Development Agreement Inc.
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 33 13 ]-5340
DEVELOPMENT AGREEMENT
Between
CITY OF MIAMI BEACH, FLORlDA
and
VIA MANAGEMENT, LLC
for
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CFN 2007R0379718
OR Elk 25537 Pu 1882 - 1979; (98pss)
RECORDED O~/16/2007 11:~9:18
HARVEY RUVIN, CLERK OF COURT
~IAnI-DADE COUNTY, FLORIDA
PEDESTRIMf MALL ON 1100 BLOCK OF LINCOLN ROAD
MlAM1 1287157.1 7713726901
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of the
f jl:bday of April, 2007, by and between the CITY OF MIAMI BEACH, FLORIDA, a
municipal corporation of the State of Florida (the "City") and VIA MANAGEMENT, LLC, a
Delaware limited liability company ("Developer").
RECITALS:
A. The City is the owner of certain land located on Lincoln Road between Lenox
A venue and Alton Road, in Miami Beach, Florida, more particularly described in the attached
Exhibit" A" (the "Project Site").
B. MBeachl, LLLP, a Delaware limited liability limited partnership, authorized to
transact business in Florida as MBeachl, LLLP, Ltd. ("MBeachl ") 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 "MBeachl
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 MBeachl 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 MBeachl 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
MBeachl 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 1287157.1 7713726901
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 A venue 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" .
1. The City administration staff and Developer met several times to develop design
concepts, construction schedules, costs estimates and terms and conditions for a negotiated
development agreement between the City and Developer.
K. The Mayor of the City and the City Commission in Resolution No. 2007-26493,
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 A venue 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.
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MIAMI 1287157.1 7713726901
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 meanIng set forth In 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 of the 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.
Developer and City herein agree and acknowledge that Developer shall utilize
Consultant's Plans and Specifications for the Project for Developer's construction of the Project.
Developer further acknowledges and agrees that Consultant shall render as a Cost of the Work
certain professional services pursuant to this Agreement, including but not limited to, additional
NE services, as required; Project construction site supervision and/or observations relative to the
3
MIAMI ]287157.1 7713726901
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; 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.
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. 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 A Ill, the A201, 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
Developer, and approved by the City in its reasonable discretion, to perform the Improvements
for the Project.
MIAMI 1287157.1 7713726901
4
Developer and City agree and acknowledge that City is an intended third party
beneficiary in any contract entered into between Developer and Contractor. 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: VIA 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.
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
MIAMI 1287157.1 7713726901
5
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 glvmg rise to any liability,
responsibility or duty upon the City with respect tb any third person under any Hazardous
Materials Law.
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 V.S.C. SS9601 et seq.), the Hazardous Materials Transportation Act, as
amended (49 V.S.C. SS1801 et seq.), and the Resource Conservation and Recovery Act of 1976,
as amended (42 V.S.C. SS6901 et seq.), relating to hazardous substances, hazardous materials,
MIAMI ]287157.1 77]372690]
6
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 "e".
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.
1.40 MBeachl: 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.
1.43 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 A venue and Alton
Road to vehicular traffic, and the construction of a new design for the extension of the Lincoln
Road pedestrian mall west to Alton Road. The vehicular access that exists between Alton Road
and Lenox A venue will be removed and replaced with a new pedestrian plaza, extending the
pedestrian portion of Lincoln Road further to the west. The new plaza design will be organic in
nature, characterized by, among other things, grouping mature cypress trees.
1.45 Proiect Site: Project Site shall have the meaning set forth in the Recitals.
1.46 Shop 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.
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.
MIAMI 1287157.17713726901
7
1.48 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
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 Project.
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
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MIAMI 1287157.1 7713726901
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
umeasonably 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 "C". 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
A venue 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
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.
MIAMI 1287157.1 7713726901
9
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 ofland 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.
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 Project
shall have the following order of precedence, beginning with the most important:
MIAMI 1287157.1 7713726901
10
1. Change Orders
2. This Agreement and all addenda, exhibits and amendments thereto
3. The Addendum to AlII between Developer and Contractor
4. The AlA Alll 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.
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.
11
MIAMI 1287157.1 7713726901
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 architectural and engineering
services necessary to describe, detail and design the Project in accordance with the Contract
Documents.
5.3.2 Consultant shall design the Project so as to comply with applicable
codes and regulations.
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
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 the authority to order or approve deviations from
the Contract Documents, pursuant to approved Change Orders, so long as such deviations do not
12
MIAMI 1287157.1 7713726901
cause the Cost of the Work to exceed the Guaranteed Maximum Price. In the event any such
deviations 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").
ARTICLE 7
DEVELOPER'S RESPONSIBILITY
7.1 The parties acknowledge and agree that the Developer and Contractor will be
responsible for the construction of the Project in accordance with the terms of this Agreement.
7.2 It is Developer's responsibility to 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,
MIAMI 1287157.1 7713726901
13
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
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.
MIAMI 1287157.1 7713726901
14
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.
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
15
MIAMI 1287157.1 7713726901
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 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. If the City rejects the value engineered Project, and the City and Developer are
unable to agree on a modified design of the Project or an increase in the Contract Sum and/or
Contract Time to the extent necessary to complete the Work for such modified design within
thirty (30) business days after the City's rejection of 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) business 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 oftermination 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
MIAMI 1287157.1 7713726901
16
"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.
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 of the City.
8.10.4 Costs paid or incurred by the Developer or Contractor for training,
taxes, insurance, contributions, assessments, profit sharing, pensions and all other benefits
required by law or collective bargaining agreements or by corporate policy and, for personnel not
covered by such agreements, customary benefits such as sick leave, medical and health benefits,
holidays, vacations and pensions, provided such costs are based on wages and salaries included
in the Cost of the Work. This amount is stipulated to be fifty-six percent (56%) of the direct
payroll.
8.10.5 Payments made by the Developer or 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.
MIAMI 1287157.1 7713726901
17
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 ofthe Work or, at the City's option, shall
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.
charges.
8.10.10 Costs of removal of debris from the site including loading and dump
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.
MIAMI 1287157.1 7713726901
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8.10.17 Fees of laboratories for tests required by the Contract Documents.
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
negligenc-e 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 of the Work if and to the extent
approved in advance in writing by the City.
8.1 0.21 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
MIAMI 1287157.1 7713726901
19
(14) days after the execution of this Agreement. Such application for payment shall be in the
amount of $74,746.92, which shall not exceed five percent (5%) of the 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
(c) subtract the aggregate of previous payments made by the City.
MIAMI 1287157.1 7713726901
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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;
10.2.4
One (1) original set and one (1) copy set of the As-Built Drawings;
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MIAMI I287157.1 7713726901
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
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
MIAMI 1287157.1 7713726901
22
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 of the 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
carryon the Work and maintain the Construction Schedule, without prejudice to any of their
rights, notwithstanding the pendency of any such dispute resolution proceeding, unless otherwise
agreed by the City and Contractor in writing.
11.6 In connection with any dispute or litigation 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
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.
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MIAMI 1287157.1 7713726901
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.
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
MIAMI 1287157.1 7713726901
24
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
Project.
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.
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)
MIAMI 1287157.1 7713726901
25
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 of the fact
of such delay, neglect or default and Developer's failure to comply with such notice: (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. In such case, Developer shall not be entitled to receive any further payment until
the Project 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 which shall be deducted from any monies due or which
may become due to said Developer Actions will be instituted to recover on the posted bonds.
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,
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.
26
MIAMI 1287157.] 7713726901
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 Project;
20.1.3 Conforms substantially, even with deviations, to the detailed
requirements for the items as indicated by the Contract Documents; and
20.1.4
Carries the same guaranty or warranty of the specified equipment.
All substitution requests will be made via written request which shall be attached to a
Shop Drawing and/or Change Order which shall be attached to a detailed description of the
specified item and a detailed description of the proposed substitution. A comparison letter
itemizing all deviations from specified items must be included for the Consultant and Contract
Administrator to properly evaluate substitution. Failure to provide the deviation comparison
sheet shall automatically deny the request.
Any changes, inclusive of design changes, made necessary to accommodate substituted
equipment under this paragraph shall be at the expense of Developer, Contractor or subcontractor
responsible for the Work item.
20.2 Contract Administrator's written consent will be 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,
27
MIAMI 1287J57.1 7713726901
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
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
MIAMI 1287157.1 7713726901
28
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. If materials 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
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
SUPPLEMENTARY 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.
MIAMI 1287157.1 7713726901
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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.
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
MIAMI 1287157.17713726901
30
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
Completion of the Work or designated portion thereof unless otherwise provided in 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.
MIAMI 1287157.1 7713726901
31
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 far 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 Wark, Developer shall
be entitled to reasonable extra compensation, or reasonable extension of time or both, as
recommended by Consultant and approved by City.
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.
MIAMI ]287157.] 7713726901
32
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.
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
33
MIAMI 1287157.1 7713726901
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.
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
MIAMI 1287157.1 7713726901
34
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.
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
35
MIAMI 1287157.1 7713726901
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;
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 c1'aim 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 of time to
ascertain more accurate data in support of the claim). All claims for adjustment in the Contract
Time or for an increase in the Contract Sum shall be decided by the Contract Administrator
pursuant to the terms of Article 11 in this Agreement. No claim for an adjustment in the
Contract Time or for an increase in the 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.
MIAMI 1287157.1 7713726901
36
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
ACCELERA TION 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 DELA YS. DEVELOPER SHALL SPECIFICALL Y INCLUDE THIS
PROVISION IN ITS AGREEMENT WITH CONTRACTOR.
ARTICLE 42
SUBSTANTIAL 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.
MIAMI ]287157.] 7713726901
37
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
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,
38
MIAMI 1287157.1 7713726901
and site Work thirty (30) days prior to commencing such portion of the Work. The schedule will
be typed on 8-1/2" x 11" white paper listing: Title of project, location, project number, architect,
Contractor, Contract 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.
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 of this Project.
44.3 The survey will locate and protect control points prior to starting site Work, and
will preserve all permanent reference points during construction.
44.3.1 No changes or relocations will be made 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.
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MIAMI 1287157.1 7713726901
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,
handholds, 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
interpretations and clarifications in good order and annotated to show all changes made during
construction. These record documents together with all approved samples and a counterpart of all
approved Shop Drawings will be available to Contract Administrator for reference. Upon
completion' of the Project, these record documents, samples and Shop Drawings shall be
delivered to Contract Administrator.
45.3 At the completion of the Project, the Contractor shall turn over to the City a set of
reproducible drawings (Mylars) and a complete set of all drawings in the latest version of the
AutoCAD format on floppy disk not compressed which accurately reflect the "as built"
conditions of the new facility. All changes made to the construction documents, either as
clarifications or as changes, will be reflected in the plans. The changes shall be submitted on
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
MIAMI 1287157.1 7713 72690 I
40
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
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 Project, 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.
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MIAMI 1287157.1 7713726901
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]
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
MIAMI 1287157.1 7713726901
42
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, subconsultants, agents, servants, or
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, subconsultants, 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.
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.
MIAMI 1287157.1 7713726901
43
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
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.
51.6.2 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.
51.6.3 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 ~qual 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.
51.6.4 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 the
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MIAMI 1287157.1 7713726901
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.
51.6.5 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.
51.6.6 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.
51.6.7 Developer shall provide to City a Certificate of Insurance or a copy of
all insurance policies required under this Article. The City's Risk Manager reserves the right to
require certified copies if requested. Endorsements and certifications shall state City is to be
given thirty (30) days' written notice prior to expiration or cancellation of the policy.
ARTICLE 52
MISCELLANEOUS
52.1 Art in Public Places. The City has advised Developer that the proposed Project
constitutes a public joint development, and that the AIPP 1 'li% will apply to the Contract Sum
(per proposed revisions to ordinance). Developer agrees to match the City's 112% of the Contract
Sum for AIPP. The City agrees that Developer's AIPP contribution shall be utilized solely on the
1100 block of Lincoln Road between Lenox Avenue and Alton Road and that the art and artists
shall be 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.
52.2 Public 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 modem 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
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
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MIAMI 1287157.1 7713726901
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 A venue
through Alton Road.
52.3 Easements. City agrees to grant to MBeachl 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 MBeachl on the MBeachl Property and by MBeach3 on the MBeach3 Property.
52.4 Pedestrian Drop-Off Areas. Pedestrian drop-off areas shall be carefully designed
for both Alton Road and Lenox A venue 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.
52.5 Operation of Proiect upon Substantial Completion. City shall be solely
responsible for operating and maintaining the Project upon Substantial Completion.
52.6 Annual Maintenance Program. A comprehensive annual maintenance program
and schedule is being prepared by the Design Architects for City for successful future
maintenance of the "urban glade" features of the Project, including ponds, water features,
indigenous plants and trees and special lighting. Such program and schedule shall be approved
by City staff and relevant City agencies. Developer shall provide oversight of such program and
schedule as part of a separate agreement to be entered into with City. Water features are subject
to City's approval after submittal by Consultant oflife cycle cost. The back up information shall
be provided before the 50% Construction Drawings are completed.
52.7 Royalties And Patents. All fees, royalties, and claims for any invention, or
pretended invention, or patent of any article, material, arrangement, appliance or method that
may be used upon or in any manner be connected with the construction of this Project or
appurtenances, are hereby included in the prices stipulated in this Agreement for said Project.
52.8 Rights of Various Interests. Whenever Work being done by City's forces or by
other Contractors is contiguous to Work covered by this Agreement, the respective rights of the
various interests involved shall be established by the Contract Administrator to secure the
completion of the various portions of the Work in general harmony.
52.9 Assignment. 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.
52.10 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
46
MIAMI 1287157.1 7713726901
218.74(4), Florida Statutes, as such relates to the payment of interest, shall apply to valid and
proper InVOIces.
52.11 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.
52.12 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.
52.13 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.
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,
MIAMI 1287157.1 7713726901
47
sexual orientation, national ongm, 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.
52.14 No Contingent Fee. Developer warrants that it has not employed or retained any
company or person, other than a bona fide employee Working solely for Developer to solicit or
secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual or firm, other than a bona fide employee Working solely for Developer,
any fee, commission, percentage, gift, or other consideration contingent upon or resulting from
the award or making of this Agreement. For the breach or violation of this provision, City shall
have the right to terminate the Agreement without liability at its discretion, to deduct from the
Contract Sum, or otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
52.15 All Prior Agreements Superseded: Amendments. The Contract Documents
incorporate and include all prior negotiations, 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.
52.16 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
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MIAMI 1287157.1 7713726901
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) 673-7782
With a copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: City Attorney
Fax: (305) 673-7002
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Fred Beckmann, Public Works Director
Fax: (305) 673-7028
FOR DEVELOPER:
UIA Management, LLC
1111 Lincoln Road, Suite 760
Miami Beach, Florida 33139
Attn: Robert S. Wennett
Fax: (305) 531-4409
With a copy to:
Bilzin Sumberg Baena Price & Axelrod LLP
200 South Biscayne Blvd., Suite 2500
Miami, Florida 33131
Attn: John C. Sumberg, Esq.
Fax: (305) 351-2201
52.17 Truth-In-Negotiation Certificate. 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
MIAMI 1287157.1 7713726901
49
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.
52.18 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.
52.19 Recycled Content. In support of the Florida Waste Management Law, Developer
is encouraged to supply any information available regarding recycled material content in the
products provided. City is particularly interested in the type of recycled material used (such as
paper, plastic, glass, metal, etc.); and the percentage of recycled material contained in the
product. City also requests information regarding any known or potential material content in the
product that may be extracted and recycled after the product has served its intended purpose.
52.20 Public Entity Crimes Act. In accordance with the Public Entity Crimes Act,
Section 287.133, Florida Statutes, a person or affiliate who is a Contractor, consultant or other
provider, who has been placed on the convicted vendor list following a conviction for a Public
Entity Crime, may not submit a bid on a contract to provide any goods or services to the City,
may not submit a bid on a contract with the City for the construction or repair of a public
building or public Work, may not submit bids on leases of real property to the City, may not be
awarded or perform Work as a Contractor supplier, subcontractor or consultant under a contract
with the City and may not transact any business with the City in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36
months from the date of being placed on the convicted vendor list. Violation of this section shall
result in cancellation of the City purchase and may result in debarment.
52.21 Waiver of Trial by Jury. BY ENTERING INTO. THIS AGREEMENT,
DEVELOPER AND CITY EXPRESSL Y WAIVE ANY RIGHTS EITHER PARTY 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.
52.22 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
50
MIAMI 1287157.1 7713726901
(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.
52.23 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.
52.24 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.
52.25 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 of land in effect
as of the date hereof shall govern development of the Project. The City may apply subsequently
adopted laws and policies to the Project only if the City has held a public hearing pursuant to
Section 163.3225, Florida Statutes, and determined:
52.25.1 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
52.25.2 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
52.25.3 they are specifically anticipated and provided for in this Agreement; or
51
MIAMI 1287157.1 7713726901
52.25.4 the City demonstrates that substantial changes have occurred III
pertinent conditions existing at the time of approval of this Agreement; or
52.25.5 this Agreement is based on substantially inaccurate information
supplied by Developer.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
52
MIAMI 1287157.1 7713726901
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
first above written.
WITNESSES:
'S~n~~
L, JiaYl1 (2, '{Jet f+^et.&.
Print Name
, -r:A~NclQ ..~
Sign
of
CITY:
r (lQfVArvDA 5(1 J/A_
Print Name
ATTEST:
lrlttl ~ PCt,t L~
By:
Name: Robert Parcher
Title: City Clerk
STATE OF FLORIDA
)ss:
COUNTY OF MIAMI-DADE ) /.1
(Ij
(/ , The foregoing instrument was acknowledged before me this ! I day of
j~ \.: I ,2007, by David Dermer, as Mayor, and Robert Parcher, as City Clerk, of the City
OF IAMI 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. ...... :1.,./. .... ....... .. ,. 7) .. ..
;7.) (. { ( ! ,; ,_ 2-:. if i ,f l/'-/I7/
Notary Public, State of Florida y
My commission expires:
t :LU:,N BE!\UCHAMP
. ""~::3;Cl~: # DO 530416
; s: AptH 29, 2010
, ; ;;)la'Y Public Underwrittrs
I ,\t"Vtt"',~
I -~~lfj.,:.
~!tj:~.{'
~ ~~i!f.:n-s~
APPROVED AS TO
FORM & LANGUAGE
FOR CUTION
MIAMI /287157.1 7713726901
,"". W:kz
1 ) ;30
omoy ~{ at
~~'4t'-) Cjf;+ZL-'
Sign
gl?~71!z711 ()-.S 612/ /.::j
U?q;
Sign
I},/A'v, D. Lv~j
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
)
)ss:
)
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
-~ ----..::---
~' ~- - ~ ~~ "'--
tly:'
Name: Robert S. Wennett
Title: Managing Member
The foregoing instrument was acknowledged before me this Zq-J11 day of J/atC/l ,
2007, by Robert S. Wennett, the Managing Member of Wellspring Investments Management I,
LLC, a Delaware limited liability company, the Managing Member of Urban Investments
Advisors, LLC, a Delaware limited liability company, the Managing Member of UIA
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.
My commission expires: l(-Icj2r)( I
MIAMI 1287157.1 7713726901
C6fz-;:1t7 (~~~
Notary Public, State of Florida
ELIZABETH OSORIA
MY COMMISSION # DO 648576
EXPIRES: Apri/19, 2011
Bondlld Thru PiQh.rd Insurance Agency
MIAMI 1287157.1 7713726901
EXHIBIT "A"
LEGAL DESCRIPTION OF PROJECT SITE
[attached)
2
COUSINS SURVEYORS & ASSOCIATES, INC. (PROJECT NUMBER: 5085-04 )
~ 3921 SW 47TH AVENUE, SUITE 1011 CLIENT:
DAVIE, FLORIDA 33314
CERTIFICATE OF AUTHORIZATION: LB I 6448 MBEACH1. LLlP
PHONE (954) 680-9885 FAX (954) 680-0213
LAND DESCRIPTION AND SKETCH
LAND orSCRIPTlON :
A PORTION OF LINCOLN ROAD LYING BETWEEN ALTON ROAD AND LENOX
AVENUE, AS SHOWN ON "COMt.lERCIAL SUBDIVISION", ACCORDING TO THE
PLAT THEREOF, AS RECORDED IN PLAT BOOK 6, AT PAGE 5 OF THE PUBLIC
RECORDS OF t.lIAMI/OADE COUNTY, FLORIDA, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS;
BEGIN AT THE WESTERN t.lOST SOUTHWEST CORNER OF LOT I, BLOCK 39 OF
SAID "COMt.lERCIAl SUBDIVISION":
THENCE SOUTHEASTERLY ALONG THE ARC Of' A CURVE, CONCAVE TO THE
NORTHEAST, HAVING A RADIUS OF 15.00 rEET: A CENTRAL ANGLE OF
90-02'39" AND AN ARC DISTANCE OF 23.57 FEET;
THENCE TANGENT TO THE LAST DESCRIBED CURVE NORTH 89'08'55" EAST
ALONG THE SOUTH LINE or SAID BLOCK 39, A DISTANCE OF 290 FEET TO A
POINT ON A TANGENT CURVE CONCAVE TO THE NORTHWEST;
THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, HAVING A RADIUS
OF 15.00 FEET, A CENTRAL ANGLE OF 89'57'21" AND AN ARC DISTANCE OF
23.55 FEET;
THENCE SOUTH 00'48'26" EAST, A DISTANCE OF 130.00 FEET TO A POINT
ON A TANGENT CURVE CONCAVE TO THE SOUTHWEST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAlD CURVE, HAVING A RADIUS
OF 15.00 rEET; A CENTRAL ANGLE or 90'02'39" AND AN ARC DISTANCE or
23.57 rEET:
THENCE SOUTH 89'08'55' WEST ALONG THE NORTH LINE or BLOCK 46 or
SAID "COMMERCIAL SUBDIVISION", A DISTANCE OF 290.00 rEET TO A POINT
ON A TANGENT CURVE CONCAVE TO THE SOUTHEAST;
THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, HAVING A RADIUS
OF 15.00 FEET, A CENTRAL ANGLE OF 89'57'21" AND AN ARC DISTANCE OF
23.55 FEET;
THENCE NORTH 00'48'26" WEST, A DISTANCE OF 130.00 FEET TO THE POINT
OF BEGINNING.
SAID LAND SITUATE, LYING AND BEING IN THE CITY OF t.lIAMI BEACH,
MIAMI/DADE COUNTY, FLORIDA: CONTAINING 32,193 SQUARE FEET, MORE OR
LESS.
REVISIONS DATE FB/PG OWN CKD
lAND DESCRIPTION .. SKETCH 03/06/07 ----- AV REC
LAND DESCRIPTION
&: SKETCH
FOR LINCOLN ROAD
BETWEEN ALTON ROAD
&: LENOX AVE
PROPERTY ADDRESS :
1111 LINCOLN ROAD
)
)
(SCALE: NI A
( SHEET 1 OF 3
COUSINS SURVEYORS & ASSOCIATES, INC. (PROJECT NUMBER 5085-04)
$ 3921 SW 47TH AVENUE, SUITE 1011 CLIENT "
DAVIE, FLORIDA 33314
CERTIFICATE OF AUTHORIZATION: LB II 6448 MBEACH1, LLLP
PHONE (954) 680-9885 FAX (954) 680-0213
LAND DESCRIPTION AND SKETCH
$
ALTON ROAD
NOO" -48'26"W 130.00'
WEST IJH[ - LOT 12
l>
,.11;0
~~!!.
l!!t: ~~!J'
~p~ ~ iJg 100.00'
aM ......
EAST UNE - LOT 12
-WEST UME .:- LOT it
I~ r
&::
~ IK_- LOT-.J 1 Z
WEST UNE - LOT 10
(") >
en ;0
;~ 00 0 ~
cq
0 II
&0 00 r
ui ~
UI ...,
a Z
~ -
~ UN,L- lOL10 CO
WEST UIlE - LOT 9 S 8 ~
en
0
. !EO :::0 ~
~s ..q
I 0
&- ~
'" )>
..
..
- EAST lINE - lOT t
-lIIESTUNE ':-LOT 1- 0
is
&.
- EAST UNE - LOT I
war-1M =- LOT 7
LEGEND:
i~
&...
l>
,.11;0
II CO II
...,q-
~o?'
U1NO
~~~
a
100.00'
CKD
OWN
rs/PC
POB
POC
P.B.
II/D.C.R.
A
R
f::.
CHECKED BY
DRAWN BY
flEW BOOK AND PAGE EAST UNE - LOT 7
POINT Of' BEGINNING
POINT Of COIlI/ENCEIIENT
PLAT BOOK
1I1A11I/DAOE COUNTY RECORDS
ARC OISTANCE
RADIUS
CENTRAL ANGLE
SOO" -48'26"[
130,00'
LENOX
A V E N U E
REVISIONS DATE: FB/PG OWN CKD
LAND DESCRIPTION A SKErCH OJ/06/07 AV Rrc LAND DESCRIPTION
---
&: SKETCH
FOR LINCOLN ROAD
BETWEEN ALTON ROAD
&: LENOX AVE
POB
waTERN IllIST soutHWEST CORNER
LOT 1. ILOCK Jt
(P.8. I. PC. S. II/D.C.II.)
WEST UN[ lOT 1
I>
t.~W
Nq-
~o?'
Ut"!.g it::
~~. ::!
a
1-
EAST JLIIE - LOT 1 _
WEST lINE - IDT 2
Is
...N
.
EAST LINE - lOT 2
WEs'llJiit-UlTJ-
z
~ ~
g ~
UI
UI
a
roT
~~
..
......
-
EAST UIlE - LOT J
UIlE-an.-
is
.....
-
h
I'"
EAST UNE - LOT 5
war'1JHE -loT .-
l> .
> 11;0 66
II mil R~
~ ui ~ =-
Ut~o
C1!~~
a
EAST LINE - LOT .
PROPERTY ADDRESS :
1111 UNCOlN ROAD
(SCALE: 1"= 40' )
(SHEET 2 OF 3 )
COUSINS SURVEYORS & ASSOCIATES, INC.
~ 3921 SW 47TH AVENUE, SUITE 1011
DAVIE, FLORIDA 33314-
CERTIFICATE OF AUTHORIZATION : LB # 6448
PHONE (954) 680-9885 FAX 954 680-0213
(PROJECT NUMBER : 5085-04 )
CLIENT :
MBEACH1, LLLP
LAND DESCRIPTION AND SKETCH
~
1. NOT VAUD WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL Of A f'LORIDA
UCENSED SURVEYOR AND MAPPER.
2. LANDS SHOWN HEREON WERE NOT ABSlRACTED fOR RIGHTS-OF-WAY.
EASEMENTS. OWNERSHIP. OR OTHER INSTRUt.lENTS OF RECORD.
3. DATA SHOWN HEREON DOES NOT CONSTITUTE A FIELD SURVEY AS SUCH.
~. THE LAND DESCRIPTION SHOWN HEREON WAS PREPARED BY THE SURVEYOR.
5. BEARINGS SHOWN HEREON ARE ASSUMED. THE SOUTH UNE OF LOT 20, BLOCK 39
"COMMERCIAL SUBOMSION. FIRST ADDlnON", P.B. 6, PG. 30, M/D.C.R.
SAID UNE BEARS S89.08'SS.W.
I HEREBY CERTIFY THAT THE ATTACHED .LAND DESCRIPTION AND SKETCH"
IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BEUEF
AS PREPARED UNDER MY DIRECTION IN MARCH. 2007. I FURTHER CERTIFY THAT THIS
"LAND DESCRIPTION AND SKETCH" MEETS THE MIN'MUM TECHNICAl STANDARDS
FOR SURVEYING IN THE STATE Of FLORIDA ACCORDING TO CHAPTER 61G17 OF
THE n.ORIDA ADMINISTRATIVE CODE. PURSUANT TO SECTION ~72.027, FLORIDA
STATUTES. SUBJECT TO THE QUAUrtCATIONS NOTED HEREON.
Q~ <e.a~
FOR THE FIRM, BY: ------______________________________
RICHARD E. COUSINS
PROFESSIONAl SURVEYOR AND MAPPER
f'LORlDA REGISTRATION NO. ~ 188
REVISIONS DATE FB/PG OWN eKO
lAND DESCRIPTION " SKETCH 03/06/07 ----- AY REC LAND DESCRIPTION
c!c SKETCH
FOR UNCOLN ROAD
BETWEEN ALTON ROAD
&: LENOX AVE
PROP€RTY ADDRESS :
1111 UNCOLN ROAD
(SCALE: HI A )
( SHEET 3 OF 3 )
EXHIBIT "B-1"
LEGAL DESCRIPTION OF MBEACHl PROPERTY
Lots 1, 2, 3, 4, 5 and 6, Block 39, COMMERCIAL SUBDIVISION, aC{:ording 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 1287157.1 7713726901
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 1287157.1 7713726901
EXHIBIT "C"
SCHEMATIC AND DESIGN DEVELOPMENT DRAWINGS
[attached]
MIAMI 1287157.1 7713726901
ALTON ROAD
N 'l-
...
~ ;r
~ .g
'" ~
!il
1ii 1ii
~ ~
~
;
LENOX AVENUE
MIAMI 1287157.1 7713726901
EXHIBIT liD"
FORM OF ARCHITECT'S AGREEMENT
[intentionally omitted for purposes of recording]
"</
I
I
I
I
II
I
"AlA Document 8151'" -1997
Abbreviated Standard Form of Agreement Between Owner and Architect
.1' AGREEMENT made as of the _ day of August 2006 in the year Two
Thousand and Six .' .
(lri words, l')(iicate day, month and year)
I B~TWEEN:.. ......'
(Name, addfe~s a[Jc:jpt~er information)
..::": '".:: -. .:""" j
M~EA6i-11;LLLP;';'.: .<.
a Qelaware limited Jiahjlity Ji'r,nited partnership, authorized to transact business in
FI.orida as MBEACH1,LLLP', Ltd.
1111 Lincoln 'Road .
.Suite 760 ..' ." '. ...... ..... .....
Mi~'mLB.each,.FI3.3139i .
(hereitlaftef,~pw.ner"),' .
.". . . .....
The Architect: . ;. .' '"
(Name, addressanqother information)
Zyscovich, Inc. ..... ; ..... '.'
100 N; BisbaynEtB.Jvd~
SuiteZ700 .... ..... . .......
MiarrW, Fk33132 ..... '.'
(here/riafter referted to as "Zyscovich" or the "Architect")
For,the.follpwing Project: . .' . .
(/qCll.JdEide,tciiti:idi;JescriptiofJ .'o(P'foiiict)
: .' .- .
Mixed:Us~'Pt()jt;)I#a.t;1 tt1 Li~c~ln Road comprised of (I) new improvements of:
':(a.)appro~imately 20,00Qsq8W~,f~.~t of retail spact;), (b) approximately +/- 250
..parklngspac.es on six.lE1vels"and. (c): a 5,000 square foot residential unit at the
'rpC?ftqp;an~,(1I) reliovatiQnsal1Qimprovements to the existing building: (a)
apprpximately 20;OOOsquarefeet of retail space on the ground floor, (b) new
9peh1;iir restaurantf~pnityoll the roof, and (III) a new two (2) story 24,000 square
focir5uildiQg.loc!~J~da:ttl?~9AJton Road comprised of: (a) a bank on the ground
floo'rwith private b~nKingolJ:t8e 2nd floor, and (b) four (4) residential units on the
secondJloor(collectivelYi the "Project").
The Owner and Architect agree as follows:
ARTICLE 1 ARCHITECT'S RESPONSIBILITIES
~ 1.1 Exct;)pt where expressly stated to the contrary, the services performed by
the Architect, Architect's employees, Owner's Consultants (as defined
hereinafter) and Architect's Consultants shall be as enumerated in Articles 2, 3
and 12.
ADDmONS AND DELETIONS:
The author of this document has
added hiformatlon needed for Its
completion: The author may also
have revised the text of the original
AlA standard form. An Additions and
Deletions Report that notes added
information as well as revisions to
the standard form text is available
from the author and should be
reviewed. A vertical line in the left
margin of this document indicates
where the author has added
necessary information and where
the author has added to or deleted
from the original AlA text.
This document has Important legal
consequences. Consultation with an
attorney is encouraged with respect
to its completion or modification.
~ 1.2 The Architect's services shall be performed as expeditiously as is
consistent with professional skill and care and the orderly progress of the Project.
The Architect shall submit for the Owner's approval a schedule for the
AlA Document B151™ -1997. Copyright @1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA"
Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlA" Document, or any
portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. ThIs document
wes produced by AlA software all 8:02:14 on 08128/2006 under Order No.1 000200640_2 which expires on 101312006, and Is not for resale.
User Notes: (1927906464)
1
performance of the Architect's services which may be adjusted as the Project proceeds. This schedule
shall include allowances for periods of time required for the Owner's review and for approval of
submissions by authorities having jurisdiction over the Project. Time limits established by this schedule,
which is attached as Exhibit B, shall not, except for reasonable cause, be exceeded by the Architect or
Owner. .
~ 1.3 The Architect shall designate a representative authorized to act on behalf of the Architect with
respect to the Project.
~ 1 A The services covered by this Agreement are subject to the time limitations contained in Section
11.5.1.
~ 1.5 The Architect shall'review, and shall be responsible for, compliance with, all laws, codes,
ordinancesan.~ r~gulations such that the design drawings and construction documents shall be fully
cOflilpliant witt:)' aUlaws/qoqas, ordinances and regulations applicable to the Project at the time of
permitting regar'dless;Clf.whether the design drawings and construction documents, or any portion of
them,Wasprep~redbytheArchitect or its consultants including, but not limited to, the Design Consultant,
as that term'lsdefiredbelow.
. .
/. AR.1;ICl::E 2 SCt>P.E OFAR.CHITECT'S BASIC SERVICES
.' "
'. g2.1DI5FfINITIO""'c>.... nf':;;C;
2.1. . ..Th$;Ar'chitei::(shall~iJgage the services of Herzog & De Meuron as a Design Consultant (the
"Desigh Cbm;ultami' or ."HerZog").
2.1.1 The Architect's Bctsic.pervices consist of those described in Sections 2.2 through 2.6 and any other
services identified in Arti.cle12 as part of Basic Services and shall include, but not be limited to, complete
responsibility f()r e",ery aspect of the design of the Project including, but not limited to, the architectural.
design,(except sche,mati~design, which is to be provided by Herzog), landscape architecture, structural,
civil, and mechaniQal, electrical and plumbing ("MEP") engineering services and any other aspect of the
design necessary to carry but the complete design of the Project. Included in these Basic Services is the
fullres.ponsibilityfor, and civersightof,.all consultants including the Owner's Consultants', Architect's
consultarits,pesignConsultam.subconsultants or other design professionals reasonably necessary for
the design oUhe- Project (collectiv13ly; "Consultants"). Notwithstanding the foregoing, the Owner will be
responsibleforp(iy;ing.any andalrtees owed to those consultants.
"g.i1.2.ZysboVich:shall c.oor9irli:!J~:tl:l8 services of the Consultants.
.::. ; .... ". " .......'...... .'..........
., ", ',-. . . ..'
g2.1.2Architeot shall submit a list Of its proposed Consultants for review and approval by the Owner prior
to Architect entering into one'ormore agreements with Consultant(s).
~ 2.1.3 All Agreemerits between Architect and the Consultants shall be in writing with a copy delivered to
the'.Owner. Eachsu.chagreement shall incorporate the terms and conditions of this Agreement so that all
r.~sp6nsibilities-ofthe Architect with respect to the material provisions of this Agreement shall be
applicable to the Consultants under their agreements including, but not limited to, scope, timeliness,
notice. payment,chal1ge orders, costs, and included services.
g 2.1.4 The Architect shall not terminate any of the Consultants without the written consent of the Owner,
whichcon~entshall not be unreasonably withheld.
c . _ .
fi2.2SCHENlA"nC DESIGN PHASE
g2.2.1 The Design Consultant shall review the program furnished by the Owner to ascertain the
requirements of the Project and shall arrive at a mutual understanding of such requirements with the
Owner.
AlA Document B151TM -1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlAe
Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any 2
portion of It, may resultln severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. this document
was produced by AlA softwara at 18:02:14 on 08/28/2006 under Order No.1 000200640_2 which expires on 1013/2006, and Is not forresale.
User Notes: (1927906464)
~ 2.2.2 The Design Consultant shall provide a preliminary evaluation of the Owner's program, schedule
and construction budget requirements, each in terms of the other, subject to the limitations set forth in
Section 5.2.1.
'.'.' ~2.2.3 The Design Consultant shall review with the Owner alternative approaches to design and
. construction of the Project.
..~ 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the
Design Consultant ~hall prepare, for approval by the Owner, Schematic Design Documents consisting of
drawings anejother,documents illustrating the scale and relationship of Project components.
~2;3 DESIGN DEVELOPMENT PHASE
.. ~ 2.3.1 Based ,on the approved Schematic Design Documents and any adjustments authorized by the
Owner hi the ,program ,schedule or construction budget, the Architect with assistance from the Design
'Consultant shall prepare, for approval by the Owner, Design Development Documents consisting of
drawings and other documents to fix and describe the size and character of the Project as to
arc::hitectura.l, structural, mechanical and electrical systems. materials and such other elements as may be
appropriate. '
'I
I
~2.4 CONSTRUCTION DOCUMENTS PHASE
~ 2.4.1 Based on the approve? Design Development Documents and any further adjustments in the
scope orquaJityof,thE;lflrojector in the construction budget authorized by the Owner, t~e Architect shall
prepare; for a.pproval'by the9wner, Construction Documents consisting of Drawings and Specifications
settin9 fo~h in deta.iltherequirements for the construction of the Project.
. ~'... l~
g2.4;2 The AtchitectshalLassist the Owner in the preparation of the necessary bidding information; . '
. bidding forms;theOonditiohs' of the Contract, and the form of Agreement between the Owner and
., COntractor; , '
~2.4.~TheAtchit~Gt:~f:llili not advise the Owner of any adjustments to th~ preliminary estimate of
,COl'1structionCostbecause those services have been separately contracted by the Owner.
.',,:~ .
~ 2.4.4 The Architectshall assistthE30wner In connection with the. Owner's responsibility for filing
.. documents required for theappr6v~lbf governmental authorities having jurisdiction over the Project. The
Architect and its Consultants shall attend and, where necessary, make presentations at all meetings with
any an,d allgovernmenta.laum~rities reasonably necessary to obtain the building permit for the Project.
g 2.5 BIDDING OR NEGOTIATION PHASE
The Architect, following the Owner's written approval of the Construction Documents and of the latest
preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated
proposals and assist in awarding and preparing contracts for construction.
AlA Document B151T1l-1997. Copyright @ 1974. 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA-
Document is protected by u.s. Copyright Law end International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any
portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software aI18:02:14 on 08/28/2006 under Order No.1 000200640_2 which expires on 10/3/2006. and is not lor resale.
User Notes: (1927906464)
3
~ 2.6 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT
~. 2.6.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this
Agreement commences with the award of the initial Contract for Construction and terminates upon the
later of (a) completion of the Project, (b) issuance of the final Certificate of Occupancy or (c) punch list
completion (the later to be referred to hereinafter as "Completion"). The Architect's fees for Construction
Administration are for 20 months. Any additional time would be Additional Services.
~ 2.6.2 The Architect shall provide administration of the Contract for Construction as set forth below and
in the editio/10f AlA Document A201, General Conditions of the Contract for Construction, current as of
the date ofthis Agreement and the Contract for Construction, unless otherwise provided in this
Agreement. Modifications made to the General Conditions, when adopted as part of the Construction
Documents, sn'all Qeenforceable under this Agreement only to the extent that they are consistent with
; this Agreemeht. .c..'
.:,:
~ 2.6Ath~Arch~ectshall.b'e a representative of and shall advise and consult with the Owner during the
administration of the Contract for Construction. The Architect shall have authority to act on behalf of the
Oiivn,er;ol;llytolheextente?Cpressly provided in this Agreement unless otherwise modified by written
: ameqdment.' . '; )
., :;-" :::< -. ", -' ,.
'~2.6:5JheDesign Consult~nt shall provide a full time architect in Miami during the construction "",;
administration phase. The Architect shall provide two half time architectural staff. Through the pre~!'lnce, '
of sLich support, the Architect shall endeavor to provide further protection for the Owner against defects
and deficiencies in the Work, but the furnishing of such representation shall not modify the rights,
responsibilities or obligations of the Architect as described elsewhere in this Agreement. The Architect.
will (1 ) becomegenerallyfamiliar with and to keep the Owner Informed about the progress and quality'of
..theiportior;10fthe.Workcompleted, (2) endeavor to guard the Owner against defects and deficiencies in
theWor'ki and (3) determine in general that the Work is being performed in a manner indicating that the
Work, whEm fully completed, willbesupstantially in accordance with the Construction Documents. The,
Architect shall neither have cpntroloyer or charge of, nor be responsible for, the construction means,
lT1eth6d$'ct~?l1niques, sequ~nc~s,()r,procedures, or for safety precautions and programs in connection
-with th.eYVorkj.si/"lc~these are solely the Contractor's rights and responsibilities under the Construction
,Documents;,;" '.<",: '
.--',V',.'.: '-!"."
, ..~' 2;S:,6Vvit"frrespect to the 96h~t~dfi.0n, the Architect shall report to the Owner known deviations from the
'COl'JstructiO:n,Pocuments~ri~d~viatlons which it observes. The Architect shall not be responsible for the
Coritractor'sfailureto,Rerforfii the Work in accordance with the requirements of the Construction
Docui1'lentsunle$sArchitecl~new of the Contractor's failure or should have known of the Contractor's
faily~e of pertormancebut fall~l;/ to report such facts to the Owner in writing. Except as otherwise set forth
herein, the Architectshallberesponsible for the Architect's negligent acts or omissions, and the negligent
acts'imd/ot omissions of its Consultants. Except as otherwise set forth herein, the Architect shall not
have cdntroloverorcharge of and shall not be responsible for acts or omissions of the Contractor,
Subcontractors,. or their agents or employees, or of any other persons or entities performing portions of
the Work.
.~2.6.7The Architect and Design Consultant shall at all times have access to the Work wherever it is in
prepari:1tiol1or progress.
.~ 2.6:8 The Owner shall endeavor to communicate with the Contractor through Architect about matters
arising from or related to the Construction Documents. Nothing herein shall preclude the Owner from
communicating directly with the Contractor on any matter that relates to the Project inclusive of the
Construction Documents nor shall the Owner be precluded from communicating directly with the Design
Consultant. The Architect and/or Design Consultant shall attend all project meetings with the General
Contractor and its subcontractors as reasonably required or upon request of the Owner unless excused
AlA Document B151™_1997. Copyright @1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA-
Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlA- Document. or any 4
portion 01lt, may resullln severe civil and criminal penaltlee, and will be prosecuted 10 the maximum extent possible under the law. This documenl
was produced by AlA software at 18:02:14.on 08/2812006 under Order No.1000200640_2 which expires on 10/3/2006, and Is nol for resala.
User Notes: (1927906464)
by Owner in writing and shall attend all construction meetings between Contractor and Owner, unless
excused by Owner in writing.
~ 2.6.8.1. Architect shall prepare a set of reproducible record drawings showing material and/or significant
changes in the Work as compared with the Design Drawings which were made during construction based
on marked-up prints, drawings and other data furnished by the Contractor to the Architect (the "As-Built
Drawings") as an additional service,
~ 2.6.8.2 The Architect shall maintain one or more logs, in a form and manner agreed upon by Owner,
containing
(1)a description and date of all (a) Change Orders proposed by Contractor, (b) all Change
Orders Proposed by Owner, (c) the date of all fully executed Change Orders,
(2) a description and date of all Requests for Information made by the Contractor to the Architect
and the datein:wl)ich the Request For Information was answered,
'. . .... ... . (3)adescriptiQh~nd date of all Shop Drawings received and the date in which a response was
mage to thE:} shop' dra"'Yingpy the Architect, Design Consultant or other Consultant(s)
~2.6.9CER+IFICATES FOR PAYMENT
5 2.6.9. f The Architect shall:review and certify the amounts due the Contractor and shall issue certificates
in, such amounts.. .
~2.6~9;2TheArchitect'scertification for payment shall constitute a representation to the Owner, based on
the Architect's evaluation,ofth'e Work as provided in Section 2.6.5 and on the data comprising the
Contractor's ApplicationJor P~yment, that the Work has progressed to the point indicated and that, to the
best Of the Architeet's<kr)owledge, information and belief, after reasonable inspection, that the qualitY"Qt;::
the Work IS inacc;ordancewlth the Construction Documents. The foregoing representations are subJ!3Ctt,~
(1 ).toanevahiation of ~he Work for conformance with the Construction Documents upon Substantial',:,.
Completion; (2) to results of subsequent tests and Inspections, (3) to correction of minor deviations from
the Construction'OQcUmehtsprior to completion, and (4) to specific qualifications expressed in '.writing;to
theO.wner by the Architect.
,~. 2.6;9.3 TheJssuanCeCifa Certificate for Payment shall not be a. representation that the Architect has: (1)
madeexhaustiveon-siteJnspections to check the quality or quantity of the Work, except as required
under Section 2.6.5 (2) reviewed construction means, methods, techniques, sequences or procedures,
(3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data
requested by theOwHarto substantiate the Contractor's right to payment, or (4) ascertained how or for
what purpose the contraqtor has used money previously paid on account of the Contract Sum.
. ~ 2.6.10 The Architect,shallhavaauthority to reject Work that does not conform to the Construction
Documents. wheneverlheArchlteCt considers it necessary or advisable. the Architect shall have
authority to tequireinsPectioribr testing of the Work in accordance with the provisions of the Construction
pocuments;whether ornotsuch Work is fabricated, installed or completed. However. neither this
autljority oOMe ArchiJ~tnClt a,'decision made in good faith either to exercise or not to exercise such
authority shall giveril?e.to~ duty or responsibility of the Architect to the Contractor, Subcontractors,
:JTIa:t~riala.nd'equipmenfsuppliers. their agents or employees or other persons or entities performing
. pQrtionsoftheWork
~ 2.'6.11 The Archit.eetshall timely review and approve or take other appropriate action upon the
Contractor's submittals such as Shop Drawings, Product Data and Samples, and Requests for
Information ("RFI's") but only for the limited purpose of checking for conformance with information given
c;lnd the design concept expressed in the Construction Documents. The Architect's action shall be taken
with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner,
Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment
to permit adequate review. Absent extraordinary circumstances, which shall be explained in writing by
the Architect, "Timely Review" shall mean the Review of Shop Drawings and Product Data Samples in no
more than seven (7) business days and the review of RFl's in seven (7) business days after Architect
receives request.
AlA Document 8151 "' - 1997. Copyright ~ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved, WARNING: This AlAe
Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any 5
portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software at 18:02:14 on 08/28/2006 under Order No,l 000200640_2 which expires on 10/312006, and Is not for resale.
User Notes: (1927906464)
~ 2.6.12 The Architect's review or that of its Consultants shall be for compliance with the intent of the
design and the Construction Documents and shall not include review of quantities, weight or gauges,
fabrication processes, construction methods, coordination with the work of other trades, or construction
safety precautions, all of which are the sole responsibility of the Contractor. The Architect or its
Consultants shall not be required to review partial submissions or those for which submissions for
correlated items have not been received. Review of such submittals is not conducted for the purpose of
determining the accuracy and completeness of other details such as dimensions and quantities, or for
substantiating instructions for installation or performance of equipment or systems, all of which remain the
". responsibility of the Contractor as required by the Contract Documents. The Architect's review shall not
constitute approval ofsa,fety precautions or, unless otherwise specifically stated by the Architect, of any
cOrlstructionmeansirnethods, techniques, sequences or procedures. The Architect's review of a specific
iteril shallnotindicatethlit the Architect has reviewed the entire assembly of which the item is a
component
. ...... ,":....
. ,. " .~
~ 2:.6.13 IfPwfessibna.!'design services or certifications by a design professional related to systems,
materials or equipmentare specifically required of the Contractor by the Construction Documents, the
Architect shall specify appropriate performance and design criteria that such services must satisfy. The
Architect shall not be responsible for the actual design undertaken by the design professional retained by
the Contractor or for its adequacy or completeness of the services, certifications of approvals performed
by such design professional. , Shop Drawings and other submittals related to the Work designed or
certified by the de'sign professional retained by the Contractor shall bear such professional's written
approval when subniitted,to,th,'e Architect. The Architect shall be entitled to rely on the adequacy and
accurapy and corripleteness of the services, certification or approvals by such design professionals. The
Archite.ctshaUbe entitled tq,r'ely on the adequacy and accuracy and completeness of the services; .i~..,:,
certification orapprovaJs by'such design professionals. "',
~2.6.14 The QWner shali ~repare Change Orders and Construction Change Directives, which shall bel
reviewed by the Architect with supporting documentation and data if deemed necessary by the Architect
'as provided in Sections 3.1,.1 and 3.3.3, for the Owner's approval and execution in accordance with the
Construction Documents,and may advise the Owner to other minor changes in the Work not involving an
adjustmentil1theContract Surri()r an extension of the Contract Time which are consistent with the intent '
of the Construction Docum~~t~.::::,
','~ 2.E).1,5 The Archite.cf s&;:111 conduct inspections to determine the date or dates of "Substantial "
CornPletiorj" 'and the dat~,or"F,i[#iIS::ompletion", as those terms are defined under the Construction
. Cbntract,arid shall recefvefrom.'tl'1ebontractor and forward to the Owner, for the Owner's review and
'recofds,wrlttenwarrantiesandr~Jated documents required by the Construction Documents and
. assembled by the Con~r.El"ct6r;'ai1d shall issue a final Certificate for Payment based upon a final inspection
'indicating the Workcompliaswith the requirements of the Construction Documents between Owner and
Contractor. .. .',
. ,
-'I.;'
. '\;
... . .
'....~ 2;6.16.The Architect shal(ihterpret and decide matters concerning performance of the Owner and
Contractor under, and requirements of, the Construction Documents on written request of either the
Owner or Contractor. The Architect's response to such requests shall be made in writing within any time
limits agreed upon or otherwise with reasonable promptness.
~2.6.17 Interpretations, recommendations and decisions of the Architect shall be consistent with the
intentof and reasonably inferable from the Construction Documents and shall be In writing or in the form
of drawings, When making such interpretations, recommendations and initial decisions. The Architect
shall not show partiality to either, and shall not be liable for results of interpretations or decisions so
rendered in goqd faith.
~ 2.6.18 If requested, the Architect shall render Initial decisions on claims, disputes or other matters In
question between the Owner and Contractor as provided in the Contract Documents between the Owner
AlA Document B151'M -1997. Copyright CD> 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlAS
Document is protected by U.S. Copyright Law and International Treaties. Unsuthorlzed reproduction or distribution of this AlAS Document, or any
portion of it, may result In severe civil and criminal penalties, and wlll be prosecuted to the maximum extent possible under the law. This document
was produced by AlA seltware at 18:02:14 on 0812812006 under Order No.1 000200640_2 which expires on 101312006, and Is not for resale.
User Notes: (1927906464)
6
and Contractor. However, the Architect's and Design Consultant's decisions on matters relating to
aesthetic effect shall be final if consistent with the intent expressed in the Construction Documents.
~ 2.6.19 The Architect's decisions on claims, disputes or other matters in question between the Owner
and Contractor, except for those relating to aesthetic effect as provided in Section 2.6.17, shall be subject
to the terms of this Agreement and the Construction Documents between Owner and Contractor.
~. 2$.20 The Architect and Owner's Consultants shall perform all of its services in a timely manner and
according to the schedule attached at Exhibit B. The Architect's performance shall be consistent with the
prbfessional'~kill andc:are of like professionals. Time is of the essence with respect to the Architect's
performance underthis Agreement. Architect shall be in material default under this Agreement should
Architect or its Consultants fail to timely or properly perform their services in accordance with this
Ag~eementlnbludihg,.bl\t not limited to, the timely preparation of Plans and Specifications, the timely
review ofand.c;ommentupon Submittals, shop drawings and/or Requests for Information from the
GOl)tractpr~ NotwithMlm~iTlg the foregoing, Architect and Consultants shall not be deemed in material
default to the,exteritthat anY: delay or failure in their performance or their obligations is the result of a
c~usebeyondtheir reasonable control and not caused by their own negligence.
ARTICLE 3 .'ADDITIONAL SERVICES
~ 3.1 GENERAL
~ 3.1.t The services described in this Article 3 are not included in Basic Services unless so identified in.
Article 1.2; and they shall bel paid for by the Owner as provided in this Agreement, in addition to the
compensation for Basic.Services. The services described under Article 3 shall only be provided ,if,
authorized or confirmed in writing by the Owner. If services described under Contingent Additional ;.'.'
Servic,es in Section 3.3 are required due to circumstances beyond the Architect's control, the Archit~,ctL'
shalL bbtainOwner's cqnsent-in writing prior to commencing such services. If the Owner deemsthat'such
servicesd~scribedunderSection 3.3 are not required, the Owner shall give prompt written notice to'the
Architect. If the Owner indicates in writing that all or part of such Contingent Additional Services, are not
requited;,the,Architecfshall have no obligation to provide those services. ,',' ;'.,
. .., ~ .
.' ..
~3.~PRC>JECi REPRESENTATION BEYOND BASIC SERVICES " "..'
~3.2.1 ,'The services provided l.mder '.~ 2.6.5 shall be included as part of the Architect's Basic Service: If
more' extensive representation at the site than is described in Section 2.6.5 is required, and upon .the
request of the Owner, the Architect-shall provide one or more additional Project Representatives to assist
in carrying out such additionaHjn-site responsibilities.
~~.i2'.2ProjeciHepresentatives,~h~lJ be selected, employed and directed by the Architect, and the
Architec(shall,be compensated therefor as agreed by the Owner and Architect. The'duties,
, responsibilitlt;3s'andllmitath?ns,Qf:authority of Project Representatives shall be as described in the edition
of AlA Dbclirhent B352cum3nt as of the date of this Agreement, unless otherwise agreed. '
~3,:~.3 Thi'oughthepresE!nc~ :at the site of such Project Representatives, the Architect shall endeavor to
, . prpyioe furtherprbteqtipn for tile Owner against defects and deficiencies in the Work, but the furnishing of
,'..... '~uch. projecHepreseritation shall not modify the rights, responsibilities or obligations of the Architect as
described elsewhere in this Agreement.
~3.3 CONTINGENT ADDITIONAL SERVICES
~ 3.3.1 Making revisions in drawings, specifications or other documents when such revisions are:
.1 inconsistent with approvals or instructions previously given by the Owner, including revisions
made necessary by adjustments in the Owner's program or Project budget; provided,
however, revisions to the Documents necessary to implement value analysis (also known as
value engineering) in the Construction Documents Phase shall be included as a Basic
Service provided that the revisions comply with paragraph 2.4.5.
.2 required by the enactment or revision of codes, laws or regulations subsequent to the
preparation of such documents, unless reasonably foreseeable by Architect;
.3 due to changes required as a result of the Owner's failure to render decisions in a timely
manner.
AlA Document B151.... -1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA-
Document Is protected by U.S..copyrlght Law and International Treaties. Unauthorized reproduction or distribution of this AlA" Document, or any
portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software at 18:02:14 on 08128/2006 under Order No.1 000200640_2 which expires on 10I3l2OO6. and Is notlar resale.
User Notes: (1927906464)
7
~ 3.3.2 Providing services required because of significant changes in the Project including, but not limited
to, size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and
contracting for construction; provided, however, revisions to the Contract Documents necessary to
implement value analysis provided by the Contractor and accepted by the Owner to bring the cost of
construction within the Targeted Cost (as defined below) shall be included as a Basic provided that the
revisions comply with paragraph 2.4.5.
(Paragraph deleted) f
~3.3.3 Preparing prawings, Specifications and other design documentation and supporting design data,
in connection With ,Change Orders and Construction Change Directives, unless (a) such Drawings,
Specifications and ,other design documentation and supporting design data where necessary for the
proper completion of the Project or (b) the revisions were necessary to implement value analysis provided
by ~he CO['ltractorand;~ccepted by the Owner to bring the cost of construction within the Targeted Cost in
which, casestlch sel"\lic~s; snfill be included in Basic Services provided that the revisions comply with
paragraph 2:4.5. " ,',' "
,g 3.3.4Providirig.ser:Vicesir\ connection with evaluating substitutions proposed by the Contractor and
maKingsubseqyelJt{eyi$iqhs to Drawings, Specifications and other documentation resulting therefrom,
,pro'v'id~d,:howev13r"suchs~r.vipes, to implement value analysis provided by the Contractor during the
;,prici~g pha$e.)of;t1;1El-Proj~9t:_aHd accepted by the Owner to shall be included as a Basic provided that the
. : revisions,:cqmply with paragr@h 2.4.5..
.' -,-, ..- .'.'.:' .:. ,'. .'"., ,-" .,',/
~'3.3;5 Providingcohsultati6n concerning replacement of Work damaged by fire or other causedur!Qg:f:,;
'construction, andfurnishihg'services required in connection with the replacement of such Work:' ",'
. . .
.' ';' , ."
g3.3.6'ProvidiIl9'sl3r.vices made necessary by the default of the Contractor, by major defects or.
deflclenciesinJhe:Wori<ofthe Contractor, or by failure of performance of either the Owner or Contractor
underthe Gontractjor Construction.
~ 3.3.7 Providing,servicesin eValuating an extensive number of claims submitted by the Contractor or.,
others in connection with the Work.
g3.3.8Providing'se.i'Vice,s illc6hhebtion with a public hearing, a dispute resolution proceeding or a legai
'~.. procee~inge.xce.PtWhere;t~~N~,~itect is party thereto. '
., ',.... .(::''':,!~'_:;;~:,::).'~'-i.' .,.
(Paragraph'dele.ted) ,."',ie, ";i,:,,.
"1'(
" .... .. .
" .'.' -.-', '.' ...
g 3.3.9 IhtElIitionaliYQmitted. '
, ':., ,........ '. '.': ......,..::: . ','.
3.3.10 TheQwnerac~nowledges that the Design Consultant requires that various mock-ups at one to one
scciJe'be constructeda~ p.~rt9fthe Project development to insure design, detailing, resolution and Owner
, apprbv~L'SerVice? related'to the design and construction of the Mock-ups shall be considered as an
Additional SerVice and billed at an hourly rate. The Design Consultant shall provide the Owner with an
anticipated mock-up scope, and a quotation estimate for the services needed to be performed by the
Design Consulfant ,and Architect and shall only commence work upon receipt of written approval from the
Owner.
" . .
, 3.3. hTheOvvner acknowledges that services related to the following are not included in the
BasicS~rvices-Fee, and if required, shall be subject to separate fee agreements with the
Owner, based!)n associated scope, cost and schedule parameters.
· RetEl,i! Shop interior space design, documentation and fit-out except that Store
Front design shall be included as a Basic Service
· Restaurant interior space, cafe and Kitchen design, documentation and fit-out
· Office interior space design, documentation and fit out
· Furniture selection, and/or design for the various interior spaces
AlA Document B151™ -1997. Copyright @1974, 1978, 1987 and 1997 by The Amencan Institute of Architects. All rights reserved. WARNING: This AlA-
Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlA"' Document, or any
portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software at 18;02;14 on 08/2812006 under Ordar No. 1 000200640_2 which expires on 1013/2006, and Is not for resale.
User Notes: (1927906464)
8
- Interior Design related to the existing SunTrust Building, except exterior
finishes
Interior Design for Apartments and Penthouse, except that the Interior Design
shall be "Designer Ready" such that the design shall be inclusive of
mechanical, electrical and plumbing, including lighting, flooring and finishes,
all of which shall be included inthe Basic Design.
- Upgrade and/or modifications to existing SunTrust building levels 3 through 8
except that any design services necessary or appropriate to incorporate
those portions of the SunTrust building into the Project as a consequence of
a contempiated shared or connecting fire stairwell such as HV AC, electric
s~stems, plumbing and structural, shall be included in the Basic Design
. " . ", " .
.-",,"', :"'- :";
~3.3.12Providingserv!6es/equired to prepare construction documents, bids, permits and administering
c?fl.stn,JctlonlftheproJ~c,t}i9?Carried out in more than the three (3) phases contemplated under I, II and III
.. 'd.escri~ec:l a~ove'as:th'e'Proj~ct.
.. , , . .~
~'3.40P,.IONAL ADPITIONAL SERVICES '
~ 3.4.1providinganaIY9Elll}of the Owner's needs and programming the requirements of the Project.
, ~
~ 3.4.'4 Providing special, sli'rveys, environmental studies and submissions required for approvals' of '.
govern"'!ental authoriries ~~'9thers having jurisdiction over the Project.
',-" " . ".
',:' " ' ': ' ." ~ '.: .,~. , ',' ":',': .' :. ." ,.
,~3,~,5J)rovidin!:rs~rvic~s)relative to future facilities, systems and equipment.
,:,".: :::., :<''',~;~):.'.>... .':.:<:_=c._.' _:<: I,:"' ".'.",'<':-..;.t~'/:.'~~'. :
:. ,- :':': "'-. .:'. !':'_7 ,:' '.~ .~. ': " ..". - . '."'"::
.~ 3.4;~ ProvidingserviCes,to investigate existing conditions, or facilities or to make measured draWings:
..thereof; ......, ...., .
~3.4.7Providin9, seryt~es t~;~~ri~the accuracy of drawings or other information furnished by tile Owner.
~3;4;8 Providihg coordinatiQ,I1 pJconstruction performed by separate contractors or by the Owner's own
, forces andcdordinationofi:$er,Vi~-eS{~.quired in connection with construction performed and equipment
supplied by the Owner,' . .,
" ..'
. - -.
, . ,
, ,
.~ 3.4:9 Providing services in connection with the work of a construction manager or separate consultants
"retained brth,e Owner~ "
. ~ a.4j1 0, pr~Yid.i~,~ dE:l!~iJ~gl~stirhates of Construction Cost.
~3.4.11prbviciirigdetailed quantity surveys or inventories of material, equipment and labor.
'l3A.12 Providirlg analyses of owning and operating costs.
~3.4.t3 Providing interior design and other similar services required for or in connection with the
, selecticih, procurement or installation of furniture, furnishings and related equipment.
~ 3A.14 Providing services for planning tenant or rental spaces.
~ 3.4.15 Making investigations, inventories of materials or equipment, or valuations and detailed
appraisals of existing facilities.
~ 3.4.16 Intentionally Omitted
AlA Document 8151"'-1997. Copyright @ 1974. 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA-
Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlA- Document, or any
portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. ThIs document
was produced by AlA software at 18:02:14 on 08/28/2006 under Order No.1 000200640_2 which expires on 1013/2008, and 1& not for resale.
User Note.: (1927906484)
9
~ 3.4.11 providing assistance in the utilization of equipment or systems such as testing, adjusting and
balancing, preparation of operation and maintenance manuals, training personnel for operation and
maintenance, and consultation during operation.
~3.4.18 Providing services after issuance to the Owner of the final Certificate for Payment, or in the
absence of a final Certificate for Payment, more than 60 days after the date of Final Completion of the
, Work, as Final Completion is defined under the Contract for Construction.
.~ :3,4.19 Providing anYi)ther services not otherwise included in this Agreement or not customarily
furnished i,naccordancewith generally accepted architectural practice.
~ 3~4.20 provid,ing'the s~rvices of special Inspections as required by code and governmental authorities.
~.. 3"4.2,1thirdipartype,r~'it!:i\and expediting costs.
'. .'. -".'
'. . ... . ,.,
ARTICLE4 OWNER,'S RE~PONSIBILlTIES
~ 4.1 The,Architect shall rely on the information provided by the Owner and the Design Consultant's
Sc:heri1aticDesign.and any other written information, where reasonable and appropriate that Owner and
Design'Consultant provide the Architect. The Owner shall furnish to the Architect, within 15 days after
receiptofa'lJ\f.ri~enreque~t,information necessary and relevant for Architect to evaluate, give notice of or
enforce:lienxights. ,'. ,. ."
, ,..
'. . . ;,.' .
~ 4.2.The Owner shall establish and periodically update an overall budget for the Project, includingJheJ'
Construction Cost, theOwnar's other costs and reasonable contingencies related to all of these costs,:
~ 4.3 The Owner shall designate a representative authorized to act on the Owner's behalf with respect:to,
the Project. The Qwneror,such designated representative shall render decisions in a timely manner
pertaining to. documents submitted by the Architect in order to avoid unreasonable delay in the orderly;'
and sequentialprogressof:the Architect's services.
~ 4.4 The Ownershall furnishsu'rveY!:i'to describe physical characteristics, legal limitations and utility
locations for the 8iteof the Project,~rid a written legal description of the site. The surveys and legal
".infbrmationshall'lncliJde,as applicable, grades and lines of streets, alleys, pavements and adjoining
. proj:>Elity and struct~res; adja~e:nt drainage; rights-of-way, restrictions, easements, encroachments,
zoning, ,deed restrictions, boundarie~ and contours of the site; locations, dimensions and necessary data
. .vvith:reSPEl9fto~xisting~tJil9ing!:i;'()tfler Improvements and trees; and information concerning available
. util~y'service8andlii:les;;bot~ppblic and private, above and below grade, including inverts and depths. AIi
the I nf.orm ation onthe~urvey shall be referenced to a Project benchmark.
~ 4.SThe OwnershalrfurnisHthe services of geotechnical engineers when such services are requested
by the Architect. Su~*s~rVict;ls:may include but are not limited to test borings, test pits, determinations of
soil bearing'\lalues, percolation tests, evaluations of hazardous materials, ground corrosion tests and
'resistivity tests; including necessary operations for anticipating subsoil conditions, with reports and
appropriate. recommendations.
. ; ...~ ,'."
~ 4.6 The Owner shall furnish the services of consultants including, but not limited to those designated in
Section 4.5 when such services are reasonably requested in writing by the Architect and are reasonably
.' requireqby the scope of the Project ("Owner's Consultants").
~4.7TheOwner shall furnish structural, mechanical, and chemical tests; tests for air and water pollution;
, tests for hazardous materials; and other laboratory and environmental tests, inspections and reports
required by law or the Contract Documents.
~ 4.8 The Owner shall furnish all legal, accounting and insurance services that may be reasonably
necessary at any time for the Project to meet the Owner's needs and interests. Such services shall
A.IA Document 8151™ -1997. Copyright @1974, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA-
Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any 10
portion of it, may result In severe civil and criminal penames, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software at 16:02:14 on 08/2812006 under Order No.1 000200640_2 which expires on 101312006, and is not for resale.
User Noles: (1927906464)
include auditing services the Owner may require to verify the Contractor's Applications for Payment or to
as,certain how or for what purposes the Contractor has used the money paid by or on behalf of the
Owner. '
~ 4.9 The services, information, surveys and reports required by Sections 4.1 and 4.4 through 4.8 shall be
furnished at the Owner's expense and the Architect shall be entitled to rely upon the accuracy and
completeness thereof.
(Paragraph deleted)
~ 4.10 Reasonable. notice shall be given by the Owner to the Architect or by the Architect to the Owner,
as the case may be, if the Owner, Architect become aware of any material fault or defect in the Project or
, material non"cpnformance with the Contract Documents. For purposes of this provision, "Material" shall
mean any informlltIq[ltl1alwould likely affect the quality and/or cost of construction or which would
ph<l;ng~inan?tii9:able,/wa(~he design or appearance of the Project.
ARTiCLES " CC>N~TRUCtION COST
~'54 DEFINI;tI,qt.j,/ ,/..'..........',
~5.1.1The .CohsJructlorfcdst shall be the total cost to the Owner of all elements of the Project designed
orspecified'pytMe-Arch/tect liS set forth in the Contract for Construction including all addendums,
amen9m~~ts'llh9'crllnQe 9(cl~rs thereto.
. ,.':", '.' ,. L-"", " ',". - " ,":i:;,.: ,;:~;
~5.1;.2TheC({nstru~t1oriC.6$t shall include the cost at current market rates of labor and materials
furriisi1edbythe.,9w.netand,~quipment designed, specified, selected or specially provided for by the, '
Architect, includiqg the costs of management or supervision of construction or installation provided I:>y.~a:,
'separatecoristnjcticii1mahag~r or contractor, plus a reasonable allowance for their overhead and ptdfit:'
In addition"aieasonableallowance for contingencies shall be included for market conditions at the time
Ofbiddingand'f.?~'9har:i9~s:inthe Work so long as they are included in the Contract for Construction.
..' ~ 5.1 ;3Cohstf~cti9bCbst does not'include the compensation of the Architect, Consultants, the costs of
i theland,tiglits~of"way'aild:financing or other costs that are the responsibility of the Owner as provided in
Articie4. . '
. "
~. 5.1.4Intention~lIy Omitted. .
" (Pa.ragraph(/eleted)
/,'" '.-
'~'5.2 RESPONSIBILlTY'F'ORDELJEVERY OF DRAWINGS WITHIN THE TARGETED COST
., . .... .
(Paragraph deleted) ..
, ,
~ 5.2.1 Intentibna,lI,y Omitted
\ -':, ,.0......' '_:',':_ .....::..,:'
H;2:2.Th~'prqjeGtshtr'g!;~~:j~t~:dll~a~~~~~ ~~;t!~at the Construction Cost shall not exceed"
. ..~ 5.2.3 In deWtlT1irlfng whether the Design falls within the Targeted Cost, the Architect shall be permitted
to include contingencies for design, bidding and price escalation, to determine what materials, equipment,
camponel'lt systems and types of construction are to be Included In the Contract Documents, to make
rea~ol'lableadJllstments in the scope of the Project and to include in the Contract Documents alternate
bid~as>maYb(fnecessary to adjust the Construction Cost to the Targeted Cost if any, shall be increased
.' in the .amount of an increase in the Contract Sum occurring after execution of the Contract for
COnstruction. ,; Architect may rely upon the Owner's Cost Estimator in determining whether the Design
falls within the Targeted cost.
AlA Document 8151 TM -1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA"
Document Is protected by U.S. Copyright Law and International TreatIes. Unauthorized reproduction or distribution of this AlA" Document, or any
portion of It, may result In severe cIvil and crimInal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was producad by AlA software at 18:02:14 on 08/28/2006 under Order No.1 000200640_2 which expires on 101312006, and Is not for resale,
User Notes: (1927906464)
11
~ 5.2.4 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits
the Construction Documents to the Owner, Targeted Cost shall be adjusted to reflect changes in the
general level of prices in the construction industry.
~5.2.5 Ifthe Targeted Cost (adjusted as provided in Section 5.2.3) is exceeded by the estimate of the
Owner's Cost Estimator, the Owner may, in its sole discretion:
.1 gives written approval of an increase in the Targeted Cost;
.2 authorize rebidding or renegotiating of the Project within a reasonable time; and/or
.3 coope~ate in revising the Project scope and quality as required to reduce the Construction
Cost, provided, however, Owner may elect, in its sole discretion, to terminate the Project. In
such event, Owner's sole financial responsibility under this Agreement shall be limited to the
Termination Expenses set forth in Article 8.
~ 5.2.6 If the OwnerchC?'o~es to proceed under Section 5.2.5.3, the Architect and their respective
Consultants, withoutadditi.onal compensation and as part of the Basic Services of the Architect shall
modify the designan(fthe~esign documents to comply with the Targeted Cost provided that the revisions
complyWithpEiragraph'2,4,:Sl. The Architect shall be entitled to compensation in accordance with this
Agreementf9r all services performed whether or not the Construction Phase is commenced, except that if
,own\3relects,'in its solec:lll:(cretion, to terminate the Project, Owner's sole financial responsibility under
this AgreerTu;mt shallbelimit~d to the Termination Expenses set forth in Section 8.1.
, . '-:' -,.' ~ -' " .'.:. .... ,/' ,',':,
. '-.' "",.' '. ,,'_' ','__' ..... N, :-'.'!
ARTI,Cll~6:~$E()FAF,I~HI.TECT'S INSTRUMENTS OF SERVICE
,,".. :.-. ..,- . . .:',."
"(Paragraph deleteq)' ",'
. ,.. .' .' ..
~ 6.1 The,jnteUectualProPerty rights with respect to the design and design drawings are owned by th'ei
, Herzog and deMeuron a~t~e' Design Consultant or as otherwise agreed between Architect and Design;
Consultant., ' ". . ,,'
",
~6.2 Upon the completion of th~ ,Pr()ject and upon the full payment of all sums due Architect and 'Design
Consultant; the Owriershall oWn~ILright, title and interest in and to any and all the Instruments of
ServicesandaJI qrawings, sp~qificatibns and other documents, including those in electronic form, and
including all ArchitectiJra,1 ConceptDesign, Schematic Design, Design Development, Construction
,;Dgcuruentatiqn,Co.nstn:iglion Administration, (the "Work Product") prepared by the Architect and/or the
.,D~sign,Consultantf6r the.!?i'o]epVprpvided, however, that concepts and elements which are not
'jncorporatecHnthe finaLPrc,Ject'$/:1aIFbe excluded from the Work Product. Furthermore, the Owner
abkhowledgesthatthe fiFlaIPt9J~btjncorporates and comprises certain unique, unusual or otherwise
distihctiVe design conc~pts, many of which (or the combination of which) are original to the Design
'. Consultant, and that nothing herein will prohibit the Design Consultant from using such concepts in other
proj~cts so long as such l,lseqoes not result In a structure which is materially the same as the Work
Product. .' , .
J
~ 6.3 The Owner shall use its best efforts to identify the Project as having been designed by the
Design Consultant and Architect in any media releases, descriptive brochures, marketing,
exhibits and similar materials concerning or making reference to the Work Product and on the
WorkPrpductto be used in such context. The Design Consultant and Architect shall have the
rightjo USE! theWork Product and the name "1111 Lincoln Road, Miami Beach" to identify the
. Projecfasa documentation of its experience and capabilities, including but not limited to
curricula vitae and professional resumes, in connection with design competitions or other
professional development, Including but not limited to submissions of the project designed for
consideration in competitions honouring design and in exhibitions.
Project Credit shall read:
AlA Document 6151 ™ -1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute 01 Architects. All rights reserved. WARNING: This AlAe
Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any 12
portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software at 18:02:14 on 0812812006 under Order No.1 000200640_2 which expires on 1013/2006, and II not for resale.
User Notes: (1927906464)
Design Architect: Herzog and de Meuron
Principal Architect: Zyscovich, Inc.
~ 6.4 Except in the case of a sale by Owner of the improved real property upon which the Project was
builtby or a sale of the Owner, the Owner agrees that in exercising its rights of ownership of the Work
Product, it shall not sell or otherwise transfer ownership of such Instruments to a third party, nor shall it
willingly or knowingly allow the Project or substantial parts thereof to be copied or implemented by
another Architectural finn, developer or building owner, without a direct or prior written approval of the
Design Consultant and Architect.
(Paragraph deleted) .
.~6;5 Copies o( thed()cuhlents that may be relied upon by Owner are limited to the printed copies that are
, sigr;.ed ahdseale(jby Archi,tect. Files in electronic media fonnat or text, data, graphics or other type that,
are\furnishedby'Archft.sc:tt,q Owner are only for convenience of Owner. Any conclusion or Infonnation
obtai~6~?rc"d.e~ived'fr.6ni;syCh electronic files will be at the user's soJe risk.
.~FmC~E] ,DISPUTE RESOLUTION
~ 7.1MEDIATION'.'
~7.1.1Anyclaim, dispute or other matter in question arising out of or related to this Agreement shall be
subject to mediation, provided, however, mediation shall not be a condition precedent to the exercise of
, any other remedies either at law or in equity. If such matter relates to or is the subject of a lien arising out
of the Architect's services, the Architect may proceed in accordance with applicable law to comply with
the Iierinotice or filing deadlines prior to resolution of the matter by mediation or by arbitration.
~7.1.2IntentionaUy Omitted.
~ 7.1.3 The pai1ie~ shall share the mediator's fee and any filing fees equally. The mediation shall be held
in the place where thEfProject is located, unless another location is mutually agreed upon. Agreements
- readhedilJi)'Jedi~t~on$haJJ be enforceable as settlement agreements in any court having jurisdiction
thereof.i n_ " ,
I
,
I
I
'" '- .
. " '. .
g 7;:Z1ITIGJ\TION ."
~ 7;2..1 Notwithsta.nding anything to the contrary contained herein or in any other agreement, the Circuit
Oourt:oftM Eleventh Judicial Circuit in and or Miami-Dade County, Florida shall have exclusive subject
matterjLJrisdictionover anycl!i!m, dispute or other matter in question arising out of or related to this
, . Agreernentorany agreementt~IEit~c;l hereto. The parties expressly waive any right to jurisdiction by a
United States District Oourt orfh~?C-9tJrt's of any other jurisdiction or country. The parties agree that
Ver:H,Jeandjurisdh;:tion sha!Ui~,~)(clusively in the Oircuit Oourt of the Eleventh Judicial Circuit in and for
Miami-Dade County, Florlda~' Zyscovich and Herzog shall be subject to personal jurisdiction in the Circuit
Qourt of the 11 t~JudiCi~1 lpircuit in and for Miami-Dade Oounty, Florida
.~ 7;2:2 In any Judgment Of verdict entered in any claim, dispute, or other matter in question arising out of
.... qrtelatedtci't!iis-"Agreement, the prevailing party shall be entitled to the award of it's reasonable
. ", at:torney~sjeesand court costs including any and all attorneys fees and costs incurred on appeal or in a
- bahkruptcyproceeding. However, in the event of a settlement of such claim or dispute, if any, the parties
agree that prevailing party attorney's fees shall not apply, and shall not be a consideration in any
settlement amount.
(Paragraphs deleted)
~ 7.2.3 TO THE FULLEST EXTENT NOT PROHIBITED BY APPLlOABLE LAW, EACH OF THE
PARTIES HEREBY KNOWINGLY, VOLUNTARIL Y, INTENTIONALLY AND IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY AOTION OR PROOEEDING TO ENFOROE OR
DEFEND ANY RIGHT, POWER, REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS
AGREEMENT, AND AGREES THAT ANY SUOH ACTION OR PROOEEDING SHALL BE TRIED
BEFORE A JUDGE.
AlA Document 8151lM -1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlAe
Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any 13
portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software all 8:02:14 on 0812812006 under Order No.l000200640_2 which expires on 10/312006, and Is not for resale.
User Notes: (1927906464)
ARTICLE 8 TERMINATION OR SUSPENSION
~ 8.1 If the Owner fails, upon fjfteen (15) business days written notice after a payment is due to make
payments to the Architect in accordance with this Agreement, such failure shall be considered substantial
nonperformance and cause for termination or, at the Architect's option, cause for suspension of
- --, -.--'-- .. .per.formance of services under this Agreement. If the Architect elects to suspend services, prior to
suspension of services, the Architect shall give seven days' written notice to the Owner. In the event of a
Justified suspension of services, the Architect shall have no liability to the Owner for delay or damage
", caused the Owner because of such suspension of services. Before resuming services, the Architect shall
be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of
the, Architect's services. The Architect's fees for the remaining services and the time schedules shall be
eqLJitablyadjusted,
~ 8.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be
compensatedJorservice~performed prior to notice of such suspension. When the Project is resumed, the
ArchiteCt shall becompensated for reasonable expenses incurred in the interruption and resumption of
, the Architect'sservil;:e~_;'."
. ,
~'8.3 If the?rojectll;Sl,ISperided or the Architect's services are suspended for more than 90 consecutive
dciys;the /\rchitectmayterm.inate this Agreement by giving not less than seven days' written notice.
. , . .'.' .-.
~8:4:Thl~Agr~(')rnentm~Yb~jterminated by either party upon not less than seven days' written notice
'~houlc::ltheot~erpartYfl:iiJ~gljstantially to perform in accordance with the terms of this Agreement through
. noJaulfotthepaftyinitiatiflgAhe termination.
. ., ',.. -,.,",,'
- , ".
. ..
. . ,
..'1 ~8.5 '''hisAgn~eri1entmaybe terminated by the Owner upon not less than thirty days' written notice"tb~ "
the Architect for the Owner's convenience and without cause. '
. -.. .
~8.6INTEN:rION.ALL Y DELETED
~ 8.7 In the event oftermiriation not the fault of the Architect, the Architect shall be compensated for
services performed prior to termination, together with Reimbursable Expenses then due and all
termination expenses as defined in Paragraph 8.7
. (Paragraphdeletect)'
";'-' " -..'..' ,..-:....
,':. :".:,' ,:.. '\"./ " ,
;{;" ::,::.>.- :>', ":'.'"',,: ,-:-::::-:::",,:.::...,
.,~.8~8:r~nTl'natiof.i'Expen~~s:.sffan.~;~an time billed plus actual reimbursable expenses incurred by the
'Ai'chitElct,andthe Consultants,pQorto the date of the Termination as set forth in Section 11.5.4, but shall
ihnOevent'exbeedlheperce'rltage'of completion of the total design of the Project at the particular phase
ofth~ Project desi9.~-o.n the aate of Termination.
ARilCLE9MlSCELLANEQUS PROVISIONS
~ 9.tThis AgreemerJ~ shall,pe,governed by the law of Florida.
~9.2 Te~msinthis'Agreement shall have the same meaning as those in the edition of AlA Document
A201, Generalponditions of the Contract for Construction, current as of the date of this Agreement.
~ 9.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be
deemed to have accrued and the applicable statutes of limitations shall commence to run on the later of
(a) ctat~ of Substantial Completion for acts or failures to act occurring prior to Substantial Completion, (b)
orthEldataof, is~uance of the final Certificate for Payment for acts or failures to act occurring after
Substantial Gcimpletion or (c) upon reasonable discovery by Owner of facts giving rise to a claim.
~9.4 To the extent damages are covered by property Insurance during construction, the Owner and
Architect waive all rights against each other and against the contractors, consultants, agents and
employees of the other for damages, except such rights as they may have to the proceeds of such
insurance as set forth in the edition of AlA Document A201, General Conditions of the Contract for
AlA Document 8151 1M -1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlAe
Document Is protected by U.S. CDpyrlght Law end International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any
portlDn of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA sDftware at1 8:02:14 on 08128/2006 under Order ND.1 000200640_2 which expires Dn 10/3/2006, and Is not for resale.
User Notes: (1927906464)
14
Construction, current as of the date of this Agreement. The Owner or the Architect, as appropriate, shall
require of the contractors, consultants, agents and employees of any of them similar waivers in favor of
the other parties enumerated herein.
~. 9.5 The Owner and Architect, respectively, bind themselves, their partners, successors, assigns and
legal representatives to the other party to this Agreement and to the partners, successors, assigns and
legal representatives of such other party with respect to all covenants of this Agreement. Neither the
Owner nor the Architect shall assign this Agreement without the written consent of the other, except that
the Owner may assign this Agreement to a lender providing financing for the Project or to a third-party
should the Owner sell the land upon which the Project is located or should Seller sell itself. In the case of
an assignment to Lender, the lender shall assume the Owner's rights and obligations under this
Agreement. The Architect shall execute all consents reasonably required to facilitate such assignment.
~9.6 This Agreement represents the entire and integrated agreement between the Owner and the
. Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This
Agre~rnentmaybeaJ1iend$(iI only by written instrument signed by both Owner and Architect.
~'9.7 Nothihg containedinJhis Agreement shall create a contractual relationship with or a cause of action
in favor of 'a,third partYag,ajrlst either the Owner or Architect.
..'~ 9.8Urllessotherwisepr6vid~d in this Agreement, the Architect and Architect's Consultants shall have
nore~pOnsibilityforthe'discovery, presence, handling, removal or disposal of or exposure of persons to
. haz~rdous materials or toxic substances in any form at the Project site.
~.9.9 The Architect and thebesign Consultant shall have the right to Include photographic or artistic.:'.
representationsofthe design'of the Project among the Architect's promotional and professional marerials.
The Architectshallbe given reasonable access to the completed Project to make such representations.
However, the, Architect's materials shall not include the Owner's confidential or proprietary informatiomif
tl:ieOwnerhaspreviously,advised the Architect in writing of the specific information considered by the:
Ownerto bec'onfig,entiaYor proprietary. The Owner shall provide professional credit for the Design
Consult8f,lt and ArcritecN.n the Owner's promotional materials for the Project.
fi 9;1 Olf the6wner.requ~sts th'~Ar(jhitect to execute certificates, the proposed language of such
certificates shaH besubmittedto.thErArchitect for review at least 14 days prior to the requested dates of
execution, The ArctiitectshiilLnot be required to execute certificates that would require knowledge,
'services:or r~sponsibiliti~s' b~}'()nd the scope of this Agreement.
,
!
I
I
I
!
'. , ..' ,'- ".' ',' .... ,,': ;- '",.-.~ .
fi9.11 The Architect shallperforrTlits;services in accordance with that degree of skill and care ordinarily
exerCised by similarly situa;tedmembers of Architect's profession involved in the design of similar projects
in the same locale as the Project. It is understood by the parties that the existing or constructed building
may, as a result of post-construction, use, maintenance, operation or occupation, contain or be caused to
contaJn mold substances which can present health hazards and result in bodily injury, property damage
'., ,~nd.(or nec::ess~JY remeqi~Lr:neasures and costs.
A'f!TfCLE10'PAYMENTS TO THE ARCHITECT
~. 1.0.1 IntentionallyOlTlitted
, (Paragraph deleted)
g 10.,2 REIMBURSABLE EXPENSES
g 1 Q.2.1 Reimbursable Expenses for the Architect and Architect's Consultants are in addition to
compensation for Basic and Additional Services and include expenses incurred by Zyscovich's and
Zyscovich's employees and Consultants directly related to the Project, as identified in the following
Clauses:
.1
transportation in connection with the Project, authorIzed out-of-town travel (Principals shall
travel first class) and subsistence, and electronic communications;
.2 fees paid for securing approval of authorities having jUrisdiction over the Project;
AlA Document 8151 1M -1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA-
Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlA- Document, or any
portion of it, may result in severe civil and criminal penalties, and will be prO$ecuted to the maximum extent pO$sible under the law. This document
was produced by AlA software at 18:02:14 on 08l2B12006 under Order No.1 000200640_2 which expires on 10I3l2OO6. and is not for resale,
User Notes:
15
(1927906464)
.3 reproductions, plots, standard form documents, postage, handling and delivery of
Instruments of Service;
.4 expense of overtime work requiring higher than regular rates if authorized in advance by the
Owner;
.5 renderings, models and mock-ups requested by the Owner If approved by the Owner In
writing;
.6 expense of professional liability Insurance dedicated exclusively to this Project or the
expense of additional insurance coverage or limits requested by the Owner in excess of that
normally carried by the Architect and the Architect's Consultants;
.7 Intentionally Omitted;
.8 ...,otherslrl1il~r direct Project-related expenditures.
.9' L(')ngdlstance communication, mobilisation and relocation costs of key personnel
hITecfspeCiftcally for this project, any project fees paid by the Architect and Design
,.Consultant.
. ~;
..
....;,.'.-
" : ...~,' .
~.10~3~2 Payments forBasicServices shall be made monthly and, where applicable, shall be in proportion
toserVicesperformedWithifl.e.,ach phase of service, on the basis set forth in Section 11.2.2.
.. ~10.3~:3 Hand to tti~.-extehnhat the time initially established in Section 11.5.1 of this Agreement is
exceeded or extended through no fault of Zyscovich, compensation for any services rendered during;the
additionalp~rlCldof time shall be computed In the manner set forth In Section 11.3.2.
~ 10.3.4 INTENTIONALLY DELETED
. .','.' .
~-, 0;4F.',~Y~ENT$ON .ACCOUNT OF ADDITIONAL SERVICES
Paym~rits oi' account of th,e Architect's Additional Services and for Reimbursable Expenses shall be
madehT1onthlyuponpresehtationoft~l3 Architect's statement of services rendered or expenses incurred.
t 10.,5 PAYME~TS WITHHELD
- .
(Parflgraphrf.eleted) ,
... -'-,~" ,,' ""- " . .' " ....'.. _. ..-,:--,
., ~h~Jid;a'b6'n~,fjde dispt.Jt~~*I$f;~~~l:Owner shall have the right to notify Architect's ,Professional Liability
_.ln~!lra[ic~;qolJiparlY'of a'cJ~iro;':~JJfrpending resolution of that claim, may withhold an amount of money
'..ci:lmmensurate withthe value6f the dispute, limited to the deductible amount of Architect's or Design
. ':'.G9Qsultant's .pr9fes~'ooalLjability Insurance Policy.
. .~. . ~;
t 10:6 ARCHITECT:SAGt:()lJNTING RECORDS
Fled6rd~OfReimQursable Expenses and expenses pertaining to Additional Services and services
,perform'~donthebasls of hourly rates or a multiple of Direct Personnel Expense shall be available to the
OWner or the Owner's authorized representative at mutually convenient times.
ARTICLE 11 BASIS OF COMPENSATION
The Owner shall pay compensation under this Agreement as follows:
(Paragraphs deleted)
~ 11.?BASICCOMPENSATION
t 11.2.1 For Basic Services, as described in Article 2, and any other services included In Article 12 as
part of Basic Services, Basic Compensation shall be paid to the Architect for:
AlA Document 8151 TM -1997. Copyright @ 1974, 1978. 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA-
Document Is protected by U.S. Copyright Law end International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any
portion of It, may result In severe civil and criminal penalties. and will be prosecuted to the maximum extent possible under the law. This documenl
was produced by AlA software aI18:02:14 on 08/28/2006 uncler Order No.1 000200640_2 which expires on 10/312006, and is not for resale.
Uaer Notee: (1927906464)
16
Dollars
- ; plus reimbursables as provide in ~10.2,
(B) Consultants Fees and reimbursables as provided in ~1 0.2,
.' , ' (C) Architect's Overhead Fee on Consultants Fees (but not the fee to Design Consultant) of_
~percent of the Consultants' Fees.
g11.2.1.1 The Consultants Fees, although paid by Owner to Architect, must be paid by Architect to
Consultants without unreasonable delay or set-off of any kind or nature.
, gH .2.1.2 For Basi.c Services, as described in Article 2, and any other services included in Article 12 as
part of Basic Services, BSiSic Compensation shall be paid directly to the Design Consultant by the Owner
for:
(A) A fee equal to
,(B) Herzog's reiin,bursable expenses which sum shall be fixed at
. .. .... ,. .. ;:-. ~ plus r~imbu~sables on.ly for: .
.. q(I)'tra~sportl'i~IQn In connection with the Project (Design Consultant's partners shall
travelfjrstClass" associates and project managers shall travel business Class);
(iirm~kups,)frequested by Owner and approved by the Owner in writing, (iii)
relocation>cos.tsOf up to three (3) employees of Design Consultant to Miami and
subseqUent return to Switzerland upon conclusion ofthe Project, upon written
apprbVal~bytt"le;;Owner; , , .
(iii)ahousing.allowance of _per month for each of Design Consultant's employees. in
Miami. ... ~,:
'~1.1.2.1.3 Consultemt'sFees shall mean the professional fees and expenses incurred by each 'Consultant
hired by the Arch itect and approved by Owner pursuant to the provisions of Section 2.1 above:'
. ,
..g1i.2.2;PrOgresspaymf)nts for Basic Services of the Architect in each phase are set forth below and
shall. be.invoiced monthly:
Retainer
Schematic Design Phase:
Design DeveIOPrrient)ph~~e:
Construction DocUrijeitlts - &;
Permitting Phase:
Bidding or Negotiation Phase:
Construction Phas~:
-
-
Total BasicCornpensation I
." ..
_i'~ 1.2.3 ..... ,.,., PrOgress payments for Basic Services of Design Consultant in each phase shall total the
f9!lowingpercentages of the total Basic Compensation payable to Design Consultant in the amounts set
. . forth below and shall,be invoiced monthly.
Schematic Design Phase: Thirty percent 30 %)
(
- Design Development Phase: Twenty-six percent 26 %)
(
Construction Documents Twenty-four percent 24 %)
Phase: (
Site Supervision Phase: Twenty percent 20 %)
(
AlA Document B151™ - 1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA"
Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlA" Document, or any
portion of it, may result In severe civil end criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software atl 8:02:14 on 08/28/2006 under Order No.1000200640_2 which expires on 10/3/2008. and is not for resa/e.
User Notes: (1927906464)
17
Total Basic Compensation
~' .
one hundred
100.00 . %)
g 11 ,2A Intentionally Omitted.
gtt.2.5 Design Consultant will be paid directly by the Owner upon written approval by the Architect.
fi 1112.6 Progress payments shall be paid monthly by Owner in proportion of the Work certified to have
been performed antifu(ther provided that Architect, the Design Consultant and Consultants have
delivered to Qwner ,lien Waivers for the full amount of the prior month's payments, if any. In no event
shall the a,rnount of progress payments exceed the percentages set forth in ~ 11.2.2 and ~ 11.2.3 for each
phase of the Work; ;~ '.
'(Paragraph del~ted)
"r;,"
(Rows deleted)
11.3 COMP,ENSATIONFQR ADDITIONAL SERVICES
~11.3.1 For Project Representation Beyond Basic Services, as described in Section 3.2,compensation
shall be computed asfollo'N,l)::
.~ 1t;3.2forAdditiQnaISf:m'ic.~s of the Architect and Design Consultant as described in Articles 3 and 12,
'othE3r'~halr(1)Additioria.1 Pr()ject Representation, as described in Section 3.2, and (2) services inclUded in
Arti.cle12 aspartofBasic.Services, but excluding services of Consultants (other than Herzog), ':,
qompensation shallbebilled,'~n an hourly basis using the rates set forth on Exhibit B to this Agreement.
. .,(Par,agraphs deleted) , '
'.
~',' ~< ):: > >''-:" ,:.': :," .-
"(Parcigraph deleted)
g11.4REIMBURSABLE EXPENSES'
For Reimbursable.Expense~,asde~cribed in Section 10.2, and any other items included in Article 12 as
Reimbursable Expense&,a :rnultiple of (1.05) times the expenses incurred by the Architect, the Architect's
~rnPloyees and corisulta~~~, <:IJ~~,~I:: related to the Project, except fOl reimbursable expenses of Herzog.
"..,~11;5ADDITIONAL PRQVISI()~$' "
. , ..g~j;5,1If,theBasic Serilc~sco\lered by this Agreement have not been cO'ipleted by the end 'of 2008,
,through no fault ofth!3Arphitect; the Architect's compensation for Basic Services shall be equitably
aqju~ted tocomperisate the"h\rchitect for having performance extended into a later period.
g 11.~.2 Payments are duef~6d'payable Thirty (30) days from the date of the Architect's invoice.
~mounts uhpaidForty~five (45) days after the invoice date shall bear interest at the rate of 1.00% monthly
, .
. ~ 11.5.3 The rates anq multiples set forth for Additional Services shall be adjusted in accordance with the
normal salary review practices of the Architect, but not more that once annually.
ARTICLE12QTHER CONDITIONS OR SERVICES
~ 12:1.1 For performing this Agreement the Architect shall use only consultants approved by the Owner.
g1~,1.2 The Architect shall use Suria Yaffar as Partner in Charge and Carlos Monteverde as Project
Manager. The Architect shall not change these assignments without the Owner's written consent, which
consent shall not be unreasonably withheld.
AlA Document 8151™-1997. Copyright @1974, 1978, 1987 and 1997 by The American Institute of Arch~ects. All rights reserved. WARNING: This AlAe
Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlAe Document, or any
portion of it, may resullln severe civil and crimInal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software 8t18:02:14 on 08/2812006 under Order No.1 000200640_2 which expires on 1013/2006, and Is not for resale.
User Notes: (1927906464)
18
~ 12.1.3 The Design Consultant shall be under the direct guidance of Jacques Herzog, Pierre de Meuron
and Christine Binswanger. Christine Binswanger shall be the Partner in Charge. Christopher Haas shall
be the Project Manager. These persons shall not be replaced without the written consent of the Owner.
12.2 Insurance
~12...2:1 At its sole expense, the Architect and each of them shall maintain the insurance coverage that it
normally maintains, including worker's compensation insurance covering all persons employed by the
Arqhitect in connection with the Project with statutory coverage limits, the minimum of which coverages
shall be at least: . .'
A. :Statutory workers compensation.
B;Employersliability with limit of $1 ,000,000 per occurrence and shall include coverage for the
Arphitect;sConsultants;
C. Comprehensive Gel)eral Liability for loss or damage because of bodily injury including personal injury
sicknes$,cliSeases6rde.at~pf any person and injury to or destruction of property, as a result of the acts
'or dmi~siQris})f,the,Arbhitec.!', its employees, agents or Consultants, including loss of use resulting
tMer~trb'mWlthiamil1ih1um,personal injury limit of $3,000,000 per occurrence and a minimum of
$4,9PO;OOQ'aggregat!3'. ' .i
O/ProfessionaILiabilit}drisiJrance of $1 ,000,000 per occurrence or claim.
E~ The owner shallhavethe unconditional right, at its expense, to require a change in the terms or
bongitionsof theihsurahcerequired herein or an increase in the limit of coverage.
, F, The lillbility Iimitsrequir~d,by this Article may be accomplished through the use of umbrella policies.
G:lh theevemtOwnerobtains any excess, or Owner's Protective Liability Insurance Policy that would
provide coverage' to owner for Architect's or Design Consultant's professional liability, owner shall provide
a copy of s~id policy to Architect and Design Consultant for review of any "other insurance" effect ort:,
Impactofsaidlnsurancepollqy. ,:; ,
~ ,12.3 The foliowingExhibits are incorporated into this Agreement:
. . ,
, ,
(a),'lnsuranc~,SpeGiflcations are annexed hereto as Exhibit A
"
,
.,'
;~.
.',
"'!.
"'\ ",,~
,. ", ...'j. :::",'i'
.(bJ. ,', PreliminarY,QutlineProJectSchedule is annexed hereto as Exhibit B.
:'"
" '""".
(fa!-~~kiiphdeletedJ "
l::~':"'~'::~'i:;,1':...
. ,_ ," ," "~';:',...I:_::.:"t,:';;:' .
..'. ':;/"-:;'-'~ ;.-:.,:):/>'.:~,>~-.
-'-,-."- ".. ,...:"
, .
(0), .<'H~WIy'Rate.Scheq~lei~,a-nhexed hereto as Exhibit C.
· (:f'(ll'qgraph deletlfd)'
':-"'.-,.",
.-.... '" ..... '-':
Lien Waiv~r~bythe Architect and the Design Consultant and Consultants to be
i,prClyiCledaJE~aiillElxed hereto as Exhibit D,
Matrixo.f RElsponsibilities Is Exhibit E
(Paragraph deleted)
AlA Document 8151™ -1997. Copyright @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AlA-
Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AlA- Document, or any
portion of II, mey resull In severe civil and criminal penalties, and will be prosecuted to the maximum extent pOSSible under the law. This document
was produced by AlA software aI18:02:14 on 0812812006 under Order No.1 000200640_2 which expires on 10/312006, and Is not for resale.
User Note.: (1927906464)
19
This Agreement entered into as of the day and year first written above.
OWNER:
..~.,~~EACH1'L~~ ~~
(~,.,ature)
By:; RoJJer+ S. We-,,,ef-J.
Hits:' ""q"&{il~y t1~j,e,.
1130349v2'....,. .;;":',
By:
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'</.'\ :" '. fed, par, '.,t'1e.1.s4"~.:,.,,:.>: U It!. L./-tP. I-r(J.
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b~,s,'''e;s "", ",..:.:" f) IfLv~re. ,,/Wlre
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. , ,.13)',., J)r ~:..,:"""., ".:;'~.fd /' /,/h Y (J.~"'f1 7~
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AlA Document B151TM -1997. CopyrIght @ 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: ThIs AlAe
Document Is protected by U.S. CopyrIght Law and International TreatIes. Unauthorized reproduction or distribution of this AlAe Document, or any
portIon of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document
was produced by AlA software at 18:02:14 on 0812812006 under Order No.1 000200640_2 which expires on 10/312006, and is not for resale.
User Notes: (1927906464)
20
-, Lyt'b,t/ f)-
ACORQ" CERTIFICATE OF LIABILITY INSURANCE I DATE (MMlDDIYYYYI
04/12/2006
PRODUCER (305)822-7800 FAX THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Collinsworth, Alter, Fowler, Dowling & French ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
P. O. Box 9315 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Miami Lakes, FL 33014-9315
Fab;ola Munoz INSURERS AFFORDING COVERAGE NAIC#
INSUREO ZYSCOVl ch, Inc. INSURER A: Lexington Insurance Co A++XV
100 North Biscayne Boulevard INSURER B:
Suite 2700 INSURER C:
Mi ami, FL 33132 INSURER 0:
INSURER E:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. N01WITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR IADD' TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIR"TION LIMITS
GENERAL LIABILITY EACH OCCURRENCE $
- DAMAGE TO RENTED
COMMERCIAL GENERAL LIABILITY $
- :=J CLAIMS MADE 0 OCCUR
MED EXP (Anyone person) $
-
PERSONAL & ADV INJURY $
GENERAL AGGREGATE $
GEN'LAGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $
'I POLICY n ~~8r n LOC
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT
I-- ,(E~ accident) $
ANY AUTO
I---
ALL OWNED AUTOS BCioIl. Y INJURY
f-- (per per8on) , " ':,$,'-
SCHEDULED AUTOS '.
-
HIRED AUTOS BOOR. Y INJURY
- (Pi" accident) $i
- NON-oWNED AUTOS
- PROPERTY DAMAGE $
(per accident)
GARAGE LIABILITY AUTO ONl. Y - EA ACCIDENT- $
~ ANY AUTO OTHER THAN EA ACC $
.' AUTO ONl. Y:
AGG $
EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE $
:=J OCCUR 0 CLAIMS MADE AGGREGATE $
$
=J DEDUCTIBLE $
RETENTION $ $
WORKERS COMPENSATION AND 1.r;.~,J;fo.~~ I I 0J.tl-
EMPLOYERS' LIABILITY E.L. EACH ACCIDENT
ANY PROPRIETORIPARTNERJEXECU1lVE $
OFFICER/MEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYE $
" yes. describe under E.L. DISEASE - POLICY LIMIT
SPECIAL PROVISIONS below $
OTH~ . 1 L i abi 1 i ty 4179052 04/02/2006 04/02/2007 $1,000,000 each claim
Pro eSSlona
A 8aims-Made Form $5,000,000 Policy aggregate
. Retrodate: 4/01/1977
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS
CERTIFICATE HOLDER
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POUClES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL
~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY
OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES.
" S P E C I M E N " AUTHORIZED REPRESENTATIVE _~4.&,"~~.,
Meade Collinsworth/FVM
ACORD 25 (2001/08)
PDF created with pdfFactory Pro trial version www.pdffactorv.com
@ACORD CORPORATION 1988
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights to the certificate
holder In lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it
affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.
ACORD 25 (2001/08)
PDF created with pdfFactory Pro trial version www.odffactorv.com
, f .. Client#: 11061 'J ~ h ,. r- ZYSIN
ACORD", CERTIFICATE OF LIABILITY INSURANCE I DATE (MMlDD/YYYY)
01/16/2006
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
HlIb Rogal & Hobbs/So Florida ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
201 Alhambra Circle, #1100 ALTER THE COVERAGE AFFORDED BY THE POUCIES BELOW.
POBox 141308 -
Coral Gables, FL 33114-1308 INSURERS AFFORDING COVERAGE NAIC#
INSURED INSURER A: Transportation Insurance Companies
Zyscovich,lnc. INSURER B: Valley Forge Insurance Company
100 No. Biscayne Blvd, Suite #2700 INSURER C:
Miami, FL 33132 INSURER D:
INSURER E:
dE
fj
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDEO BY THE POLICIES DESCRIBED HEREIN IS SUBJeCT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAlO CLAIMS.
lYPE OF INSURANCE POUCY NUMBER P~A~~J~ TIVE POUCY EXPlRAll0N LIM1tS
LTR NS'" D
A ~NERAL UABIUTY B2022994932 01/14106 01/14/07 EACH OCCURRENCE $1 000.000
~ 5MERClAL GENERAL LIABILllY DAMAGE TO RENTED 550 000
I
- CLAIMS IAAOE CKl OCCUR MED EXP (Any one person) 55 000
PERSONAL & ArN INJURY 51.000 000
GENERAL AGGREGATE 52,000 000
~'LAGG~rii ~~MIT APnS PER: PRODUCTS - COMPIOP AGG 51 000 000
PDLICY X J~ LOC
A ~UTOMOBlLE UABIUlY B1 07378301 0 01/14/06 01/14/07 COMBINED SINGLE LIMIT
~ ANY AUTO (Ea accident) 51,000,000
- ALL OWNED AUTOS BODILY INJURY "
SCHEDULED AUTOS (Pel' pelSon) ,$ ,
-
~ HIREO AUTOS BODILY INJURY
~ NON-OWNEO AUTOS {Pel' accldonll $
PROPERlY DAMAGE 5
(Per accident)
~GE UABILIlY ' AUTO ONLY - EA ACCIDENT 5
ANY AUTO Ol1-lER THAN EAACC $
AUTO ONLY: AGG 5
A ~~SS/UMBRELLA UABlUlY B1077123463 01/14/06 01/14/07 EACH OCCURRENCE 53 000 000
X OCCUR D CLAIMS MADE AGGREGATE $3 000 000
$
;:J OEoucnBLE 5
X RETENTION $10000 5
B WORKERS COMPENSATION AND WC406650790 01/14/06 01/14/07 X I WCSTATU. 10m.
EMPLOYERS' UAslLITY 5500.000
ANY PROPRIETORlPARTNERlEXECUTlVE E.L. EACH ACCIDl!NT
OFFICER/MEMBER EXCLUDED? E.L, DISEASE. EA EMPLOYEE 5500,000
~~~Mr~~v'j';/~~s below E.L. DISEASE. POLICY LIMIT 51,000,000
OTHER
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAl. PROVISIONS
COVERAGES
CERTIFICATE HOLDER
CANCELLATION
SHOULD AHY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
For Information Only DATE THEREOF, THI! ISSUING INSURER WIU- I!NDEAVOR TO MAIL ....3Q... DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO so SHALL
IMPOSE NO OBUGATION OR UABIUTY OF ANY KIND UPON THE INSURER. ITS AGENtS OR
REPRESENTAllVES.
AUTHORIZED REPRESENTATIVE
..----
ACORD 25 (2001/08) 1 of 2
#S72781/M7278D
JXO
Ii) ACORD CORPORATION 1988
".
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights to the certificate
holder in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the issuing Insurer(s), authorized representative or producer, and the certificate holder, nor does it
affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.
ACORD 25-8 (2001/08) 2 of 2
#S72781/M72780
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EXHIBIT C
ZYSCOYICH.INC. 2006 HOURLY RATE SCHEDULE
Managing Principal
Principal
Senior Associate
Senior Project Manager
Project Manager
Senior Architect
Senior Designer
Senior Planner
Senior Interior Designer
landscape Designer
Project Architect
Job Captain
Interior Designer
Designer
AutoCAD Technician
Landscape Designer ,
, Senior Field Representative
Reid Representative
IT Manager
IT Staff
AdminiStrative Staff '
......;,1.., ......:
IN-HOUSE REPRODUCTION' CHARGES' . (PER SOUARE FOOT)
SMALL SCALE PRINTING.
Black & White on Bond Paper
Color on Bond Paper
Color on Glossy Paper
LARGE SCALE PLOTTING
Black & White on Bond Paper
Color on Bond Paper
Color on Glossy Paper
P,HOTOCOPIES
8.5 x ((
II x 17
ELECTRONIC FILE REPRODUCTION
Compact Disk (CD)
,I..', .
,.or
EXHIBIT D-3
SUBCONTRACTOR AFFIDAVIT AND
PARTIAL RELEASE OF CLAIMS AND LIEN WAIVER
,~j
",t
~'
STATE OF
COUNTY OF
)
) 55.
)
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be a credible person and, officer of
("Subcontractor"), and who, being duly sworn, upon his oath declares and acknqwledges
as follows:
1. I am the duly authorized agent for Subcontractor which has authorized me to
make this affidavit, to enter into the agreements and to grant the lien waivers
herein set forth, on its behalf and as its acts and deeds, and all the recitations
herein are true and correct.
2. Pursuant to an agreement dated " 20 between
Subcontractor and , a
corporation ("General Contractor"), Subcontractor
has supplied materials and performed labor in connection with the
construction of improvements upon certain real property in the
described in Exhibit A attached hereto, by this
reference ("Land"). Said improvements are more particularly described as
and related improvements ("Improvements").
3. Subcontractor has rec~ived payment in the amount of
Dollars ($ ) [Insert total of all payments received to date]: for all
materials supplied and labor performed by or on behalf of Subcontractor in
connection with the construction of Improvements during the period through
. [Insert date of end of prior progress payment period.]
4. In consideration of and conditioned upon the payment by General Contractor
of the sum of Dollars ($ ) [insert total
amount requested in present Application for Payment], the sufficiency of
which is hereby acknowledged, Subcontractor hereby waives and releases
any and. all liens, claims, rights and interests (whether choate or inchoate and
including, without limitation, all mechanic's and materialmans's, liens under
federal law or the statutes of the ) owned, claimed or
held, or to be owned, claimed or held by Subcontractor in and to the Land
and Improvements, whether or not affixed to or severable from the L,and or
from any other portion of the Improvements, and/or against the Contractor,
the Owner and any other person or party having any ownership 1~~~I~~t in
such Land and Improvements, to the full extent of the amount set dlft, ~bbve
with regard to the work paid for by or on behalf of the Subcontractor.
5. Su!Jcontractror warrants that all costs incurred and bills owed by
Subcontractor to others for materials supplied or labor performed in
connection with the Improvements through [insert date of
end of prior progress payment period] have been fully paid and satisfied.
"
\:. .
. ,~ :..:
" "
l..'-: '.
t~'# I' . l . :
',' ~.,'J . '!' ~ :
~ I:: "
i,', .
Subcontractor does further warrant that should any claim or lien be filed for
material supplied or labor performed by virtue of Subcontractor's participation
in the construction of said Improvements, Subcontractor will immediately
furnish a bond for the release of each such claim or lien, obtain settlement of
any such claim or lien and furnish Owner and General Contractor a written
full release of such claim or lien. Should Subcontractor be unable to obtain
such release, Subcontractor agrees to fully indemnify, defend and hold
harmless General Contractor and Owner for any and all costs, including but
not limited to attorneys' fees, any of them may incur by reason of such claims
or liens.
EXECUTED this
20_,
day of
SUBCONTRACTOR
By:
Title:
SUBSCRIBED AND SWORN TO before"me the said Subcontractor Affidavit and Partial
Release of Claims and Lien Waiver this ~ day of, . 20 , to
certify which witness my hand and seal of office.
NOTARY PUBLIC in and for the
My Commission Expires:
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
1111 LINCOLN ROAD
MATRIX OF RESPONSIBILlTES
fY~br ;;
Project 279 1111 Lincoln Road Miami
Report Exhibit C_Matr1x of ResponsIbIlltH FIrm
1 OWner UIA Menagement LLC
H8IZDg & de Meuran (H&deM)
2 Design Archllect (HllROlI & de Meuron US Inc, forworlt conducted In the USA)
3 Local ArchIled Zyacovtch
4 OWners IllPI'IIlIlnlllllv8 O8\IeIOpment Servtce SaluItonll, LLC
5 SInJc\IlrlII EngIneerIng SIlO HappcId
6 MEP Engineering PBS&J
7 CivIl EngIneering PBS&J
e LaJdscape & Herdscape design Jungles Landscape Archllecls
9 Per1<Ing Consullenl Tlmolhy Heahs partmg ConsLltanls
10 FirlI COde Consultant R.D. Hale, Inc.
11 Geotechnlcel EngInelimg to be selected
12 Transportation Engineering to be selected
13 General Conlrlldor to be selected
14 Plan Expeclter PronlO Permits
15
Subtitle
Dale
KEY
P
S
The Matrix is based on esslstance end coIisboration wlth OVerall 0e8Ign end ConsUltant teem
Also refer to conlrecl for fLfIher intormeUon
5chemellc 0e8lgn IhroUgh Construction AdnWIIstra1Ion
June 12 2006
Abbrevlelion
UIA
H&deM
Z
oss
BH
PBS&J
PB5&J
JLA
THPC
RDH
GE
TE
GC
PP
"Primary Reeponslblllly" mains reeponsiblllty for the pcoper end tImllIy complBlion of thllIIk In question
"Support Roll" mel"" pIOVIdlng, ill proper ond IImIIy mlmor. lhoBe lorvlcII w1thilthe aupportilg pIIlty'l
lII'IIIl of perticul8r rnponllblllly ond compelencl reuonobly lIqullld by 1h1!*1l' with pr1mIry rupon8IbIIty to complBll
!he l18li10 quetlion
"COIlIlIl8Ilts end Review" means providing. In I tImIIy mamer. such commentsu I porty moy have on doalments
or o1her metertlls prepared by the perty with primary responsibility for the task in quea1lon.
"lnfonnation only" means e porty Is entIIIed to be Informed with 18spllCl to the task but haS 00 I8spOOSIbIIly unless they l'llCOllIlize en Issue exists I'IIqUIrlng BCtion
C
t9:z.......
,':-:-:';"/ .':-:';':-:-:':-' ,l'
SCHEMATIC DESIGN PHASE dz:': .-:::~e?'
....,...] <' /:...... ...... /' A
..... ........ ....
Project meneglmenl .;.;.p:.;. S .:-:-:-x:-:.:-:-
Cleo! conference. :-:-)l.:-: S :-:-:-:0:-:-:'; .;.,:-:
Design MeeUng M"llutes ';';1':-:- s :::::::~:::::::
Provide program requirements :::::s:::: S ,;.:-:.:p.-:.:-:.
Program anllly.i. :-::~.:-: S ::::::::,::.;::::
SIIaA""iy118 .;.;.p:-:- S ':-:':-:1:':';':'
Spece requil8ments ,,"d I8lalionahlp .:-:-~:.;. S ::::::::<;:::::::
BuDding Ind zonilg code enaIy8II :.;.:8.:-: P ::::::::,::::::::
PreparaUon of Independent Cost Eatlmatea ::.::S:-:- S ':-:-:-E';.:-:- P:PBS&J ..
Review of OWner's Con8truClion Cost Eslinate Ilncl ProjIlCl Budget :-:-:s.;.; P :-:-:-:0:-:-:': S:DSS
Eatablsh & monitor schedule schem8Dc phase .:-:-*:-:. P :::::::~::::::: ..
Prepa18Uon of SchemIl1ic 0e8Ign Phase Oo<unenll _ on assIslance end coU_1ion with Design team:
SIte plan . building only :-:';';0;';':'; ..
B8Ie Pmanun .........,:......
:::::::0::::::: 8: THCP (,.rtdng)
FIoorplaOl rMIll cOlllUlWd
.. ..~.., ....
Core I8youts ;':';,:0:,:';.:
. ..
ElevIlllon8 and building sIlCllons .:.:.;.:c:.:.;.;. .. .
Design guklelinel :::::P:::: 8 .;.:.:.~.;.:.;. ....
Extertor cladding end roof finiSh :':':P.':': S :::::::0:::'::: .. .
0IalrlIMl0n of drawingI ';';it:.:. P .;.:.:.)(.;.:.:.
.. ..
Cc>ordinate appointment of consullanll ::::~:::: P :':':':0:':-:'; ..
Praper8tion 01 M.E.P. Structural. and CIvU Plans end/or NerTadvea :-;.:c;;.;.: S :::::::~::::::: P: PB8&J
CoonInauon of 8IrUduraII mechlIntceV plumbing IIIect1IcII COIl8U1Ing engineenl .;.::S;.:- P .:.:.:.;C.;.:.;. C
Rendellngs. models, photography, brtlChur& production. (If reqUrad adcIlIonaI service) ::::~:::: S ;.:.:.:tl:.:.;.:
CoIIalion of c:ompIeted schemaUc design docunenll .;.:-s;.:. P .:.;.:.~.:.:.:. ..
PrISlllllllion of schematics to owner :::::P:::: s .:.:.:.:c;;.;.:.:.
selection of major buIdIng material. ;.;.:p..:.; S :':':::0::::::: S:OSS ..
Par1dngIIraIfic review and Ope18tion ';';0:'; S .;.:.;.;C.:.;.:. P: 11tPC
Technical quelily conlIOl and code compllan<:e ::::~:: P ;';':';'1';':';':
Preparation of Landscape PlIIlI and/or NllTltlves ;.;.i.; c :::::::~::::::: P: JIA
1of5
Procluced by Pertlcipenlt
Rev\secl8-12-2008
Print dllle lII28I2OO6
1111 LINCOLN ROAD
MATRIX OF RESPONSIBILlTES
"Primary Responslblll\y" means responslbllly for the proper and timely completion of the task In question
"Support Role' means provkfllQ, In a proper end timely mamer, Ihose 88lVk:8s wIlI1ln the supporting party's
areas of particular respon&lblllly and ~etenC8 rellSOl'l8bly reqIJred by the p8I!y with pr1mary responstbIIly \0 complete
the 18sk In quelllon
"Cornmentl end Rovlaw" means providing. In a timely manner, such commenla.. a pwty rney have on documents
or other mel8r1eli propered by the party with prImery responsibility lor the 18sk In qLl8S11on.
"Information only" means a party Is entitled \0 be Informed with respocl \0 the task but has no responsibility unless thay racognlza an Issue exists requiring action
Projecl 279 1111 Lincoln Road MlElll1l
Report ExhIbitC_MaIrlxofResponslllllliE FInn
1 own.- UIA MlDIg8I1l8Ilt LLC
HlllZOO & da Mowon (H&d8M)
2 0esIIJl Arcl1iIacI (H8lZOlI & da Mouron US Inc, Iorwork conQJcled In the USA)
3 Local ArchIIacl Zyscovlch
<4 Ownelll represenlaUve DevaIDpment SeIvIca SolutIona; LlC
5 Suuctural Engineering Buro HoppoIlI
6 MEP Engineering PBS&J
7 Civil EngInallllng PBS&J
8 Landscape & Hardscape design Jungles Landscape Archil8cla
9 P~ Consullanl llmothy Haehs Parl<Ing ConsuIIanls
10 Fte Code ConsoAlanl R.D. Hale, Ine.
11 Geotochnlca/ Englnaorlng to be selecled
12 Transportation EngIneering \0 be satected
13 General Contractor to be selected
1<4 Plan ExpedIter Pronto PennIls
15
Subti1le
Dele
KEY
P
S
The MaIr1x Is based on esolslanc8 and colllboration with OV8l'II1I Oeslgn and Consultantl8em
AIao refer to contr8Cl forfur1her Information
Sc:hemaIfc Oealgn through Construction AdmlnlstreUon
June 12 2006
c
AbbreYlatlon
UIA
H&deM
Z
DSS
BH
PBS&J
PBS&J
JLA
THPC
ROH
GE
TE
GC
pp
.........% /.-............... /1'
DESIGN DEVELDPMENT PHASE AZ::" ..::~~e:::" A
........;:'/ ......... ......
Project manllgement r::::f::::1 P F:-:-:-:(;.;.:-:~
Meettng Minutes - General. MIami meeDngs w/cOnSultanIs. dIy lIU1horItieI ::-:0:';: P .;.:.;.;c.:.:.:. C:D88
. ..
Meeting Minutes. Oeslgn/Cllenl ~ . Chrts :-:-)!.:-: s :::::::~:::::: C:D88
Clent conlef8ncas . design :.;.:p..:.: s :::::::~::::::: :::':::'
CoorllInatlon of _V mecI1anlcaV plumblngleleclliceJ consulting engineers :::::s:::: P .:.:.:.:G:.:.:.:. . ..
Coordination and InCllfJlOl'lltion of design details and specWIcetlons recommended :-:-:s.:-: P :-:':':0:.:.:.:
.. .
or propered by other sub- oonsult8nt1e.g. c1adcing, elevator, lendscape elc.
Selacllon or major buIdk1g metarlal ::::~:::: S ::::::::(;::::::: 8:DSS ..
preperetton ollnclepandent Cost Estlmatas :-:-:G:-:': S :::-:::(j::::::: P; P88&J ..
Revtew of Ownef's eonslnJctlon Cost Est1ma18 and PRlject Budget ':';0:-:- S .:-:-:-:s-:.;.:. P:D88
Establish & monitor schedule for schematic phase :::::~:::: p :-:-:-:C:-:-:-: ..
Preparation of Design OeveloPffillnt DoCUments based on assistance end collaboration with Design team:
SIte plan . building only .. ..
Base Program :-:-:-:<J:-:':-: ..
Roof end Floor plans :::::::~::::::: ..
CaI1Ing Plans ::::::::e;::::::: .. .
Core 1aycu1S :::::::(j:-/: ..
Perldng/trllllk: reYlew and Operation .. .. .0. ..0 P: THPC
.. 0" S ....E....
.. .. '0' ...
..... ....... . . .
lnIer10r layouts and plans I::::~::::I S I:::::::~::::::- ....
BeveIlons and buildilg seclfons 1:-.-:;'..::1 S I:::::::~:::::::
OeYeolpment & coordination of outI1n8 spscIficatlon ':':':':G:':,:':' C: DSS ....
Ralinement of llX\8Ilor cladding and roof tInIsh :::::P.:::: S :-:';':0:.:-:': ...
OIstribuUon of drawings ':-:-8:-:- P :::::::~:::::::
Technical quality control end code compIIence ::::~:::: P ::::::::1::::::::
CoordIn8t1on of mock. upe prepared In In the U.S. (addltlon8l service) :-:-:p..:-: S :.:.:::(j::::::: ..
Coordlnation of mock. ups prepered In SWitzel1and -:.;.p:.;. S ':-:':-E-:':':'
Review pians with applJcabls agsncIal - P :-:-:.;.\.:.;.:.: :::~:::
CoordinaIIon of renderings, models. phologrephy and bro<:/1ljres (ff required acklltionaI service) :-:.:P,.;-: s :::::::t4::::::: ..
Ccordlnallon and coIla1ion 01 completed design deVelopment documenta :::::s:::: P .:-:.;."..:-:-:- ..
Presentation 01 delign davelopment documentlto owner ::::~-:-: s :';';';0:-:':-' ..
Preparation 01 M.E.P, SI/UctUlaI, CMl and I..andacapa Plans, Narreti_ and SpeclIIC8tlons -:.:C:-:. S :::::::~::::::: P; P88&J ..
CcordlnatiDn of M.E.P, Slructural, CIYII and Landscape Plens, Narratives end SpeclIk:allons ::::~:::: P ::::::::((::::::: P:P88&J ..
Coordination end Incorporation of Spacl8Ity Consull8nls :.:::&.::: P :::::::(j::::::: C
.. .
2of5
Produced by Participants
Revtaed 6-12-2008
Print dale B/29I2Ollll
1111 LINCOLN ROAD
MATRIX OF RESPONSIBILlTES
project 279 1111llncoln Road MIIlIT1i
Report Exhibll C_Matrix of Respomtbllltie Finn
1 owner UIA MlIl'l8lI"ll1ent LLC
Hmog & de Meuron (H&deM)
2 Design ArchItecl (HelZllll & de Meuron US Inc, for ~ concIucled In the USA)
3 Local ArchI\eCl ZyacoyIch
4 OWners representallve DewJopmenI5erVfce SoUlons, LLC
5 Slr\JCIUrIII EngIneetIng Buro HeppoId
6 MEP EngIneering PBS&J
7 CIvI Engineering PBS&J
8 Landscape & H8rd8C8Pfl design Jungles Landscape An:hlleots
9 PIIr1dng ConIUll8n1 TImoIhy Haaha Pd1g CcnauIlanta
10 Ara Colle Consu1l8nl R.D. Hale, Jnc.
11 Geotechnical EngIneer1ng \0 be HIeCl8d
12 Traneportation EnglnMrinlI to be Ietecled
13 General Contractor \0 beaelBdBd
14 Plan Expedller Pronto Patmlt&
15
Subtitle
DlIIB
KEY
P
S
The Matrix Is based on assistance and collaboration wilh Overs. Design and COO6UItanlleam
Also refer to cantracl forfOOher Informallon
ScllBmellc DesIgn Ihrough Construction AdminislraUon
June 12 2006
Abbr....1Ion
UtA
H&deM
Z
DSS
BH
PBS&J
PBS&J
JLA
THPC
RDH
GE
lE
GC
PP
"Pr1m8Ty Responslblllly" means responslblllly for Ihe proper end tlmaly compleUon of the task In question
"Support Role" means providing. In a proper end linely manner, tho.. 88Mces wllhIn the supporting party's
areas of pBJ1icular rasponsibilly and competence rallllOl1llbly required by the party with pr1mary rasponslbllity to complete
the task In ques1lon
'Comments and Revlaw" means providing. In a Umely manner, such comments as a party may haVa on documents
or otlar materials prepwed by the party with prtmary retponslblllly for the task In question.
"Information only" means a party I. enDUed to belnlormed with respect \0 tha task but has no rasponsIbIlIy unleMthey recognize an Issue exIa1s raqulring action
C
CONSTRUCTION DOCUMENT PHASE
PItljecI management
MeeUng M_
ClIent conIalWlCBS
Preparallon ollnclependent Cost EslinBes
RavleW of OWnel's Conslrudlon Coat e.tImete and ProjBd Budget
E8l8blIsh & monIor drawlng schlIduIlI
Revlewfer lIdhel8llCB to design Intent
EstablIsh 5alpe of conIra<:l doamenIs
Prapal8tion of COrl8INCtIon DocumenIs
based on essistance and coIabor8lIon with DesIgn team
An:hll8clural working drawings
DlIl8Ia fer the buIdlng anclosure and cladding
Speclflcallon8
Anlsh..
Submlttel of consIruction documents to applicable agencl8s
Submlttel of conslnJcIion documents to _
Coordinallon wilh Landscapa Architect
Coordination 0/ engineering seJVlces
Coonlinatlon 01 mock- ups and prtlIo\yP8S prepared In Iha U.S. Of required addlllonal SeMce)
QuIIIIly ConIroI for Design Inlent edhBr8nce
Code Comp11anc8
Preparation 01 BuIldIng Pennll Documents
Prepare end submill8qUlrad drawings fer pennlt
Raspond 10 Code Revtew questions and cornments.
30/5
Produced by Plll1iclpants
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P:PBS&J
P:DSS
C:DSS
8:DSS
8:DSS
c:pp
C:PP
Revlsad 8-12-2006
Pr1n1 clet8 llI29I2OOll
:::,.:::
:::~::.
:::1::
.;'1I;':
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~
1111 LINCOLN ROAD
MATRIX OF RESPONSIBILlTES
Project
Report
"Pr11T18fY Responslb~ means responsIblllly for the proper and timely completion 01 the task In qu&81Ion
"SlJpport Role" means providing, In a pIOpef and timaly manner, those servIcas W11h1n the supporUng party's
arees 01 partlcular responsibility and competence I88sonably required by the party with prmuy responslblllly to compIet8
the task In question
"Comments and Review" means provklng, In elknely manner, such commenll ..I party may have on doalments
or other m8l8tlell prepared by the Jl8rty with prlmlIlY responslbllly for the task In quesllon.
"nlormaUon only" maans e pll/ly 18 entlUed to belnlo1med with respeclto the task but hea no Ill8JlOIlIIbIII unINs IhBy recognize an IaauB exlala requlrlng acUon
279 1111 Uncoln Roed Miami
EJChIbIl C~8lllX or R88IlOI1IIlIIlk FrIll
1 Owner UIA Management LLC
Helzog & de Meuran (H&deM)
2 DetIgn ArchIIect (Herzoll & de Meuran US Inc, for WOf1( conducted In the USA)
3 LoceI M:hitecl ZySCOYtch
4 OWners I'8Jl/BsentaUve Development SarvIce SokJIions, LLC
5 Structural Engineering BIro Heppold
6 MEP EI1ll1~ring PBS&J
7 CM Engineering PBS&J ,
B LandlCBpe & Herdlcape delign Jungles Landlcape Arc:hItecta
9 PBI1dng Conaultant T1moIhy Haahs Par1dng Consultantl
10 Are Code Consultant RD, Hale. Inc.
11 Geotechnical engineering to be selected
12 Transportallon Engineering to be selected
13 General Contractor to be setected
14 Plan Expediter Pronto Pem1ls
15
Subtitle
Date
KEY
P
S
The Mall1x II based on esslstence and collabor8tIon with 0venII1 Daslgn and Consull8nt learn
AI80 mer to conlrBcl for further inklImBlIon
Schllll18l1o eellllll through Constructlon AdmlnlatrBflon
June 12 2006
C
BID AND NEGOTIATION
Project Management
Reproduction and dlllr1bullon of plana end lpecIflcaUons
Conduct pre-aw8rd bid toura and contarences
Prepar8l1on 01 eddenda
Process or contrectofs quesUons and Informetion during bidding
Provide enalysls and recommendations of bids and altemetes
AssIst In eny negotiations with bidderS
CONSTRUCTION ADMINISTRATION PHASE
AbbnIIIlaIlon
UIA
H&dBM
Z
DSS
BH
PSS&J
PBS&J
JLA
THPC
RDH
GE
TE
GC
pp
S:OIS
S:DSS
S:'DSS
S:DSS
..........
.........
/i./ ;2#.]
IJgjJ;~
i"
./
A
.::::~
Construction Admlnlsliatlon -:.:-s:':- P ':-:-:-E':-:-:' S:DSS
Meeting Minutes :-:-:c-:-: P :-:-:-:<l:-:-:-: C:D8S ':::~:::
CoordInation of engineering IBIYIcee -:-:<::-:. P :::::::~:::::::
Review lor adhBnlnce to design Intsnl-Includlng releliYe shop tIrIlwIngs .:-:-1':-:. S ::::::::i:::::::: ..
.. .. .. .. ..
Admlnll1nlllon 01 the ContrBcll: . .. .. ..
based on .lslltancB and collaboreUon with DBslgn l8IIm .. ..
Issue Instructions lII1d Inl8rpretallonS to GenaraI ConlrBCIOr :-:-:11.:-: P :::::::~:::::::
AttBnd WBBkIy construcUon meeIIngs ::::-5:-:' P ':-:':-E':':':- ..
Conduct site ObSBrYaUon visits :.:.;S.:-: P :':':':-1':-:':': P:DSS
....
Prepare progress I8JlOrtS .:-:<::.:- P ::::::::,:::::::: S:DSS ..
CoIaUon and review 01 shop dnlMngs :::::s:::: P ::::::::t;::::::: :::.:::
M.terl8I BIld .....pIe I'BYlaW :-:.70.:-: 1 :-:':-:0:-:':'. .:.1:-:
Make recommendation. to C7NIl8I' to reject WOf1( not In conformance .:-:-e:-:. P -:.:.:.;e.:-:-:- :':4':'
SupplBmBntary drawing. for c18li11ca11on1RA IHJlOll88 - P ::::::::<;::::::: :::~:::
R8YIew c:henge orders ....~...:I s ::::::::0::::::: p:oss .:-f:-:
ReYlew & Respond to Shop DrBwlngl fer CUI1aIn Wel~ Anlsh Metalo. Glazing, Doors, FInIsl1 Concfete ond UghlIng :;:;;;:~;:;;;:::':;:;. s:oss .. ..
Evelu8t1on of Meteriels SubstitIllIOns .. .. ... ... S:DSS
,. ... .... ....
..... ........
Cost ::::~:::: :::::::~::::::: P:DSS ..
Schedule :::::0:::: ::::::::t;::::::: P:DSS ..
..... ,.
Review epplk:811on lor payment :-:-:c.:-: 1 :-:-:-:0:-:.:-: P:DSS ..
S..,ltanUal compleUon Inspection ':-:-8:-:- P .:-:-:.:c.:.:-:- S:DSS
Final complellon InspecIIon ::::~:::: p :.:-:-:<::-:.:-: I:DSS
Co-ordInate preparatlon of W8fTIII1Ues, and operellons and maintenance manual. ::::j(:::: p ::::::::0::::::: 1:DS8 .. ..
Preparation and COOIdIneIlon of "as buill" drawings (Additional SarvIce) ::-:-11:-:- p -:-:.:.:c-:.:-:- S:DSS
4of5
Produced by partlclpenla
Revlaed 6-12-2006
Pr1nl dlle BI2OI2OOll
.. . t:-
1111 LINCOLN ROAD
MATRIX OF RESPONSIBILlTES
project 279 1111 Uncoln Road Miami
Report ExhiIlll C_Matrlx of Responslbllltl< Frm
1 OWnar UIA Management LLC
H8lZO\l & de Meuron (H&deM)
2 Dealgn Architect (Herzog & de Meuron US Inc. for work con<1Jcled In !he USA)
a Local ArchItect ZyllCOVlch
4 Owners representetlve Development Service SoIutIonI, LLC
5 Struc:t\nl EngIneertng Bura Happold
6 MEP Engineering PBS&J
7 CMI En~ering PBS&J
8 Land&C8pe & Hardscape design Jungles Landscape ArchItects
9 PIII1<Ing Consultent Tinothy Haahs P8I1dng Consultants
10 Fire Coda ConsU1ant R.D, Hale, Inc.
11 Geotechnical Engineering to be selected
12 Transporta1lon EngIneering to be selected
13 General Contractor to be llIIecled
14 Plan ElcpedIter Pronto PennUI
15
Abbravtatlon
UIA
H&deM
Z
DSS
BH
PBS&J
PBS&J
JLA
THPC
RDH
GE
TE
GC
pp
Tha MatrIx II besed on _lal8noe and coIabonlllon wIIh Ovarall Dealgn end COns....n! team
Also refer to contract for fUrther Inlormatlon
SchemaUo Design through Constructlon MlW1Istratlon
JUI1lI12 2006
5ttl4IIIe
Dal8
KEY
P
S
C
'PrimaJY RaaponsIbIily" meansl88ponslbllly for lh8 proper end tmeIy compleUon of lh8 teak In question
'Support Role' means providing, In 8 proper and IImeIy manner, lhoaa I81ViceI within !he aupportIng party'l
...... of PlIrl1cu18r reaponallllly end competerlCe ....1OIllIbIy required by Iha party with primary reaponsIbIIty to complete
the task In quullon
"Commenll and Review" means providing; In 8 timely manner. such OClIl1Il18nta. 8 party may hlIva on cloc:umlIntI
or other mat8fla1s preplll8d by the PaIty with primary reaponsIbIIty for the task In quealJon.
,nlDlmatIon only' means 8 party Is enlilled to be Infonned with respect to the task but hal no rasponslbllly unleSS they recognize an Issue lllCisls requiring ac:IIon
I::::::::::Y /1:::::::::::::::::1 /
k:::::[
POST CONSTRUCTION SERVICES
I~~'~ I'
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......... '/..~!," - /' At
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::::=8:::: I~ ... ..
Auls! In cooecUon of defeds and deficiencies covered by guarantees C . . . .;s, . . . P:DSS
Conduct eleven month Inspecllon and review end isSUe report ::::)j:::: p ::::::::9::::::: s: DSS
.........
.........
.........
NOTES:
1 Representatives of both the Design Consultent and Executive ArchItect shellallend the meetings,
2 Both the Dealgn Consultanland the Executive Archltecl &hall review the docwnenls for compliance to codes; however, the ExecutIve ArchIlect
remains responsible for ultimate compliance to BppBcable codes and requirements.
a The Design ConsuIIant will review and direct ell 81BSS of detail dBSlgn end conslrucllon doclmenlBlion with reaped to aesthetic inlenllnckJdlng
SpBClllcatJon review.
The Design Consu1tllnl will review documents perteInIng to all are88 for conformance to HIthellc design Intent and quellly. allBnd eI ccnrector
suppler meetings and assess the design as approprtate.
S Mlnutu of ConlllnlcUon MHUngS shall be prep8IBd by the Architect, 8I1d ahaU be copied 10 the Design Conaullanl.
SofS
ProduI:ed by Parllclpants
RevIsed 8-12~006
Print dele 8/2912008
ADDENDUM to AlA B151 Agreement dated August 31,2006
BE1WEEN
MBEACH1, LLLP,
a Delaware limited liability limited partnership, authorized to transact business in Florida as
MBEACH1, LLLP, Ltd.
1111 Lincoln Road
Suite 760
Miami Beach, FI 33139
(hereinafter, .Owner"),
AND
Zyscovich, Inc.
100 N. Biscayne Blvd.
Suite 2700
Miami, FL 33132
(hereinafter referred to as "Zyscovich" or the "Architecf')
1. Zyscovich shall contract directly with the Civil Engineering firm, Kimley-Horn & Associates, Inc.
("KHA"), for all traffic and civil design work necessary for the above project.
2. In recognition and consideration for Zyscovich's signi'lJ a sub-consultant agreement with KHA
that includes KHA's limitation of liability in the amount of'W Owner agrees that
a) in the event of a loss or claim by Owner, connected with the performance of the services of
~1AI~wner, shall pursue or sue KHA, by assignment and/or directly, for any claims within the
'mitation of liability.
b) Owner shall limit any claims against Zyscovich for KHA related services, that are in excess of
.KHA'S _ limitation of liability, to the available or remaining limits of Zyscovich's
IT 'rofessionalliability insurance policy.
3. Zyscovich hereby assigns to Owner, all contractual rights necessary, for Owner to sue KHA
directly for any Owner claims related to KHA's sub-consultant contractual services.
4. The words .or by arbitration" shall be deleted from the last sentence in section ~ 7.1.1 of the
Prime Agreement.
OWNER
MBeach1, LLLP, a Delaware limited liability
limited partnership, authorized to transact
business in Florida as MBeach1, LLLP, LTD.
By: MBeach1 GP, LLC, a Delaware limited
liability company, its General Partner.
By: Urban Investments Advisors, LLC, a
Delaware limited liability company, its sole
member.
By: Wellspring Investments Management I,
LLC, a Delaware limited liability company, its
Managing Member.
ARCHITECT
Zyscovlch, Inc.
~ ---
(Si'g;,ature)
~
~~A
-
By: Robert S. Wennett
Its: Managing Member
By: Bernard Zyscovich, AlA
Its: President
MIAMI 1287157.1 7713726901
EXHIBIT "E"
CONSTRUCTION SCHEDULE
[ attached]
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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 1287157.1 7713726901
EXHIBIT" G"
BUDGET FOR REPLACEMENT OF SIDEWALKS, CURBS AND GUTTERS
[attached]
MIAMI 1287157.1 77137Ui901
LINCOLN ROAD PEDESTRIAN CONVERSION
ALTON ROAD TO LENOX AVENUE
The aforementioned Opinion of Probable Cost (OPC) is based on schematic plans. The costs shown are based on
engineering assumptions which will be adjusted upon final determination of the design. This OPC is non-binding and subject
to change.
1 of 1
1/5/2007
EXHIBIT "H"
DOCUMENTS PROVIDED BY THE CITY TO DEVELOPER
1. Water, sewer and stormwater utility drawings for Lincoln Road, N. Lincoln Lane and
Alton Court.
2. Memoranda to Finance and Citywide Projects Committee meetings and Commission
meetings.
3. Sonar study of all existing underground facilities, equipment and utilities within the
Project Site.
MIAMI 1287157.1 7713726901