Risk Management Agreement
CONSTRUCTION MANAGEMENT AT RISK AGREEMENT FOR THE
CONSTRUCTION OF A NEW FIRE STATION, RENOVATION OF THE EXISTING
FIRE STATION #2 INTO ADMINISTRATIVE OFFICES AND COMPLETION OF THE
SITE DRAINAGE SYSTEM
CONTRACT made the
6th day of July
,2004
BY AND BETWEEN: City of Miami Beach, a political subdivision of the State of
Florida (CITY) and Jasco Construction Company, Inc. (CONTRACTOR).
Proiect Summary
The following summary (the "Project Summary") identifies the construction project which is
the subject of this Contract, including certain financial terms and deadlines, All terms in
this Project Summary are more fully defined or referenced in Article 1 of the General
Conditions.
The Project is:
and
PHASE I: THE CONSTRUCTION OF A NEW FIRE STATION #2,
COMPLETION OF THE SITE DRAINAGESYSTEM; and PHASE
II: RENOVATION OF THE EXISTING FIRE STATION #2 INTO
ADMINISTRATIVE OFFICES
The CONTRACT ADMINISTRATOR is: CAPITAL IMPROVEMENT PROJECTS OFFICE
DIRECTOR OR HIS DESIGNEE
The CONSULTANT is: STAARCHITECTURAL GROUP,INC.
The Contract Time is: PHASE I IS TO BE SUBSTANTIALLY COMPLETED WITHIN
390 DAYS FROM ISSUANCE OF THE SECOND NOTICE TO
PROCEED AND COMPLETED WITHIN 30 DAYS FROM THE
DATE CERTIFIED AS DATE OF SUBSTANTIAL COMPLETION
OF PHASE I. PHASE II IS TO BE SUBSTANTIALLY
COMPLETED WITHIN 270 DAYS FROM THE DATE OF FINAL
COMPLETION OF PHASE I, WITH FINAL COMPLETION OF
PHASE II WITHIN 30 DAYS FROM THE DATE CERTIFIED AS
THE DATE OF SUBSTANTIAL COMPLETION OF PHASE II.
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ARTICLE 1
THE PROJECT TEAM
1 The Project Team includes the CONTRACTOR, the CONTRACT
ADMINISTRATOR, and the CONSULTANT, all of whom shall work jointly and
cooperatively during the construction and warranty period.
1.2 The CONTRACTOR accepts the relationship of trust and confidence established
between it and the CITY by this Contract. CONTRACTOR covenants with the CITY
to furnish its best skill and judgment and to cooperate with the other members of the
Project Team in furthering the interests of the CITY. CONTRACTOR agrees to
provide efficient business administration and superintendence, and to use its best
efforts to complete the Project in the most expeditious and economical manner,
consistent with the CITY's interests.
1.3 Entire Aqreement: Severabilitv: Amendments: This Contract includes and
incorporates the General Conditions and all of the Contract Documents identified in
the General Conditions, and all prior negotiations, correspondence, conversations,
agreements, and understandings applicable to the matters contained herein. The
parties agree that there are no commitments, agreements or understandings
concerning the subject matter of this Contract that are not contained in the Contract
Documents. Accordingly, the parties agree that no deviation from the terms hereof
shall be predicated upon any prior representations or agreements, whether oral or
written, except as specifically set forth in Article 1.4.
It is further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written
document executed in accordance with this Contract. In the event any provision of
the Contract Documents shall be found by a court of competent jurisdiction to be
invalid or otherwise unenforceable, the remainder of this Contract shall not be
affected thereby and each remaining provision, term, covenant or condition of the
Contract Documents shall continue to be effective.
1.4 Incorporation of Pre-Construction Services Aqreement: The CITY and
CONTRACTOR are parties to that certain agreement, dated April 18th, 2001,
entitled "Agreement for Pre-Construction Services between the City of Miami Beach,
Florida, and Jasco Construction Company for Construction Management at Risk
Services pursuant to RFQ No. 117-99/00, entitled 'Construction Management at
Risk for the Fire Station No.2 Renovation and Expansion'" (hereinafter referred to
as the Pre-Construction Services Agreement).
The Pre-Construction Services Agreement contemplates that when the CITY
accepts the Guaranteed Maximum Price proposed by CONTRACTOR for the
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Project, then the CITY and CONTRACTOR shall execute a "GMP Amendment",
accepting and establishing the GMP and more specifically delineating the respective
responsibilities of the CITY and CONTRACTOR with respect to the construction of
the Project.
At its regular meeting on December 10th, 2003, the Mayor and City Commission
accepted the GMP for the Project, subject to the negotiation of a comprehensive
Construction Management at Risk Agreement to proceed with construction of the
Project. To that end, CITY and CONTRACTOR have negotiated this Contract and
the attached General Conditions which shall, upon execution by CITY and
CONTRACTOR, supercede and replace, in its entirety, that certain draft agreement
entitled the "GMP Amendment", referred to and attached as Exhibit "8" of the Pre-
Construction Services Agreement.
As to the Project, as defined in this Contract and General Conditions, the
following definitions, terms and conditions contained within the Pre-Construction
Services Agreement are modified and herein amended to the extent provided
below. Said modifications and/or amendments to the Pre-Construction Agreement
shall be superceded by this Contract and the General Conditions:
1.) Article 1 of the Pre-Construction Services Agreement entitled,
"Definitions", is deleted in its entirety. The Definitions in the Contract
Documents (the General Conditions), shall control.
2.) Any reference to "Architect/Engineer" in the Pre-Construction Services
Agreement shall be amended and deemed to refer to "CONSULTANT',
as defined in the Contract Documents (General Conditions).
3.) Any reference to "Construction Manager (CM)" orto "General Contractor"
in the Pre-Construction Services Agreement shall be amended and
deemed to refer to "CONTRACTOR", as defined in the Contract
Documents (General Conditions).
4.) Any reference to "GMP Amendment" in the Pre-Construction Services
Agreement is amended and deemed to refer to this Contract and the
General Conditions, and all exhibits and amendments thereto.
5.) The following Articles are deleted in their entirety from the Pre-
Construction Services Agreement, and shall hereinafter be superceded
by the Contract and General Conditions:
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Article II - deleted in its entirety
Article 3.2 - deleted in its entirety
Article VI - deleted in its entirety, except for Articles 6.3 and 6.3.1
Article VII - deleted in its entirety
Article VIII - deleted in its entirety
6,) Attachments I - V of the Pre-Construction Services Agreement are herein
ratified, incorporated and made a part of this Contract and the General
Conditions.
7.) Section 1.46, entitled Force Majeure, is incorporated in its entirety.
In the event of a conflict between terms contained in the Pre-Construction
Agreement and those in the Contract Documents, or any of the documents attached
or incorporated herein, the precedence will be given to that term which allows the
CITY to enforce the Contract Documents in the strictest possible terms.
Nothing in this Agreement shall be deemed to modify, amend, or otherwise alter the
terms and conditions of that certain Agreement between CITY and CONTRACTOR
entitled "Construction Management at Risk Agreement for the 25th Street Water
Tanks and Pump Station Project", dated March 19,2003.
ARTICLE 2
THE WORK
2.1 The CONTRACTOR shall perform all of the Work required by the Contract
Documents as generally described below and as shall be revised or added to from
time to time to reflect clarifications and approved changes.
2.2 Intention of CITY: It is the intent of CITY to describe in the Contract Documents a
functionally complete Project (or part thereof) to be constructed in accordance with
the Contract Documents. Any work, materials or equipment that may reasonably be
inferred from the Contract Documents as being required to produce the intended
result shall be supplied by CONTRACTOR within the GMP, whether or not
specifically called for. The Contract Documents shall be interpreted so as to
eliminate inconsistencies or conflicts, but in the event of any conflict, requirements
for greater quantity and/or more expensive work shall govern. When words which
have a well-known technical or trade meaning are used to describe work, materials
or equipment, such words shall be interpreted in accordance with that meaning.
Reference to standard specifications, manuals, or codes of any technical society,
organization or association, or to the laws or regulations of any governmental
authority, whether such reference be specific or by implication, shall mean the latest
standard specification, manual, code or laws or regulations in effect at the time of
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execution of this Contract. CITY shall have no duties other than those duties and
obligations expressly set forth within the Contract Documents.
2.3 The CONTRACTOR agrees that the Work shall be performed in a good and
professional manner, free from defects in materials and workmanship, and that all
Materials shall be new and approved by or acceptable to the CITY, except as
otherwise expressly provided for in the Contract Documents, The CONTRACTOR
shall cause all Materials and other parts of the Work to be readily available as and
when required or needed for or in connection with the construction, furnishing and
equipping of the improvements.
ARTICLE 3
MANAGING GENERAL CONTRACTOR'S SERVICES
3.1 The services of the CONTRACTOR shall include, but are not limited to, those
described or specified herein, The services described herein shall not be deemed
to constitute a comprehensive specification having the effect of excluding services
not specifically mentioned.
3.2 Contractor's Duties and Responsibilities
[Note: Refer to Article IV of the Pre-Construction Services Agreement, which is
incorporated herein as if fully set forth]
3.3 Post-Construction Phase - CONTRACTOR shall coordinate Project close-out,
commencement of use or operations and transition to occupancy by the CITY.
CONTRACTOR shall cooperate fully and promptly with preparation of Certificates of
Substantial and Final Completion, and complete all remaining work and punch list
work promptly. CONTRACTOR shall review all warranties, operation manuals and
maintenance manuals for completeness and compliance with the Contract
Documents, have them corrected, if necessary, and transmit them to CITY.
Transmittal of warranties, operations manuals and maintenance manuals to CITY
shall constitute evidence of CONTRACTOR's warranty of completeness and
compliance of same to the Contract Documents.
3.4 Warranty Phase - CONTRACTOR shall comply with requirements of Articles 32 and
33 of the General Conditions, CONTRACTOR shall participate with CITY
representatives in warranty inspections in the 6th and 11 th months after Substantial
Completion, and shall coordinate all warranty and service work.
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ARTICLE 4
CONTRACT TIME
4.1 Time is of the essence for the CONTRACTOR'S performance of the Work pursuant
to this Contract. The CONTRACTOR agrees to complete the Work in accordance
with the Progress Schedule and to achieve Substantial Completion of each Phase
the Work, in accordance with this Contract, and within the Contract time.
CONTRACTOR acknowledges that failure to achieve Substantial Completion will
result in substantial damages to the CITY, including, but not limited to, loss of
beneficial use and/or occupancy of the Project. Completion of the Work for each
Phase shall be achieved no later than thirty (30) calendar days after issuance of a
Certificate of Substantial Completion by the CONSULTANT for the particular Phase.
4.2 CONTRACTOR shall be instructed to commence the Work for each Phase of the
Project by written instructions in the form of a Purchase Order issued by the CITY's
Procurement Director and Notices to Proceed issued by the CONTRACT
ADMINISTRATOR. Two Notices to Proceed will be issued for each Phase of this
Contract. CONTRACTOR shall commence scheduling activities, permit
applications, and other preconstruction work within five (5) calendar days after the
Project Initiation Date, which shall be the same as the date of the first Notice to
Proceed. The second Notice to Proceed and Purchase Order will not be issued
until CONTRACTOR submits to CITY all required documents in satisfactory form
and after execution of the Contract by both parties.
4.2.1. The receipt of all necessary permits by CONTRACTOR and acceptance of
the full Progress Schedule in accordance with technical specifications
section, submittal schedule and schedule of values is a condition precedent
to the issuance of the second Notice to Proceed to mobilize on the Project
site and commence with physical construction work. CITY, through its
CONSULTANT shall use its best efforts to review CONTRACTOR'S
submittals within thirty (30) calendar days.
4.3 Time is of the essence throughout this Contract. Phase I of the Work is to be
substantially completed within 390 calendar days from issuance of the second
Notice to Proceed, and final completion, as evidenced by the issuance of a Final
Certificate of Completion by CONSULTANT, shall be accomplished within 30
calendar days from the date certified as the date of Substantial Completion of
Phase I. Phase 1\ is to be substantially completed within 330 calendar days from
the date of substantial completion of the Site Work for Phase I, and completed and
ready for issuance of a Final Certificate of Completion by CONSULTANT within (30)
calendar days from the date certified by CONSULTANT as the date of Substantial
Completion of Phase I\. Site Work for both Phases shall be substantially completed
30 calendar days after the completion of each building construction. Final
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completion of all of the Site Work shall be achieved within 30 calendar days from
the date certified as Substantial Completion of Phase II. In addition, there will be a
period of 30 calendar days between Phase I Final Completion and the issuance of
the Second Notice to Proceed for Phase II for which CONTRACTOR shall not be
responsible. This period will be used by the CITY'S Fire Department to effectuate
their move from the existing historical building to the new fire station facility.
4.4 It is understood that Phase I and Phase II of the Project are to be invoiced and paid
for separately in accordance with Article 6. Upon certification of Final Completion
by CONSULTANT of a particular Phase, the final payment for that Phase, including
the retainage for that portion of the Work will be paid to CONTRACTOR. Separate
invoices and pay requisitions shall be submitted for Phase I and Phase II Work.
4.5 Upon failure of CONTRACTOR to substantially complete the Work within the
specified period of time, plus any approved time extensions for Phase I,
CONTRACTOR shall pay to the CITY the sum of One Thousand Five Hundred and
00/100 Dollars ($1,500.00) for each calendar day after the time period specified in
Article 4.3 (plus any approved time extensions) for Substantial Completion. After
Substantial Completion of Phase I, should CONTRACTOR fail to complete the
remaining Work within ten (10) calendar days after said thirty (30) calendar day
period for completion and readiness for final payment, CONTRACTOR shall pay to
CITY the sum of Two Thousand and 00/100 Dollars ($ 2,000.00) for each calendar
day after said ten (10) calendar day period, for completion and readiness for final
payment.
4.6 Upon failure of CONTRACTOR to substantially complete the Work within the
specified period of time, plus any approved time extensions for Phase II,
CONTRACTOR shall pay to CITY the sum of One Thousand and 00/100 Dollars
($1,000.00) for each calendar day after the time period specified in Article 4.3 (plus
any approved time extensions) for Substantial Completion. After Substantial
Completion of Phase II, should CONTRACTOR fail to complete the remaining Work
within ten (10) calendar days after said thirty (30) calendar day period for completion
and readiness for final payment, CONTRACTOR shall pay to CITY the sum of One
Thousand Five Hundred and 00/100 Dollars ($1,500.00) for each calendar day after
said ten (10) calendar day period, for completion and readiness for final payment.
4.7 The time frame for liquidated damages shall not commence and thus shall not be
tolled until the CONTRACT ADMINISTRATOR submits the Punch List to the
CONTRACTOR. These amounts are not penalties but are liquidated damages to
CITY for its inability to obtain full beneficial occupancy and/or use of the Project.
Liquidated damages are hereby fixed and agreed upon between the parties,
recognizing the impossibility of precisely ascertaining the amount of damages that
will be sustained by CITY as a consequence of such delay, and both parties desiring
to obviate any question of dispute concerning the amount of said damages and the
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cost and effect of the failure of CONTRACTOR to complete the Contract on time.
4.8 CITY is authorized to deduct any liquidated damages from monies due to
CONTRACTOR for the work under this Contract or as much thereof as CITY may, in
its sole discretion, deem just and reasonable. The CITY shall first deduct the
liquidated damages from the monies referenced in Article 6.2.
4.9 CONTRACTOR shall be responsible for reimbursing CITY, in addition to liquidated
damages, for all costs incurred by CONSULTANT in administering the construction
of the Project beyond the final completion dates specified above, plus approved
time extensions, if the delays are due to the CONTRACTOR'S failure to perform and
complete the Project in a timely manner. CONSULTANT'S construction
administration costs shall be pursuant to the contract between CITY and
CONSULTANT, a copy of which is available to the CONTRACTOR upon requestto
the CONTRACT ADMINISTRATOR. All such costs shall be deducted from the
monies due CONTRACTOR for performance of Work under this Contract by means
of unilateral credit change orders issued by CITY as costs are incurred by
CONSULTANT and agreed to by CITY.
ARTICLE 5
THE CONTRACT PRICE (Guaranteed Maximum Price)
5.1 The Contract Price is the Guaranteed Maximum Price, agreed by the
CONTRACTOR and CITY under this Contract, payable to complete the Work in
accordance with the Contract Documents, as may be increased or decreased by
approved Change Order.
5.2 The Contract Price for the Project is $8,096,580, as more specifically defined and
delineated in Attachment III to this Contract, entitled "Scope of Work", and
incorporated by reference herein. The contract price is allocated as follows: Phase
I shall be valued at $5,626,886 and Phase II shall be valued at $2,469,694.
5.3 In the event that the CONTRACTOR's total approved expenditures for the Project
shall exceed the Guaranteed Maximum Price except for additional work requested
by CITY by approved Change Order, the CONTRACTOR shall pay such excess
from its own funds, and the CITY shall not be required to pay any amount that
exceeds the GMP except for the value of such additional work requested by CITY
by approved Change Order; and the CONTRACTOR shall have no claim against
the CITY on account thereof.
ARTICLE 6
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PROGRESS PAYMENTS
6.1 CONTRACTOR may make Application for Payment for Work completed during the
Project at intervals of not more than once a month. CONTRACTOR'S application
shall show a complete breakdown of the Project components, the percentages
completed and the amount due in accordance with Article 6.4 below, together with
such supporting evidence as may be required by CONSULTANT. CONTRACTOR
shall submit with each Application for Payment, an updated Progress Schedule
acceptable to CONSULTANT, certification of payments to Subcontractors and
signed Releases of Lien and Consent of Surety relative to the Work which was the
subject of the prior Application, prevailing wage reports, and Project progress
photographs. Each Application for Payment shall be submitted in triplicate to
CONSULTANT for approval with a transmittal letter stating date submitted. After
review and approval, CONSULTANT shall sign and transmit the approved payment
application to the CONTRACT ADMINISTRATOR. CITY shall make payment to
CONTRACTOR within twenty five (25) days after receipt from CONSULTANT of
CONTRACTOR's approved Application for Payment and acceptable updated
Progress Schedule and other supporting documents. Any Application for Payment
submitted incorrectly or incompletely will be rejected immediately by the
CONSULTANT for re-submission by the CONTRCA TOR in the manner established
in this Agreement. The City will make every effort to expedite payment of any
complete and appropriately presented application once approved by CONSULTANT.
6.2 Ten percent (10%) of all monies earned by CONTRACTOR for each Phase of the
Work shall be retained by CITY until final completion and acceptance by CITY of the
particular Phase. Therefore 10% of the value of Phase I shall be retained until final
completion of Phase I and released at that time. 10% of the value of Phase II shall
be retained until final completion of Phase II and released at that time. The
CONTRACTOR'S schedules of value shall reflect the value of each Phase
separately, and will reflect the 10% retainage for each Phase. Any interest earned
on retainage shall accrue to the benefit of CITY. The CITY and the CONSULTANT
will consider release of 5% of the retainage once Project is considered 95%
complete and prior to substantial completion if deemed appropriate.
6.3 CITY may also withhold, in whole or in part, payment to such extent as may be
necessary to protect itself from loss on account of:
6.3.1 Defective CONTRACTOR or Subcontractor work not remedied.
6.3.2 Claims filed, or reasonable evidence indicating probable filing of claims by
other parties against CONTRACTOR or CITY because of
CONTRACTOR'S performance.
6.3.3 Failure of CONTRACTOR to make payments properly to Subcontractors
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that are in good standing.
6.3.4 Damage to the work of another contractor or to CITY property not
remedied.
6.3.5 Liquidated Damages and/or costs incurred by CONSULTANT for extended
construction administration as provided in Article 4.6.
6.3.6 Failure of CONTRACTOR to provide any and all documents required to be
provided to City by the Contract Documents.
6.4 The first Application for Payment, and each payment application thereafter, shall be
based on a prepared schedule of values reflecting the value for each Phase of the
Project, allocating the entire CONTRACTOR'S Direct Construction Cost among the
various portions of the Work (the "Schedule of Values"), and approved by
CONSULTANT, (as well as any subsequent revisions thereto) and incorporated
herein and attached as Attachment III to the Contract. CONTRACTOR shall use
the Schedule of Values, as well as all updates thereto, to prepare payment
applications utilizing A.I.A. Forms G702 and G703. The Schedule of Values shall
list the cost of materials, the cost of labor, the cost of equipment and the cost of
subcontractor work, where applicable, separately for the portions of the Work
delineated. The number of specific items to be delineated on the Schedule of
Values shall be agreed upon by all parties and will be sufficient to allow the
CONSULTANT and the CITY to evaluate progress on the Project and expenditures
related to the progress. Each monthly Application for Payment shall be for a sum
equal to (i) that portion of the CONTRACTOR'S Direct Construction Cost equal to
the percentage of the Work completed; plus (ii) the total amount of the
CONTRACTOR's General Conditions divided by the total months of each Project
phase; plus (iii) the total amount of the CONTRACTOR'S fee divided by the total
months of each Project phase. Therefore each Application for Payment shall
contain an equal amount of General Conditions and of CONTRACTOR'S fees;
provided, however, prior to the date of the Final Payment Application for each
Phase of the Project, and unless subject to reduction under Article 6.3, above, the
aggregate of the CONTRACTOR'S Fee payments shall not exceed Ninety (90%)
percent of the CONTRACTOR'S Fee for each Phase of the Project.
The CONTRACTOR'S Direct Construction Cost shall be segregated and detailed in
a manner satisfactory to the CONSULTANT, with sufficient supporting
documentation and description of charges for the CONSULTANT to evaluate the
charges. The Application for Payment shall indicate the percentage of completion
of each portion of the Work, and the total Work, as of the end of the period covered
by the Application for Payment. The Schedule of Values shall be used as one basis
for reviewing the Application for Payment when such amounts are approved. The
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Application for Payment may include the cost of materials not incorporated in the
Work, but delivered and suitably stored at the Project location or at some other
location approved in writing in advance, by the CITY. Materials stored off-site must
be supported by: a detailed invoice, a Bill of Sale (transferring ownership to the
CITY), and an insurance certificate naming the CITY as additional insured equal to
or exceeding the cost of the material so acquired.
6.5 If the CONTRACT ADMINISTRATOR, in its reasonable and good faith judgment,
determines that the portion of the Guaranteed Maximum Price then remaining
unpaid will not be sufficient to complete the Work in accordance with the Contract
Documents, no additional payments will be due to the CONTRACTOR hereunder
unless and until the CONTRACTOR, at its sole cost, performs a sufficient portion of
the Work so that such portion of the Guaranteed Maximum Price then remaining
unpaid is determined by the CONTRACT ADMINISTRATOR to be sufficient to so
complete the Work.
6.6 CONTRACTOR shall remain liable for subcontractors' work and for any unpaid
laborers, material suppliers or subcontractors in the event it is later discovered that
said work is deficient or that any subcontractors, laborers, or material suppliers did
not receive payments due them on the Project.
6.7 Except for the Contractor's Fee, the CONTRACTOR shall use the sums advanced
to it solely for the purpose of performance of the Work and the construction,
furnishing and equipping of the Work in accordance with the Contract Documents
and payment of bills incurred by the CONTRACTOR in performance of the Work.
ARTICLE 7
ACCEPTANCE AND FINAL PAYMENT
7.1 Upon receipt of written notice from CONTRACTOR that each Phase of the Work is
ready for final inspection and acceptance, CONSULTANT shall, within ten (10)
calendar days, make an inspection thereof. If CONSULTANT and CONTRACT
ADMINISTRATOR find the Work acceptable; that the requisite documents have
been submitted and the requirements of the Contract Documents have been fully
performed; and all conditions of the permits and regulatory agencies have been met
for that Phase, a Final Certificate of Completion for the Phase, shall be issued by
CONSULTANT, stating that the requirements ofthe Contract Documents have been
performed for that Phase, and that the Work is ready for acceptance. The time
frame for liquidated damages shall not commence and thus shall be tolled until the
final inspection is performed by the CONSULTANT for each Phase of the Project.
7.2 On or before issuance of the Final Certificate of Completion for each Phase of the
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Project, CONTRACTOR shall deliver to CONSULTANT:
(1) A Final Waiver and Release of Lien, duly executed by the CONTRACTOR.
(2) An affidavit listing the name, address and telephone number of all the
Subcontractors who have performed Work on the particular Project Phase,
with such Subcontractors identified as to the trade(s) involved for the Work,
along with the original amounts due and the final amounts paid to each
such Subcontractor in connection with the Project;
(3) Final Waiver and Release of Lien, duly executed by each of the
Subcontractors;
(4) One (1) original set and two (2) copy sets of the As-Built Drawings, as well
as two (2) CD ROMs, each containing duplicate electronic copies ofthe As-
Built Drawings in AUTOCAD 2000 format, or such other format as may be
approved by the CITY in accordance with Article 26 of the General
Conditions;
(5) Assignment of all manufacturer's warranties, guarantees, and operating
manuals to the CITY; three copies are to be delivered, bound in a form
acceptable to the CITY;
(6) Unconditional consent of the CONTRACTOR'S Surety to final payment;
(7) The final bill of materials, and invoice (or final application for payment for
same).
7.3 If, after the Work has been substantially completed, full completion thereof is
materially delayed through no fault of CONTRACTOR, and CONSULTANT so
certifies, CITY shall, and without terminating the Contract, make payment of the
balance due for that portion of the Work fully completed and accepted. Such
payment shall be made under the terms and conditions governing final payment,
except that it shall not constitute a waiver of claims.
7.4 Final payment shall be made only after the City Manager or his designee has
reviewed a written evaluation of the performance of CONTRACTOR prepared by
the CONTRACT ADMINISTRATOR, and approved the final payment as provided by
Chapter 218, Florida Statutes ("Florida Prompt Payment Act") but no later than thirty
(30) days after Final Completion of the Project and provided that all final documents
have been submitted by CONTRACTOR and approved by CONSULTANT. The
acceptance of final payment shall constitute a waiver of all claims by
CONTRACTOR, except those previously made in strict accordance with the
provisions of the Contract and identified by CONTRACTOR as unsettled at the time
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of the application for final payment.
7.5 The CONTRACTOR'S final application for payment and the CONSULTANT'S Final
Certificate for Payment shall constitute a representation to the CITY by the
CONTRACTOR and the CONSULTANT, respectively, that all conditions precedent
to CONTRACTOR'S entitlement to final payment have been satisfied.
7.6 Should there be any judgment, claim or lien after final payment is made resulting
from the CONTRACTOR'S actions, for which the CITY may become liable, the
CONTRACTOR shall reimburse and indemnify the CITY for all monies that the CITY
shall pay in satisfying, discharging, or defending against any such judgment, claim
or lien, or any action brought or judgment recovered thereon, and all costs and
expenses, including attorney's fees and disbursements, incurred in connection
therewith including appellate proceedings.
7.7 The making of final payment shall not constitute a waiver of claims by the CITY for:
(a) faulty or defective Work appearing after CONSULTANT'S final certificate for
payment; (b) failure of the Work to be in strict accordance with the requirements of
the Contract Documents discovered after completion of the Work; and (c) terms of
all warranties required by the Contract Documents.
ARTICLE 8
MISCELLANEOUS
8.1 This Contract is part of, and incorporated in, the Contract Documents as defined
herein. Accordingly, all of the documents incorporated by the Contract Documents
shall govern this Project.
8.2 Where there is a conflict between any provision set forth within the Contract
Documents and a more stringent State or federal provision which is applicable to
this Project, the more stringent State or federal provision shall prevail.
8.3 Public Entitv Crimes. In accordance with the Public Crimes Act, Section 287.133,
Florida Statutes, a person or affiliate who is a contractor, consultant or other
provider, who has been placed on the convicted vendor list following a conviction for
a public entity crime may not submit a bid on a contract to provide any goods or
services to the CITY, may not submit a bid on a contract with the CITY for the
construction or repair of a public building or public work, may not submit bids on
leases of real property to the CITY, may not be awarded or perform work as a
contractor, supplier, subcontractor, or consultant under a contract with the CITY,
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13
and may not transact any business with the CITY in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for category two purchases for a
period of 36 months from the date of being placed on the convicted vendor list.
Violation of this section by Contractor shall result in cancellation of the CITY
purchase and may result in Contractor debarment.
8.4 Independent Contractor. CONTRACTOR is an independent contractor under this
Contract. Services provided by CONTRACTOR pursuant to this Contract shall be
subject to the supervision of CONTRACTOR. In providing such services, neither
CONTRACTOR nor its agents shall act as officers, employees, or agents of the
CITY. This Contract shall not constitute or make the parties a partnership or joint
venture.
8.5 Third Party Beneficiaries. Neither CONTRACTOR nor CITY intends to directly or
substantially benefit a third party by this Contract. Therefore, the parties agree that
there are no third party beneficiaries to this Contract and that no third party shall be
entitled to assert a claim against either of them based upon this Contract. The
parties expressly acknowledge that it is not their intent to create any rights or
obligations in any third person or entity under this Contract.
8.6 Notices. Whenever either party desires to give notice to the other, such notice must
be in writing, sent by certified United States Mail, postage prepaid, return receipt
requested, or by hand-delivery with a request for a written receipt of acknowledgment
of delivery, addressed to the party for whom it is intended at the place last specified.
The place for giving notice shall remain the same as set forth herein until changed in
writing in the manner provided in this section. For the present, the parties designate
the following:
For CITY:
CAPITAL IMPROVEMENT PROJECTS OFFICE
Contact: MAURO BURGIO, SENIOR CAPITAL PROJECTS COORDINATOR
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
For CONTRACTOR:
JASCO CONSTRUCTION COMPANY, INC.
Contact: AL BRIZUELA, VICE PRESIDENT
13317 S.W. 124th STREET
MIAMI, FLORIDA 33186
Contract
14
8.7 Assiqnment and Performance. Neither this Contract nor any interest herein shall be
assigned, transferred, or encumbered by either party. In addition, CONTRACTOR
shall not subcontract any portion of the work required by this Contract except as
authorized by Section 19 of the General Conditions. CONTRACTOR represents
that all persons delivering the services required by this Contract have the knowledge
and skills, either by training, experience, education, or a combination thereof, to
adequately and competently perform the duties, obligations, and services set forth
in the Scope of Work and to provide and perform such services to CITY'S
satisfaction for the agreed compensation.
CONTRACTOR shall perform its duties, obligations, and services under this
Contract in a skillful and respectable manner. The quality of CONTRACTOR'S
performance and all interim and final product(s) provided to or on behalf of CITY
shall be comparable to the best local and national standards.
8.8 Materiality and Waiver of Breach. CITY and CONTRACTOR agree that each
requirement, duty, and obligation set forth in these Contract Documents is
substantial and important to the formation of this Contract and, therefore, is a
material term hereof. CITY'S failure to enforce any provision of this Contract shall
not be deemed a waiver of such provision or modification of this Contract. A waiver
of any breach of a provision of this Contract shall not be deemed a waiver of any
subsequent breach and shall not be construed to be a modification of the terms of
this Contract.
8.9 Severance. In the event a portion of this Contract is found by a court of competent
jurisdiction to be invalid, the remaining provisions shall continue to be effective
unless CITY or CONTRACTOR elects to terminate this Contract. An election to
terminate this Contract based upon this provision shall be made within seven (7)
days after the finding by the court becomes final.
8.10 Applicable Law and Venue. This Contract shall be interpreted and construed in
accordance with and governed by the laws of the State of Florida. Any
controversies or legal problems arising out of this Contract and any action involving
the enforcement or interpretation of any rights hereunder shall be submitted to the
jurisdiction of the State courts of the Eleventh Judicial Circuit of Miami-Dade
County, Florida, the venue site, and shall be governed by the laws of the State of
Florida. By entering into this Contract, CONTRACTOR and CITY hereby
expressly waive any rights either party may have to a trial by jury of any civil
litigation related to, or arising out of the Project. CONTRACTOR, pursuant to
Article 19 of the General Conditions, shall specifically bind all subcontractors
to the provisions of this Contract.
8.11 Amendments. No modification, amendment, or alteration in the terms or conditions
contained herein shall be effective unless contained in a written document prepared
Contract
15
with the same or similar formality as this Contract and executed by the CITY and
CONTRACTOR.
(The remainder of this page is left blank intentionally.)
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement on the respective dates under each signature: CITY OF MIAMI BEACH
through its MAYOR AND CITY COMMISSION, signing by and through its MAYOR,
authorized to execute same by City Commission action on the 10th day of December,
2003, and CONTRACTOR, signing by and through July 6, 2004 , duly
authorized to execute same.
~~Q~
(City Clerk)
I BEACH
David Dermer, Mayor
(Print Name and Title)
APPROVED /IS TO
FORM & LANGUAGE
& FOR EXECUTION
6th day of July
,2004
~ 1--I'TJr
ey~ Date
Contract
16
(Secretary)
JASCO CONSTRUCTION COMPANY, INC.
BY~~
(Signature)
ATTEST
~
(Corporate Seal)
~ t.~~62- ikt'J:lJ~ I
(Print Name and title)
..--
.2 r day of J t,/A/ ~ , 2004
(CITY REQUIRES FIVE (5) FULLY-EXECUTED CONTRACTS FOR DISTRIBUTION)
Contract
17
CONSTRUCTION MANAGEMENT AT RISK AGREEMENT FOR THE
CONSTRUCTION OF A NEW FIRE STATION, RENOVATION OF THE EXISTING
FIRE STATION #2 INTO ADMINISTRATIVE OFFICES AND COMPLETION OF THE
SITE DRAINAGE SYSTEM
General Conditions
TABLE OF CONTENTS
1 Definitions.............................................................................................................4
2 General Provisions... .... ............... ......... ............. .... ............ .... .... ..... .......... ............. 7
3 Responsibilities of CONTRACTOR /Generally......................................................8
4 Progress Schedule... ........ .......... ............... ..... ...................... ........ .......................1 0
5 . Superintendence and Supervision ......................................................................11
6 CONSULTANT'S Authority .................................................................................12
7 Shop Drawings.................................................................................................... 13
8 Field Layout of the Work and Record Drawings..................................................14
9 Inspection and Testing.... .... ...... ...................... ............... ........ ............... ..............15
1 0 Taxes.................................................................................................................. 16
11 Priority of Provisions ...........................................................................................16
12 Changes in the Work or Terms of Contract Documents .....................................17
Notification of Change of Contract Time or Contract Price; Weather (17)
Change Orders (19)
Field Orders and Supplemental Instructions (21)
13 Differing Site Conditions..................................................................... ... 21
14 Excusable Delay: Compensable & Non Compensable .......................................22
15 Substantial Completion Date ........................... ........................ .............. .............23
16 Use of Completed Portions .................................................................................24
General Conditions
1
17 Cost of the Work. ..... ............... .... ............. ........ .......... ................ ............... ..........25
Subcontractor Costs (25)
CONTRACTOR'S Labor Costs (26)
Materials and Equipment (26)
Miscellaneous costs (27)
18 Discounts, Rebates and Refunds .......................................................................30
19 Subcontract Requirements........................ ...... ......... ....... ....... ...... ...... .................30
20 I nsurance Requirements..................................................................................... 32
21 Indemnification.................................................................................................... 34
22 Performance and Payment Bond and Qualifications of Sureties ........................35
Qualification of Surety (35)
23 Independent Contractor ......... ....... .... ............. ......... ...... ......................... .............36
24 Inspection of Work ........ ......... .... ....... ..................... ....... ......................................37
.25 Project Records .... ............................. ........... ......... ........... ......... ............ ........ .....37
26 Survey................................................................................................................. 38
27 Title to Work........................................................................................................ 39
28 Work in Progress .......... ......... ....... .............. ....... ......... ........... .............. ...............39
29 Occupational Health and Safety .........................................................................39
30 CITY Licenses Permits and Fees........................................................................41
31 Personnel........................................................................................................... .42
32 CONTRACTOR'S Warranties .............................................................................42
33 Defective Work................................................................................................... .43
34 Signage.............................................................................................................. .44
35 Public Entity Crimes Act......................................................................................45
General Conditions
2
36 Ownership of Contract Documents .....................................................................45
37 Assignment........................................................................................................ .46
38 Nondiscrimination, Equal Employment Opportunity and
Americans With Disabilities Act ..........................................................................46
39 Waiver.................................................................................................................4 7
40 Construction of Terms... ......... ......... ............ ............ ....... ............. .... .... ................47
41 Captions..............................................................................................................4 7
42 Entire Agreement; Severability; Amendments ....................................................48
43 CITY'S Right to Terminate Contract....................................................................48
44 Resolution of Disputes ... ............... ........ ................ ....... ........ ..............................49
45 Other Terms & Conditions ..................................................................................50
Drug Free Workplace (50)
Hurricane Precautions (50)
Status Reports to CITY'S General Obligation (G.O.) Bond
Oversight Committee (51)
CONTRACTOR'S Right to Stop the Work or Terminate the Contract(51)
General Conditions
3
Construction Management at Risk Agreement
General Conditions
ARTICLE 1
DEFINITIONS
1.1 Chanqe Order: A written document ordering a change in the Contract Price or
Contract Time or a material change in the Work.
1.2 CITY: The CITY (or OWNER) shall mean the City of Miami Beach, a Florida
municipal corporation, having its principal offices at 1700 Convention Center Drive,
Miami Beach, Florida 33139, which is a party hereto and/or for which this Contract
is to be performed. In all respects hereunder, CITY's performance is pursuant to
CITY's position as the OWNER of a construction project. In the event CITY
exercises its regulatory authority as a governmental body, the exercise of such
regulatory authority and the enforcement of any rules, regulations, laws and
ordinances shall be deemed to have occurred pursuant to CITY's regulatory
authority as a governmental body, and shall not be attributable in may manner to
CITY as a party to this Contract.
1.3 City Commission: City Commission shall mean the governing and legislative body
of the CITY.
1.4 Consultant: Architect or Engineer who has contracted with CITY to provide
professional services for this Project.
1.5 Contract: The Construction Management at Risk Agreement, including any
amendments and exhibits thereto.
1.6 Contract Administrator: The CITY's Contract Administrator shall mean the individual
appointed by the City Manager who shall be the CITY's authorized representative to
coordinate, direct, and review on behalf of the CITY, all matters related to the
Project.
1.7 Contract Documents: The Project Manual including drawings, plans, and
specifications; the Request for Qualifications No. 117-00/00, all attachments and
amendments thereto, and Contractor's response thereto; any Addenda to the
Project Manual; Pre-Construction Services Agreement, dated April 18, 2001, and
any Attachments and exhibits thereto (except for Exhibit B thereto, entitled the
"GMP Amendment"), the Contract and General Conditions and any amendments,
Attachments, and exhibits thereto; the Performance Bond and Payment Bond; the
General Conditions
4
Notice of Award; the Notice(s) to Proceed, and the Purchase Order; Change
Orders; Field Orders; Supplemental Instructions and any additional documents the
submission of which is required by the Project Manual, are the documents which are
collectively referred to as the Contract Documents.
1.8 Contract Price: The amount established in the Contract as the Guaranteed
Maximum Price (GMP), as may be amended by Change Order.
1.9 Contractor: the person, firm, or corporation with whom the CITY has contracted to
provide the Construction Management at Risk Services contemplated in the
Contract Documents, and who is responsible for the acceptable performance of the
Work and for the payment of all legal debts pertaining to the Work. All references in
the Contract Documents to third parties under contract or control of Contractor shall
also be deemed to be a reference to CONTRACTOR.
1.10 Field Order: A written order which orders minor changes in the Work but which does
not involve a change in the Contract Price or Contract Time.
1.11 Final Completion: The date certified by CONSULTANT in the Final Certificate of
Payment upon which all conditions and requirements of any permits and regulatory
agencies have been satisfied; and the documents required by the Contract
Documents have been received by CONSULTANT; any other documents required
to be provided by CONTRACTOR have been received by CONSULTANT; and to
the best of CONSULTANT's information and belief the Work defined herein has
been fully completed, in accordance with the terms and conditions of the Contract
Documents.
1.12 I nspector: An authorized representative or employee of the CONSULTANT or CITY
assigned to make necessary inspections of materials furnished by Contractor and of
the Work performed by Contractor.
1.13 Materials: Materials incorporated in this Project, or used or consumed in the
performance of the Work.
1.14 Notice to Proceed: A written notice to CONTRACTOR authorizing the
commencement of Work.
1.15 Plans Drawinqs and/or Specifications: The official graphic representations of this
Project which are a part of the Project Manual.
1.16 Proiect: The phased construction project described in the Contract Documents,
including the Work described therein.
General Conditions
5
1.17 Proiect Initiation Date: The date upon which the first Notice to Proceed is issued.
The Contract Time shall commence as of the date the second Notice to Proceed is
issued.
1.18 Subcontractor: A person, firm or corporation having a direct contract with
CONTRACTOR including one who furnishes material worked to a special design
according to the Project Manual for this work, but does not include one who merely
furnishes material not so worked.
1.19 Substantial Completion: The date certified by CONSULTANT when all conditions
and requirements of permits and regulatory agencies have been satisfied and the
CONSULTANT has certified the Work is sufficiently complete in accordance with
the Contract Documents so the Project is available for beneficial use by CITY. A
Certificate of Occupancy or Certificate of Completion must be issued for Substantial
Completion to be achieved; however, the issuance of a Certificate of Occupancy or
Certificate of Completion, or the date thereof, are not to be determinative of the
achievement or date of Substantial Completion.
1.20 Surety: The surety company or individual which is bound by the performance bond
and payment bond with and for CONTRACTOR who is primarily liable. and which
surety company or individual is responsible for CONTRACTOR'S acceptable
performance of the work under the contract and for the payment of all debts
pertaining thereto in accordance with Section 255.05, Florida Statutes.
1.21 Work: The construction and services required by the Contract Documents, whether
completed or partially completed, and includes all other labor, materials, equipment
and services provided or to be provided by Contractor to fulfill Contractor's
obligations. The Work may constitute the whole or a part of the Project.
ARTICLE 2
GENERAL PROVISIONS
2.1 Generally.
CONTRACTOR hereby agrees to furnish all of the labor, materials, equipment,
services and incidentals necessary to perform all of the work described in the
Contract Documents, and related thereto for the Project within the Guaranteed
Maximum Price (GMP).
2.2 Relationship of CITY and CONTRACTOR: The CONTRACTOR accepts the
relationship of trust and confidence established between it and the CITY by this
General Conditions
6
Agreement. The CONTRACTOR represents that it will furnish its best skill and
judgment in performing the Work, and shall always act to further the interest of the
CITY in the expeditious completion of the Project at the lowest cost to the CITY and
in strict accordance with the Contract Documents, and prudent and customary
construction practices.
By signing this Contract, the CONTRACTOR accepts a fiduciary duty with the CITY
and warrants and represents to the CITY that the CONTRACTOR (a) has all
licenses and certifications required by Applicable Law (defined as all federal, state
county, and local statutes, codes, laws, rules, regulations, ordinances, orders and
standards applicable to the Project and any other such law hereafter enacted, and
any rules adopted pursuant thereto, as all such laws may be amended from time to
time to perform the Work); (b) is experienced in all aspects of pre-construction and
construction planning for projects similar to the Project; (c) will act in the CITY'S
highest and best interests in performing the Work; and (d) that no employee or
affiliate of the CONTRACTOR, including all Subcontractors and suppliers, at any
tier, has been convicted of a public entity crime, fraud, theft and/or a property
damage crime within the preceding thirty-six (36) months from the time this Contract
is executed, pursuant to Section 287.133, Florida Statutes.
2.3 Intention of CITY: It is the intent of CITY to describe in the Contract Documents a
functionally complete Project to be constructed in accordance with the Contract
Documents and in accordance to all codes and regulations governing construction
of the Project. Any work, materials or equipment that may reasonably be inferred
from the Contract Documents as being required to produce the intended result shall
be supplied by Contractor whether or not specifically called for. When words which
have a well-known technical or trade meaning are used to describe work, materials
or equipment, such words shall be interpreted in accordance with that meaning.
Reference to standard specifications, manuals, or codes of any technical society,
organization or associations, or to the laws or regulations of any governmental
authority, whether such reference is specific or by implication, shall mean the latest
standard specification, manual, code or laws or regulations in effect at the time of
execution of this Contract. CITY shall have no duties other than those duties and
obligations expressly set forth within the Contract Documents.
2.4 The Contractor agrees that the Work shall be performed in a good and professional
manner, free from defects in materials and workmanship, in accordance with
applicable building codes, and that all Materials shall be new and approved by or
acceptable to the CONSULTANT AND CONTRACT ADMINISTRATOR, except as
otherwise expressly provided for in the Contract Documents. The CONTRACTOR
shall cause all Materials and other parts of the Work to be readily available as and
when required or needed for or in connection with the construction, furnishing and
equipping of the improvements.
General Conditions
-7-
ARTICLE 3
RESPONSIBILITIES OF CONTRACTOR GENERALLY
3.1 The CONTRACTOR shall perform the Work and complete the Project at or below
the GMP, in accordance with the Contract Documents, and shall achieve
Substantial Completion of the Work within the Contract Time. Completion of the
Work shall be achieved no later than thirty (30) calendar days after issuance of a
Certificate of Substantial Completion, as referenced by Articles 4.3 and 4.4 of the
Contract, and in accordance with the procedure defined in Article 15.
3.2 CONTRACTOR shall furnish efficient business administration, coordination,
management and supervision of Work required to complete the Project, and shall
cooperate with the CITY, CONSULTANT, the CONTRACT ADMINISTRATOR and
their respective representatives, in furthering the interests of CITY in the expeditious
completion of the Project at the lowest cost to CITY, consistent with the
requirements of the Contract Documents and prudent and customary construction
practices.
3.2.1 The CONTRACTOR shall perform the Work, and shall cause its
Subcontractors to perform the Work, in strict accordance with all Applicable
Laws, as defined in Article 2.2 herein. By signing this Agreement, the
CONTRACTOR represents and warrants that it is familiar with all Applicable
Laws that govern the Work.
3.2.2 If CONTRACTOR has knowledge that the Contract Documents do not
comply with Applicable Laws in any respect, the CONTRACTOR shall
promptly notify the CONSULTANT in writing and any necessary changes
shall be adjusted by appropriate revisions. If the CONTRACTOR performs
any Work not in accordance with Applicable Laws, and without such notice to
the CONSULTANT, the CONTRACTOR shall assume full responsibility
therefore and shall bear all costs attributable thereto.
3.2.3 In the event that Work is deemed by competent authority not to comply with
Applicable Law, the CONTRACTOR shall bring such Work into compliance
with Applicable Law. If the Applicable Law is enacted after the GMP is
established, and the CONTRACTOR had no reasonable prior knowledge of
such a change to Applicable Law, such change shall be considered an
unforeseeable and unavoidable cost and the CITY shall approve a Change
Order to bring such Work into compliance with Applicable Laws. New
interpretations of existing Applicable Law shall not be considered an
unforeseeable and unavoidable cost.
General Conditions
-8-
3.3 The CONTRACTOR warrants that it has thoroughly reviewed and studied the
Contract Documents and has determined that they are in conformance with
Applicable Laws (enacted as of the date of this Contract) and are complete and
sufficiently coordinated to perform the Work within the GMP and the Contract Time.
CONTRACTOR warrants that the Plans, Drawings and Specifications are
consistent, practical, feasible and constructible. CONTRACTOR further warrants
that the Work described in the Plans, Drawings and Specifications is constructible
within the GMP and the Contract Time.
THE CITY DISCLAIMS ANY WARRANTY THAT THE PLANS, DRAWINGS AND
SPECIFICATIONS FOR THE PROJECT ARE ACCURATE, PRACTICAL,
CONSISTENT, AND CONSTRUCTIBLE.
3.4 The CONTRACTOR accepts the Project site in its observable and/or documented
condition existing at the time of this Agreement or conditions ordinarily encountered
and generally recognized as inherent to the character of the Work to be provided for
in this Project. By signing this Contract, the CONTRACTOR represents that it has:
(a) visited the Project site to become familiar with the conditions under which the
Work is to be performed; (b) become familiar with all information provided by the
CITY pertaining to the Project site; and (c) correlated its observations with the
information furnished by the CITY, and the Contract Documents. The
CONTRACTOR hereby waives additional time or compensation for additional work
made necessary by observable and/or documented conditions existing at the
Project site, or conditions ordinarily encountered and generally recognized as
inherent to the character of the Work to be provided for in this Project, except for
significant environmental conditions requiring treatment, removal or remediation
which are not those already known by the CITY and transmitted to the
CONTRACTOR. Changes which may be deemed by CONTRACTOR to be beyond
the above described conditions shall be addressed separately and the
determination shall be made by the CONSULTANT and the CITY.
3.5 The CONTRACTOR agrees specifically that no Change Orders shall be required by
the CONTRACTOR or considered by the City for reasons involving conflicts in the
Contract Documents, questions of clarity with regard to the Documents,
incompatibility, or conflicts between the Documents and the existing Project site
conditions, utilities, and unforeseen underground conditions. The CONTRACTOR
acknowledges that it has ascertained all correct locations for points of connection
for all utilities, if any, required for this Project.
3.6 The CONTRACTOR shall, as may be required for the proper execution and
completion of the Work, secure all necessary permits and revisions thereto, fees
and licenses, as required by Applicable Laws to complete the Project, including, but
not omitted to, all necessary utility connection permits and fees.
General Conditions
-9-
3.7 The CONTRACTOR shall comply with all conditions of any permits issued by
government authorities.
ARTICLE 4
PROGRESS SCHEDULE
4.1 Within ten (10) calendar days after the date of issuance of the first Notice to
Proceed, the CONTRACTOR shall prepare and submit, for the CONSULTANT and
CONTRACT ADMINISTRATOR'S review and approval, the construction schedule of
the Project, utilizing the Critical Path Method (CPM) of scheduling (utilizing the
"Primavera Project Planner" scheduling software). In addition, the CONTRACTOR
shall periodically prepare and submit other necessary schedules (all of which are
hereinafter collectively referred to as the "Progress Schedule"). In the interest of
completing the Project in the most expeditious and economical manner, the
Progress Schedule shall indicate the start and completion dates of the various
stages of the Work and shall show an activity network for the planning and
execution of the Work. Included with the Progress Schedule shall be a narrative
description of the Schedule. As a condition precedent to any payment, the
CONTRACTOR shall update the Project Schedule at least monthly; such update
submitted as part of each Application for Payment and showing actual progress vs.
scheduled progress. Failure to provide such monthly updates will preclude the
CONTRACTOR from submitting a delay claim. The CONTRACTOR shall indemnify
the CITY from any subordinate delay claim. The Progress Schedule shall
encompass all of the work of all trades necessary for the construction of the Project
and shall be sufficiently complete and comprehensive to enable progress to be
monitored on a weekly basis.
4.2 In addition to the Progress Schedule, CONTRACTOR shall provide bi-weekly to the
CONSULTANT and CONTRACT ADMINISTRATOR a 2-week look-ahead schedule
denoting all activity to be performed; identifying all shop drawing submittal
responses that are needed for such activities; identifying the activities that need
testing and approval; and identifying the entity or authority responsible for such
testing. Shop drawing submittal requirements are set forth more specifically in
Article 7, and inspection and testing are addressed more specifically in Article 9.
4.3 Failure of the CONTRACTOR to update, revise, and submit the Project Schedule as
provided in this Article 4 shall be sufficient grounds for the CONSULTANT and the
CONTRACT ADMI NISTRA TOR to withhold payment to the CONTRACTOR until a
Schedule or Schedule update acceptable to the CONSULTANT and CONTRACT
ADMINISTRATOR is submitted.
General Conditions
-10-
4.4 The CITY reserves the right to require such information from the CONTRACTOR as
may be necessary to determine the accuracy of the Progress Schedule and any
updates thereto.
ARTICLE 5
SUPERINTENDENCE AND SUPERVISION
5.1 The orders of CITY are to be given through the CONTRACT ADMINISTRATOR,
which instructions are to be strictly and promptly followed in every way.
CONTRACTOR shall keep on the Project during its progress, a competent, English
speaking superintendent, and any necessary assistants, all satisfactory to the
CONSULTANT and CONTRACT ADMINISTRATOR. The superintendent shall not
be changed except with the written consent of CONTRACT ADMINISTRATOR,
unless the superintendent proves to be unsatisfactory to CONTRACTOR and
ceases to be in its employ. The superintendent shall represent CONTRACTOR and
all direction given to the superintendent shall be as binding as if given to
CONTRACTOR. CONTRACTOR shall give efficient supervision to the Work, using
its best skill and attention.
5.2 Daily, CONTRACTOR shall record, at a minimum, the following information in a
bound log: the day; date; weather conditions and how any weather condition
affected the progress of the Work; time of commencement of work for the day; the
work being performed; materials, labor, personnel, equipment and subcontractors at
the Project site; visitors to the Project site including CONTRACT ADMINISTRATOR
and CONSULTANT; any special or unusual conditions or occurrences encountered;
and the time of termination of work for the day. All information shall be recorded in
the daily log in ink. The daily log shall be kept on the Project site and shall be
available at all times for inspection and copying by CITY and CONSULTANT.
5.3 The CONTRACTOR, CONSULTANT and CONTRACT ADMINISTRATOR shall meet
at least once monthly, or as determined by the CONTRACT ADMINISTRATOR,
during the course ofthe Work to review and agree upon the work performed to date
and to establish the controlling items of work for the next month. The
CONTRACTOR shall publish, keep, and distribute minutes and any comments
thereto of each such meeting. Notwithstanding the foregoing, the CONTRACTOR
shall meet on a weekly basis with CONTRACT ADMINISTRATOR and
CONSULTANT'S inspector to review and agree upon the Work performed to date
and to establish the controlling items of work for the next week.
5.4 CONTRACTOR shall supervise and direct the Work competently and efficiently,
devoting such attention thereto and applying such skills and expertise as may be
necessary to perform the Work in accordance with the Contract Documents.
General Conditions
-11-
CONTRACTOR shall be solely responsible for the means, methods, techniques,
sequences and procedures of construction.
ARTICLE 6
CONSULTANT'S AUTHORITY
6.1 The CONSULTANT will provide overall technical and management services to
assist the CITY in maintaining schedules, establishing budgets, controlling costs,
achieving quality and minimizing operational disruptions.
6.2 If at any time the CONTRACT ADMINISTRATOR observes or becomes aware of
any fault or defect in the Project or of any nonconformance with the Contract
Documents, CONTRACT ADMINISTRATOR will notify the CONSULTANT, and will
direct that all reasonable steps be taken to correct such fault, defect or
nonconformance. The CONTRACT ADMINISTRATOR and CONSULTANT shall
have the authority to reject Work that does not conform to the Contract Documents.
6.3 CONSULTANT shall monitor the overall control and expediting of the construction
work to facilitate completion of the Work within the Guaranteed Maximum Price and
the Contract time.
6.4 CONSULTANT shall also be responsible for quality assurance of the construction
work in accordance with the construction and procurement contracts.
6.5 CONSULTANT shall monitor the work of CONTRACTOR and shall coordinate all
phases of its work to facilitate completion of the Project within the Guaranteed
Maximum Price and the Contract time.
6.6 CONSULTANT shall not have control over construction means, method, techniques,
sequences and procedures employed by CONTRACTOR in the performance ofthe
Work, but shall be responsible for using its best efforts to review, and if
unacceptable, disapprove such, and shall recommend a course of action to the
CITY when the requirements of the Contract are not being met.
6.7 The CONTRACT ADMINISTRATOR will be assisted by CONSULTANT in the areas
of on-site review of work in progress, review of pay applications submitted by the
CONTRACTOR, assisting in the interpretation of the intent of the Contract
Documents for the proper execution of the Work, and such other assistance as the
CONTRACT ADMINISTRATOR may request.
General Conditions
-12-
ARTICLE 7
SHOP DRAWINGS
7.1 CONTRACTOR shall submit Shop Drawings as required by Division 1 and the
Technical Specifications. The purpose of the Shop Drawings is to show the
suitability, efficiency, technique of manufacture, installation requirements, details of
the item, and evidence of its compliance or noncompliance with the Contract
Documents.
7.2. Within thirty (30) calendar days after the Project Initiation Date specified in the first
Notice to Proceed, CONTRACTOR shall submit to CONSULTANT and CONTRACT
ADMINISTRATOR a list of preliminary data on items for which Shop Drawings are
to be submitted and shall identify the critical items. Approval of this list ("the
Schedule of Submission") by CONSULTANT shall in no way relieve CONTRACTOR
from submitting complete Shop Drawings and providing materials, equipment, etc.,
fully in accordance with the Contract Documents. This procedure is required in order
to expedite final approval of Shop Drawings.
7.3 After the approval of the list of items required in Article 7.2 above, CONTRACTOR
shall promptly request Shop Drawings from the various manufacturers, fabricators,
and suppliers.
7.4 CONTRACTOR shall thoroughly review and check the Shop Drawings and each
and every copy shall show this approval thereon.
7.5 If the Shop Drawings show or indicate departures from the Contract requirements,
CONTRACTOR shall make specific mention thereof in its letter of transmittal.
Failure to point out such departures shall not relieve CONTRACTOR from its
responsibility to comply with the Contract Documents.
7.6 Provided such submittals are in conformance with approved Schedule of
Submission, CONSULTANT shall review and approve Shop Drawings within fifteen
(15) calendar days from the date received, unless said Drawings are rejected by
CONSULTANT for material reasons. CONSULTANT's approval of Shop Drawings
will be general and shall not relieve CONTRACTOR of responsibility for the
accuracy of such Drawings, nor for the proper fitting and construction of the work,
nor for the furnishing of materials or work required by the Contract Documents and
not indicated on the Drawings. No work called for by Shop Drawings shall be
performed until the said Drawings have been approved by CONSULTANT. Approval
shall not relieve CONTRACTOR from responsibility for errors or omissions of any
sort on the Shop Drawings.
General Conditions
-13-
7.7 No approval will be given to partial submittals of Shop Drawings for items which
interconnect and/or are interdependent where necessary to properly evaluate the
design. CONSULTANT will timely provide a list of interconnecting or interdependent
items; however, it is CONTRACTOR's responsibility to assemble the Shop Drawings
for all such interconnecting and/or interdependent items, check them and then make
one submittal to CONSULTANT along with its comments as to compliance,
noncompliance, or features requiring special attention.
7.8 If catalog sheets or prints of manufacturer's standard drawings are submitted as
Shop Drawings, any additional information or changes on such drawings shall be
typewritten or lettered in ink.
7.9 CONTRACTOR shall submit the number of copies required by CONSULTANT.
Resubmissions of Shop Drawings shall be made in the same quantity until final
approval is obtained.
7.10 CONTRACTOR shall keep one set of Shop Drawings marked with CONSULTANT's
approval at the job site at all times.
ARTICLE 8
FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS
8.1 The entire responsibility for establishing and maintaining line and grade in the field
lies with CONTRACTOR. CONTRACTOR shall maintain an accurate and precise
record of the location and elevation of all underground site utilities installed by
CONTRACTOR, including pipe lines, conduits, structures, manholes, hand holes,
fittings and the like which are sealed by a Professional Surveyor to enable
CONSULTANT to prepare record or "as-built" drawings of the same.
CONTRACTOR shall deliver these records in good order to CONSULTANT for
review as the Work is completed. The cost of all such field layout and recording
work is included in the prices bid for the appropriate items. All record drawings shall
be made on reproducible paper.
8.2 The CONTRACTOR shall maintain in a safe place at the Project site one record set
of the Contract Documents in good order and marked currently to record all
changes made during construction and an accurate and precise location of all
portions of the Work sufficient for the CONSULTANT to prepare accurate as-built
drawings. The CONTRACTOR shall cooperate with the CONSULTANT in the
preparation of accurate as-built drawings.
8.3 Prior to, and as a condition precedent to Final Payment, CONTRACTOR shall
submit to CONSULTANT for review CONTRACTOR'S record drawings or as-built
drawings acceptable to CONSULTANT. Upon acceptance by CONSULTANT said
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record drawings or as-built drawings shall be forwarded to CONTRACT
ADMINISTRATOR.
8.4 The CONTRACTOR shall deliver to CONSULTANT for delivery to the CITY three
(3) copies of all equipment data, along with its recommended spare parts list,
maintenance manuals, manufacturer's warranties and operations manuals as may
be required for the CITY employees or agents to maintain and operate any
equipment delivered as a part ofthe Work. Upon acceptance by CONSULTANT, all
spare parts list, maintenance, manuals, manufacturers' warranties and operation
manuals shall be forwarded to the CONTRACT ADMINISTRATOR at least thirty
(30) days prior to Substantial Completion.
ARTICLE 9
INSPECTION AND TESTING
9.1 CONSULTANT and CITY shall at all times have access to the Work, and
CONTRACTOR shall provide for use by the CONSULTANT facilities for such
access and for inspecting, measuring and testing.
9.1.1 Should the Contract Documents, CONSULTANT's instructions, any
applicable laws, or any public authority require any of the Work to be
specially tested or approved, CONTRACTOR, shall provide for OWNER and
update weekly for the CONSULTANT, in the two (2) week "look-ahead"
schedule, denoting all activities to be performed, and highlight those that
need testing and approval. If the testing or approval is to be made by an
authority other than CITY, timely notice shall be given of the date fixed for
such testing. Testing shall be made promptly, and where practicable, at the
source of supply. If any of the Work is covered up without approval or
consent of CONSULTANT, it must, if required by CONTRACT
ADMINISTRATOR, be uncovered for examination and properly restored
upon acceptance.
9.1.2 Reexamination of any of the Work may be ordered by CONTRACT
ADMINISTRATOR, and if so ordered, the Work must be uncovered by
CONTRACTOR. If such Work is found to be in accordance with the Contract
Documents, CITY shall pay the cost of re-examination, which may include
extended general conditions and associated time, and replacement by
means of a change order; provided CONTRACTOR substantiates to the
satisfaction of the CONTRACT ADMINISTRATOR that such re-examination
materially and adversely impacts Contract Time and is not an interim delay.
If such Work is not in accordance with the Contract Documents,
CONTRACTOR shall pay such cost as part of the GMP. This Article to those
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requests or rejections made by the Building Official or his staff regarding
issues related to compliance with Codes.
9.2 Inspectors shall have no authority to permit deviations from, nor to relax any of the
provisions of the Contract Documents nor to delay the Contract by failure to inspect
the materials and work with reasonable promptness without the written permission
or instruction of CONTRACT ADMINISTRATOR.
9.3 The payment of any compensation, whatever may be its character or form, or the
giving of any gratuity or the granting of any favor by CONTRACTOR to any
inspector, directly or indirectly, is strictly prohibited, and any such act on the part of
the CONTRACTOR will constitute a breach of this Contract.
ARTICLE 10
TAXES
10.1 CONTRACTOR shall pay all applicable sales, consumer, use and other taxes
required by law. CONTRACTOR is responsible for reviewing the pertinent state
statutes involving state taxes and complying with all requirements.
ARTICLE 11
PRIORITY OF PROVISIONS
11.1 The Contract Documents shall be interpreted so as to eliminate inconsistencies or
conflicts, but in the event of any conflict, requirements for greater quantity and/or
more expensive and/or extensive work shall govern.
11.2 I n case of conflicts between the provisions of this Contract, any ancillary documents
executed contemporaneously herewith or prior hereto, or any other of the Contract
Documents, the provisions ofthis Contract (including all Attachments, amendments
and exhibits) shall prevail, except as specifically provided in Article 1.4 of the
Contract.
11.3 Anything shown on the Plans and not mentioned in the Specifications or mentioned
in the Specifications and not shown on the Plans shall have the same effect as if
shown or mentioned respectively in both. In case of disagreement between the
written and graphic portions of the Contract Documents, the written portion shall
govern.
11.4 The organization of the Specifications into divisions and sections and the
arrangement of Plans shall not control CONTRACTOR in dividing the Work among
subcontractors or in establishing the extent of the Work to be performed by any
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trade. The organization of the Specifications and the arrangement of the Plans are
for the convenience of the CONTRACTOR and are not intended to relieve the
CONTRACTOR from its obligation to conduct a complete study of the Plans,
Specifications and Addenda for the purpose of prosecuting the Work and directing
the various Subcontractors and suppliers as to their respective responsibilities.
ARTICLE 12
CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
12.1 Without invalidating the Contract and without notice to any surety CITY reserves
and shall have the right, from time to time to make such increases, decreases or
other changes in the character or quantity of the Work as may be considered
necessary or desirable to complete fully and acceptably the proposed construction
in a satisfactory manner. Any extra or additional work within the scope of this
Project must be accomplished by means of appropriate Field Orders and
Supplemental Instructions or Change Orders.
12.2 Changes to the terms of the Contract Documents must be contained in a written
document, executed by the parties hereto, with the same formality and of equal
dignity prior to the initiation of any work reflecting such change. This section shall
not prohibit the issuance of Change Orders executed only by CITY as hereinafter
provided.
12.3 The actual cost of the Payment and Performance Bond shall be added to or
deducted from the cost of the changes in the Work.
12.4 Notification of ChanQe of Contract Time or Contract Price; Weather
12.4.1 Any claim for a change in the Contract Time or Contract Price shall be made
by written notice delivered by CONTRACTOR to the CONTRACT
ADM I N ISTRA TOR within five (5) calendar days of the commencement of the
event giving rise to the claim (which may include an occurrence or omission
that CONTRACTOR contends delays the Work, or receipt of an order,
instruction, CONSULTANT's supplemental information or other directive
changing the Work, or any other occurrence that CONTRACTOR contends
causes a change in Contract Time or Contract Price) and stating the general
nature of the claim. Notice of the nature and elements of the claim shall be
delivered within twenty (20) calendar days after the date of such written
notice. Thereafter, within twenty (20) calendar days ofthe termination of the
event giving rise to the claim, notice of the extent of the claim with supporting
data shall be delivered, unless CONSULTANT and CONTRACT
ADMINISTRATOR allows an additional period of time to ascertain more
accurate data in support of the claim, and shall be accompanied by
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CONTRACTOR's written statement that the adjustment claimed is the entire
adjustment to which the CONTRACTOR has reason to believe it is entitled
as a result of the occurrence of said event. All claims for adjustment in the
Contract Time or Contract Price shall be determined by CONSULTANT and
CONTRACT ADMINISTRATOR in accordance with Article 44 hereof, if
CONSULTANT, CONTRACT ADMINISTRATOR and CONTRACTOR cannot
otherwise agree. NO CLAIM FOR AN ADJUSTMENT IN THE CONTRACT
TIME OR CONTRACT PRICE WILL BE VALID UNLESS IT IS SUBMITTED
IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF THIS
SECTION.
12.4.2 The Contract Time will be extended in an amount equal to time lost due to
delays beyond the control of and through no fault, negligence, or act or
omission of CONTRACTOR if a claim is made therefore as required by the
Contract. Such delays shall include, but not be limited to, acts or neglect by
any separate contractor employed by CITY, fires, floods, labor disputes,
epidemics, abnormal weather conditions, acts of God, or acts of terrorism.
12.4.3 Extensions to the Contract Time for delays caused by the effects of
inclement weather shall be submitted as a request for change in Contract
Time pursuant to this Article 12. These time extensions are justified only
when rain or other inclement weather conditions or related adverse soil
conditions prevent CONTRACTOR from productively performing controlling
items of work; identified on the accepted schedule or updates resulting in:
(1) CONTRACTOR being unable to work at least fifty percent (50%) of the
normal work day on controlling items of work identified on the accepted
schedule or updates due to adverse weather conditions; or (2)
CONTRACTOR must make major repairs to the Work damaged by weather,
provided the damage was not attributable to a failure or neglect by
CONTRACTOR, and provided that CONTRACTOR was unable to work at
least fifty percent (50%) of the normal work day on controlling items of work
identified on the accepted schedule or approved updates. No time
extension will be allowed for weekend rains unless the CONTRACTOR has
been working weekends on a regular basis on exterior Work.
12.4.4 The CONTRACTOR agrees and acknowledges that no ground for an
extension to the Contract Time or Contract Price shall arise as a result of
any reasonably foreseeable condition at the Project site, or as a result of
anything contained in the Contract Documents.
12.5 ChanQe Orders
12.5.1 Changes in the quantity or character of the Work within the scope of the
Project which are not properly the subject of Field Orders or Supplemental
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Instructions, including all changes resulting in changes in the Contract Price,
or the Contract Time, shall be authorized only by Change Orders approved
and issued by CITY.
12.5.2 The CONSULTANT, as authorized by the CONTRACT ADMINISTRATOR,
may initiate a change order request ("Change Order Request"), setting forth
in detail the nature of the requested change. Upon receipt of a Change
Order Request, the CONTRACTOR shall review the change order request
with the CONSULTANT and CONTRACT ADMINISTRATOR prior to
furnishing to the CONSULTANT a statement setting forth in detail, with a
suitable detailed breakdown in CSI format, including a breakdown of labor
and materials, the CONTRACTOR's estimate of the changes in the Cost of
the Work and changes to any other Contract Price elements attributable to
the changes set forth in such Change Order Request, and proposed
adjustments, if any, to the Contract Time resulting from such Change Order
Request. If the CONTRACT ADMINISTRATOR accepts such
CONTRACTOR's estimate, a Change Order shall be processed by the CITY
and delivered to the CONTRACTOR for execution. Agreement on any
Change Order shall constitute a final settlement on all items affected
therein, including without limitation any adjustment in the Cost of the Work,
CONTRACTOR's fee, Guaranteed Maximum Price, or the Contract Time,
subject to performance thereof and payment therefore pursuant to the terms
of this Contract and such Change Order.
12.5.3 The CONTRACTOR's fee on such changes shall be a percentage ofthe net
change to the Cost of the Work resulting from the Change Order, not to
exceed five and one half percent (5.5%).
Subcontractor's percentage markup on change orders for overhead and
profit shall be reasonable, but in no event shall the aggregate of the
subcontractor's overhead and profit markups exceed seven 7% of the
subcontractor's cost of the Work. In the event subcontractor is affiliated
with the CONTRACTOR by common ownership or management, or is
effectively controlled by the CONTRACTOR, no fee will be allowed on the
subcontractor's costs. In the event there is more than one level of
subcontractor, such as second and third tier subcontractors, the sum of all
of the subcontractors' percentage markups for overhead and profit shall not
in the aggregate exceed ten 10% of the cost of the Work. Subcontractor's
cost of the Work shall be determined in accordance with Article 19, hereof.
12.5.4 CONTRACTOR shall not start work on any alteration requiring an increase in
the Contract Price or the Contract Time until a Change Order setting forth
the adjustments is approved by the CITY unless there is an immediate need
to perform the work to maintain the Project Schedule. If there were such a
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need, the CONTRACT ADMINISTRATOR will issue direction to perform the
work on the basis of a preliminary estimate provided by the Ga\lTRACTOR
and approved by the CONSULTANT. Upon receipt of a Change Order
CONTRACTOR shall promptly proceed with the work set forth within the
document.
12.5.5In the event satisfactory adjustment cannot be reached for any item requiring
a change in the Contract Price or Contract Time, and a Change Order has
not been issued, CITY reserves the right at its sole option to either
terminate the Contract as it applies to the items in question and make such
arrangements as may be deemed necessary to complete the disputed
work; or submit the matter in dispute to CONSULTANT and CONTRACT
ADMINISTRATOR as set forth in Article 44, hereof. During the pendency
of the dispute, and upon receipt of a Change Order, CONTRACTOR shall
promptly proceed with the change in the Work involved and advise the
CONSULTANT and CONTRACT ADMINISTRATOR in writing within five
(5) calendar days of CONTRACTOR's agreement or disagreement with the
method, if any, provided in the Change Order for determining the proposed
adjustment in the Contract Price or Contract Time.
12.5.6 Upon approval of any Contract change increasing the Contract Price,
CONTRACTOR shall ensure that the Performance Bond and Payment
Bond are increased so that each reflects the total Contract Price as
increased.
12.5.7 Change Orders may be issued unilaterally by CITY.
12.5.8 The Contractor hereby waives any claim not made with a timely request for
a Change Order.
12.5.9 After the GMP has been established, no Change Order shall be approved
in the case where the CONTRACTOR encounters a Construction
Document discrepancy and has failed to foresee and/or coordinate any
conditions in the Work, including conflicts between documents, plans and
specifications and the existing Project site conditions, utilities, and
unforeseen underground conditions, except for those related to possible
contaminated soil within the Project site, which will cause an increase to
the Contract Price and the Contract Time, especially in view of the
responsibilities and obligations of the CONTRACTOR established in the
Agreement for pre-construction services.
12.5.10 No change in the GMP shall be allowed for delays caused by labor disputes
and strikes specific to the Project, or for other delay caused by the
CONTRACTOR or its Subcontractors or suppliers of any tier.
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12.5.11 The CONTRACTOR waives all claims for additional time or additional
compensation for Work performed without a written Change Order, unless
as stated in Article 12.5.4.
12.5.12 DUTY TO CONTINUE WORK. The CONTRACTOR agrees that,
regardless of the pendency of any claim for additional compensation or
time, the CONTRACTOR shall continue to execute all Work. The
CONTRACTOR shall take all reasonable measures to minimize the effect
of the pendency of a claim.
12.5.13 PERMIT ADJUSTMENT. Should a material discrepancy be found between
the Bid Documents and the Permit Documents, and provided only that said
discrepancy result from the regulatory review of any agency that has
regulatory authority over the permitting process, the CITY shall issue a
Change Order to the CONTRACTOR.
12.6 Field Orders and Supplemental Instructions
12.6.1 The CONSULTANT and CONTRACT ADMINISTRATOR shall have the
right to approve and issue Field Orders setting forth written interpretations
of the intent of the Contract Documents and ordering minor changes in
Work execution, provided the Field Order involves no change in the
Contract Price or Contract time.
12.6.2 CONSULTANT and CONTRACT ADMINISTRATOR shall have the right to
approve and issue Supplemental Instructions setting forth written orders,
instructions, or interpretations concerning the Contract or its performance,
provided such Supplemental Instructions involve no change in the Contract
Price or Contract Time.
ARTICLE 13
DIFFERING SITE CONDITIONS:
13.1 No equitable adjustment to the Contract shall be allowed for CONTRACTOR and no
change to Contract Price or Contract Time, in the event that during the course of the
Work CONTRACTOR encounters an existing condition that was not shown on the
Contract Documents; or subsurface or concealed conditions at the Project site
which differ materially from those shown on the Contract Documents and from those
ordinarily encountered and generally recognized as inherent in work of the character
called for in the Contract Documents; or unknown physical conditions of the Project
site, of an unusual nature, which differ materially from that ordinarily encountered
and generally recognized as inherent in work of the character called for in the
Contract Documents.
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ARTICLE 14
EXCUSABLE DELAY: COMPENSABLE & NON COMPENSABLE
14.1 Excusable Delay: Delay which extends the completion of the Work and which is
caused by circumstances beyond the control of CONTRACTOR or its
Subcontractors, material persons, suppliers, or vendors is Excusable Delay.
CONTRACTOR is entitled to a time extension of the Contract Time for each day the
Work is delayed due to Excusable Delay. CONTRACTOR shall document its claim
for any time extensions as provided in Article 12 hereof.
Failure of CONTRACTOR to comply with Article 12 hereof as to any particular
event of delay shall be deemed conclusively to constitute a waiver,
abandonment or relinquishment of any and all claims resulting from that
particular event of delay.
Excusable Delay may be compensable or non-compensable.
(a) Compensable Excusable Delay. Excusable Delay is compensable
only when (i) the delay extends the Contract Time; (ii) is caused by
circumstances beyond the control of the CONTRACTOR or its Subcontractors,
material providers, suppliers or vendors except for differing site; and (iii) is
caused solely by fraud, bad faith or active interference on the part of CITY or its
agents. In no event shall CONTRACTOR be compensated for interim delays
which do not extend the Contract Time.
CONTRACTOR shall be entitled to direct and indirect costs for Compensable
Excusable Delay. Direct costs recoverable by CONTRACTOR shall be limited
to the actual additional costs allowed pursuant to Article 17 hereof.
CITY and CONTRACTOR recognize and agree that the amount of
CONTRACTOR's precise actual indirect costs for delay in the performance and
completion of the Work is impossible to determine as of the date of execution of
the Contract Documents, and that proof of the precise amount will be difficult.
Therefore, indirect costs recoverable by the CONTRACTOR shall be liquidated
on a daily basis for each day the Contract Time is delayed due to a
Compensable Excusable Delay. These liquidated indirect costs shall be paid to
compensate CONTRACTOR for all indirect costs caused by a Compensable
Excusable Delay and shall include, but not be limited to, all profit on indirect
costs, home office overhead, acceleration, loss of earnings, loss of productivity,
loss of bonding capacity, loss of opportunity and all other indirect costs
recoverable shall be One Thousand Five Hundred and 00/100 ($1,500.00) per
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day for each day the Contract is delayed due to a Compensable Excusable
Delay.
(b) Non-Compensable Excusable Delay. When Excusable Delay is (i)
caused by circumstances beyond the control of CONTRACTOR, its
subcontractors, material persons, suppliers and vendors, and is also caused by
circumstances beyond the control of the CITY or CONTRACT
ADM I N I STRA TOR or CONSULTANT, or (ii) is caused jointly or concurrently by
CONTRACTOR or its subcontractors, material persons, suppliers or vendors
and by the CITY or CONTRACT ADMINISTRATOR or CONSULTANT, then
CONTRACTOR shall be entitled only to a time extension and no further
compensation for the delay.
ARTICLE 15
SUBSTANTIAL COMPLETION DATE
15.1 When CONTRACTOR considers that the Work, or portion thereof designated by
CITY pursuant to Article 16 hereof, has reached Substantial Completion,
CONTRACTOR shall so notify CITY, CONTRACT ADMINISTRATOR and
CONSULTANT in writing. CONTRACT ADMINISTRATOR and CONSULTANT shall
then promptly inspect the Work. When CONTRACT ADMINISTRATOR and
CONSULTANT, on the basis of such an inspection, determine that the Work or
designated portion thereof is substantially complete, CONSULTANT will then
prepare a Certificate of Substantial Completion form, which shall establish the Date
of Substantial Completion and; shall state the responsibilities of CITY and
CONTRACTOR for security, maintenance, utilities, damage to the Work, and
insurance; and shall list all work yet to be completed ("Punch List") to satisfy the
requirements of the Contract Documents for Final Completion and shall establish
time for completion of all such final work. The failure to include any items of
corrective work on such list does not alter the responsibility of CONTRACTOR to
complete all of the Work in accordance with the Contract Documents. Warranties
required by the Contract Documents shall commence on the date of Substantial
Completion of the Work or designated portion thereof unless otherwise provided in
the Certificate of Substantial Completion. The Certificate of Substantial Completion
shall be submitted to CITY through the CONTRACT ADMINISTRATOR, after
execution by CONTRACTOR and CONSULTANT, indicating their written
acceptance of the responsibilities assigned to them in such Certificate. The time
frame for liquidated damages shall not commence and thus shall be tolled until the
CONTRACT ADMINISTRATOR submits the Punch List to the CONTRACTOR.
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ARTICLE 16
USE OF COMPLETED PORTIONS
16.1 CITY shall have the right at its sole option to take possession of and use any
completed or partially completed portions of the Project. Such possession and use
shall not be deemed an acceptance of any of the Work not completed in
accordance with the Contract Documents. If such possession and use increases
the cost of or delays the Work, CONTRACTOR shall be entitled to reasonable extra
compensation, or reasonable extension of time or both, by appropriate adjustment
pursuant to Article 14 hereof.
16.2 In the event CITY takes possession of any completed or partially completed
portions of the Project, the following shall occur:
16.2.1 CITY shall give notice to CONTRACTOR in writing at least thirty (30)
calendar days prior to CITY's intended occupancy of a designated area.
16.2.2 CONTRACTOR shall complete to the point of Substantial Completion
the designated area and request inspection and issuance of a Certificate
of Substantial Completion from CONSULTANT.
16.2.3 Upon CONSULTANT's issuance of a Certificate of Substantial
Completion, CITY will assume full responsibility for maintenance,
utilities, subsequent damages of CITY and public, adjustment of
insurance coverages and start of warranty for the occupied area.
16.2.4 CONTRACTOR shall complete all items noted on the Certificate of
Substantial Completion within the time specified by on the Certificate of
Substantial Completion, as soon as possible and request final
inspection and final acceptance of the portion of the Work occupied.
Upon completion of final inspection and receipt of an application for
final payment, CONTRACT ADMINISTRATOR and CONSULTANT
shall issue a Final Certificate of Payment relative to the occupied area.
16.2.5 If CITY finds it necessary to occupy or use a portion or portions of the
Work prior to Substantial Completion thereof, such occupancy or use
shall not commence prior to a time mutually agreed upon by CITY and
CONTRACTOR and to which the insurance company or companies
providing the property insurance have consented by endorsement to
the policy or policies. Insurance on the unoccupied or unused portion
or portions shall not be canceled or lapsed on account of such partial
occupancy or use. Consent of CONTRACTOR and of the insurance
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company or companies to such occupancy or use shall not be
unreasonably withheld.
ARTICLE 17
COST OF THE WORK
17.1 The term "Cost of the Work" shall mean the sum of all direct costs necessarily and
reasonably incurred and paid by the CONTRACTOR in the performance of the
Work. Such costs shall be at rates not higher than those customarily paid in the
locality of the Project except with the prior written consent of CITY. The Cost of the
Work shall include only those items set forth in this Article 17.1, and shall not
include any items listed in Article 17.2.
17.1.1 Subcontractor Costs:
(a) Where the work is covered by unit prices contained in the
Contract Documents or an applicable subcontract, by application of
unit prices to the quantities of items involved. If the quantity of any
item of subcontractor work that is covered by a unit price is increased
or decreased by more than twenty percent (20%) from the quantity of
such work indicated in the Contract Documents, an appropriate
Change Order may be issued to adjust the unit price, if warranted.
(b) By mutual acceptance of a lump sum which subcontractor,
CONTRACTOR and CITY acknowledge contains a component for
overhead and profit, which shall be subject to the limitation of
subcontractor fees set forth in Article 12.5.3. Whenever a change in
subcontractor work is to be based on mutual acceptance of a lump
sum, whether the amount is an addition, credit or no change-in-cost,
CONTRACTOR shall submit an initial cost estimate obtained from the
subcontractor and acceptable to CONSULTANT and CONTRACT
ADMINISTRATOR. The breakdown shall list the quantities and unit
prices for materials, labor, equipment and other items of cost.
Whenever a change involves more than one subcontractor and the
change is an increase in the GMP, overhead and profit percentage of
each subcontractor and CONTRACTOR, if applicable, shall be
itemized separately.
(c) If the subcontract provides that the subcontractor is to be paid
on the basis of cost of the work plus a fee, the subcontractor's cost of
the work shall be determined in the same manner as
CONTRACTOR's cost of the work, subject to the limitation on
subcontractor's fees set forth in Article 12.5.3.
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(d) If changes to subcontracted work affect the GMP, such
changes shall be accomplished in accordance with Article 12.
"Change Orders." The amount of decrease in the Guaranteed
Maximum Price (GMP) for any change which results in a net decrease
in cost, will be the amount of the actual net decrease. When both
additions and decreases are involved in anyone change, the
combined affect shall be figured on the basis ofthe net change in the
GMP, if any.
(e) Payment for subcontractor costs may include payment for
materials delivered to the Project site and stored for later
incorporation into the Work, provided the CONTRACTOR provides to
the CONSULTANT and CONTRACT ADMINISTRATOR a detailed
invoice for such materials including the description, quantities, activity
number and reference to the approved Schedule of Values, copies of
vendors' invoices totaling the amount requested and releases of lien
from such vendors, as well as a Bill of Sale from the CONTRACTOR
to the CITY for the stored materials.
17.1.2 CONTRACTOR'S Labor Costs: Payroll costs for employees in the
direct employ of CONTRACTOR in the performance of the work
described in the Contract, as set forth in Attachment IV, attached
hereto. Payroll costs for employees not employed full time on the
work covered by the Contract shall be apportioned on the basis of
their time spent on the work. Payroll costs shall include salaries and
wages plus the labor burden to cover cost of fringe benefits which
shall include social security contributions, unemployment, excise and
payroll taxes, and workers' compensation. Payroll costs and the
above-referenced labor burden rates shall exclude costs of any
insurance that may be provided by the CITY.
17.1.3 Materials and Equipment: Cost of all materials and equipment
furnished and incorporated in the Work, including costs of
transportation and storage thereof, and manufacturers' field services
required in connection therewith, adjusted in accordance with Article
18, pertaining to discounts, rebates or refunds, if applicable; rentals of
all construction equipment and machinery and the parts thereof
whether rented from CONTRACTOR or others in accordance with
rental agreements and the costs oftransportation, loading, unloading,
installation, dismantling and removal thereof, all in accordance with
the terms of said agreements. Payment may be made for materials
delivered to the Project site and stored for later incorporation into the
Work, provided the CONTRACTOR provides to the CONSULTANT
and CONTRACT ADMINISTRATOR a detailed invoice for such
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materials including the description, quantities, activity number and
reference to the approved Schedule of Values, copies of vendor's
invoices totaling the amount requested and releases of lien from such
vendors as well as a Bill of Sale from the CONTRACTOR to the CITY
for the stored materials.
17.1.4 Miscellaneous costs:
(a) The receipted cost of telephone, telegrams, postage,
photographs, blueprints, office supplies, first aid supplies and related
miscellaneous costs reasonably incurred in direct support of the Work
at the Project Location.
(b) Premiums (Net) on bonds and insurance, including subcontractor
bonds, if any, that the CONTRACTOR is obligated to secure and
maintain under the terms of the Contract Documents and such other
insurance and bonds as may be required, subject to the written
approval of the CITY. Premiums paid as part of Contractor's Cost
shall be net of trade discounts, volume discounts, dividends and other
adjustments. All insurance and bonds shall be provided by
companies acceptable to the CITY. Self insurance by the
CONTRACTOR or insurance through any affiliates of CONTRACTOR
shall not be permitted without the CITY's prior written approval.
CITY's approval shall not be required on subcontractor bonds, and
premiums thereof shall be considered a Cost of the Work.
(c) The cost of obtaining and using any utility services required for
the Work that are not paid directly by CITY, including fuel and sanitary
services at the Project site.
(d) The cost of removal of debris from the site. The Project site,
lay-down locations, and staging sites will be kept clear of all debris on
a daily basis. All subcontracts shall require subcontractors to
promptly (no less than weekly) remove all debris created by their
activities, and the CONTRACTOR shall exercise its best efforts to
enforce such requirements or to effect the removal of the debris of the
subcontractors who fail in this regard. Provided, however, the
CONTRACTOR shall not be required to remove debris created by the
CITY's separate contractors except pursuant to Change Order
procedures set forth herein.
(e) The cost and expenses, actually sustained by the
CONTRACTOR in connection with the Work, of protecting and
repairing adjoining property, if required, except to the extent that any
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such cost or expense is the responsibility of the CONTRACTOR
under Article 20, reimbursable by insurance or otherwise; due to the
failure of the CONTRACTOR to comply with the requirements of the
Contract Documents with respect to insurance; or, due to the failure of
any officer of the CONTRACTOR or of any of its representatives
having supervision or direction of the Work to exercise good faith or
the standard of care normally exercised in the conduct of the business
of a general contractor experienced in the performance of work of the
magnitude, complexity and type encompassed by the Contract
Documents, in any of which events any such expenses shall not be
included in CONTRACTOR's costs.
(f) Federal, state, municipal, sales, use and other taxes, as
applicable to the Project, all with respect to services performed or
materials furnished for the Work, it being understood that none of the
foregoing includes federal, state or local income or franchise taxes.
(g) All reasonable costs and expenditures necessary for the
operation ofthe Project job site office, including cost offield computer
equipment and software.
(h) The proportion of necessary transportation, travel and
subsistence expenses of CONTRACTOR's employees, excluding
travel time, incurred in discharge of duties connected with the Work,
provided that any travel or subsistence expenses must be approved in
advance by the CONTRACT ADMINISTRATOR and shall be
reimbursable only in accordance with Section 112.061, Florida
Statutes. Any cost or expense of local travel to and from the site of
the Work shall not be reimbursable as Cost of the Work.
(i) Cost, including transportation and maintenance, of all
materials, supplies, equipment, machinery, appliances, office and
temporary facilities at the site and hand tools not owned by the
workers, which are consumed in the performance of the work, and
cost less market value of such items used but not consumed which
remain the property of CONTRACTOR.
(j) Deposits lost for causes other than CONTRACTOR's
negligence; royalty payments and fees for permits and licenses.
(k) Cost of premiums for additional bonds and insurance required
because of changes in the work.
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(I) Cost of shuttling employees to and from the job site to the
designated parking and/or staging area, if required.
(m) Cost of special consultants, including, but not limited to,
engineers, architects, testing laboratories, surveyors, lawyers and
accountants, employed for services specifically related to the Work, if
approved in advance by the CONTRACT ADMINISTRATOR.
(n) Any other expenses or charges incurred, with the prior written
approval ofthe CONTRACT ADMINISTRATOR, in the performance of
the Work.
17.2 "Overhead" is defined as any and all other costs, not referenced in Article 17.1, of
the CONTRACTOR and its operation which are not in direct support of the Project.
The CONTRACTOR agrees to furnish and perform, as a part of the Contractor's
Fee and without reimbursement, said overhead items which include, but are not
limited to, the following materials and services. The term "Cost of the Work" shall
not include any of the following:
17.2.1
Payroll costs and other compensation of CONTRACTOR's officers,
executives, principals (of partnership and sole proprietorship), general
managers, engineers, architects, estimators, lawyers, auditors,
accountants, purchasing and contracting agents, expediters,
timekeepers, clerks and other personnel employed by CONTRACTOR
whether at the site or in its principal or a branch office for general
administration that are not specifically included in the agreed-upon
schedule of job classifications referred to in Attachment IV or identified
as necessary labor on Attachment IV, all of which are to be considered
administrative costs covered by CONTRACTOR's fee.
17.2.2 Any part of CONTRACTOR'S capital expenses, including interest on
CONTRACTOR'S capital employed for the Work and charges against
CONTRACTOR for delinquent payments.
17.2.3 Other overhead, general expense costs or charges of any kind and the cost
of any item not specifically and expressly included in Article 17.1.
17.2.4 Costs in excess of the Guaranteed Maximum Price.
17.2.5 Entertainment and meal expenses and charges of a personal nature.
17.2.6 Bonuses, profit-sharing or other special labor charges not included in Article
17.1, above.
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17.2.7 Any outside legal fees incurred without prior written approval from the CITY
Attorney's Office.
17.2.8 All costs associated with the selection process, response to the Request for
Letters of Interest, and attendance at any presentations, meetings or
negotiation sessions prior to execution of this Agreement.
ARTICLE 18
DISCOUNTS, REBATES AND REFUNDS
18.1 All cash discounts obtained on payments made by the CONTRACTOR shall accrue
to the CITY unless the CONTRACTOR actually advanced its own funds, prior to
receipt of funds from CITY, to make the payment giving rise to the discount. When
CONTRACTOR becomes aware that a cash discount may be available to CITY,
CONTRACTOR shall, prior to advancing its own funds, notify CONTRACT
ADMINISTRATOR of such opportunity so CITY can make the required payment to
achieve the discount for the CITY. CONTRACTOR shall only advance its own
funds if CITY declines to make the early payment. All trade discounts, rebates and
refunds, and all returns from sale of surplus materials and equipment shall accrue to
CITY, and CONTRACTOR shall make provisions so that they may be obtained.
ARTICLE 19
SUBCONTRACT REQUIREMENTS
19.1 On all subcontracts where the bid exceeds $100,000, the CITY may require the
CONTRACTOR to require that its subcontractors provide a 100% performance bond
and a 100% labor and material payment bond from a surety company authorized to
do business in the State of Florida by the Department of Insurance. If the
CONTRACTOR wishes to award subcontracts to contractors unable to supply this
bonding, he must obtain prior written consent of the Contract Administrator, which
consent shall not be withheld unreasonably. The CONTRACTOR can submit a letter
to the CITY at the pre-construction meeting establishing clearly which sub-
contractors will be furnishing a bond and which will not. The absence of sub-
contractors bond does not free the CONTRACTOR from its obligation to the CITY
under the CONTRACTOR'S performance and payment bonds.
19.2 Workforce - The subcontractor must agree to perform no less than 10% of the
assigned Project construction work utilizing its own employees.
19.3 Subcontractor experience - The subcontractor must have successfully completed
no less than two projects of similar size and complexity within the last five years.
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19.4 Supervision - the subcontractor must agree to provide field (on-site) supervision
through a named superintendent for each trade (general concrete forming and
placement, masonry, mechanical, plumbing, electrical and roofing) included in the
subcontract. In addition, the subcontractor shall assign and name a qualified
employee for scheduling direction for its work. The supervisory employees of the
subcontractor (including field superintendent, foreman and schedulers at all levels)
must have been employed in a supervisory (leadership) capacity of substantially
equivalent level on a similar project for at least two years within the last five years.
The subcontractor shall include a resume of experience for each employee
identified by him to supervise and schedule his work.
19.5 All subcontracts shall provide:
19.5.1 LIMITATION OF REMEDY - NO DAMAGES FOR DELAY
That the subcontractor's exclusive remedy for delays in the
performance of the contract caused by events beyond its control,
including delays claimed to be caused by the CITY or CONSULTANT
or attributable to the CITY or CONSULTANT and including claims
based on breach of contract or negligence, shall be an extension of its
contract time.
In the event of a change in the work, the subcontractor's claim for
adjustments in the contract sum are limited exclusively to its actual
costs for such changes plus no more than 10% for overhead and
profit and bond costs.
Each subcontract shall require the subcontractor to expressly agree
that the foregoing constitute the sole and exclusive remedies for
delays and changes in the work and thus eliminate any other
remedies for claim for increase in the contract price, damages, losses
or additional compensation. The CONTRACTOR must enter into
Agreements with the sub-contractors that clearly delineate and accept
this responsibility by the sub-contractors.
19.5.2 Each subcontract shall require that any claims by subcontractor for
delay or additional cost must be submitted to CONTRACTOR within
the time and in the manner in which the CONTRACTOR must submit
such claims to the CITY, and that failure to comply with the conditions
for giving notice and submitting claims shall result in the waiver of
such claims.
19.5.3 Each subcontract shall include a provision stating that the subcontract
is assignable to the CITY in the event of a termination of all or part of
the Contract. Said assignment shall be at the sole option and
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discretion of the CITY and, if agreed to by CITY shall be upon the
same terms and conditions as the original subcontract, unless
otherwise mutually negotiated by CITY and subcontractor.
19.5.4 Responsibilities for Acts and Omissions - The CONTRACTOR shall
be responsible to the CITY for the acts and omissions of his
employees and agents and his subcontractors, their agents and
employees, and all other persons performing any of the work or
supplying materials under a contract to the CONTRACTOR.
19.5.5 Subcontracts to be provided. The CONTRACTOR shall include a
copy of each subcontract, including the general supplementary
conditions, in the Project Manual.
ARTICLE 20
INSURANCE REQUIREMENTS
20.1 CONTRACTOR shall secure, pay for and, except as otherwise provided herein,
maintain at all times until all of CONTRACTOR'S work to be performed under this
Contract is completed and accepted by CITY, the insurance specified below.
20.2 Insurance Coverage shall, at a minimum, be as follows:
20.2.1 Workers Compensation Insurance/Emplovers Liabilitv. Workers'
Compensation and Employers Liability shall be provided pursuant to
and as required by Florida Statutes.
20.2.2 Primary Liabilitv Insurance. Primary liability insurance in a form
providing coverage not less than a Commercial General Liability
insurance policy having minimum limits of One Million Dollars
($1,000,000) per occurrence combined single limit for bodily injury
liability and property damage liability and will include:
[x] Employees;
[x] Premises and/or operations;
[x] Independent contractors;
[x] Completed Operations, which shall remain in force for a period
of at least three (3) years after completion of all work required
under the Contract;
[x] Explosion, Collapse and Underground Coverage;
[x] Broad Form Property Damage;
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[x] Broad Form Contractual Coverage applicable to this specific
contract, including any hold harmless and/or indemnification
agreement;
[x] Personal Injury Coverage with Employee and Contractual
Exclusions removed, with minimum limits of coverage equal to
those required for Bodily Injury Liability and Property Damage
Liability.
20.2.3 Business Automobile Liabilitv. Business Automobile Liability with
minimum limits of One Million Dollars ($1,000,000) from the
CONTRACTOR, per occurrence, combined single limit for Bodily
Injury Liability and Property Damage Liability. Coverage shall be
afforded on a form no more restrictive than the latest edition of the
Business Automobile Liability policy, without restrictive endorse-
ments, as filed by the Insurance Services Office, and must include
owned and non-owned vehicles.
20.2.4 Excess Liability Insurance. Excess liability insurance shall be
provided with minimum limits of Five Million Dollars ($5,000,000).
20.2.5 Builder's Risk insurance with a minimum limit of Five Million Dollars
($5,000,000) covering the materials, equipment and supplies that
are intended for specific installation in the Project. Coverage will
be on an "All Risks" basis, subject to policy exclusions, including
coverage against fire, lightning, wind damage, hail, explosion, riot
or civil commotion, aircraft and other vehicles, collapse, water
damage, theft, flood and earthquake. The insurance described in
this Article 20.2.5 will not cover tools or clothing of workers, or any
tools, equipment, protective fencing, scaffolding, staging, towers
and forms owned or rented by CONTRACTOR or any
su bcontractors.
20.2.6 All insurance policies must be provided by Insurance Carriers
licensed and approved to conduct business in the State of Florida
with an A.M. Best rating of B+ VI or more.
20.2.7 All insurance policies (excluding Workers' Compensation /
Employers Liability) shall name the CITY as an additional
insured.
20.3 CONTRACTOR Obliqations. CONTRACTOR shall not violate or knowingly permit
to be violated any conditions of the policies of insurance provided under the terms
of this Contract and shall at all times satisfy the requirements of the insurance
companies issuing them.
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CONTRACTOR shall assist and cooperate in every manner possible in connection
with the adjustment of all claims arising out of their performance of the Work or
portion of the Work, and shall cooperate with CITY, its insurance representative
and/or insurance carrier(s) with the adjustment, settlement, mediation or litigation of
all said claims, court proceedings and/or participation in settlement conferences as
may be required.
20.4 CONTRACTOR Insurance. CONTRACTOR shall at all times until all of
CONTRACTOR'S work to be performed under this Contract is completed and
accepted by CITY, provide and maintain insurance of the type and in limits as set
forth. Ifthe initial insurance expires prior to the completion ofthe Project, renewal or
replacement policies shall be furnished at least thirty (30) days prior to the date of
expiration. The policy(ies) must be endorsed to provide CITY with at least thirty (30)
days written notice of cancellation and/or restriction.
20.4.1 CONTRACTOR shall furnish to the CONTRACT ADMINISTRATOR
Certificates of Insurance or endorsements evidencing the insurance
coverage required by this Article within fifteen (15) calendar days after
notification of award of the Contract or within fifteen (15) calendar days after
execution of the Contract, whichever is later. The Certificates of Insurance
shall name the types of policies provided, refer specifically to this Contract,
state that such insurance is as required by the Contract, and name the
additional insured herein.
20.4.2 The legal name of the CITY is "City of Miami Beach, Florida" which name
shall be used in all insurance documentation.
20.4.3 CONTRACTOR shall require all policies of insurance provided pursuant to
this Article 20 to include clauses providing that each underwriter shall waive
all of its rights of recovery, under subrogation or otherwise, against CITY, the
CONTRACTOR and all subcontractors.
20.5 SubroQation and Waiver. CONTRACTOR hereby waives, and shall require all its
subcontractors to waive, all rights of recovery against CITY, the Mayor and City
Commissioners, its officers, agents and employees, which rights of recovery
CONTRACTOR may have or may acquire pursuant to deductible clauses in, or
inadequacy of limits of, any policies of insurance that are in any way related to the
Work and that are secured by CONTRACTOR.
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ARTICLE 21
INDEMNIFICATION
21.1 CONTRACTOR shall indemnify and hold harmless CITY, its officers, agents, and
employees, from liabilities, damages, losses and costs, including, but not limited to
reasonable attorney's fees, to the extent caused by the negligence, recklessness or
intentional wrongful misconduct of CONTRACTOR and persons employed or
utilized by CONTRACTOR in the performance of this Contract. Except as
specifically provided herein, this Agreement does not require CONTRACTOR to
indemnify CITY, its employees, officers, or agents from any liability, damage, loss,
claim, action, or proceeding. These indemnifications shall survive the term of this
Contract. In the event that any action or proceeding is brought against CITY by
reason of any such claim or demand, CONTRACTOR shall, upon written notice
from CITY, resist and defend such action or proceeding by counsel satisfactory to
CITY.
21.2 The indemnification provided above shall obligate CONTRACTOR to defend at its
own expense to and through appellate, supplemental or bankruptcy proceeding, or
to provide for such defense, at CITY'S option, any and all claims of liability and all
suits and actions of every name and description covered by Article 20 that may be
brought against CITY or persons employed or utilized by CONTRACTOR.
ARTICLE 22
PERFORMANCE AND PAYMENT BOND AND QUALIFICATIONS OF SURETIES
22.1 Within fifteen (15) calendar days of being notified of the award, CONTRACTOR
shall furnish a Performance Bond and a Payment Bond.
22.2 Each Bond shall be in the amount of one hundred percent (100%) of the portion of
the Contract Price allocable to the Project Phase to be constructed, guaranteeing to
CITY the completion and performance of the work covered in such Phase of the
Contract as well as full payment of all suppliers, material providers, laborers, or
subcontractors employed pursuant to this Project. Each Bond shall be with a surety
company which is qualified pursuant to Article 22.5.3.
22.3 Each Bond shall continue in effect for one year after final completion and
acceptance of each respective Phase of the Work and up to an including
completion of the warranty period, with liability equal to one hundred percent (100%)
of the allocated portion of said Phase.
22.4 Pursuant to the requirements of Section 255.05(1 )(a), Florida Statutes, as may be
amended from time to time, CONTRACTOR shall ensure that the bond(s)
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referenced above shall be recorded in the public records of Miami-Dade County
and provide CITY with evidence of such recording.
22.5 Qualification of Surety
22.5.1 Each bond must be executed by a surety company of recognized standing,
authorized to do business in the State of Florida as surety, having a resident
agent in the State of Florida and having been in business with a record of
successful continuous operation for at least five years.
22.5.2 The surety company shall hold a current certificate of authority as acceptable
surety on Federal bonds in accordance with United States Department of
Treasury Circular 570, Current Revisions. If the amount of the Bond
exceeds the underwriting limitation set forth in the circular, in order to qualify,
the net retention of the surety company shall not exceed the underwriting
limitation in the circular, and the excess risks must be protected by coinsur-
ance, reinsurance, or other methods in accordance with Treasury Circular
297, revised September 1,1978 (31 CFR Section 223.10, Section 223.111).
Further, the su rety company shall provide CITY with evidence satisfactory to
CITY, that such excess risk has been protected in an acceptable manner.
22.5.3 The CITY will accept a surety bond from a company with a rating of A (Class
4) or better for bonds up to $10 million, provided, however, that if any surety
company appears on the watch list that is published quarterly by Intercom of
the Office of the Florida Insurance Commissioner, the CITY shall review and
either accept or reject the surety company based on the financial information
available to the CITY. A surety company that is rejected by the CITY may be
substituted by the bidder or proposer with a surety company acceptable to
the CITY, only if the bid amount does not increase.
Amount of Bond
Policyholder's
Ratinqs
Financial Size
CateQorv
500,001 to 1,000,000
1,000,001 to2,OOO,000
2,000,001 to 5,000,000
5,000,001 to 10,000,000
10,000,001 to 25,000,000
25,000,001 to 50,000,000
50,000,001 or more
B+
B+
A
A
A
A
A
Class I
Class II
Class III
Class IV
Class V
Class VI
Class VII
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ARTICLE 23
INDEPENDENT CONTRACTOR
23.1 In performing its obligations hereunder, the CONTRACTOR shall be deemed an
independent contractor and not an agent or employee of the CITY. The CONTRACTOR
shall be solely responsible for and have control over construction means, methods,
techniques, sequences and procedures and for coordinating all portions of the Work
under this Contract, unless the Contract Documents give other specific instructions
concerning these matters.
ARTICLE 24
INSPECTION OF WORK
24.1 As to means and methods, the CONTRACTOR represents that it has inspected the
location or locations of the Work and has satisfied itself as to the condition thereof and
that the Guaranteed Maximum Price is just and reasonable compensation for all Work,
including all foreseen or reasonably foreseeable risks, hazards and difficulties in
connection therewith.
24.2 The CITY, its CONTRACT ADMINISTRATOR, and the CONSULTANT at all times shall
have access to the Work for inspection thereof, but shall not be obligated to conduct any
such inspection. The CONTRACTOR shall provide proper and safe facilities for such
access and inspection by the CITY, its CONTRACT ADMINISTRATOR and
CONSULTANT. If any of the Work is required to be inspected or approved by any public
authority, the CONTRACTOR shall cause such inspection or approval to be performed.
24.3 No inspection performed or failed to be performed by the CITY, its CONTRACT
ADMINISTRATOR or the CONSULTANT hereunder shall be a waiver of any of the
CONTRACTOR's obligations hereunder or be construed as an approval or acceptance of
the Work or any part thereof.
24.4. The CONTRACTOR shall check all materials and labor entering into the Work and shall
keep such full and detailed accounts as may be necessary to determine the Contractor's
Cost.
ARTICLE 25
PROJECT RECORDS
25.1 CITY or its designee shall have the right to inspect and copy the books and records
and accounts of CONTRACTOR and all subcontractors including but not limited to
books, records, correspondence, instructions, drawings, receipts, payment records,
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vouchers, and memoranda which relate in any way to the Project, and to any claim
for additional compensation made by CONTRACTOR, and to conduct an audit of
the financial and accounting records of CONTRACTOR which relate to the Project
and to any claim for additional compensation made by CONTRACTOR.
CONTRACTOR shall preserve and make available to CITY all financial records,
supporting documents, statistical records and any other documents which relate to
the Project and to any claim for the required retention period of the Florida Public
Records Act (Chapter 119, Fla. Stat.), if applicable, and, if the Public Records Act is
not applicable, for a period of three (3) years following final completion of the
Project. During the Project and for the appropriate records retention period,
CONTRACTOR shall provide CITY access to its books and records at
CONTRACTOR's usual place of business upon seventy-two (72) hours written
notice. If any audit has been initiated and audit findings have not been resolved at
the end of the retention period or three (3) years, whichever is longer, the books,
records and accounts shall be retained until resolution of the audit findings. If the
Florida Public Records Act (Chapter 119, Fla. Stat.) is determined by CITY to be
applicable to CONTRACTOR's records, CONTRACTOR shall comply with all
requirements thereof. Any incomplete or incorrect entry in such books, records and
accounts shall be a basis for CITY's disallowance and recovery of any payment
upon such entry.
25.2 CONTRACTOR's records shall include, but not be limited to, accounting records
(hard copy, as well as computer readable data), written policies and procedures;
subcontractor files (including proposals of successful and unsuccessful bidders and
bid recaps), original estimates, estimating work sheets, correspondence, change
order files (including, but not limited to, documentation covering negotiated
settlements), back charge logs and supporting documentation, general ledger
entries detailing cash and trade discounts earned, insurance rebates and dividends
and any other supporting evidence deemed necessary by the CITY to substantiate
charges related to the Contract Documents (all of the foregoing hereinafter referred
to as "records").
25.3 CONTRACTOR shall require all subcontractors, insurance agents and material
suppliers (payees) to keep and maintain comparable records for the same time
period and to permit the CITY to review, inspect and audit such records.
CONTRACTOR shall include such requirements in all written subcontracts and
purchase orders issued.
25.4 If an audit inspection or other examination by the CITY or the CITY's
representatives in accordance with this Article, discloses overcharges (of any
nature) by the CONTRACTOR to the CITY in excess of one (1 %) percent of the
total billings, the cost of the CITY's audit (whether performed by the CITY or outside
auditors) shall be reimbursed or paid to the CITY by the CONTRACTOR. Any
adjustments and/or payments which must be made as a result of any such audit,
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inspection or examination of the CONTRACTOR's invoices and/or records shall be
made within a reasonable amount of time (not to exceed thirty (30) days) from
presentation of the CITY's findings to the CONTRACTOR.
ARTICLE 26
SURVEY
26.1 Concurrent with the Final Request for Payment, the CONTRACTOR shall furnish
final surveys of As-Built conditions in electronic file, AUTOCAD 2000 format utilizing
CAD Standards, as designated by the CONSULTANT, in addition to three (3) sets
of hard copy, showing the exact locations of all structures and underground site
utilities installed by CONTRACTOR, including all water, sewer, gas, fuel, telephone,
security and electric lines and main, and locations of all easements for such utilities
then existing. Such surveys shall be prepared by a licensed Professional Land
Surveyor who shall certify that the Work is installed and erected entirely upon the
Project location and within the building restriction lines, if any, and does not
overhang or encroach upon any easement or right-of-way of others.
ARTICLE 27
TITLE TO WORK
27.1 Immediately upon delivery of material to the Project site or the performance of any
part of the Work, as between the CONTRACTOR and the CITY, title thereof shall
vest in the CITY; provided, however, the vesting of such title shall not impose any
obligations on the CITY or relieve the CONTRACTOR from any of its obligations
hereunder.
ARTICLE 28
WORK IN PROGRESS
28.1 The CONTRACTOR shall protect and prevent damage to all phases of the Work,
and any existing facilities or improvements, including but not limited to the protection
thereof from damage by the elements, theft or vandalism.
28.2 The CITY reserves the right to perform work related to the Project with its own
personnel and to award separate contracts in connection with other portions of the
Project. The CONTRACTOR shall cooperate and coordinate its Work with the work
of the CITY or said separate contractor. The CONTRACTOR shall afford the CITY
and any of the CITY's separate contractor's reasonable access to the Work for
storage of material and equipment and for the prosecution of their work and shall
connect and coordinate its Work with theirs as far as is reasonably inferable from the
Contract Documents.
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ARTICLE 29
OCCUPATIONAL HEALTH AND SAFETY
29.1 In compliance with Chapter 442, Florida Statutes, any toxic substance listed in
Section 38F-41.03, Florida Administrative Code, delivered as a result of this Project
must be accompanied by a Material Safety Data Sheet (MSDS) which may be
obtained from the manufacturer. The MSDS must include the following information:
29.1.1 The chemical name and the common name of the toxic substance.
29.1.2 The hazards or other risks in the use of the toxic substance, including:
29.1.2.1
The potential for fire, explosion, corrosion, and reaction;
29.1.2.2 The known acute and chronic health effects of risks from
exposure, including the medical conditions which are generally recognized as
being aggravated by exposure to the toxic substance; and
29.1.2.3
The primary routes of entry and symptoms of overexposure.
29.1.3 The proper precautions, handling practices, necessary personal protective
equipment, and other safety precautions in the use of or exposure to the
toxic substances, including appropriate emergency treatment in case of
overexposure.
29.1.4 The emergency procedure for spills, fire, disposal, and first aid.
29.1.5 A description in lay terms of the known specific potential health risks posed
by the toxic substance intended to alert any person reading this information.
29.1.6 The year and month, if available, that the information was compiled and the
name, address, and emergency telephone number of the manufacturer
responsible for preparing the information.
29.2 The CONTRACTOR agrees that it shall not knowingly transport to, use, generate,
dispose of, or install at the Project site any Hazardous Substance, (as defined in
Section 29.5), except in accordance with applicable Environmental Laws. Further,
in performing the work, the CONTRACTOR shall not knowingly cause any release
of hazardous substances into, or contamination of, the environment, including the
soil, the atmosphere, any water course or ground water, except in accordance with
applicable Environmental Laws.
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29.3 In the event the CONTRACTOR encounters on the Project site any Hazardous
Substance, or what the CONTRACTOR reasonably believes to be a Hazardous
Substance, and which is being introduced to the Work, or exists on the Project
Location, in violation of any applicable Environmental Laws, the CONTRACTOR
shall immediately stop work in the area affected and report the condition to the
CONSULTANT in writing. The Work in the affected area shall not thereafter be
resu med except by written authorization of the CONSULTANT if in fact a Hazardous
Substance has been encountered and has not been rendered harmless.
29.4 The CONTRACT ADMINISTRATOR may direct the CONTRACTOR to remediate
and/or render harmless the Hazardous Substance in accordance with any
applicable permits then in existence, but the CONTRACTOR shall not be required to
remediate and/or render harmless the Hazardous Substance absent such direction.
If the CONTRACTOR is not so directed, CONTRACTOR shall not be required to
resume work in any area affected by the Hazardous Substance until such time as
the Hazardous Substance has been remediated and/or rendered harmless.
29.5 For purposes of this Contract, the term "Hazardous Substance" shall mean and
include, but shall not be limited to, any element, constituent, chemical, substance,
compound or mixture, which are defined in or included under or regulated by any
local, state or federal law, rule, ordinance, by-law, or regulation pertaining to
environmental regulation, contamination, clean-up or disclosure, including, without
limitation, The Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), The Resource Conservation and Recovery Act
("RCRA"), The Toxic Substances Control Act ("TSCA"), The Clean Water Act
("CWA"), The Clean Air Act ("CAA"), and The Marine Protection Research and
Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state
superlien or environmental clean-up or disclosure statutes including all state and
local counterparts of such laws (all such laws, rules and regulations being referred
to collectively as "Environmental Laws"). It is the CONTRACTOR's responsibility to
comply with this Article 20 based on the law in effect at the time its services are
rendered and to comply with any amendments to those laws for all services
rendered after the effective date of any such amendments.
ARTICLE 30
CITY LICENSES PERMITS AND FEES
30.1 All permit fees payable to the City of Miami Beach shall be waived.
30.2 Occupational Licenses must be in effect as required by Chapter 205, Florida
Statutes, and must be submitted within fifteen (15) days of execution of this
Contract.
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Licenses, permits and fees which may be required by the State of Florida, State
Agencies or by other local governmental entities are not included in the above.
30.3 The CONTRACTOR shall be responsible for obtaining all necessary licenses,
building and other permits, and similar authorizations from governmental authorities
required or necessary to perform its obligations hereunder, and shall give all notices
required by, and otherwise comply with, all applicable laws, ordinances, rules,
regulations and restrictions.
ARTICLE 31
PERSONNEL
31.1 All personnel used or employed by the CONTRACTOR and subcontractors in the
performance of the Work shall be qualified by training and experience to perform
their assigned tasks. At the request of the CITY, the CONTRACTOR shall not use
in the performance of the Work any personnel deemed by the CITY to be
incompetent, careless, unqualified to perform the work assigned to that person, or
otherwise unsatisfactory to the CITY.
31.2 The CONTRACTOR agrees that in the performance of the Work called for by this
Contract, it will employ only such labor, and engage subcontractors that employ only
such labor, as will not delay or interfere with the speedy and lawful progress of the
Project, and as will be acceptable to and work in harmony with all other workers
employed on the Project site or on any other building, structure, or other
improvement which the CONTRACTOR or any other contractor may then be
erecting or altering on behalf of the CITY.
The CONTRACTOR agrees that it shall not employ any labor that will interfere with
labor harmony at the Project site or with the introduction and storage of materials
and the execution of work by other contractors or by subcontractors.
31.3 CONTRACTOR shall furnish the CONTRACT ADMINISTRATOR, on request,
resumes of CONTRACTOR'S key personnel involved in the day-to-day work on the
Project.
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ARTICLE 32
CONTRACTOR'S WARRANTIES
32.1 CONTRACTOR warrants to CITY that all materials and equipment under this
Contract will be new unless otherwise specified and that all of the Work will be of
good quality, free from faults and defects and in conformance with the Contract
Documents. All Work not conforming to these requirements, including substitutions
not properly approved and authorized, may be considered defective. If required by
CONSULTANT, CONTRACTOR shall furnish satisfactory evidence as to the kind
and quality of materials and equipment. This warranty is not limited by the
provisions of Article 33 herein.
32.2 The CONTRACTOR further represents and warrants: That it is financially solvent,
able to pay its debts as they mature, and is possessed of sufficient working capital
to perform this Contract; that it is able to furnish the Materials, and Services; that it
is experienced in and competent to perform the Work contemplated by this
Contract; and it is qualified to do the Work herein and is authorized to do business
in the state in which the Project is located; that the CONTRACTOR holds a license,
permit or other special license to perform the services included in this Contract, as
required by law, or employs or works under the general supervision of the holder of
such license, permit or special license; that the Work shall be constructed in a good
and proficient manner, free from defects, and in strict compliance with the Contract
Documents.
ARTICLE 33
DEFECTIVE WORK
33.1 CONSULTANT and CONTRACT ADMINISTRATOR shall have the authority to
reject or disapprove work which CONSULTANT and CONTRACT
ADMINISTRATOR find to be defective. If required by CONSULTANT and
CONTRACT ADMINISTRATOR, CONTRACTOR shall promptly either correct all
defective work or remove such defective work and replace it with nondefective work.
CONTRACTOR shall pay all direct, indirect and consequential costs of such
removal or corrections including cost of testing laboratories and personnel. Such
costs shall be included in the GMP.
33.2 Should CONTRACTOR fail or refuse to remove or correct any defective work or to
make any necessary repairs in accordance with the requirements of the Contract
Documents within the time indicated in writing by CONSULTANT and CONTRACT
ADMINISTRATOR, CITY shall have the authority to cause the defective work to be
removed or corrected, or make such repairs as may be necessary at
CONTRACTOR's expense. Any expense incurred by CITY in making such
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removals, corrections or repairs, shall be paid for out of any monies due or which
may become due to CONTRACTOR and deducted from the GMP, or may be
charged against the Performance Bond. In the event offailure of CONTRACTOR to
make all necessary repairs promptly and fully, CITY may declare a default.
33.3 If, within one (1) year after the date of Final Completion of each Phase, or such
longer period of time as may be prescribed by the terms of any applicable special
warranty required by the Contract Documents, any of the Work is found to be
defective or not in accordance with the Contract Documents, CONTRACTOR, after
receipt of written notice from CITY, shall promptly correct such defective or
nonconforming Work within the time specified by CITY without cost to CITY, to do
so. Nothing contained herein shall be construed to establish a period of limitation
with respect to any other obligation which CONTRACTOR might have under the
Contract Documents hereof and any claim regarding latent defects.
33.4 Failure to reject any defective work or material shall not in any way prevent later
rejection when such defect is discovered, or obligate CITY to final acceptance.
33.5 The CONTRACTOR shall (i) replace any part of the Work that fails to conform with
the requirements of the Contract Documents that appear during progress of the
Work on the Project; (ii) remedy any defects in the Work due to faulty materials or
workmanship which appear within a period of (1) year from the time of Final
Completion of each Phase of the Work hereunder or within such longer period of
time as may be set forth in the Plans, Specifications and Addenda or other Contract
Documents or as may be required by law; and (iii) replace, repair or restore any
parts of the Project or furniture, fixtures, equipment or other items placed therein
(whether by the CITY or any other party) that are injured or damaged by any such
parts of the Work that do not conform to the requirements of the Contract
Documents or are due to defects in the Work. The provisions of this Article shall not
apply to corrective work attributable solely to the acts of omissions of any separate
contractor or su bcontractor of the CITY unless the CONTRACTOR is acting in such
capacity or capacities. The cost to the CONTRACTOR of performing any of its
obligations under this Article shall be within the Guaranteed Maximum Price. The
CONTRACTOR's responsibility to make repairs and redo work under this Article, is
in addition to the CONTRACTOR's responsibility to the CITY for any other damages
of any kind for which the CONTRACTOR would be legally responsible.
33.6 If the CITY and the CONTRACTOR deem it inexpedient to require the correction of
work damaged or not performed in accordance with the Contract Documents, an
equitable deduction from the Guaranteed Maximum Price shall be made by
agreement between the CONTRACTOR and the CITY. Until such settlement, the
CITY may withhold such sums as the CITY deems just and reasonable from
moneys, if any, due the CONTRACTOR. If no moneys are held by the CITY,
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reimbursement shall be made to the CITY within thirty (30) days by the
CONTRACTOR.
33.7 The CONTRACTOR's express warranty herein shall be in addition to, and not in lieu
of, any other warranties or remedies the CITY may have under this Contract, at law,
or in equity for defective Work.
ARTICLE 34
SIGNAGE
34.1 Any requirements for a Project sign shall be as set forth within the Technical
Specifications section.
34.2 All construction signage, including, but not limited to that appearing on tower cranes
and other construction equipment located at the Project Location, shall be subjectto
the prior written approval of the CONTRACT ADMINISTRATOR. The
CONTRACTOR recognizes that all signage may be disallowed, in the CONTRACT
ADMINISTRATOR's sole discretion, and that existing signage or advertising on
construction equipment, field officers, trailers, construction fences, etc., may be
required to be masked or deleted, all at no cost or expense to the CITY. Such
signage will be considered an overhead expense pursuant to Article 17.2 and shall
not be included within the Cost of the Work.
ARTICLE 35
PUBLIC ENTITY CRIMES ACT
35.1 In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes),
a person or affiliate who is a contractor, consultant or other provider, who has been
placed on the convicted vendor list following a conviction for a Public Entity Crime
may not submit a bid on a contract to provide any goods or services to CITY, may
not submit a bid on a contract with CITY, may not submit a bid on a contract with
the CITY for the construction or repair of a public building or public work, may not
submit bids on leases of real property to CITY, may not be awarded or perform work
as a contractor, supplier, subcontractor, or consultant under a contract with CITY,
and may not transact any business with CITY in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for category two purchases for a
period of 36 months from the date of being placed on the convicted vendor list.
Violation of this section by CONTRACTOR shall result in termination of this
Contract, and may result in debarment from CITY's competitive procurement
activities.
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ARTICLE 36
OWNERSHIP OF CONTRACT DOCUMENTS
36.1 Any and all reports, photographs, surveys, Plans, Specifications, detail drawings
and other drawings prepared or created in connection with the Project are and shall
remain the property of the CITY and are not to be used by the CONTRACTOR on
any other project and shall be relinquished to the CITY at Final Completion or upon
termination, in the requested form or format, through delivery of same to the
CONSULTANT within ten (10) days after receipt of written notice, whether finished
or unfinished, provided, however, that the CONTRACTOR may maintain one record
set of as-built drawings, if applicable. CITY may withhold any payments then due to
CONTRACTOR until CONTRACTOR complies with the provisions of this section.
ARTICLE 37
ASSIGNMENT
37.1 The CONTRACTOR shall not assign this Contract or subcontract it as a whole
without the prior written consent of the CITY; nor shall the CONTRACTOR assign
any monies due or to become due to it hereunder, without the previous written
consent of the CITY.
ARTICLE 38
NONDISCRIMINATION. EQUAL EMPLOYMENT OPPORTUNITY AND
AMERICANS WITH DISABILITIES ACT:
38.1 CONTRACTOR shall not unlawfully discriminate against any person in its
operations and activities in its use or expenditure of the funds or any portion of the
funds provided by this Contract and shall affirmatively comply with all applicable
provisions of the Americans with Disabilities Act (ADA) in the course of providing
any services funded in whole or in part by CITY, including Titles I and II of the ADA
(regarding nondiscrimination on the basis of disability), and all applicable
regulations, guidelines, and standards.
CONTRACTOR's decisions regarding the delivery of services under this Contract
shall be made without regard to or consideration of race, age, religion, color,
gender, sexual orientation (City of Miami Beach Human Rights Ordinance), national
origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lawfully used as a basis for service delivery.
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CONTRACTOR shall not engage in or commit any discriminatory practice in
violation of the City of Miami Beach Human Rights Ordinance in performing any
services pursuant to this Contract.
CONTRACTOR shall comply with Title I of the Americans with Disabilities Act
regarding nondiscrimination on the basis of disability in employment and further
shall not discriminate against any employee or applicant for employment because of
race, age, religion, color, gender, sexual orientation, national origin, marital status,
political affiliation, or physical or mental disability. In addition, CONTRACTOR shall
take affirmative steps to ensure nondiscrimination in employment against disabled
persons. Such actions shall include, but not be limited to, the following:
employment, upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff, termination, rates of pay, other forms of compensation, terms and conditions
of employment, training (including apprenticeship), and accessibility.
CONTRACTOR shall take affirmative action to ensure that applicants are employed
and employees are treated without regard to race, age, religion, color, gender,
sexual orientation, national origin, marital status, political affiliation, or physical or
mental disability during employment. Such actions shall include, but not be limited
to, the following: employment, upgrading, demotion, transfer, recruitment or
recruitment advertising, layoff, termination, rates of pay, other forms of
compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
ARTICLE 39
WAIVER
39.1 No consent or waiver, express or implied, by either party to this Contract to or of any
breach or default by the other in the performance of any obligations hereunder shall
be deemed or construed to be a consent or waiver to or of any other or future
breach or default by such party hereunder, nor deemed to be a modification of this
Contract. Failure on the part of any party hereto to complain of any act or failure to
act of the other party or to declare the other party in default hereunder, irrespective
of how long such failure continues, shall not constitute a waiver of the rights of such
party hereunder. Inspection by, payment by or tentative approval or acceptance by
the CITY, or the failure of the CITY to perform any inspection hereunder, shall not
constitute a final acceptance of the Work or any part thereof and shall not release
the CONTRACTOR from any of its obligations hereunder.
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ARTICLE 40
CONSTRUCTION OF TERMS
40.1 Unless the context clearly intends to the contrary, words singular or plural in number
shall be deemed to include the other and pronouns having masculine or feminine
gender shall be deemed to include the other. The term "person" shall be deemed to
include an individual, corporation, unincorporated organization, partnership, trust,
government and governmental agency or subdivision, as the context shall require.
ARTICLE 41
CAPTIONS
41.1 The captions used for the Articles in this Contract are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope of
the intent of this Contract or any Article hereof.
ARTICLE 42
ENTIRE AGREEMENT: SEVERABILITY; AMENDMENTS
42.1 The Contract Documents incorporate and include all prior negotiations,
correspondence, conversations, agreements, and understandings applicable to the
matters contained herein and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of the Contract that
are not contained in the Contract Documents. Accordingly, the parties agree that no
deviation from the terms hereof shall be predicated upon any prior representations
or agreements, whether oral or written. It is further agreed that no modification,
amendment or alteration in the terms or conditions contained herein shall be
effective unless contained in a written document in accordance with Article 12
above. In the event any provision of the Contract shall be found by a court of
competent jurisdiction to be invalid or otherwise unenforceable, the remainder of
this Contract shall not be affected thereby and each remaining provision, term,
covenant or condition of the Contract shall continue to be effective.
ARTICLE 43
CITY'S RIGHT TO TERMINATE CONTRACT
43.1 If CONTRACTOR fails to begin the Work within five (5) calendar days after the
Project Initiation Date, as defined in Article 4.2 of the Contract, or fails to perform
the Work with sufficient workers and equipment or with sufficient materials to insure
the prompt completion of the Work, or shall perform the Work unsuitably, or cause it
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to be rejected as defective and unsuitable, or shall discontinue the prosecution of
the Work pursuant to the accepted schedule or if CONTRACTOR shall fail to
perform any material term set forth in the Contract Documents or if CONTRACTOR
shall become insolvent or be declared bankrupt, or commit any act of bankruptcy or
insolvency, or shall make an assignment for the benefit of creditors, or from any
other cause whatsoever shall not carry on the Work in an acceptable manner, CITY
may give notice in writing to CONTRACTOR and its Surety of such delay, neglect or
default, specifying the same. If CONTRACTOR, within a period often (10) calendar
days after such notice, shall not proceed in accordance therewith, then CITY may
upon written certificate from CONTRACT ADMINISTRATOR of the fact of such
delay, neglect or default and CONTRACTOR's failure to comply with such notice,
terminate the services of CONTRACTOR, exclude CONTRACTOR from the Project
site, and take the prosecution of the Work out of the hands of CONTRACTOR, and
appropriate or use any or all materials and equipment on the Project site as may be
suitable and acceptable. In such case, CONTRACTOR shall not be entitled to
receive any further payment until the Project is completed. In addition CITY may
enter into an agreement for the completion of the Project according to the terms and
provisions of the Contract Documents, or use such other methods as in CITY's sole
opinion shall be required for the completion of the Project according to the terms
and provisions of the Contract Documents, or use such other methods as in CITY's
sole opinion shall be required for the completion of the Project in an acceptable
manner. All damages, costs and charges incurred by CITY, together with the costs
of completing the Project, shall be deducted from any monies due or which may
become due to CONTRACTOR. In case the damages and expenses so incurred by
CITY shall exceed the unpaid balance, then CONTRACTOR shall be liable and
shall pay to CITY the amount of said excess.
43.2 If after notice of termination of CONTRACTOR's right to proceed, it is determined
for any reason that CONTRACTOR was not in default, the rights and obligations of
CITY and CONTRACTOR shall be the same as if the notice of termination had been
issued pursuant to the Termination for Convenience clause as set forth in Section
43.3 below.
43.3 This Contract may be terminated for convenience in writing by CITY upon ten (10)
days written notice to CONTRACTOR (delivered by certified mail, return receipt
requested) of intent to terminate and the date on which such termination becomes
effective. In such case, CONTRACTOR shall be paid for all work executed and
expenses incurred prior to termination in addition to termination settlement costs
reasonably incurred by CONTRACTOR relating to commitments which had become
firm prior to the termination. Payment shall include reasonable profit for
work/services performed. No payment shall be made for profit for work/services
which have not been performed.
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43.4 Upon receipt of Notice of Termination pursuant to Sections 43.2 or 43.3 above,
CONTRACTOR shall promptly discontinue all affected work unless the Notice of
Termination directs otherwise and deliver or otherwise make available to CITY all
data, drawings, specifications, reports, estimates, summaries and such other
information as may have been required by the Contract Documents whether com-
pleted or in process.
ARTICLE 44
RESOLUTION OF DISPUTES
44.1 To address all disputes and litigation, it is agreed by the parties hereto that
CONSULTANT (relative to the technical interpretation of the Contract Documents)
and the CONTRACT ADMINISTRATOR (relative to the character, quality, amount
and value of any work done and materials furnished, or proposed to be done or
furnished under or, by reason of, the Contract Documents) shall decide all
questions, claims, difficulties and disputes of whatever nature which may arise as to
fulfillment of this Contract ("Claims"), and such parties' estimates and decisions
upon all Claims shall be final and binding to the extent provided in Article 44.2. Any
Claim which cannot be resolved by mutual agreement of CONTRACT
ADMINISTRATOR, CONSULTANT and CONTRACTOR shall be dealt with in the
manner provided in Article 44.2 below.
44.2 In the event the determination of a Claim under this Article is unacceptable to any of
the parties hereto, the party objecting to the determination must notify the other
party in writing within ten (10) days of receipt of the written determination. The
notice must state the basis of the objection and must be accompanied by a
statement that any Contract Price adjustment claimed is the entire adjustment to
which the objecting party has reason to believe it is entitled to as a result of the
determination. Within sixty (60) days after Final Completion of the Work, the parties
shall participate in mediation to address all objections to any mediator mutually
agreed upon by the parties. Should any objection not be resolved in mediation, the
parties retain all their legal rights and remedies provided under State law. If a party
objecting to a determination fails to comply in strict accordance with the
requirements of this Article, said party specifically waives all of its rights provided
hereunder, including its rights and remedies under State law.
44.3 Pending resolution of any Claim arising under this Contract, other than termination
hereof, the CONTRACTOR shall proceed diligently with performance of this
Contract and the CITY shall continue to make payments in accordance with the
Contract.
ARTICLE 45
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OTHER TERMS & CONDITIONS
45.1 DruQ Free Workplace: It is a requirement of CITY that it enter into contracts only
with firms that certify the establishment of a drug free work place in accordance with
the Miami Beach City Code. Execution of this Contract by CONTRACTOR shall
also serve as CONTRACTOR's required certification that it either has or that it will
establish a drug free work place in accordance with Chapter 21.31 (a) of the Miami
Beach City Code.
45.2 Hurricane Precautions
45.2.1 During such periods of time as are designated by the United States Weather
Bureau as being hurricane warning or alert, the CONTRACTOR, at no cost to
the CITY, shall take all precautions necessary to secure the Project site,
regardless of whether the CITY orthe CONTRACT ADMINISTRATOR have
given notice of same.
45.2.2 Compliance with any governmental agency hurricane warning or alert
precautions at the Project site which trigger the need for preparations to
secure the site in accordance to paragraph 45.2.1 will not be considered as
an increase in the Contract price and shall not generate additional costs to
the CITY.
45.2.3 Suspension of the Work caused by a threatened or actual storm event,
regardless of whether the CITY orthe CONTRACT ADMINISTRATOR has
directed such suspension, will entitle the CONTRACTOR to additional
Contract Time as non-compensable, excusable delay.
45.3 Status Reports to CITY's General ObliQation (G.O.) Bond OversiQht Committee.
CONTRACTOR shall provide Project status reports, in a form satisfactory to
CONTRACT ADMINSTRATOR and to the City's G.O. Bond Oversight
Committee. Said reports shall be provided monthly and submitted to
CONTRACT ADMINISTRATOR in accordance with the schedule set forth in
Attachment III, for inclusion in the Committee's monthly meeting agenda packet.
Said reports shall continue for the duration of the Project.
45.4 CONTRACTOR'S RiQht to Stop the Work or Terminate the Contract.
45.4.1 If CITY is adjudged bankrupt or makes a general assignment for the
benefit of creditors because of CITY'S insolvency, or if a receiver is
appointed because of CITY'S insolvency, CONTRACTOR may, without
prejudice to any other right or remedy that CONTRACTOR may have,
terminate the Contract by giving written notice of such termination to CITY
or to such receiver or trustee in bankruptcy.
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45.4.2 If the Work should be stopped or otherwise delayed for a period of forty
five (45) calendar days or more under an order of court or of a regulatory
authority and, provided that such order was not issued as the result of an
act or fault of CONTRACTOR or of anyone directly or indirectly employed
or engaged by CONTRACTOR, CONTRACTOR may, without prejudice to
any other right or remedy CONTRACTOR may have, terminate this
Contract by giving CITY notice in writing.
45.4.3 Provided CONTRACTOR is in good standing and not in default under this
Contract and, provided further that CONTRACTOR has complied with its
contractual obligations for submittal of payment applications under the
Contract, CONTRACTOR may notify CITY in writing that CITY is in default
of CITY'S contractual obligations hereunder in the event that CITY fails to
make payment to CONTRACTOR for any amount properly due under this
Contract, within ten (10) days after CONTRACTOR'S written notice to
CITY. CONTRACTOR'S notice in writing to CITY shall advise that if the
default is not corrected within ten (10) days following the receipt of the
notice in writing then CONTRACTOR may, without prejudice to any other
right or remedy that CONTRACTOR may have, stop the Work or terminate
this Contract. In no event shall this provision apply to, nor is same
intended to supercede, CONTRACTOR'S duty to continue Work pursuant
to Article 12.5.12 (Duty to Continue Work) of the General Conditions, nor
is this subsection intended to supercede, waive, or otherwise alter
CONTRACTOR'S responsibilities and required submittals pursuant to
Article 6 (Progress Payment) and Article 7 (Acceptance and Final
Payment) of the Contract.
[End of General Conditions]
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