HomeMy WebLinkAboutTran Construction Agreement
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AGREEMENT
Between
CITY OF MIAMI BEACH, FLORIDA
And
TRAN CONSTRUCTION, INC.
For
DESIGN/BUILD SERVICES
FOR THE BEACH FRONT RESTROOM/CONCESSION FACILITIES
LOCATED AT 21sT AND 46TH STREETS
AND THE BEACHFRONT RESTROOM LOCATED AT 64TH STREET
This is an Agreement (the "Agreement") between the CITY OF MIAMI BEACH,
FLORIDA, a non for profit corporation of the State of Florida, its successors and
assigns, hereinafter to as the "CITY."
AND
TRAN CONSTRUCTION, INC, its successors and assigns, hereinafter referred to as
"DESING/BUILD FIRM."
WIT N E SSE T H, in consideration of the mutual terms and conditions, promises,
covenants and payments hereinafter set forth, CITY and DESIGN/BUILD FIRM agree
as follows:
ARTICLE 1 DEFINITIONS AND IDENTIFICATIONS
For the purposes of this Agreement and the various covenants, conditions, terms and
provisions which follow, the DEFINITIONS and IDENTIFICATIONS set forth below are
assumed to be true and correct and are agreed upon by the parties.
Whenever the following terms or pronouns in place of them appear in this Agreement
the intent and meaning shall be interpreted as follows:
1.0 Bidder: Any individual, firm, or corporation submitting a bid for this Project, acting
directly or through a duly authorized representative.
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1.01 Change Order: A written document ordering a change in the Contract price or
Contract time or a material change in the Work.
1.02 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 attributed in any manner to City as party to this Contract.
1.03 City Commission: City Commission shall mean the governing and legislative
body of the City.
1.04 City Engineer: The City Engineer of the City Miami Beach, his authorized
assistants, or equivalent position within the Public Works Department and as
designated by the Public Works Director. The City Engineer is the Design Criteria
Professional responsible for the preparation of the Design Criteria Package as defined
in Section 287.055 F.S.
1.05 City Manager: City Manager shall mean the Chief Administrative Officer of the
City.
1.06 Construction Documents Phase: The phase in which DESIGN/BUilD FIRM
prepares the Construction Documents based upon the approved Design Development
Documents.
1.07 Construction Manager: The Construction Manager is the authorized individual or
firm which is the representative of DESIGN/BUilD FIRM who will administer/manage
the construction effort on behalf of the DESIGN/BUilD FIRM, as more fully detailed in
Section 5.04.
1.08 Construction Manger Representative: An authorized representative of
Construction Manager assigned to the Project and all activities necessary for the
completion of the Project.
1.09 Construction Phase. The phase of services which constitutes DESIGN/BUilD
FIRM'S administration of the construction of the Project and all activities necessary for
the completion of the Project.
1.10 Consultant: The registered architect, professional engineer(s), professional land
surveyor, civil engineer, and/or registered landscape architect who has contracted with
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or who is employed by DESIGN/BUILD FIRM to provide professional services for the
design of the Project and who is licensed by the State of Florida to provide said
services.
1.11 Contract: This Agreement and all addenda, exhibits and amendments thereto
between the CITY and the DESIGN/BUILD FIRM for this Project, all as defined herein.
Contract shall mean the same as Agreement.
1.12 Contract Administrator: The City's Capital Improvement Projects Office Director,
or his designee, shall be designated as the Contract Administrator for matters
concerning the Agreement. The Contract Administrator shall be responsible for
managing and supervising construction from development stages to Project completion.
1.13 Contract Documents: This Agreement, as approved by the Mayor and City
Commission and executed by the Mayor and City Clerk for Design Build Services for the
Beachfront Restrooms and any addendums, exhibits or amendments thereto, change
orders; the performance bond and payment bonds; Invitation to Bid No. 03.02/03 and
Design Build Firm's response thereto; the Design Criteria Package; the construction
documents, including but not limited to, Plans and Specifications (as approved and
permitted). CPM and Schedule of Values; and any additional documents the
submission of which is required by this Agreement. When reference is made in the
Contract Documents to publications, standards or codes issued by associations or
societies, the intent shall be to specify the current or adopted edition of such publication
or standard including revision and effect on the date of the Contract advertisement
notwithstanding any reference to a particular date.
1.14 Design/Build Firm: Tran Construction, Inc. its successors and assigns, is the
Design/Build Firm selected to perform the work pursuant to this Agreement, and is the
person, firm or corporation liable for the acceptable performance of, and payment of all
legal debts pertaining to, the Project. All references in the Contract Documents to third
parties under contract or control of Design/Build Firm shall be deemed to be a reference
to Design/Build Firm. The Design/Build Firm will be responsible for the provision,
installation, and performance of all equipment, materials, and services offered. The
Design/Build Firm is in no way relieved of the responsibility for the performance of all
equipment furnished.
1.15 Design Criteria Package: Design Criteria Package shall mean those certain
conceptual plans and specifications and performance - oriented drawings or
specifications of the Project, as prepared and sealed by the City Engineer and in
compliance with the requirements of Section 287.055, Florida Statues.
1.16 Design Phase: This phase will consist of the Design Phase during which
DESIGN/BUILD FIRM will consult with the Contract Administrator and prepare Design
Development Documents, based on the Design Criteria Package, consisting of
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drawings and other documents, illustrating the scale and relationship for approval of the
CITY. It will also consist of the Construction Document Phase, in which DESIGN/BUILD
FIRM will prepare Construction Documents, based on the approved Design
Development Documents.
1.17 Field Order: A written order issued by the Contract Administrator or Project
Manger which orders minor changes in the Project but which does not involve a change
in the total cost or time for performance.
1.18 Final Completion: The date certified by Contract Administrator that all conditions
of the permits and regulatory agencies have been met, all construction, including
corrective and punch list work, has been performed, all administrative requirements of
the Contract Documents have been completed, and CITY has received from
DESIGN/BUILD FIRM a release of all liens, consent of surety, release of claims by
DESIGN/BUILD FIRM, corrected as-built drawings, a final bill of materials, executed
final adjusting Change Order, final invoice, "before and after" color videotapes, copies of
pertinent test results, correspondence and other necessary documentation, including all
warranties, guarantees, operational manuals, spare parts, service contracts and tools.
1.19 CONTRACTOR: Tran Construction, Inc. its successors and assigns, (the
DESIGN-BUILD FIRM) shall also be the general contractor which shall perform the work
pursuant to this Agreement.
1.20 Hazardous Materials: As used in this contract the term :Hazardous Materials"
means any chemical, compound, material, substance or other matter that:
(a) is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine,
bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious
material, whether injurious or potentially injurious by itself or in combination with
other materials;
(b) is controlled, referred to, designated in or governed by any Hazardous Materials
Laws;
(c) gives rise to any reporting, notice or publication requirements under any
Hazardous Materials Laws, or
(d) is any other material or substance giving rise to any liability, responsibility of duty
upon the City with respect to any third person under any Hazardous Materials
Laws.
1.21 Hazardous Materials Laws: As used in this Contract, the term "Hazardous
Materials' Laws" means any and all federal state or local laws or ordinances, rules,
decrees, orders, regulations or court decisions (including the so called "common law")
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including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. &&9601 et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. && 1801 et seq.), and
the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. &&6901
et seq.), relating to hazardous substances, hazardous materials, hazardous waste, toxic
substances, environmental conditions on, under or about the Premises, soil and ground
water conditions or other similar substances or conditions.
1.22 Material(s): Material(s) incorporated in this Project or used or consumed in the
performance of the work.
1.23 Notice to Proceed: A written document issued by the Contract Administrator
informing the DESIGN/BUILD FIRM to officially begin the Project.
1.24 Plans and/or Specifications: The official graphic and descriptive representations
of this Project which upon written approval of CITY, shall become a part of the Contract
Documents.
1.25 Project: The DESIGN/BUILD FIRM (DBF) will be responsible for the design,
construction and construction management of two new beachfront restroom/concession
facilities located at 21st and 46th Streets, and one new beachfront restroom facility
located at 64th street respectively, including all services, utility connections, etc (the
Project). A Design Criteria Package (DCP) has been prepared by the City Engineer
which includes conceptual construction drawings and technical specifications for the
civil architectural, structural, mechanical, electrical, and landscaping disciplines.
1.26 Project Manager: Shall mean the individual assigned by the City, as the City's
representative, responsible for advising the Contract Administrator with the managing
and supervising construction from development stages to Project completion. The
Project Manager will also be responsible for acceptance of payment applications, job
orders and scope change(s).
1.27 Shop Drawings: Drawings, diagrams and schedules (excluding, however, the
CPM Schedule), and other data specially prepared by the DESIGN/BUILD FIRM or its
subcontractors, sub-contractors, manufacturer, supplier or distributor to illustrate some
portion of the work.
1.28 Subcontractor: The person, firm or corporation having a direct contract with
DESIGN/BUILD FIRM including one who furnishes material worked to a special design
according to the Contract Documents for this Project, but does not include one who
merely furnished material not so worked.
1.29 Substantial Completion: Subject to the requirements of Article 41, the dates
certified by the Contract Administrator that all conditions of the permits and regulatory
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agencies have been met for the CITY'S intended use of each portion of the Contract
Documents so CITY can fully, as opposed to partially, occupy or utilize each portion of
the Project for its intended purpose. At a minimum, a Certificate of Substantial
Completion is one of the requirements for Substantial Completion.
1.30 Surety: The surety company or individual which is bound by the performance
bond and payment bonds with and for DESIGN/BUILD FIRM who is primarily liable and
which surety company or individual is responsible for DESIGN/BUILD FIRM'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.
1.31 Utilities: The public or private systems on the Project site for rendering electrical
power, light, heat, gas, water, communication, sewage systems, and the like.
1.32 Work: The completed construction required by the Contract Documents, as
permitted, including all labor necessary to produce such construction, and all materials
and equipment incorporated or to be incorporated in such construction.
ARTICLE 2 GENERAL PROVISIONS
2.1 Generallv:
DESIGN/BUILD FIRM 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 Bid Award.
2.2 Relationship of CITY and DESIGN/BUILD FIRM: The DESIGN/BUILD FIRM
accepts the relationship of trust and confidence established between it and the CITY by
this Agreement. The DESIGN/BUILD FIRM 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 DESIGN/BUILD FIRM accepts a fiduciary duty with the
CITY and warrants and represents to the CITY that the DESIGN/BUILD FIRM (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
DESIGN/BUILD FIRM, including all Subcontractors and suppliers, at any tier, has been
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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 this Agreement and/or
Design Criteria Package 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 Agreement and/or Design Criteria Package as
being required to produce the intended result shall be supplied by DESIGN/BUILD
FIRM 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
Agreement and Design Criteria Package
2.4 The Contractor agrees that the Work shall be performed in a good and
professional manner, free from defects in materials and workmanship, and that all
Materials shall be new and approved by or acceptable to the CONTRACT
ADMINISTRATOR, except as otherwise expressly provided for in the Contract
Documents. The DESIGN/BUILD FIRM 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 INTENTION OF AGREEMENT
It is the intent of the Design Criteria Package and this Contract to describe a functionally
complete Project to be designed and constructed by the DESIGN/BUILD FIRM in
accordance with the Contract Documents and all applicable codes. Any work, materials
or equipment that may reasonably be inferred from the Contract Documents, as being
required to produce the intended result will be supplied whether or not specifically called
for. When words which have a well-known technical or trade meaning are used to
describe work, materials or equipment, such words shall be interpreted in accordance
with that meaning. Reference to standard specifications, manuals or codes of any
technical society, organization or association, or to laws or regulations of any
governmental authority, whether such reference be specific or by implication, shall
mean the standard specification, manual code, laws or regulations in effect at the time
of the completion of design. Applicable laws or codes that may be changed after a
permit is issued may result in additional compensation should additional work be
required on behalf of the DESIGN/BUILD FIRM.
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ARTICLE 4 CONTRACT DOCUMENTS
4.01 The Contract Documents shall be followed as to work, material, and dimensions
except when the Contract Administrator may authorize in his/her sole discretion, in
writing, an exception.
4.02 Dimensions given in figures are to hold preference over scaled measurements
from the drawings; however, all discrepancies shall be decided upon by the Consultant,
but must be approved in writing by the Contract Administrator. DESIGN/BUILD FIRM
shall not proceed when in doubt as to any dimension or measurement but shall seek
clarification from the Consultant, who shall notify Contract Administrator, for his review
and written approval. Contract Administrator reserves the right to retain its own
Consultant to verify the findings submitted by Consultant.
4.03 DESIGN/BUILD FIRM shall maintain four (4) copies of the Contract Documents;
two (2) of which shall be preserved and always kept accessible at the site to the
Contract Administrator or his/her authorized representatives.
4.04 This Contract incorporates by reference the Contract Documents defined in
Section 1.13. The documents listed in Section 1.13 have the following order of
precedence, beginning with the most important:
1. This Agreement (Contract) and all exhibits, addendums, and amendments
thereto
2. Change Orders
3. The Specifications (Approved and Permitted)
4. The Plans (Approved and Permitted)
5. Invitation to Bid No. 03.02/03 for Design/Build Services for Beachfront
Restrooms/Concession Facilities, and Design/Build Firm's response thereto.
6. Design Criteria Package
ARTICLE 5 SCOPE OF WORK
5.01 DESIGN/BUILD FIRM hereby agrees to complete the Project described by the
Design Criteria Package, including furnishing all preliminary study designs, drawings
and specifications, job site inspection, administration of construction, engineering,
landscape architecture, and land surveying services, labor, materials, equipment and
other services necessary to perform all of the work described in the Contract
Documents for the construction of the Project to be constructed in accordance with the
requirements and provisions of said Contract Documents. A design Notice to Proceed
will be issued after execution of the Contract.
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5.02 DESIGN/BUILD FIRM agrees to meet with Contract Administrator or designee at
reasonable times and with reasonable notice.
5.03 Prior to the final completion of construction services under this Agreement, and
as a condition precedent to Final Payment, there shall be established a record set of
Plans and Specifications, on Reproducible Vellum and on CD Rom, noncompressed,
formatted in the latest version of AutoCAD, which shall bear the approvals of
DESIGN/BUILD FIRM and Contract Administrator. Such approval shall be indicated by
the written signature of both parties. In addition, prior to the commencement of
construction services under this Agreement, DESIGN/BUILD FIRM shall submit to the
Contract Administrator a CPM Schedule and Project Schedule for the planning and
execution of the Construction Phase of the Project, for written approval by Contract
Administrator.
5.04 DESIGN/BUILD FIRM herein represents that Construction Manager, at a
minimum, will provide the following services:
5.04.01 At thirty (30) days prior to the commencement of the construction phase of the
Project, the DESIGN/BUILD FIRM will identify and provide the qualifications of a
suitably qualified and experienced Construction Manager who will be full time, on site at
the Project.
5.04.02 DESIGN/BUILD FIRM will attempt to have the same Construction
Manager on the Project full time to its conclusion and any new representative will first
be approved in writing by Contract Administrator before permanent assignment.
Approval shall not be unreasonably withheld.
5.04.03 The Construction Manager will conduct weekly on site meetings with the
Contractor and its subcontractors on Fridays at regular times previously
designated and shall issue weekly reports on the progress of the work and the
minutes of the previous meeting. The Contract Administrator and Consultant will
attend these meetings when deemed necessary.
5.04.04
Construction Manager will administer the Contractor's work.
5.04.05 The Construction Manager shall maintain and monitor the Project
Schedule and recommend and implement updates as required.
5.04.06 The Construction Manager shall coordinate the processing of shop
drawings and material submittals.
5.04.07 The Construction Manager will endeavor to achieve satisfactory
performance by Contractor and, if required, will require corrections to Contractor's work,
including but not limited to maintaining punch lists and observing of testing.
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5.04.08 The Construction Manager will monitor the cost of the Project, including
payment applications and the preparation thereof.
5.04.09 The Construction Manager will assist in the preparation of record
drawings; all shall transmit to the Consultant requests for additional information
concerning the design. In addition, the Project Manager shall be copied on these
requests for monitoring purposes.
5.04.10 The Construction Manager will observe testing and start up activities of
machinery and utilities.
5.04.11 The Construction Manager will secure all equipment brochures and
warranties from the Contractor.
5.04.12 The Construction Manager will coordinate the correction and completion of
the work including that required by the punch list.
5.04.13 The Construction Manager shall schedule monthly progress meetings with
the Contract Administrator, the Consultant, and any other applicable parties and shall
prepare and publish the meeting minutes.
5.05 DESIGN/BUILD FIRM herein represents that Consultant, at a minimum, will
provide the following services:
5.05.01 Consultant shall perform all of the architectural and engineering services
necessary to describe, detail and design the Project in accordance with the Contract
Documents.
5.05.02 Consultant shall design the Project so as to comply with the applicable
codes and regulations.
5.05.03 Consultant shall prepare the Plans and Specifications, as well as obtain all
required and necessary reviews and approvals (or take other appropriate action upon)
for same, and/or other submittals, including but not limited to, shop drawings, product
data and samples.
Consultant shall also submit the Plans and Specifications to Contract Administrator for
his review and written approval. Contract Administrator shall expeditiously review and
approve the Plans and Specifications in accordance with the accepted Project
Schedule. Contract Administrator's approval of the Plans and Specifications shall not
constitute acceptance of design work which does not comply with the Design Criteria
Package and/or with the terms of this Contract.
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5.05.04 Consultant shall prepare construction change directives, if necessary, and
authorize minor changes in the construction work as provided in the Contract
Documents.
5.05.05 Consultant shall receive and review for compliance with the Contract
Documents all written warranties and related documents required hereby to be
assembled upon Substantial Completion and issue Applications for Payment performed
in compliance with the requirements of the Contract Documents;
5.05.06 The approved and permitted Plans and Specifications, as modified from
time to time, shall constitute a representation by Consultant that the Project, if
constructed as required by this Contract, will be sufficient for its purposes. The Plans
and Specifications shall include technical drawings, schedules, diagrams and
specifications settings forth in detail the requirements for construction of the Project,
provide information necessary for the use of subcontractors and those in the buildings
trade and include documents necessary for regulatory agency and other governmental
approvals.
5.06 Contract Administration will perform the following tasks:
5.06.01 CONTRACT ADMINISTRATOR shall review Applications for Payment and
coordinate the processing thereof with the CITY.
5.06.02
The CONTRACT ADMINISTRATOR shall monitor the schedule.
5.06.03 The CONTRACT ADMINISTRATOR shall track, log and review all
required project related documents and subsequently address any and all concerns with
the DESIGN/BUILD FIRM.
5.06.04 The City Engineer shall review/observe the CONTRACTOR'S Work and
testing thereof for general conformance and compliance with the intent of the Design
Criteria Package.
5.06.05 The CONTRACT ADMINISTRATOR shall attend all required meetings
with the exception of weekly contractor construction progress meetings or as noted in
5.04.03.
ARTICLE 6 COMPLETION DATE
6.1 Time is of the essence for the DESIGN/BUILD FRIM'S performance of the Work
pursuant to this Contract. The DESIGN/BUILD FIRM agrees to complete the Work in
accordance with the accepted Project Schedule and to achieve Substantial Completion
of the Work, in accordance with this Contract, and within the Contract time.
DESIGN/BUILD FIRM acknowledges that failure to achieve Substantial Completion will
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result in substantial damages to the CITY, such as loss of beneficial use and/or
occupancy of the Project. Completion of the Work shall be achieved no later than thirty
(30) calendar days after issuance of a Certificate of Substantial Completion by the
CONTRACT ADMINISTRATOR for the Project.
6.2 DESIGN/BUILD FIRM shall be instructed to commence the Work by written
instructions in the form of a Purchase Order issued by the CITY's Procurement Director
and Notices to Proceed issued by the CONTRACT ADMINISTRATOR. Two (2) Notices
to Proceed will be issued for this Contract. DESIGN/BUILD FIRM shall commence
scheduling activities and other preconstruction work including Design Development,
Design Documents and Specifications preparation, within (5) calendar days after the
Project Initiation Date, which shall be the same as the date of the first Notice to
Proceed. The first Notice to Proceed and Purchase Order will not be issued until
DESIGN/BUILD FIRM'S submission to CITY of all required documents such as
insurance and schedules and after execution of the Contract by both parties.
6.2.1.1 The receipt of all necessary permits and construction documents by
DESIGN/BUILD FIRM and acceptance of the full Construction Schedule in
accordance with technical specifications, the submittal schedule, and the
schedule of values is a condition precedent to the issuance of the second
Notice to Proceed to mobilize on the Project sites and commence with
physical construction work.
6.3 Time is of the essence throughout this Contract. The Work shall be substantially
completed within 365 calendar days from the date specified in the second Notice to
Proceed, and completed and ready for final payment in accordance with Article 8, within
thirty (30) calendar days from the date certified by the Contract Administrator as the
date of Substantial Completion for each restroom/concession combination.
6.4 Upon failure of DESIGN/BUILD FIRM to substantially complete the entire
Contract within the total specified period of time, plus approved time extensions,
DESIGN/BUILD FIRM shall pay to CITY the sum of One Thousand Five Hundred and
00/100 Dollars ($1,500.00) for each calendar day after the time specified in Article 6
(plus any approved time extensions) for Substantial Completion on the entire Project.
After Substantial Completion, of each restroom/concession combination should
DESIGN/BUILD FIRM 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,
DESIGN/BUILD FIRM 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. The time frame for liquidated damages
shall not commence and thus shall be tolled until the CONTRACT ADMINISTRATOR
submits the Punch List to the DESIGN/BUILD FIRM. These amount s 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
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between the parties, recognizing the impossibility of precisely ascertaining the amount
of damages that will be sustained by CITY as a consequence of such delay, and both
parties desiring to obviate any question of dispute concerning the amount of said
damages and the cost and effect of the failure of DESIGN/BUILD FIRM to complete the
Contract on time.
6.5 CITY is authorized to deduct liquidated damages from monies withheld due to
DESIGN/BUILD FIRM for 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 8.02.
ARTICLE 7 DESIGN/BUILD FIRM'S RESPONSIBILITY
7.01 The parties acknowledge and agree that the DESIGN/BUILD FIRM will be
responsible for the design, construction and construction management of two new
beachfront restroom/concession facilities located at 21st and 46th Streets, and one new
beachfront restroom located at 64th Street including all services, utility connections, etc
(the Project). A Design Criteria Package (DCP) has been prepared by the City
Engineer which includes conceptual construction drawings and technical specifications
for the civil, architectural, structural, mechanical, electrical, and landscaping disciplines.
The Consultant seeking to reuse already sealed contract documents under the
Consultant's seal must be able to document and produce upon request evidence that he
has in fact recreated all the work done by the original professional engineer responsible
for preparing the already sealed construction drawings contained in the Design Criteria
Package. In other words, calculations, site visits, research and the like must be
documented and producible upon demand. Further, the Consultant must take all
professional and legal responsibility for the documents, which he seals and signs, and
can in no way exempt himself from such full responsibility. The Consultant need not
redraw plans; however, justification for such action must be available through well-kept
and complete documentation on the part of the Consultant as to his having rethought
and reworked the entire design process. The Consultant must use his own title block,
seal and signature and must remove the title block, seal and signature of the original
professional engineer before reusing any sealed contract documents. Prior to sealing
and signing work the Consultant shall be required to notify the original professional
engineer, his successors, or assigns, by certified letter to the last known address of the
original professional engineer, of the Consultant's intention to use or reuse the original
professional engineer's work. The Consultant will take full responsibility for the drawing
as though they were the Consultant's original product.
7.02 DESIGN/BUILD FIRM shall be responsible for applying for and securing all
permits and approvals from all governmental authorities having jurisdiction over the
Project. All permits and licenses required by federal, state or local laws, rules and
regulations necessary for the prosecution of the Project by DESIGN/BUILD FIRM
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pursuant to this Agreement shall be secured and paid for by DESIGN/BUILD FIRM. It is
DESIGN/BUILD FIRM'S responsibility to have and maintain appropriate certificate(s) of
competency, valid for the work to be performed and for all persons working on the
Project for whom a certificate of competency is required.
7.03 DESIGN/BUILD FIRM shall be fully responsible for the actions of all its agents,
servants, employees, including but not limited to, Contractor and Consultant,
subcontractors, subconsultants, sub-subcontractors and sub-subconsultants, material
persons, pursuant to Chapter 713, Florida Statutes, and any and all other persons
working for it in conjunction with the design and construction of the Project.
7.04 DESIGN/BUILD FIRM shall be fully responsible for all acts or omissions of its
Contractor and Consultants, subcontractors, subconsultants, sub-subcontractors and
sub-subconsultants, and any and all other persons employed by DESIGN/BUILD FIRM
and/or its Contractor or Consultant, and of persons for whose acts any of them may be
liable to the same extent DESIGN/BUILD FIRM is responsible for the acts and
omissions of persons directly employed by DESIGN/BUILD FIRM. Nothing in this
Agreement shall create any contractual relationship between CITY and consultant or
contractor and CITY, or any obligation on the part of CITY to payor to see to the
payment of any monies due to any consultant or contractor.
7.05 DESIGN/BUILD FIRM agrees to bind specifically its Contractor and Consultant,
subcontractor and to the applicable terms and conditions of this Agreement for the
benefit of CITY.
7.06 Unless otherwise provided herein, DESIGN/BUILD FIRM shall provide any pay
for all architecture, engineering, landscape architecture, and land surveying services,
materials, labor, water, tools, equipment, light, power, transportation and other facilities
and services necessary for the proper execution and completion of the Pr()ject, whether
temporary or permanent, and whether or not incorporated or to be incorporated in the
Project.
7.07 DESIGN/BUILD FIRM shall at all times enforce strict discipline and good order
among its employees, consultants, and subcontractors at the Project site and shall not
employ on the Project any unfit person or anyone not skilled in the work assigned to him
or her.
7.08 DESIGN/BUILD FIRM shall maintain suitable and sufficient security as may be
reasonably determined necessary by Contract Administrator and/or as identified in the
Design Criteria Package.
7.09 DESIGN/BUILD FIRM shall keep itself fully informed of, and shall take into
account and comply with, all applicable Federal, State, Miami-Dade County, and City
laws, codes, ordinances and regulations in any manner affecting those engaged or
14
employed in the Project, or the materials used or employed in the design and
construction of the Project, or in any way affecting the conduct of the Project, and of all
such orders and decrees of bodies or tribunals having any jurisdiction or authority over
the same and of all provisions required by law to be made a part of this Agreement; all
of which provisions are hereby incorporated by reference and made a part hereof. If
any specification or contract for this Project is in violation of any such law, ordinance,
regulation, order or decree, DESIGN/BUILD FIRM shall forthwith report the same to the
Contract Administrator in writing. DESIGN/BUILD FIRM shall cause all its agents,
employees, Contractor, Consultant, subcontractors and subconsultants to observe and
comply with all applicable laws, ordinances, regulations, orders and decrees.
7.10 In the event of a change after the effective date of this Agreement in any Federal,
State, County or City laws, codes, ordinances and regula.tions which in any manner
affects the Project, DESIGN/BUILD FIRM shall advise the Contract Administrator, in
writing, and the Contract Administrator, may initiate a Change Order, the purpose of
which shall be to bring the Project into compliance with all such laws, ordinances, codes
and regulations as amended, or enacted.
7.11 DESIGN/BUILD FIRM shall pay all applicable sales, consumer, use and other
taxes required by law in effect on the last date of execution of the Agreement by the
parties hereto. DESIGN/BUILD FIRM is responsible for reviewing the pertinent State
statues involving State taxes and complying with all requirements.
7.12 CITY shall have the right to inspect and copy, at CITY's expense, the books and
records and accounts of the DESIGN BUILD/FIRM which directly relate to the Project,
and to any claim for additional compensation made by the DESIGN BUILD/FIRM, and to
conduct an audit of the financial and accounting records of the DESIGN BUILD /FIRM
which relate to the Project and to any claim for additional compensation made by the
DESIGN BUILD/FIRM. DESIGN BUILD FIRM shall retain and make available to CITY
all such books and records and accounts or portions thereof, financial or otherwise
which relate to the project. During the Project and the three (3) years following Final
Completion of the Project. During the Project and the (3) year period following Final
Completion of the Project, the DESIGN BUILD/FIRM shall provide CITY access to its
books and all records subject to this section upon three (3) business day's written
notice.
7.13 The DESIGN BUILD/FIRM shall perform the Work and complete the Project at
the Value of the negotiated amount as noted in Section 8.01.01 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 Article 6 of the Contract.
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7.14 DESIGN BUILD/FIRM shall furnish efficient business administration,
coordination, management and supervision of Work required to complete the
Project, and shall cooperate with the CITY, 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.
7.14.1 The DESIGN/BUILD FIRM 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 DESIGN/BUILD FIRM represents and warrants that it is
familiar with all Applicable Laws that govern the Work.
7.14.2 If DESIGN/BUILD FIRM has knowledge that the Contract Documents
does not comply with Applicable Laws in any respect, the DESIGN/BUILD
FIRM shall promptly notify the Contract Administrator in writing and any
necessary changes shall be adjusted by appropriate revisions. If the
DESIGN/BUILD FIRM performs any Work not in accordance with
Applicable Laws, and without such notice to the Contract Administrator,
the DESIGN/BUILD FIRM shall assume full responsibility thereof and shall
bear all costs attributable thereto.
7.14.3 In the event that Work is deemed by competent authority not to comply
with Applicable Law, the DESIGN/BUILD FIRM shall bring such Work into
compliance with Applicable Law. If the Applicable Law is enacted after the
GMP is established, and the DESIGN/BUILD FIRM 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.
7.15 The DESIGN/BUILD FIRM warrants that it has thoroughly reviewed and studied
the Design Criteria Package 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 Bid Award amount
and the Contract Time. DESIGN/BUILD FIRM warrants that the conceptual
plans and specifications contained within the Design Criteria Package are
constructible within the Bid Award amount and Contract Time.
THE CITY MAKES NO WARRANTY OR REPRESENTATION, WHETHER TO THE
DESIGN BUILD FIRM OR TO ANY THIRD PARTY(IES) THAT THE DESIGN
CRITERIA PACKAGE AND THE CONCEPTUAL PLANS, DRAWINGS AND
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SPECIFICATIONS FOR THE PROJECT CONTAINED THEREIN ARE ACCURATE,
PRACTICAL, CONSISTENT, AND CONSTRUCTIBLE.
7.16 The DESIGN/BUILD FIRM accepts the Project sites in their 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
DESIGN/BUILD FIRM represents that it has: (a) visited the Project sites 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 sites and (c) correlated its observations with the information furnished by
the CITY, and the Contract Documents. The DESIGN/BUILD FIRM 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.
7.17 The DESIGN/BUILD FIRM agrees specifically that no Change Orders shall be
required by the DESIGN/BUILD HRM or considered by the City for reasons
involving conflicts in the Contract Documents, questions of clarity with regard to
the Contract Documents, incompatibility, or conflicts between the Contract
Documents and the existing Project site conditions, utilities, and unforeseen
underground conditions. The DESIGN/BUILD FIRM acknowledges that it has
ascertained all correct locations for points of connection for all utilities, if any,
required for this Project.
7.18 The DESIGN/BUILD FIRM 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 limited to, all necessary utility connection permits and fees.
The City of Miami Beach shall waive or pay for all City of Miami Beach Building
Department permits (including City permit expediting/processing fees & City
impact fees). The City of Miami Beach shall waive or pay for all City of Miami
Beach Public Works permits (including water meter connections fees, sewer
impact fees, Maintenance of Traffic fees, right-of-way permit fees, Department of
Environmental Resources Management (DERM) fees, Florida Department of
Environmental Protection (DEP) permit & fees, Miami Dade Water and Sewer
Authority Department (WASD) fees, and any required Heath and Rehabilitative
Services (HRS) permit or fees.
7.19 The DESIGN/BUILD FIRM shall comply with all conditions of any permits issued
by government authorities.
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ARTICLE 8 THE CONTRACT PRICE AND METHOD OF PAYMENT
8.01 The Contract Price is the Bid Award Amount agreed by the DESIGN/ BUILD
FIRM and CITY under this Contract, payable to complete the Work in accordance with
the Agreement and Design Criteria Package, as may be increased or decreased by
Change Order.
8.01.01 The Contract Price for the Project is $1,080,090 as is specifically defined and
delineated in Attachment I to this Contract, entitled, and incorporated by reference
herein.
8.01.02 In the event that the DESIGN/BUILD FIRM'S total approved expenditures for
the Project shall exceed the negotiated amount, the DESIGN/BUILD FIRM
shall pay such excess from its own funds, and the CITY shall not be required
to pay any amount that exceeds it; except those clearly established by
executed Change Orders. The DESIGN/BUILD FIRM shall have no claim
against the CITY on account thereof.
8.02 METHOD OF BILLING AND PAYMENT
8.02.01 During the Design Phase, payments shall be made monthly based upon
percentage of completion of final construction plans and specification preparation.
Payments will be made no more frequently than monthly. The Contract Administrator
shall verify completion of the various stages as noted and authorize payment. During
the Construction Phase, DESIGN/BUILD FIRM may submit a request for payment thirty
(30) calendar days after beginning field operations and every thirty (30) calendar days
thereafter. Payment will be based on the approved Schedule of Values.
DESIGN/BUILD FIRM'S requisition shall show a complete breakdown of the Project
components, the quantities completed and the amount due, together with such
supporting evidence as may required by the Contract Administrator. When applicable,
the requisition for payment shall be accompanied by a completed certification of work,
consent of surety and release of liens. The certification of work will mean compliance
by DESIGN/BUILD FIRM, CPM Schedule, and inspection of current as-built drawings at
job site, and applicable laws, codes, rules and regulations. Each requisition shall be
submitted in triplicate to the Contract Administrator for approval. An updated CPM
Schedule shall be submitted monthly with payment requests. Should the Project fall
behind schedule as indicated in the CPM Schedule, DESIGN/BUILD FIRM shall include
a written plan demonstrating how the Final Completion date shall be maintained.
8.02.02 CITY agrees that it will pay DESIGN/BUILD FIRM, within thirty (30)
calendar days of receipt of DESIGN/BUILD FIRM'S proper invoice, as provided above,
accompanied by an acceptable updated CPM Schedule, consent of surety and releases
of lien, ninety percent (90%) of the total shown to be due on such statement.
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8.02.03 Ten percent (10%) of all monies earned by DESIGN/BUILD FIRM,
excluding design and professional fees, shall be retained by CITY until the Project is
totally completed as specified, and accepted by CITY, except that upon completion of
the Construction Documents Phase and approval by CITY of the work performed under
such Phase, the Contract Administrator may release the entire amount of the retainage
pertaining to the Design Development and Construction Document Phases. After ninety
percent (90%) of the remainder of the Project has been completed, the Contract
Administrator, upon written request for the DESIGN/BUILD FIRM and written Consent of
Surety in support of said request, may reduce the retainage to five percent (5%) of all
monies earned subsequent to the Construction Documents Phase. Any interest earned
on retainage shall accrue to the benefit of CITY.
8.02.04 Undisputed amounts remaining unpaid thirty (30) calendar days after
CITY'S receipt of DESIGN/BUILD FIRM'S proper invoice for conforming work shall bear
interest at the rate set forth in Section 218.74 (4), Florida Statues. This section does
not apply with disputed amounts, when the dispute is resolved in the City's favor.
8.03 Upon receipt of written notice from DESIGN/BUILD FIRM that the Project is
ready for final inspection and acceptance, the Contract Administrator shall, within ten
(10) calendar days, make an inspection thereof. If the Contract Administrator finds the
Project acceptable under the Contract Documents and the Project fully performed, a
Final Certificate of Payment shall be issued by the Contract Administrator, over his/her
own signature, stating that the work required by this Agreement has been completed
and is accepted under the terms and conditions thereof.
8.04 Before issuance of the Final Certificate for Payment, DESIGN/BUILD FIRM shall
deliver to the Contract Administrator a complete release of all liens arising out of this
Agreement, or receipts in full in lieu thereof, and an Affidavit certifying that all suppliers
and subcontractors have been paid in full and that all other indebtedness connected
with the Project has been paid, and a consent of the surety to final payment. All
warranties, guarantees, operational manuals, and instructions in operation must be
delivered to CITY at this time. As built drawings will be completed, a hard reproducible
copy signed and sealed marked "As Builts" on the pages and a CD Rom
noncompressed formatted in the latest version of AutoCAD shall be delivered at the
time of receiving final payment. A certificate of occupancy, and/or certificate of
completion, will be obtained prior to final payment being made, if required.
8.05 CITY may withhold final payment or any progress payment to such extent as
may be necessary on account of:
8.05.01 Defective work not remedied.
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8.05.02 Claims filed or written notices of nonpayment indicating probable filing of
claims as may be prescribed by law by other parties against DESIGN/BUILD FIRM.
8.05.03 Failure of DESIGN/BUILD FIRM to make payments properly to
subcontractors or consultants or for material or labor.
8.05.04 Damage to another subcontractor, supplier, material person as provided
for in F.S. 713, party or person not remedied which are attributable to DESIGN/BUILD
FIRM, its agents, servants, employees, subcontractors and sub-subcontractors, material
person and suppliers.
8.05.05 Liquidated damages pursuant to Article 6 hereof.
8.05.06 As-built drawings not being in a current and acceptable state.
8.05.07 The DESIGN/BUILD FIRM warrants to the CITY that all materials and
equipment furnished under this Agreement will be new unless otherwise specified, and
that all work will be good quality and in conformance with the Contract Documents. All
work not conforming to these requirements, including substitutions not properly
approved and authorized by Contract Administrator, may be considered defective. If
required by the CITY, the DESIGN/BUILD FIRM shall furnish satisfactory evidence as to
the origin nature and quality of materials and equipment used for the Project.
DESIGN/BUILD FIRM shall properly store and protect all construction materials.
Materials which become defective through improper storage shall be replaced with new
materials at no additional costs. The DESIGN/BUILD FIRM'S warranty excludes
remedy for damage or defect caused by abuse, modifications not executed by the
DESIGN/BUILD FIRM, improper or insufficient maintenance, improper operation, or
normal wear and tear under normal usage.
When the above grounds are removed or resolved or DESIGN/BUILD FIRM provides a
surety bond or a consent of surety satisfactory to CITY which will protect CITY in the
amount withheld, payment may be made in whole or in part, as applicable.
8.06 If, after the Project has been substantially completed, full completion thereof is
delayed through no fault of DESIGN/BUILD FIRM, or by issuance of Change Orders
affecting final completion, and the Contract Administrator so certifies, CITY shall, upon
certification of the Contract Administrator, and without terminating the Contract, make
payment of the balance due for that portion of the Project fully completed and accepted.
Such payment shall be made as required by law under the terms and conditions
governing final payment, except that it shall not constitute a waiver of claims.
8.07 The making and acceptance of the final payment shall constitute a waiver of
all claims by CITY, other than those arising from faulty or defective work, failure of the
Project to comply with requirements of the Contract Documents or terms of any
20
warranties required by Contract Documents. It shall also constitute a waiver of all
claims by DESIGN/BUILD FIRM, except those previously made in writing and identified
by DESIGN/BUILD FIRM as unsettled at the time of the final application for payment.
8.08 If the CONTRACT ADMINISTRATOR, in its reasonable judgment, determines
that the portion of the negotiated Amount 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 DESIGN/BUILDING FIRM hereunder unless and until the DESIGN
BUILD FIRM, at its sole cost, performs a sufficient portion of the Work so that such
portion of the negotiated Amount then remaining unpaid is determined by the
CONTRACT ADMINISTRATOR to be sufficient to so complete the Work.
8.09 DESIGN/BUILD FIRM 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.
8.10 The DESIGN/BUILD FIRM 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 DESIGN/BUILD FIRM in performance of the
Work.
8.11 Payment will be made to DESIGN/BUILD FIRM at:
Tran Construction, Inc.
420 Lincoln Road
Miami Beach, FL 33139
ARTICLE 9 ADDITIONAL SERVICES AND CHANGES IN SCOPE OF WORK
Without invalidating the Agreement and without notice to any surety, CITY reserves and
shall have the right to make such changes from time to time in the character or quantity
of the Work as may be considered necessary or desirable to complete fully and
acceptably the Project in a satisfactory manner. Any extra or additional work within the
scope of this Project may be accomplished by means of appropriate Field Orders,
and/or fully executed and approved Change Orders.
ARTICLE 10 CITY'S RESPONSIBLlTIES
10.01 CITY shall assist DESIGN/BUILD FIRM by placing at its disposal any available
information pertinent to the Project including previous reports, laboratory tests, and
inspections of samples, materials and equipment; property, boundary, easement, rights-
21
of-way, topographic and utility surveys; property descriptions; and known zoning, deed
and other land use restrictions.
10.02 CITY shall arrange for access to and make all provisions for DESIGN/BUILD
FIRM to enter upon public property as required for DESIGN/BUILD FIRM to perform its
services.
ARTICLE 11 RESOLUTION OF DISPUTES
11.01 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto
that Contract Administrator shall first decide all questions, claims, difficulties and
disputes of whatever nature which may arise relative to the Contract Documents and
fulfillment of this Agreement as to the character, quality, amount and value of any work
done and materials furnished, or proposed to be done or furnished under or, by reason
of, the Contract Documents, and Contract Administrator's estimates and decisions upon
all claims, questions, difficulties and disputes shall be final and binding to the extent
provided in Section 11.02. Any claim, question, difficulty or dispute which cannot be
resolved by mutual agreement of CITY and DESIGN/BUILD FIRM shall be submitted to
Contract Administrator in writing within twenty-one (21) calendar days of the discovery
of the occurrence. Unless a different period of time is set forth herein, Contract
Administrator shall notify DESIGN/BUILD FIRM in writing of the decision within twenty-
one (21) calendar days from the date of the submission of the claim, question, difficulty
or dispute, unless Contract Administrator requires additional time to gather information
or allow the parties to provide additional information. All nontechnical administrative
disputes shall be determined by the Contract Administrator pursuant to the time periods
provided herein. During the pendency of any dispute and after a determination thereof,
DESIGN/BUILD FIRM and CITY shall act in good faith to mitigate any potential
damages including utilization of construction schedule changes and alternate means of
construction.
11.02 In the event the determination of a dispute under this Article is unacceptable to
either party hereto, the party objecting to the determination must notify the other party in
writing within twenty-one (21) calendar days of receipt of the written determination. The
notice must state the basis of the objection and must be accompanied by a statement
that any Contract Price or Contract time adjustment claimed is the entire adjustment to
which the objecting party has reason to believe it is entitled to as a result of the
determination. Within sixty (60) calendar days after receipt of written determination as
provided in this section, the parties shall participate in mediation to address all
objections to any determinations hereunder and to attempt to avoid litigation. The
mediator shall be mutually agreed upon by the parties. The mediation shall be non-
binding.
11.03 Pending final resolution of a claim, including mediation, unless otherwise agreed
in writing. DESIGN/BUILD FIRM shall proceed diligently with performance of he
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Contract and the CITY shall continue to make payments In accordance with the
Contract Documents.
11.04 Any mediator used shall be certified in accordance with Florida law. Mediation
will be conducted in Miami-Dade County. If the dispute is not resolved at the Mediation,
either party may file suite in State Court in Miami-Dade County, Florida.
ARTICLE 12 SUBCONTRACT REQUIREMENTS
12.1 On all subcontracts where the bid exceeds $200,000, the DESIGN/BUILD FIRM
shall require subcontractors to provide a 100% performance bond and a 100% labor
and material payment bond from a surety company authorized to do business in the
State of Florida by the Department of Insurance. If the DESIGN/BUILD FIRM wishes to
award subcontracts to contractors unable to supply this bonding, it shall request prior
authorization from the Contract Administrator to do so. Upon providing justifiable
background information, such authorization shall not be withheld unreasonably.
12.2 Workforce - The subcontractor must agree to perform no less than 10% of the
completed no less than two projects of similar size and complexity within the last five
years.
12.3 Subcontractor experience - The subcontractor must have successfully
completed no less than two projects of similar size and complexity within the last five
years.
12.4 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 employee 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.
12.5 All subcontracts shall provide:
12.5.1 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.
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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
allowable subcontractor overhead cost to be no more than 5%, allowable
subcontractor profit to be no more than 5%, allowable subcontractor bond and
GL Insurance costs to be no more than 2%.
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.
12.5.2 Each subcontractor shall require that any claims by subcontractor for
delay or additional cost must be submitted to DESIGN/BUILD FIRM within the
time and in the manner in which the DESIGN/BUILD FIRM 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.
12.5.3 Each subcontract shall include a provision sating 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 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.
12.5.4 Responsibilities for Acts and Omissions - The DESIGN/BUILD FIRM shall
be responsible to the CITY for the acts and omissions of his employees and
agents and his subcontractor, their agents and employees, and all other persons
performing any of the work or supplying materials under a contract to the
DESIGN/BUILD FIRM.
12.5.5 Subcontracts to be provided. The DESIGN/BUILD FIRM shall provide the
Contract Administrator with a copy of each subcontract, including the general
supplementary conditions.
ARTICLE 13 (This Article left intentionally blank)
ARTICLE 14 (This Article left intentionally blank)
ARTICLE 15 SECURITY
DESIGN/BUILD FIRM shall provide a Project security program, which shall be approved
in writing by Contract Administrator, to protect work, stored products and construction
equipment from theft and vandalism, and to protect premises from entry by
unauthorized persons. In the event any such materials, equipment and supplies are
24
lost, stolen, damaged or destroyed prior to final inspection and acceptance,
DESIGN/BUILD FIRM shall replace same without cost to CITY.
ARTICLE 16 INSPECTION OF PROJECT
16.01 The Contract Administrator or designee shall at all times have access to the
Project, and DESIGN/BUILD FIRM shall provide proper facilities for such access, and
such access shall be in accordance with the reasonable rules of the DESIGN/BUILD
FIRM.
16.01.01 Should the Contract Documents, instructions, any laws, ordinances,
regulations, codes or any public authority require any work for the Project to be specially
tested for approved, DESIGN/BUILD FIRM shall give to the Contract Administrator
timely notice of readiness of the work for inspection. If the testing or approval is to be
made by an authority other than CITY, timely notice shall be given of the date fixed for
such testing. Inspections shall be made promptly, and, where practicable, at the source
of supply. If work for the Project should be covered up without required
inspection/approval, it must, if required by the Contract Administrator, be uncovered for
examination and properly restored at DESIGN/BUILD FIRMS'S expense.
16.01.02 Reexamination and retesting of any work for the Project may be ordered by
the Contract Administrator; and if so ordered, such work must be uncovered by
DESIGN/BUILD .FIRM. If such work is found to be in accordance with the Contract
Documents, CITY shall pay the cost of reexamination, retesting and replacement. If
such work is not in accordance with the Contract Documents, DESIGN/BUILD FIRM
shall pay such cost.
16.02 The payment of any compensation, regardless of its character or form, or
the giving of any gratuity or the granting of any valuable favor by
DESIGN/BUILD FIRM to any inspector is forbidden, and any such act on
the part of DESIGN/BUILD FIRM will constitute a breach of this
Agreement.
ARTICLE 17 SUPERINTENDENCE AND SUPERVISION
17.01 The orders of the CITY are to be given through the Contract Administrator,
whose instructions are to be strictly and promptly followed in every case, provided that
they are in accordance with this Contract and the other Contract Documents,
Construction Manager shall keep on the Project, during its progress, a competent
supervisor who will serve as the Construction Manager, and any necessary assistants.
17.02 Construction Manager shall prepare, on a daily basis, and keep on he Project
site, a bound log setting forth at a minimum, for each day: the weather conditions and
how any weather conditions affected progress of the work, work performed, equipment
25
utilized for the work, any idle equipment and reasons for idleness, visitors to the Project
site, labor utilized for the work, and any materials delivered to the Project site. The daily
bound log shall be available for inspection by the Contract Administrator or designee at
all times during the Project.
17.03 If DESIGN/BUILD FIRM, in the course of the Project, finds any discrepancy
between the Contract Documents and the physical conditions of the site, or any errors
or omissions in the Contract Documents including, but not limited to, the Plans and
immediately inform the Contract Administrator, in writing; and the Contract Administrator
will promptly verify same. Any work done prior to or after such discovery will be done at
DESIGN/BUILD FIRM'S sole risk. IT SHOULD BE RECOGNIZED THAT THIS IS A
DESIGN/BUILD PROJECT; ANY ERRORS OR OMISSIONS SHALL BE
CORRECTED AT THE SOLE COST AND EXPENSE OF DESIGN BUILD/FIRM
WITHOUT CLAIM FOR TIME AND/OR FUNDS.
17.04 DESIGN/BUILD FIRM shall coordinate, supervise and direct the Project
competently and efficiently, devoting such attention thereto and applying such skills and
expertise as may be necessary to perform and complete the Project in accordance with
the Contract Documents. DESIGN/BUILD FIRM shall be solely responsible for the
design, preparation of construction documents, means, methods, techniques, safety,
sequences and procedures of construction. DESIGN/BUILD FIRM shall give efficient
supervision to the Work, using DESIGN/BUILD FIRM'S best skill, attention, and
judgment.
ARTICLE 18 CITY'S RIGHT TO TERMINATE AGREEMENT
18.01 If DESIGN/BUILD FIRM fails to begin the design and construction of the Project
within the time specified, or fails to perform the Project with sufficient workers and
equipment or with sufficient materials to insure the prompt completion of the Project, in
accordance with the Contract Documents and schedules, or shall perform the work
unsuitably, or cause it to be rejected as defective and unsuitable, or shall discontinue
the prosecution of the Project, except for excused delays in accordance with this
Agreement; or if DESIGN/BUILD FIRM 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 shall not carry on the Project in accordance with the Contract
Documents, CITY shall give notice in writing to DESIGN/BUILD FIRM and its surety of
such delay, neglect or default, specifying the same. If DESIGN/BUILD FIRM, within a
period of ten (10) calendar days after such notice, shall not proceed in accordance
therewith, then CITY may, upon written notice from the Contract Administrator of the
fact of such delay, neglect or default and DESIGN/BUILD FIRM'S failure to comply with
such notice, terminate the services of DESIGN/BUILD FIRM, exclude DESIGN/BUILD
FIRM from site, and take the prosecution of the Project out of the hands of
DESIGN/BUILD FIRM, as appropriate, or use any or all materials and equipment on the
Project site as may be suitable and acceptable in the City's reasonable discretion. In
26
such case, DESIGN/BUILD FIRM shall not be entitled to receive any further payment
until the Project is finished. In addition, CITY may enter into an agreement for the
completion of the Project according to the terms and provisions of the Contract
Documents or use such other methods as in its opinion shall be required for the
completion of the Project in an acceptable manner. All damages, costs and charges
incurred by CITY shall be deducted from any monies due or which may become due to
said DESIGN/BUILD FIRM, then DESIGN/BUILD FIRM shall be entitled to receive the
difference. If such damages and costs exceed the unpaid balance, then
DESIGN/BUILD FIRM shall be liable and shall pay to CITY the amount of said excess.
18.02 If, after Notice of Termination of DESIGN/BUILD FIRM'S right to proceed, its is
determined for any reason that DESIGN/BUILD FIRM was not in default, the rights and
obligations of CITY and DESIGN/BUILD FIRM shall be the same as if the notice of
termination had been issued pursuant to the Termination for Convenience clause as set
forth in Section 18.03 below.
18.03 Notwithstanding any other provision in this Agreement, including loss of funding
for the Project, the performance of work under this Agreement may be terminated in
writing by CITY, for convenience and without cause, upon ten (10) business days from
the date of DESIGN/BUILD FIRM'S receipt of the written notice to DESIGN/BUILD
FIRM (delivered by certified mail, return receipt requested) of intent to terminate and the
date on which such termination becomes effective. In such case, DESIGN/BUILD FIRM
shall be paid for all work and reimbursables executed, and expenses incurred, such as
materials stored, cost of severance of leases/contracts directly associated with the
Project and demobilization prior to termination. PAYMENT SHALL INCULDE
REASONABLE PROFIT FOR SERVICES ACTUALLY PERFORMED IN FULL PRIOR
TO TERMINATION DATE, BUT SHALL EXCLUDE ALL LOST PROFITS, INDIRECT
OR SPECIAL, OR OTHER DAMAGES.
18.04 Upon receipt of Notice of Termination pursuant to Sections 18.01 or 18.03
above, DESIGN/BUILD FIRM shall, as a its sole cost and expense and as a
condition precedent to any further payment obligation by the CITY, promptly
discontinue all affected work unless the Notice of Termination directs otherwise
and deliver to CITY within fifteen (15) business days of termination all data,
drawings, specifications, reports, estimates, summaries and such other
information as may have been required by the Contract Documents whether
completed or in process. Compensation shall be withheld until all documents are
provided to CITY pursuant to this Article.
ARTICLE 19 DESIGN/BUILD FIRM'S RIGHT TO STOP WORK OR TERMINATE
CONTRACT
19.01 If the Project should be stopped under an order of any court or other public
authority for a period of more than ninety (90) calendar days, through no act or fault of
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DESIGN/BUILD FIRM or of anyone employed by DESIGN/BUILD FIRM, or if the
Contract Administrator should fail to review and approve or state in writing reasons for
non approval of any estimate for payment within twenty (20) calendar days after it is
presented, or if CITY fails to pay DESIGN/BUILD FIRM within thirty (30) calendar days
after approval and certification by the Contract Administrator of any proper statement
certified by DESIGN/BUILD FIRM accompanied by the required update of the CPM and
Progress Schedule, then DESIGN/BUILD FIRM may, upon then (10) calendar days
prior written notice to CITY and the Contract Administrator, stop work until payment is
made, or terminate the Agreement and recover from CITY payment for all work
executed and any reasonable expense sustained.
ARTICLE 20 "OR EQUAL" CLAUSE
20.01 Whenever a material, article or piece of equipment is identified in the Contract
Documents including drawings (plans) and specifications by reference to manufacturers'
or vendors' names, trade names, catalog numbers, or otherwise, it is intended merely to
establish a standard, and, unless it is followed by words indicating that "no substitution
is permitted," any material, article, or equipments of other manufacturers and vendors
which will perform or serve the requirements of the general design will be considered
equally acceptable provided the material, article or equipment so proposed is, in the
opinion of the Contract Administrator.
20.01.01 At least equal in quality, durability, appearance, strength and design;
20.01.02 Performs at least equally the function imposed in the general design for the
Project;
20.01.03 Conforms substantially, even with deviations, to the detailed requirements for
the items as indicated by the Plans and Specifications; and
20.01.04 Carries the same guaranty or warranty of the specified equipment.
All substitution requests will be made via written request which shall be attached to a
shop drawing and/or Change Order which shall be attached to a detailed description of
the specified item and a detailed description of the proposed substitution. A comparison
letter itemizing all deviations from specified items must be included for the Contract
Administrator to properly evaluate substitution. Failure to provide the deviation
comparison sheet shall automatically deny the request.
Any changes, inclusive of design changes, made necessary to accommodate
substituted equipment under this paragraph shall be at the expense of DESIGN/BUILD
FIRM or subcontractor responsible for the work item.
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20.02 Contract Administrator's written consent will be required as to acceptability, and
no substitute will be ordered, installed or utilized without Contract Administrator's prior
written acceptance which will be evidenced by either a Change Order or an accepted
shop drawing. CITY may require DESIGN/BUILD FIRM to furnish at DESIGN/BUILD
FIRM'S expense a special performance guarantee or other surety with respect to any
substitute.
ARTICLE 21 PLANS AND SPECIFICATIONS
21.01 CITY, through its Contract Administrator, shall have the right to require
DESIGN/BUILD FIRM to modify the details of the Plans and Specifications, to
supplement same with additional plans, drawings, specifications or additional
information as the Project proceeds which are within the specific intent and stated
scope of the Project and which do not cause increase in Contract Sum or Contract time,
all of which shall be considered as part of the Contract Documents, at no additional cost
to the CITY. All plans, general and detail, are to be deemed a part of this Agreement,
and the Plans and Specifications and other Contract Documents are to be considered
together, and are intended to be mutually complementary, so that any work shown on
the Plans, though not specified in the Specifications, and work specified in the
Specifications though not shown on the Plans, is to be executed by DESIGN/BUILD
FIRM as part of the Contract Documents. All things which in the option of the Contract
Administrator may reasonably be inferred from the Contract Documents, including but
not limited to the Plans and Specifications as developed by DESIGN/BUILD FIRM and
approved by CITY are to be executed by DESIGN/BUILD FIRM under the terms of the
Contract Documents; and the Contract Administrator shall determine whether said
Plans and Specifications conform to the Contract Documents, except as may be
otherwise determined by the Contract Administrator. In the event the work requested
under this Article expands the scope of the Project. DESIGN/BUILD FIRM may seek a
Change Order pursuant to Article 37.
ARTICLE 22 DESIGN/BUILD FIRM TO CHECK DRAWINGS AND DATA
22.01 DESIGN/BUILD FIRM shall take measurements and verify all dimensions,
conditions, quantities and details shown on the Plans and Specifications, including but
not limited to the drawings, schedules, or other data. Failure to discover or correct
errors, conflicts or discrepancies shall not relieve DESIGN/BUILD FIRM of full
responsibility for unsatisfactory work, faulty construction, or improper operation resulting
there from nor from rectifying such condition at DESIGN/BUILD FIRM'S own expense.
DESIGN/BUILD FIRM will not be allowed to take advantage of any error or omissions.
ARTICLE 23 WARRANTY
23.01 DESIGN/BUILD FIRM warrants to CITY that all materials and equipment
furnished for the Project will be new unless otherwise specified and that all work for the
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Project will be of good quality, free from faults and defects and in conformance with the
Contract Documents. The standard of quality shall be at least that employed by similarly
qualified Design/Build Firms that are duly qualified and licensed to perform similar
substitutions not properly approved and authorized, may be considered defective. If
materials or equipment is improperly stored and becomes altered as a result of such
improper storage, DESIGN/BUILD FIRM shall replace said materials with new materials
at no additional cost. DESIGN/BUILD FIRM shall be responsible for proper storage and
safeguarding of all materials. If required by the Contract Administrator, DESIGN/BUILD
FIRM shall furnish satisfactory evidence as to the kind and quality of materials and
equipment. The warranty requirements set forth in the Contract Documents as herein
defined shall govern warranty terms and conditions for all warranty items expressed or
implied. The DESIGN/BUILD FIRM'S warranty period under this Article shall be one (1)
year from the date of Substantial Completion of each portion of the Project. However,
this section shall not abridge the times or impede the rights and remedies afforded the
CITY against other entities or persons under the Contract Documents, or by law.
ARTICLE 24 SUPPLEMENTARY DRAWINGS
24.01 When, in the opinion of DESIGN/BUILD FIRM and/or CITY, it becomes necessary
to explain more fully the work to be done, or to illustrate the Project further to show any
changes which may be required, supplementary drawings, with specifications pertaining
thereto, will be prepared by the Consultant and submitted by DESIGN/BUILD FIRM to
the Contract Administrator for review and written acceptance.
24.02 The authorized supplementary drawings shall be binding upon DESIGN/BUILD
FIRM with the same force as the Contract Documents. Where such supplementary
drawings require either less or more than the estimated quantities of work, appropriate
adjustments shall be made pursuant to Change Order.
ARTICLE 25 IThis Article left intentionallv blankl
ARTICLE 26 GENERAL WORKMANSHIP
26.01 Articles, materials, and equipment specified or shown on drawings shall be new
and shall be applied, installed, connected, erected, used, cleaned, and conditioned for
proper forming, as per the manufacturer's directions. DESIGN/BUILD FIRM shall, if
required, furnish satisfactory evidence as to kind and quality of the materials. Should
materials arrive to the jobsite new and be improperly stored and deteriorate from new
condition, the materials shall be replaced at no additional cost to CITY.
26.02 DESIGN/BUILD FIRM shall apply, install, connect, and erect manufactured items
or materials according to recommendations of manufacturer when such
recommendations are not in conflict with the Contract Documents. If there is conflict
between manufacturer recommendations and the Contract Documents, Contract
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Administrator shall be notified and shall approve, in writing, any corrective actions prior
to implementation of same.
ARTICLE 27 DEFECTIVE WORK
27.01 Contract Administrator shall have the authority to reject or disapprove work for the
Project which Contract Administrator finds to be defective. Defective work is defined as
work not in accordance with the Contract Documents, in violation of code(s) or, as
applicable, other Federal, State, County, and/or City laws, ordinances, and/or
regulations; installed in violation of the manufacturer's written instructions where the
installation has caused new materials to be detrimentally affected where the life
expectancy of the material installed is reduced, or otherwise installed in a non-
workmanlike manner. If required by Contract Administrator, DESIGN/BUILD FIRM shall
promptly either, as directed, correct all defective work or remove it from the Project site,
and replace it with non-defective work. DESIGN/BUILD FIRM shall bear all costs of
such removal or correction.
27.02 If, within one (1) year after Substantial Completion, any work is found to be
defective or not in accordance with the Contract Documents, DESIGN/BUILD FIRM
shall correct it promptly without cost to CITY, after receipt of written notice from CITY to
do so, unless CITY has given DESIGN/BUILD FIRM a written acceptance of such
conditions. Nothing contained herein shall be construed to establish a period of
limitation with respect to any other obligation work. DESIGN/BUILD FIRM might have
under applicable law.
27.03 Should DESIGN/BUILD FIRM fail or refuse to remove or correct any defective
work performed for the Project or to make any necessary repairs in an acceptable
manner and in accordance with the requirements of this Agreement within a reasonable
time, indicated in writing, CITY shall have than authority to cause the unacceptable or
defective work to be remove or corrected, or make such repairs as may be necessary to
be made at DESIGN/BUILD FIRM'S expense. Any expense incurred by CITY in makfng
these removals, corrections or repairs, which DESIGN/BUILD FIRM has failed or
refused to make shall be paid for out of any monies due or which may become due to
DESIGN/BUILD FIRM, or may be charged against the bond or guaranty. Continued
failure or refusal on the part of DESIGN/BUILD FIRM to make any or all necessary
repairs promptly, fully, and in acceptable manner shall be sufficient cause for CITY to
declare this Agreement terminated, in which case CITY, at its option, may purchase
materials, tools, and equipment and employ labor or may contract with any other
individual, firm or corporation, or may proceed with its own forces to perform the work.
All costs and expenses incurred thereby shall be charged against the defaulting
DESIGN/BUILD FIRM; and the amount thereof deducted from any monies due, or which
may become due to DESGIN/BUILD FIRM, or shall be charged against the bond or
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guaranty. Any special work performed, as described herein, shall not relieve
DESIGN/BUILD FIRM in any way from his responsibility for the work performed by it.
27.04 Failure to reject any defective work material shall not in any way prevent later
rejection when such defect is discovered or obligate CITY to final acceptance.
ARTICLE 28 SUBCONTRACTS
28.01 DESIGN/BUILD FIRM shall, at such times as DESIGN/BUILD FIRM decides
which subcontractors will perform the various portions of the Work, promptly notify the
Contract Administrator in writing of the names of subcontractors for the Project and
identify the portion of the work for the Project each will perform. DESIGN/BUILD FIRM
shall have a continuing obligation to notify the Contract Administrator of ay change in
subcontractors. Notification of the names of subcontractors shall not relieve
DESIGN/BUILD FIRM from the primary responsibility, without limitation, of full and
complete satisfactory performance of all contractual obligations.
ARTICLE 29 SEPARATE CONTRACTS
29.01 CITY reserves the right to let other contracts in connection with this Project,
provided it does not interfere with DESGIN/BUILD FIRM'S work or schedule.
DESIGN/BUILD FIRM shall afford other contractors reasonable opportunity for the
introduction and storage of their materials and the execution of their work and shall
properly connect and coordinate this work with theirs subject to provision of acceptable
insurance coverage, including DESIGN/BUILD FIRM and Contractor, as additional
insureds. CITY will request that its separate contractors coordinate their activities with
the work of the DESIGN/BUILD FIRM.
29.02 If any part of DESIGN/BUILD FIRM'S work depends for proper execution or
results upon the work of any other contractor or the CITY, DESIGN/BUILD FIRM shall
inspect and promptly report to the Contract Administrator any defects in such work that
render it unsuitable for such proper execution and results. DESIGN/BUILD FIRM'S
failure to so inspect and report shall constitute an acceptance of the other contractor's
work as fit and proper for the reception of DESIGN/BUILD FIRMS' work, except as to
defects which may develop in other contractor's work after the execution of
DESIGN/BUILD FIRM'S work. However, DESIGN/BUILD FIRM shall not be responsible
or liable to CITY for any work performed by anOy other separate contractor not under
the auspices or control of DEISGN/BUILD FIRM.
29.03 To insure the proper execution of its subsequent work, DESIGN/BUILD FIRM
shall inspect the work already in place and shall at once report to the Contract
Administrator any discrepancy between the executed work and the requirements of the
Contract Documents.
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ARTICLE 30 USE OF COMPLETED PORTIONS
30.01 Following substantial completion of each portion of the Project, CITY shall have
the right to take possession of for maintenance and/or for use of any competed or
partially completed portions of the Project; however, prior to any possession, a punch
list will be issued for the area to be occupied. Such possession and use shall not be
deemed an acceptance of any work not completed in accordance with the Contract
Documents. If such possession or use delays the Project, DESIGN/BUILD FIRM may
be entitled to a reasonable extension of time as determined by Contract Administrator.
30.02 In the event CITY takes possession, the following shall occur:
20.02.01 CITY shall give notice to DESIGN/BUILD FIRM at least thirty (30) calendar
days in advance on intent to occupy a designated area.
30.02.02 DESIGN/BUILD FIRM SHALL BRING THE ESIGNATED AREA TO POINT OF
Substantial Completion, When DESIGN/BUILD FIRM considers that the designated
area of the Project is substantially complete, DESIGN/BUILD FIRM shall so notify the
Contract Administrator in writing and shall prepare for submission to the Contract
Administrator a list of items to be completed or corrected. The failure to include any
items on such list does not alter the responsibility of DESIGN/BUILD FIRM to complete
work on the designated area in accordance with the Contract Documents. The Contract
Administrator shall conduct an inspection to determine that the designated portion of the
Project is substantially complete. The Contract Administrator will the instruct
DESIGN/BUILD FIRM to deliver to CITY a Certificate of Occupancy pertinent to the
designated portion, which Certificate of Occupancy shall be issued by the appropriate
authority having jurisdiction over the Project. The Contract Administrator and
DESIGN/BUILD FIRM shall agree on the time within which DESIGN/BUILD FIRM shall
complete the items listed.
30.02.03 Upon issuance and acceptance of 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 occupied area.
DESIGN/BUILD FIRM shall remain responsible for all items listed to be completed or
corrected as submitted Contract Administrator as required in Substantial Completion
process.
30.02.04 If CITY finds it necessary to occupy or use a portion or portions of the Project
prior to Substantial Completion thereof, such occupancy or use shall not commence
prior to a time mutually agreed upon by CITY and DESIGN/BUILD FIRM and to which
the insurance company or companies providing the property insurance have consented
by endorsement to the policy or policies. This insurance shall not be canceled or lapsed
on account of such partial occupancy or use. Consent of DESIGN/BUILD FIRM and of
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the insurance company or companies to such occupancy or use shall not be
unreasonably withheld.
ARTICLE 31 CONSTRUCTION AREA
31.01 DESIGN/BUILD FIRM shall use areas approved by the Contract Administrator for
deliveries and personnel. Contract limits of construction area are indicated on the
concept drawings as issued by the Contract Administrator. Equipment, material and
personnel shall be in conformance with this Contract.
31.02 To provide for maximum safety and security, DESIGN/BUILD FIRM shall erect
and maintain all necessary barricades, and any other temporary walls and structures a
required, and boarding or fencing to protect life and property during the period of
construction.
ARTICLE 32 LANDS FOR WORK
32.01 CITY shall provide, as indicated in the Contract Documents, the lands upon which
the Project is to be performed, rights-of-way and easements for access thereto and
such other lands as are designated for the use of DESIGN/BUILD FIRM. No claim for
damages or other claim other than for an extension of time shall be made or asserted
against CITY by reason of any delay arising as a result of any failure of CITY to provide
such lands on the date needed by DESIGN/BUILD FIRM. The provisions of Article 40
shall apply herein.
ARTICLE 33 LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS
33.01 DESIGN/BUILD FIRM shall conform to all applicable laws, regulations, or
ordinances with regard to labor employed, hours of work and DEGISN/BUILD FRIM'S
general operations. DESIGN/BUILD FIRM shall also conduct its operations so as not to
close any thoroughfare, nor interfere in any way with traffic on streets, highways,
sidewalks, or other public right of ways without the written consent of the proper
authorities.
ARTICLE 34 DAMAGE TO EXISTING FACILITIES. EQUIPMENT OR UTLlTIES
34.01 Existing utilities have been shown in the Contract Documents insofar as
information is reasonably available; however, it will be DESIGN/BUILD FIRM'S
responsibility to verify such information and to preserve all existing utilities whether
shown in the Contract Documents or not. If utility conflicts are encountered by
DESIGN/BUILD FIRM during construction, it is anticipated that DESIGN/BUILD FIRM
shall re-design its proposed improvements at its cost to avoid utility conflicts and/or
provide sufficient notice to the owners of the utilities and compensate owners of the
utilities so that they may make the necessary adjustments.
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34.02 DESIGN/BUILD FIRM shall exercise care and take all precautions during
excavation and construction operations to prevent damage to any existing facilities,
equipment, or utilities. Any damage caused by DESIGN/BUILD FIRM shall be reported
immediately to the Contract Administrator and such work shall be repaired and/or
replaced by DESIGN/BUILD FIRM in a manner approved by CITY. All costs to repair
and/or replace any damage to existing facilities, equipment, or utilities shall be the sole
responsibility of DESIGN/BUILD FIRM, and such repair or replacement shall be
performed expeditiously without cost to CITY.
34.03 DESIGN/BUILD FIRM shall provide that type of required protection for finished
work at all times and protect adjacent fork during cleaning operations, and make good
any damage resulting form neglect of this precaution.
34.04 Protection of work shall include protecting of work that is factory finished, during
transportation, storage, during and after installation. Where applicable and as required,
DEESIGN/BUILD FIRM shall close off spaces of areas where certain work has been
completed to protect it from any damages caused by others during their operations.
34.05 DESIGN/BUILD FIRM shall store materials and shall be responsible for and shall
maintain partly or wholly finished work during the continuance of the contract and until
the final acceptance of the structure. If any materials or part of the work should be lost,
damaged, or destroyed by any cause or means whatsoever, the DESIGN/BUILD FIRM
shall satisfactorily repair and replace the same at DESIGN/BUILD FIRM'S own cost.
The DESIGN/BUILD FIRM shall maintain suitable and sufficient guards, if necessary,
and barriers, and at night, suitable and sufficient lighting for the prevention of accidents.
34.06 To all applicable sections where preparatory work is part of work thereon,
DESIGN/BUILD FIRM shall carefully examine surfaces over which finished work is to be
installed, laid or applied, before commencing with the work. DESIGN/BUILD FIRM/ shall
not proceed with said work until defective surfaces on which work is to be applied are
corrected to the satisfaction of the Contract Administrator. Commencement of work shall
be considered acceptance of surfaces and conditions.
34.07 It will be the DESIGN/BUILD FIRM'S responsibility to preserve all existing utilities
within the Project limits or as otherwise affected by DESIGN/BUILD FIRM. If utility
conflicts are encountered by the DESIGN/BUILD FIRM during construction, it is
anticipated that DESIGN/BUILD FIRM shall re-design its proposed improvements at its
cost as to avoid utility conflicts and/or provide sufficient notice to their owners and
compensate owners of the utilities from its funds so that they may make the necessary
adjustments. Damage to any utilities, which in the sole reasonable opinion of the CITY
is cause by negligence on the part of the DESIGN/BUILD FIRM, shall be repaired at the
DEIGN/BUILD FIRM'S expense.
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ARTICLE 35 CONTINUING THE WORK
35.01 DESIGN/BUILD FIRM shall carry on the Project and adhere to the CPM and
Progress Schedule during all disputes or disagreements with CITY. No work shall be
delayed or postponed pending resolution of any disputes or disagreements. The
provisions of this Article shall be subject to all other applicable provisions of this
Agreement.
ARTICLE 36 FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS
36.01 The Contract Administrator shall have the right to approve and issue Field Orders
setti9ng forth written interpretations of the intent of the Contract Documents to
Construction Manager and ordering minor changes in contract execution, providing the
Field Order involves no change in the total cost of the Project or the time of
performance.
36.02 The Contract Administrator shall have the right to approve and issue to
DESIGN/BUILD FIRM supplemental instructions setting forth the written orders,
instructions, or interpretation concerning the Contract Documents or performance
therein, provided they make no major changes in Contract execution and involve no
change in the total cost of the Project or the time of performance.
ARTICLE 37 CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
37.1 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.
37.2 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.
37.3 The actual cost of the Payment and Performance Bond as a result of accepted
changes in the Work shall be added to or deducted from the cost of the changes in the
Work.
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37.4 Notification of ChanQe of Contract Time or Contract Price: Weather
37.4.1 Any claim for a change in the Contract Time or Contract Price shall be
made by written notice delivered by DESIGN/BUILD FIRM to the CONTRACT
ADMINISTRATOR within five (5) calendar days of the commencement of the
event giving rise to the claim (which may include an occurrence or omission that
DESIGN/BUILD FIRM contends delays the Work, or receipt of an order,
instruction, CONTRACT ADMINISTRATOR'S supplemental information or other
directive changing the Work, or any other occurrence that DESIGN/BUILD FIRM
contends causes a change in Contract Time or Contract Price) and stating the
general nature of the claim. Notice of the nature and elements of the claim shall
be delivered within twenty (20) calendar days after the date of such written
notice. Thereafter, within twenty (20) calendar days of the termination of the
event giving rise to the claim, notice of the extent of the claim with supporting
data shall be delivered, unless CONTRACT ADMINISTRATOR and
DESIGN/BUILD FIRM allows an additional period of time to ascertain more
accurate data in support of the claim, and shall be accompanied by
DESIGN/BUILD FIRM's written statement that the adjustment claimed is the
entire adjustment to which the DESIGN/BUILD FIRM 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 CONTRACT
ADMINISTRATOR in accordance with Article 11 hereof, if the CONTRACT
ADMINISTRATOR and DESIGN/BUILD FIRM 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.
37.4.2 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
DESIGN/BUILD FIRM 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.
37.4.3 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 37. These time extensions are justified only when rain or other
inclement weather conditions or related adverse soil conditions prevent
DESIGN/BUILD FIRM from productively performing controlling items of work;
identified on the accepted schedule or updates resulting in:
(1) DESIGN/BUILD FIRM 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)
DESIGN/BUILD FIRM must make major repairs to the Work damaged by
37
weather, provided the damage was not attributable to a failure or neglect
by DESIGN/BUILD FIRM, and provided that DESIGN/BUILD FIRM 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
DESIGN/BUILD FIRM has been working weekends on a regular basis on
exterior Work.
37.4.4 The DESIGN/BUILD FIRM 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.
37.5 ChanQe Orders
37.5.1 Changes in the quantity or character of the Work within the scope of the
Project which are not properly the subject of Field Orders or Supplemental
Instructions, including all changes resulting in changes in the Contract Price, or
the Contract Time, shall be authorized only by Change Orders approved an
issued by CITY.
37.5.2 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 DESIGN/BUILD FIRM
shall review the change order request with the CONTRACT ADMINISTRATOR
prior to furnishing a statement setting forth in detail, with a suitable detailed
breakdown in CSI format, including a breakdown of labor and materials, the
DESIGN/BUILD FIRM'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 DESIGN/BUILD FIRM's estimate, a Change
Order shall be processed by the CITY and delivered to the DESIGN/BUILD FIRM
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, DESIGN/BUILD FIRM's fee, Bid Award Amount or the Contract
Time, subject to performance there of and payment therefore pursuant to the
terms of this contract and such Change Order.
37.5.3 The DESIGN/BUILD FIRM's fee on such changes shall be a percentage
of the net change to the Cost of the Work resulting from the Change Order, not to
exceed twelve percent (12%) on self performed work or six percent (6%) on
subcontracted work..
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Subcontractor's percentage markup on change orders for overhead profit, bond
and GL Insurance shall be reasonable, but in no event shall the aggregate of the
subcontractor's overhead and profit markups exceed the twelve percent (12%) 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 profit, bond and GL Insurance shall not in the aggregate
exceed fourteen percent (14%) of the cost of the Work. Subcontractor's cost of
the Work shall be determined in accordance with Article 12, hereof.
37.5.4 CONTRACTOR shall not start work on any alteration requiring an increase
in the Contract Price or the Contract Time until a Change Order setting forth the
adjustments is approved by the CITY unless there is an immediate need to perform
the work to maintain the Project Schedule. If there were such a need, the
CONTRACT ADMINISTRATOR will issue direction to perform the work on the
basis of a preliminary estimate provided by the CONTRACTOR and approved by
the CONTRACT ADMINISTRATOR. Upon receipt of a Change Order
CONTRACTOR shall promptly proceed with the work set forth within the
document.
37.5.5 In the event satisfactory adjustment cannot be reached for any item
requiring a change in the Contract Price or Contract Time, and a Change Order
has not been issued, CITY reserves the right at its sole option to either terminate
the Contract as it applies to the items in question and make such arrangements as
may be deemed necessary to complete the disputed work; or submit the matter in
dispute to the CONTRACT ADMINISTRATOR as set forth in Article 11, hereof.
During the pendency of the dispute, and upon receipt of a Change Order,
DESIGN/BUILD FIRM shall promptly proceed with the change in the Work involved
and advise the CONTRACT ADMINISTRATOR in writing within five (5) calendar
days of DESIGN/BUILD FIRM'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.
37.5.6 Upon approval of any Contract. change increasing the Contract Price,
DESIGN/BUILD FIRM shall ensure that the Performance Bond and Payment Bond
are increased so that each reflects the total Contract Price as increased.
37.5.7 Change Orders may be issued unilaterally by CITY.
37.5.8 The DESIGN/BUILD FIRM hereby waives any claim not made with a timely
request for a Change Order.
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37.5.9 After the negotiated Amount has been established. No Change Order shall
be approved in the case where the DESIGN/BUILD FIRM encounters a Design
Criteria Package discrepancy and has failed to foresee and/or coordinate any
conditions in the Work, including conflicts between documents, plans and
specifications and the existing Project site conditions, utilities, and unforeseen
underground conditions, which will cause an increase to the Contract Price and the
Contract Time.
37.5.10 No change in the Bid Award Amount shall be allowed for delays caused by
labor disputes and strikes specific to the Project, or for other delay caused by the
DESIGN/BUILD FIRM or its Subcontractors or suppliers of any tier.
37.5.11 The DESIGN/BUILD FIRM waives all claims for additional time or
additional compensation for Work performed without a written Change Order
unless as stated in Article 37.5.4.
37.5.12 DUTY TO CONTINUE WORK The DESIGN/BUILD FIRM agrees that,
regardless of the pendency of any claim for additional compensation or time, the
DESIGN/BUILD FIRM shall continue to execute all Work. The DESIGN/BUILD
FIRM shall take all reasonable measures to minimize the effect of the pendency
of a claim.
37.5.13 PERMIT ADJUSTMENT Should a material discrepancy be found
between the Design Criteria Package and the Contract Documents, and provided
only that said discrepancy result from the regulatory review of an agency that has
regulatory authority over the permitting process, the CITY shall issue a Change
Order to the DESIGN/BUILD FIRM.
ARTICLE 38 DIFFERING SITE CONDITIONS
38.1 No equitable adjustment to the Contract shall be allowed for DESIGN/BUILD FIRM
and no change to Contract Price or Contract Time, in the event that during the course of
the Work DESIGN/BUILD FIRM 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.
ARTICLE 39 (This Article left intentionally blank)
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ARTICLE 40 NO DAMAGES FOR DELAY
40.01 no claim for damages or any claim other than for an extension of time shall be
made or asserted against city by reason of any delays. Design/build firm SHALL NOT
BE ENTITLED TO AN INCREASE IN THE Contract Price or payment or compensation
of any kind from CITY for direct, indirect, consequential, impact or other costs,
expenses or damages, including, but not limited to, costs of acceleration or inefficiency,
arising because of delay, disruption, interference or hindrance from any cause
whatsoever, whether such delay, disruption interference or hindrance. be reasonable or
unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable, provided,
DESIGN/BUILD FIRM hindrances or delays are not due solely to fraud, bad faith or
active interference on the part of CITY or its agents. Unless the delay is due solely to
fraud, bad faith, or active interference by the City, DESIGN/BUILD FIRM shall be
entitled only to extensions of the Contract time as the sole and exclusive remedy for
such resulting delays, in accordance with and to the extent specifically provided above.
The specific application of this Article to other provisions of this Agreement shall not be
construed as a limitation of any sort upon the further application of this Article. Ten
Dollars ($10.00) of DESIGN/BUILD FIRM'S fee is acknowledged as separate and
independent consideration for the covenants contained in this Article.
ARTICLE 41 SUBSTANTIAL COMPLETION
41.01 When DESIGN/BUILD FIRM considers that the Project, or a designated portion
thereof, which is acceptable to CITY, is substantially complete, DESIGN/BUILD FIRM
shall so notify the Contract Administrator in writing and shall prepare for submission to
the Contract Administrator a thorough list of items to be completed or corrected,
together with a schedule for completion of all items. The failure to include any items on
such list does not alter the responsibility of DESIGN/BUILD FIRM to complete all work
in accordance with the Contract Documents. The Contract Administrator, and such
other persons as the Contract Administrator may deem necessary, shall conduct a joint
inspection to determine that the Project or designated portion thereof is substantially
complete. The Contract Administrator will the instruct DESIGN/BUILD FIRM to prepare
and deliver to the Contract Administrator a Certificate of Substantial Completion which
shall establish the date of Substantial Completion of that portion of the Project. After
review of the Certificate by the Contract Administrator, CITY shall either accept or reject
the Certificate. Acceptance of Substantial Completion by CITY and its Contract
Administrator shall be based upon compliance Contract Documents and applicable
codes, laws, rules, and regulations having jurisdiction over this Project. DESIGN/BUILD
FIRM shall have thirty (30) days to complete the items listed therein. Warranties
required by the Contract Documents and submitted in appropriate form to the Contract
Administrator along with the request for Substantial Completion shall commence on the
date of Substantial Completion of that portion of the Project. The Certificate of
Substantial Completion shall be submitted to CITY through the Contract Administrator
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and DESIGN/BUILD FIRM for their written acceptance of the responsibilities assigned
to them in such Certificate.
ARTICLE 42 SHOP DRAWINGS AND SCHEDULE OF VALUES
42.01 DESIGN/BUILD FIRM shall submit Shop Drawings for all equipment, apparatus,
machinery, fixtures, piping, wiring, fabricated structures and manufactured articles. The
purpose of a Shop Drawing is to show the suitability, efficiency, technique of
manufacture, installation requirements, and details of the item and evidence of its
compliance or noncompliance with the Contract Documents.
42.02 DESIGN/BUILD FIRM shall submit to the Contract Administrator within thirty (30)
calendar days following the application for a building permit a complete list of
preliminary data on items for which Shop Drawings are to be submitted. Approval of this
list by the Contract Administrator, which approval shall be in writing, shall in no way
relieve DESIGN/BUILD FIRM 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.
42.03 After the approval of the list of items required in Section 42. 02 DESIGN/BUILD
FIRM shall promptly request Shop Drawings from the various manufacturers,
fabricators, and suppliers.
42.04 DESIGN/BUILD FIRM shall thoroughly review and check the Shop Drawings and
each and every copy shall show DESIGN/BUILD FIRM's approval thereon.
42.05 If the Shop Drawings show or indicate departures from the Contract
requirements, DESIGN/BUILD FIRM shall make specific mention thereof in its shop
drawing submittal and a separate letter. Failure to point out such departures shall not
relieve DESIGN/BUILD FIRM from its responsibility to comply with the Contract
Documents. Contract Administrator shall determine acceptability of change and in
considering said change may require data, technical comparisons, cost comparisons,
quality comparisons and/or calculations to determine the equality of deviations. Contract
Administrator is not obligated to accept deviations.
42.06 No work called for by Shop Drawings shall be done until the said Drawings have
been furnished to and accepted in writing by the Contract Administrator or his designee.
Contract Administrator shall respond to Shop Drawings pre-approved by Consultant
with objections or acceptance within ten (10) business days of receipt. Acceptance is for
design intent only and shall not relieve DESING/BUILD FIRM and Consultant from
responsibility for fit, form function, quantity or for errors or omissions of any sort on the
Shop Drawings.
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42.07 No acceptance will be given to partial submittal of Shop Drawings for items which
interconnect and/or are interdependent. It is DESIGN/BUILD FIRM's responsibility to
assemble the Shop Drawings for all such interconnecting and/or independent items,
check them and then make one submittal to the Contract Administrator along with
DESIGN/BUILD FIRM's comments as to compliance, noncompliance, or features
requiring special attention.
42.08 If catalog sheets or prints of manufacturers' standard drawings are submitted as
Shop Drawings, any additional information or changes on such drawings shall be
typewritten or lettered in ink. Catalog sheet with multiple options shall be highlighted to
depict specific pertinent data including options.
42.09 DESIGN/BUILD FIRM shall submit to Contract Administrator eight (8) copies.
Resubmissions of Shop Drawings shall be made in the same quantity until final
acceptance is obtained.
42.10 Contract Administrator's acceptance of the Shop Drawings as approved by
DESIGN/BUILD FIRM will be for general compliance with the plans and specifications
design intent and shall not relive DESIGN/BUILD FIRM of responsibility for the accuracy
of such Drawings, nor for the proper fittings and construction of the work, nor for the
furnishing of the materials or work required by the Contract and not indicated on the
Drawings.
42.11 DESIGN/BUILD FIRM shall keep one set of Shop Drawings marked with the
Contract Administrator's acceptance at the Project site at all times.
42.12 The DESIGN/BUILD FIRM shall submit a schedule of values to the Contract
Administrator as specified in Section 01211. DESIGN/BUILD FIRM shall submit to the
Contract Administrator a separate Schedule of Values for demolition, abatement, and
site work thirty (30) calendar days prior to commencing such portion of the work. The
schedule will be typed on 8-1/2" x 11' white paper listing: Title of project, location,
project number, architect, contractor, contract designation, and date of submission. The
schedule shall list the installed value of the component parts of the work insufficient
detail to serve as a basis from computing values for progress payments during the
construction. The table of contents of the specifications shall establish the format for
listing the component items. Each line item will be identified by the number and title of
the respective major section of the specifications. For each line item, DESIGN/BUILD
FIRM shall list the sub-values of major products or operations under the item. Each item
shall include the proportion of DESIGN/BUILD FIRM's overhead and profit. For any
items for which progress payments will be requested for stored materials, the value will
be broken down with:
42.12.01 The cost of materials delivered, unloaded, properly stored and safeguarded,
with taxes paid; and
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42.12.02 The total installed value
ARTICLE 43 FIELD ENGINEERING
43.01 The DESIGN/BUILD FIRM shall provide and pay for field engineering services
required for the Project. This work shall include the following elements:
43.01.01 Survey work required in execution of the Project.
43.01.02 Civil, structural or other professional engineering services specified, or
required to execute the DESIGN/BUILD FIRM's construction methods.
43.02 The survey completed by DESIGN/BUILD FIRM will identify the qualified engineer
or registered land surveyor, acceptable to the City, and he or she shall be retained by
the DESIGN/BUILD FIRM at the outset of this Project.
43.03 The survey will locate and protect control points prior to starting site work, and
will preserve all permanent reference points during construction.
43.03.01 No changes or relocations will be made without prior written notice to the
Contract Administrator.
43.03.02 A written report shall be made to the Contract Administrator when any
reference point is lost or destroyed, or requires relocation because of necessary
changes in grades or locations.
43.03.03 The surveyor shall be required to replace Project control points which may be
lost or destroyed. The surveyor shall be duly registered as a surveyor or
mapper, as required by state law.
43.03.04 Replacements shall be established based upon original survey control.
ARTICLE 44 FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS
44.01 The entire responsibility for establishing and maintaining a line and grade in the
field lies with DESIGN/BUILD FIRM. DESIGN/BUILD FIRM shall maintain an accurate
and precise record of the location and elevation of all pipe lines, conduits, structures,
underground utility access portals, handholes, fittings and the like and shall deliver
these records in good order to the Contract Administrator as the work is completed.
These records shall serve as a basis for "record" drawings. The cost of all such field
layout and recording work is included in the prices bid for the appropriate items.
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44.02 DESIGN/BUILD FIRM shall maintain in a safe place at the site one record copy
of all Plans and Specifications, addenda, written amendments, Change Orders and
written interpretations and clarifications in good order and annotated to show all
changes made during construction. These record documents together with all approved
samples and a counter part of all approved Shop Drawings will be available to Contract
Administrator for reference. Upon completion of the Project, these record documents,
samples and Shop Drawings shall be delivered to Contract Administrator.
44.03 At the completion of the Project, the DESIGN/BUILD FIRM shall turn over to the
CITY a set of reproducible drawings (Mylars) and a complete set of all drawings in the
latest version of the AutoCAD format on floppy disk not compressed which accurately
reflect the "as built" conditions of the new facility. All changes made to the construction
documents, either as clarifications or as changes, will be reflected in the plans. The
changes shall be submitted on Mylar at least monthly to the Contract Administrator.
These "as built" drawings on Mylar and the latest version of the AutoCAD format media
must be delivered and found to be acceptable prior to final payments.
ARTICLE 45 SAFETY AND PROTECTION
45.01 DESIGN/BUILD FIRM shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the Project.
DESIGN/BUILD FIRM shall take all necessary precautions for the safety of, and shall
provide the necessary protection to prevent damage, injury or loss to:
45.01.01 All employees on the Project and other persons who may be affected thereby;
45.01.02 All the work and all materials or equipment to be incorporated therein, whether
in storage on or off the Project site; and
45.01.03 Other property at the site or adjacent thereto, including trees, shrubs, lawns,
walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
45.02 DESIGN/BUILD FIRM shall comply with all applicable laws, ordinances, rules,
regulations and orders of any public body having jurisdiction for the safety of persons or
property or to protect them from damage, injury or loss; and shall erect and maintain all
necessary safeguards for such safety and protection. DESIGN/BUILD FIRM shall notify
owners of adjacent property and utilities when prosecution of the work may affect them.
All damage, injury or loss to any property referred to in Sections 45.01.02 and 45.01.03
above, caused directly or indirectly, in whole or in part, by DESIGN/BUILD FIRM, any
subcontractor or consultant or anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable, shall be remedied by DESIGN/BUILD
FIRM; however, DESIGN/BUILD FIRM shall not be liable for injury or damage caused
by CITY, its employees, consultants or its separate contractors. DESIGN/BUILD FIRM'S
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duties and responsibilities for the safety and protection of the Project shall continue until
such time as all the Project is completed and the Contract Administrator has issued a
notice to DESIGN/BUILD FIRM that the Project is acceptable except as otherwise
provided in Article 30.
45.03 DESIGN/BUILD FIRM shall designate a responsible member of its organization
at the Project site whose duty shall be the prevention of accidents. This person shall be
DESIGN/BUILD FIRM'S Project Representative unless otherwise designated in writing
by DESIGN/BUILD FIRM to CITY.
ARTICLE 46 PAYMENT OF TESTS BY DESIGN/BUILD FIRM
46.01 Except when otherwise specified in the Contract Documents, the expense of all
tests and test reports shall be borne by DESIGN/BUILD FIRM. Any tests required by
the City of Miami Beach; solely when acting as the Owner, which are not required by the
D-B team (D-B firm, D-B architects & D-B engineers) shall be paid for by the City of
Miami Beach and treated as an additional scope or change order.
ARTICLE 47 [Note: This Article is intentionallv left blankl
ARTICLE 48 CLEANING UP AND REMOVAL OF EQUIPMENT
48.01 DESIGN/BUILD FIRM shall at all time keep the Project site free from
accumulation of waste materials or rubbish caused by DESIGN/BUILD FIRM'S
operations. At the completion of the Project, DESIGN/BUILD FIRM shall remove all its
waste materials and rubbish from and about the Project as well as its tools, construction
equipment, machinery and surplus materials. If DESIGN/BUILD FIRM fails to clean up
at the completion of the Project, CITY may do so; and the cost thereof shall be charged
to DESIGN/BUILD FIRM.
48.02 CITY'S Right to Clean-Up
If a dispute arises between DESIGN/BUILD FIRM and separate contractors as to
responsibility for cleaning up, CITY may clean up and charge the cost thereof to the
contractors responsible therefore, as the Contract Administrator shall determine to be
just. This provision is solely for cleaning.
48.03 Removal of Equipment
In case of termination of this Agreement before completion for any cause whatever,
DESIGN/BUILD FIRM, if notified to do so by CITY, shall promptly remove any part or all
of DESIGN/BUILD FIRM'S equipment and supplies from the property of CITY, failing
which CITY shall have the right to remove such equipment and supplies at the expense
of DESIGN/BUILD FIRM.
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ARTICLE 49 [Note: This Article is intentionally left blankl
ARTICLE 50 BONDS AND INSURANCE
DESIGN/BUILD FIRM shall furnish, or cause to be furnished, on or before fifteen (15)
days after execution of this Agreement, the following:
50.01 Performance Bond and Payment Bond (Surety):
50.01.01 A performance bond and payment bond of the form and containing all the
provisions attached hereto and made a part hereof. Payment and Performance bonds
may be in the form of dual obligee bonds from the Contractor in the amount of the
contract between the DESIGN/BUILD FIRM and the Contractor, naming the CITY and
DESIGN/BUILD FIRM as dual obligees. DESIGN/BUILD FIRM shall provide payment
and performance bonds in the remaining amount of the Contract Price naming the CITY
as the obligee on those bonds.
50.01.02 The Bonds shall be in the amount of one hundred percent (100%) of the
Contract amount guaranteeing to CITY the completion and performance of the Project
covered in this Agreement as well as full payment of all suppliers, material persons,
, laborers, or subcontractors employed pursuant to this Project. Such Bonds shall be with
a surety company which is qualified pursuant to Section 50.03.
50.01.03 Such Bonds shall continue in effect for one year after completion and
acceptance of the Project with liability equal to one hundred percent (100%) of the
Contract price, or an additional bond shall be conditioned that DESIGN/BUILD FIRM
will, upon notification by CITY, correct any defective or faulty work or materials which
appear within one year after completion and acceptance of the Project.
-OR-
50.02 Performance and Payment Guaranty:
50.02.01 In lieu of a performance bond and payment bond, DESIGN/BUILD FIRM may
furnish an alternate form of security which may be in the form of cash, money order,
certified check, cashiers check or irrevocable letter of credit. Such alternate forms of
security shall be for the same purpose and shall be subject to the same conditions as
those applicable above and shall be held by CITY for one year after completion and
acceptance of the Project.
50.03 Qualifications of Surety:
50.03.01 A separate performance bond and payment bond must be executed by a
surety company of recognized standing, authorized to do business in the state of Florida
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as surety, having a resident agent in the state of Florida and having been in business
with a record of successful continuous operation for at least five (5) years.
50.03.02 In addition to the above-minimum qualifications, the surety company must
meet at least one of the following additional qualifications:
50.03.02.01 The surety company shall hold a current certificate of authority as
acceptable surety on federal bonds in accordance with United States Department of
Treasury Circular 570, Current Revisions. If the amount of the Bond exceeds the
underwriting limitation set forth in the circular, in order to qualify, the net retention of the
surety company shall not exceed the underwriting limitation in the circular, and the
excess risks must be protected by coinsurance, reinsurance, or other methods in
accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR Section
223.10 Section 223.111). Further, the surety company shall provide CITY with evidence
satisfactory to CITY, that such excess risk has been protected in an acceptable manner.
50.03.02.02 The surety company shall have at least the following minimum ratings in
the latest revision of Best's Insurance Report:
Amount of Bond
500,001 to 1,020,000
1,020,001 to 2,000,000
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
Size
Ratings
B+
B+
A
A
A
A
A
Category
Class I
Class II
Class III
Class IV
Class V
Class VI
Class VII
50.04 INDEMNIFICATION OF CITY
50.04.01 In consideration of Twenty-five Dollars ($25.00), separately acknowledged by
DESIGN/BUILD FIRM, and other valuable consideration, DESIGN/BUILD FIRM shall
indemnify and save harmless CITY, its officers, agents and employees, from or on
account of any injuries or damages, received or sustained by any person or persons
during or on account of any construction activities of DESIGN/BUILD FIRM its
Consultant, Contractor, or any subcontractors, consultants, subconsultants, agents,
servants, or employees connected with the Project; or by or in consequence of any
negligence of DESIGN/BUILD FIRM, its Consultant, Contractor, or any subcontractors,
consultants, subconsultants, agents, servants, or employees (excluding negligence of
CITY), in connection with the construction activities of the DESIGN/BUILD FIRM its
Consultant, Contractor or any subcontractors, consultants, subconsultants, agents,
servants, or employees connected with the Project; or by use of any improper materials;
or by or on account of any act, error or omission of DESIGN/BUILD FIRM its
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Consultant, Contractor, or any subcontractor, consultants, subconsultants, agents,
servants or employees, except to the extent caused by CITY. DESIGN/BUILD FIRM
agrees to indemnify and save harmless CITY against any claims or liability arising from
or based upon the violation of any federal, state, CITY or city laws, bylaws, ordinances
or regulations by DESIGN/BUILD FIRM, its Consultant, Contractor, subcontractors,
Consultants, subconsultants, agents, servants or employees (excluding negligence of
CITY). DESIGN/BUILD FIRM further agrees to indemnify and save harmless CITY from
all such claims and fees, and from any and all suits and actions of every name and
description that may be brought against CITY on account of any claims, fees, royalties,
or costs for any invention or patent, and from any and all suits and actions that may be
brought against CITY for the infringement of any and all patents or patent rights claimed
by any person, firm, or corporation. This consideration is separate and distinct from any
other consideration received by DESIGN/BUILD FIRM.
50.04.02 DESIGN/BUILD FIRM further agrees to indemnify, save harmless and defend
CITY, its agents, servants and employees, from and against any claim, demand or
cause of action of whatever kind or nature arising out of any negligent conduct or
misconduct of DESIGN/BUILD FIRM not included in Section 50.04.01 above and for
which CITY, its Consultant, Contractor, subcontractors, Consultants, subconsultants,
agents, servants or employees, are alleged to be liable.
50.04.03 The indemnification provided above shall obligate DESIGN/BUILD FIRM to
defend at its own expense to and through appellate, supplemental or bankruptcy
proceeding, or to provide for such defense, at CITY'S option, any and all claims of
liability and all suits and actions of every name and description that may be brought
against CITY which may result from the operations and activities under this Agreement
whether the construction operations be performed by DESIGN/BUILD FIRM, its
Consultant, Contractor, subcontractors, its consultants, subconsultants, or by anyone
directly or indirectly employed by any of the above.
50.04.04 The execution of this Agreement by DESIGN/BUILD FIRM shall obligate
DESIGN/BUILD FIRM to comply with the foregoing indemnification provision.
50.05 INSURANCE
DESIGN/BUILD FIRM shall provide, or cause to be provided, pay for, and maintain in
force at all times during the Project, such insurance, including Workers' Compensation
Insurance, Employer's Liability Insurance, Comprehensive General Liability Insurance,
and shall require DESIGN/BUILD FIRM to provide, pay for and maintain in force at all
times during the Project, Professional Liability Insurance, as will assure to CITY the
protection contained in this Agreement. Builder's Risk Insurance is governed by the
provisions of Section 50.05.05.
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Such policy or policies shall be issued by companies approved to do business in the
state of Florida, and having agents upon whom service of process may be made in the
state of Florida. DESIGN/BUILD FIRM shall specifically protect CITY by naming CITY
as an additional insured under the Comprehensive General Liability Insurance Policy
hereinafter described.
50.05.01 Professional Liability Insurance with limits of liability provided by such policy
not less than Three Million Dollars ($3,000,000.00) each claim to assure CITY the
indemnification specified in Section 50.04. Such policy may carry a deductible;
however, any deductible shall not exceed One Hundred Thousand Dollars
($100,000.00) for each claim. The Certificate of Insurance for Professional Liability
Insurance shall reference the applicable deductible and the Project.
50.05.02 Workers' Compensation Insurance to apply for all employees in compliance
with the "Workers' Compensation Law" of the state of Florida and all applicable federal
laws. In addition, the policy(ies) must include:
Employer's Liability with a limit of $100,000.00 each accident.
50.05.03 Comprehensive General Liability with minimum limits of Two Million Dollars
($1,000,000.00 primary and excess of $1,000,000.00) per occurrence combined single
limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded
on a form no more restrictive than the latest edition of the Comprehensive General
Liability Policy, without restrictive endorsements, as filed by the Insurance Services
Office and must include:
Premises and/or Operations.
Independent Contractors.
Products and/or Completed Operations.
The DESIGN/BUILD FIRM shall maintain in force until at least three (3) years after final
completion of the Project coverage for Products and Completed Operations, including
Broad Form Property Damage.
Explosion, Collapse and Underground Coverage's.
Broad Form Property Damage.
Broad Form Contractual Coverage applicable to this specific Agreement, including any
hold harmless and/or indemnification agreement.
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Personal Injury Coverage with Employees and Contractual Exclusions removed with
minimum limits of coverage equal to those required for Bodily Injury Liability and
Property Damage Liability.
Notice of Cancellation and/or Restriction-- The policy(ies) must be endorsed to provide
the CITY with thirty (30) days notice of cancellation and/or restriction.
50.05.04 Business Automobile Liability with minimum limits of Three Hundred Thousand
Dollars ($300,000.00) per occurrence combined single limit for Bodily Injury Liability and
Property Damage Liability. Coverage must be afforded on a form no more restrictive
than the latest edition of the Business Automobile Liability Policy, without restrictive
endorsements, as filed by the Insurance Services Office and must include:
Owned vehicles.
Non-owned and hired vehicles.
50.05.05 An All Risk Builder's Risk Insurance Policy will be provided by CITY for this
Project. The Builder's Risk Certificate of Insurance is issued with a Ten Thousand
Dollar ($10,000.00) deductible per claim. In the event a claim occurs for this Project,
DESIGN/BUILD FIRM will pay fifty percent (50%) or Five Thousand Dollars ($5,000.00)
expenditure for its portion of the deductible.
50.05.06 Notice of Cancellation, Expiration and/or Restriction: The policy(ies) must be
endorsed to provide the City of Miami Beach, Florida, with thirty (30) calendar days
notice of cancellation, expiration and/or restriction, to the attention of the Risk
Manager,1700 Convention Center Drive, Miami Beach, Florida 33139.
50.05.07 DESIGN/BUILD FIRM shall furnish to the Contract Administrator Certificate(s)
of Insurance evidencing the insurance coverage's required herein prior to final award by
the Board. Such certificate(s) shall reference this Agreement. CITY reserves the right to
require a certified copy of such policies upon request. All certificates shall state that
CITY shall be given thirty (30) calendar days' prior written notice of cancellation and/or
expiration.
50.05.08 DESIGN/BUILD FIRM shall provide to CITY a Certificate of Insurance or a
copy of all insurance policies required under this Article. The City's Risk Manager
reserves the right to require certified copies if requested. Endorsements and
certifications shall state CITY is to be given thirty (30) calendar days' written notice prior
to expiration or cancellation of the policy.
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ARTICLE 51 MISCELLANEOUS
51.01 ROYALTIES AND PATENTS
All fees, royalties, and claims for any invention, or pretended invention, or patent of any
article, material, arrangement, appliance or method that may be used upon or in any
manner be connected with the construction of this Project or appurtenances, are hereby
included in the prices stipulated in this Agreement for said Project.
51.02 DATUM
All elevations are referred to as Miami Beach Bay Datum.
51.03 RIGHTS OF VARIOUS INTERESTS
Whenever work being done by CITY'S forces or by other contractors is contiguous to
work covered by this Agreement, the respective rights of the various interests involved
shall be established by the Contract Administrator to secure the completion of the
various portions of the work in general harmony.
51.04 ASSIGNMENT
This Agreement shall not be assigned or subcontracted a whole without the written
consent of the City, nor shall DESIGN/BUILD FIRM assign any monies due or to
become due to it hereunder, without the prior written consent of the City.
51.05 NO INTEREST
Any monies not paid by CITY when claimed to be due to DESIGN/BUILD FIRM under
this Agreement shal~ not be subject to interest. However, the provisions of CITY'S
prompt payment ordinance, as such relates to timeliness of payment, and the provisions
of Section 218.74(4), Florida Statutes, as such relates to the payment of interest, shall
apply to valid and proper invoices.
51.06 OWNERSHIP OF DOCUMENTS
Drawing, specifications, design, models, photographs, computer AutoCAD disks,
reports, surveys, and other data provided in connection with this Agreement and for
which CITY has rendered payment, are and shall become and remain the property of
CITY whether the Project for which they are made is executed or not. If this Agreement
is terminated for any reason prior to completion of the work, CITY may, in its discretion,
use any design and documents prepared hereunder for the purpose of completing the
Project, provided that CITY has paid for same; and provided further that if such
termination occurs prior to completion of documents and/or through no fault of
52
DESIGN/BUILD FIRM; DESIGN/BUILD FIRM shall have no liability for such use; and
provided further that any reuse without the written verification or adaptation of
DESIGN/BUILD FIRM for the specific purpose intended will be without liability or legal
exposure to DESIGN/BUILD FIRM. At the completion of the Project, as part of the
Project closeout, copies of all drawings on AutoCAD disks shall be transmitted from
DESIGN/BUILD FIRM to the Contract Administrator within seven (7) calendar days of
termination of this Agreement in addition to the record drawing. The provisions of this
clause shall survive the completion of this Agreement and shall thereafter remain in full
force and effect. Any compensation due to DESIGN/BUILD FIRM shall be withheld until
all documents are received as provided herein. Notwithstanding the foregoing, the
CITY retains ownership of any and all documents provided to the DESIGN/BUILD FIRM
and has full use thereof without any further payment.
51.07 RECORDS
DESIGN/BUILD FIRM shall keep such records and accounts and require any and all
architects, consultants and subcontractors to keep records and accounts as may be
necessary in order to record complete and correct entries as to personnel hours
charged to this engagement. Such books and records will be available at all reasonable
times for examination and audit by CITY and shall be kept for a period of three (3) years
after the completion of the Project pursuant to this Agreement. Incomplete or incorrect
entries in such books and records will be grounds for disallowance by CITY of any fees
or expenses based upon such entries.
51.08 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY, AND
AMERICANS WITH DISABILITIES ACT
DESIGN/BUILD FIRM shall not unlawfully discriminate against any person in its
operations and activities in its use or expenditure of the funds or any portion of the
funds provided by this Agreement and shall affirmatively comply with all applicable
provisions of the Americans with Disabilities Act in the course of providing any services
funded in whole or in part by CITY, including Titles I and 11 of the (regarding
nondiscrimination on the basis of disability), and all applicable regulations, guidelines,
and standards.
DESIGN/BUILD FIRM'S decisions regarding the delivery of services under this
Agreement shall be made without regard to or consideration of race, age, religion, color,
gender, sexual orientation, national origin, marital status, physical or mental disability,
political affiliation, or any other factor which cannot be lawfully or appropriately used as
a basis for service delivery.
DESIGN/BUILD FIRM 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,
53
age, religion, color, gender, sexual orientation, national origin, marital status, political
affiliation, or physical or mental disability. In addition, DESIGN/BUILD FIRM 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.
DESIGN/BUILD FIRM 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.
DESIGN/BUILD FIRM shall not engage in or commit any discriminatory practice in
violation of the CITY'S Human Rights Ordinance in performing the Scope of Services or
any part of the Scope of Services of this Agreement.
51.09 NO CONTINGENT FEE
DESIGN/BUILD FIRM warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for DESIGN/BUILD FIRM to
solicit or secure this Agreement and that it has not paid or agreed to pay any person,
company, corporation, individual or firm, other than a bona fide employee working solely
for DESIGN/BUILD FIRM, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. For the
breach or violation of this provision, CITY shall have the right to terminate the
Agreement without liability at its discretion, to deduct from the Contract price, or
otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
51.10 ALL PRIOR AGREEMENTS SUPERSEDED: AMENDMENTS
The Contract Documents incorporate and include all prior negotiations,
correspondence, conversations, agreements or understandings applicable to the
matters contained herein, and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are
not contained in the Contract Documents. Accordingly it is agreed that no deviation from
the terms hereof shall be predicated upon any prior representations or agreements
whether oral or written.
It is further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document
executed with the same formality and of equal dignity herewith.
54
51.11 NOTICES
Whenever either party desires to give notice unto the other, it must be given by written
notice, sent by certified United States mail, with return receipt requested, addressed to
the party for whom it is intended, at the place last specified; and the place for giving of
notice shall remain such until it shall have been changed by written notice in compliance
with the provisions of this paragraph. For the present, the parties designate the
following as the respective places for giving of notice, to wit:
FOR CITY:
City of Miami Beach
Capital Improvement Projects Office
1700 Convention Center Drive
Miami Beach. Florida 33139
c/o CIP Director
WITH COPY TO:
City of Miami Beach
1700 Convention Center Drive
Miami Beach. Florida 33139 .
c/o City Manaoer
and
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
c/o City Attorney
FOR DESIGN/BUILD FIRM:
Tran Construction. Inc.
420 Lincoln Road
Miami Beach. Florida 33139
c/o Henry Louden
51.12 TRUTH-IN-NEGOTIATION CERTIFICATE
Signature of this Agreement by DESIGN/BUILD FIRM shall act as the execution of a
truth-in-negotiation certificate stating that wage rates and other factual unit costs
supporting the compensation of this Agreement are accurate, complete, and current at
the time of contracting. The original Contract price and any additions thereto shall be
adjusted to exclude any significant sums by which CITY determines the Contract price
55
was increased due to inaccurate, incomplete, or non-current wage rates and other
factual unit costs. All such Contract adjustments shall be made within one (1) year
following completion and acceptance of the Project.
51.13 INTERPRETATION
The parties hereto acknowledge and agree that the language used in this Agreement
expresses their mutual intent, and no rule of strict construction shall apply to either party
hereto. The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. All personal
pronouns used in this Agreement shall include the other gender, and the singular shall
include the plural, and vice versa, unless the context otherwise requires. Terms such as
"herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and
not to the particular sentence, paragraph or section where they appear, unless the
context requires otherwise. Whenever reference is made to a Section or Article of this
Agreement, such reference is to the Section or Article as a whole, including all of the
subsections and subparagraphs of such Section or Article, unless the reference is
expressly made to a particular subsection or subparagraph of such Section or Article.
51.14 RECYCLED CONTENT
In support of the Florida Waste Management Law, DESIGN/BUILD FIRM is encouraged
to supply any information available regarding recycled material content in the products
provided. CITY is particularly interested in the type of recycled material used (such as
paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in
the product. CITY also requests information regarding any known or potential material
content in the product that may be extracted and recycled after the product has served
its intended purpose.
51.15 PUBLIC ENTITY CRIMES ACT
In accordance with the Public Entity Crimes Act, Section 287.133, Florida Statutes, a
person or affiliate who is a contractor, consultant or other provider, who has been
placed on the convicted vendor list following a conviction for a Public Entity Crime, may
not submit a bid on a contract to provide any goods or services to the CITY, may not
submit a bid on a contract with the CITY for the construction or repair of a public
building or public work, may not submit bids on leases of rea1 property to the CITY, may
not be awarded or perform work as a contractor supplier, subcontractor or consultant
under a contract with the CITY and may not transact any business with the CITY in
excess of the threshold amount provided in Section 287.017, Florida Statutes, as
amended, for category two purchases for a period of 36 months from the date of being
placed on the convicted vendor list. Violation of this section shall result in cancellation of
the CITY purchase and may result in debarment.
56
51.16 APPLICABLE LAW AND VENUE
This Contract shall be enforceable in Miami-Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein, exclusive venue for the enforcement of same shall be in Miami-Dade
County, Florida. BY ENTERING INTO THIS CONTRACT, DESIGN/BUILD FIRM AND
CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY
JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF THE
PROJECT. DESIGN/BUILD FIRM SHALL SPECIFICALLY BIND ITS PROJECT TEAM
MEMBERS AND ANY AND ALL SUBCONTRACTORS TO THE PROVISIONS OF THE
CONTRACT.
57
.,..
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
first above written.
ATTEST:
OF MIAMI BEACH, FLORIDA
~PLPaA-~
Robert Parcher, City Clerk
DBF MUST EXECUTE THIS CONTRACT AS INDICATED BELOW. USE
CORPORATION OR NONCORPORATION FORMAT, AS APPLICABLE.
[If incorporated sign below]
ATTEST:
DESIGN/BUILD FIRM/
Tran Construction, Inc.
~tUt A57rro>fi/h1) k.
(Name of Corporation "
By:
(Corporate Seal)
(President)
I~~'; fe,:/Ht &;k-l-
( rint Name and Title))
.;?/~ay of h~jN- , 20~
[If not incorporated sign below]
DESIGN/BUILD FIRM/
Tran Construction, Inc.
WITNESSES:
(Name of Firm)
By:
(Signature)
(Print Name and Title)
NIPROVEDASlO day of , 20
FORM & I.ANGUAGE -
~~~VE (5) FULLY-EXECUTED CONTRACTS, FOR DISTRIBUTION.
~-1it 1~!01
58
ATTN:
PROJ:
/~
tl':
TRAN
CONSTRUCTION
MR. JORGE CHARTRAND PHONE#:
OCEANFRONT RESTROOMS FAX #:
21 RR & CONCESSION, 46RR & CONCESSION, & 64 RR ONLY
305-673-7000
305-673.7000
DATE:
REVISION:
TRAN #:
11/1 0/2004
4
3707
QTY UNIT CC DESCRIPTION I 21 RR&C 46RR&C 64RRONL Y TOTAL
DIVISION 1 GENERAL CONDITIONS
1 EA 10600 P & P BONDS I $ 6,000 $ 6,000 $ 4,725 $ 16,725
1 EA 10600 BUILDERS' RISK INSURANCE $ 2,000 $ 2,000 $ 1,575 $ 5,575
1 EA 10600 GENERAL LIABILITY INS $ 4,000 $ 4,000 $ 3,150 $ 11,150
1 EA 10600 W.C. INSURANCE $ 1,000 $ 1,000 $ 788 $ 2,788
4 MOS 10600 TEMP PHONE $ 400 $ 400 $ 400 $ 1,200
1 EA 10600 SIGNAGE $ 300 $ 300 $ 300 $ 900
4 MOS 10600 PHOTOS $ 280 $ 280 $ 280 $ 840
8 LS 10600 DUMPSTERS $ 2,400 $ 2,400 $ 1,800 $ 6,600
4 MOS 10600 TOILETS $ 400 $ 400 $ 400 $ 1,200
2000 LF 10600 TEMP FENCE $ 4,580 $ 4,580 $ 4,580 $ 13,740
1 SETS 10600 TEMP GATES $ 500 $ 500 $ 500 $ 1,500
4 MOS 10600 TEMP ELECT $ 400 $ 400 $ 400 $ 1,200
1 LS 10600 TEMP ELECT SETUP $ 600 $ 600 $ 600 $ 1,800
1 LS 10600 TRAILER SETUP I $ 500 $ 500 $ 500 $ 1,500
1 LS 10600 TRAILER MOVE $ 600 $ 600 $ 600 $ 1,800
4 MOS 10600 STORAGE CONTAINERS $ 400 $ 400 $ 400 $ 1,200
4 MOS 10600 GENERAL CLEANUP $ 1,200 $ 1,200 $ 1,200 $ 3,600
1 LS 10600 FINAL CLEANUP $ 500 $ 500 $ 500 $ 1,500
4 MOS 10600 VEHICLE LEASES $ 2,400 $ 2,400 $ 2,400 $ 7,200
4 MOS 10600 FUEL $ 1,200 $ 1,200 $ 1,200 $ 3,600
1 LS 10600 SMALL TOOLS $ 500 $ 500 $ 500 $ 1,500
4 MOS 10600 EQUIPMENT RENTAL $ 800 $ 800 $ 800 $ 2,400
4 MOS 10600 SCHEDULING $ 1,333 $ 1,333 $ 1,333 $ 4,000
4 MOS 10600 SUPERVISION $ 4,167 $ 4,167 $ 4,167 $ 12,500
4 MOS 10600 PROJECT MGMT $ 6,250 $ 6,250 $ 6,250 $ 18,750
1 EA 10600 ARCHITECT FEES $ 14,030 $ 15,800 $ 12,500 $ 42,330
DIVISION 2 SITEWORK
1 LS 20000 DEMOLITION $ 2,000 $ 2,000 $ 2,000 $ 6,000
1 LS 20000 SOIL TREATMENT $ 1,500 $ 1,500 $ 12,000 $ 15,000
1 LS 20000 LANDSCAPE $ 3,500 $ 3,500 $ 3,500 $ 10,500
1 LS 20000 IRRIGATION $ 3,500 $ 3,500 $ 3,500 $ 10,500
1 LS 60400 SITEWORK $ 11,520 $ 11,520 $ 9,216 $ 32,256
1 LS 60400 WATER & SEWER $ 15,500 $ 15,500 $ 12,400 $ 43,400
DIVISION 3 CONCRETE
1 LS 30200 SHELL $ 94,062 $ 83,904 $ 49,056 $ 227,022
1 LS 30200 LIGHTWEIGHT CONCRETE $ 5,760 $ 5,760 $ 4,608 $ 16,128
1 LS 30200 NEW SIDEWALKS I $ 11,375 $ 11,375 $ 11,375 $ 34,125
DIVISION 5 METALS
1 I LS 50500 STRUCTURAL STEEL $ 4,500 $ 4,500 $ 3,600 $ 12,600
1 LS 50800 MISC METALS I $ 2,500 $ 2,500 $ 2,500 $ 7,500
DIVISION 6 WOOD & MILLWORK
1 I LS 60000 PT NAILERS I $ 3,480 $ 3,480 $ 2,784 $ 9,744
DIVISION 7 THERMAL & MOISTURE PROTECTION
1 I LS 80200 ROOF $ 6,058 $ 6,058 $ 4,846 $ 16,962
1 LS 80200 WATERPROOFING $ 3,263 $ 3,263 $ 2,610 $ 9,135
DIVISION 8 DOORSIWINDOWS
1 LS 80200 ROLLUP DOORS $ 7,300 $ 7,300 $ 5,840 $ 20,440
1 LS 80200 LOUVERS $ 10,500 $ 10,500 $ 8,400 $ 29,400
1 LS 80200 DOORS, FRAMES & HARDWARES $ 5,400 $ 5,400 $ 4,320 $ 15,120
21 EA 80200 INSTALL DOORS & FRAMES $ 1,785 $ 1,785 $ 1,615 $ 5,185
14 EA 80200 INSTALL HARDWARE $ 1,680 $ 1,680 $ 1,440 $ 4,800
DIVISION 9 FINISHES I
1 I LS 92000 FLOORING $ 9,880 $ 9,880 $ 7,904 $ 27,664
1 LS 90200 METAL WALLS & DRYWALL $ 17,836 $ 17,836 $ 12,128 $ 47,800
1 LS 99000 PAINT $ 2,230 $ 2,230 $ 1,784 $ 6,243
DIVISION 10 SPECIALTIES
1 I LS 101200 SCUPPERS $ 2,400 $ 2,400 $ 1,920 $ 6,720
37070CEANFRONTRESTROOMSPROPOSAL(2)-21 RR&C-46RR&C-64RR (4)-11/10/2004
:r~)
TRAN
CONSTRUCTION
ATTN: MR. JORGE CHARTRAND PHONE#: 305-673-7000 DATE: 11/1 012004
PROJ: OCEANFRONT RESTROOMS FAX#: 305-673-7000 REVISION: 4
21 RR & CONCESSION, 46RR & CONCESSION, & 64 RR ONLY TRAN #: 3707
1 LS 101200 SIGNAGE $ 800 $ 800 $ 640 $ 2,240
1 LS 101200 TOILET PARTITIONS $ 2,500 $ 2,500 $ 2,125 $ 7,125
1 LS 100100 TOILET ACCESSORIES $ 11,300 $ 11,300 $ 9,605 $ 32,205
DIVISION 15 MECHANICAL
1 I LS 150100 HVAC $ 3,600 $ 3,600 $ 2,880 $ 10,080
1 LS 150300 PLUMBING $ 22,000 $ 22,000 $ 14,960 $ 58,960
DIVISION 16 ELECTRICAL
1 LS 160100 ELECTRICAL $ 19,225 $ 19,225 $ 13,073 $ 51,523
SUBTOTAL $ 343,693 $ 335,305 $ 264,477 $ 943,475
OVERHEAD 8% $ 27,495 $ 26,824 $ 21,158 $ 75,478
SUBTOTAL $ 371,188 $ 362,129 $ 285,635 $ 1,018,953
FEE 6% $ 22,271 $ 21,728 $ 17,138 $ 61,137
TOTAL $ 393,460 $ 383,857 $ 302,774 $ 1,080,090
PLEASE CALL WI ANY QUESTIONS REG
SUBMITTED BY:
11/10/2004
MR. HENRY T. LOUDEN DATE MR. JORGE CHARTRAND DATE
TRAN CONSTRUCTION, INC. OCEANFRONT RESTROOMS
THIS PROPOSAL IS FOR 21 STREET (RE TROOM & CONCESSION), 46 STREET (RESTROOM & CONCESSION) & 64 STREET (RESTROOM ONLY)
EXCLUSIONS:
PERMIT FEES
SECURITY SYSTEM
COMPUTER JACKS & WIRING, PHONE JACKS & WIRING
TESTING, SURVEYS
37070CEANFRONTRESTROOMSPROPOSAL(2)-21 RR&C-46RR&C-64RR (4)-11/10/2004