2007-26494 Reso
RESOLUTION NO. 2007-26494
A RESOLUTION BY THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, TO CONSIDER APPROVAL, ON SECOND
AND FINAL 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.
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 DRB File No. 19018
(the DRB 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 DRB 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; said Agreement was approved on First Reading as required
pursuant to the Florida Local Government Development Act, Section 163.3220, et. seq.,
Florida Statutes, on February 14, 2007, pursuant to Resolution No. 2007-26469; and
WHEREAS, the Administration would hereby recommend that the Mayor and City
Commission hereby approve the Development Agreement, on Second and Final Reading.
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 Second and Final 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
$5,876,710, with City funding to be appropriated from Miami Beach Redevelopment
Agency (Historic Convention Village/City Center RDA) funds;
APPROVED, ON SECOND AND FINAL READING this 14th day of March 2007.
ATTEST:
~::~~~
Vice-Mayor
~r P~tk
CITY CLERK
Robert Parcher
JMG: RCM/TM/FHB/RTH
T:\AGENDA\2007\feb1407\Regular\Lincoln Road Mall Dev Agreement RES.
APPROVED AS TO
FORM & LANGUAGE
& F EXECUTION
31k:-
. AIIomey~ Date
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution to consider approval, on second and final 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.
Source of Amount Account Approved
Funds: 1
D 2
3
4
aSPI Total
Financial Impact Summary:
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MIAMI BEACH
AGENDA ITEM
DATE
RID
3-14-07
lD
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, 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 ~ ~
March 14,2007 0
A RESOLUTION TO CONSIDER APPROVAL, ON SECOND AND FINAL
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 on Second and Final Reading.
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 1 ih 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.
J MG/TH/RCM/FH B/RTH
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~ MIAMIBEACH
CITY OF MIAMI BEACH
NOTICE OF A PUBLIC HEARING
NOTICE IS HEREBY given that a Second Reading and Secon.d Publi&. Hearing will be held by the City Commission
of the City of Miami Beach, In the Commission Chambers, 3rd floor, City Hall, 1700 Convention Center Drive,
Miami Beach, Florida, on Wednesday, March 14,2007 at 10:45 A.M., To Consider Approval, On Second -and
Final Reading, Of A Development Agreement Between The City Of Miami Beach And UIA Management, LLC (UtA)
For The Design. Development, And Construction Of Certain Improvement To A Portion Of Lincoln Road Mal/.
Between Lenox Avenue And Alton Road, Including, Without Limitation, Streetscape, Street Furniture, Landscaping,
DecoratiVe FountainslWater Features, And Corresponding Lighting, Irrigation, And Drainage Systems ("Trn!
Project"), And Which Includes The Closure Of The Aforestated Portion Of Lincoln Road. Mall To VehicularTr'afflc,
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.
INQUIRIES may be directed to the Public Works
~~);~~:'~:: ~--':, :;p.::
". t lif (305) 673-7080,
"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, c/o the City Clerk, 1700 Convention Center Drive, 1 st '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.
Robert E. Parcher
City Clerk
City of Miami Beach
Pursuant to Section 286.0105, Fla. Stat., 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 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 interpreters, information on access for persons with
disabilities, and/or any accommodation to review any document or participate in any city-sponsored proceeding,
please contact (305) 604-2489 (voice), (305) 673-7218(TTY) five days In advance to initiate your request. TlY
users may also call 711 (Florida Relay Service).
(Ad #427)
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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
For Recorder's Use Onl
DEVELOPMENT AGREEMENT
Between
CITY OF MIAMI BEACH, FLORIDA
and
UIA MANAGEMENT, LLC
for
PEDESTRIAN MALL ON 1100 BLOCK OF LINCOLN ROAD
MIAMI 1275310.2 77]372690]
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 particularly described in the attached
Exhibit" A " (the "Proj ect Site").
B. MBeach1, LLLP, a Delaware limited liability limited partnership, authorized to
transact business in Florida as MBeach 1, LLLP, Ltd. ("MBeach 1") is an affiliate of Developer
and is the owner of certain land adjacent to the Project Site, located at 1111 Lincoln Road,
Miami Beach, Florida, and more particularly in the attached Exhibit "B-1" (the "MBeach1
Property").
C. MBeach3, LLC, a Delaware limited liability company ("MBeach3") is an affiliate
of Developer and is the owner of certain land adjacent to the Project Site, located at 1665 Alton
Road, Miami Beach, Florida, and more particularly described in the attached Exhibit "B-2" (the
"MBeach3 Property", and together with the MBeach1 Property, the "1111 Lincoln Road
Property").
D. The Design Review Board of the City approved the renovation of the existing
office building located on the MBeach1 Property and the construction of a new two story mixed-
use building on the MBeach3 Property and a new seven story mixed-use parking structure on the
MBeach1 Property (collectively, the "1111 Lincoln Project"), pursuant to an Order dated
February 7,2006, under DRB File No. 19018 (the "DRB Order").
E. 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").
F. As a condition under each of the DRB Order and the BOA Order, 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.
G. 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 the Lincoln Road pedestrian mall west to Alton Road,
pursuant to an Order dated November 14,2006, under File No. 4161.
MIAMI 1275310.27713726901
H. On November 26,2006, the Finance and Citywide Projects Committee of the City
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").
I. 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" .
J. 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.
K. 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, determined that it is in the best interest of the City to 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 terms and conditions, promises,
covenants and payments hereinafter set forth, the City and Developer agree as follows:
ARTICLE 1
DEFINITIONS AND IDENTIFICATIONS
For the purposes of this Agreement and the various covenants, conditions, terms and
provisions which follow, the DEFINITIONS and IDENTIFICATIONS set forth below are
assumed to be true and correct and are agreed upon by the parties.
The above recitals are true and accurate and incorporated into this Agreement by
reference.
Whenever the following terms or pronouns in place of them appear in this Agreement the
intent and meaning shall be interpreted as follows:
1.1 Agreement: Agreement shall mean this Agreement and all addenda, exhibits, and
amendments thereto between the City and the Developer for the Project, all as defined herein.
1.2 AIPP: AIPP means the City's Art in Public Places
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.
2
MIAMI 1275310.27713726901
1.5 Change Order: A written document ordering a change in the Contract Sum 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's regulatory authority as a
governmental body and shall not be attributable in any manner to City as a party to this
Agreement.
1.7 City Commission: City Commission shall mean the governing and legislative
body of the City.
1.8 City Manager: City Manager shall mean the Chief Administrative Officer of the
City.
1.9
Recitals.
Conceptual Plan: Conceptual Plan shall have the meamng set forth III the
1.10 Construction Drawings: Construction Drawings shall have the meaning set forth
in Section 3.3.
1.11 Construction Phase: The phase of services which constitutes Developer's
administration ofthe construction of the Project and all activities necessary for the completion of
the Project.
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: The registered architect, professional engineer, professional land
surveyor, civil engineer, and/or registered landscape architect who has contracted with
Developer to provide professional services for the design and construction of the Project, and
who is further licensed by the State of Florida to provide said services. The primary consultant
for this Project shall be the 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. or Kimley-Horn and Associates, Inc. as the primary
consultant, or such other consultant selected by Developer and approved by the City in its
reasonable discretion, as well as anv subconsultants or subcontractors utilized by Consultant 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
3
MIAMI 1275310.27713726901
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
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.
Developer and the City agree and acknowledge that the City is an intended third party
beneficiary in any contract entered into between Developer and Consultant, including contracts
entered into with any subcontractors and/or subconsultants. Developer shall therefore submit its
final agreement with Consultant to the City, for its review and reasonable approval, prior to such
agreement being executed by and between Developer and Consultant. Additionally, Developer
herein represents to the City that its agreement with Consultant shall incorporate the terms and
conditions of this Agreement and the Contract Documents, and Developer shall assume sole and
absolute responsibility for binding Consultant to same as if Consultant were a party to this
Agreement. The City has approved Developer's selection of Consultant to design the
Improvements and the form of the architect's agreement attached as Exhibit "D".
1.14 Contract Administrator: 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 and the City shall notify Developer of the person who shall serve as Contract
Administrator.
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
Contractor, to the same extent as same are binding upon Developer as a party pursuant to this
Agreement.
1.15 Contract Documents: This Agreement, as approved by the Mayor and City
Commission and executed by the Mayor and City Clerk; the AlA AlII Standard Form of
Agreement Between Owner and Contractor, the Addendum to AlII, the A20l, General
Conditions to the Contract of Construction, any approved Change Orders; the performance and
payment bonds; the Plans and Specifications and any and all other construction documents; other
construction documents such as CPM, Construction Schedule, and schedule of values; and any
other documents the submission of which is required by this Agreement. When reference is
made in the Contract Documents to publications, standards or codes issued by associations or
societies, the intent shall be to specify the current or adopted edition of such publication or
standard including revision and effect on the date of the contract execution notwithstanding any
reference to a particular date.
1.16 Contractor (or General Contractor): Suffolk Construction Company, Inc., a
Massachusetts corporation, its successors and assigns, or such other contractor selected by
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MIAMI 1275310.27713726901
Developer, and approved by the City in its reasonable discretion, as well any subcontractors
utilized by Contractor to perform the Improvements pursuant to this .^..greementfor the Proiect.
Developer and City agree and acknowledge that City is an intended third party
beneficiary in any contract entered into between Developer and Contractor, including contracts
entered into with any subcontractors and/or subconsultants. The Developer shall therefore submit
its final agreement with Contractor to the City, for its review and approval, prior to such
agreement being executed by and between Developer and Contractor. Additionally, Developer
herein represents to City that its agreement with Contractor shall incorporate the terms and
conditions of this Agreement and the Contract Documents, and Developer shall assume sole and
absolute responsibility for 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 Contractor's Fee: Contractor's Fee shall have the meaning set forth in Section 8.6.
1.18
Fee.
1.19
1.20
8.10.
1.21
Contract Sum: The Contract Sum is the Cost of the Work plus the Developer's
Contract Time: Contract Time shall have the meaning set forth in Section 6.3.
Cost of the Work: Cost of the Work shall have the meaning set forth in Section
CPM Schedule: CPM Schedule shall mean critical path method schedule.
1.22 Defective Work: Defective Work means Work that is not performed in
accordance with the Contract Documents, in violation of code, installed in violation of the
manufacturer's written instructions where the installation has caused new materials to be
detrimentally affected where the life expectancy of the material installed is reduced, or otherwise
installed in a non-workmanlike manner.
1.23 Department: Department shall have the meaning set forth in Section 52.4.
1.24 Design Architects: Raymond Jungles and Herzog and de Meuron.
1.25 Design Review Board or DRB: the Design Review Board of the City created and
established pursuant to the Land Development Regulations, or any board or body which may
succeed to its function.
1.26 Developer: UIA Management, LLC, a Delaware limited liability company, its
successors and assigns, is the Developer selected to perform the Improvements pursuant to this
Agreement, and is the person, firm or corporation liable for the acceptable performance of the
Project.
1.27 Developer's Fee: Developer's Fee shall have the meaning set forth in Section 8.6.
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MIAMI ]275310.27713726901
1.28 Development Agreement Act: Development Agreement Act means the Florida
Local Government Development Agreement Act, Section 163.3220, et. seq., Florida Statutes.
1.29 Development Approval: Development Approval means any zoning, rezoning,
conditional use special exception, variance or subdivision approval, concurrency approval under
Section 163.3180, Florida Statutes, or any other official action of local government having the
effect of approving development of land.
1.30 Documents: Documents shall have the meaning set forth in Section 35.1.
1.31 DRB Order: DRB Order shall have the meaning set forth in the Recitals.
1.32 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.
1.33 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
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.
1.34 Guaranteed Maximum Price: Guaranteed Maximum Price shall have the meaning
set forth in Section 8.1.
1.35 Hazardous Materials: As used in this Agreement "Hazardous Materials" means
any chemical, compound, material, substance or other matter that:
1.35.1 is a flammable, explosive, asbestos, radioactive nuclear medicine,
vaccine, bacteria, virus, hazardous waste, toxic, overtly injurious or potentially injurious
material, whether injurious or potentially injurious by itself or in combination with other
materials;
1.35.2
Materials Laws;
is controlled, referred to, designated in or governed by any Hazardous
1.35.3 gives rise to any reporting, notice or publication requirements under
any Hazardous Materials Laws, or
1.35.4 is any other material or substance gIvmg rise to any liability,
responsibility or duty upon the City with respect to any third person under any Hazardous
Materials Law.
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1.36 Hazardous Materials Laws: As used in this Agreement, the term "Hazardous
Materials' Laws" means any and all federal, state or local laws or ordinances, rules, decrees,
orders, regulations or court decisions (including the so called "common law"), including without
limitation the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.c. 999601 et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. 991801 et seq.), and the Resource Conservation and Recovery Act of 1976,
as amended (42 D.S.C. 996901 et seq.), relating to hazardous substances, hazardous materials,
hazardous waste, toxic substances, environmental conditions on, under or about the Premises,
soil and ground water conditions or other similar substances or conditions.
1.37 Historic Preservation Board or HPB: the Historic Preservation Board of the City
created and established pursuant to the Land Development Regulations or any board or body
which may succeed to its functions.
1.38 Improvements: The improvements to be constructed on the Project Site
substantially in accordance with the schematic and design development drawings attached as
Exhibit "C".
1.39 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.
1.10Liability Cap: Liability Cap shall have the meaning set forth in Section 18.1.
-h4l-1.40
MBeach1: MBeach1 shall have the meaning set forth in the recitals.
~1.41
MBeach3: MBeach3 shall have the meaning set forth in the recitals.
~1.42 Notice(s) to Proceed: A written document(s) issued by the Contract
Administrator informing the Developer to officially begin the Project.
+:441.43 Plans and/or Specifications: The official graphic and descriptive
representations of this Project, which are a part of the Contract Documents.
~1.44 Proiect: The Project means the Work described in the Contract Documents
and generally 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 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.
+461.45
Proiect Site: Project Site shall have the meaning set forth in the Recitals.
-l--A-11.46 Shup Drawings: Drawings, diagrams and schedules (excluding, however,
the CPM Schedule), and other data specially prepared by Contractor or its subcontractors, sub-
subcontractors, manufacturer, supplier or distributor to illustrate some portion of the Work.
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MIAMI 1275310.27713726901
-h4&1.47 Substantial Completion: Subject to the requirements of Article 42, the
dates certified by the Consultant that all conditions of the permits and regulatory agencies have
been met for the City's intended use of each portion of the Project, and all construction has been
performed therein in accordance with this Agreement and the Contract Documents so City can
fully, as opposed to partially, occupy or utilize each portion of the Project for its intended
purpose. At a minimum, a Certificate of Substantial Completion is one of the requirements for
Substantial Completion.
-l--:491.48 Surety: The surety company or individual which is bound by the
performance bond and payment bonds with and for Developer and Contractor who is primarily
liable and which surety company or individual is responsible for Contractor's acceptable
performance of the Work under the Contract Documents and for the payment of all debts
pertaining thereto in accordance with Section 255.05, Florida Statutes.
~1.49 Utilities: The public or private systems on the Project site for rendering
electrical power, light, heat, gas, water, communication, sewage systems, and the like.
~ 1.50 Work: The construction required by the Contract Documents, as
permitted, including all labor necessary to produce such construction, and all materials and
equipment incorporated or to be incorporated in such construction.
ARTICLE 2
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. When words which have a well-known technical or
trade meaning are used to describe Work, materials or equipment, such words shall be
interpreted in accordance with that meaning. Reference to standard specifications, manuals or
codes of any technical society, organization or association, or to laws or regulations of any
governmental authority, whether such reference be specific or by implication, shall mean the
standard specification, manual, code, laws or regulations in effect at the time of the completion
of design. Applicable laws or codes that may be changed after a permit is issued may result in an
increase in the Contract Time or Contract Sum should additional Work be required on behalf of
the Developer.
ARTICLE 3
CONSTRUCTION
3.1 Consistency with City's Comprehensive Plan and Zoning Regulations. The City
has adopted and implemented the Comprehensive Plan. The City hereby finds and declares that
the provisions of this Agreement dealing with the Project and the Project Site are consistent with
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MIAMI 1275310.27713726901
the City's adopted Comprehensive Plan and Land Development Regulations, subject to all
applicable requirements, permits and approvals.
3.2 Historic Preservation Board Approval.
3.2.1 The City has heretofore submitted an application to the Historic
Preservation Board for its review of the Project, and the Historic Preservation Board has
approved the Proj ect.
3.2.2 If at any time in the future it shall be necessary in connection with the
construction, reconstruction or renovation of the Project to apply to the Historic Preservation
Board for its review or approval of any changes or modifications to the Premises, the City shall
be solely responsible for making such application.
3.3 Design of the Proiect. Developer shall be solely responsible for overseeing and
directing Consultant and Design Architects 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, in its proprietary and not regulatory capacity, shall not be
unreasonably withheld, conditioned or delayed, and 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" e". City shall have fifteen (15) business days after receipt of 50%
construction drawings and fifteen (15) business days after receipt of 1 00% construction drawings
(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
periods, the City shall be deemed to have approved them. If the City provides Developer with
timely disapproval of the Construction Drawings, Developer shall cause Consultant to revise the
Construction Drawings in accordance with the City's reasonable objections and submit revised
Construction Drawings to the City to address the City's reasonable 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 and the construction phase set forth in
the Construction Schedule and the Contract Time shall be extended by one day for each day from
Developer's receipt of the City's disapproval notice to the date of the City's approval of the
revised Construction Drawings.
3.4 Public Facilities and Concurrency. As the Project involves the creation of a
public pedestrian open space on the existing right of way of Lincoln Road between Lenox
Avenue and Alton Road and there is no enclosed space being constructed, there are no
concurrency impacts on the Project. City and Developer anticipate that the Project will be served
by those roadway transportation facilities currently in existence as provided by State, County and
local roadways. It is also anticipated that the Project will be served by public transportation
facilities currently in existence, including those provided by Miami-Dade County, the City, and
other governmental entities as may presently operate public transportation services within the
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MIAMI 1275310.27713726901
City. Sanitary sewer, solid waste, drainage, and potable water services for the proposed Project
are expected to be those services currently in existence and owned or operated by Miami-Dade
County, the Miami-Dade County Water and Sewer Department, and the City. The Project will
also be serviced by any and all public facilities, as such are defined in Section 163.3221(12),
Florida Statutes (1997), as such are described in the City's Comprehensive Plan, specifically
including, but not limited to, those facilities described in the Infrastructure Element and Capital
Improvements Element therein, a copy of which is available for public inspection in the offices
of the Planning, Design and Historic Preservation Department of the City.
3.5 Intentionally Deleted.
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
reasonably 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 Completion). All fees due in connection with the Development Approvals shall
either be (a) paid by the City in addition to the Cost of the Work and not as part of the Contract
Sum, or (b) waived.
3.6.2 There are no reservations and/or dedications of land for public purposes
that are proposed under the terms of this Agreement, except as expressly set forth in Section
52.3.
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 permitted development on the
Project Site is shown on the attached Exhibit "C".
ARTICLE 4
CONTRACT DOCUMENTS
4.1 The Contract Documents shall be followed as to Work, material, and dimensions
except when the Contract Administrator may authorize, in his reasonable discretion, in writing,
an exception. Developer shall be entitled to a Change Order for exceptions that result in a time
delay or extra cost.
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4.2 Dimensions given in figures are to hold preference over scaled measurements
from the drawings; however, all discrepancies shall be decided upon by the Consultant with
notice to Contract Administrator. Developer shall not proceed when in doubt as to any dimension
or measurement but shall seek clarification from the Consultant with notice to Contract
Administrator.
4.3 Developer shall maintain four (4) copies of the Contract Documents; two (2) of
which shall be preserved and always kept accessible at the site to the Contract Administrator or
his/her authorized representatives.
4.4 This Agreement incorporates by reference the Contract Documents defined in
Section 1.15. In the event of a conflict in the Contract Documents, the documents for the Proj ect
shall have the following order of precedence, beginning with the most important:
1. Change Orders
2. This Agreement and all addenda, exhibits and amendments thereto
3. The Addendum to A 111 between Developer and Contractor
4. The AlA AlII Standard Form of Agreement between Owner and
Contractor
5. The Plans and Specifications (Approved and Permitted)
6. Other Contract Documents
ARTICLE 5
SCOPE OF WORK
5.1 The scope of the Work for the Project is the Work described in the Contract
Documents and generally 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 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.
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 his reasonable opinion conform to the Contract Documents.
5.2.3 Contract Administrator shall monitor the overall control and expediting
of the construction of the Work to facilitate completion of the Work within the approved time
frame and within the Contract Sum.
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MIAMI 1275310.27713726901
5.2.4 Contract Administrator shall develop a punch list or lists of items
requiring corrective action.
5.2.5 Contract Administrator shall attend weekly progress meetings with the
Developer, Consultant and Contractor to review Work progress and resolve issues relating to the
prosecution of the Work.
5.2.6 Contract Administrator shall instruct Developer to commence the Work
by written instructions in the form of a Notice to Proceed issued by Contract Administrator.
5.2.7 Contract Administrator shall initiate or approve Change Orders III
accordance with the terms of this Agreement.
5.2.8 Contract Administrator shall reView and approve applications for
payment and submit same to the City for payment.
5.2.9
Contract Administrator shall approve or issue Field Orders.
5.2.10
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 archi tectural 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.
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 Work performed in compliance
with the requirements of the Contract Documents.
5.3.6 Consultant shall review Shop Drawing submittals prepared by the
Contractor and its subcontractors and return to Contract Administrator for routing.
5.3.7 Consultant shall review and/or respond to Contractor and/or City
inquiries regarding the intent of the Contract Documents with respect to written requests for
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MIAMI 1275310.27713726901
information, requests for Change Orders, and other communications between the Developer and
the City requiring Consultant review.
5.3.8 Consultant shall prepare Contract Documents clarifications to address
clarifications regarding the intent of the Contract Documents.
5.3.9 Consultant shall perform specialty site visits by vanous design
disciplines upon request in the prosecution of the Work.
5.3.10 Consultant shall assist Contract Administrator with the development of
a punch list or list of items requiring corrective action.
5.3.11 Consultant shall attend weekly progress meetings with the Developer,
Contract Administrator, and Contractor to review Work progress and resolve issues relating to
the prosecution of the Work.
5.3.12 Consultant shall have tfteno authority to order or approve deviationsany
deviation from the Contract Documents~ whether or not such deviation affects the cost of the
Work, or Substantial Completion. In the event any such deviation is pursuant to approyed
Change Orders, so long as such deviations do not cause the Cost of the 'N ork to exceed the
Guaranteed Maximum Price. In the e','ent any such de'liations are 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
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
issuance of the Notice to Proceed, as may be extended as a result of force majeure events, mutual
agreement of the City and Developer, or by City caused delays. The Work shall be ready for
final payment in accordance with Article 10, within forty-five (45) days from the date certified
by Consultant as the date of Substantial Completion (the "Contract Time").
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ARTICLE 7
DEVELOPER'S RESPONSIBILITY
7.1 The parties acknowledge and agree that the Developer and Contractor will be
responsible for the construction ofthe Project in accordance with the terms of this Agreement.
7.2 It is Developer's responsibility to cause Contractor to have and maintain
appropriate certificate( s) of competency, valid for the Work to be performed and for all persons
working on the Project for whom a certificate of competency is required.
7.3 Until Final Completion, Developer shall be fully responsible for the performance
of its agents and employees, Contractor and Consultant under the terms of this Agreement. Upon
Final Completion, (i) City shall hold only Contractor, Consultant and the other subcontractors
and subconsultants (but not Developer) responsible for the performance of this Agreement and
any warranties arising therefrom, (ii) City shall unconditionally and irrevocably release, satisfy
and forever discharge Developer and all of its officers, shareholders, partners, directors,
members, managers, employees or agents of Developer, including, without limitation, Robert S.
Wennett, Urban Investments Advisors, LLC, a Delaware limited liability company, and
Wellspring Investments Management I, LLC, a Delaware limited liability company, 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 Project, and (iii) provided full payment has been received by Developer,
Developer shall unconditionally 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 Project, including, but not limited to
the design and construction of the Project.
7.4 Developer agrees to bind specifically Contractor and Consultant, and require that
Contractor and Consultant bind any and all of their respective subcontractors and subconsultants,
to the applicable terms and conditions of this Agreement and the Contract Documents for the
benefit of City.
7.5 Developer shall at all times enforce strict discipline and good order among its
Contractor, employees and consultants, and require Contractor to enforce strict discipline and
good order among its subcontractors at the Project Site and shall not employ on the Project any
unfit person or anyone not skilled in the Work assigned to him or her.
7.6 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
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MIAMI 1275310.27713726901
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 of its agents and employees and Contractor and Consultant to observe and comply
with all applicable laws, ordinances, regulations, orders and decrees.
7.7 In the event of a change after the date of this Agreement in any national, State,
local or municipal laws, codes, ordinances and regulations which in any manner affects the
Project which becomes known to the Developer or the City, Developer or the City (as applicable)
shall advise the Consultant and Contract Administrator, in writing, and the Consultant and/or
Contract Administrator, may initiate a Change Order, the purpose of which shall be to bring the
Project into compliance with all laws, ordinances, codes and regulations as amended or enacted.
7.8 Developer shall pay as a Cost of the Work all applicable sales, consumer, use and
other taxes required by law in effect at the execution of the Agreement. Developer is responsible
for reviewing the pertinent State statutes involving State taxes and complying with all
requirements. Notwithstanding the foregoing, the City shall provide a City issued debit card to
Contractor in order for Contractor to purchase materials for the Project on behalf of the City
without the payment of sales tax.
7.9 Developer shall contract the services of a licensed general contractor (Contractor)
to execute the Work.
7.10 Developer shall submit a certified, monthly application for payment prepared by
Contractor for review/approval by the Consultant and Contract Administrator.
7.11 Developer shall provide a location for, attend and participate in weekly
construction progress meetings with the Contract Administrator, Consultant and Contractor.
7.12 Developer hereby agrees to complete the Project described by the Contract
Documents, in accordance with the requirements and provisions of the Contract Documents.
7.13 Developer agrees to meet with Contract Administrator or his designee at
reasonable times and with reasonable 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 bond paper 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.
7.15 Developer will provide overall technical and management services to assist the
City in maintaining schedules, establishing budgets, controlling costs, achieving quality and
minimizing operational disruptions.
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7.16 If at any time the Developer observes or becomes aware of any fault or defect in
the Project or of any nonconformance with the Contract Documents, Developer will notify the
Consultant and Contract Administrator, and will direct that all reasonable steps be taken to
correct such fault, defect or nonconformance.
7.17 During the course of the Work, Developer shall also be responsible for causing
Contractor to provide quality assurance of the construction Work in accordance with the
Contract Documents.
7.18 Developer shall coordinate all phases of the Work to facilitate completion of the
Project in accordance with the established time period and estimate of construction cost.
ARTICLE 8
THE CONTRACT SUM
8.1 The Contract Sum in the amount of $5,876,710 is the maximum amount, subject
to additions or deletions by approved Change Orders in accordance with this Agreement, agreed
to by the City and Developer under this Agreement to complete the Work in accordance with the
Contract Documents (the "Guaranteed Maximum Price"). Developer will comply with all
requirements of funding sources provided by City for construction of the Improvements. The
City confirms that the City Commission has approved the funding of the Contract Sum and that
City Commission approval is not required for any approved Change Orders under this
Agreement, so long as the Cost of the Work does not exceed the Guaranteed Maximum Price.
8.2 Developer shall enter into a Cost Plus with a Guaranteed Maximum Price contract
with Contractor. At 50% Construction Drawings, Developer shall submit the costs of the
Improvements for bids. If the bids for the proposed design of the Project exceed the Contract
Sum, less the Developer's Fee, then Developer shall cause Consultant and Contractor to value
engineer the Project (at their sole cost and at no cost to the City) to bring it back into budget, so
that the expected cost of the Improvements will not exceed the Contract Sum, less the
Developer's Fee. Thereafter, Developer shall submit the value engineered Project to the City for
its reasonable approval. The City shall not be deemed to have unreasonably withheld its
approval if parties agree that the elimination of one of the water features and/or the substitution
of an interactive water fountain for one of the 'lIater features shown in the Conceptual Plan
and/or the reduction in size and/or scope of the water features shall not be deemed a reasonable
basis for the City to withhold appro'lal of the value engineered Project reflects material changes
to the Improvements from those described in the Conceptual Plan; provided however that the
parties agree that the elimination of one of the water features and/or the substitution of an
interactive water fountain for one of the water features shown in the Conceptual Plan and/or the
reduction in size and/or scope of the water features shall not be deemed a reasonable basis for the
City to withhold approval. The City shall have fifteen (15) days after Developer submits the
value engineered Project to approve or reject same, failing '.vhich, the City shall be deemed to
have approved same. If the City rejects the value engineered Project, and the City and Developer
are unable to agree on a modified design of the Proiect or the City shall have thirty (30) days (or
forty five (15) days in the e','ent the City Commission does not meet 'tvithin such thirty (30) day
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period) after rejecting the value engineered Project to obtain City Commission approval of
additional budget funds to the extent necessary to complete the 'N ork in accordance with the
Conceptual Plan or such other design as is reasonably acceptable to the City and Developer. If
the City is unable to obtain City Commission approval of an increase in the Contract Sum and/or
Contract Time to the extent necessary to complete the Work for such modified design withing
thirty (30) Business days after the City's reiection of'vvithin such time period, the City shall be
deemed to have accepted the value engineered Project, then either the City or Developer shall
have the right to terminate this Agreement by delivering written notice to the other party within
ten (10) Business days after the end of such thirty (30) day period. In the event of a termination
of this Agreement in accordance with this Section, the City shall be responsible for the payment
of the Cost of the Work incurred up to the date of termination of this Agreement.
8.3 The City shall pay the Cost of the Work, as adjusted by approved Change Orders.
The construction contract shall limit the grounds for approved Change Orders to City requested
Change Orders, Developer requested Change Orders approved by the City, force majeure events,
City Building Department field inspector requirements, acts or omissions of the City, errors and
omissions in architectural drawings and specifications, material and substantial changes in the
Work not caused by Developer, concealed or unknown conditions, and costs due to emergencies
incurred in taking action to prevent threatened damage, injury or loss in case of an emergency
affecting the safety of persons and property.
8.4 Developer shall fund approximately $162,749 over and above the Contract Sum
for the replacement of sidewalks, curbs and gutters on the Project Site, in accordance with the
estimated budget attached as Exhibit "G". Additionally, Developer shall match the City's 1 Yz%
of the Contract Sum for AIPP in accordance with the terms of Section 52.1 in this Agreement.
City acknowledges that Developer has already contributed approximately $290,000 in cash or in
kind benefits related to the design of the Project, legal fees and costs and out of pocket expenses
incurred by Developer, which costs shall not be applied against the Contract Sum.
8.5 The City shall pay Developer the Contract Sum plus all approved Change Orders
in current funds for Developer's performance of this Agreement 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 and approved Change Orders issued in accordance with the terms of
the Contract Documents.
8.6 Developer's and Contractor's Fee. Developer is entitled to receive the following
fees, as set forth in the schedule of values: (a) a developer's fee in the amount of eight percent
(8%) of the Cost of the Work as described herein; and (b) an additional fee in the amount of
three percent (3 %) of the Cost of the Work, to finance the cash flow required for Developer to
cause the Work to be completed based on monthly billings to the City (collectively, the
"Developer's Fee"). Contractor's Fee shall be set forth in the schedule of values and shall not
exceed seven percent (7%) of the Cost of the Work as described herein (the "Contractor's Fee").
8.7 Intentionally Deleted.
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8.8 Adjustments to the Guaranteed Maximum Price on account of changes in the
Work may be determined only in accordance with the terms of this Agreement.
8.9 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost"
and "costs" as used in the above-referenced provisions shall mean the Cost of the Work as
defined below and the terms "fee" and "a reasonable allowance for overhead and profit" shall
mean the Developer's Fee as defined above.
8.10 Cost of the Work. The term "Cost of the Work" shall mean costs necessarily
incurred by the Developer, Contractor, Consultant or the City in the proper performance of the
Work. Such costs shall be at rates not higher than the reasonable and customary price paid for
similar work on Miami Beach, Florida except with prior written consent of the City. The Cost of
the Work shall include only the items set forth in this Article 8, as follows:
8.10.1 Wages of construction workers directly employed by the Developer or
Contractor to perform the 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.
8.10.2 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 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
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 ofthe 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 Contractor to Consultant or other
design professionals in accordance with the requirements of this Agreement, provided such costs
are not incurred as the proximate result of defects of deficiencies in the Work.
8.10.6 Costs, including transportation and storage, of materials and equipment
incorporated or to be incorporated in the completed construction.
8.10.7 Costs of materials described in the preceding Section 8.6.6 in excess of
those actually installed to allow for reasonable waste and spoilage. Unused excess materials, if
any, shall become the City's property at the completion of the Work or, at the City's option, shall
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be sold by the Developer. Any amounts realized from such sales shall be credited to the City as
a deduction from the Cost of the Work.
8.10.8 Costs, including transportation and storage, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and
hand tools not customarily owned by construction workers, that are provided by the Developer or
Contractor at the site and fully consumed in the performance of the Work; and cost (less salvage
value) of such items if not fully consumed, whether sold to others or retained by the Developer
or Contractor. Cost for items previously used by the Developer or Contractor shall mean fair
market value.
8.10.9 Rental charges for temporary facilities, machinery, equipment, and
hand tools not customarily owned by construction workers that are provided by the Developer or
Contractor at the site, whether rented from the Developer or Contractor or others, and costs of
transportation, installation, minor repairs and replacements, dismantling and removal thereof.
Rates and quantities of equipment 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.
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 bond premiums that can be directly
attributed to this Agreement.
8.10.15 Sales, use or similar taxes imposed by a governmental authority that are
related to the Work at the rates that are in force as of the date of the Agreement.
8.10.16 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the City, Developer or Contractor are required by the
Agreement to pay.
8.10.17 Fees of laboratories for tests required by the Contract Documents.
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8.10.18 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending suits or claims for
infringement of patent rights arising from such requirement of the Contract Documents; and
payments made in accordance with legal judgments against the Developer or Contractor resulting
from such suits or claims and payments of settlements made with the City's consent.
8.10.19 Deposits lost for causes other than the Developer's or Contractor's
negligence or failure to fulfill a specific responsibility to the City as set forth in the Contract
Documents.
8.10.20 Other costs incurred in the performance ofthe Work if and to the extent
approved in advance in writing by the City.
8.10.21 Costs due to emergencies incurred in taking action to prevent
threatened damage, injury or loss in case of an emergency affecting the safety of persons and
property.
8.10.22 The Contractor's Fee.
8.11 Costs Not to be 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.
8.11.4 Developer's or Contractor's capital expenses, including 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 payment for Work completed
during the Project at intervals of not more than once a month. The period covered by each
application for payment shall be one calendar month ending on the last day of the month.
9.1.2 City agrees to pay the application for payment submitted by Developer
covering all out of pocket costs incurred by Developer with respect to the Project within fourteen
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(14) days after the execution of this Agreement. Such application for payment shall be in the
amount of$ , which shall not exceed five percent (5%) ofthe Contract Sum.
9.1.3 Based upon applications for payment prepared by Contractor and
submitted by Developer to Consultant and Contract Administrator and certificates for payment
issued by the Consultant, (a) Contract Administrator shall have ten (10) days after it is presented
with an application for payment to review and approve same or state in writing its reasons for
non-approval; and (b) for approved applications for payment, the City shall make progress
payments on account of the Contract Sum to Developer, as provided below and elsewhere in this
Agreement, within thirty (30) days after the submittal of each such application for payment to
Contract Administrator.
9.1.4 With each application for payment, Developer shall submit payrolls,
receipted invoices or invoices with check vouchers attached, and any other evidence required by
the City, Contract Administrator or Consultant to demonstrate that cash disbursements already
made by the Developer or Contractor on account of the Cost of the Work.
9.1.5 Each application for payment shall be based on the most recent
schedule of values submitted by Developer in accordance with this Agreement. The schedule of
values shall allocate the entire Guaranteed Maximum Price among the various portions of the
Work, except that the Developer's Fee shall be shown as a single separate item. The schedule of
values shall be prepared in such form and supported by such data to substantiate its accuracy as
the Consultant may reasonably require. This schedule, unless objected to by the Consultant or
Contract Administrator, shall be used as a basis for reviewing the applications for payment
submitted by Developer.
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
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. The Developer's Fee shall be computed
upon the Cost of the Work at the rate stated above; and
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MIAMI 1275310.27713726901
(c) subtract the aggregate of previous payments made by the City.
9.1.8 Unless otherwise provided in this Agreement, payments shall be made
on account of materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work. If approved in advance by the City, payment may similarly be made
for materials and equipment suitably stored off the site at a location agreed upon in writing.
Payment for materials and equipment stored on or off the site shall be conditioned upon
compliance by Developer and Contractor with procedures satisfactory to the City to establish the
City's title to such materials and equipment or otherwise protect the City's interest, and shall
include the costs of applicable insurance, storage and transportation to the site for such materials
and equipment stored off the site.
9.1.9 The City may withhold payment of an application for payment to such
extent as may be reasonably necessary to protect itself from loss on account of Defective Work.
The City shall only withhold payment of the portion of an application for payment for which it
claims Defective Work. The City shall provide Developer with written notice of its rejection of
an application for payment (or a portion thereof) as a result of Defective Work within ten (10)
days after its receipt of such application for payment, failing which, the City shall be deemed to
have waived its right to withhold payment of such application for payment on account of
Defective Work. Such written notice shall include the City's basis for claiming Defective Work.
If Developer disputes the City's claim of Defective Work, such dispute shall be resolved pursuant
to the terms of Article 11 in this Agreement.
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) days,
make an inspection thereof. If Consultant and Contract Administrator find the Work acceptable;
that the requisite documents have been submitted and the requirements of the Contract
Documents have been fully performed; and all conditions of the permits and regulatory agencies
have been met, 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, address and telephone number of the
Contractor and of all subcontractors who have performed Work on the Project, with such
subcontractors identified as to the trade involved for the Work, along with amounts paid to said
Contractor and subcontractors in connection with the Project;
10.2.3
Final waiver and release, duly executed by the Contractor;
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10.2.4
One (1) original set and one (1) copy set of the As-Built Drawings;
10.2.5 Assignment of all manufacturer's warranties, guarantees, City's
manuals to the City, bound in a form acceptable to the City; and
10.2.6
Unconditional consent of Contractor's and Developer's surety to final
payment.
10.3 If, after the Work has been Substantially Completed, full completion thereof is
materially delayed through no fault of Developer, and Consultant and Contract Administrator so
certify, City shall, and without terminating this Agreement, make payment of the balance due for
that portion of the Work fully completed and accepted. Such payment shall be made under the
terms and conditions governing final payment, except that it shall not constitute a waiver of
claims.
10.4 Developer's acceptance of final payment by the City shall constitute a waiver of
all claims by Developer against the City under this Agreement, except those previously made in
strict accordance with the provisions 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 as
against Contractor and Consultant but not Developer for: (a) faulty or defective Work appearing
after Consultant's final certificate for payment; (b) failure of the Work to be in strict accordance
with the requirements of the Contract Documents discovered after completion of the Work; and
( c) terms of all warranties required by the Contract Documents.
ARTICLE 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 fulfillment of this Agreement as
to the character, quality, amount and value of any Work done and materials furnished, or
proposed to be done or furnished under or, by reason of, the Contract Documents, and
Consultant's estimates and decisions upon all claims, questions, difficulties and disputes shall be
conclusive subject to Developer or the City's objection to the extent provided in Section 11.2.
Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement of City
and Developer shall be submitted to Consultant in writing within ten (10) days of the discovery
of the occurrence. Unless a different period of time is set forth herein, Consultant shall notify
Developer and the City in writing of the decision within ten (10) days from the date of the
submission of the claim, question, difficulty or dispute, unless Consultant requires additional
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time to gather information or allow the parties to provide additional information. Any request for
additional time shall extend the time of substantial completion as between City and Developer
for an equal period of time. All nontechnical administrative disputes shall be reasonably
determined by the Contract Administrator pursuant to the time periods provided herein. During
the pendency of any dispute and after a determination thereof, Developer and City shall act in
good faith to mitigate any potential damages including utilization of construction schedule
changes and alternate means of construction.
11.2 In the event the determination of a dispute under this Article is unacceptable to
either party hereto, the party objecting to the determination must notify the other party in writing
within twenty-one (21) days of receipt of the written determination. The notice must state the
basis of the objection and must be accompanied by a statement that any Contract Documents
price adjustment claimed is the entire adjustment to which the objecting party has reason to
believe it is entitled to as a result of the determination, if such amount is reasonably calculable at
such time. Within sixty (60) days after receipt of written determination 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 mediator shall be 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 ofthe Work.
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 on non-disputed items, under the pay applications, Developer and Contractor shall
carry on 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 arising out of this Agreement, the
prevailing party shall be entitled to recover all of its reasonable attorneys' fees and costs incurred,
including all reasonable attorneys' fees and costs for litigation in any bankruptcy proceedings and
at all trial and appellate levels.
11.7 The Agreement shall be governed and construed in accordance with the laws of
the State of Florida. The Developer and City submit to the jurisdiction and venue of the State
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MIAMI 1275310.27713726901
and Federal Courts in and for Miami-Dade County, Florida and such courts shall have the
authority upon proper proof to award compensatory and/or consequential damages, as may be
appropriate.
ARTICLE 12
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 13
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 14
[THIS 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.
ARTICLE 16
INSPECTION OF PROJECT
16.1 The Contract Administrator or designee shall at all times have access to the
Project, and Developer shall provide proper facilities for such access, and such access shall be in
accordance with the visitor's rules.
16.1.1 Should the Contract Documents, instructions, any laws, ordinances, or
any public authority require any Work for the Project to be specially tested or approved,
Developer shall give to the Contract Administrator timely notice of readiness of the Work for
inspection. If the testing or approval is to be made by an authority other than City, timely notice
shall be given of the date fixed for such testing. Inspections shall be made promptly, and, where
practicable, at the source of supply. Within a reasonable time from execution of this Agreement,
City shall provide a letter listing the areas of Work the City will inspect. If defined Work for the
Project should be covered up without required inspection/approval, it must, if required by the
Contract Administrator, be uncovered for examination and properly restored at Developer's
expense.
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16.1.2 Reexamination and retesting of any Work for the Project may be
reasonably ordered by the Contract Administrator; and if so ordered, Developer shall cause such
Work to be uncovered by Contractor. If such Work is found to be in accordance with the
Contract Documents, the City shall pay the cost of reexamination, retesting and replacement. If
such Work is not in accordance with the Contract Documents, Developer shall cause Contractor
to pay such cost.
16.2 The payment of any compensation, regardless of its character or form, or the
giving of any gratuity or the granting of any valuable favor by Developer to any inspector other
than its consultant, is forbidden, and any such act on the part of Developer will constitute a
breach of this Agreement.
ARTICLE 17
SUPERINTENDENCE AND SUPERVISION
17.1 The orders of the City are to be given through the Contract Administrator, whose
instructions are to be strictly and promptly followed in every case, provided that they are in
accordance with this Agreement. Developer shall cause Contractor to keep on the Project during
its progress a competent supervisor, and any necessary assistants.
17.2 Developer shall prepare, or cause its Contractor or other designated Contract
Administrator or Contract Administrator representative to prepare, on a daily basis, and keep on
the Project site, a bound log setting forth at a minimum, for each day: the weather conditions and
how any weather conditions affected progress of the Work, Work performed, equipment utilized
for the Work, any idle equipment and reasons for idleness, visitors to the Project site, labor
utilized for the Work, and any materials delivered to the Project Site. The daily bound log shall
be available for inspection by the Contract Administrator or designee at all times during the
Proj ect.
17.3 If Contractor or Consultant, 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 and notifies
Developer of such discrepancy, 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 responsible for the means, methods, techniques, safety, sequences and
procedures of construction. Developer shall cause Contractor to give efficient supervision to the
Work, using Developer's and Contractor's best skill, attention, and judgment.
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ARTICLE 18
CITY'S RIGHT TO TERMINATE AGREEMENT
18.1 If Developer (a) fails to cause Contractor to begin the construction of the Project
within the time specified, or (b) fails to cause Contractor to perform the Project with sufficient
workers and equipment or with sufficient materials to insure the prompt completion of the
Project, in accordance with the Contract Documents and schedules, within the Contract Time, or
(c) fails to cause Contractor to perform the Work suitably and without defects, or (d)
discontinues the prosecution of the Project, except for excused delays in accordance with this
Agreement, or (e) becomes insolvent or be declared bankrupt, or commits any act of bankruptcy
or insolvency, or (f) makes an assignment for the benefit of creditors, or (g) shall not carryon the
Project in accordance with the Contract Documents, the City shall give notice in writing to
Developer and the surety of such delay, neglect or default, specifying the same. If Developer,
within a period of ten (10) days after such notice, shall not proceed to commence to rectify such
complaint in accordance therewith and thereafter diligently pursue the resolution of such
complaint, then the City may, upon written certificate from the Contract Administrator ofthe fact
of such delay, neglect or default and Developer's failure to comply with such notice, as the City's
sole and exclusive remedy under this f~greement: (i) terminate the services of Developer under
this Agreement, exclude Developer and Contractor from site and take the prosecution of the
Project out of the hands of Developer and Contractor, as appropriate.:. and/orIn such case,
Developer shall not be entitled to receive any further payment until the Proiect is finished. In
addition, the City may (ii) enter into an agreement for the completion of the Project according to
the terms and provisions of the Contract Documents or use such other methods as in its opinion
shall be required for the completion of the Project in an acceptable manner. Developer hereby
collaterally assigns its rights under the Contract Documents to the City so that 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; and/or (iii) sue Developer for the damages, costs and charges incurred by the
City shall be deducted from any monies due or which may become due to said Developeras-a
result of Developer's default under this .^~greement; provided, however, the City and De','eloper
agree that Developer's liability to the City for any default under this Agreement shall not exceed
the portion of the De','eloper's Fee paid by the City to Developer at the time of the filing of the
lawsuit by the City (the "Liability Cap"), except in the e','ent such default by Developer
constitutes gross negligence or willful misconduct, in v.'hich case there shall be no Liability Cap.
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.
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) days of termination all data, drawings,
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MIAMI 12753/0.27713726901
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 approve or state in writing reasons for
non-approval of any application for payment within ten (10) days after it is presented, or if the
City fails either to pay Developer within thirty (30) days after presentation of such application
for payment to Contract Administrator, or to notify Developer in writing of any objection to the
application for payment, then Developer may, give written notice to the City, through Contract
Administrator, of such delay, neglect or default, specifying the same. If City or Contract
Administrator (where applicable), within a period of seven (7) days after such notice shall not
remedy the delay, neglect, or default upon which the notice is based, then Developer may stop
Work or terminate this Agreement and recover from the City payment for all Work executed and
reasonable expenses sustained therein plus reasonable termination expenses.
ARTICLE 20
"OR EQUAL" CLAUSE
20.1 Whenever a material, article or piece of equipment is identified in the Contract
Documents including drawings (plans) and specifications by reference to manufacturers' or
vendors' names, trade names, catalog numbers, or otherwise, it is intended merely to establish a
standard, and, unless it is followed by words indicating that "no substitution is permitted," any
material, article, or equipment of other manufacturers and vendors which will perform or serve
the requirements of the general design will be considered equally acceptable provided the
material, article or equipment so proposed is, in the opinion of the Consultant and Contract
Administrator:
20.1.1
At least equal in quality, durability, appearance, strength and design;
20.1.2
Performs at least equally the function imposed in the general design for
the Proj ect;
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
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
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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 required as to acceptability, and
no substitute will be ordered, installed or utilized without Consultant and Contract
Administrator's prior written acceptance which will be evidenced by either a Change Order or an
accepted Shop Drawing. City may require Developer to cause Contractor to furnish at
Contractor's expense a special performance guarantee or other surety with respect to any
substitute.
ARTICLE 21
PLANS AND SPECIFICATIONS
All plans, general and detail, are to be deemed a part of this Agreement, and the Plans
and Specifications are to be considered together, and are intended to be mutually
complementary, so that any Work shown on the Plans, though not specified in the Specifications,
and any Work specified in the Specifications though not shown on the Plans, is to be executed by
Developer as part of this Agreement. Figured dimensions are to prevail over scale. All things
which in the opinion of the Contract Administrator may reasonably be inferred from this
Agreement and Plans as developed by Consultant and mutually agreed upon and approved by
Developer and City for the Project, are to be executed by Developer under the terms of the
Agreement; and the Consultant shall determine whether the detailed Plans conform to the
Contract Documents, except as may be otherwise determined by the Contract Administrator. In
the event the Work requested under this Section expands the scope of the Project, Developer may
seek a Change Order pursuant to Article 38.
ARTICLE 22
CONTRACTOR TO CHECK DRAWINGS AND DATA
Developer shall cause Contractor to take measurements and verify all dimensions,
conditions, quantities and details shown on the drawings, schedules, 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
therefrom nor from rectifying such condition at Contractor's own expense. Contractor will not be
allowed to take advantage of any error or omissions.
ARTICLE 23
DIFFERING SITE CONDITIONS
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In the event that during the course of the Work Contractor encounters subsurface or
concealed conditions at the Project Site which differ materially from those shown on the
Contract Documents and from those ordinarily encountered and generally recognized as inherent
in Work of the character called for in the Contract Documents, or unknown physical conditions
of the Project Site, of an unusual nature, which differ materially from that ordinarily encountered
and generally recognized as inherent in Work of the character called for in the Contract
Documents and Contractor notifies Developer of such conditions, Developer shall notify or
cause Contractor, without disturbing the conditions and before performing any Work affected by
such conditions, to, within twenty-four (24) hours of their discovery, notify Contract
Administrator and Consultant in writing of the existence of the aforesaid conditions. Consultant
and Contract Administrator shall, within two (2) business days after receipt of Contractor's
and/or Developer's written notice, investigate the site conditions so identified. If, in the opinion
of Consultant and Contract Administrator, the conditions do materially so differ and cause an
increase or decrease in Developer's cost of, or the time required for, the performance of any part
of the Work, whether or not charged as a result of the conditions, Consultant and Contract
Administrator shall recommend an equitable adjustment to the Contract Sum, or the Contract
Time, or both. If City and Developer cannot agree on an adjustment in the Contract Sum or
Contract Time, the adjustment shall be referred for determination in accordance with the
provisions of Article 11. Should Consultant and Contract Administrator determine that the
conditions of the Project Site are not so materially different to justify a change in the terms of the
Contract Documents, Consultant shall so notify City and Developer in writing, stating the
reasons, and such determination shall be final and binding upon the parties hereto.
No request by Developer for an equitable adjustment to the Contract Sum and/or Contract
Time under this provision shall be allowed unless Developer has given written notice. No
request for an equitable adjustment or change to the Contract Sum or Contract Time for differing
site conditions shall be allowed if made after the date certified by Consultant as the date of
Substantial Completion.
ARTICLE 24
WARRANTY
Developer shall require that Contractor warrant to the City in the Contract Documents
that all materials and equipment furnished for the Project will be new unless otherwise specified
and that all Work for the Project will be of good quality, free from faults and defects and in
conformance with the Contract Documents. The standard of quality shall be at least that
employed by similarly qualified Contractor's that are duly qualified and licensed to perform
similar projects. Ifmaterials or equipment is improperly stored and becomes altered as a result of
such improper storage, Developer shall cause Contractor to replace said materials with new
materials at no additional cost. Developer shall cause Contractor to be responsible for proper
storage and safeguarding of all materials. If required by the Contract Administrator, Developer
shall cause Contractor shall furnish satisfactory evidence as to the kind and quality of materials
and equipment. The warranty requirements set forth in the Contract Documents as herein defined
shall govern warranty terms and conditions for all warranty items expressed or implied. The
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Contractor's warranty period under this Article shall be one (1) year from the date of Substantial
Completion of each portion of the Project. However, this Section shall not abridge the times or
impede the rights and remedies afforded the City against other entities or persons under this
Agreement, or by law.
ARTICLE 25
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 upon Developer with the same
force as the Contract Documents. Where such supplementary drawings require either less or
more than the estimated quantities of Work, appropriate adjustments shall be made pursuant to
Change Order.
ARTICLE 26
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 27
GENERAL WORKMANSHIP
27.1 Articles, materials, and equipment specified or shown on drawings shall be new
and shall be applied, installed, connected, erected, used, cleaned, and conditioned for proper
forming, as per the manufacturer's directions. Contractor shall, if required, furnish satisfactory
evidence as to kind and quality ofthe materials. Should materials arrive to the jobsite new and be
improperly stored and deteriorate from new condition, the materials shall be replaced at no
additional cost to City.
27.2 Developer shall cause Contractor to apply, install, connect, and erect
manufactured items or materials according to recommendations of manufacturer when such
recommendations are not in conflict with the Contract Documents. If there is conflict between
manufacturer recommendations and the Contract Documents, Consultant and Contract
Administrator shall be notified and participate in the corrective actions.
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ARTICLE 28
DEFECTIVE WORK
28.1 Consultant and/or Contract Administrator shall have the authority to reject or
disapprove Work for the Project which Consultant and/or Contract Administrator reasonably
finds to be defective. If required by Consultant and/or Contract Administrator, Developer shall
cause Contractor to 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 removal or
correction.
28.2 If, within one (1) year after Substantial Completion, any Work is found to be
defective or not in accordance with the Contract Documents, Contractor shall correct it promptly
in accordance with the its warranties and without cost to City after receipt of written notice from
City to do so unless City has given Contractor a written acceptance of such conditions. Nothing
contained herein shall be construed to establish a period of limitation with respect to any other
obligation which Contractor might have under the applicable State law.
28.3 Prior to Substantial Completion, should Developer fail to cause Contractor to
remove or correct any Defective Work performed for the Project or to make any necessary
repairs in an acceptable manner and in accordance with the requirements of this Agreement
within a reasonable time, indicated in writing, City shall have the authority to cause the
unacceptable or Defective Work to be removed or corrected, or make such repairs as may be
reasonably necessary to be made at Developer's or Contractor's expense. Continued failure or
refusal on the part of Developer to cause Contractor to make any or all necessary repairs
promptly, fully, and in acceptable manner shall be sufficient cause for City to declare this
Agreement forfeited, in which case City, at its option, may purchase materials, tools, and
equipment and employ labor or may contract with any other individual, firm or corporation, or
may proceed with its own forces to perform the Work. All costs and expenses reasonably
incurred thereby shall be charged against Developer or Contractor.
28.4 Failure to reject any Defective Work or material shall not in any way prevent later
rejection when such defect is discovered or obligate City to final acceptance.
28.5 Upon Final Completion, City agrees to look solely to the Contractor, Consultant
or both, but not the Developer, to perform any and all to repair or correct any and all Work
considered or determined by 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
the operation, 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
Contractor to complete all of the Work in accordance with the Contract Documents. Warranties
from Contractor required by the Contract Documents shall commence on the date of Final
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Completion of the Work or designated portion thereof unless otherwise provided III the
Certificate of Completion.
ARTICLE 29
SUBCONTRACTS
29.1 Until Final Completion, Developer shall be fully responsible for the performance
of its agents and employees, and Contractor and Consultant under the terms of this Agreement.
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 due any subcontractor. City or Developer may furnish to any
Contractor, subcontractor, subconsultant evidence of amounts paid to Developer on account of
specific Work performed.
29.2 Developer agrees to bind specifically Contractor and require that Contractor bind
every subcontractor and subconsultant to the applicable terms and conditions of the Contract
Documents for the benefit of City.
29.3 Upon the occurrence of Final Completion and thereafter, as a third-party
beneficiary of the Contract Documents and all warranties thereunder, City shall be deemed to be
in a direct contractual relationship with the Contractor such that the Contractor shall be liable to
the City to the same extent that Contractor is liable and responsible to the Developer for the acts
and omissions of itself and all of its subcontractors, sub-subcontractors, materialman and
laborers employed by the Contractor.
ARTICLE 30
ENVIRONMENTAL MATTERS
The City is responsible as a Cost of the Work pursuant to an approved Change Order for
any required environmental remediation 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.
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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) 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 Certificate of Substantial Completion,
City will assume full responsibility for maintenance, utilities, subsequent damages of City and
public, adjustment of insurance coverage's and start of warranty for the occupied area.
31.2.4 Developer shall complete all items noted on the Certificate of
Substantial Completion within the time specified by Consultant on the Certificate of Substantial
Completion, as soon as possible and request final inspection and final acceptance of the portion
of the Work occupied. Upon completion of final inspection and receipt of an application for
final payment, Consultant shall issue a final certificate of payment relative to the occupied area.
31.2.5 If City finds it necessary to occupy or use a portion or portions of the
Work prior to Substantial Completion thereof, such occupancy or use shall not commence prior
to a time mutually agreed upon by City and Developer and to which the insurance company or
companies providing the property insurance have consented by endorsement to the policy or
policies. Insurance on the unoccupied or unused portion or portions shall not be canceled or
lapsed on account of such partial occupancy or use. Consent of Developer and of the insurance
company or companies to such occupancy or use shall not be unreasonably withheld.
ARTICLE 32
CONSTRUCTION AREA
32.1 Developer and Contractor shall use areas approved by the Contract Administrator
for deliveries and personnel.
32.2 To provide for maximum safety and security, Contractor shall erect and maintain
all necessary barricades, and any other temporary walls and structures as required, and boarding
or fencing to protect life and 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.
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ARTICLE 33
LANDS FOR WORK
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 Contract 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
Developer shall conform to all applicable laws, regulations, or ordinances with regard to
labor employed, hours of Work and Developer's general operations.
ARTICLE 35
DAMAGE TO EXISTING FACILITIES, EQUIPMENT OR UTILITIES
35.1 The City shall provide Developer with the documents, including, without
limitation, a sonar study of all existing underground facilities, equipment and utilities within the
Project Site, identified on the attached Exhibit "H" (collectively, the "Documents") within ten
(10) days after the date of this Agreement.
35.2 The City shall, prior to commencement of the Work, identify to Developer any
and all existing utilities and other underground facilities, equipment, or utilities at City's sole cost
and expense. Developer and Contractor shall be responsible to preserve all existing utilities
identified in the Documents. If a utility conflict is encountered which was not identified in the
Documents, Consultant or Developer shall be responsible for giving sufficient notice to the
owners of the utilities so that the City may make the necessary adjustments. Any time delay or
cost incurred will be the responsibility of the City and shall increase the Contract Time and
Contract Sum through an approved Change Order. City, as a Cost of the Work through a Change
Order, shall relocate any underground utilities existing as of the date of this Agreement on the
Project Site, if necessary, that were not identified by City to Developer in the Documents.
35.3 Developer shall cause Contractor to exercise care and take all precautions during
excavation and construction operations to prevent damage to any existing facilities, equipment,
or utilities. Any damage caused by 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.
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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 performed expeditiously at the expense of the City as a Cost of the Work
through a Change Order.
35.4 Developer shall cause Contractor to 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 cause Contractor to 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 preparatory Work is part of Work thereon,
Developer shall cause Contractor to carefully examine surfaces over which finished Work is to
be installed, laid or applied, before commencing with the Work. Developer shall not allow
Contractor to proceed with said Work until defective surfaces on which Work is to be applied are
corrected satisfactorily to the Contract Administrator. Commencement of Work shall be
considered acceptance of surfaces and conditions.
ARTICLE 36
CONTINUING THE WORK
Provided City is current in its payments under this Agreement, Developer and Contractor
shall carryon the Work and adhere to the Construction Schedule during all disputes or
disagreements with City, including disputes or disagreements concerning a request for a Change
Order, a request for a change in the Contract Sum or Contract Time. Provided City is current in
its payments under this Agreement, the Work shall not be delayed or postponed pending
resolution of any disputes or disagreements.
ARTICLE 37
FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS
37.1 The Contract Administrator shall have the right to approve and issue Field Orders
(subject to Developer's approval) setting forth written interpretations of the intent of the Contract
Documents and ordering minor changes in Contract Documents execution, providing the Field
Order involves no change in the Contract Sum or the Contract Time.
37.2 The Contract Administrator shall have the right to approve and issue to Developer
reasonable supplemental instructions to Developer setting forth written orders, instructions, or
interpretations concerning the Agreement or its performance, provided they make no material
changes in Contract Documents execution and involve no change in the Contract Sum or the
Contract Time.
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ARTICLE 38
CHANGE ORDERS (CHANGES IN QUANTITIES OF WORK)
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 Contract Sum or the Contract Time, 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 reached for any item requiring a
Change Order, the City reserves the right, at its own option, to either terminate the Agreement as
it applies solely to the items in question and make such arrangements as may be deemed
necessary to complete the item in question. Provided, however, if the arrangements made by the
City to complete the item in question would delay Final Completion of the Work or result in
additional expense to Developer, then the City shall either (1) issue a Change Order for such
additional cost or time extension or (2) postpone the City's proposed work until after Final
Completion of the Work or (3) submit the matter in dispute for resolution as set forth in Article
11 herein. During the pendency of the dispute resolution, Developer shall proceed with the Work
set forth within the Change Order on a time and materials basis, which Developer shall
adequately document pending final resolution of such dispute( s).
38.4 On approval of any Change Order increasing the price, Developer shall direct
Contractor to ensure that the applicable Performance and Payment Bonds, to the extent
applicable under the provisions of Article 51 hereof, are each increased so that it reflects the total
amount of the Project as increased.
38.5 Proposed Change Orders shall be prepared by the Contractor and submitted by
Developer to Contract Administrator for approval.
ARTICLE 39
VALUE OF CHANGE ORDER WORK
In the event the City initiates a Change Order for Work to be performed or eliminated
from the Contract Documents by Developer, Developer shall use its best efforts to negotiate with
the Contractor for the most cost 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 Contractor for Change Orders shall be within
standard industry rates and shall be submitted with a breakdown of labor, 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 of ten
percent (10%) overhead and five percent (5%) profit;
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ARTICLE 40
CHANGE OF CONTRACT TIME OR CONTRACT SUM
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 forty-five (45) 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 such forty-five
(45) day period (unless Contract Administrator allows, in writing, an additional period oftime 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 Contract Sum 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 amount equal to time lost due to days
beyond the control of and through no fault or negligence of Developer if a claim is made
therefore as provided herein. Such delays shall include, but not be limited to, acts or neglect by
City, or by any employee of City, or any separate Contractor or consultant employed by City,
fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God.
ARTICLE 41
NO DAMAGES FOR DELAY
NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN
EXTENSION OF CONTRACT TIME OR AN INCREASE IN THE CONTRACT SUM SHALL
BE MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY DELAYS.
DEVELOPER SHALL NOT BE ENTITLED TO PAYMENT OF COMPENSATION OF ANY
KIND FROM THE CITY FOR DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER
COSTS, EXPENSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF
ACCELERATION OR INEFFICIENCY, RESULTING FROM ANY DELAYS, EXCEPT IN
THE EVENT THAT SUCH DELAYS ARE DUE TO FRAUD, BAD FAITH, ACTIVE
INTERFERENCE OR THE FAILURE TO TIMELY ACT BY THE CITY. OTHERWISE,
DEVELOPER SHALL BE ENTITLED ONLY TO EXTENSIONS OF THE CONTRACT TIME
OR AN INCREASE IN THE CONTRACT SUM AS ITS SOLE AND EXCLUSIVE REMEDY
FOR SUCH DELAYS. DEVELOPER SHALL SPECIFICALLY INCLUDE THIS
PROVISION IN ITS AGREEMENT WITH CONTRACTOR.
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ARTICLE 42
SUBST ANTIAL COMPLETION
When Developer considers that the Work, or a portion thereof designated by the 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
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 from Contractor for all equipment,
apparatus, machinery, fixtures, piping, wiring, fabricated structures and manufactured articles.
The purpose of a Shop Drawing is to show the suitability, efficiency, technique of manufacture,
installation requirements, details of the item and evidence of its compliance or noncompliance
with the Contract Documents.
43.2 Developer shall promptly request of Contractor Shop Drawings from the various
manufacturers, fabricators, and suppliers.
43.3 To the extent Shop Drawings are required by the Consultant or industry custom
and standards would contemplate the preparation of Shop Drawings for certain items of the
Work, subcontractors and/or materialmen shall be required by contract to submit Shop Drawings.
Consultant shall thoroughly review and check the Shop Drawings and each and every copy shall
show Consultant's approval thereon.
43.4 If the Shop Drawings show or indicate departures from the Contract Documents
requirements, Developer shall cause Contractor to make specific mention thereof in its Shop
Drawing submittal and a separate letter. Failure to point out such departures shall not relieve
Contractor from its responsibility to comply with the Contract Documents. Contract
Administrator shall determine acceptability of change and in considering said change, may
require data, technical comparisons, cost comparisons, quality comparisons and/or calculations
to determine the equality of deviations. Contract Administrator is not obligated to accept
deviations.
43.5 No Work called for by Shop Drawings shall be done until the said Drawings have
been furnished to and accepted by the Contract Administrator or his designee. Contract
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Administrator shall respond to Shop Drawings pre-approved by Consultant with objections or
acceptance within ten (10) days of receipt. Acceptance is for design intent only and shall not
relieve Contractor 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 prepared by Contractor for all such interconnecting and/or independent items,
check them and then make one submittal to the Contract Administrator along with Consultant's
comments as to compliance, noncompliance, or features requiring special attention.
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
Consultant will be for general compliance with the plans and specifications design intent and
shall not relieve Contractor of responsibility for the accuracy of such Drawings, nor for the
proper fittings and construction of the Work, nor for the furnishing of the materials or Work
required by the Contract Documents and not indicated on the Drawings.
43.10 Developer shall keep one set of Shop Drawings marked with the Contract
Administrator's acceptance at the Project site at all times.
43.11 At least thirty (30) days prior to the commencement of construction, the
Developer shall submit a schedule of values to the Contract Administrator. Developer shall
submit to the Contract Administrator a separate schedule of values for demolition, abatement,
and site Work thirty (30) days prior to commencing such portion ofthe Work. The schedule will
be typed on 8-112" x 11" white paper listing: Title of project, location, project number, architect,
Contractor, Contract Documents designation, and date of submission. The schedule shall list the
installed value of the component parts of the Work in sufficient detail to serve as a basis for
computing values for progress payments during the construction. The table of contents of the
specifications shall establish the format for listing the component items. Each line item will be
identified by the number and title of the respective major section of the specifications. For each
line item, Developer shall list the sub-values of major products or operations under the item.
Each item shall include the proportion of Developer's overhead and profit. For any items for
which progress payments will be requested for stored materials, the value will be broken down
with:
43.11.1 The cost of materials delivered, unloaded, properly stored and
safeguarded, with taxes paid; and
43.11.2 The total installed value.
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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.
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 ofthis Project.
44.3 The survey wi1110cate 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 without prior written notice to
the Contract Administrator.
44.3.2 A report shall be made to the Contract Administrator when any
reference point is lost or destroyed, or requires relocation because of necessary changes in grades
or locations.
44.3.3 The surveyor shall be required to replace Project control points which
may be lost or destroyed. The surveyor shall be duly registered as a surveyor or mapper, as
required by state law.
44.3.4
Replacements shall be established based upon original survey control.
ARTICLE 45
FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS
45.1 The entire responsibility for establishing and maintaining a line and grade in the
field lies with Contractor. Contractor shall maintain an accurate and precise record of the
location and elevation of all pipe lines, conduits, structures, underground utility access portals,
handho1ds, fittings and the like and shall deliver these records in good order to the Contract
Administrator as the Work is completed. These records shall serve as a basis for "record"
drawings. The cost of all such field layout and recording Work is included in the prices bid for
the appropriate items.
45.2 Contractor shall maintain in a safe place at the site one record copy of all
Drawings (Plans), Specifications, Addenda, written amendments, Change Orders and written
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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 (My1ars) and a complete set of all drawings in the latest version of the
AutoCAD format on floppy disk not compressed which accurately reflect the "as built"
conditions of the new facility. All changes made to the construction documents, either as
clarifications or as changes, will be reflected in the plans. The changes shall be submitted on
Mylar at least monthly to the Contract Administrator. These "as built" drawings on Mylar and
the latest version of the AutoCAD format media must be delivered and found to be acceptable
prior to final payments.
ARTICLE 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 require Contractor to take all necessary precautions for the safety of, and shall provide the
necessary protection to prevent damage, injury or loss to:
46.1.1
All employees on the Project and other persons who may be affected
thereby;
46.1.2 All the Work and all materials or equipment to be incorporated therein,
whether in storage on or off the Project site; and
46.1.3 Other property at the site or adjacent thereto, including trees, shrubs,
lawns, walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
46.2 Developer shall use reasonable efforts to cause Contractor to (a) comply with all
applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction
for the safety of persons or property or to protect them from damage, injury or loss; and (b) erect
and maintain all necessary safeguards for such safety and protection. Developer shall notify
owners of adjacent property and utilities when prosecution of the Work may affect them. All
damage, injury or loss to any property referred to in Sections 46.1.2 and 46.1.3 above, caused
directly or indirectly, in whole or in part, by Developer or Contractor, any subcontractor or
consultant or anyone directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable, shall be remedied by the responsible party; however, Developer
and/or Contractor shall not be liable for injury or damage caused by City, its employees,
consultants or its separate Contractors. Developer's and Contractor's duties and responsibilities
for the safety and protection of the Project shall continue until such time as all the Project is
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completed and the Contract Administrator has 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 Contractor'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 or this Agreement, 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.
ARTICLE 48
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
ARTICLE 49
CLEANING UP AND REMOVAL OF EQUIPMENT
49.1 Developer shall cause Contractor at all times keep the Project site free from
accumulation of waste materials or rubbish caused by Contractor's operations. At the completion
of the Proj ect, Developer shall cause Contractor to remove all of its waste materials and rubbish
from and about the Project as well as its tools, construction equipment, machinery and surplus
materials. If Developer fails to cause Contractor to clean up at the completion of the Project,
City may do so; and the reasonable cost thereof shall be charged to Developer or Contractor.
49.2 In case of termination of this Agreement before completion for any cause
whatever, Developer, if notified to do so by City, shall cause Contractor to promptly remove any
part or all of Contractor's equipment and supplies from the property of City, failing which City
shall have the right to remove such equipment and supplies at the expense of Developer or
Contractor.
ARTICLE 50
[THIS ARTICLE LEFT INTENTIONALLY BLANK]
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ARTICLE 51
BONDS AND INSURANCE
51.1 Developer shall cause Contractor to furnish upon the execution of the
construction contract with Contractor, a performance bond and payment bond of the form and
containing all the provisions set forth in this Section. Payment and performance bonds shall be
in the form of dual obligee bonds from the Contractor in the amount of the Guaranteed
Maximum Price, naming the City and Developer as dual obligees.
51.2 The bonds shall be in the amount of one hundred percent (100%) of the Contract
Sum 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
defective or faulty Work or materials which appear within one year after completion of the
Work.
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 V
Class VI
Class VII
51.5 Indemnification Of City
51.5.1 The construction contract between Developer and Contractor and the
architect's agreement between Developer and Consultant shall provide that Contractor or
Consultant (as applicable) shall indemnify and save harmless City, its officers, agents and
employees, from or on account of any injuries or damages, received or sustained by any person
or persons during or on account of any construction activities of Contractor or Consultant (as
applicable), or any of its subcontractors, subconsultants, agents, servants, or employees
connected with the Project; or by or in consequence of any negligence of Contractor or
Consultant (as applicable), or any of its subcontractors, sub consultants, agents, servants, or
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employees (excluding negligence of City), in connection with the construction activities of
Contractor or Consultant (as applicable), or any of its subcontractors, subconsultants, agents,
servants, or employees connected with the Project; or by use of any improper materials or by or
on account of any act, error or omission of Contractor or Consultant (as applicable) or any
subcontractor, sub consultants, agents, servants or employees, except to the extent caused by
City. The construction contract between Developer and Contractor and the architect's agreement
between Developer and Consultant shall further provide that Contractor or Consultant (as
applicable) shall indemnify and save harmless City (a) against any claims or liability arising
from or based upon the violation of any federal, State, County or City laws, bylaws, ordinances
or regulations by Contractor, its subcontractors, agents, servants or employees (excluding
negligence of City); 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 negligent conduct or negligent misconduct of Developer and for
which City, its agents, servants or employees, are alleged to be liable. Developer's liability
pursuant to this paragraph shall be limited to the Liability Cap set forth in Section 18.1, except in
the event such claim, demand or cause of action arises from the gross negligence or willful
misconduct ofDe'leloper, in '.vhich case there shall be no Liability Cap.
51.5.3 The indemnification provided above shall obligate Contractor,
Consultant 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, Consultant, its
subcontractors, its subconsultants, 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, and maintain, or cause to be maintained, in force at all times during the Project, such
insurance, including Workers' Compensation Insurance, Employer's Liability Insurance,
Comprehensive General Liability Insurance, and Professional Liability Insurance, as will assure
to City the protection contained in this Agreement. Such policy or policies shall be issued by
companies approved to do business in the state of Florida, and having agents upon whom service
of process may be made in the state of Florida. Developer shall specifically protect City by
naming City as an additional insured under the Comprehensive General Liability Insurance
Policy hereinafter described.
51.6.1 Professional Liability Insurance to be carried by Consultant with limits
of liability provided by such policy not less than Three Million Dollars ($3,000,000.00) each
claim to assure City the indemnification specified in Section 51.5. Such policy may carry a
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deductible; however, any deductible shall not exceed Seven Hundred Fifty Thousand Dollars
($750,000.00) for each claim. The Certificate of Insurance for Professional Liability Insurance
shall reference the applicable deductible and the Project.
~8.11.4 Workers' Compensation Insurance to apply for all employees in
compliance with the "Workers' Compensation Law" of the state of Florida and all applicable
federal laws. In addition, the policy(ies) must include: Employer's Liability with a limit of
$1,000,000.00 each accident.
~8.11.5 Comprehensive General Liability with minimum limits of One
Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability
and Property Damage Liability. Coverage must be afforded on a form no more restrictive than
the latest edition of the Comprehensive General Liability Policy, without restrictive
endorsements, as filed by the Insurance Services Office and must include:
(i) Premises and/or Operations;
(ii) Independent Contractors;
(iii) Products and/or Completed Operations;
(iv) The Developer shall cause Contractor to 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;
(v) Explosion, Collapse and Underground Coverages;
(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 Employees and Contractual
Exclusions removed with minimum limits of coverage
equal to those required for Bodily Injury Liability and
Property Damage Liability; and
(ix) Notice of Cancellation and/or Restriction~ The policy(ies)
must be endorsed to provide the City with thirty (30) days
notice of cancellation and/or restriction.
~8.11.6 Business Automobile Liability with minimum limits of One
Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability
and Property Damage Liability. Coverage must be afforded on a form no more restrictive than
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the latest edition of the Business Automobile Liability Policy, without restrictive endorsements,
as filed by the Insurance Services Office and must include:
(i) Owned vehicles; and
(ii) Non-owned and hired vehicles.
~8.11.7 Notice of Cancellation, Expiration and/or Restriction: The
policy(ies) must be endorsed to provide the City with thirty (30) days notice of cancellation,
expiration and/or restriction, to the attention of the Risk Manager, 1700 Convention Center
Drive, Miami Beach, Florida 33139.
~8.11.8 Developer shall furnish to the Contract Administrator Certificate(s)
of Insurance evidencing the insurance coverages required herein within ten (10) days after
execution of the construction contract. Such certificate(s) shall reference this Agreement. City
reserves the right to require a certified copy of such policies upon request. All certificates shall
state that City shall be given thirty (30) days' prior written notice of cancellation and/or
expiration.
~8.11.9 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) days' written notice prior to expiration or cancellation of the policy.
ARTICLE 52ARTICLE 9
MISCELLANEOUS
~9.1Art in Public Places. The City has advised Developer that the proposed Project
constitutes a public joint development, and that the AIPP 1 Yz% will apply to the Contract Sum
(per proposed revisions to ordinance). Developer agrees to match the City's 1 Yz% 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 reviewed and selected pursuant to the City's established AIPP procedures, as set forth in
the City of Miami Beach Code, as same may be amended from time to time.
~9.2Public Benefits. The public will benefit in several ways from the proposed
Project: (a) the current obsolete design of the 1100 block of Lincoln Road will be replaced with a
new design reflecting a modern interpretation of Morris Lapidus's original design prepared by
the world class Design Architects created by and coordinated with the design and construction of
the 1111 Lincoln Project, which will enhance the public use and experience of this block; (b) the
design will incorporate significant areas in the central portion of the block, to be determined in
the final design, that will be reserved for open public use and prohibit restaurant seating and food
displays; ( c) by contracting with an affiliate of the developer of the adjoining 1111 Lincoln
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
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Contractor building both the new mixed-use building on the 1111 Lincoln Project and the Project
will minimize disruption and ensure better coordination of the two projects; and (e) the extension
of the very successful Lincoln Road pedestrian mall will benefit the public and this portion of
Lincoln Road and reinforce the pedestrian experience of Lincoln Road from Washington Avenue
through Alton Road.
~9.3Easements. City agrees to grant to MBeach1 and MBeach3 a temporary
construction right-of-way permit and/or easement and continuing maintenance easements and/or
right-of-way permits along Lincoln Road, Alton Road, Lincoln Lane. Alton Court and Lenox
Avenue in the form attached as Exhibit "I" for the construction and maintenance, including but
not limited to the architectural overhangs and features over pedestrian portions of the adjacent
dedicated rights-of-way and the underground utilities necessary to serve the buildings to be
constructed by MBeach1 on the MBeachl Property and by MBeach3 on the MBeach3 Property.
~9.4Pedestrian 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.
~9.50peration of Proiect upon Substantial Completion. City shall be solely
responsible for operating and maintaining the Project upon Substantial Completion.
~9.6Annual 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 Consultant of life cycle cost. The back up information shall
be provided before the 50% Construction Drawings are completed.
~9.7Royalties And Patents. All fees, royalties, and claims for any invention, or
pretended invention, or patent of any article, material, arrangement, appliance or method that
may be used upon or in any manner be connected with the construction of this Project or
appurtenances, are hereby included in the prices stipulated in this Agreement for said Project.
~9.8Rights of Various Interests. Whenever Work being done by City's forces or by
other Contractors is contiguous to Work covered by this Agreement, the respective rights of the
various interests involved shall be established by the Contract Administrator to secure the
completion of the various portions of the Work in general harmony.
~9.9Assignment. This Agreement shall not be assigned or subcontracted as a whole or
in part without the written consent of the City, nor shall Developer assign any monies due or to
become due to it hereunder, without the prior written consent of the Contract Administrator.
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~9.l0 No Interest. Any monies not paid by City when claimed to be due to
Developer under this Agreement shall not be subject to interest. However, the provisions of
City's prompt payment ordinance, as such relates to timeliness of payment, and the provisions of
Section 218.74(4), Florida Statutes, as such relates to the payment of interest, shall apply to valid
and proper invoices.
~9.11 Ownership of Documents. Drawing, specifications, design, models,
photographs, computer AutoCAD disks, reports, surveys, and other data provided in connection
with this Agreement and for which City has rendered payment, are and shall, subject to the terms
of the Contract Documents, become and remain the property of City whether the Project for
which they are made is executed or not. If this Agreement is terminated for any reason prior to
completion of the Work, City may, subject 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) days of termination of this Agreement
in addition to the record drawing. The provisions of this clause shall survive the completion of
this Agreement and shall thereafter remain in full force and effect. Any compensation due to
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.
~9.l2 Records. Developer shall keep such records and accounts and require
Contractor and Consultant to keep records and accounts as may be necessary in order to record
complete and correct entries as to personnel hours charged to this engagement. Such books and
records will be available at all reasonable times for examination and audit by City and shall be
kept for a period of three (3) years after the completion of the Project pursuant to this
Agreement. Incomplete or incorrect entries in such books and records will be grounds for
disallowance by City of any fees or expenses based upon such entries.
~9.13 Nondiscrimination, Equal Employment Opportunity, And Americans With
Disabilities Act. Developer shall not unlawfully discriminate against any person in its operations
and activities in its use or expenditure of the funds or any portion of the funds provided by this
Agreement and shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act in the course of providing any services funded in whole or in part by City,
including Titles I and 11 of the (regarding nondiscrimination on the basis of disability), and all
applicable regulations, guidelines, and standards.
Developer's decisions regarding the delivery of services under this Agreement shall be
made without regard to or consideration of race, age, religion, color, gender, sexual orientation,
national origin, marital status, physical or mental disability, political affiliation, or any other
factor which cannot be lawfully or appropriately used as a basis for service delivery.
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Developer shall comply with Title I of the Americans with Disabilities Act regarding
nondiscrimination on the basis of disability in employment and further shall not discriminate
against any employee or applicant for employment because of race, age, religion, color, gender,
sexual orientation, national origin, marital status, political affiliation, or physical or mental
disability. In addition, Developer shall take affirmative steps to ensure nondiscrimination in
employment against disabled persons. Such actions shall include, but not be limited to, the
following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising,
layoff, termination, rates of pay, other forms of compensation, terms and conditions of
employment, training (including apprenticeship), and accessibility.
Developer shall take affirmative action to ensure that applicants are employed and
employees are treated without regard to race, age, religion, color, gender, sexual orientation,
national origin, marital status, political affiliation, or physical or mental disability during
employment. Such actions shall include, but not be limited to, the following: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates
of pay, other forms of compensation, terms and conditions of employment, training (including
apprenticeship), and accessibility.
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.
~9.14 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.
~9.15 All Prior Agreements Superseded: Amendments. The Contract
Documents incorporate and include all prior negotiations, correspondence, conversations,
agreements or understandings applicable to the matters contained herein, and the parties agree
that there are no commitments, agreements or understandings concerning the subject matter of
this Agreement that are not contained in the Contract Documents. Accordingly it is agreed that
no deviation from the terms hereof shall be predicated upon any prior representations or
agreements whether oral or written.
It is further agreed that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document executed
with the same formality and of equal dignity herewith.
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~9.16 Notices. Whenever either party desires to give notice unto the other, it
must be given by written notice, (a) sent by certified United States mail, with return receipt
requested, (b) by personal delivery with a signed receipt, (c) by recognized national overnight
courier service or (d) by facsimile, in any case, addressed to the party for whom it is intended, at
the place last specified; and the place for giving of notice shall remain such until it shall have
been changed by written notice in compliance with the provisions of this paragraph. Notices
given by an attorney for the City or Developer shall be deemed effective notices. For the present,
the parties designate the following as the respective places for giving of notice, to wit:
FOR CITY:
City of Miami Beach
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)
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Fred Beckmann, Public Works Director
Fax: (305)
FOR DEVELOPER:
UIA Management, LLC
1111 Lincoln Road, Suite 760
Miami Beach, Florida 33139
Attn: Robert S. Wennett
Fax: (305) 531-4409
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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
~9.17 Truth-In-Negotiation Certificate. Signature of this Agreement by
Developer shall act as the execution of a truth-in-negotiation certificate stating that wage rates
and other factual unit costs supporting the compensation of this Agreement are accurate,
complete, and current at the time of Contracting. The original Contract Sum and any additions
thereto shall be adjusted to exclude any significant sums by which City determines the Contract
Sum was increased due to inaccurate, incomplete, or non-current wage rates and other factual
unit costs. All such adjustments shall be made within one (1) year following the end of this
Agreement.
~9.18 Interpretation. The parties hereto acknowledge and agree that the
language used in this Agreement expresses their mutual intent, and no rule of strict construction
shall apply to either party hereto. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
All personal pronouns used in this Agreement shall include the other gender, and the singular
shall include the plural, and vice versa, unless the context otherwise requires. Terms such as
"herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to
the particular sentence, paragraph or section where they appear, unless the context requires
otherwise. Whenever reference is made to a Section or Article of this Agreement, such reference
is to the Section or Article as a whole, including all of the subsections and subparagraphs of such
Section or Article, unless the reference is expressly made to a particular subsection or
subparagraph of such Section or Article.
~9.19 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.
~9.20 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
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months from the date of being placed on the convicted vendor list. Violation of this section shall
result in cancellation of the City purchase and may result in debarment.
~9.21 Waiver of Trial bv JUry. BY ENTERING INTO THIS AGREEMENT,
DEVELOPER AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER P ARTY MAY
HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING
OUT OF THE PROJECT. DEVELOPER SHALL SPECIFICALLY BIND CONTRACTOR
AND CONSULTANT AND REQUIRE THAT CONTRACTOR AND CONSULTANT BIND
ANY AND ALL OTHER SUBCONTRACTORS AND/OR SUBCONSUL T ANTS TO THIS
PROVISION OF THIS AGREEMENT.
~9.22 Approvals. Whenever any matter set forth herein is made subject to the
approval of the City or the Contract Administrator, the approval shall be expressed in writing and
the City or the Contract Administrator (as applicable) shall not be unreasonably withhold, delay
or condition any such approval, and the failure to grant or withhold any such approval within
five (5) business days after receipt of written notice requesting the same (or such other time
period as may be expressly provided in this Agreement), shall be deemed approval of such
matter if so stated in said notice.
~9.23 Time. Time shall be of the essence for the performance of all obligations
of Developer, the City and Contract Administrator under this Agreement. Whenever this
Agreement provides for or contemplates a period of time for performance of any obligation, such
time period shall be calculated using calendar days, except when such time period is expressly
stated to be calculated in business days. Any date in this Agreement which falls upon a
Saturday, Sunday or legal holiday (defined as any weekday upon which banks in Miami, Florida
are not open for business) shall be deemed to be extended to the next business day. The term
"business day" as used in this Agreement means any day that is not a Saturday, Sunday, or legal
holiday.
~9.24 Recording of Development Agreement. Within fourteen (14) days after
the City executes this Agreement, the City shall record this Agreement with the Clerk of the
Circuit Court of Miami-Dade County. Developer shall submit a copy of the recorded
Development Agreement to the State of Florida's Land Planning Agency within fourteen (14)
days after this Agreement is recorded. This Agreement shall become effective only after (a) it
has been recorded in the Public Records of Miami-Dade County, and (b) thirty (30) days have
elapsed after the State of Florida Land Planning Agency's receipt of a copy of the recorded
Agreement. The City agrees that it shall be responsible for all recording fees and other related
fees and costs related to the recording and delivery of this 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.
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~9.25 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 City and
Developer. During the term of this Agreement, the City's laws and policies governing the
development ofland in effect as of the date hereof shall govern development of the Proj ect. 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:
52.25.19.25.1 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
52.25.29.25.2 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
52.25.39.25.3 they are specifically anticipated and provided for III this
Agreement; or
52.25.49.25.4 the City demonstrates that substantial changes have occurred in
pertinent conditions existing at the time of approval of this Agreement; or
52.25.59.25.5 this Agreement is based on substantially inaccurate information
supplied by Developer.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
54
MIAMI 1275310.27713726901
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 Dermer
Title: Mayor
Print Name
Sign
Print Name
ATTEST:
By:
Name: Robert Parcher
Title: City Clerk
STATE OF FLORIDA
)
)ss:
)
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
,2007, by David Dermer, as Mayor, and Robert Parcher, as City Clerk, of the City
OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of
such municipal corporation. They are personally known to me or produced valid Florida driver's
licenses as identification.
Notary Public, State of Florida
My commission expires:
MIAMI 1275310.27713726901
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 Delaware limited liability
company, its Managing Member
Sign By:
Name: Robert S. Wennett
Title: Managing Member
Print Name
Sign
Print Name
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of
2007, by Robert S. Wennett, the Managing Member of Wellspring Investments Management I,
LLC, a Delaware limited liability company, the Managing Member ofUIA Management, LLC, a
Delaware limited liability company, on behalf of such limited liability companies. He is
personally known to me or produced valid Florida driver's licenses as identification.
Notary Public, State of Florida
My commission expires:
MIAMI 1275310.27713726901
EXHIBIT "A"
LEGAL DESCRIPTION OF PROJECT SITE
MIAMI 1275310.27713726901
EXHIBIT "B-1"
LEGAL DESCRIPTION OF MBEACH1 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
MIAMI 1275310.27713726901
EXHIBIT "B-2"
LEGAL DESCRIPTION OF MBEACH3 PROPERTY
Lots 19 and 20, Block 39, COMMERCIAL SUBDIVISION, FIRST ADDITION, according to
the Plat thereof, as recorded in Plat Book 6, Page 30 of the Public Records of Dade County,
Florida.
MIAMI 1275310.27713726901
EXHIBIT "C"
SCHEMATIC AND DESIGN DEVELOPMENT DRAWINGS
MIAMI 1275310.27713726901
MIAMI 1275310.27713726901
EXHIBIT "D"
FORM OF ARCHITECT'S AGREEMENT
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EXHIBIT "E"
CONSTRUCTION SCHEDULE
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 (if required )
Public Works Permit, Paving and Drainage
Public Works Permit, Water and Sewer
Such other permits as may be required by Federal, State and local law
MIAMI 1275310.27713726901
EXHIBIT "G"
BUDGET FOR REPLACEMENT OF SIDEWALKS, CURBS AND GUTTERS
MIAMI 1275310.27713726901
EXHIBIT "H"
DOCUMENTS PROVIDED BY THE CITY TO DEVELOPER
MIAMI 1275310.27713726901
MIAMI 1275310.2 7713726901
EXHIBIT "I"
FORM OF EASEMENT AGREEMENT