2007-26469 Reso
RESOLUTION NO. 2007-26469
A RESOLUTION BY THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, TO CONSIDER APPROVAL, ON FIRST
READING, OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH AND UIA MANAGEMENT, LLC (UIA) FOR THE DESIGN,
DEVELOPMENT, AND CONSTRUCTION OF CERTAIN IMPROVEMENT
TO A PORTION OF LINCOLN ROAD MALL, BETWEEN LENOX AVENUE
AND ALTON ROAD, INCLUDING, WITHOUT LIMITATION,
STREETSCAPE, STREET FURNITURE, LANDSCAPING, DECORATIVE
FOUNTAINSIWATER FEATURES, AND CORRESPONDING LIGHTING,
IRRIGATION, AND DRAINAGE SYSTEMS ("THE PROJECT"), AND
WHICH INCLUDES THE CLOSURE OF THE AFORESTATED PORTION
OF LINCOLN ROAD MALL TO VEHICULAR TRAFFIC, AND DESIGN,
DEVELOPMENT, AND CONSTRUCTION OF A NEW PUBLIC
PEDESTRIAN PLAZA, EXTENDING THE PEDESTRIAN PORTION OF
LINCOLN ROAD MALL FURTHER TO THE WEST (TO INCLUDE THE
REFERENCED AREA BETWEEN LENOX AVENUE AND ALTON ROAD);
SAID PROJECT HAVING A TOTAL BUDGET COST TO THE CITY, IN
THE CURRENT ESTIMATED AMOUNT OF $5,876,710, WITH CITY
FUNDING TO BE APPROPRIATED FROM MIAMI BEACH
REDEVELOPMENT AGENCY (HISTORIC CONVENTION VILLAGE/CITY
CENTER RDA) FUNDS; AND FURTHER SETTING THE SECOND AND
FINAL READING OF THE DEVELOPMENT AGREEMENT FOR A TIME
CERTAIN ON MARCH 14,2007.
WHEREAS, the City is the owner of certain land located on Lincoln Road, between
Lenox Avenue and Alton Road, in Miami Beach, Florida (the Property); and
WHEREAS, UIA Management, LLC (Developer) is the owner of certain land
adjacent to the Property, located at 1111 Lincoln Road, Miami Beach (the 1111 Lincoln
Road Property); and
WHEREAS, the Design Review Board of the City approved the renovation of the
existing office building, and the construction of a new two story mixed-use building and a
new seven story mixed-use parking structure on the 1111 Property (collectively, the 1111
Lincoln Project), pursuant to an Order dated February 7,2006, under ORB File No. 19018
(the ORB Order); and
WHEREAS, the Board of Adjustment of the City approved the 1111 Lincoln Project,
pursuant to an Order dated March 3, 2006, under File No. 3178 (the BOA Order); and
WHEREAS, as a condition under each of the ORB Order and the BOA Order, the
Developer, as the owner of the 1111 Lincoln Road Property, was required to enter into
discussions with the City to explore the possibility of closing the block of Lincoln Road,
between Lenox Avenue and Alton Road, to vehicular traffic, and extending the Lincoln
Road pedestrian mall west to Alton Road; and
WHEREAS, the Historic Preservation Board of the City issued a Certificate of
appropriateness, granting approval of the closing of the block of Lincoln Road, between
Lenox Avenue and Alton Road, to vehicular traffic and the extension of the Lincoln Road
pedestrian mall, West to Alton Road, pursuant to an Order dated November 14, 2006,
under File No. 4161; and
WHEREAS, on November 26, 2006, the Finance and Citywide Projects Committee
approved Developer's conceptual plan for the closure of Lincoln Road, from Lenox Avenue
to Alton Road, and the construction of a new pedestrian mall (the Conceptual Plan); and
WHEREAS, on December 6, 2006, the City Commission approved the Conceptual
Plan; and
WHEREAS, following the City Commission's approval of the Conceptual Plan, the
City Administration and Developer have met to negotiate the terms of a proposed
Development Agreement, whereby the Developer would undertake design, development,
and construction of certain public improvements to the Property, substantially in
accordance with the Conceptual Plan; said improvements consisting of a pedestrian plaza
and including, without limitation, streetscape, street furniture, landscaping, decorative
fountains/water features and accompanying lighting, irrigation and drainage systems (the
Project); and
WHEREAS, the proposed Project costs, in the currently estimated amount of
$5,876,710, shall be funded by the City, with funding available from City Center
Redevelopment Area funds; and
WHEREAS, accordingly, the City and Developer have negotiated the attached
Development Agreement, and would hereby recommend that the Mayor and City
Commission approve the Agreement on First Reading, as required pursuant to the Florida
Local Government Development Act, Section 163.3220, et. seq., Florida Statutes; and
WHEREAS, if approved on First Reading, the Administration would further
recommend that the Mayor and City Commission set the public hearing for Second and
Final Reading on March 14, 2007.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve, on First Reading, a Development Agreement between the
City and UIA Management, LLC (UIA), for the design, development, and construction of
certain improvements to a portion of Lincoln Road Mall, between Lenox Avenue and Alton
Road, including, without limitation, streetscape, street furniture, landscaping, decorative
fountains/water features, and corresponding lighting, irrigation, and drainage systems (the
Project), and which includes the closure of the aforestated portion of Lincoln Road Mall to
vehicular traffic, and design, development, and construction of a new public pedestrian
plaza, extending the pedestrian portion of Lincoln Road Mall further to the West (to include
the referenced area between Lenox Avenue and Alton Road); said Project having a total
budget cost to the City, in the current estimated amount of $5,876,71 0, with City funding to
be appropriated from Miami Beach Redevelopment Agency (Historic Convention
Village/City Center RDA) funds; and further setting the Second and Final Reading of the
Development Agreement for a time certain on March 14, 2007 .
ATTEST:
U~& PCiA~
CITY CLERK
APPROVED, ON FIRST READING this 14th day fer a
Robert Parcher
JMG: RCMITM/FHB/RTH
T:\AGENDAI2007Ifeb1407IRegularlLincoln Road Mall Dev Agreement RES.doc
APPROVED AS TO
FORM & LANGUAGE
& F CUTION
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COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution to consider approval, on first reading, of a Development Agreement between the City Of
Miami Beach and UIA Management, LLC (UIA) for the design, development, and construction of
certain improvements to a portion of Lincoln Road Mall, between Lenox Avenue and Alton
Road.
Ke Intended Outcome Su orted:
Maintain or improve traffic flow.
Issue:
Shall the Mayor and City Commission approve the development agreement with UIA Management?
Item Summa /Recommendation:
The developer of the parking garage at 1111 Lincoln Road encouraged by the Design Review Board,
developed conceptual plans to build a pedestrian mall on the 1100 block of Lincoln Road. The
approval of this conceptual plan by the City Commission on December 6,2006 was followed by the
presentation of a term sheet, by the developer, to be further negotiated into a proposed development
agreement. On January 25,2007, the Finance and Citywide Projects Committee approved the term
sheet that would serve as the basis for the development agreement to be forwarded for consideration
by the City Commission.
The development agreement's main components are:
Scope of work
Design and construction terms.
Project costs to be funded by the City Center RDA in the amount of $5,876,710, plus
change orders due to unforeseen or unknown conditions.
Developer contribution of $162,749 for sidewalk, curbs and gutter; $290,000 in cash or
in-kind for design and legal fees.
Contractual responsibilities and conditions.
Entry into a development agreement with UIA Management, LLC is in the best interest of the City
because:
Conceptual plans have already been completed at developer's cost.
Developer has agreed to match the City's Art in Public Places contribution.
Savings in general conditions and other expenses.
Better coordination by building the pedestrian mall and parking garage by the developer.
Benefits of having the developer construction management team on site.
The Administration recommends a rovin the Resolution on First Readin .
Adviso Board Recommendation:
The Desi n Review Board - Historic Preservation Board - Finance/Cit
Financial Information:
Source of Amount Account Approved
Funds: 1
D 2
3
4
OBPI Total
Financial Impact Summary:
Cit
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...,.
MIAMI BlEACH
AGENDA ITEM
DATE
R7J3
~- }LJ-07
m
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beoch, Florida 33139, www.miamibeachfl.gov
TO:
FROM:
DATE:
SUBJECT:
COMMISSION MEMORANDUM
Mayor David Dermer and Members of the City Commission
Jorge M. Gonzalez, City Manager I V"-' r
February 14, 2007 (J
A RESOLUTION TO CONSIDER APPROVAL, ON FIRST READING, OF A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND
UIA MANAGEMENT, LLC (UIA) FOR THE DESIGN, DEVELOPMENT, AND
CONSTRUCTION OF CERTAIN IMPROVEMENT TO A PORTION OF LINCOLN
ROAD MALL, BETWEEN LENOX AVENUE AND ALTON ROAD, INCLUDING,
WITHOUT LIMITATION, STREETSCAPE, STREET FURNITURE,
LANDSCAPING, DECORATIVE FOUNTAINSIWATER FEATURES, AND
CORRESPONDING LIGHTING, IRRIGATION, AND DRAINAGE SYSTEMS ("THE
PROJECT"), AND WHICH INCLUDES THE CLOSURE OF THE AFORESTATED
PORTION OF LINCOLN ROAD MALL TO VEHICULAR TRAFFIC, AND DESIGN,
DEVELOPMENT, AND CONSTRUCTION OF A NEW PUBLIC PEDESTRIAN
PLAZA, EXTENDING THE PEDESTRIAN PORTION OF LINCOLN ROAD MALL
FURTHER TO THE WEST (TO INCLUDE THE REFERENCED AREA BETWEEN
LENOX AVENUE AND ALTON ROAD); SAID PROJECT HAVING A TOTAL
BUDGET COST TO THE CITY, IN THE CURRENT ESTIMATED AMOUNT OF
$5,876,710, WITH CITY FUNDING TO BE APPROPRIATED FROM MIAMI
BEACH REDEVELOPMENT AGENCY (HISTORIC CONVENTION
VILLAGE/CITY CENTER RDA) FUNDS.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution
BACKGROUND
Lincoln Road has been Miami Beach's best known commercial corridor since the city was
first developed. It was primarily the product of Carl Fisher, who named the street after
Abraham Lincoln. Early developments on Lincoln Road included Carl Fisher's residence, the
Lincoln Hotel (Fisher's first hotel) located at Lincoln Road and Washington Avenue, the
Community Church located on land donated by Carl Fisher at Lincoln Road and Drexel
Avenue, and the Carl Fisher office building (now Van Dyke's) at Lincoln Road and Jefferson
Avenue. Frequently referred to as Miami Beach's Fifth Avenue, Lincoln Road contained
many of South Florida's and America's most prominent retailers, including Bonwit Teller,
Saks Fifth Avenue, Elizabeth Arden, Doubleday, and others. The quality and variety of
merchandise available on Lincoln Road figured prominently in Miami Beach promotional
literature and was a significant factor in the development of Miami Beach as a visitor and
residential destination.
In an effort to compete with the development of suburban shopping centers, eight blocks of
Lincoln Road were closed to vehicular traffic in 1959. A pedestrian mall with fountains,
flower beds, and shade/display structures was designed by architect Morris Lapidus, one of
the most famous of the local architects of the time. Lapidus was also the architect of the
Fontainebleau Hotel, Eden Roc Hotel, and the Miami Beach Convention Center. The design
of the mall and the motorized tram system were considered very progressive and were
expected to re-establish Lincoln Road's primacy among local commercial districts. It was
during this time that many historic buildings and storefronts were "updated" with the addition
of false facades and modern surfaces.
During the 1960's and 1970's, Lincoln Road experienced a decline due to a variety of
reasons, including reduced tourism, increased competition from Bal Harbour and other
suburban shopping centers, as well as the lessening income of surrounding residents. In
1994 a substantial renovation and rehabilitation of the original Lapidus design of Lincoln
Road was completed. As part of this renovation, the vehicular access from Alton Road to
Lenox Avenue was redesigned, incorporated a large landscaped median. The overall
design concept of this median, in conjunction with the pedestrian sidewalks and parking
spaces has proven to be disjointed, cumbersome and generally unsuccessful.
In order to address this shortcoming, as well as provide a more gracious pedestrian
experience, the developer of the recently approved parking garage project 1111 Lincoln
Road, in accordance with a request from the Design Review Board, has proposed a plan
that eliminates the vehicular access between Alton Road and Lenox Avenue and replaces it
with a new pedestrian plaza, extending the pedestrian portion of Lincoln Road west to Alton
Road. The new plaza design will be organic in nature, characterized by groupings of mature
cypress trees.
When the Design Review Board approved the new parking garage with ground level
accessory commercial uses at the intersection of Lincoln Road and Alton Road, the
applicant was encouraged to enter into discussions with the City relative to exploring the
possibility of closing this block of Lincoln Road to vehicular traffic and extending the
pedestrian mall all the way through to Alton Road. The extension of the very successful
pedestrian mall will enhance this portion of Lincoln Road and reinforce the pedestrian
experience along the mall from Washington Avenue through to Alton Road. Although
planning staff encouraged the applicant to investigate the original design proposed for this
block of Lincoln Road by Morris Lapidus, the administration believes the latest proposal is
appropriate, considering the scale and design of the modern architecture that will frame the
western gateway to Lincoln Road, including the Cinema building and the iconic parking
garage approved.
The Historic Preservation Board endorsed the proposal on November 14, 2006, and the
Visitor and Convention Authority Committee issued a resolution in support of this project.
The Miami Design Preservation League also supports the project. The City has received
letters of support from property owners located at the 1100 block of Lincoln Road and
several letters of endorsement from Miami Beach residents.
The developer completed a traffic impact analysis to address concerns related to added
vehicular traffic congestion in the area resulting from the street closure. This analysis
showed that the closure of Lincoln Road and subsequent traffic conditions will have no
significant impact on adjacent streets, specifically along Alton Road and Lenox Avenue, from
16th Street to 1 ih Street. The analysis established that the aforementioned streets have
sufficient capacity to carry over the diverted traffic. The busiest intersection, 1 ih Street and
Alton Road is already in compromised levels of service, and the closure will have minimal
impact to the intersection.
Operational analysis conducted for future conditions at other adjacent intersections (Alton
Road and Lincoln Road; Alton Road and 16th Street; Lenox Avenue and 1ih Street; Lenox
Avenue at Lincoln Road; Lenox Avenue at 16th Street) indicates that these intersections will
continue to operate at current levels of service with no added deterioration in level of service.
The elimination of the westbound movement also reduces conflicts with vehicles on Alton
Road allowing a better operation at 1 ih Street and Alton Road intersections.
On November 22, 2006 the Finance and Citywide Projects Committee approved the
conceptual plan for the closure of Lincoln Road from Lenox Avenue to Alton Road and the
construction of a new pedestrian mall. The Committee's recommendation was forwarded to
the City Commission for its consideration. The City Commission at its meeting on December
6, 2006 approved the concept plan developed by the 1111 Lincoln Road developer. On
January 25, 2007, the Finance and Citywide Project Committee approved the term sheet
that would serve as the basis for the development agreement between the City and UIA
Management for the design and construction of a pedestrian mall on the 1100 block of
Lincoln Road.
ANAL YSIS
Since the December Commission meeting, the City staff has met several times with UIA to
further develop design concepts, construction schedules, and cost estimates, plus terms and
conditions for a negotiated development agreement between UIA and City of Miami Beach.
The highlights of the proposed development agreement, which can be found in the
Resolution, are as follows:
Scope of Project: The closure of a portion of Lincoln Road between Lenox Avenue and
Alton Road to vehicular traffic, and the construction of a new design for the extension of the
Lincoln Road pedestrian mall west to Alton Road. The vehicular access that exists between
Alton Road and Lenox Avenue will be removed and replaced with a new pedestrian plaza,
extending the pedestrian portion of Lincoln Road further to the west. The new plaza design
will be organic in nature, characterized by, among other things, grouping mature cypress
trees. (See Exhibit "A & B").
Design and Construction Team: City has approved UIA's selection of the Architect and the
General Contractor to design and construct, respectively, the improvements. City shall have
a right to approve the final architect's agreement and construction contract. Additionally, City
will have a right to approve all change orders, which approval shall not be unreasonably
withheld conditioned or delayed.
Project Costs: The costs of the improvements, in the amount of $5,876,710 shall be
funded by the City. UIA shall enter into a cost plus with a guaranteed maximum price
contract for the hard costs with the General Contractor. At 50% construction drawings, UIA
shall submit the costs of the improvements for bids. If the Project is out of budget, the
Architect, the General Contractor and the other professionals shall be required to value
engineer the Project (at their sole cost) to bring it back into budget. City shall not be
responsible for the disbursement of any sums in excess of the Budgeted Cost of
improvements, except for approved change orders resulting from events outside of UIA's
control. The construction contract shall limit the grounds for approved change orders to City
requested change orders, force majeure events, building department field inspector
requirements not reflected on the plans and specifications, acts or omissions of the City,
material and substantial changes in the improvements not caused by UIA and concealed or
unknown conditions (See Exhibit "C").
UIA Costs: UIA shall fund approximately $162,749 in addition to the Costs to City for the
replacement of sidewalks, curbs and gutters on the Project Site. To date, UIA has
contributed approximately $290,000 in cash or in kind benefits related to the design of the
project, legal fees and other out of pocket incurred expenses.
Public Benefits: The public will benefit in several ways from the proposed Project: (a) 1100
block of Lincoln developer has already contributed to approximately $290,000 in cash or in
kind in the conceptual design of the project, legal fees and other out of pocket expenses; (b)
the developer has agreed to match the City's Art in Public Places contribution to the project
(c) by contracting with an affiliate of the developer of the adjoining 1111 Lincoln Road project
to develop the Project, the public will realize significant savings in general conditions and
other expenses related to the construction of the Project; (d) having a single Developer and
General Contractor building both the new mixed-use building on the 1111 Lincoln Road
project and the Project will minimize disruption and ensure better coordination of the two
projects; and (e) the City benefits by having the developer's construction management and
design teams on site coordinating the construction of the pedestrian mall.
General Contractual Terms and Responsibilities: Such as contract time, developer and
City responsibilities, progress payments, acceptance and final payment, resolution of
disputes, inspection of project, superintendents and supervision, rights to terminate,
warranty, defective work, change orders, substantial completion, bonds and insurance,
miscellaneous
FISCAL IMPACT
The closure and the construction of a pedestrian mall on Lincoln Road between Lenox
Avenue and Alton Road will require City funding in the amount of $5,876,710 from the City
Center RDA. The City will also agree to fund any and all change orders due to unforeseen or
unknown conditions.
JMG/TH/RCM/FHB/RTH
T:\AGENDA\2007Ifeb1407\RegularlLincaln Road Mall Dev Agreement.doc
EXHIBIT "A"
SCHEMATIC
ALTON ROAD
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LENOX AVENUE
EXHIBIT "B"
ARTIST RENDERINGS
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EXHIBIT "e"
DEVELOPMENT BUDGET
LINCOLN ROAD PEDESTRIAN CONVERSION
ALTON ROAD TO LENOX AVENUE
'" "a.EME>b.111I>N ;CQ$~S, t~", A' * '1;
if;,;* !4.m % ..~ "" * ~;~ :'~h y.' j) W",'.. .... ..;f . ;;A1iXx
.DESCRIPTIQN QUANTITY UNIT UNIT PRICE COST DIVISIQN TOTALS
CIVIL
Demo Asohalt 12,950 SF $ 4.00 $ 51,800
Demo Concrete (including Curb & Gutter) 23,450 SF $ 6.00 $ 140,700
Soil Cut from the Median 550 CY $ 7.00 $ 3,850
Demo Retainina Wall 600 LF $ 30 $ 18,000
Demo Drainaae Inlet 4 EA $ 1,000 $ 4,000
Demo Drainaae Manhole 4 EA $ 1,000 $ 4,000
Demo 12" Storm Drainaae Pioe 300 LF $ 50 $ 15,000
Demo 12: DIP Water Main 350 LF $ 70 $ 24,500
Misc. Utilitv Demo 1 LS $ 50,000 $ 50,000
Subtotal $ 311,850 $ 311.850
LANDSCAPE
LANDSCAPE MATERIAUSITE ELEMENTS
Royal Palms (Rovstonea elata) 25-30' 42 EA $ 3,000 $ 126,000
Triole Solitaire Palms Ptychosoerma elegans 15' 6 EA $ 1,200 $ 7,200
Double Solitaire Palm Plvchosoerma eleaans) 15' 1 EA $ 800 $ 800
Single Solitaire Palm (Ptychosoerma elegans) 15' 2 EA $ 400 $ 800
Queen Palm (Svaarus Romanzofiana) 3 EA $ 500 $ 1,500
Chinese Fan Palm (Livistona chinensis) 35' 4 EA $ 600 $ 2,400
Coconut Palm (Cocos nuciferal25' 2 EA $ 600 $ 1,200
Florida Thatch Palm (Thrinax radiata I 8 EA $ 400 $ 3,200
Subtatal $ 143100 $ 143100
MISC SITE ELEMENTS
Groundcover (oental LS
Sod (Stenotaohrum secundatuml 560 LS
Colored aravel LS
Trash receotacles 9 LS
Larae Iiaht Doles (50', blue) 2 LS
Liaht Doles (white) 16 LS
LandscaDe UDliahts 40 LS
Street Liahts (40') 3 LS
Pay and disolay kiosks 4 LS
Parking signs (handicao, no oarking, etc.) 15 LS
Pay ohone 1 LS
Street signs (directional) 4 LS
Smoker stations 2 LS
Parking coin meters 4 LS
Free standing crosswalk signal 1 LS
U.S. Mailboxes 2 LS
Bus Shelter 1 LS
Bus Stoo Sian 1 LS
Subtotal $ 75 000 $ 75 000
DEMOLITION SUBTOTAL $ 529,950
NEW CONSTRUCTION COSTS
CIVIL
12" DIP Water Main 350 LF $ 120.00 $ 42,000
Trench Drain 850 LF $ 30.00 $ 25,500
18" HDPE Storm Pioe 350 LF $ 30.00 $ 10,500
Drainage Iniection Well 1 LS $ 120,000.00 $ 120,000
Fill Material 250 CY $ 10.00 $ 2,500
Traffic Signal Modification 1 LS $ 120,000.00 $ 120,000
I (Lenox & Alton Intersectionsl
Subtotal Civil $ 320 500 $ 320 500
1 of 2
Prepared by MBeach1 ,LLLP L TD
Construction Manager: Development Solutions Services, LLC
Design Consultant: Herzog de Meuron
Landscape Architect: Raymond Jungles
Civil Engineer: Kimley-Horn
10/24/2006
LINCOLN ROAD PEDESTRIAN CONVERSION
ALTON ROAD TO LENOX AVENUE
[)ESC8IPTION . QUANTITY UNIT UNIT PRICE COST
LANDSCAPE/HARDSCAPE
TREES/PALMS
25' Ht. Everqreen 10 EA $ 25,000 $ 250,000
40' Ht. Specimen Tree 1 EA $ 35,000 $ 35,000
20' Ht. Specimen Tree 2 EA $ 3,000 $ 6,000
20' Ht. Palm 22 EA $ 500 $ 11,000
30' Ht. Conifer 5 EA $ 8,000 $ 40,000
30' Ht. Conifer 5 EA $ 20,000 $ 100,000
SHRUBS
7G, 30" O.C. Shrub 81 EA $ 50.00 $ 4,050
7G, 30" O.C. Native Grass 96 EA $ 18.00 $ 1,728
Native Grass 2,658 SF $ 0.50 $ 1,329
BR, 30" O.CWater plants 146 EA $ 20.00 $ 2,920
SITE FURNISHINGS
Pedra Portugesa stripes (price does not include 40,000 SF $ 12.00 $ 480,000
preparation of sub-base)
3" Limerock base 27,000 SF $ 6.00 $ 162,000
Curb & outter 700 LF $ 25.00 $ 17,500
Custom Seat Cubes 5 EA $ 3,500 $ 17,500
Bicvcle Racks 2 EA $ 1,000 $ 2,000
Trash Receotacles 6 EA $ 1,500 $ 9,000
Subtotal $ 1140027 $ 1.140.027
IRRIGATION
Controller and wirinos 1 LS $ 5,000 $ 5,000
Irrioation per SF of plantina bed & turf 4,000 SF $ 3.00 $ 12,000
Irriaation per tree 33 EA $ 65.00 $ 2,145
Subtotallrriaation $ 19145 S 19 145
FOUNTAINSIWATER FEATURES
Aauatic Features 1 EA $ 1,700,000 $ 1,700,000
Subtotal Fountains & Water features $ 1,700,000 $ 1,700,000
LIGHTING
Conductor F&I No. 10 3,000 LF $ 0.65 $ 1,950
Conductor F&I NO.8 2,400 LF $ 0.85 $ 2,040
Conductor F&I No.6 1,800 LF $ 0.95 $ 1,710
Conductor F&I NO.1 600 LF $ 1.75 $ 1,050
Conduit 2" PVC Sched. 40 (Underaround) 900 LF $ 8.50 $ 7,650
Conduit 1" PVC Sched. 40 (Underaround) 1,200 LF $ 6.25 $ 7,500
Load center (Secondarv voltaae) 1 EA $ 8,000 $ 8,000
Pullbox (Sidewalk) 24 EA $ 270 $ 6,480
Police cable distribution svstem 14 EA $ 950 $ 13,300
Liahtina pole comolete (12' Aluminum) 12 EA $ 5,200 $ 62,400
Flood-Lta Dole comolete (40' Aluminum) 2 EA $ 7,000 $ 14,000
Inaround and landscape Iiahts 36 EA $ 890 $ 32,040
Fountain Iiahts 12 EA $ 500 $ 6,000
Low voltaae transformer 4 EA $ 400 $ 1,600
Subtatal Liahtina $ 165 720 $ 165 720
Continaencv 20% $ 3,875,342 $ 775,068 $ 775,068
Subtotal Demolition and New Construction $ 4,650,410
CONTRACT ADMIN/CARING COSTS/ DESIGN FEES
Desian Fees 1 EA S 632 500 $ 632.500
Subtotal $ 5,282,910
IAdminstration Fee I 8% $ 5.282.910 $ 422 633
Subtotal $ 5,705,543
ICarrvina costs- based on monthlv billinas to Citv 3% $ 5,705,543 $ 171,166
ITOTAL SCHEMATIC ESTIMATED VALUE $ 5,876,710
The aforementioned Opinion of Probable Cost (OPC) is based on schematic plans. The costs shown are based on engineering and
landscape architectural assumptions which will be adjusted upon final determination of the design. This OPC is non-binding and
subject to change.
2 of 2
Prepared by MBeach1 ,LLLP L TO
Construction Manager: Development Solutions Services, LLC
Design Consultant: Herzog de Meuron
Landscape Architect: Raymond Jungles
Civil Engineer: Kimley-Horn
10/24/2006
Draft for First
Reading 2-14-07
This instrument prepared by and
after recording return to:
Adam D. Lustig, Esq.
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Blvd., Suite 2500
Miami, Florida 33131-5340
AGREEMENT
MIAMI BEACH, FLORIDA
and
LLC
for
1100 BLOCK OF LINCOLN ROAD
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of the
_ day of ,2007, by and between the CITY OF MIAMI BEACH,
FLORIDA, a municipal corporation of the State of Florida (the "City") and UIA
MANAGEMENT, LLC, a Delaware limited liability company ("Developer").
RECITALS:
A. The City is the owner of certain land located on Lincoln Road between Lenox
Avenue and Alton Road, in Miami Beach, Florida, more particularlyfieseribed in the attached
Exhibit "A" (the "Project Site").
B. An affiliate or affiliates of Developer, is/are th~. ownef(:jt<;:ertain land adjacent to
the Property located at 1111 Lincoln Road, Miami Beach, Florida, moreJl~icularly in the
attached Exhibit "B" (the "1111 Lincoln Road Property").
C. The Design Review Board of the CityapPI:ovecitherenovation of the existing
office building located on the MBeach1 Property and the~(:).tl.struction of a new two story mixed-
use building and a new seven story mixeci::use parking stru6tiire on the MBeach1 Property
(collectively, the "1111 Lincoln Project"),~l.l!Sllant to an February 7, 2006, under
DRB File No. 19018 (the "DRB Order").
1111 Lincoln Project pursuant
Order").
D. The Board of
to an Order dated March
E. As a conditi(;)];l undere:ach of the DR.BOrder and the BOA Order, the owner of
the 1111 Lincoln Road Prope1.'tywa.~required to e];lter into discussions with the City to explore
the possibility OfelO~il1g the Blo91{of nricdliiRmid between Lenox Avenue and Alton Road to
vehicular tnl:[fica.I1cie){i~i1,ciing theI..iincoln Road pedestrian mall west to Alton Road.
The Historic preservatiohBoard of the City issued a certificate of appropriateness
granting appro\i;;t!.ofthe closirig.oftheBlock of Lincoln Road between Lenox Avenue and Alton
Road to vehiculartr::iffic and the: extension the Lincoln Road pedestrian mall west to Alton Road,
pursuant to an Order (la.ted Noy-ember 14, 2006, under File No. 4161.
G. On Novem.ber 26,2006, the Finance and Citywide Projects Committee of the City
approved Developer's conceptual plan for the closure of Lincoln Road from Lenox A venue to
Alton Road and the construction of a new pedestrian mall (the "Conceptual Plan").
H. On December 6, 2006, the City Commission approved the Conceptual Plan
pursuant to the schematic and design development drawings in the form attached as Exhibit
"C" .
1. The City administration staff and Developer met several times to develop design
concepts, construction schedules, costs estimates and terms and conditions for a negotiated
development agreement between the City and Developer.
J. The Mayor of the City and the City Commission in Resolution No.
, adopted after two duly noticed public hearings held pursuant to the
Development Agreement Act and Section 82-36 through 82-40 of the City Code, determined that
it is in the best interest of the City to waive competitive bidding in accordance with Section 2-
367(e) of the City Code and enter into this Agreement with Developer for the closure of Lincoln
Road from Lenox Avenue to Alton Road and the construction of a new. pedestrian mall.
NOW, THEREFORE, in consideration of the mutual tenn~;'!nd conditions, promises,
covenants and payments hereinafter set forth, the City and D~veloper.;'!gree as follows:
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
For the purposes of this Agreement and the variou.scovenants, conditions, terms and
provisions which follow, the DEFINITIONS and IDENTIFI~.A..TIONS set forth below are
assumed to be true and correct and are agrj;3j;3(!.llpOn by the pafti~~~
Whenever the following terms or pr6i1ounsinpl;,!G~ oftherrrappear in this Agreement the
intent and meaning shall be interpreted as fo11o,\\-,s: . ....
AIPP:
1.1
in Public Places
1.2 Architect: Zyscovich, Inc., a Florida corporation, its successors and assigns. or
another architect selected by Developer and approved by the City in its reasonable discretion, to
design the improvements pursuant to this Agreement.
.De\l'~loper and the City agree aa.(! aClmowledge that the City is an intended third party
beneficiary in:f!IlY contract ent~red into between Developer and Architect, including contracts
entered into wifrrll11Y subcontractors and/or subconsultants. Developer shall therefore submit its
final agreement witll,A..rchitectfo the City, for its review and approval, prior to such agreement
being executed by and'Q~tw~~n Developer and Architect. Additionally, Developer herein
represents to the City that!tsagreement with Architect shall incorporate the terms and conditions
of this Agreement and the Contract Documents, and Developer shall assume sole and absolute
responsibility for binding Architect to same as if Architect were a party to this Agreement. The
City has approved Developer's selection of Architect to design the Improvements and the form of
architect's agreement attached as Exhibit "D".
1.3 BOA Order: BOA Order shall have the meaning set forth in the Recitals.
1.4 Board of Adiustment or BOA: the Board of Adjustment of the City created and
established pursuant to the Land Development Regulations or any board or body which may
succeed to its functions.
1.5 Change Order: A written document ordering a change in the Contract price or
Contract Time or a material change in the Improvements.
1.6 City: The City shall mean the City of Miami Beach, a Florida municipal
corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida
33139, which is a party hereto and/or for which this Agreement is to be performed. In all
respects hereunder, City's performance is pursuant to City's position as the owner of the
Property. 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'sregulatory authority as a
governmental body and shall not be attributable in any manneridCity as a party to this
Agreement.
1.7 City Commission: City Commission shall mean the govemmg and legislative
body of the City.
1.8 City Manager: City Manager shall.l11~an the Ghief Administf<:\,tiveOfficer of the
City.
1.9
Recitals.
Conceptual Plan: Conceptual Plan
the meamng set forth m the
1.10 Construction Drawings:
in Section 3.3.
shall have the meaning set forth
1.11 Constructi~nPhas~: The phas~ of which constitutes Developer's
administration of the c9.Il~!IUctiono~!he Project and all activities necessary for the completion of
the Proj ect. ~.
1.12 Construction Schedule: The schedule for the Project attached as Exhibit "E", as
such schedule may be modified from time to time as a result of a Change Order.
1.13 Consultant: ~h~ registijred architect, professional engineer, professional land
surveyor, civil engineer, ariOZor registered landscape architect who has contracted with
Developer to proY~4~ professii;inal services for the design and construction of the Project, and
who is further licetisijgby th~State of Florida to provide said services. The primary consultant
for this Project shallbet11.~firm of Zyscovich, Inc., a professional services firm duly certified,
licensed and registered as an architectural firm, located at 100 N. Biscayne Boulevard, 27th
Floor, Miami, Florida 33132. When the term "Consultant" is used in this Agreement it shall be
deemed to include Zyscovich, Inc. as the primary consultant, as well as any sub consultants or
subcontractors utilized by Zyscovich for the Project.
Developer and City herein agree and acknowledge that Developer shall utilize
Consultant's Plans and Specifications for the Project for Developer's construction of the Project.
Developer further acknowledges and agrees that Consultant shall render as a Cost of the Work
certain professional services pursuant to this Agreement, including but not limited to, additional
AlE services, as required; Project construction site supervision and/or observations relative to the
Improvements; and the rendering of approvals, opinions, and decisions, all as more specifically
2
set forth in the Contract Documents. Developer herein further agrees and shall require any
Consultant services, including but not limited to those referenced in the preceding sentence,
which will be required pursuant to the Contract Documents, to also be binding upon Developer's
Contractor, subcontractors and subconsultants; to the extent as same are binding upon Developer
as a party pursuant to this Agreement. It shall further be Developer's sole and absolute
responsibility to assure such compliance by its Contractor, subcontractors, and subconsultants.
1.14 Contract: This Agreement and all addenda, exhibits, and amendments thereto
between the City and the Developer for this Project, all as defined herein. (Contract shall mean
the same as Agreement.)
1.15 Contract Documents: The Contract, as apprQyed by the Mayor and City
Commission and executed by the Mayor and City Clerk;.!l1~A.~ AlII Standard Form of
Agreement Between Owner and Contractor, the Addendum to 1, the A201, General
Conditions to the Contract of Construction, any approy~d<:;::hange Ordiji's;Jhe performance and
payment bonds; the Plans and Specifications and allY and all other consti1.;t~tion documents, as
prepared by the Consultant; other construction documents such as CPM, CofistI"U~tion Schedule,
and schedule of values; and any other documents th~~~bmi~siQn of which is required by this
Agreement. When reference is made in the ContractE:)Qcuments to publications, standards or
codes issued by associations or societies, the intent shallQ~ to specify the current or adopted
edition of such publication or standard in~l!!gi]1g revision and effect on the date of the Contract
execution notwithstanding any reference t6a.pai'ti~!!lar date.
1.16 Contractor (or General Contractor): SUffolk Construction Company, Inc., a
Massachusetts corporation,"jt~:;;1Jccessors a.n<i: assigns, another contractor selected by
Developer, and approve<iBy the city in its reasQIlable discretion, to perform the Improvements
pursuant to this Agreemeilt:
DevelopeCq,nd City agr~~llnda.e~()~lt;l<igethat City is an intended third party
beneficiary i~liliYcOfitl'~~~tntered~.Rto between Developer and Contractor, including contracts
entered intQ:with any subcQIl!ractorsand/or subconsultants. The Developer shall therefore submit
its finaLa.gr~t;l1l1ent with Confi:'~l;.;tor totl!~City, for its review and approval, prior to such
agreement beiiig~xecuted bYaiid between Developer and Contractor. Additionally, Developer
herein represeritstQCity that it~a.greement with Contractor shall incorporate the terms and
conditions ofthis AgJ:"~ement lilid the Contract Documents, and Developer shall assume sole and
absolute responsibi1it~~()r binding Contractor to same as if Contractor were a party to this
Agreement. The City has approved Developer's selection of Contractor to construct the
Improvements.
1.17 Contract Administrator: Fred Beckman, the Director of the Public Works
Department of the City, or his designee, shall be designated as the Contract Administrator for
matters concerning this Agreement. The City agrees that a single person shall serve as Contract
Administrator under this Agreement.
Developer herein agrees and shall require that any Contract Administrator services which
will be required pursuant to the Contract Documents, shall also be binding upon Developer's
3
Contractor, subcontractors and subconsultants; to the same extent as same are binding upon
Developer as a party pursuant to this Agreement.
1.18 Contract Sum: The Contract Sum is $5,876,710 in total hard and soft costs to
City, as adjusted for approved Change Orders.
1.19 Contract Time: Contract Time shall have the meaning set forth in Section 6.3.
1.20 Cost of the Work: Cost of the Work shall have the meaning set forth in Section
8.10.
1.21 Defective Work: Defective Work means WQfk that is not performed in
accordance with the Contract Documents, in violation of c<?a~~ill.stalled in violation of the
manufacturer's written instructions where the installation:ihas2~1.i.sed new materials to be
detrimentally affected where the life expectancy of the I11;~t~rial installed.is. reduced, or otherwise
installed in a non-workmanlike manner.
1.22 Design Architects: Raymond Jungles:il.t'l<i Herzog and de Meuroij,
1.23 Design Review Board or DRB: the Design~eview Board of the City created and
established pursuant to the Land Regulations;qr any board or body which may
succeed to its function.
1.24 Developer: UIA Managemertt, LLC~~I)~:v~lopei limited liability company, its
successors and assigns, is th~I)~veloper selecte<ito perfoi1iithe Improvements pursuant to this
Agreement, and is the corporation liable for the acceptable performance of the
Project. All COR1l'fict Documents to third parties under contract or control of
Developer, Contractor~stibcontractors, and subconsultants, shall be
deemed to be a reference to
Development Agreement Act means the Florida
Act, Section 163.3220, et. seq., Florida Statutes.
1.25
Local Government Development
1.26 L>~velopment .A..pproval: Development Approval means any zoning, rezoning,
conditional usespiQial exceptiCin, variance or subdivision approval, concurrency approval under
Section 163 .3180, Fl<?Qda Sta,ttites, or any other official action of local government having the
effect of approving dev~lQpment of land.
1.27 Documents: Documents shall have the meaning set forth in Section 35.1.
1.28 DRB Order: DRB Order shall have the meaning set forth in the Recitals.
1.29 Field Order: A written order issued by the Contract Administrator which orders
minor changes in the Project but which does not involve a change in the total cost or time for
performance.
1.30 Final Completion: The date certified by Consultant that all conditions of the
permits and regulatory agencies have been met, all construction, including corrective and punch
4
list Work, has been performed, pursuant to the Contract Documents, all administrative
requirements of the Contract Documents have been completed, and City has received from
Developer a release of all liens, consent of surety, release of claims by Developer, corrected as-
built drawings, executed final adjusted Change Order(s), copies of pertinent test results,
correspondence and other necessary documentation, including all warranties, guarantees, and
operational manuals, if any.
1.31 Hazardous Materials: As used in this Agreement "Hazardous Materials" means
any chemical, compound, material, substance or other matter that:
1.31.1 is a flammable, explosive, asbestos, r<iQiOac.;tive nuclear medicine,
vaccine, bacteria, virus, hazardous waste, toxic, overtly inj,ll.l:'ibus or potentially injurious
material, whether injurious or potentially injurious by itst;llforin combination with other
materials;
1.31.3 gives rise to any reporting,
any Hazardous Materials Laws, or
1.31.2
Materials Laws;
is controlled, referred to, de$ignated in or
publication requirements under
1.31.4 is any other material or substance glYlng rise to any liability,
responsibility or duty upon the City any third person under any Hazardous
Materials Law.
1.32 Hazardous Materi~ls Laws: As.used in this Agreement, the term "Hazardous
Materials' Laws" meatl~f;lny andl.l.l1 federal, st~t~ or local laws or ordinances, rules, decrees,
orders, regulations or':couFi:<iecisious(including the; $0 called "common law"), including without
limitation the Comprehensiv.~.EnviIOIlIll~ntal R~sponse, Compensation and Liability Act of
1980, as amel1g~Q.(-4:J.~J.l,S.c.'~sQQOl efseq;);the Hazardous Materials Transportation Act, as
amended (4g.U.S.C.~'~t~.~let seq.);:md the Resource Conservation and Recovery Act of 1976,
as amencl~<i<42 U.S.C. S~6~QJ et seij:)!relating to hazardous substances, hazardous materials,
hazardousw~stt;l, toxic substances, environmental conditions on, under or about the Premises,
soil and groundwater conditioU$or other similar substances or conditions.
1.33 HistoncPreser-Vation Board or HPB: the Historic Preservation Board of the City
created and establish~dcI>ll.r:suant to the Land Development Regulations or any board or body
which may succeed to itsfanctions.
1.34 Improvements: The improvements to be constructed on the Project Site
substantially in accordance with the schematic and design development drawings attached as
Exhibit "C".
1.35 Land Development Regulations: Land Development Regulations means Subpart
B (Chapters 114 through 142) of the Code of the City of Miami Beach, Florida, as the same was
in effect as of the date of this Development Agreement.
5
1.36 Notice(s) to Proceed: A written document(s) issued by the Contract
Administrator informing the Developer to officially begin the Project.
1.37 Plans and/or Specifications: The official graphic and descriptive representations
of this Project which, are a part of the Contract Documents.
1.38 Proiect: The Project consists of the closure of a portion of Lincoln Road between
Lenox Avenue and Alton Road to vehicular traffic, and the construction of a new design for the
extension of the Lincoln Road pedestrian mall west to Alton Road. The vehicular access that
exists between Alton Road and Lenox A venue will be removed and replaced with a new
pedestrian plaza, extending the pedestrian portion of Lincoln Road..f1irther to the west. The new
plaza design will be organic in nature, characterized by, amongplher things, grouping mature
cypress trees.
1.39 Proiect Site: Project Site shall have the meaning set forthil1the Recitals.
1.40 Shop Drawings: Drawings, diagra.II1s and schedules (excluging,however, the
CPM Schedule), and other data specially preparedl:i~the Dey:~loper or its sul?i;:6htractors, sub-
subcontractors, manufacturer, supplier or distributor t6ill1J.str;3.tesome portion ofthe Work.
1.41 Subcontractor: The pers()l1, firm or corp6f2ttiQn having a direct contract with
Developer and/or Contractor, including furnishes mati;:l"!<l;l VI orked to a special design
according to the Contract Documents for but dOeStlbt include one who merely
furnishes material not so Worked.
1.42 SubstantiaL€ompletion: Subjec! to the requirements of Article 42, the dates
certified by the Consul~~~!.. that allQQnditions of'tl1e permits and regulatory agencies have been
met for the City's intende:g..Jlse of.'each portionefthe Project, and all construction has been
performed therein in accordijii;:~.~lt~.!l1i:~Agre~lllent and the Contract Documents so City can
fully, as oppo~~gt9P;3.rtially;.aecupybrutili.ze each portion of the Project for its intended
purpose. Atalllinillllifii;~~ertificate of Substantial Completion is one of the requirements for
Sub stan titil([:omp 1 eti on.
1.43 .Sllr~ty: The su~~~y company or individual which is bound by the performance
bond and paymen~il1onds wit1l.imd for Developer and Contractor who is primarily liable and
which surety compafi~Qr individual is responsible for Developer's acceptable performance of
the Work under the COii!r;3.9tDocuments and for the payment of all debts pertaining thereto in
accordance with Section255.05, Florida Statutes.
1.44 Utilities: The public or private systems on the Project site for rendering electrical
power, light, heat, gas, water, communication, sewage systems, and the like.
1.45 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.
6
ARTICLE 2
INTENTION OF AGREEMENT
It is the intent of the Contract Documents to describe a functionally complete Project to
be constructed by Developer in accordance with said Contract Documents. Any Work, materials
or equipment that may reasonably be inferred from the Contract Documents as being required to
produce the intended result will be supplied whether or not specifically called for. When words
which have a well-known technical or trade meaning are used to describe Work, materials or
equipment, such words shall be interpreted in accordance with that me.l:ining. Reference to
standard specifications, manuals or codes of any technical society, ()~ga.f1ization or association, or
to laws or regulations of any governmental authority, whether sUCllfeference be specific or by
implication, shall mean the standard specification, manual, cQde;Ta.~~or regulations in effect at
the time of the completion of design. Applicable laws or code~ that rn~Yl::>e changed after a
permit is issued may result in additional compensation shQuldadditional~()rk be required on
behalf of the Developer.
ARTICLE 3
CONSTRUCTION
3.1 Consistency with City's Comprehensive Plan arrdZoning Regulations. The City
has adopted and implemented the Comprehel1sivePla.n;...The City hereby finds and declares that
the provisions of this Agreement dealing with the Larrd ire consistent with the City's adopted
Comprehensive Plan and RegUlations, sp.bject to all applicable requirements,
permits and approvals.
3.2
submitted an application to the Historic
Project, and the Historic Preservation Board has
Preservation Board
approved the Proj ect.
3;:2;2 If atiny time in the future it shall be necessary in connection with the
construction, recoii~truction oI'Tenovation of the Premises to apply to the Historic Preservation
Board for its review(jrl:ippr()~al of any changes or modifications to the Premises, the City shall
be solely responsible foi':l11a:king such application.
3.3 Design of the Proiect. Developer shall be solely responsible for overseeing and
directing Architect in the design of the Project, and such design shall be substantially in
accordance with the Conceptual Plan. City's prior approval of the Plans and Specifications for
the Improvements, which shall not be unreasonably withheld, conditioned or delayed, shall be
required for the following: (a) schematics, (b) design development drawings, (c) 50%
construction drawings, and (d) 100% construction drawings. The schematics for the
Improvements are complete and have been approved by City. The design development drawings
have been conceptually approved by City and are attached as Exhibit "C". City shall have
fifteen (15) days after receipt of 50% construction drawings and 100% construction drawings
7
(collectively, the "Construction Drawings") to review and provide Developer with written notice
of its approval or disapproval of the Construction Drawings. If the City fails to provide written
notice to Developer of its approval or disapproval of the Construction Drawings within such time
period, the City shall be deemed to have approved them. If the City provides Developer with
timely disapproval of the Construction Drawings, Developer shall cause Architect to revise the
Construction Drawings in accordance with the City's objections and submit revised Construction
Drawings to the City to address the City's objections. City shall have the same time period to
review and approve or disapprove the revised Construction Drawings as set forth above with
respect to the original Construction Drawings. In the event the City disapproves the
Construction Drawings, the design phase set forth in the Construction Schedule and the Contract
Time shall be extended by one day for each day from Devyloper's receipt of the City's
disapproval notice to the date of the City's approval of the revis~g~onstruction Drawings.
3.4 Public Facilities and Concurrency. As the'Projecfillyolves the creation of a
public pedestrian open space on the existing right of~a.yof LincolIiRoad between Lenox
A venue and Alton Road and there is no enclos.~d space being const11.lcted, there are no
concurrency impacts on the Project. City and Dev~l()per anticipate that the Proj~ctwill be served
by those roadway transportation facilities currently ini~)(istenceas provided bistate, county and
local roadways. It is also anticipated that the Projecf~il1De served by public transportation
facilities currently in existence, including those providedby::,Miami-Dade County, the City, and
other governmental entities as may prese~~ly. ()perate public Jf<l.I1sportation services within the
City. Sanitary sewer, solid waste, drainage~andiIll().table waters~ryices for the proposed Project
are expected to be those services currently ill existeI!IC;~<l.I1d owned or operated by Miami-Dade
County, the Miami-Dade County Water and S~w~J:Depart:Il1~I1t, and the City. The Project will
also be serviced by any aI1<la.l~p.l!blic facilitie~;as such are defined in Section 163.3221 (12),
Florida Statutes (1997)!lls suclia.~~ described in the City's Comprehensive Plan, specifically
including, but not limited!(),those~:!acilities describ.eg in the Infrastructure Element and Capital
Improvements Element ther~iI1, a <;:opyQf which is available for public inspection in the offices
of the Planning?pe~igll and His~9l"icPteseryii~iQllDepartment of the City.
ConfirmatiOll'of Land Development Regulations. The City Commission held a
duly noticegp:ublic hearingQll , after which it determined, pursuant to Section
142-425 oftliec:ity Code, that the zoning district classification of the Project Site is
as defined in theI?~d Developm.ent Regulations.
3.6 Required Development Permits.
3.6.1 Developer shall, on behalf of the City, obtain the Development
Approvals listed in the attached Exhibit "F", if applicable. Where necessary or desirable the
City shall act as the applicant for the Development Approvals. Developer shall be responsible
for processing all applications for the Development Approvals. Contract Administrator shall
assist Developer in facilitating the prompt issuance of the Development Approvals. In the event
Developer has provided the City with all documentation necessary to obtain the Development
Approvals and the City fails to issue all of the Development Approvals (other than the Certificate
of Completion) prior to the end of the permit phase set forth in the Construction Schedule, the
permit phase and the Contract Time shall be extended one day for each day from the end of the
permit phase to the issuance of all of the Development Approvals (other than the Certificate of
8
Completion). All fees due in connection with the Development Approvals shall either be paid by
the City as a Cost of the Work or waived.
3.6.2 There are no reservations and/or dedications ofland for public purposes
that are proposed under the terms of this Agreement.
3.6.3 The failure of this Agreement to address a particular permit, condition,
term or restriction shall not relieve Developer of the necessity of complying with the law
governing said permitting requirements, conditions, term or restriction.
3.7 Proposed Permitted Development. The proposed p~Iifii!ted development on the
Project Site is shown on the attached Exhibit "C".
ARTICLE 4
CONTRACT DOCUMENTS
4.1 The Contract Documents shall
except when the Contract Administrator may
writing, an exception.
as to.. Work, materialiand dimensions
innis/her reasonable discretion, in
4.2 Dimensions given in figure~.~.~to hold preference over scaled measurements
from the drawings; however, all discrepanciessnall be decidec;(r~pon by the Consultant with
notice to Contract Administrator. Developers~all notfir~(l~ed when in doubt as to any dimension
or measurement but shall s;eek clarification. frpm thee(:jnsultant with notice to Contract
Administrator.
of the Contract Documents; two (2) of
at the site to the Contract Administrator or
This Contra~tincorpQl'llt~s by reference the Contract Documents defined in
SectionT.7i:rhe documenis:for the Project shall have the following order of precedence,
beginning withth~ most import~ht:
1. ehange;~rders
2. ~hi~Agreement and all addenda, exhibits and amendments thereto
3. Tn~Plans and Specifications (Approved and Permitted)
4. Other Contract Documents
ARTICLE 5
SCOPE OF WORK
5.1 The scope of the Work for the Project consists of the closure of a portion of
Lincoln Road between Lenox Avenue and Alton Road to vehicular traffic, and the construction
of a new design for the extension of the Lincoln Road pedestrian mall west to Alton Road. The
vehicular access that exists between Alton Road and Lenox A venue will be removed and
9
replaced with a new pedestrian plaza, extending the pedestrian portion of Lincoln Road further to
the west. The new plaza design will be organic in nature, characterized by, among other things,
grouping mature cypress trees.
5.2 Contract Administrator will provide, at a minimum, the following services:
5.2.1 Contract Administrator shall inspect the Work.
5.2.2 Contract Administrator shall have the authority to reject Work that does
not in its reasonable opinion, or in the reasonable opinion of the Consultant, conform to the
Contract Documents.
5.2.3 Contract Administrator shall monitOl::tfiiilverall control and expediting
of the construction of the Work to facilitate completion WorK within the approved time
frame and within the Contract Sum.
5.2.4 Contract Administrator sh~r11 develop a punch
requiring corrective action.
or lists of items
5.2.5 Contract Administrator shall a.ft~n~rweek1y progress meetings with the
Developer and Consultant to review and resbiv.~.. issues relating to the prosecution
of the Work.
5.2.6 Contract Administra.tor
by written instructions in the form of a Notice~Q
Developer to commence the Work
Contract Administrator.
5.2.7€ontracfAdministratofshall initiate or approve Change Orders.
construction progress
Administrator shall attend and participate III weekly
Deye10per and Consultant.
5.2.8
Administrator shall review and approve applications for
to the City for payment.
payment and
52.10
Contract Administrator shall approve or issue Field Orders.
5.2.11 ::: Contract Administrator shall review Shop Drawings.
5.3 Consultant will provide, at a minimum, the following services:
5.3.1 Consultant shall perform all of the architectural and engineering
services necessary to describe, detail and design the Project in accordance with the Contract
Documents.
5.3.2 Consultant shall design the Project so as to comply with applicable
codes and regulations.
10
5.3.3 Consultant shall prepare the Plans and Specifications, as well as review
and approve (or take other appropriate action upon) submittals such as Shop Drawings, product
data and samples.
5.3.4 Consultant shall prepare construction change directives, if necessary,
and authorize minor changes in the construction Work as provided in the Contract Documents.
5.3.5 Consultant shall receive and review for compliance with the Contract
Documents all written warranties and related documents required hereby to be assembled upon
Substantial Completion and issue certificates for payment for W or~ performed in compliance
with the requirements of the Contract Documents.
5.3.6 Consultant shall review Shop
Developer and return to Contract Administrator for routing.
prepared by the
5.3.7 Consultant shall review
inquiries regarding the intent of the Contract
information, requests for Change Orders, and
the City requiring Consultant review.
andlOffespond to C(5l1tractor andlor City
with respect to written requests for
betweentlieDeveloper and
clarifications to address
5.3.9 Consultant
disciplines upon request in
visits by varIOUS design
5.3.10
a punch list or list of
assist c;ontract Administrator with the development of
action.
5.3.11
and Contract A.dministrator
prosecution of the Work.
shall:anelldweekly progress meetings with the Developer
Work progress and resolve issues relating to the
S13 .12 Cons~ltant shall have no authority to order or approve any deviation
from the Contrac~l.?ocuments;:whether or not such deviation affects the Cost of the Work, or
Substantial Compt~tiQl!. In th~"~vent any such deviation is sought, prior written approval from
the Contract Administrator mUst be obtained.
ARTICLE 6
CONTRACT TIME
6.1 Time is of the essence for Developer's and Contractor's performance of the Work
pursuant to the Contract Documents. Developer agrees to complete the Work in accordance with
the Construction Schedule and to achieve Substantial Completion of the Work, in accordance
with the Contract Documents, and within the Contract Time, provided the City responds timely
11
to requests for information, Shop Drawings, and/or decisions and approvals required under this
Agreement.
6.2 Developer shall be instructed to commence the Work by written instructions in
the form of a Notice to Proceed issued by the Contract Administrator.
6.3 The Work shall be Substantially Completed within thirty (30) months after the
date of the Notice to Proceed, as may be extended as a result of force majeure events or mutual
agreement of the City and Developer. The Work shall be ready for final payment in accordance
with Article 10, within forty-five (45) calendar days from the date ceIiified by Consultant as the
date of Substantial Completion (the "Contract Time").
ARTICLE 7
DEVELOPER'S RESPONSIBILITY
7.1 The parties acknowledge and agreetliat the Developer aIlClQ(:mtractor will be
responsible for the construction of the Project in aCCordance with the terms of this Agreement.
7.2 It is Developer's responsibility to have anu2maintain appropriate certificate(s) of
competency, valid for the Work to be performed and for working on the Project for
whom a certificate of competency is
7.3 Developer shall be fully respo~sible~or:tl1~actions of all its agents, servants, and
employees, Contractor, AJ;smt~ct, subcontraC.t9fS, Other Consultants, sub-subcontractors,
materials persons, and <l;nyanU(lll other persons working for it in conjunction with the
construction of the Proj~ct exce~t that upon final Completion, (a) City shall hold only
Contractor, Architecr~Il~Jhe ot~~r Consultants but not Developer responsible for the
performance of this Agree!!t~llJ~El...<ll1Y 'YaITanties arising therefrom, (b) City shall
unconditionally;:l:fiuia;~yocaBlyrelease;sa.tisfy and forever discharge Developer and any
officers, s~~eholderS;:I>~l1ers;~i:Ectors, members, managers, employees or agents of
Develop~~,.illcluding, witho);lt:limitatiQ!liR-obert S. Wennett, Urban Investments Advisors, LLC,
a Delawaie.limited liability Company; and Wellspring Investments Management I, LLC, a
Delaware limitmliability corijPany, of and from any and all actions, causes of action, claims,
demands, 10sses,cQ~!? and expi:nses, whether direct, contingent or consequential, liquidated or
unliquidated, at lawi~~!n eqlJjlty, relating to the design and construction of the Project, and (c)
Developer shall uncon.(fi~i()tia.lly and irrevocably release, satisfy and forever discharge the City
and any employees or agents of the City of and from any and all actions, causes of action,
claims, demands, losses, costs and expenses, whether direct, contingent or consequential,
liquidated or unliquidated, at law or in equity, relating to the design and construction of the
Proj ect.
7.4 Developer agrees to bind specifically Contractor and every subcontractor, and
subconsultant to the applicable terms and conditions of this Agreement for the benefit of City.
7.5 Developer shall at all times enforce strict discipline and good order among its
Contractor, employees, consultants, and subcontractors at the Project site and shall not employ
on the Project any unfit person or anyone not skilled in the Work assigned to him or her.
12
7.6 Developer shall keep itself fully informed of, and shall take into account and
comply with, all applicable state and national laws and municipal ordinances and regulations in
any manner affecting those engaged or employed in the Project, or the materials used or
employed in the Project, or in any way affecting the conduct of the Project, and of all such orders
and decrees of bodies or tribunals having any jurisdiction 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 knowingly in violation of any such law, ordinance, regulation, order or decree,
Developer shall forthwith report the same to the Contract Administrator in writing. Developer
shall cause all its agents, employees, subcontractors and Consultants to observe and comply with
all applicable laws, ordinances, regulations, orders and decrees.
7.7 In the event of a change after the effective dateofthi~Agreement in any national,
state, local or municipal laws, codes, ordinances and regulatiQ't1s whi~iiIl any manner affects the
Project which becomes known to the Developer or the Cit~;DeveloperCir~ll1e City (as applicable)
shall advise the Consultant and Contract Administrfi!,t()r, in writing, andth~... Consultant and/or
Contract Administrator, may initiate a Change Orgf:S~~.the purpose of which shalL be to bring the
Project into compliance with all laws, ordinances, cdd~~.<:lnd regulations as ameijded or enacted.
7.8 Developer shall pay as a Cost of the Worka~l<:lpplicable sales, consumer, use and
other taxes required by law in effect at th"ee)((:cution of the A.g~eement. Developer is responsible
for reviewing the pertinent State statut~s~;::ifl.\i'()lving Stateta.x.e~ and complying with all
requirements.
the
general contractor (Contractor)
7.9 Developer
to execute the Work.
7.10 Developer prepa.re a certified; monthly application for payment for
review/approval Consu.ltantand.€iantract .Administrator.
prO\i'ide a location for, attend and partIcIpate III weekly
thiC()ntract Administrator and Consultant.
7.11
construction progress
7.12 Deyeloper herefjy agrees to complete the Project described by the Contract
Documents, in accordance witllthe requirements and provisions ofthe Contract Documents.
7.13 Developer agrees to meet with Contract Administrator or his designee at
reasonable times and witlireasonable notice.
7.14 Prior to the final completion of construction services under this Agreement, there
shall be established a record set of plans and specifications, on Reproducible Vellum and on CD
Rom, noncompressed, formatted in the latest version of AutoCAD, which shall bear the approval
of Developer and 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, Developer shall submit to the Contract Administrator a CPM Schedule for the
planning and execution of the Construction Phase of the Project.
13
7.15 Developer will provide overall technical and management services to. assist the
City in maintaining schedules, establishing budgets, co.ntrolling casts, achieving quality and
minimizing operational disruptions.
7.16 If at any time the Develo.per observes or beco.mes aware of any fault o.r defect in
the Pro.ject or o.f any no.nco.nformance with the Co.ntract Documents, Developer will no.tify the
Consultant, and will direct that all reasonable steps be taken to. correct such fault, defect or
nonconformance.
7.17 During the Course o.f the Work, Developer shall also be responsible for quality
assurance o.f the construction Wo.rk in acco.rdance with the Co.ntract..I2)oc\lments.
7.18 Developer shall coordinate all phases o.f its WQrR:~QJacilitate completion of the
Project in accordance with the established time period and eS~1111ateo~~Qnstruction cost.
ARTICLE 8
~
THE CONTRACT.8UM
8.1 The Co.ntract Sum in the amo.unt of $5,876;~10 is the maximum amo.unt, subject
to approved Change Orders in accordance with this Agr~~ment, agreed to by the City and
Developer under this Agreement to. cOl'l1Pl~tethe Work. iI1~cc.~rdance with the Contract
Do.cuments. Develo.per will comply with aUreq~jrements of funqing sources pro.vided by City
far construction of the Improvements. The City;;ccii!:tl:l]1lstIiat the City Co.mmission has
appro.ved the funding of Surti..<:l1'l~:f all approved Change Orders under this
Agreement.
8.2 Developersn,!ll a cast phis with a guaranteed maximum price contract
for the hard casts with Co.ritr~~~()r;;f~!;5Q~~on~truction Drawings, Developer shall submit the
costs of the ln1l?rQ!!~~~~t~ fo.rol~~. If tfie;Project is out o.f budget, Architect, Co.ntractor and the
ather Cons.~ltarits shant'>~~~~quireij~~.value engineer the Project (at their sole cost) to bring it
back intol:5l.l.qget. Pro.ject.ij~f;llity asgenfled in the overall Project scope shall no.t be reduced as
a co.nsequenc~()f pursuing val~e. engineering improvements.
8.3 Th6Gity shall pay the Cost of the Work, as adjusted by approved Change Orders.
The construction cOntract shall limit the grounds far approved Change Orders to City requested
Change Orders, Devel5Q(,':rrequested Change Orders approved by the City, force majeure events,
building department field inspector requirements, acts or omissions o.f the City, errors and
omissions in architectural drawings and specifications, material and substantial changes in the
Work not caused by Developer, concealed o.r unkno.wn conditions and costs due to emergencies
incurred in taking action to. prevent threatened damage, injury o.r loss in case of an emergency
affecting the safety of perso.ns and property.
8.4 Develo.per shall fund appro.ximately $162,749 in addition to the costs to. the City
for the replacement o.f sidewalks, curbs and gutters on the Project Site, in accordance with the
estimated budget attached as Exhibit "G". Additio.nally, Developer shall match the City's 1 Yz%
o.f the Contract Sum for AIPP in accordance with the terms of Sectio.n 52.1 in this Agreement.
City acknowledges that Developer has co.ntributed appro.ximately $290,000 in cash or in kind
14
benefits related to the design of the Project, legal fees and costs and out of pocket expenses
incurred by Developer.
8.5 The City shall pay Developer the Contract Sum in current funds for Developer's
performance of the Contract through the date of the latest approved requisition. The initial
Contract Sum is the schedule of values which represents the sum of the Cost of the Work as
defined herein plus the Developer's Fee. The Contract Sum may be adjusted only by signed
Change Orders issued in accordance with the terms of the Contract Documents.
8.6 Developer's and Contractor's Fee. Developer's Fee shall be set forth in the
schedule of values and shall not exceed eight percent (8%) of the gostof the Work as described
herein. Additionally, Developer is entitled to receive a fee in t~~amount of three percent (3%)
of the Cost of the Work, as set forth in the schedule of value~;fo:Bn;;mce the cash flow required
for Developer to cause the Work to be completed basect:on rrio.l'!t111y billings to the City.
Contractor's Fee shall be set forth in the schedule of valyesand shalfu6t.exceed seven percent
(7%) of the Cost of the Work as described herein.
8.7 The sum of the Cost of the Wofk~.i:t]J;l. the :J::)~yeloper's Fee shall not exceed
($ ), subject to additi~!'l:~..J:l.fid deductions by executed Change
Orders as provided in the Contract Documents (the Maximum Price").
8.8 Adjustments to the Guarar#e~<.l:Maximum PriGe~~()Il..account of changes in the
Work may be determined only in accordancew1thtl1~t~rms of the.A.greement.
8.9 In calculatinga<.ljystments to ih~..Guaraniee~Maximum Price, the terms "cost"
and "costs" as used in tl1eaoo,*~~!:~ferenced provisions shall mean the Cost of the Work as
defined below and th~t~J:1lJ.s "fee"Jifid "a reasonable allowance for overhead and profit" shall
mean the Developer'sFeea~llefine(1~above.
8.10 Cosfofthe Wor:K:i Thefenn'!€ost of the Work" shall mean costs necessarily
incurred b~~hebeveI6pe~~~~ntraGt~?~~onsu1tant(s) or the City in the proper performance of the
Work. ~l:1;~~..costs shall bel3.~EatesnQtl1igher than the reasonable and customary price paid for
similar worK:~IlMiami Beadi~,Floridaexcept with prior written consent of the City. The Cost of
the Work shalliUGlude only th'eitems set forth in this Article 8, as follows:
8.10.1..: Wag~s of construction workers directly employed by the Developer or
Contractor to perforn:ltl1~construction of the Work at the site or, with the City's written
approval, at off-site worKshops, provided such costs are not incurred as the proximate result of
defects of deficiencies of the Work.
8.1 0.2 Wages or salaries of the Developer's and Contractor's supervisory and
administrative personnel when stationed at the site as included in the schedule of values but shall
not include the wages or salaries of certain personnel stationed at the Developer's or Contractor's
principal or other offices shall be included in the Cost of the Work.
8.10.3 Wages and salaries of the Developer's and Contractor's supervisory or
administrative personnel engaged, at factories, workshops or on the road, in expediting the
15
production or transportation of materials or equipment required for the Work, but only for that
portion of their time required for the Work and only upon the written consent of the City.
8.10.4 Costs paid or incurred by the Developer or Contractor for training,
taxes, insurance, contributions, assessments, profit sharing, pensions and all other benefits
required by law or collective bargaining agreements or by corporate policy and, for personnel not
covered by such agreements, customary benefits such as sick leave, medical and health benefits,
holidays, vacations and pensions, provided such costs are based on wages and salaries included
in the Cost of the Work. This amount is stipulated to be fifty-six percent (56%) of the direct
payroll.
8.10.5 Payments made by the Developer or G<:?fi.tractor to Consultant or other
design professionals in accordance with the requirements of Qn:~~~f:ement, provided such costs
are not incurred as the proximate result of defects of deficiencies in the W ork.
8.10.6 Costs, including transportatigrrandstorage, of materials and equipment
incorporated or to be incorporated in the comp1ete<!~i:mstructi<:?n.
8.10.7 Costs of materials describedill.'t!!e.preceding Section 8.6.6 in excess of
those actually installed to allow for reasonable waste arid$ppi1age. Unused excess materials, if
any, shall become the City's property at t~f:...,?omp1etion of the Work or, at the City's option, shall
be sold by the Developer. Any amounts reali~fl<!.from such be credited to the City as
a deduction from the Cost of the Work.
8.1 0.8 Cos!~,.....iIlcluding tranSPQrtationari.d~storage, installation, maintenance,
dismantling and removal~fmatei'!~!?, supplies'~Emporaryfaci1ities, machinery, equipment, and
hand tools not custom<lulYQwned byconstruction.~orkers, that are provided by the Developer or
Contractor at the site lmd fYlly con~!iined in the perfonnance of the Work; and cost (less salvage
value) of such items if not fl11l)r....<:;onS~f:<!,~l1f:!her sold to others or retained by the Developer
or Contractor.~Q~tfQ17j!emsp~~'yiouslyusedby the Developer or Contractor shall mean fair
market value;
Rertt~l. charges for temporary facilities, machinery, equipment, and
oWl:1~d by construction workers that are provided by the Developer or
whether rented from the Developer or Contractor or others, and costs of
transportation, minor repairs and replacements, dismantling and removal thereof.
Rates and quantities 6f~q!iipment rented shall be subject to the City's prior approval. Rental
charges for equipment owned by the Developer or Contractor shall be consistent with the lesser
of those shown in the current Associated Equipment Dealers Manual or prevailing commercial
rates. Rental charges from third-parties shall be at cost. Rental rates shall be inclusive of all
charges. Lost equipment shall not be a Cost of the Work.
8.10.10 Costs of removal of debris from the site including loading and dump
charges.
8.10.11 Costs of document reproductions, facsimile transmissions and long-
distance telephone calls, postage and parcel delivery charges, telephone service at the site and
16
reasonable petty cash expenses of the site office. Petty cash expenditures must be accompanied
by receipts which include what was used when and for where.
8.10.12 That portion of the reasonable expenses of the Developer's and/or
Contractor's personnel incurred while traveling in discharge of duties connected with the Work.
Without prior written consent of the City, travel and living charges including per diems for
Developer's or Contractor's personnel such as the project manager and project superintendent
that do not reside in South Florida shall not be a Cost of the Work.
8.10.13 Costs of materials and equipment suitably stored off the site at a
mutually acceptable location, if approved in advance by the City.
8.10.14 That portion of insurance and
attributed to this Agreement.
that can be directly
8.1 0.15 Sales, use or similar taxes ill1l'l6sedby a govemiij~ntal authority that are
related to the Work at the rates that are in force as of.the date of the
8.10.16 Fees and assessments
licenses and inspections for which the City,
Agreement to pay.
for thepui!<lingpermit and for other permits,
Develop~f::ior Contractor are required by the
8.10.17
bytl1e Contract Documents.
8.10.18 Roy'!:Wes and license. fees use of a particular design,
process or product requireQ..bytll.~<:::ontract Documents; the cost of defending suits or claims for
infringement of patent..~!ghts arisi!1g from such requirement of the Contract Documents; and
payments made in acc6rdi!~~ with !~gal judgments;lgainst the Developer or Contractor resulting
from such suits or claims anqp;lym~nt~Qf$ettlemynts made with the City's consent.
.8.10.19 Deposits lost for causes other than the Developer's or Contractor's
negligenc;e or failure to fulfill a specific responsibility to the City as set forth in the Contract
Documents. . .
8:10.20 OtherGQsts incurred in the performance of the Work if and to the extent
approved in advanC~in writing by the City.
8.11 Costs Ndttobe Reimbursed. The Cost of the Work shall not include:
8.11.1 Salaries and other compensation of the Developer's or Contractor's
personnel stationed at the Developer's or Contractor's principal office or offices other than the
site office.
8.11.2
Expenses of the Developer's principal office and offices other than the
site office.
8.11.3
Overhead and general expenses not associated with the Project.
17
8.11.4 Developer's or Contractor's capital expenses, induding interest on the
Developer's or Contractor's capital employed for the Work or bonding (except as set forth in
Section 8.6 above).
ARTICLE 9
PROGRESS PAYMENTS
9.1 Progress Payments.
9.1.1 Developer may make application for Pllym~J:1t for Work completed
during the Project at intemals of not more than once a month,:iThe period covered by each
application for payment shall be one calendar month ending onJhi~!~~t day of the month.
9.1.2 City agrees to pay Developer'sE-ppHGation for payment covering all out
of pocket costs incurred by Developer with respect t()th~ePfoject withiii.~gl!rteen (14) calendar
days after the execution of this Agreement. Such llflplication.for payment sh""l!pe in the amount
of$ , which shall not exceed five percentC5~~gfthe Cgntract Sum.
9.1.3 Based upon applications
certificates for payment issued by the
account of the Contract Sum directly to
Agreement, within thirty (30) days after
Contract Administrator.
forp~~ent submitted to Developer and
the Cit)ish,all make progress payments on
as prov1(:l~g,b~ow and elsewhere in this
of eachs~~h application for payment to
9.1.4 applicatiorifor payment, Developer shall submit payrolls,
petty cash accounts, re!e~j-pted or invoice~ with check vouchers attached, and any other
evidence required bythe~i!y, Administ~ator or Consultant to demonstrate that cash
disbursements already mad~~~.th,~B~y~l()p~r Of...Contractor on account of the Cost of the Work
equal or exce;~(!Ii'~~;~s pa~~nts already received by the Developer; less (2) that portion of
those paym.~nts attributaQ~~!o theI:>eveloper's Fee; plus (3) payrolls for the period covered by
the pres~gtiiiPplication forp.iiYInent.
~Ll.5 Each~pplication for payment shall be based on the most recent
schedule of vahiesSBbmitted ti-yDeveloper in accordance with this Agreement. The schedule of
values shall allocateth~ entir~Guaranteed Maximum Price among the various portions of the
Work, except that theD~'Y~loper's Fee shall be shown as a single separate item. The schedule of
values shall be preparediri such form and supported by such data to substantiate its accuracy as
the Consultant may require. This schedule, unless objected to by the Consultant or Contract
Administrator, shall be used as a basis for reviewing Developer's applications for payment.
9.1.6 Applications for payment shall show the percentage of completion of
each portion of the Work as of the end of the period covered by the application for payment. The
percentage of completion shall be the lesser of (1) the percentage of that portion of the Work
which has actually been completed; or (2) the percentage obtained by dividing (a) the expense
that has actually been incurred by Developer on account of that portion of the Work for which
Developer has made or intends to make actual payment prior to the next application for payment
by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the
18
schedule of values. Substantiating backup including that for general conditions, vendors, rentals
and sub-developers shall be provided to properly support each progress payment.
9.1. 7 Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
(a) take the total of the Cost of the Work and allocate it to each line
item in the approved schedule of values subject to the amount not exceeding the then percent
completion of the Work for that individual line item;
(b) add the Developer's Fee and the Contmctor's fee. The Developer's
Fee and Contractor's fee shall be computed upon the Cost ofthe.~9rk at the rate stated above;
and
(c) subtract the aggregate of p1:'~\i'ious paymeritSIDade by the City.
9.1.8 Unless otherwise provid~din this Agreement, paym~l1t~shall be made
on account of materials and equipment deliverea~fi~~uitabl~~tored at the siteIor subsequent
incorporation in the Work. If approved in advance byth!~:git~, payment may similarly be made
for materials and equipment suitably stored off the site:ata location agreed upon in writing.
Payment for materials and equipments!91:'~.d on or off tfiesite shall be conditioned upon
compliance by Developer with procedures~ati~!~~.tory to the Cit&Joestablish the City's title to
such materials and equipment or otherwise protect tfie City's inte~est, and shall include the costs
of applicable insurance, storage and transportation.t6thesit~for such materials and equipment
stored off the site. . ..
9 .1.9~~: City way withholdp~~ent of an application for payment to such
extent as may be reasonably::n~ces~llr>,to protect it~elf from loss on account of Defective Work.
The City shall 0111y~ithholdRayFientQfth~portion of an application for payment for which it
claims DefectiY"eWOrK;;rhe Cityjl)llall proviOeDeveloper with written notice of its rejection of
an applicati9ri for paymeri.t~~[a potilBJ?:thereof) as a result of Defective Work within fifteen (15)
days after its receipt of such application for payment, failing which, the City shall be deemed to
have waivedi!~... right to witl!hold payment of such application for payment on account of
Defective Work.;.~llch written l1btice shall include the City's basis for claiming Defective Work.
If Developer dispute$the City's claim of Defective Work, such dispute shall be resolved pursuant
to the terms of ArtieI~l.l jpthis Agreement. To the extent the City withholds payment of an
application for payment (or . a portion thereof) on the basis of Defective Work, City agrees to
indemnify, defend and:hold Developer harmless against any claims by Contractor or any
subcontractors or materialmen arising from the withholding of payment.
ARTICLE 10
ACCEPTANCE AND FINAL PAYMENT
10.1 Upon receipt of written notice from Developer that the Work is ready for final
inspection and acceptance, Consultant and Contract Administrator shall, within ten (10) calendar
days, make an inspection thereof. If Consultant and Contract Administrator find the Work
19
acceptable; that the reqUIsIte documents have been submitted and the requirements of the
Contract Documents have been fully performed; and all conditions of the permits and regulatory
agencies have been' met, a final certificate of payment shall be issued by Consultant and
approved by Contract Administrator, stating that the requirements of the Contract Documents
have been performed and the Work is ready for acceptance.
10.2 On or before issuance of the final certificate of payment, Developer shall deliver
to Consultant:
10.2.1
A final waiver and release, duly executed by the Developer.
10.2.2 An affidavit listing the name, addres~~ti.d telephone number of the
Contractor and of all the subcontractors who have performedW:~rk on the Project, with such
subcontractors identified as to the trade involved for the WQfK, alongyyith amounts paid to said
Contractor and subcontractors in connection with the Project;
10.2.4
One (1) original set and one
Contractor and
10.2.3 Final waivers and releases, duly executed
subcontractors or consent of surety;
set of the As-Built Drawings;
10.2.6
guarantees, City's
10.2.5 Assignment
manuals to the City, bound in a form
and Developer's surety to final
payment.
10.3 If, aftettli~:Work @,s been Subst~Rtially completed, full completion thereof is
materially delayed throughn.~faul!~fP.~veloper,;irid Consultant and Contract Administrator so
certify, City s~.~H,:..~g.~ithol.itt~!"minatingt~~eontract, make payment of the balance due for
that portion Qfthe 'WOt.t<jfl1!ly completed and accepted. Such payment shall be made under the
terms and.:ccmditions govirning firtal.payment, except that it shall not constitute a waiver of
claims.
1 0.4 acc~ptance of final payment by the City shall constitute a waiver of
all claims by Devel()p~r again~tthe City under this Agreement, except those previously made in
strict accordance witht~~.pJ:"ovisions of the Contract Documents and identified by Developer as
unsettled at the time of acceptance of final payment.
10.5 Developer's final application for payment and the Consultant's final certificate for
payment shall constitute a representation to the City by the Developer and the Consultant,
respectively, that all conditions precedent to Developer's entitlement to final payment have been
excused, waived or satisfied.
10.6 The making of final payment shall not constitute a waiver of claims by the City
for: (a) faulty or defective Work appearing after Consultant's final certificate for payment; (b)
failure of the Work to be in strict accordance with the requirements of the Contract Documents
20
discovered after completion of the Work; and (c) terms of all warranties required by the Contract
Documents.
ARTICLE 11
RESOLUTION OF DISPUTES
11.1 To attempt to prevent all disputes and litigation, it is agreed by the parties hereto
that Consultant shall first decide all questions, claims, difficulties and disputes of whatever
nature which may arise relative to the Contract Documents and fulfil1ment of this Agreement as
to the character, quality, amount and value of any Work done..a.nd...materials furnished, or
proposed to be done or furnished under or, by reason of,tlje Coritract Documents, and
Consultant's estimates and decisions upon all claims, questioQ~;aiffi~ulties and disputes shall be
conclusive subject to Developer or the City's objection to exten~provided in Section 11.2.
Any claim, question, difficulty or dispute which cannotbeJ."\:~solved bymjgtual agreement of City
and Developer shall be submitted to Consultant in 'Ypting within ten (15J9(j.lendar days of the
discovery of the occurrence. Unless a different J'~tiod of till1e is set forth:fi~rein, Consultant
shall notify Developer in writing of the decisionwitl1!~ten (~~)calendar daysffom the date of
the submission of the claim, question, difficulty or dispiite..unlessConsultant requires additional
time to gather information or allow the parties to provideaqgitional information. Any request for
additional time shall extend the time ofs~~~!antial completiQJ;l.l-.I.s between City and Developer
for an equal period of time. All nontecliIiicaladministratiV~<:l!sputes shall be reasonably
determined by the Contract Administrator p~rsuanttQ:tfie time periods provided herein. During
the pendency of any dispute and after a detegnin::ltibntl'l~~~Q!;" Developer and City shall act in
good faith to mitigate any:pQtential damagesinc1udingutilization of construction schedule
changes and alternate m~flris of C6~~truction.
11.2 In the eventjth~ det~.t:ll1!nation of a dispute under this Article is unacceptable to
either party heretQLJh~ partY0~j~~tfngt0~~<:l~t~rfuination must notify the other party in writing
within twenty::prie(2I~9(j.lendar.days of reCeipt of the written determination. The notice must
state the basis of the 6Bj~~!ion aridU1Ust Be accompanied By a statement that any Contract
Docum~nt~'PPce adjustment c1aimedi$ the entire adjustment to which the objecting party has
reason to Befl~~~it is entitledioas a result of the determination. Within sixty (60) calendar days
after receipt of:itjti!ten deteml!!1-ation as provided in this section, the parties may participate in
mediation to address all oBjections to any determinations hereunder and to attempt to avoid
litigation. The mediatQf.~halrbe mutually agreed upon by the parties. The mediation shall be
non-binding.
11.3 Pending final resolution of a claim, including mediation, unless otherwise agreed
in writing, Developer and Contractor shall proceed diligently with performance of the Contract
Documents and the City shall continue to make payments in accordance with the Contract
Documents, suBject to the terms of Article 9 in this Agreement. In no event shall Developer be
required to make any payments for the Work other than the payments provided under Sections
8.4 and 52.1 in the Agreement and any other payments set forth in this Agreement that are
expressly provided to Be part of the Cost of the Work.
21
11.4 Any mediator used shall be certified in accordance with Florida law. Mediation
will be conducted in Miami-Dade County.
11.5 The City and Developer shall not be required to submit to arbitration any claim or
dispute arising out of, or in connection with, this Agreement unless the City and Developer
hereafter agree in writing to arbitrate that particular dispute. During the pendency of any
dispute, by mediation, litigation or arbitration (if mutually agreed), provided the City has paid all
monies due under the pay applications, Developer and Contractor shall carryon the Work and
maintain the Construction Schedule, without prejudice to any of their rights, notwithstanding the
pendency of any such dispute resolution proceeding, unless otherwise agreed by the City and
Contractor in writing. ..
11.6 In connection with any dispute or litigation a.rlsil1ggut of this Agreement, the
prevailing party shall be entitled to recover all of its reasonable attomeySc' fees and costs incurred,
including all reasonable attorneys' fees and costs for litiggtiguin any baiiKmptcy proceedings and
at all trial and appellate levels.
11.7 The Agreement shall be governed.and~(;gnstru~(i.jn accordance-with the laws of
the State of Florida. The Developer and City submiftQthe3urisdiction and venue of the State
and Federal Courts in and for Miami-Dade County, Ff5ega and such courts shall have the
authority upon proper proof to award cO!!!E~nsatory and/ot(5()psequential damages, as may be
appropriate.
LEFT IN[ENTIONALL Y BLANK]
13
ARTICLE 14
ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 15
SECURITY
Developer shall cause Contractor to protect the Work, stored products and construction
equipment from theft and vandalism, and to protect the Project Site from entry by unauthorized
persons.
22
ARTICLE 16
INSPECTION OF PROJECT
16.1 The Contract Administrator or designee shall at all times have access ta the
Praject, and Developer shall provide proper facilities for such access, and such access shall be in
accordance with the visitar's rules.
16.1.1 Should the Contract Dacuments, instructians, any laws, ordinances, or
any public authority require any Work for the Project to be spe~ially tested .or appraved,
Developer shall give ta the Contract Administrator timely natice a:E"readiness .of the Work for
inspectian. If the testing .or appraval is to be made by an autharity-other than City, timely notice
shall be given of the date fixed for such testing. Inspections $haIJpC;1,11ade promptly, and, where
practicable, at the source .of supply. Within a reasonable tinlc;:fromexC;c;:jltion of this Agreement,
City shall provide a letter listing the areas afWark the GitYWill inspect:!fdefined Wark far the
Project should be covered up withaut required insp~cfianlapproval, it riius~!.if required by the
Contract Administrator, be uncavered for examil'l.fj,tion and.. properly resfofi~l... at Develaper's
expense.
16.1.2 Reexamination and retesting O:E:"anY Work for the Project may be
reasanably .ordered by the Cantract Aom:~J:listrator; and if:.s~ ordered, such Wark must be
uncovered by Developer. If such WarKisf~JlJ:ld to be ini~~Qrdance with the Contract
Dacuments, City shall pay the cost ofreexamiriation.,retesting aIi<:lreplacement. If such Wark is
not in accordance with the Contract Dacument$, D~yeIop~r.i$~all pay such cost.
16.2 The paymJ~ntof'anycompensatiQn, regardless of its character or form, or the
giving of any gratuity.oitl1e of any vahiilJle favar by Developer to any Inspector other
than its cansultant, is faroiijijen, any such act on the part of Developer will canstitute a
breach of this Agreement.
SUPERINTENDENCE AND SUPERVISION
17.1 TheQ!<:lers of th.C;City are ta be given through the Contract Administrator, whase
instructions are to be~!rictlYiand pramptly followed in every case, provided that they are in
accordance with this COtl:trfj,ct. Develaper shall cause Contractor ta keep on the Project during its
progress a campetent supervisor, and any necessary assistants.
17.2 Developer shall prepare, .or cause its Contractor or other designated Contract
Administrator or Contract Administrator representative ta prepare, an a daily basis, and keep on
the Praject site, a bound log setting forth at a minimum, for each day: the weather conditions and
haw any weather canditions affected pragress of the Wark, Work performed, equipment utilized
for the Work, any idle equipment and reasans for idleness, vi sitars ta the Project site, labor
utilized far the Wark, and any materials delivered to the Praject Site. The daily baund log shall
be available far inspectian by the Cantract Administrator .or designee at all times during the
Project.
23
17.3 If Developer, in the course of the Project, finds any discrepancy between the
Contract Documents and the physical conditions of the site, or any errors or omissions in the
Contract Documents including the Plans and Specifications, it shall be a Developer duty to
immediately inform the Contract Administrator, in writing; and Contract Administrator will
promptly verify the same.
17.4 Developer shall coordinate, supervise and direct the Project competently and
efficiently, devoting such attention thereto and applying such skills and expertise as may be
necessary to perform the Project in accordance with the Contract Documents. Developer shall
cause Contractor to be solely responsible for the means, methods, teshniques, safety, sequences
and procedures of construction. Developer shall cause Contractor tQg1vt: efficient supervision to
the Work, using Developer's and Contractor's best skill, attention;~hd judgment.
ARTICLE 18
CITY'S RIGHT TO TERMINATE AGREEMENT
18.1 If Developer fails to begin thecoi!~!!Uction()f the Project within the time
specified, or fails to perform the Project with sufficient~QJ:"k:ers and equipmenfor with sufficient
materials to insure the prompt completion of the Projeg~!...in accordance with the Contract
Documents and schedules, or shall perfotrIlthe Work unsuitably, or cause it to be rejected as
defective and unsuitable, or shall discontinue!l1e"prosecutionottht:Project, except for excused
delays in accordance with this Agreement of..ifDev:~loper shall b~cbme insolvent or be declared
bankrupt, or commit any act of bankruptcy or insQlveri~Y;Q[~hall make an assignment for the
benefit of creditors, or shallnQ~~(;l.rrY on the PfQj~tt in acc6r~~nce with the Contract Documents,
the City shall give notic~iriwntifig~o Developcrand its su.rety of such delay, neglect or default,
specifying the same. If~~xeloper;Lwithin a perio(,l of ten (10) calendar days after such notice,
shall not proceed to commeij~t: to f\jlctify such complaint in accordance therewith, then the City
may, upon writtel!S~1j.ificate-ij:~~the~Q!!~~!,lq~:f:\.dministrator of the fact of such delay, neglect
or default andDevel~p~J:"'s fa.ili.i~~.. to comply with such notice, terminate the services of
Develope?~~xclude Devel~~~? from"s+t~.alld take the prosecution of the Project out of the hands
of Dev~lop~r;as appropriate; In suchcgse, Developer shall not be entitled to receive any further
payment undl:!h~ Project is fil1i~hed.ln addition, the City may enter into an agreement for the
completion of tfl~Lgroject acc~~aing to the terms and provisions of the Contract Documents or
use such other metfl~(,ls as in its opinion shall be required for the completion of the Project in an
acceptable manner.~eyelQper hereby collaterally assigns its rights under the Contract
Documents to the City solhat upon termination of this Agreement by the City in accordance with
the terms of this paragraph, the assignment of the Contract Documents shall automatically
become effective. Notwithstanding the assignment of the Contract Documents automatically
becoming effective, Developer agrees, upon request of the City, to execute such documentation
as may be reasonably necessary in order to effectuate such assignment. All damages, costs and
charges incurred by the City shall be deducted from any monies due or which may become due
to said Developer. Actions will be instituted to recover on the posted bonds. In case the damages
and expense so incurred by the City shall be less than the sum which would have been payable
under this Agreement, if it had been completed by said Developer, then Developer shall be
entitled to receive the difference. If such damages and costs exceed the unpaid balance, then
Developer shall be liable and shall pay to City the amount of said excess.
24
18.2 Upon receipt of a notice of termination pursuant to Sections 18.1 above,
Developer shall promptly discontinue all affected Work unless the Notice of Termination directs
otherwise and deliver to the City within seven (7) calendar days of termination all data,
drawings, specifications, reports, estimates, summaries and such other information as may have
been required by the Contract Documents whether completed or in process. Compensation shall
be withheld until all documents are provided to the City pursuant to this Article.
ARTICLE 19
DEVELOPER'S RIGHT TO STOP WORK OR TERMINATE CONTRACT
Should Contract Administrator fail to review and approv~Qf state in writing reasons for
non-approval of any application for payment within ten (1 0) 4(:i.ysa~~! it is presented, or if the
City fails either to pay Developer within twenty (20) days after preseij~~tion by Contract
Administrator of any sum certified by Contract Adminis~~~~()r,or to notiij:peveloper in writing
of any objection to the application for payment, then!)eveloper may, giveWBtten notice to the
City and Contract Administrator of such delay, neglect or defalllt, specifyinglll~sllme. If City or
Contract Administrator (where applicable), within a.Pt::Bgd of@;},(10) calendartlays after such
notice shall not remedy the delay, neglect, or default upd~~li1ch the notice is based, then
Developer may stop Work or terminate tbis Agreement al1d!~(;over from the City payment for
all Work executed and reasonable expense~$llstained thereirij)lus reasonable termination
expenses.
EQUAE;t' CLAUSE
20.1 Whenever aJ:!l(:i.teri(:i.l;article or pie~eof equipment is identified in the Contract
Documents incl~4!1!~~rawing~~pla.nsJ~~~~p{:cifications by reference to manufacturers' or
vendors' nall!~S;1raGe);l,~~S, catlllgg numbers; or otherwise, it is intended merely to establish a
standard, and, unless it iS~Qllowedl>ywo!ds indicating that "no substitution is permitted," any
material,anigle, or equipnie:l'i;gf otlie~manufacturers and vendors which will perform or serve
the requireme!it$ of the gel1er~1 design will be considered equally acceptable provided the
material, article~~equipment~o proposed is, in the opinion of the Consultant and Contract
Administrator:
equal in quality, durability, appearance, strength and design;
20.1.2
Performs at least equally the function imposed in the general design for
the Project;
20.1.3 Conforms substantially, even with deviations, to the detailed
requirements for the items as indicated by the Contract Documents; and
20.1.4
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
25
specified item and a detailed description of the proposed substitution. A comparison letter
itemizing all deviations from specified items must be included for the Consultant and Contract
Administrator to properly evaluate substitution. Failure to provide the deviation comparison
sheet shall automatically deny the request.
Any changes, inclusive of design changes, made necessary to accommodate substituted
equipment under this paragraph shall be at the expense of Developer, Contractor or
subcontractor responsible for the Work item.
20.2 Contract Administrator's written consent will be requi!:~d as to acceptability, and
no substitute will be ordered, installed or utilized withollt:Consultant and Contract
Administrator's prior written acceptance which will be evidenc<;4~y either a Change Order or an
accepted shop drawing. City may require Contractor to fumisllilfCQntractor' s expense a special
performance guarantee or other surety with respect to anysuo$titute.
ARTICLE21
PLANS AND SPECIF]I:GATIQ18s
All plans, general and detail, are !2.. be deemed a pal"t"~~ this Agreement, and the Plans
and Specifications are to be considered to~~~<;~, and are intefiq~f!to be mutually
complementary, so that any Work shown on. tnif?lans, tnough no!~p.ecified in the Specifications,
and any Work specified in the Specifications~though!;lQ!..shown on. the Plans, is to be executed by
Developer as part of tnis Agreement. Figured(}imensi8fi~~~t2prevail over scale. All things
wnich in tne opinion oftne@Q!;l~~~tAdministia!~imay rea~fiiiably be inferred from this
Agreement and Plans asqeveloped!:,y Consultant and mutually agreed upon and approved by
Developer and City fOI'th~:~roject,:~e to be execute4..py Developer under the terms oftne
Agreement; and tne Consult~~~n~!!~st<;Illl.ine wn!:tI1er the detailed Plans conform to the
Contract Docum<;n!~,<;)(cept asmayoeotJjernris~determined by the Contract Administrator. In
tne event theWOiKieijii~~t<:::.d urta~~tpis Sect16rt:expands the scope of the Project, Developer may
seek a Chaflge Order Article 38,
ARTICLE 22
DEVELOEER TO CHECK DRAWINGS AND DATA
Developer snalr0~iise Contractor to take measurements and verify all dimensions,
conditions, quantities and details shown on tne drawings, scnedules, or other data. Failure to
discover or correct errors, conflicts or discrepancies shall not relieve Contractor of full
responsibility for unsatisfactory Work, faulty construction, or improper operation resulting
tnerefrom nor from rectifying sucn condition at Contractor's own expense. Contractor will not be
allowed to take advantage of any error or omissions.
ARTICLE 23
DIFFERING SITE CONDITIONS
26
In the event that during the caurse of the Work Contractor encaunters subsurface ar
concealed canditians at the Project site which differ materially from those shown on the Contract
Documents and from those ardinarily encauntered and generally recognized as inherent in Work
of the character called for in the Cantract Documents; or unknown physical conditions af the
Project site, af an unusual nature, which differ materially from that ordinarily encountered and
generally recognized as inherent in Work afthe character called for in the Contract Documents,
Develaper shall cause Cantractor, without disturbing the conditians and before performing any
Work affected by such conditians, to, within twenty-faur (24) hours aftheir discovery, notify
City and Cansultant in writing of the existence afthe afaresaid conditions. Cansultant and City
shall, within two (2) business days after receipt af Contractor's andlar..peveloper's written
notice, investigate the site canditions sa identified. If, in the sale op!fiic5hof Cansultant, the
conditions do. materially sa differ and cause an increase or decreaSein Develaper's cost of, or the
time required for, the perfarmance of any part of the W ark, 'Xgethe~~f;not charged as a result of
the conditians, Cansultant shall recommend an equitable ,!dju~tment tQth~ Contract Sum, or the
Contract Time, or both. If City and Develaper cannat ,!gTee~man adjustll'i~!!t in the Contract
Sum or Contract Time, the adjustment shall be refeq~~~to Consultant for det~i'l11ination in
accordance with the provisions of Article 11. ShQl.l.~~{;onsulta!!t determine thattheconditians of
the Project site are not so materially different to justlfY;~c;hang~i!! the terms aftlie Contract,
Cansultant shall so natify City and Developer in writing;~~~,!~ing the reasons, and such
determination shall be final and binding \.ll?on the parties hereto..
No request by Developer for an equi!abl~~~jl.l.stment to th~~6ntract under this provisian
shall be allawed unless Develaper has given\\fritteti~~~c;~: No request for an equitable
adjustment or change to the Contract Sum or G(:>ntract Timet(:>foiffering site conditians shall be
allowed if made after the by Cansultant as the..oate af substantial completion.
ARTICI5E ~4
WARRANTY
C9~[actor shall w~~t to. Ci!~:!g<!t all materials and equipment furnished for the Project
will be neW."\.l.llless otherwiseSl?ecified~d that all Work for the Project will be of good quality,
free fram fat.ilt~.~d defects all~,in canformance with the Contract Documents. The standard of
quality shall be::tt!~<:lst that emEloyed by similarly qualified Contractor's that are duly qualified
and licensed to. peif<:)~simil,!!,projects. If materials or equipment is improperly stored and
becomes altered as a ies~~!.<ljfsuch improper storage, Contractor shall replace said materials with
new materials at no additional cast. Contractor shall be responsible for proper starage and
safeguarding af all materials. If required by the Contract Administrator, Contractor shall furnish
satisfactory evidence as to the kind and quality af materials and equipment. The warranty
requirements set forth in the Cantract Documents as herein defined shall govern warranty terms
and canditions far all warranty items expressed ar implied. The Contractor's warranty period
under this Article shall be one (1) year from the date of Substantial Completion af each portian
afthe Project. Hawever, this Section shall not abridge the times or impede the rights and
remedies affarded the City against other entities ar persans under the Contract, or by law.
27
ARTICLE 2S
SUPPLEMENT ARY DRAWINGS
25.1 When, in the opinion of Consultant, it becomes necessary to explain more fully
the Work to be done, or to illustrate the Project further to show any changes which may be
required, supplementary drawings, with specifications pertaining thereto, will be prepared by the
Consultant.
25.2 The supplementary drawings shall be binding uponDeveloper with the same
force as the Contract Documents. Where such supplementary dr!-!-yVlngs require either less or
more than the estimated quantities of Work, appropriate adjustJ.1:!~nts shall be made pursuant to
Change Order.
ARTICLE 26
DELIVERY AND STORAGE OF MATERIALS
AND PARTIAL PAyl\IE8T THEREFOR
The City shall not be responsible for any paymentiidlor reimbursement for stored
materials, either on or off site.
ARTICLE 27.
.......GENERAL WORKMANSHIP
27.1 Articles, m~f~rials, equipment s.necified or shown on drawings shall be new
and shall be ap~l~~~;instalf~~;~offi1~~t,~~~~~~~Jed; used, cleaned, and conditioned for proper
forming, as ~~f.:tn~ni!~~~~acture~'~~irections;::~()ntractor shall, if required, furnish satisfactory
evidence a~!o kind andq1;j:!-!-lity oftne.materials. Should materials arrive to the jobsite new and be
impropel"l~.~tored and detet'!()l"ate condition, the materials shall be replaced at no
additional cost to City.
27.2 De'\i~l()per cause Contractor to apply, install, connect, and erect
manufactured itemsi:jf.materials according to recommendations of manufacturer when such
recommendations are nQfinconflict with the Contract Documents. If there is conflict between
manufacturer recommendations and the Contract Documents, Consultant shall be notified and
participate in the corrective actions.
28
ARTICLE 28
DEFECTIVE WORK
28.1 Consultant and/or Contract Administrator shall have the authority to reject or
disapprove Work for the Project which Contract Administrator reasonably finds to be defective.
If required by Consultant and/or Contract Administrator, Developer and/or Contractor shall
promptly either, as directed, correct all Defective Work or remove it from the Project site and
replace it with non-Defective Work. In the event it is determined that City was correct in its
order, Developer and/or Contractor shall bear all costs of such or correction.
28.2 If, within one (1) year after Substantial Compl~!ipn, any Work is found to be
defective or not in accordance with the Contract Documents, G<5nn:~~t.or shall correct it promptly
in accordance with the its warranties and without cost to Cit~after l'e~t:l;ipt of written notice from
City to do so unless City has given Developer a writtel}..~gceptance ofsll.c.;l1 conditions. Nothing
contained herein shall be construed to establish a p~ri8d of limitation witlirf:spect to any other
obligation which Developer might have under the..::t:llllFcable law.
28.3 Prior to Substantial Completion, fail or refuse to remove or
correct any Defective Work performed for the Project make any necessary repairs in an
acceptable manner and in accordance.\vjtl1 the requiremii1.ts of this Agreement within a
reasonable time, indicated in writing, City.slialthave the authoi}1yJ.o cause the unacceptable or
Defective Work to be removed or correct~d;Ot:j"ll::l:~e such i'epairs as may be reasonably
necessary to be made at Developer's expense. G<5ntii1.J.it:l;g....failure or refusal on the part of
Developer to make any or:::l:gt1:~~~.~sary repairspr6mptly, ftilly, and in acceptable manner shall
be sufficient cause for City to declare this AgreeIl1ent forfeited, in which case City, at its option,
may purchase materials;.t~gls, and;.~quipment anctf:mploy labor or may Contract with any other
individual, firm or corpotatlQ1'l" or!'t!l1.Y proceed ""ith its own forces to perform the Work. All
costs and expel1s~sreasoriaoI'Ylricurt~~~f:1."f:by shall be charged against the defaulting
Developer; Aa~spectll!!~.ork perfo.rmed, as described herein, shall not relieve Developer in any
way from 111sl'esponsibint~~.or the~ork performed by it.
28.4 ..1"'::t:ilure to rejeci.~ny Work or material shall not in any way prevent later
rejection whensl.i~l1defect is discovered or obligate City to final acceptance.
28.5 Uponifit1:::t:l C(}mpletion, City agrees to look solely to the Contractor, Consultant
or both, but not the DeYeloper, to perform any and all to repair or correct any and all Work
considered or determin~dby the City to be non-conforming or defective or otherwise in breach
of any warranty.
28.6 Upon Final Completion, the City shall become solely responsible and liable for
security, maintenance, heat, utilities, damage to the Work, and insurance. The failure to include
any items of corrective Work on such list does not alter the responsibility of Developer to
complete all of the Work in accordance with the Contract Documents. Warranties required by
the Contract Documents shall commence on the date of Final Completion of the Work or
designated portion thereof unless otherwise provided in the Certificate of Completion.
29
ARTICLE 29
SUBCONTRACTS
29.1 Until Final Completion, Developer shall be fully responsible for all acts and
omissions of its Contractor, subcontractors, sub consultants and of persons directly or indirectly
employed by its subcontractors and subconsultants and of persons for whose acts any of them
may be liable to the same extent that Developer is responsible for the acts and omissions of
persons directly employed by it. Until Final Completion, nothing in the Contract Documents
shall create any contractual relationship between any subcontractor and City or any obligation on
the part of City to payor to see the payment of any monies dl!~any subcontractor. City or
Developer may furnish to any Contractor, subcontractor, subcon~yUant evidence of amounts paid
to Developer on account of specific Work performed.'
29.2 Developer agrees to bind specifically;::;~'\(~ry Contraetor, subcontractor, and
subconsultant to the applicable terms and conditions Contract Documents for the benefit of
City.
29.3 Upon the occurrence of Final Completion and thereafter, as a third-party
beneficiary of the construction contract and all warrantie~tl!~reunder, City shall be deemed to be
in a direct contractual relationship with suchtl1at the Contractor shall be liable to
the City to the same extent that and resporisil)le..~o the Developer for the acts
and omissions of itself and all of its sub-sulicontractors, materialman and
laborers employed by the Contractor.
ARTI€LE 30
ENVIRONMENT A:t;MATTERS
0._._._...,._.._".""."",,,,...............,.......,,
The City is responsible as a Cost of the Work pursuant to an approved Change Order for
any requiredchvironmentalremediation within the Project Site. Developer shall be responsible
as a Cost of the Work pursuant to an approved Change Order for conducting environmental due
diligence prior to construction to assess the environmental site conditions and subsequent
remediation needs, if applicable.
ARTICLE 31
USE OF COMPLETED PORTIONS
31.1 City shall have the right at its sole option to take possession of and use any
completed or partially completed portions of the Project. Such possession and use shall not be
deemed an acceptance of any of the Work not completed in accordance with the Contract
Documents. If such possession and use increases the cost of or delays the Work, Developer shall
be entitled to reasonable extra compensation, or reasonable extension of time or both, as
recommended by Consultant and approved by City.
30
31.2 In the event City takes possession of any completed or partially completed
portions of the Project, the following shall occur:
31.2.1 City shall give notice to Developer in writing at least thirty (30)
calendar days prior to City's intended occupancy of a designated area.
31.2.2 Developer shall complete to the point of Substantial Completion the
designated area and request inspection and issuance of a Certificate of Substantial Completion
from Consultant.
31.2.3 Upon Consultant's issuance of a Certificateof..Substantial Completion,
City will assume full responsibility for maintenance, utilities, S1JJ:jsequerit damages of City and
public, adjustment of insurance coverage's and start of warrant~fol'tl:1e occupied area.
31.2.4 Developer shall complete allitelI1s noted()n the Certificate of
Substantial Completion within the time specified byQ6nsUltant on the Ce~igcate of Substantial
Completion, as soon as possible and request final jn$pection.and final accept~(;e ()f the portion
of the Work occupied. Upon completion of final~~pection~nd receipt ofana.pplication for
final payment, Consultant shall issue a final certificateo~p.a.Y!lientrelative to the occupied area.
31.2.5 If City finds itIl..~Qessary to Occup~()r use a portion or portions of the
Work prior to Substantial Completion thet~o!;.~1J.ch occupancyor:us~ shall not commence prior
to a time mutually agreed upon by City an(t.Devi~!():p~r and to wfijch the insurance company or
companies providing the property insurancehavecpu.sellte.dby' endorsement to the policy or
policies. Insurance on the .1JIl().l::(;upied or uri'Us.edportiori~rportions shall not be canceled or
lapsed on account of sucg.partialoc:cupancy orij.se. Consent of Developer and of the insurance
company or companiest~~uch occ'Up~ancy or uses!1all not be unreasonably withheld.
32.1 Developer
and personnel.
areas approved by the Contract Administrator for deliveries
32.2 To prpyide forlI1aximum safety and security, Contractor shall erect and maintain
all necessary barricade~;l:l!lclany other temporary walls and structures as required, and boarding
or fencing to protect life arid property during the period of construction.
32.3 Construction staging for the Project will be confined to the Project Site, thereby
not impacting adjacent commercial areas. Developer shall develop a plan for construction
staging in order for access to the adjacent commercial areas to be continually maintained with
only minimal disruptions. Such plan shall be subject to City's prior approval which shall not be
unreasonably withheld, conditioned or delayed.
ARTICLE 33
LANDS FOR WORK
31
City shall provide as indicated in the Contract Documents, the lands upon which the
Project is to be performed, rights-of-way and easements for access thereto and such other lands
as are designated for the use of Developer. No claim for damages or other claim other than for an
increase in the Contract Sum or an extension of time shall be made or asserted against City by
reason of any delay arising as a result of any failure of City to provide such lands on the date
needed by Developer. The provisions of Article 41 shall apply herein.
ARTICLE 34
LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS
Developer shall conform to all applicable laws, regulatioll~ior ordinances with regard to
labor employed, hours of Work and Developer's general operl.l#Or1s:J:)t::veloper shall also conduct
its operations so as not to close any thoroughfare, nor interfer~ in any~a:y with traffic on
railway, highways, or water, without the written consent. of the proper :.iiitliQnties.
ARTICLE 35
DAMAGE TO EXISTING FACILITIES, EQ'l.;T!PMENT OR UTILITIES
35.1 The City shall provide~t::Y:t::loper withtli~gocuments, including, without
limitation, a sonar study of all existing und~~rgr0\1lJ,2-facilities, eq!J.ipment and utilities within the
Project Site, identified on the attached ExhiJ:ji.t iin"I~QUt::ctively;;tlie "Documents") within_
days after the date of this Agreement. ....
35.2 The City~liall, priorJo commenc~ment of the Work, identify to Developer any
and all existing utilitit::sa,pgother uTI;gerground faciFtit::s, equipment, or utilities at City's sole cost
and expense. Developerati4Coll~l:lc.;!or shall be responsible to preserve all existing utilities
identified in th:...~~E~~ents.I~~."utintY'~(;5~~~e~js encountered which was not identified in the
Documents,Qonsultall~"~~Clll be~:~ponsible . for giving sufficient notice to the owners of the
utilities s9.~~at they may~~e thell~~:ss<:lcry adjustments. Any time delay or cost incurred will
be the resr>(;5.1'l~ibility of theC!ty and sh:;:tllincrease the Contract Time and Contract Sum through
an approvedCliange Order. City, as .fCost of the Work through a Change Order, shall relocate
any undergroufi.g~:ytilities exi~ting as of the date of this Agreement on the Project Site, if
necessary, that identif:1ed by City to Developer in the Documents.
35.3 exercise care and take all precautions during excavation and
construction operations prevent damage to any existing facilities, equipment, or utilities. Any
damage caused by Contractor shall be reported immediately to the Contract Administrator and
such Work shall be repaired and/or replaced by Contractor in a manner approved by City. In the
event Contractor damages underground facilities, equipment, or utilities that were identified by
City in the Documents, then all costs to repair and/or replace any damage to existing facilities,
equipment, or utilities, shall be the sole responsibility of Contractor, and such repair or
replacement shall be performed expeditiously without cost to City. In the event Contractor
damages underground facilities, equipment, or utilities that were not identified by City in the
Documents, then all costs to repair and/or replace any damage to existing facilities, equipment,
or utilities, shall be the sole responsibility of City, and such repair or replacement shall be
32
performed expeditiously at the expense of the City as a Cost of the Work through a Change
Order.
35.4 Contractor shall provide that type of required protection for finished Work at all
times and protect adjacent Work during cleaning operations, and make good any damage
resulting from neglect of this precaution.
35.5 Protection of Work shall include protecting of Work that is factory finished,
during transportation, storage, during and after installation. Where applicable and as required,
Developer shall close off spaces of areas where certain Work has been completed to protect it
from any damages caused by others during their operations.
35.6 To all applicable sections where preparatoryW9J:k is part of Work thereon,
Developer shall carefully examine surfaces over which fini~1ied W6~kjs to be installed, laid or
applied, before commencing with the Work. Developer~h!lllnot pr6ce~~with said Work until
defective surfaces on which Work is to be applied<.lXemc6trected satisfactorily to the Contract
Administrator. Commencement of Work shall...~.~.... considered acceptaric~~f ..surfaces and
conditions.
CONTINUING THE
Provided City is current in its paymerits undertiji~~g!~~nit:mt, Developer and Contractor
shall carryon the Work and::.tQl:1~!~ to the Construction ScIle~jjle during all disputes or
disagreements witIl City,incluOiiig~isputes or di$agreements concerning a request for a Change
Order, a request for a in SUnlqr Contract Time. Provided City is current in
its payments under Work sIlallnorbe delayed or postponed pending
resolution of any
.C7mFIELD
AND SUPPLEMENT AL INSTRUCTIONS
37.1 ThEi~(:mtract A~fuinistrator sIlall have tIle rigIlt to approve and issue Field Orders
(subject to Developer~~::.tpproY'al) setting forth written interpretations of tIle intent of the Contract
Documents and orderirigmirior cIlanges in Contract Documents execution, providing the Field
Order involves no cIlangein tIle total cost of tIle Project or the time of performance.
37.2 TIle Contract Administrator sIlall have tIle rigIlt to approve and issue to Developer
reasonable supplemental instructions to Developer setting fortIl written orders, instructions, or
interpretations concerning tIle Agreement or its performance, provided tIley make no material
changes in Contract Documents execution and involve no change in tIle total cost of tIle Project
or tIle time of performance.
ARTICLE 38
CHANGE ORDERS (CHANGES IN QUANTITIES OF WORK)
33
38.1 Changes in the quantity or character of Work within the scope of this Project
which are not properly the subject of Field Orders or supplemental instructions, to include all
changes resulting in changes in the total cost of the Project or the time of performance, shall be
authorized only by Change Orders approved by the Contract Administrator and Developer.
38.2 Developer shall not start Work on any alteration requiring an increase in price or
extension of time for completion until a Change Order setting forth the adjustments is approved
in writing by the Contract Administrator and Developer, except for the provisions of Section
38.3, which governs disputed Change Order items.
38.3 In the event satisfactory adjustment cannot be reacl}edfor any item requiring a
Change Order, the City reserves the right, at its own option, to eit.l'l~r terminate the Agreement as
it applies solely to the items in question and make such~rrat!gt:::rnents as may be deemed
necessary to complete the item in question. Provided, howev:er, if tne~angements made by the
City to complete the item in question would delay Fig~!<.::()mpletionQ~:!he Work or result in
additional expense to Developer, then the City shall either (1) issue a Ch3J:'lge Order for such
additional cost or time extension or (2) postpog~.~~e City's. proposed WOf~glltil after Final
Completion of the Work or (3) submit the matteriijg.!spute~Qthe Contract Administrator for
resolution as set forth in Article 11 herein. During:t~~pendeticy of the dispute resolution,
Developer shall proceed with the Work set forth withlij!l1e Change Order on a time and
materials basis, which Developer shall document: pending final resolution of such
dispute(s).
38.4 On approval of any Change price, Developer shall direct
Contractor to ensure tha~!g~::~plicable Pe~foi1nanceat!d. Payment Bonds, to the extent
applicable under the pro\';'!sions of.~icle 51 hereof, are eacn increased so that it reflects the total
amount of the Project.aS:increased.
38.5
by the Contract Administrator.
OF CHANGE ORDER WORK
In the eventtl1e City initiates a Change Order for Work to be performed or eliminated
from the Contract DOCll:rnents15)r Developer, Developer shall use its best efforts to negotiate with
the Contractor for the mQ~tcost effective pricing with respect to a determination of the change in
the Contract Sum, if any, or the amount of the time extension or reduction, if any, necessitated
by the Change Order. The cost quoted by the Developer for Change Orders shall be within
standard industry rates and shall be submitted with a breakdown oflabor, material, overhead and
profit subtotal amounts. Combined overhead and profit for Developer directed Change Orders
shall be ten percent (10%); Contractor and Subcontractors shall be entitled to markup often
percent (10%) overhead and five percent (5%) profit;
ARTICLE 40
CHANGE OF CONTRACT TIME OR CONTRACT SUM
34
40.1 The Contract Time set forth in Article 6 or the Contract Sum may only be
changed by a Change Order. Any claim for an extension of the Contract Time or for an increase
in the Contract Sum shall be based on written notice delivered by the party making the claim to
the Contract Administrator promptly (but in no event later than ten (10) business days) after the
occurrence of the event giving rise to the claim and stating the general nature of the claim.
Notice of the extent of the claim with supporting data shall be delivered within twenty-one (21)
calendar days after such occurrence (unless Contract Administrator allows, in writing, an
additional period of time to ascertain more accurate data in support of the claim). All claims for
adjustment in the Contract Time or for an increase in the Contract Sum shall be decided by the
Contract Administrator pursuant to the terms of Article 11 in this Agreement. No claim for an
adjustment in the Contract Time or for an increase in the ContJ:'adfSum will be valid if not
submitted in strict accordance with the requirements of this Article;
40.2 The Contract Time will be extended in an ati~unt equ~lto time lost due to days
beyond the control of and through no fault or neglig~nc~Of Develojj~r if a claim is made
therefore as provided herein. Such delays shall inclllde; but not be limitedtQ,acts or neglect by
City, or by any employee of City, or any separate:~(.mtracto~ or consultaniell1ployed by City,
fires, floods, labor disputes, epidemics, abnormal weatli~r conditions or acts of (3.<5d.
ARTICLE 41
NO DAMA,fiiESFOR DELAY
NO CLAIM FOR DAMAGES OR A~ CLP;:IlVI~iI'H.ERTHAN FOR AN
EXTENSION OF CONTR4@~~JJv1E OR AN~EREASE:IN.THE CONTRACT SUM SHALL
BE MADE OR ASSERTEDAGP;:~ST THE CFfY BY REASON OF ANY DELAYS.
DEVELOPER SHALL~~.T BE EN'TFfLED TOl?A YMENT OF COMPENSA nON OF ANY
KIND FROM THE CFfYE~~ DI@<::.T, INDIRE€1*,; CONSEQUENTIAL OR OTHER
COSTS, EXPEN'.S~~2R D~~~ES;IN'@J?!J.PING, BUT NOT LIMITED TO, COSTS OF
ACCELERA~~0Na~~EFFIC~N'CY, REStfL TING FROM ANY DELAYS, EXCEPT IN
THE EVENI THAT SUC~J::)ELA~SA.RE DUE TO FRAUD, BAD FAITH, ACTIVE
INTERE.E~N'CE OR TH.E~~ILuRE3rOTIMELY ACT BY THE CITY. OTHERWISE,
DEVELOPER; SHALL BE El\IIJDITLED ONLY TO EXTENSIONS OF THE CONTRACT TIME
".'@N'_'~. ..'='."00.'..'
OR AN INCRE~SE IN THE <::'~NTRACT SUM AS ITS SOLE AND EXCLUSIVE REMEDY
FOR SUCH DELA;YS. DEVEEOPER SHALL SPECIFICALL Y INCLUDE THIS
PROVISION IN FfSAGREEMENT WFfH CONTRACTOR.
ARTICLE 42
SUBST ANTIAL COMPLETION
When Developer considers that the Work, or a portion thereof designated by City
pursuant to Article 31 hereof, has reached Substantial Completion, Developer shall so notify
Contract Administrator and Consultant in writing. Contract Administrator and Consultant shall
then promptly inspect the Work. When Contract Administrator and Consultant, on the basis of
such an inspection, determine that the Work or designated portion thereof is Substantially
Complete, Consultant will then prepare a Certificate of Substantial Completion which shall
35
establish the Date of Substantial Completion and shall list all Work yet to be completed to satisfy
the requirements of the Contract Documents for Final Completion. The Certificate of Substantial
Completion shall be subject to Contract Administrator's reasonable approval and shall be
submitted to City through the Contract Administrator and Developer for their written acceptance
of the responsibilities assigned to them in such Certificate.
ARTICLE 43
SHOP DRAWINGS AND SCHEDULE OF VALUES
43.1 Developer shall submit Shop Drawings for all equipmeht~ apparatus, machinery,
fixtures, piping, wiring, fabricated structures and manufactured... articles. The purpose of a Shop
Drawing is to show the suitability, efficiency, techniqiie:p:t'... manufacture, installation
requirements, details of the item and evidence of its coniIfliance;ornoncompliance with the
Contract Documents.
43.2 Developer shall promptly request
fabricators, and suppliers.
Drawings from the vari(jl.l~ manufacturers,
43.3 To the extent Shop Drawings are required~J?iJhe Consultant or industry custom
and standards would contemplate the p(~l>l;l.!ation of Shoi:,:;:m!l;lWings for certain items of the
Work, subcontractors and/or materialmen sl:iall'Q~Iequired by ca~!J:<:lctto submit Shop Drawings.
Consultant shall thoroughly review and che~l<: tHeS~i:)pPrawingsand each and every copy shall
show Consultant's approval thereon.
43.4 If the Shop Drawiug!) show or in~icate departures from the Contract Documents
requirements, Develope~~l:iall mak.~~specific mention thereof in its Shop Drawing submittal and
a separate letter. Failurel(j.1JointQ.\;lt such departUres shall not relieve Developer from its
responsibility to cOIllply wiih~!~e:eGnira~tp()(;unlentS. Contract Administrator shall determine
acceptability ()fehang~~~<i in CO:usideringsaidchange, may require data, technical comparisons,
cost comp<1.fisons, qu.aliiy::gompaB~Qns and/or calculations to determine the equality of
deviati()nsi~~.ontract Administrator is~i:)~obligated to accept deviations.
43.5 ~~Work calledt'Qr by Shop Drawings shall be done until the said Drawings have
been furnished toind acceptli;'d by the Contract Administrator or hislher Designee. Contract
Administrator shallt~~P9nd~o Shop Drawings pre-approved by Consultant with objections or
acceptance within ten (.tQlousiness days of receipt. Acceptance is for design intent only and
shall not relieve Developer and Consultant from responsibility for fit, form, function, quantity or
for errors or omissions of any sort on the Shop Drawings.
43.6 No acceptance will be given to partial submittal of Shop Drawings for items
which interconnect and/or are interdependent. It is Developer's responsibility to assemble the
Shop Drawings for all such interconnecting and/or independent items, check them and then make
one submittal to the Contract Administrator along with Developer's comments as to compliance,
noncompliance, or features requiring special attention.
36
43.7 If catalog sheets or prints of manufacturers' standard drawings are submitted as
Shop Drawings, any additional information or changes on such drawings shall be typewritten or
lettered in ink. Catalog sheet with multiple options shall be highlighted to depict specific
pertinent data including options.
43.8 Developer shall submit to Contract Administrator six (6) copies. Resubmissions
of Shop Drawings shall be made in the same quantity until final acceptance is obtained.
43.9 Contract Administrator's acceptance of the Shop Drawings as approved by
Developer will be for general compliance with the plans and specifications design intent and
shall not relieve Developer of responsibility for the accuracy o{~Ucl1 Drawings, nor for the
proper fittings and construction of the Work, nor for the fum!~Aihg of the materials or Work
required by the Contract Documents and not indicated on the:Qrawil1.gs.
43.10 Developer shall keep one set of ShopI?rawings marked with the Contract
Administrator's acceptance at the Project site at all tiIIle$: .. ....
43.11 At least thirty (30) calendar days .prio~..!() the cQIIlmencement ()fconstruction, the
Developer shall submit a schedule of values to the EfontracfAdministrator: Developer shall
submit to the Contract Administrator a separate schedul&:]~( values for demolition, abatement,
and site Work thirty (30) calendar dayspJ:"i()r to commencIng such portion of the Work. The
schedule will be typed on 8-1/2" x 11 "wfii~~:pa:per listing:~it~~()f project, location, project
number, architect, Contractor, Contract Docurnent~d~signation;a.fid date of submission. The
schedule shall list the installed value of thec()mpo!!entp;;t1"t~()fthe Work in sufficient detail to
serve as a basis for computi~~~~!~.~s for progt~~~payments~linng the construction. The table of
contents of the specificat!.8tls shall~~tablish thef~rmat for listing the component items. Each line
item will be identifi~Q:QY the~!lmber and title of the respective major section of the
specifications. For eachli~(::..itemi00'Reveloper shill list the sub-values of major products or
operations under!h~....item. Ea9~.!tems~l:l1!~Sll1de the proportion of Developer's overhead and
profit. For al!l'item.S~8f.~hichpF()gresspayments will be requested for stored materials, the
value will be broken down with:
safeguarded,
The~.c:ost ot materials delivered, unloaded, properly stored and
paid; a~<:l
ARTICLE 44
FIELD ENGINEERING
44.1 The Developer shall provide as a Cost of the Work, the engagement of
Consultants for field engineering services required for the Project. This field engineering
services shall include the following elements:
44.1.1
Survey Work required in execution of the Project.
37
44.1.2 Civil, structural or other professional engineering services specified, or
required to execute the Contractor's construction methods.
44.2 The survey completed by the survey Consultant will identify the qualified
engineer or registered land surveyor, acceptable to the City, and it shall be retained by the
Developer at the outset of this Project.
44.3 The survey will locate and protect control points prior to starting site Work, and
will preserve all permanent reference points during construction.
44.3.1 No changes or relocations will be made W'!~ho.l.lt prior written notice to
the Contract Administrator.
44.3.2 A report shall be made to the;~Ontra()!b.dministrator when any
reference point is lost or destroyed, or requires relocatioIl1::l~cause of Iie()~~.~ary changes in grades
or locations.
44.3.3 The surveyor shall be to rell!(ice Project conlro1points which
may be lost or destroyed. The surveyor shall be dulY:l"~gi~.iefed.. as a surveyor or mapper, as
required by state law.
44.3.4
Replacements
original survey control.
FIELD LAYBt1%BF THE WBR:K AND RECORD DRAWINGS
45.1 The entife~~~ponsibility for establishing and maintaining a line and grade in the
field lies with Contractor';~2nt:J.:~g~2!...~hall mairttain an accurate and precise record of the
location and el~:Y(itig~.~Eallpi~~~iIies;conduits; structures, underground utility access portals,
handholds'Bttingsand~~~like~1i~.shall deliver these records in good order to the Contract
Administ!(it2r as the W ol"Kis conipl~t~<i. These records shall serve as a basis for "record"
drawings. The cost of all sticIifield la~Out and recording Work is included in the prices bid for
the appropriateit~J:ns.
45.2 CoIitriietor maintain in a safe place at the site one record copy of all
Drawings (Plans), Sp~~i.f:i<::.(itibns, Addenda, written amendments, Change Orders and written
interpretations and clarifications in good order and annotated to show all changes made during
construction. These record documents together with all approved samples and a counterpart of all
approved Shop Drawings will be available to Contract Administrator for reference. Upon
completion of the Project, these record documents, samples and Shop Drawings shall be
delivered to Contract Administrator.
45.3 At the completion of the Project, the Contractor 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
38
Mylar at least monthly to the Contract Administrator. These "as built" drawings on Mylar and
the latest version of the AutoCAD format media must be delivered and found to be acceptable
prior to final payments.
ARTICLE 46
SAFETY AND PROTECTION
46.1 Developer shall require Contractor to be responsible for initiating, maintaining
and supervising all safety precautions and programs in connection with the Project. Developer
shall take all necessary precautions for the safety of, and shall provig<5th~ necessary protection to
prevent damage, injury or loss to:
46.1.1
All employees on the Project and Qiher
who may be affected
thereby;
46.1.2 All the Work and all
whether in storage on or off the Project site; and
or equipment to bem.9~.Iporated therein,
46.1.3 Other property at the site or
lawns, walks, pavements, roadways,~~ructures and
relocation or replacement in the course ofc,()fl.~~ru9tion.
thereto, including trees, shrubs,
not designated for removal,
46.2 Developer shall reasonably cal:!se CQij.tt~~~rto comply with all applicable laws,
ordinances, rules, regulatio~~~~g~rders of arl~g~f)lic f)on~Ilaving jurisdiction for the safety of
persons or property or to protect~B~m from damage, injury or loss; and shall erect and maintain
all necessary safegua~g~for sucllisafety and 'protection. Developer shall notify owners of
adjacent property and utill!i~s wh~n prosecutionQ~the Work may affect them. All damage,
injury or loss to any properlY'r~f~rFiil~~ill..SectiQns 46.1.2 and 46.1.3 above, caused directly or
indirectly, in~B()l~,,()~~gpart,l?y:peveloperQr=Contractor , any subcontractor or consultant or
anyone dir~.ctly or indire(.itly emplQy~d by any of them or anyone for whose acts any of them
may be liaQle, shall be remiilied byth~~.~sponsible party; however, Developer and/or Contractor
shall noib~i!#I;1::>.1e for injury8rilamagecaused by City, its employees, consultants or its separate
Contractors. D~~~loper's andContiactor's duties and responsibilities for the safety and
protection of theJ:?~(:)ject shalL continue until such time as all the Project is completed and the
Contract AdministratQ~llas issued a notice to Developer that the Project is acceptable except as
otherwise provided in Article 28.
46.3 Contractor shall designate a responsible member of its organization at the Project
site whose duty shall be the prevention of accidents. This person shall be Developer's Project
Representative unless otherwise designated in writing by Developer to City.
ARTICLE 47
PAYMENT OF TESTS BY DEVELOPER
Except when otherwise specified in the Contract Documents, the expense of all tests and
test reports shall be borne by Developer but will be passed onto City as a Cost of the Work.
39
ARTICLE 48
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 49
CLEANING UP AND REMOVAL OF EQUIPMENT
49.1 Developer shall cause Contractor at all times keepth~ Proj ect site free from
accumulation of waste materials or rubbish caused by Contracto.t,:~~bperations. At the completion
of the Project, Contractor shall remove all its waste materi::t1s:an~=l1lbbish from and about the
Project as well as its tools, construction equipment, ma~hineiY:;:(l.ll,d surplus materials. If
Developer fails to clean up at the completion of the Pr()j~~!, City maiqQSo; and the reasonable
cost thereof shall be charged to Developer.
49.2 In case of termination of this Agre~1l1ent b:~~ore completi6nfor any cause
whatever, Developer, if notified to do so by City, s'fiaUpromptly remove any part or all of
Developer's equipment and supplies from the property of~i!y, failing which City shall have the
right to remove such equipment and suppli~sat the expense'b$~(;':veloper.
BLANK]
execution
the form and
Performance
of the Contract
dual obligees.
cause~Ql1tractor to furnish, or cause to be furnished, upon the
yvith Contractor, a performance bond and payment bond of
all the::provisions attached hereto and made a part hereof. Payment and
be in.~l;le form of dual obligee bonds from the Contractor in the amount
the~eveloper and the Contractor, naming the City and Developer as
51.2 The shall be in the amount of one hundred percent (100%) of the
construction 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 51.4.
51.3 Such Bonds shall continue in effect for one year after completion and acceptance
of the Project with liability equal to one hundred percent (100%) of the Contract Sum, or an
additional bond shall be conditioned that Developer will, upon notification by City, correct any
40
defective or faulty Work or materials which appear within one year after completion of the
Contract.
51.4 The surety company shall have at least the following minimum ratings in the
latest revision of Best's Insurance Report:
Amount of Bond
Ratings
Category
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
B+
B+
A
A
A
A
A
Class I
Class II
Class III
Class IV
Class
ClassYI
Class VII
51.5 Indemnification Of City
51.5.1 The construction contract betweel1.Developer and Contractor and the
architect's agreement between Developer~<..IArchitect shallp~gyide that Contractor or Architect
(as applicable) shall indemnify and save hll.1'fn:!~~~Eity, its offic~~~~/.:lgents and employees, from
or on account of any injuries or damages, re(;eivedg~~H~tained by any person or persons during
or on account of any construction activities o'€ContractQr Qr Afchitect (as applicable), or any of
its subcontractors, consultaJ:g~~ll:g~nts, servant~;9temploy~~~~connected with the Project; or by
or in consequence of al1?,neglig~~~e of Contrac::,tor or Architect (as applicable), or any of its
subcontractors, consultaQ~~:agents;servants, orel11ployees (excluding negligence of City), in
connection with the constfl.l:c::,~iQn ac::,.tiy!ties of Contractor or Architect (as applicable), or any of
its subcontractors,~~g~~ltaniS~~8~nis;se~~t~~of employees connected with the Project; or by
use of any ig}.l"roperlI!l.~~~~~ls or~i>:'..~r on account of any act, error or omission of Contractor or
Architect (~applicable)o~~y Suoqontractor, consultants, agents, servants or employees, except
to the extei!~:8:aused by CiiyI.:rhe co~~truction contract between Developer and Contractor and
the archited's]~gJ"eement betwi~~n Developer and Architect shall further provide that Contractor
or Architect (asc.jpplicable) sQc.jll indemnify and save harmless City (a) against any claims or
liability arising froil:iQI basediipon the violation of any federal, state, City or city laws, bylaws,
ordinances or regulai~~!!sl>Y Contractor, its subcontractors, agents, servants or employees
(excluding negligence 6~<sfty); and (b) 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.
51.5.2 Developer shall 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 grossly negligent conduct or grossly negligent misconduct of
Developer and for which City, its agents, servants or employees, are alleged to be liable.
41
51.5.3 The indemnification provided above shall obligate Contractor or
Developer (as applicable) to defend at its own expense to and through appellate, supplemental or
bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of
liability and all suits and actions of every name and description that may be brought against City
which may result from the operations and activities under this Agreement whether the
construction operations be performed by Developer, Contractor, its subcontractors, its
consultants or by anyone directly or indirectly employed by any of the above.
51.6 Insurance. Developer shall as a Cost of the Work 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 Insuranee~::Comprehensive General
Liability Insurance, and shall require Developer to provide, pa)'for and maintain in force at all
times during the Project, Professional Liability Insurance, a~wil1;~ssure to City the protection
contained in this Agreement. Such policy or policies shall be issued'Qy companies approved to
do business in the state of Florida, and having agentSUPQn . whom seryife of process may be
made in the state of Florida. Developer shall specifically protect CityoYllaming City as an
additional insured under the Comprehensive Liability InsurancePQlicy hereinafter
described.
51.6.1 Professional Liability Insurance~~!h limits of liability provided by
such policy not less than Three Million~g.H~~s ($3,000,OO()~~@2 each claim to assure City the
indemnification specified in Section 51.5 :Sa~h..policy may caa::y a deductible; however, any
deductible shall not exceed One Hundred 1'1l0usafiCll}oJlars ($1 QO,OOO.OO) for each claim. The
Certificate of Insurance for Professional :Liabilit~Insijrance shall reference the applicable
deductible and the Project.
51.6.2 'W:.orkers' to apply for all employees in
compliance with the "W6rK~!S' O,)m.E~nsation of the state of Florida and all applicable
federal laws. In':l:99~!ion, tlie~Qlicy(ie~lmpst:.jficlude: Employer's Liability with a limit of
$1 00,000.OO\;")acllacci9~llt. "~ .~...~
51.6.3 C6mprehensiy~General Liability with minimum limits of Two Million
Dollars ($1:0Q@,pOO.00 primaI~and excess of $1,000,000.00) per occurrence combined single
limit for Bodily~!tjllry Liability~nd Property Damage Liability. Coverage must be afforded on a
form no more restr19!~ye thantlie latest edition of the Comprehensive General Liability Policy,
without restrictive en.Cl~~~em\;")rits, as filed by the Insurance Services Office and must include:
(i) Premises and/or Operations;
(ii) Independent Contractors;
(iii) Products and/or Completed Operations;
(iv) The Developer shall maintain in force until at least three (3)
years after final completion of the Project coverage for
Products and Completed Operations, including Broad Form
Property Damage;
42
(v) Explosion, Collapse and Underground Coverage's;
(vi) Broad Form Property Damage;
(vii) Broad Form Contractual Coverage applicable to this
specific Agreement, including any hold harmless and/or
indemnification agreement;
(viii) Personal Injury Coverage with ~Il1ployees and Contractual
Exclusions removed with miniJiHumJimits of coverage
equal to those required for~Qg.ily Injury Liability and
Property Damage Liability; ang.
(ix) Notice of Cancell~ti6n~rid/or Resti:i~~~pn- The policy(ies)
must be endors,~dto provide the City with thirty (30) days
notice of and/or restriction.
51.6.4 Business Automobile LiabilitYwithininimum limits of Three Hundred
Thousand Dollars ($300,000.00) per OCCUrrence combined~~n.gle limit for Bodily Injury Liability
and Property Damage Liability. Coverage:~!:ls,t be afforded oIl. !i.. form no more restrictive than
the latest edition of the Business AutomobileEi~~g~ty Policy, witl1r>ut restrictive endorsements,
as filed by the Insurance Services Office andIpusfiii~lijde;
must be
notice
Convention
Owned v~hicles; and
Expiration and/or Restriction: The policy(ies)
Beach, Florida, with thirty (30) calendar days
to the attention of the Risk Manager, 1700
Beach, Florida 33139.
5 DeveIoper shall furnish to the Contract Administrator Certificate(s) of
Insurance evidencingtl1.~.!ns,l.1rance coverage's required herein prior to final award by the Board.
Such certificate(s) shan~e.ference 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.
51.6.7 Developer shall provide to City a Certificate of Insurance or a copy of
all insurance policies required under this Article. The City's Risk Manager reserves the right to
require certified copies if requested. Endorsements and certifications shall state City is to be
given thirty (30) calendar days' written notice prior to expiration or cancellation of the policy.
43
ARTICLE 52
MISCELLANEOUS
52.1 Art in Public Places. The City has advised Developer that the proposed Project
constitutes a public joint development, and that the AIPP 112% will apply to the Contract Sum
(per proposed revisions to ordinance). Developer agrees to match the City's 112% of the Contract
Sum for AIPP. The City agrees that Developer's AIPP contribution shall be utilized solely on the
1100 block of Lincoln Road between Lenox Avenue and Alton Road and that the art and artists
shall be subject to Developer's prior approval. City acknowledges..that Developer would not
have agreed to make the AIPP contribution but for the City's agre~nlentJhat the funds would be
utilized on the 1100 Block of Lincoln Road and that the ar1;~d artists shall be subject to
Developer's prior approval. ::...
52.2 Public Benefits. The public will ben~fitjnseveralW!l:i.Y~ from the proposed
Project: (a) the current obsolete design of the 1100 bl()ck of Lincoln Road will be replaced with a
new design reflecting a modem interpretation ofMfirris Lapidus' s originarij~sign prepared by
the world class Design Architects created by andcoorijinated with the design afiijconstruction of
the 1111 Lincoln Road project, which will enhance thel!u11licuse and experience of this block;
(b) the design will incorporate signific::ant areas in the:I~r;:;l1tral portion of the block, to be
determined in the final design, that willQ~reserved for op~iil2'l!blic use and prohibit restaurant
seating and food displays; (c) by contracti~~~t~Jln affiliateo~~e>developer of the adjoining
1111 Lincoln Road Project to develop the Project;t1j;~>.P'l!blic wilr"realize significant savings in
general conditions and other expenses relat~~. totfi~>co~~.~c::tion of the Project; (d) having a
single developer and Contr~totQ'l!ilding bothih.enew mix;ea:use building on the 1111 Lincoln
Road Project and the Pr()jeCt walI~inimize disruption and ensure better coordination of the two
projects; and (e) the exteii~!()n oftl!~ very succes$[uILincoln Road pedestrian mall will benefit
the public and this portion(j~.Linc::(jlg..l~.gad and r~iiiforce the pedestrian experience of Lincoln
Road from Wasl}iggtgg A venuetlifougha.U()IlB,oad.
52:2C Easements;::~ity he~~~~ grants to Developer and its affiliates that own the 1111
Lincoln.R.(j~1:l Property attLl!1porarY~ofistruction right-of-way permit and/or easement and
continuing m~igtenance eas~ents and/or right-of-way permits along Lincoln Road, Alton
Road, Lincoln E~-nr;:;and LenoJ{:a.venue for the construction and maintenance, including but not
limited to the archit~~tural ov~~hangs and features over pedestrian portions of the adjacent right-
of-ways and the underi2.1.1Ill:lutilities necessary to serve the buildings to be constructed at 1111
Lincoln Road and 1665~lton Road by affiliates of Developer. The provisions of this Section
shall survive the completion or earlier termination of this Agreement and shall thereafter remain
in full force and effect.
52.4 Pedestrian Drop-Off Areas. Pedestrian drop-off areas shall be carefully designed
for both Alton Road and Lenox Avenue in a manner to be reviewed and approved by City staff in
accordance with the requirements of the Department of Public Works (the "Department"). The
Department has already met with the Florida Department of Transportation and is completing
studies requested to finalize the drop-off plan.
44
52.5 Operation of Proiect upon Substantial Completion. City shall be solely
responsible for operating and maintaining the Project upon Substantial Completion.
52.6 Annual Maintenance Program. A comprehensive annual maintenance program
and schedule is being prepared by the Design Architects for City for successful future
maintenance of the "urban glade" features of the Project, including ponds, water features,
indigenous plants and trees and special lighting. Such program and schedule shall be approved
by City staff and relevant City agencies. Developer shall provide oversight of such program and
schedule as part of a separate agreement to be entered into with City. Water features are subject
to City's approval after submittal by Architect of life cycle cost. Th~.back up information shall
be provided before the 50% Construction Drawings are completed.
52.7 Royalties And Patents. All fees, royalties, ..tUia~lllims for any invention, or
pretended invention, or patent of any article, material, arrtUigemerit'~llPpliance or method that
may be used upon or in any manner be connected ~!~ th~ constru~t!!:m of this Project or
appurtenances, are hereby included in the prices stipula.ted irithis Agreenieijtfor said Project.
52.8 Rights of Various Interests. Wheriev~!~orkp~ing done by forces or by
other Contractors is contiguous to Work covered by this~Agreenient, the respective rights of the
various interests involved shall be established by the (;;Ql1tract Administrator to secure the
completion of the various portions of the~0rk in general
52.9 Assignment. This Agreemeritshallij~~p~ assigned6t~subcontracted as a whole or
in part without the written consent of the City, nor~na1l1:O~y~lgper assign any monies due or to
become due to it hereunder,.w-itn0ut the prior ~t!!teh consefi~~ijfthe Contract Administrator.
52.10 No IntS~~~f.~Any mg~ies not paidgy ~ity when claimed to be due to Developer
under this Agreement shall110t be~ubject to interest However, the provisions of City's prompt
payment ordinance, as sucfi~~lCltestQ!!!l1~!iI1~~S of payment, and the provisions of Section
218.74(4), FI()Elda.St~~'tl~~s" ass~~l:1 rela.testotne payment of interest, shall apply to valid and
proper invglges.
52:tlOwnership ofBocumel1ts. Drawing, specifications, design, models, photographs,
computer Auto<0?~ disks, re~Qrts, surveys, and other data provided in connection with this
Agreement and for which Cit)i'Jias rendered payment, are and shall, subject to the terms of the
Contract Documents;l}~comea.rid remain the property of City whether the Project for which they
are made is executed orijg!;i If this Agreement is terminated for any reason prior to completion
of the Work, City may, ~ubject to the terms of the Contract Documents, in its discretion, use any
design and documents prepared hereunder for the purpose of completing the Project, provided
that City has paid for same; and provided further that if such termination occurs prior to
completion of documents and/or through no fault of Developer; Developer and Consultant shall
have no liability for such use; and provided further that any reuse without the written verification
or adaptation of Consultant for the specific purpose intended will be without liability or legal
exposure to Consultant or Developer. At the completion of the Project, as part of the Project
closeout, copies of all drawings on AutoCAD disks shall be transmitted from Developer 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
45
Agreement and shall thereafter remam m full force and effect. Any compensation due to
Developer shall be withheld until all documents are received as provided herein.
Notwithstanding the foregoing, the City retains ownership of any and all documents provided to
the Developer and has full use thereof without any further payment.
52.12 Records. Developer 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 comple1!on of the Proj ect pursuant
to this Agreement. Incomplete or incorrect entries in such books and.reeords will be grounds for
disallowance by City of any fees or expenses based upon such entEes.
52.13 Nondiscrimination, Equal Employment OJ?portuiiit~'cAnd Americans With
Disabilities Act. Developer shall not unlawfully discrimiiii1!teagainst anyp~rson in its operations
and activities in its use or expenditure of the funds Qr:anypbrtion of thefgllgs provided by this
Agreement and shall affirmatively comply with a!!!ipplicableprovisions oftl1~..Americans with
Disabilities Act in the course of providing anyse5tl(.;es fund.ed in whole orin part by City,
including Titles I and 11 of the (regarding nondiscririiiiiatioiionlhe basis of disability), and all
applicable regulations, guidelines, and stl:indards.
Developer's decisions regarding the(lel!'g~.J:Y of servicesli~~gthis Agreement shall be
made without regard to or consideration of race~a.ge~l'eligion, col(ji';gender, sexual orientation,
national origin, marital status, physical or mental di~ability;politieal affiliation, or any other
factor which cannot be lawflllly~r...appropriatef)rg~~d as aB~is for service delivery.
Developer shall~(j~~ly wit~;ritle I ofthe~:ricans with Disabilities Act regarding
nondiscrimination on the ba~~~~f 5!~~~!I~t~ in empl~yment and further shall not discriminate
against any emplQy~~or applicl:il'l1foremp!f)ymt:,lIlt because ofrace, age, religion, color, gender,
sexual orien~~!~cirt;rtat~~~~~.~rigiiU:!llarital sta.ttis~ political affiliation, or physical or mental
disability.~addition, Devt:,l!~per shallJ.ake affirmative steps to ensure nondiscrimination in
employm.en!il:i.gainst disabled.p~rsons:$yeh actions shall include, but not be limited to, the
following: erii}:It~.yment, upgra.~~g, demotion, transfer, recruitment or recruitment advertising,
layoff, terminatiQ'I:l;rates of pa)i;.fother forms of compensation, terms and conditions of
employment, trainirtg(includiIlgapprenticeship), and accessibility.
Developer shallt~eaffirmative action to ensure that applicants are employed and
employees are treated without regard to race, age, religion, color, gender, sexual orientation,
national origin, marital status, political affiliation, or physical or mental disability during
employment. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates
of pay, other forms of compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
Developer shall not engage in or commit any discriminatory practice in violation of the
City's Human Rights Act in performing the Scope of Services or any part of the Scope of
Services of this Agreement.
46
52.14 No Contingent Fee. Developer warrants that it has not employed or retained any
company or person, other than a bona fide employee Working solely for Developer to solicit or
secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual or firm, other than a bona fide employee Working solely for Developer,
any fee, commission, percentage, gift, or other consideration contingent upon or resulting from
the award or making of this Agreement. For the breach or violation of this provision, City shall
have the right to terminate the Agreement without liability at its discretion, to deduct from the
Contract Sum, or otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
52.15 All Prior Agreements Superseded: Amendments; The Contract Documents
incorporate and include all prior negotiations, correspondC;:.l'l.ee;~(:)~versations, agreements or
understandings applicable to the matters contained herein, ana the Parti~s agree that there are no
commitments, agreements or understandings concerni~g;tgesubject m.~tter of this Agreement
that are not contained in the Contract Documents. AscfirdingIy it is agreedtb.~lno deviation from
the terms hereof shall be predicated upon any priC).~~re:presentations or agreeme~t~}Vhether oral or
written.
It is further agreed that no modifisation, amendmen~Qralteration in the terms or
conditions contained herein shall be effectiv.e.llnless contain~a1n a written document executed
with the same formality and of equal dignitY;:her~~iJh.
52.16 Notices. Whenever either part~ de~irestdgi~(;l:notice unto the other, it must be
given by written notice, (a)s~~~~..eertified United. States ITiifll, with return receipt requested, (b)
by personal delivery witga' signedrc;:ceipt, (c) ay recognized national overnight courier service
or (d) by facsimile, inail~.fase, ad~essed to the~;;trty for whom it is intended, at the place last
specified; and the place forgc~Y4ngg~!1:C)1!fe shall r~~ain such until it shall have been changed by
written noticei~ggIR:g!i~~ce~i~~the~rQ~i~!g~~Qr this paragraph. Notices given by an attorney
for the City orDevelop:~~~l;1all be~eemed effective notices. For the present, the parties designate
the as the res~ec!i~~pla2es~9r giving of notice, to wit:
CITY:
City of Miami B~ach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Manager
Fax: (305)
With a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
Fax: (305)
47
FOR DEVELOPER:
UIA Management, LLC
1111 Lincoln Road, Suite 760
Miami Beach, Florida 33139
Attn: Robert S. Wennett
Fax: (305) 531-4409
With a copy to:
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Blvd., Suite 2500
Miami, Florida 33131
Attn: John C. Sumberg, Esq.
Fax: (305) 351-2201
52.17 Truth-In-Negotiation Certificate. Signafu.t:~Qfthis Agreement by Developer shall
act as the execution of a truth-in-negotia.!!~.m certificate si~i~g that wage rates and other factual
unit costs supporting the compensation of:fni~Agreement are:il.~~urate, complete, and current at
the time of Contracting. The original Contr~~t:'SY:ID;:.a.l1d any addili(Jnsthereto shall be adjusted to
exclude any significant sums by which Ci!y defe~!l1~~. the Gontract Documents Sum was
increased due to inaccurate, incomplete, or rion-c:;~erirw~g~rates and other factual unit costs.
All such Contract be made within one ':(1 ) year following the end of this
Agreement.
52.18 Interpretati(j'f1;Ih~.~l:l1't!~~hereto a~lfuowledge and agree that the language used
in this Agreell1~!!~~~~~~~ses th.~~2TutUaPirite;l!parid no rule of strict construction shall apply to
either party~eteto. The;~~~dings:~~ptained in this Agreement are for reference purposes only
and shall.~g~ affect in anyr~~y thbll1~~!!ing or interpretation of this Agreement. All personal
pronounsus~!n this Agreement shall!J'lelude the other gender, and the singular shall include the
plural, and viC[~yersa, unless!ne context otherwise requires. Terms such as "herein," "hereof,"
"hereunder," aria!In.ereinafter'~refer to this Agreement as a whole and not to the particular
sentence, paragrapl1<:>f sectiQn where they appear, unless the context requires otherwise.
Whenever reference is!!!i;lgelo a Section or Article of this Agreement, such reference is to the
Section or Article as a wno1e, 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.
52.19 Recycled Content. In support of the Florida Waste Management Law, Developer
is encouraged to supply any information available regarding recycled material content in the
products provided. City is particularly interested in the type of recycled material used (such as
paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in the
product. City also requests information regarding any known or potential material content in the
product that may be extracted and recycled after the product has served its intended purpose.
48
52.20 Public Entity Crimes Act. In accordance with the Public Entity Crimes Act,
Section 287.133, Florida Statutes, a person or affiliate who is a Contractor, consultant or other
provider, who has been placed on the convicted vendor list following a conviction for a Public
Entity Crime, may not submit a bid on a Contract to provide any goods or services to the City,
may not submit a bid on a Contract with the City for the construction or repair of a public
building or public Work, may not submit bids on leases of real property to the City, may not be
awarded or perform Work as a Contractor supplier, subcontractor or consultant under a contract
with the City and may not transact any business with the City in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36
months from the date of being placed on the convicted vendor list. ViQlation of this section shall
result in cancellation of the City purchase and may result in debafl1].~nt.
52.21 Waiver of Trial by Jury. BY ENTERING INTO THIS AGREEMENT,
DEVELOPER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY
HAVE TO A TRIAL BY JURY OF ANY CIVIL LITI<:;iA[ION RELAT.ED TO, OR ARISING
OUT OF THE PROJECT. DEVELOPER SHALl:: SPECIFICALLY BH[I:>. CONTRACTOR,
CONSULTANT AND ANY AND ALL OlI'HER SUBCONTRAe[Q.;RS AND/OR
SUBeONSULTANTS TO THIS PROVISION OF THE.CONT&AeT.
52.22 Approvals. Whenever any matter set forthfj~f~in is made subject to the approval
of the eity or the Contract Administrator;tJ.1~::<l.pproval shallbt:;~;xpressed in writing and the eity
or the Contract Administrator (as applica151eI:shall not be unr~<l.scmably withhold, delay or
condition any such approval, and the failur~togt~!;Qr"Withholdany such approval within five
(5) business days after receipt of written notict:;.req!J.estingtht::.~ame (or such other time period as
may be expressly providediB!fji~Agreement)?sEall be deemed approval of such matter if so
stated in said notice. .
52.23 Recording of Development Agreement. Within fourteen (14) days after the City
executes this AgrS:.S:ll1~Ilt, the~!t~sfial1re~/:)~~!1.li:sAgreement with the elerk of the eircuit eourt
ofMiami-D~~t:::€OHnt~igEveloil~~~~all suo.mif a copy of the recorded Development Agreement
to the Stat<?ofFlorida's LaJjg.PlannillgAgency within fourteen (14) days after this Agreement is
recorded;;~J.1is Agreemenf$l1all becQBle effective only after (a) it has been recorded in the
Public Recora~<>f Miami-DaaeCounty, and (b) thirty (30) days have elapsed after the State of
Florida Land Planhlllg Agenc~I~Teceipt of a copy of the recorded Agreement. Developer agrees
that it shall be resp()l1~ible for all recording fees and other related fees and costs related to the
recording and deliveryQ[ t.J.1is Agreement as described in this Section. The provisions hereof
shall remain in full forCe and affect during the term hereto, and subject to the conditions of this
Agreement shall be binding upon the undersigned, and all successors in interest to the parties to
this Agreement. Whenever an extension of any deadline is permitted or provided for under the
terms of this Agreement, at the request of either party, the other party shall join in a short-form
recordable Memorandum of Agreement confirming such extension to be recorded in the Public
Records of Miami-Dade County.
52.24 Duration of this Development Agreement. The duration of this Agreement shall
not exceed ten (10) years from the date first written above; provided, however, that the duration
of this Agreement may be extended by mutual agreement of the eity and Developer. During the
term of this Agreement, the eity's laws and policies governing the development of land in effect
49
as of the date hereof shall govern development of the Project. The City may apply subsequently
adopted laws and policies to the Project only if the City has held a public hearing pursuant to
Section 163.3225, Florida Statutes, and determined:
52.24.1 they are not in conflict with the laws and policies governing this
Agreement and do not prevent development of the land uses, intensities, or densities in this
Agreement; or
52.24.2 they are essential to the public health, safety, or welfare, and expressly
state that they shall apply to a development that is subject to a development agreement; or
52.24.3 they are specifically anticipated and
for in this Agreement; or
52.24.4 the City demonstrates that sub~~~ntiar Iel1l:ll1ges have occurred in
pertinent conditions existing at the time of approval ofthi~..Agreemenf;a.f:
52.24.5 this Agreement is basecJ.on sU1Jstantially
supplied by Developer.
information
[REMAINDER OF PAGE INTENTION:A.1..;L Y LEFT BLANK]
50
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
first above written.
WITNESSES:
CITY:
City OF MIAMI BEACH, FLORIDA
a municipal corporation of the State of Florida
Sign
By:
Name: David Dermec
Title: Mayor
STATE OF FLORIDA
By:
Name: Robert Parcher
Title: City Clerk
Print Name
Sign
Print Name
COUNTY
)
The~QJ;~going was a~lrnowledged before me this day of
;~QQ7, by Davi&~ermef~ as Mayor, and Robert Parcher, as City Clerk, of the City
OF MIAMI BE.A~~~.. FLORm~, a municipal corporation of the State of Florida, on behalf of
such municipal corjJQEation. 1Jliey are personally known to me or produced valid Florida driver's
licenses as identification.;
Notary Public, State of Florida
My commission expires:
DEVELOPER:
UIA MANAGEMENT, LLC, a Delaware
limited liability company
By: Urban Investments Advisors, LLC, a
Delaware limited liability company, its
Managing Member
By: Wellspring Investments Management I,
LLC, a Delaw,~fblirnited liability company,
its Managil1g;:Ni1ember
Sign By:
Sign
Robert Wennett
Ma,1.1aging
Print Name
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
.~.._c,...". ....."._,,__.,.,..__...c
TI:1~!oregoing insffiitl.1~nt was~~k1.1owledged before me this day of
2007, bY:Rij~~J:t S. Wennett;::~~'fresidetltand , as Secretary, of
COMRAS 16TtlSTREET, IN~i, a Florida corporation, as Managing Member of 16th STREET
PARTNERS LLC~~,.florida lirtl!ted liability company, on behalf of such limited liability
company. They are:p~~~onallyknown to me or produced valid Florida driver's licenses as
identification.
Notary Public, State of Florida
My commission expires:
City REQUIRES FIVE (5) FULLY-EXECUTED CONTRACTS, FOR DISTRIBUTION.
MIAMI 1252447.2 7713726901
EXHIBIT" A"
LEGAL DESCRIPTION OF PROJECT SITE
EXHIBIT "B"
LEGAL DESCRIPTION OF 1111 LINCOLN ROAD PROPERTY
Lots 1,2,3,4,5 and 6, Block 39, COMMERCIAL SUBDIVISION, according to the Plat
thereof, as recorded in Plat Book 6, Page 5 of the Public Records of Miami-Dade County,
Florida, and
Lots 7 and 8, Block 39, PALM VIEW SUBDIVISION, according to the Plat thereof, as recorded
in Plat Book 6, Page 29 of the Public Records of Dade County, Florida; and
Lots 19 and 20, Block 39, COMMERCIAL SUBDIVISION,gIRS~.foWDITION, according to
the Plat thereof, as recorded in Plat Book 6, Page 30 of the FU1Jlic Recor<::l~ of Dade County,
Florida.
EXHIBIT "C"
SCHEMATIC AND DESIGN DEVELOPMENT DRAWINGS
EXHIBIT "D"
FORM OF ARCHITECT'S AGREEMENT
EXHIBIT "E"
CONSTRUCTION SCHEDULE
MIAMI 1252447.2 7713726901
EXHIBIT "F"
DEVELOPMENT APPROVALS
Certificate of Completion
Demolition Permit
Department of Environmental Protection Permit (if required)
Department of Environmental Resource Management Permit
FDOT Permit
Building permits for:
Electrical
Plumbing
Miami-Dade County Public Works Department Permit (ifreq\!.lired
Public Works Permit, Paving and Drainage
Public Works Permit, Water and Sewer
Such other permits as may be required by
EXHIBIT "G"
BUDGET FOR REPLACEMENT OF SIDEWALKS, CURBS AND GUTTERS
MIAMI 1252447.2 7713726901
EXHIBIT "H"
DOCUMENTS PROVIDED BY THE CITY TO DEVELOPER
MIAMI 1252447.2 7713726901
~
lQ
II -
1 NOTICE IS HEREBY given that a public hearing will be held by the Mayor and City Commission
..... i of the City of Miami Beach, Florida, in the City Commission Chambers, 3rd Floor, City Hall, 1700
8: Convention Center Drive, Miami Beach, Rorida, on Wednesday, February 14, 2007, at 11:00
Nf A.M., to consider approval, on Arst Reading, of a Develop~ Agreement between the City of
~;,!, Miami Beach and UIA Management, LLC (UIA) for the design, development, and construction of
:;;: f certain improvements to a portion of lincoln Road Mall, between Lenox Avenue and Alton Road,
::)' including, without limitation, streetscape, street furniture, landscaping, decorative fountains!
ffi . water features, and corresponding lighting, irrigation, and drainage systems (the "Project"), and
1.1.. ii which includes the closure of the aforestated portion of Lincoln Road Mall to vehicular traffic,
~. and design, development, and construction of a new public pedestrian plaza, extending the
9 pedestri~ portion of lincoln Road Mall further to the west (to include the referenced area
a: ~n Lenox Avenue and Alton Road); said Project having a total budget cost to the City, in the
current estimated amount of $5,876,710, with funding for the City to be appropriated from
Miami Beach Redevelopment Agency (Historic Convention Village/City Center RDA) funds.
u. Inquiries may be directed to the Office of the City Manager at (305) 673-7010.
INTERESTED PARTIES are invited to appear at this meeting or be represented by an agent or to
express their views in writing addressed to the City Commission clo the City Clerk, 1700
Convention Center Drive, 1st Floor, City Hall, Miami Beach, Florida 33139. This meeting may be
opened and continued and under such circumstances additional legal notice would not be
provided.
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARING
Robert E. Parcher, City Clerk
City of Miami Beach
Pursuant to Section 286.0105, Fl Statutes, the City hereby advises the public that if a person decides to appeal any
decision made by the City Commission with respect to any matter considered at its meeting or its hearing, such
person must ensure that a verbatim record of the proceedings is made, which record includes the testimony and I
evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction
or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not
otherwise allowed by law.'
To request this material in accessible format, sign language interpreter's information on access for persons with
disabilities, and lor any accommodation to review any document or participate in any City-sponsored proceeding,
please contact (305) 604-2489 (voice), (305) 673-7218(T1Y) five days in advance to Initiate your request. TTY users
may also call 711 (Florida Relay Service).
Ad #420 Revised
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