarity of the Work in
progress. The frequency, exact time, and duration of these visits shall be as mutually agreed between the
City, the Construction Manager, and the PANEL at the initial meeting, but should not exceed one time per
month following the Notice to Proceed for the Construction Phase, unless the Parties mutually agree
othenr,vise.
10. COORDINATION AND LOGISTICS. The City, in cooperation with the Construction
Manager, will coordinate the operations of the PANEL.
11. TIME FOR BEGINNING AND COMPLETION. The PANEL is to be in operation
commencing on the Effective Date of NTP2. Once Substantial Completion has been reached, the PANEL
shall remain active and in full force and effect until all Requests for Conference submitted prior to
Substantial Completion are heard or Final Completion of the Project is achieved, whichever is later.
12. PAYMENT. The maximum not to exceed daily fee to be paid to each PANEL member
shall be One Thousand Five Hundred Dollars ($1,500.00) and travel costs in accordance with City
procedures and Florida law.
12.1 Reqular Meetinqs. The amounts paid to the Chair of the PANEL and the other
PANEL members for their services, including travel costs, shall be paid from an Allowance Account
established within the Contract Documents for that purpose. Except as specified below, the Construction
Manager shall submit a request to the City for payment of all expenses incurred, without markup or bond.
City shall process and pay Construction Manager for PANEL expenses as part of regular project
periodic pay requests, and the Construction Manager shall be responsible to promptly pay the PANEL
members with no withholding or deductions.
12.2 Pavment - Conferences. ln the event a Party files a Request for a Conference,
the requesting Party shall be responsible for 100% of the expenses and fees incurred by the PANEL
members in connection with the Conference.
12.3 Pavment - Non-Conference. ln addition, PANEL members shall be
compensated for a maximum of four (4) hours per month of time spent reviewing Project records outside
of meeting or Conference days; provided however, that this limitation shall not apply to the review of
records in connection with the PANEL's consideration of a dispute which is the subject of a Conference.
13. COSTS AND ACCOUNTING RECORDS. The PANEL members shall keep available the
cost records and accounts pertaining to all of the work by the PANEL for inspection by representatives of
the City or the Construction Manager for a period of five (5) years after Final Payment. lf any litigation,
Claim, or audit arising out of, in connection with, or related to the Agreement is initiated before the
expiration of the 5- year period, the cost records and accounts shall be retained until such litigation, Claim,
or audit involving the records in completed.
14. TERMINATION OF PANEL. City may terminate the PANEL at its sole discretion. ln the
event the PANEL is terminated and there is any dispute arising between the Parties or involving any
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Subcontractor or Team Member as to the interpretation of the Contract Documents or relating to the Work
or the Project, the Parties shall attempt to resolve such dispute in good faith. lf the dispute cannot be
resolved, the Party seeking relief shall have such Claim, which has been duly preserved in accordance
with the requirements of Article 15 of the Agreement, addressed at mediation following Substantial
Completion as set forth in Subsection 15.2. ln the event the PANEL is terminated, resolution by the
PANEL of any pending or future Disputed Matters shall not be a condition precedent to filing litigation.
15. TERMINATION OR WITHDRAWAL/REPLACEMENT OF PANEL MEMBERS
15.1 PANEL members may withdraw from the PANEL by providlng four (4) weeks'
written notice to the other PANEL members and the City.
15.2 Should the need arise to appoint a replacement PANEL member, the
replacement PANEL member shall be selected as was the departing PANEL member. The selection of a
replacement PANEL member shall begin promptly upon notification of the necessity for a replacement.
15.3 The Chair of the PANEL may be terminated without cause by agreement of the
Parties. Each Party may change its appointed PANEL member on one occasion during the life of the
Agreement without cause.
15.4 PANEL members may be terminated for cause by any of the Parties. The Party
desiring to terminate a PANEL member for cause will notify the other Party and the other PANEL
members and shall provide an explanation for the requested termination. lf the other Party does not
agree that cause exists, the remaining PANEL members shall convene and decide whether cause exists
and such decision shall be effectuated.
16. INDEPENDENT GONTRACTOR. Each PANEL member, in the performance of his or
her duties on the PANEL, shall act in the capacity of an independent agent and not as an
employee of either the City or the Construction Manager. Each PANEL member shall have the same
immunity as does a mediator appointed by Court order, as provided by Florida law.
17. PUBLIC RECORDS. Each PANEL member, Construction Manager, and the City shall
allow public access to all documents, papers, letters, and other material made or received by the Parties
that are related to this PANEL and the activities of this PANEL, subject to the provisions of Chapter
1 19, Florida Statutes. However, upon receipt of any such public records request, the Parties hereto shall
immediately notify the City and obtain prior written consent from the City before releasing such records.
Plans, schematics, security plans and other Project elements may not be released unless the recipient
executes an appropriate confidentiality agreement.
18. STATUTE OF LIMITATIONS. None of the procedures delineated herein will in any way
toll any statutes of limitations for either of the Parties.
19. NO BONUS. PANEL members shall not be paid, nor will they receive or accept any
commission, percentage, bonus, or consideration of any nature, other than the payment provided for in
this Section, for their performance and services.
20. NO CONFLICT. The members of the PANEL shall affirm that at no time, while performing
their duties under this Section, shall they have any direct or indirect ownership or financial interest in, or
be employed in any capacity by, the City, the Construction Manager, any Architect or Engineer
organization working on the Project, any Team Member, any Subcontractor or supplier of the Project, or
any other PANEL member. The members of the PANEL shall affirm and agree that, except for services
as a PANEL member on other City or Construction Manager projects, that they have not been an
employee, contractor, or Consultant to the City, Construction Manager, any Architect or Engineer
organization working on the Project, any Team Member, any Subcontractor or supplier of the Project, or
of another PANEL member, and that during the term of this Contract they shall not become so involved.
The members of the PANEL, the City, and the Construction Manager agree that during the life of the
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Agreement, no discussion or agreement will be made between any PANEL member and any Party to
this Ag re e m e n t for employment after the Agreement is completed.
21. INTERPRETATION. Nothing herein shall in any way limit the rights of the City to issue
Field Orders or Change Orders, issue any other type of order or instruction, or take any other type of
action that is permitted by the Contract Documents. Nor shall any of the provisions herein limit the
remedies or obligations of the Construction Manager pursuant to Contract Documents, except that
submission of a Disputed Matter to the PANEL for a written recommendation as to resolution shall be a
condition precedent to pursuit of any claim in litigation to the extent the Disputed Matter arises, and is
submitted, prior to Substantial Completion of the Project. Resolution by the PANEL of a Disputed Matter
that arises after Substantial Completion shall not be a condition precedent to filing suit in a court of
competent jurisdiction. However, nothing in this Section shall in any way waive the Parties' obligations to
strictly comply with the contractual requirements to duly preserve a Claim in Article 15 of the Agreement.
22. SUBSEQUENT PROCEEDINGS. ln the event that a Party files suit in connection with
this project, no member of the PANEL shall be called to testify in such proceedings, and the personal
notes of PANEL members shall not be admissible. Any and all claims against any of the PANEL members
arising out of the work of the PANEL are waived.
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Appendix H
Software Functional Req uirements
Construction Manager shall utilize a software solution that meets the following functional requirements:
A. Generic lnformation. Cloud-based system.o All participants can access via web. No additional software necessaryo System is SOC I Type ll complianto 7-year retention/back up of all draw documents
B. Contract Processo Ability to receive real{ime contract values and change orders from Construction Manager's
enterprise resource planning software (ERP), including each of the following:o Contract numbero Vendor numbero Contract item level detail
o Approved budget amount. Single point of entry for subcontractors working on multiple projects
C. Budgeting Processr Systematic control that enforces subcontractor budget informationo Subcontractors cannot exceed subcontracted amountso Subcontractor schedule of values can be locked to prevent adjustmentso Ability to lock subcontractor Schedules of Value (SOVs)o Workflow that provides functionality for Construction Manager to approve budget
amounts/SOVs prior to subcontractor entering their invoiceo Subcontractors cannot add unapproved change orders to their budgeUSOVsr Real-time visibility into subcontractor schedules of value by Construction Manager and City. Tax-life (depreciation coding) at SOVs detail level
D. lnvoicing Process. Construction Manager initiates subcontractor invitation to invoice process. All invites delivered systematically, via e-mail, with embedded hyperlink, by a third-partyo Construction Manager ability to allow/disallow retention billing on a contract-level basiso Systematic control over billed to date calculations, retention withholding, and enforcement of
mathematical accuracyo Ability for subcontractor to make comments electronically on a line-item basis. Ability for subcontractors to add attachments (e.9., bills of lading, photos, receipts)o Ability for subcontractors to "opt-out" of a drawo E-mail notification to Construction Manager informing them of subcontractor opt-out
status. Ability for subcontractors and Construction Manager to assign authorized signatories
electronically within the system
E. Approval Processo lnvoice approvers are notified electronically, via e-mail, of approval actions. Custom workflow approval can be assigned, by project (serially or in parallel)o Electronic modification of subcontractor invoices, including line-item level markupo Abilit! to "lock" subcontractor invoice changes. System provides electronic audit trails of each invoice submission by a subcontractor, includingo Line-item markupso Line-item commentso Date/Time Stamp of invoice submission
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F. Draw Document Process. Standardized draw documents (uniform across all subcontractors, agreed between Construction
Manager and City) applied to the project electronicallyo lnvoice, Sworn Statement, Lien Waivers (both conditional and unconditional), lnvoice
Cover Sheetso System automatically calculates amounts, carries fonruard prior period billed amounts,
and retention amounts, based on City and Construction Manager specificationso System utilizes audit trails behind each and every electronic signature, including:o Additional layer of security via Personal ldentification Number (PlN) for all authorized
signerso Name and e-mail of signero Date and Time stamp of when document was accessedo Date and Time stamp of when document was signedo lP address of computer from which document was signedo Embedded link validating authenticity of signatureo Electronic notarization capability
G. Lien Waiver Processo Electronic, systematic deployment of required lien waiver formso Lien waiver documents cannot be altered in any wayo City has ability to see copies of all lien waivers from all subcontractors, including those
whose signatures aren't yet released to the funding organization.o Current period, unconditional lien waivers are presented as part of the invoicing process for
subcontractor signatureo System does not release signed current period unconditional lien waiver until 72 hours
after payment is disbursed to subcontractoro Automatic creation of partial or final versions of lien wavier documents based on billed amounts
by subcontractoro Systematic collection of sub{ier lien waiverso Ability to collect lien waivers electronically from subtierso Automated payment holds for missing sub-tier waiverso Ability to stipulate sub-tier specific lien waiver documentsr Ability to collect zero-dollar lien waivers electronicallye Ability to track "Notice-To-Owner (NTO)"o Notice date and notice amount fields can be populated with Construction Manager
informationo Ability to assign 3'd -parties (e.g., 3'o party developers, inspecting agencies, banks) to view draw
documents. System ability to provide City access to view real-time status of receipt of first- and second-tier
lien waiverso Systematically-applied holds for missing current- or prior-period sub{ier waivers
H. Compliance Processo Automated payment holds for missing compliance informationo Automated expiration notice e-mail generation to subcontractors. For example:o Automated e-mail notification 3O-days and 1S-days prior to expiration of Certificate of
Auto lnsurance documento System can be utilized as a channel for electronic submission of subcontractor compliance
documents. For example:o Subcontractor can upload Auto Certificate to the Construction Manager, and the system
automatically routes that certificate to the person responsible for marking it as received
l. Payment Processr Systematic enforcement of subcontractor payment eligibility, including:o Subcontractor invoice must be approvedo Subcontractor must sign current period unconditional waiver
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o Subcontractor cannot be on hold for compliance-related items. Ability to enforce the following payment hold criteria:o Manual Holdo Split Payment (joint check) confirmation holdo Receipt of sub{ier lien waivers (conditional and unconditional)o Document Compliance holdso System is a third-party ACH facilitatoro System sends ACH instructions to funding bank at the request of the funding organizationo System allows subcontractors to self-service banking information for receipt of paymento System allows multiple partial payments, via ACH, to subcontractorso System allows for joint check payments to be created. System allows for direclpayment to sub{ier organizationsr Systematic control over release of current period unconditional lien waivers for paymento Current period unconditional lien wavers are released to funding organization 72 hours
after payment is made to subcontractors
Direct e-mail notification to subcontractor of payment via ACH
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APPENDIX I
QUALITY CONTROL/QUALITY ASS URANCE
The Construction Manager shall submit, subject to the approval of the City, a Quality Control Plan as
provided in the Specifications. The City or Owner's Representative 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 Specifications and other provisions of the Contract Documents. All Submittals
required pursuant to the Construction Manager's Quality Program Plan, or in other provisions of the Contract
Documents, shall be delivered to the City, unless othenrrise expressly provided in the Contract.
The City shall have the right to reject Work which does not conform to the Contract Documents. lf the
Owner's Representative determines that a defect exists, the Construction Manager shall cause the defective
condition to be conected or replaced with a conforming installation, product or result, subject to the approved
Quality Control Plan, provisions of the Specifications and approval of City.
1. Qualitv Control (QC) Plan The Construction Manager shall submit for the City's approval a Quality
Program Plan for the execution of the Work and the Construction Manager shall organize and conduct all
activities to be performed under the Contract with strict attention and adherence to the approved Quality
Control Plan. The scope of the Quality Program Plan shall include the quality assurance and quality control
elements necessary for the design, procurement, manufacturing, installation, construction, start-up,
integrated Systems testing, and execution of the Work by the 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 or Owner's Representative 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 or Owner's
Representative 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 or Owner's
Representative 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 veriff 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. Qualifu Assurance Manaaement. 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 Project Manager.
a) Qualitv Assurance Personnel. ln 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.
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b) Qualitv 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, monltoring of the design, procurement, construction,
installation and start-up of the equipment, materials, Systems and completed Work.
c) Procurement Qualitu 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. Qualitv Control of Construction. Manufacturinq and lnstallation
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) lnspection and Testinq. 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 Samoles and Mock-uos. 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 or Owner's Representative 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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c) Construction Manaqer's Control of lnspection and Testinq. 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.9., 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 or
Owner's Representative. The Construction Manager shall submit to the City or Owner's Representative 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 or Owner's Representative.
d) Control of Nonconforminq 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 ltems (NCl'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 or Owner's Representative and all personnel involved in the affected Wok. 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) Conective Action. The Construction Manager shall establish and maintain written
procedures for:
i. lnvestigating the cause of nonconforming material, equipment or other elements of
the Work and the conective action needed to prevent recurrence;
ii. Analyzing all processes, work operations, concessions, quality records, service
reports, and complaints of the City or Owner's Representative to detect and
eliminate potential causes of nonconforming material, equipment, or other elements
of the Work;
iii. lnitiating 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. lmplementing and recording changes in procedures resulting from corrective action.
0 Handlinq, Storaqe. Packaqinq and Deliverv. 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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g) Qualitv 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 City 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 or Owner's Representative.
5. Conformitv 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 and/or Owner's
Representative. ln addition, the City and/or Owner's Representative 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 lmolied Duties. No right to act granted to the City or Owner's Representative under this
Section, nor any decision made by the City or Owner's Representative in good faith either to exercise or not
to exercise such right, shall give rise to any implied duty or responsibility of the City or Owner's
Representative, 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 or Owner's Representative 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 Specifications 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 lnterterence. The City or Owner's Representative 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 or Owner's Representative 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. Reiection 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 wananties or to any other
requirements of the Contract Documents will be considered unacceptable, unless othenruise determined to be
acceptable as provided in the last paragraph of this Section. Any defective condition, whether the result of
poor wokmanship, use of materials containing defects, damage through carelessness or any other cause,
found by, or disclosed to, the City or Owner's Representative 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 and/or
Owner's Representative. Upon failure on the part of the Construction Manager to comply promptly with any
order of the City or Owner's Representative to remedy, remove or replace Work which is nonconforming or
contains Defects, the City may cause such nonconforming Work or Defect to be remedied or removed and
replaced by separate Contractors employed by the City at the Construction Manager's expense. ln such
event, the costs of such removal, remediation and replacement shall be deducted from any monies due or to
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become due the Construction Manager under the Agreement.
ln the event the City or Owner's Representative 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 City shall then determine
whether the Work shall nevertheless be accepted. lf the City determines that the Work should be accepted,
the City 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 Guaranteed Maximum Price.
8. Construction Manaqer's Continuinq Obligation. Neither the issuance of the Certificate of Final
Completion, nor the making of Final Payment by the City 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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APPENDIX J
FORMS AND EXHIBITS
The attached forms will be used throughout the Project, to be due at different times.
TABLE OF CONTENTS FOR FORMS
DESCRIPTION
Payment Bond & Performance Bond
Construction Contract Change Order...........
Contractor's Affidavit / Certificate of Contract Completion.
Contractor's Certification of No Asbestos-Containing Materials
GMP Amendment.......
RFP ProposarSubmissio;:::::: : :::::::::: :::::: ::: ::: :::: ::::. : ::: :::::: :: ::: :: :: : :
PAGE
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FORM OF PERFORMANCE BOND
[Form of Performance Bond subject to amendment by Gity at its discretion prior to award of
contractl
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 Miami Beach
Convention Center Renovation and Expansion Project pursuant to RFP No.2015-129-ME (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, anda 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(2Xb), Florida Statutes; and
3. Performs the guarantee of all work and materials furnished under the Contract for the
specified in the Contract, including all warranties and curing all latent defects within the
period provided in Section 95.11(2Xb), 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.
lf 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) yearfrom the date of finalacceptance
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
95.1 1(2Xb), 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
time
time
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damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof.
The term "balance of the Contract Price" as used in this paragraph, shall mean the total amount payable
by City to Principal under the Contract and any amendments thereto, less the amount properly paid by
City to Principal.
The Surety hereby waives notice of and agrees that any changes in or under the Contract and
compliance or noncompliance with any formalities connected with the Contract or the changes does not
affect Surety's obligation under this Bond.
No right of action shall accrue on this bond to or for the use of any person or corporation other than City
named herein. Any action under this Bond must be instituted in accordance with the notice and time
limitations provisions prescribed in Section 255.05(2), Florida Statutes.
Signed and sealed this _ day of
WITNESSES:
(Name of Corporation)
Secretary
(CORPORATE SEAL)
(Signature)
(Print Name and Title)
Countersigned by Resident
Florida Agent of Surety
INSURANCE COMPANY:
Attorney-in-Fact
Address:
[attach copy of Agent's lD card
lssued by Fla. lns. Commissionerl
(Street)
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
20
By:
By:
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FORM OF PAYMENT BOND
[Form of Payment Bond subject to amendment by City at its discretion prior to award of contract]
By this Bond, We as Principal, whose principal
business address is and whose telephone number is
,astheConstructionManagerundertheagreementdated-,20-,
between Principal and the City of Miami Beach, Florida (hereinafter referred to as "City") for the
construction of the Miami Beach Convention Center Renovation and Expansion Project pursuant to
RFP No. 2015-129-ME (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
address is
a corporation, whose principal business
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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ATTEST:
(Secretary)
(Corporate Seal)
Countersigned by Resident
Florida Agent of Surety
[attach copy of Agent's lD card
lssued by Fla. lns. Commissionerl
Signed and sealed this _ day of 20
Principal
(Name of Corporation)
(Signature)
(Print Name and Title)
-
day of
-,20
INSURANCE COMPANY:
Attorney-in-Fact
Address:
(Street)
By:
By:
(City/State/Zip Code)
[Atty in fact power of atty must be attached] Telephone No.:
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CONTRACTOR'S AFFIDAVIT / CERTIFICATE OF CONTRACT COMPLETION
PROJECT NAME:
PROJECT LOCATION:
CONTRACTOR:
CONTRACT DATE:CONTRACT AMOUNT: $
CONTRACTOR'S AFFIDAVIT
I solemnly swear and affirm: The work under the above named contract and all amendments thereto
have been completed in accordance with the requirements of said contract; that all costs incurred for
equipment, materials, labor, and services against the Project have been paid; that no liens have been
attached against the Project; that no suits are pending by reason of work on the Project under the
contract; that all Workers' Compensation claims are covered by Workers' Compensation insurance as
required by law; that all public liability claims are adequately covered by insurance, and that the
Contractor shall save, protect, defend, indemnify, and hold harmless the City from and against any and all
claims which arise as a direct or indirect result of any transaction, event, or occurrence related to
performance of the work contemplated under said contract.
Contractor's Signature:Date:
Printed Name & Title:
Address:
STATE OF FLORIDA COUNTY OF
Personally appeared before me this day of
(or made known to me to be the
(Sole Proprietor, Partner, or Corporate Officer's Name & Title)
Contractor(s), who, being by me duly sworn, subscribed to the foregoing affidavit in my presence.
(Form of ldentification Produced)(Notary Public - Print Name)
My Commission Expires:
(Notary Public - Signature)
known
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262
CONTRACTOR'S AFFIDAVIT / CERTIFICATE OF CONTRACT 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
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263
1. Notice to Proceed (N.T.P.)
2. Time Specified in Original Contract for Substantial
Completion (S.C.)
3. Extension Granted by Change Orders (Days
Between Original Contract S.C. and Final Contract
s.c )
4. Total Days Allowable to Substantial Completion (Add
Lines 2 and 3)
5. Project Substantially Completed as Certified by
Architect-Engineer (Total Days from N.T.P. through
Date Certifi ed by Architect-Engineer)
6. Substantial Completion Overrun (Subtract Line 4
from 5 and Enter Overrun)
1, Time Specified in Contract, Between Substantial and
FinalCompletion
2. Extensions Granted by Change Orders (Days
Between Substantial Completion and Final
Completion)
3. Total Days Allowable Between Substantial and Final
Completion (Add Lines 1 and2)
4. Date Actually Completed and Total Days Between
Actual Substantial Completion and Date Certified By
Architect-Engineer as Actually Being Finally
Completed.
5. Final Completion Overrun (Subtract Line 3 from 4
and Enter Overrun)
TO BE COMPLETED BY ARCHITECT-ENGINEER
THROUGH SUBSTANTIAL COMPLETION
THROUGH THE FINAL COMPLETION PHASE
DATE DAYS LIQUIDATED DAMAGES
to be Completed by the
ci
Per Day=$
Per Day=$
TOTAL LIQUIDATED DAMAGES Per DaY= $
Date:Project Coordinator's Signature:
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264
CONTRACTOR'S CERTIFICATION OF NO ASBESTOS.CONTAINING MATERIALS
Project Name:
Project Location:
I 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:
FEID Number
Telephone ( )FAXil
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265
CHANGE ORDER FORM
Date:
To:
C.rrak ir.a lo eni.r e cJie
Construction Manager
Reason:Choose an item.
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: ln connection with the change(s) noted in Section 1,
CONSTRUCTION MANAGER'S TIME FOR PERFORMANCE REMAINS UNCHANGED unless specifically noted hereini
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. ln 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 CONDII'OffS OF THE CONTRACT DOCUMENTS
REMAIN UNCHANGED.
Construction Manaqer:
By:By:
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266
GMP AMENDMENT
AMENDMENTNO. TOAGREEMENTBETWEEN
CITY OF MTAMI BEACH AIO CONSTRUCTION MANAGER FOR THE
MIAMI BEACH CONVENTION CENTER RENOVATION AND EXPANSION PROJECT
PursuanttotheAgreementdated-'2015betweentheCityand(nameoffirm)
(Construction Manager) for the Miami Beach Convention Center Renovation and Expansion Project
("Project"), the City and Construction Manager hereby agree to amend and modify the Agreement by this
GMPAmendment,datedandeffectiveaSof-,2015,toestablishaGuaranteedMaximum
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.
1.
Description
List of Construction Documents
Assumptions and Clarifications
Completion Schedule
Schedule of Values
List of ltemized General Conditions
List of Subcontractors and Major Suppliers
Pages
_ through _
_ through _
_ through _
_ through _
_ through _
_ through _
Date
2.
3.
4.
5.
6.
ARTICLE 2
GUARANTEED MAXIMUM PRICE
Construction Manager's Guaranteed Maximum Price for the Work, including the estimated 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, ($--) (the "GMP"), which includes the
following:
2.1 The Subcontract Costs for Work of Subcontractors and Suppliers selected pursuant to Article 4 of
the Agreement, for the entire Work anticipated on this Project will be based on actual Subcontractor
invoices to the Construction Manager up to the established amount of dollars
), and said amount stated in this Section 2.1 is included within the GMP.($
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267
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($-),andsaidlumpsumamountstatedin
this Section 2.2 is included within the GMP. The items included as General Condition expenses are listed
in the List of ltemized 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 in Attachment No. 5 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 3.80% 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 or
Construction Change Directives shall be 3.80% of the Costs of the Project associated with the Work that
is the subject of the Change Order or Construction Change Directive, 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 or Construction Change Directives shall not
exceed I Yo) of the Cost of the Project associated with the Work that is the subject of the Change
Order or Construction Change Directive.
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($-),andsaidamountstatedinthisSection2.4isincluded
within the GMP. ln 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 trench safety
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268
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($__l 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 and Construction
Change Directive in accordance with the Contract Documents.
ARTICLE 3
CONTRACT TIME
3.'l 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 tS THEREFORE ESTABLISHED AS _, 2018
ITARGETED/ANTICTPATED TO BE MAY 31,20187.
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, and the Construction Manager waives and releases City from any
and all Claims associated therewith.
4.2. Pursuant to Subsection 5.6.3 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 the critical Art Basel 2016 Milestone and Art Basel 2017
Milestone. ln 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 ll 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
145
269
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 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. Pursuant to Subsection 9.3.1.2 of the Agreement, 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 GMP Amendment and that Construction Manager's pricing of the Work and
the determination of the Guaranteed Maximum Price is 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, except to the extent specifically
provided for in the Agreement.
4.5. 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. ln 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.
lN WITNESS WHEREOF, the Parties hereto have executed this GMP Amendment the day and year first
written above.
CITY OF MIAMI BEACH, FLORIDA
ATTEST:
City Clerk Philip Levine
Mayor
ATTEST:CLARK CONSTRUCTION GROUP. LLC
Print Name:Sidney J. Jordan
Division CEO/President
Northern & Southern Region
By:By:
By:
Print Name:
146270
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Floridi,
Accepting The Recommendation Of The City Manager, Pursuant To Request For Proposals
(RFP) No. 2015-103-Me, For The Development Of A Convention Headquarter Hotel
Adjacent To The Miami Beach Convention Center ("Project"); Authorizing The Administration
To Negotiate A Development And Ground Lease Agreement With Portman Holdings, LLC,
With Said Agreement Subject To Prior Approval By The Mayor And City Commission Before
Final Execution Thereof.
lntended Outcome Su
lmprove alliance with key business sectors, namely hospitality, arts & internationat
business with a focus on enhanced culture, entertainment & tourism.
Supporting Data (Surveys, Environmental Scan, etc.): N/A
Item Su mmary/Recommendation :
On January 29,2015 the City issued Request for Proposals No. 2015-103-ME ltne nfeyorthe Development of a Convention Headquarter Hotel Adjacent to the Miami Beach
Convention Center. A voluntary pre-proposal meeting was held on February 26,2015.
On April 10,2015 the City received proposals from Portman Holdings, LLC ("Portman") and
Oxford Capital Group/RLB Swerdling ("Oxford Capital"). On April 21,2015, the City Manager
notified oxford capital that its proposal was not responsive to the RFp.
On April 29, 2015, the City Manager via Letter to Commission (LTC) No. 176-2015,
appointed an Evaluation Committee (the "Committee"), which convened on May 7, 2015 to
consider the Portman proposal and interview the Portman team. The average score by the
Committee members was 91 on a 10O-point scale.
After reviewing the Proposer's qualifications and submission, the City Manager exercised his
due diligence and is recommending that the Mayor and City Commission authorize the
Administration to negotiate a development and ground lease Agreement with Portman
Holdinqs. LLC.
Financial lnformation:
Source of
Funds:
Amount Account
1
2
3
OBPI Total
Financial lmpact Summary:
CIerk's Office
Maria Hernandez, Extension 2584
Department Dirgctor Assistant City Manager City Ma ager
MU4!:l JLM ,J Lr
S\May\MBCC Headquarter Hotel Developer Summary
AGENOA '"U R-I BMIAMIBEACHssp 5-2o-tf271
MIAMIBEACH
City of Miomi Beoch, 1700 Convention Center Drive, Miomi Beoch, Florido 33,I39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members
FROM: Jimmy L. Morales, City Manager
DATE: May 20,2015
SUBJECT:A RESOLUTION OF THE MAYdR AND CITY COMMTSSION OF THE
CITY OF MIAM! BEACH, FLORIDA, ACCEPTTNG THE
RECOMMENDATION OF THE CITY MANAGER, PURSUANT TO
REQUEST FOR PROPOSALS (RFp) NO. 201s-l03-ME, FOR THE
DEVELOPMENT OF A CONVENTION HEADQUARTER HOTEL
ADJACENT TO THE MIAMI BEACH CONVENTION CENTER
("PROJEGT"); AUTHORIZING THE ADMINISTRAT|ON TO
NEGOTIATE A DEVELOPMENT AND GROUND LEASE
AGREEMENT WITH PORTMAN HOLDINGS, LLC, THE SOLE
RESPONSIVE PROPOSER TO THE RFP, WITH SAID AGREEMENT
SUBJECT TO PRIOR APPROVAL BY THE MAYOR AND CITY
COMMISSION BEFORE FINAL EXECUTION THEREOF.
ADM!NISTRATION RECOMMEN DATION
Adopt the Resolution.
KEY INTENDED OUTCOME
lmprove alliance with key business sectors, namely hospitality, arts & international business with
a focus on enhanced culture, entertainment & tourism.
BACKGROUND
On January 29,2015 the City issued Request for Proposals No. 2015-103-ME (the RFP) for the
Development of a Convention Headquarter Hotel Adjacent to the Miami Beach Convention
Center. A voluntary pre-proposal meeting was held on February 26,2015.
On April 10, 2015 the City received proposals from Portman Holdings, LLC ("Portman") and
Oxford Capital Group/RLB Swerdling ("Oxford Capital"). On April 21, 2015, the City Manager
notified Oxford Capital that its proposal was not responsive to the RFp.
On April 29, 2015, the City Manager via Letter to Commission (LTC) No. 176-2015, appointed an
Evaluation Committee (the "Committee"), which convened on May 7, 2015 to interview the
Portman team and score the proposal consistent with the evaluation criteria outlined in the RFP.
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May 20, 2015
Page 2 of B
ANALYSIS
Firm Experience
The Portman proposal meets the experience requirements of the RFP. The Portman team has
extensive convention hotel development and architectural experience that includes the projects
shown below. Portman reports to have raised and developed over $6 billion and developed over
55 million square feet of real estate.
Project Name/Com pletion Date Rooms Meeting/Ballroom
SF
Hilton San Diego Bayfront Hotel (2008)
Westin Charlotte (2003)
Lane Field San Diego (Phase I under
construction; Phase ll in design)
Ritz-Carlton at Shanghai Centre (1990)
Marriott Marquis Times Square (1985)
Atlanta Marriott Marquis (1985)
Westin Peachtree Plaza Atlanta (1976)
Hyatt Regency Atlanta (1967)
Developer/Architect
Owner/Developer/
Architect
Developer/Architect
Owner/Developer/
Architect
Developer/Architect
Developer/Architect
Developer/Architect
Developer/Architect
1,190
700
800
(Phase I & ll)
700
1,892
1,663
1 ,100
1,260
165,000
44,000
31,200
(Phase I & ll)
20,300
101 ,500
160,000
29,000
180,000
Design Team Experience
John Portman & Associates ("JPA") is the lead designer for the Project. JPA was founded in 1953
and is an internationally recognized architectural and engineering firm with 75 employees. ln
addition to designing the above referenced hotel projects, JPA has also been the design architect
for the 500-room Renaissance Schaumburg Hotel and Convention Center; in 2006 and the 690-
room Shandong China Hotel & Conference Center in 2003.
ln addition to JPA, the design team is to include the local architectural firm of Revuelta Architecture
lnternational. Some of Revuelta's recent local projects include the 204-room Saxony Hotel in
Miami Beach and the 104-room/350-residential unit Epic Residences and Hotel in Miami.
JPA has also teamed with West 8, an international landscape architectural firm. Examples of West
8's landscape design projects include Miami Beach Soundscape; Madrid Rio in Madrid, Spain; and
Toronto Central Waterfront.
Finally, Portman has teamed with HDC lnternational who will assist in preliminary cost estimating,
scheduling and scope description and review. HDC has advised on multiple convention hotels,
including the Gaylord Palms Resort & Convention Center.
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Requesf for Proposals (RFP) No. 201 5-103-ME for the Development of a Convention Headquarter Hotet
May 20, 2015
Page 3 of 8
Key Terms
The Portman proposal accepts of the City's key terms, including:
. No Public Participation:
No public subsidies or public financing
Use of MBCC facilities at prevailing/market rates
. No Gambling:
Use restriction to prohibit gambling on Hotel Site
Developer/owners for term of lease may not own, operate or manage any
establishment offering gambling or wagering in Miami-Dade Countv
. Developer Funds:
All costs to develop, design, construction, equip and operate hotel
Referendum (general elections) cost
. Room Block Agreement:
Portman has agreed to the City's terms outlined in the draft Room Block Agreement.
The proposal also recognized the requirement for a voter referendum whereby 60% of voters must
approve the lease. The referendum is contemplated to occur in November 2015.
Aspirationa! City and County Employment Goals
Portman has stated their commitment to the City and County employment goals. The following
include excerpts from their response:
o "The Portman team is unequivocally capable and committed to meet or exceed the Miami
Beach and Miami-Dade County employment goals..."
o "The Portman team believes in maximizing opportunities for local, minority, women, veteran
and small business enterprises."
. "We reach out to include local businesses to supplement the knowledge brought by the
international experts on our team."
. "The Portman team will contact local and certified diversity businesses.....We pledge to
keep the City Commission informed of our efforts through the issuance of monthly reports
throughout the project schedule."
. "lt is the Portman team's desire to see hotel operations provide opportunities for
employment to City of Miami Beach and Miami-Dade County residents. We will do our part
to ensure the hotel operator selected has equal opportunity and that local outreach
programs are in place."
Proposed Hotel Program
Portman proposes to develop an 800-room convention headquarter hotel to include the following
program elements:
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Requesf for Proposals (RFP) No. 2015-103-ME for the Development of a Convention Headquarter Hotel
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Page 4 of I
Ballroom/Meetinq Space Sq. Feet
Grand Ballroom 26,500
Junior Ballroom (2) 21,000
Breakout Meeting 47,700Total 95.200
Parking Spaces 320
Food & Beveraoe Seats
3-meal
Lobby Lounge
Pool Grille
Rooftop
Club Lounge
Cafe
300
180
130
120
92
40
The 320 parking spaces proposed adheres to the requirement in the RFP of 0.4 parking spaces
per room.
Hotel Brand
Portman has indicated they intend to consider national hotel brand/operators with an established
and consistently maintained reputation for quality operations. Brands to be considered include
Marriott, Marriott Marquis, JW Marriott, Westin, Omni, Hyatt Regency and Hilton. During
negotiations, Portman will work with the City to determine the best brand/operator for the hotel.
Development Budget and Finance Plan
Portman has estimated the preliminary development budget to be $405.5 million and intends to
finance the hotel with an estimated 60% in debt and 40o/o in equity. Portman Holdings has
indicated they plan to provide $17 million in equity, with the remaining equity to be funded by
Portman institutional relationships. The Portman proposal included construction debt financing
support letters from Regions Bank and PNC Bank and an equity support letter from China Orient
Summit Capital.
Development Schedule
Portman is estimating the hotel design to be complete in late 2016 and construction to be
complete in late 2018 with the hotel opening targeted to occur prior to Art Basel 2018.
Lease Proposal
Portman has proposed to lease the Hotel Site for a period of 99 years. Lease payments are
proposed to be the greater of a fixed schedule or 4% of gross hotel operating revenues. A
schedule of the proposed lease payments is in attached Exhibit 1. Below is a table of the total
and net present value ("NPV") of the lease payments:
Minimum Fixed Rent
Variable Rent
Percentage Rent
Over 30 Years
NPV
Total @SYo$91m $36m89m 35m
$180m $71m
Over 99 Years
NPVTotal @5%$708m $60m705m 59m
$1.48 $119m
The lease stream NPV of $1 19 million over the term of the lease equates to $149,000 per room.
This is higher than the City 2013 independent appraisal indicating a range of value from
$103,500 to $129,900 per room. Priorto executing the lease, the CityAdministration plans to
update the 2013 appraisal.
Transaction Rent
Portman has proposed the City will receive additional rent in connection with the first three sales
of the hotel to a third party if the sales price exceeds $580 million. ln those events, the City is to
receive the lesser of $2 million or 0.25o/o of the gross sales price.
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Requesf for Proposals (RFP) No. 2015-103-ME for the Development of a Convention Headquarter Hotel
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Page 5 of B
Public Revenue lmpact
The Hotel Site is currently a parking lot that generates $263,700 annually in revenues for the City.
lf the site is developed with a hotel annual (year 4) lease and tax revenue generated is estimated
to be $22.2 million. Over time the hotel is estimated to generate:
o City: $438 million ($1Ze million NPV) over 30 years and $3 billion ($2Ze million NPV) over
99 years in lease payments, resort taxes, CRA revenues, property taxes and County CDT
allocations to the City.
. County: $1 10 million ($42 million NPV) over 30 years and $1 .25 billion ($87 million NPV)
over 99 years in convention development taxes, local option sales taxes and property
taxes.
. Schools: $60 million ($24 million NPV) over 30 years and $453 million ($40 million NPV)
over 99 years in property taxes.
o State: $264 million ($tOZ million NPV) over 30 years and $2 billion ($1ZO million NPV)
over 99 years in sales taxes.
o Total: $878 million ($3S+ million NPV) over 30 years and $6.7 billion ($586 million NPV)
over 99 years in lease payments and taxes.
Refer to attached Exhibit 2.
RFP Evaluation Committee
The Evaluation Committee (the "Committee") consisted of the following individuals:
. Randy Weisburd, Chief Operating Officer, Atlantic & Pacific Companies and Residento Larry Gragg, President and Chief Operating Officer, Codina Partnerso Tom Mooney, Planning Directoro James Goldsmith, President and CEO, Gator lnvestments and Resident*. Max Sklar, Tourism, Culture and Economic Development Director"
*James Goldsmith and Max Sklar were not able to attend the Evaluation Committee meeting.
The Committee reviewed and scored Portman's submittal based upon the criteria outlined in the
RFP. The table below represents the scores by the committee members.
Committee Member Scoring
CRITERIA Potential
Score
#1 #2 #3 Average
Score
Hotel finance plan and Proposer financial
capabilities 30 28 25 25 26.O
Proposed financial and other terms of the
Development and Ground Lease
Aoreement
25 22 25 23 23.3
Hotel program, conceptual design and
orelim inarv develooment budoet 20 18 15 18 17.0
Proposer experience and qualifications 10 10 10 10 10.0
Design team experience and qualifications 10 9 10 10 9.7
Organization plan 5 5 5 5 5.0
TOTAL 100 92 90 91 91
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Page 6 of 8
CONCLUSION / RECOMMENDATION
The Administration recommends that the Mayor and City Commission authorize the Administration
to negotiate a development and ground lease Agreement with Portman Holdings, LLC, pursuant to
Request for Proposals (RFP) No. 2015-103-ME for the Development of a Convention Headquarter
Hotel Adjacent to the Miami Beach Convention Center, with said Agreement subject to prior
approval by the Mayor and City Commission before the final execution thereof.
JLM/MTiAD/MH
T:\AGENDA\201S\May\MBCC Headquarter Hotel\MBCC Hotel Developer Memo 2015 05 20.docx
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Requesf for Proposals (RFP) No. 2015-103-ME for the Development of a Convention Headquarter Hotel
May 20, 2015
Page 7 of B
Exhibit 1
Summary of Lease proposal
Minimum
Fixed Rent Growth
2076
2017
2018
I 2079 s583,365
2 2O2O 1,071,059 83.6%
3 2027 1,820,800 7o.o%
4 2022 2,476,287 36.0%
5 2023 2,525,813 2.0%
6 2024 2,576,329 2.0%
7 2025 2,627,956 2.0%
8 2026 2,680,4L3 2.0%
9 2027 2,734,02L 2.0%
10 2028 2,788,702 2.0%
1,7 2029 2,844,476 2.0%
t2 2030 2,907,365 2.O%
13 2031 2,959,392 2.0%
t4 2032 3,018,580 2.0%
15 2033 3,078,952 2.0%
16 2034 3,140,531 2.0%
L7 2035 3,203,341 2.Oo/o
18 2036 3,267,408 2.0%
19 2037 3,332,756 2.0%
20 2038 3,399,412 2.0%
2t-99 655,3il.,235
Total _1208,34r,091_
NPV @s% s50,462,084
Variable
Rent Growth
52s3,749
7O2,LO3 176.7%
7,498,025 L13.4%
2,790,634 46.2%
2,282,t61 4.2%
2,375,884 4.t%
2,472,923 4.1%
2,573,390 4.t%
2,677,396 4.0%
2,785,057 4.0%
2,840,758 2.0%
2,897,574 2.0%
2,955,526 2.0%
3,074,636 2.o%
3,074,928 2.0%
3,L36,427 2.0%
3,199,156 2.0%
3,263,L39 2.0%
3,328,402 2.0%
3,394,969 2.0%
654,454,9L5
Percentage
Rent Growth
5837,Lt4
7,773,L67 ttt.8%
3,318,825 8i.2%
4,666,92L 40.60/o
4,807,974 3.oo/o
4,952,2t3 3.0%
5,L0O,779 3.0%
5,253,803 3.0%
5,4LL,477 3.0%
5,573,759 3.0%
5,685,234 2.0%
5,798,939 z.o%
5,9!4,918 2.0%
6,033,276 2.0%
6,153,880 2.0%
6,276,958 2.0%
6,402,497 z.o%
6,530,547 2.0%
6,661,1_58 2.0%
6,794,387 2.0%
1,309,766,150
57,4L3,713,84s
s119,374,035
-S?os,3?L?n_
S58,911,951
Note: The minimum fixed rent adjusts up or down every 1-0 years to 55% of the prior five
year's average total rent paid.
278
Request for Proposals (RFP) No. 2015-103-ME for the Development of a Convention Headquarter Hotel
May 20, 2015
Page B of 8
Exhibit 2
Summary of Public Revenue lmpact
Over 30 yeors Over 99 years
2022 (Yr 4)Totol NPV @ 5%Total NPV @ 5%
CITY
Hotel Lease
Minimum Fixed Rent
Variable Rent
Percentage Rent (470 Gross)
Taxes
cRA City (thru 3/2044)
CRA County (thtu 3/2044)
New Resort Tax (Hotel 1%)
Resort Tax (Hotel 3o/0, F&B 2o/o)
CDT Allocation (thru 2044)
Property Taxes*
Subtotal
TY TOTAL S11.9m S438m S178m 52,967m
COUNTY
Convention Devl. Tax (370)
Local Option Sales Tax (1%)
Property Taxes*
Subtotal County
SCHOOLS (Property Tax)
OTHER PROPERTY**
STATE SALES TAX (6%)
TOTAL s22.2m 5878m Sgsqm S6,745m S586m
* 95% of general property taxes allocated to CRA through 3/2044
** Regional property tax and Children's Trust property tax
Key Assumptions:
All analysis completed on a calendar year basis
Year 1 through 10 based on developer proforma
Assumed 2%growth rate beginning in year 11 and beyond
NPV to 2016
$1.5m of County CDT allocated to City beginning in third year of hotel opening through 2044
Sources: Portman, City of Miami Beach, SAG.
52.5m
2.2m
Sgrm S30m
89m 35m
S708m
705m
S60m
59m
54.7m
1.1m
0.8m
0.8m
3.0m
1.5m
0.1m
34m
26m
30m
118m
36m
13m
16m
L2m
12m
48m
15m
4m
L,4t4m
34m
26m
229m
902m
36m
326m
119m
16m
t2m
20m
79m
16m
16m
180m 71-m
7.2m
0.8m
1.1m
0.1m
258m
54m
44m
L2m
20m
18m
4m
650m
336m
266m
44m
29m
14m
108m 1,553m 159m
2.0m 110m 42m t,252m 87m
1.5m
0.2m
5.5m
60m
7m
264m
24m
3m
107m
453m 40m
55m 5m
2,019m t76m
279
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE
RECOMMENDATION OF THE CITY MANAGER, PURSUANT TO
REQUEST FOR PROPOSALS (RFP) NO. 2015-103-ME, FOR THE
DEVELOPMENT OF A CONVENTION HEADQUARTER HOTEL
ADJACENT TO THE MIAMI BEACH CONVENTION CENTER
("PROJECT"); AUTHORIZING THE ADMINISTRATION TO NEGOTIATE
A DEVELOPMENT AND GROUND LEASE AGREEMENT WITH
PORTMAN HOLDINGS, LLC, WITH SAID AGREEMENT SUBJECT TO
PRIOR APPROVAL BY THE MAYOR AND CITY COMMISSION
BEFORE FINAL EXECUTION THEREOF.
WHEREAS, Request for Proposals No. 2015-103-ME (the RFP) was issued on January
29,2015, with an opening date of April 10,2015; and
WHEREAS, a voluntary pre-proposal meeting was held on February 26,2015; and
WHEREAS, the City received proposals from the following firms: (1) Portman Holdings,
LLC ("Portman"); and (2) Oxford Capital Group/RLB Swerdling ("Oxford Capital"); and
WHEREAS, on April 21, 2015, the City Manager notified Oxford Capital that its proposal
was not responsive to the RFP; and
WHEREAS, on April 29,2015, the City Manager via Letter to Commission (LTC) No.
176-2015, appointed an Evaluation Committee (the "Committee"), which convened on May 7,
2015 to consider the Portman proposal and interview the Portman team; and
WHEREAS, after reviewing the Proposer's qualifications and submission, the City
Manager exercised his due diligence and is recommending that the Mayor and City Commission
authorize the Administration to enter into negotiations with Portman.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAM! BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the recommendation of the City Manager pertaining to Request for
Proposals (RFP) No. 2015-103-ME, for the Development of a Convention Headquarter Hotel
Adjacent to the Miami Beach Convention Center; and authorizes the Administration to negotiatea Development and Ground Lease Agreement with Portman Holdings, LLC, with said
agreement subject to prior approval by the Mayor and City Commission before final execution
thereof.
PASSED AND ADOPTED this
ATTEST:
day of 2015.
APPROVED AS TO
FORM & I.ANGUAGE
& FOR EXECUTION
o 0*.[- 5 (e zl5&,0"'(-
Rafael E. Granado, City Clerk Philip Levine, Mayor
280
Condensed Title:
A Resolution Of The Mayor And City Commission of the City of Miami Beach, Florida, Approving and Authorizing
The Mayor And City Clerk To Execute Amendment No. 7 To The Professional Services Agreement Between The
City of Miami Beach and Strategic Advisory Group Dated October 19, 2011 For Consulting Services Relative To
The Expansion And Enhancement Of The Miami Beach Convention Center in an Amount Not To Exceed
includinq All Reimbursable
COMMISSION ITEM SUMMARY
On October 19,2011 , the City Commission authorized the Mayor and City Clerk to enter into an agreement with
Strategic Advisory Group (SAG) for services relative to the expansion and enhancement of the Miami Beach
Convention Center District, in an amount not to exceed $175,000. On February 6,2013, and March 13,2013
respectively, the Commission authorized Amendments No. 1 and 2, totaling $307,232, for additional services
relative to RFQ No. 22-1 1/12, issued for the selection of developers for a public-private mixed-use development
including the expansion of the Miami Beach Convention Center and development of a Convention Center Hotel
(Hotel).
On January 15, 2014, the City Commission terminated negotiations with the developer and on February 12,
2014, the City Commission approved the issuance of the RFQ for a Design Criteria Professional to prepare a
Design Criteria Package for the Convention Center Renovation Project. Amendments No. 3 and 4, for related
services through May 31 ,2015, were executed for a total not to exceed amount of $548,900.
On September 10,2014, the City Commission directed the Administration to prepare a traffic study related to the
development of a Convention Center Headquarter Hotel and to prepare a schedule for the potential procurement
of a hotel developer. Amendment No.5, for consulting services associated with these tasks, was executed in an
amount not to exceed $30,000. On December 18, 2014, the City Commission approved Amendment No. 6 for
consulting services relative to the procurement process of a hotel developer, in an amount not to exceed
$166,375.
On February 11,2015, the City Commission elected to re-bid the Project under a Construction Manager-at-Risk
(CMAR) pQect delivery method. Under the CMAR approach, the City takes a more active roll in managing the
project. Since this approach was not originally anticipated, this Amendment provides for SAG's continuing
services related to the extended need for pre-construction services through December 31 ,2015, for a not to
exceed amount of $198,825 ($28,404 per month on average).
On a parallel path, on September 10, 2014 the City Commission directed the Administration to work with the
Greater Miami Convention and Visitors Bureau to create a performance-based contract that outlines specific
goals, objectives and success measures for any future Convention Center marketing agreement. This
Amendment also provides for SAG's asset management services to guide, monitor and oversee the
transformation of the sales and marketing efforts, event and revenue focus, branding and operating strategies of
the new convention center, for a not to exceed amount of $160,000 ($14,545 per month on average over eleven
months).
The Administration recommends the City Commission adopt the Resolution.
Source of
Funds:
Amount Account
1 $198,825 165-2816-061357 Miami Beach Redevelopment
Agency Non-Trust Fund Special Revenue Account
2 $160,000 160-4300-000312 Resort Tax Fund
Total $358,825
Financial lmpact Summary: N/A
lmprove alliance with key business sectors, namely hospitality, arts & international business with a focus on
enhanced culture, entertainment & tourism.
Data Environmental Scan, etc N/A
Item Summary/Recommendation :
Fi nancial lnformation :
Clerk's Office
Departmefir,Dirpctor Assistant City Manager City tl Inager
MH,!{+t JLM u-
MIAMIBEACH 281
g MIAMIBEACH
Cify of Miomi Beoch, lZ00 Convention Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov
COMMIS ION MEMORANDUM
TO:Mayor Philip Levine and Members of City Commis
FROM: Jimmy L. Morales, City Manager
DATE: May 20,2015
SUBJECT: A RESOLUTION OF THE MAYOR CITY COMMISSION OF THE CITY OF MIAMI
CLERK TO EXECUTE AMENDMENT NO. 7 TO THE PROFESSIONAL SERVICES
AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND STRATEGIC
ADVISORY GROUP DATED OCTOBER 19, 2011 FOR CONSULTING SERVICES
RELATIVE TO THE EXPANSION AND ENHANCEMENT OF THE MIAMI BEACH
CONVENTION CENTER IN AN AMOUNT NOT TO EXGEED $358,825, INCLUDING
ALL REIMBURSABLE EXPENSES.
ADM!NISTRATION RECOMM ENDATION
Adopt the Resolution.
KEY !NTENDED OUTCOME
@usinessSectorS,namelyhospitaIity,arts&internationalbusinesswitha
focus on enhanced culture, entertainment & tourism.
FUNDING. Convention Center Expansion and Renovation Services: $198,825 is available from Miami
Beach Redevelopment Agency Non-Trust Fund Special Revenue Account No. 165-2816-061357
and is included in the Convention Center Project Budget.
. Convention Center Asset Management Services: $160,000 is to be funded from the City's Resort
Tax Fund, Account Number 160-4300-000312. These funds are available as a result of the
contract extension for the Greater Miami Convention and Visitors Bureau (GMCVB), which was
approved by the City Commission in September 2014 via Resolution No. 2014-28745. This
resolution kept funding for the GMCVB at the then current level of $5,366,000 and recommended
the City hire an owner's representative in an amount not to exceed $161,000 at the City
Manager's discretion.
BACKGROUND
MBCC Expansion and Renovation Services:
On October 19, 2011, the City Commission authorized the Mayor and City Clerk to enter into an
agreement with Strategic Advisory Group (SAG) for services relative to the expansion and enhancement
of the Miami Beach Convention Center District, in an amount not to exceed $175,000. SAG's fees were
exhausted upon completion of Phase I of RFQ No. 22-11112, issued for the selection of qualified
developers for a public-private mixed-use development including the expansion of the Miami Beach
Convention Center and development of a Convention Center Hotel (Hotel).
On February 6,2013, and March 13,2013, the Commission authorized Amendments No. 1 and 2 to the
SAG Agreement, respectively, for additional services relative to the 2012 RFQ, totaling $307,232.
282
Strategic Advisory Group Consulting Services for the MBCC Expansion and Renovation Project
May 20, 2015
Page 2 of 3
On January 15,2014, the City Commission adopted Resolution No.2014-28479 terminating negotiations
with the developer, and directing the Administration to prepare a new RFP or RFQ for design-build or
design services for the renovation of the Convention Center alone, and further directing the
Administration to identify potential sites for a Hotel.
On February 12,2014, the City Commission approved the issuance of RFQ 2014-142ME, for a Design
Criteria Professional to prepare a Design Criteria Package for the Convention Center Renovation Project,
and authorized the City Manager to negotiate and execute any additional contracts, as required, in order
to expedite this process, including but not limited to additional amendments to the SAG Agreement.
Amendments No. 3 and 4, totaling $548,900 have been executed pursuant to this directive, for services
through May 31 ,2015.
On September 10, 2014, the City Commission directed the Administration to prepare a traffic study
related to the development of a Convention Center Headquarter Hotel and to prepare a schedule for the
potential procurement of a hotel developer. Amendment No.S, for consulting services associated with
these tasks was executed in an amount not to exceed $30,000.
On December 18, 2014, the City Commission authorized the Mayor and City Clerk to execute
Amendment No. 6 for consulting services relative to the procurement process of a hotel developer, for an
amount not-to-exceed of $166,375.
On February 11,2015, the City Commission elected to re-bid the Project under a Construction Manager-
at-Risk (CMAR) prolect delivery method, an approach that allows for the continued development of the
design for the Prolect with the benefit of input from the Construction Manager prior to establishment of
the Guaranteed Maximum Price (GMP) for the Project, currently anticipated to occur on or about
October, 2015, followed by bond issuance occurring on or about December 15,2015.
Under the CMAR approach, the City takes a more active roll in managing the project. Since this
approach was not originally anticipated, this amendment provides for SAG's continuing services related
to the extended need for pre-construction services such as: i) design oversight, construction manager
oversight, construction manager guaranteed maximum price negotiations, cost estimating oversight,
early bid package planning and oversight, bond funding / financing assistance, presentations, and City
Commission approvals for the period beginning June 1 ,2015 through December 31,2015.
MBCC Asset Management Services:
ln September, 2014, the City Commission withheld a portion of the funding to the Greater Miami
Convention and Visitors Bureau for fiscal year 2015 to provide resources to ensure the marketing efforts
and approach to convention services are best aligned to capitalize on the renovated and expanded
convention center. ln addition, the City Commission directed the Administration to work with the GMCVB
to create a performance-based contract that outlines specific goals, objectives and success measures for
any future Convention Center marketing agreement.
SAG's Dan Fenton has been assisting the City with these efforts since the City Commission's direction.
Mr. Fenton is a seasoned marketing executive that has assisted several similar destinations with
improving their approach to convention center marketing. Recent clients include the State of Hawaii,
New Orleans, Atlantic City, and Houston.
The City desires to engage SAG's Fenton over a eleven-month period to guide, monitor and oversee the
transformation of the sales and marketing efforts, event and revenue focus, branding, and operating
strategies of the new MBCC. This will include:
283
Strategic Advisory Group Consulting Services for the MBCC Expansion and Renovation Project
May 20, 201 5
Page 3 of 3
. Helping guide and oversee the implementation of the most effective sales and marketing
approach for the new MBCC.
. Helping guide and oversee the implementation of a service model that aligns MBCC/destination
services with the quality of the new MBCC and the types of groups that are combatable with
Miami Beach hotel pricing. This will include all aspects of the meeting planner and attendee
experience from the first sales contact through the move out process.
o Facilitating the development of a new brand for the new MBCC, which will come with a "brand
promise".
FEE AND SCHEDULE INFORMATION
A copy of the SAG Amendment #7 is attached. SAG's hourly billing rates will remain at the same,
reduced, level as approved in 2014. The fees and expenses in this Amendment shall not exceed
$358,825:
. Pre GMP Services (June 2015 - December 2015) - Fees and expenses are not to exceed
$198,825 ($28,404 per month on average over 7 months).
. Asset Management Services (May 2015 - March 2016) - Fees and expenses are not to exceed
$160,000 ($14,545 per month on average over 11 months).
CONCLUSION/RECOMMEN DATION
The Administration recommends that the Mayor and City Commission adopt the attached Resolution
approving and authorizing the Mayor and City Clerk to execute an amendment to the professional
services agreement between the City of Miami Beach and Strategic Advisory Group dated October 19,
2Q11 for consulting services relative to the expansion and enhancement of the Miami Beach Convention
Center in an amount not to exceed $358,825, including all reimbursable expenses.
Attachments:
1. Amendment No. 7
JLM/KGB/MH/MS
T:\AGENDA\201 5\May\MBCC\SAG Amendment #7 - Memo.docx
284
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE AMENDMENT NO. 7 TO THE
PROFESSIONAL SERVIGES AGREEMENT BETWEEN THE CITY OF MIAMI
BEACH AND STRATEGIC ADVISORY GROUP DATED OCTOBER 19,2011
FOR CONSULTING SERVICES RELATIVE TO THE EXPANSION AND
ENHANCEMENT OF THE MIAMI BEACH CONVENTION CENTER !N AN
AMOUNT NOT TO EXCEED $358,825.00, INCLUDING ALL
REIMBURSABLE EXPENSES.
WHEREAS, on October 19, 2011, the City Commission authorized the Mayorand City
Clerk to enter into an Agreement with Strategic Advisory Group (SAG) for services relative to the
expansion and enhancement of the Miami Beach Convention Center District, in an amount not
to exceed $175,000; and
WHEREAS, on January 11,2012, the City Commission authorized the issuance of
Request for Qualifications No. 22-11112 for qualified developers for a public-private mixed-use
development in Miami Beach for the enhancement of the MBCC district, including the expansion
of the Miami Beach Convention Center and development of a Convention Center Hotel (the
"2012 RFQ"); and
WHEREAS, on February 6, 2013, and March 13, 2013, the Commission authorized
Amendments No. 1 and 2 to the SAG Agreement, respectively, for additional services relative to
the 2012 RFQ;
WHEREAS, on January 15, 2014, the City Commission adopted Resolution No. 2014-
28479, canceling lhe 2012 RFQ and directing the Administration to prepare a new RFP or RFQ
for design-build or design services for the renovation of the Convention Center, and further
directing the Administration to identify potential sites for a Convention Center Headquarter Hotel;
and
WHEREAS, on February 12, 2014, the City Commission approved the issuance of RFQ
2014-142ME, for a Design Criteria Professional to prepare a Design Criteria Package for the
Convention Center Renovation Project, and authorized the City Manager to negotiate and
execute any additional contracts, as required, in order to expedite this process, including but not
limited to additional amendments to the SAG Agreement; and
WHEREAS, Amendments No. 3 and 4, totaling $548,900, were executed pursuant to the
Commission's February 12,2014 directive, covering all of SAG's services from the beginning of
the current design-build RFQ process through the anticipated selection of a Design-Builder in
2015 and execution of a Design-Build Agreement; and
WHEREAS, on September 10, 2014 the City Commission directed the Administration to
work with the Greater Miami Convention and Visitors Bureau to create a performance-based
contract that outlines specific goals, objectives and success measures for any future Convention
Center marketing agreement; and
285
WHEREAS, Amendment No. 5, for consulting services associated with the development
of a Convention Center Headquarter Hotel, was executed in an amount not to exceed $30,000;
and
WHEREAS, on December 18, 2014, the City Commission authorized the Mayor and City
Clerk to execute Amendment No. 6 for the additional services associated with the procurement
process of the hotel developer, in an amount not to exceed $166,375; and
WHEREAS, on February 11,2015, the City Commission elected to re-bid the Project
under a Construction Manager-at-Risk (CMAR) project delivery method; and
WHEREAS, this Amendment provides for SAG's continuing services related to the pre-
construction phase services through December 31, 2015, for a not to exceed amount of
$198,825 ($28,404 per month on average), and for asset management services to guide,
monitor and oversee the transformation of the sales and marketing efforts, event and revenue
focus, branding and operating strategies of the new convention center, for a not to exceed
amount of $160,000 ($14,545 per month on average over eleven months); and
WHEREAS, SAG's fees are based on time worked on the project multiplied by the hourly
rates, which have been reduced from the rates approved in the original Agreement.
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 hereby approve and authorize the Mayor and City Clerk to execute Amendment
No. 7 to the Professional Services Agreement between the City of Miami Beach and Strategic
Advisory Group dated October 19,2011, for Consulting Services relative to the expansion and
enhancement of the Miami Beach Convention Center, in an amount not-to-exceed $358,825,
including reimbursable expenses.
PASSED and ADOPTED this day of May,2015.
Philip Levine, Mayor
ATTESTED BY:
Rafael E. Granado, City Clerk
_^PPROVED AS TO
FOI?M & LANGUAGE
& FOR EXECT'TION
5(t+fte
-
Dote
.i-0*,(-
286
R9
NEW BUSINESS
AND
COMMISSION REQUESTS
287
r.-..-.i
City of Miomi Beoch, I 200 Convention Center Drive, Miomi Beoch, Florido 33,1 39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
To: Mayor Philip Levine and Members of the City Commission
FROM: Rafael E. Granado, City Clerk
DATE: May 20,2015
SUBJECT: BOARD AND COMMITTEE APPOINTMENTS - CITY COMMISSION APPOINTMENTS
ADMI NISTRATION RECOMMENDATION
Make appointments as indicated.
ANALYSIS
At the May 6, 2015 Commission Meeting direction was given for this item to come back to the May
20,2015 Presentation & Awards Commission Meeting to consider Planning Board appointment.
BOARDS AND GOMMITTEES
1, AFFORDABLE HOUSING ADVISORY COMMITTEE
vAcANT CATEGORTES (6):
. One citizen who is actively engaged in the residential home building industry in
connection with affordable housing.
. One citizen who is a representative of those areas of labor actively engaged in home
building in connection with affordable housing.
. One citizen actively engaged as an advocate for low-income persons in connection with
affordable housing.
o One citizen who is actively engaged as a not-for-profit provider of affordable housing.
. One citizen who actively serves on the local planning agency pursuant to Florida
Statute S163.3174 (Planning Board member).
. One citizen who represents essential services personnel, as defined in the local
housing assistance plan.
F:\CLER\COMMON\2015\05202015 P&A\BC APPOINTMENTS AT LARGE FOR MAY 20 2015 PA COMMISSIoN MEET ^ ^^ i.Agenda ltem K[]F\
Date 5-20:K288
2. BUDGET ADVISORY COMMITTEE
vAcANT CATEGORY (1):
. One certified public accountant.
3. HEALTH ADVISORY COMMITTEE
vAcANT CATEGORTES (4):
o Two (2) members shall be an administrator from an Adult Congregate Living Facility
(ACLF), and/or an Assisted Living Facility (ALF).
. One (1) private individual.
. One (1) individualfrom the corporate level.
4. MIAMI BEACH GULTURAL ARTS COUNCIL
vAcANT CATEGORY (1):
. One (1) member to be appointed At-Large.
5. MIAMI BEACH HUMAN RIGHTS COMMITTEE
vAcANT CATEGORY (1):
o One (1) member to be appointed At-Large.
6. PLANNING BOARD
vAcANT CATEGORTES (1):
. One architect registered in the State of Florida; or a member of the faculty of a school of
architecture in the State, with practical or academic expertise in the field of design,
planning, historic preservation or the history of architecture; or a landscape architect
registered in the State of Florida; or a professional practicing in the fields of
architectural or urban design, or urban planning.
Please see the "Agenda - Agenda Archives" for the continuously updated Releases of City
Commission At-Large Nominations listing current information about which applicants have actually
been nominated. The Agenda-Agenda Archives website is located at:
http:i/m iam i beachfl. oov/citvclerUscroll. aspx?id=82 1 1 7
Alternatively, the Releases can be found by going to the City's main portal located at
http:i/miamibeachfl.oov; and under the City Clerk section, located on the bottom right hand side of
the webpage, click on the "Agenda Archives" link; thereafter choose the first listed Commission
meeting and click on City Commission At-Large Nominations.
F:\CLER\COMMON\2015\05202015 P&A\BC APPOINTMENTS AT LARGE FOR MAY 20 2015 PA COMMISSION MEETING.DOCX Page2
289
R9 - New Business and Gommission Requests
RgB Discussion Regarding Rescheduling The June Commission Meeting From June 10,
2015 To June 8, 2015.
(Sponsored by Mayor Philip Levine)
Aqenda nem RQ R
Date f"20-t{290
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291
R9 - New Business and Gommission Requests
RgC Discussion Regarding City Of Miami Beach Requiring Mandatory Nighttime Closure Of All
Ocean Drive Sidewalk Umbrellas For The Duration Of Memorial Day Weekend.
(Sponsored by Commissioner Michael Grieco)
Agenda lten R?C
Date. Ji2a-lf292
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293