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HomeMy WebLinkAboutExhibit1DESIGN- BUILD AGREEMENT Between THE CITY OF MIAMI (COM) and RECREATIONAL DESIGN and CONSTRUCTION (RDC) for DESIGN/BUILD SERVICES FOR GRAPELAND HEIGHTS PARK PHASE I CITY OF MIAMI RESOLUTION # SECTION 1. DEFINITIONS 2. PREAMBLE 3. CONTRACT DOCUMENTS 4. SCOPE OF WORK 5. COMPLETION DATE - LIQUIDATED DAMAGES 6. FIRM'S RESPONSIBILITY 7. COMPENSATION AND METHOD OF PAYMENT 8. ADDITIONAL SERVICES AND CHANGES IN SCOPE OF WORK 9. COM'S RESPONSIBILITIES 10. RESOLUTION OF DISPUTES 11. PRE -CONSTRUCTION CONFERENCE 12. PROJECT MEETINGS 13. SECURITY 14. INSPECTION OF PROJECT 15. SUPERINTENDENCE AND SUPERVISION 16. COM'S RIGHT TO TERMINATE AGREEMENT 17, FIRM'S RIGHT TO STOP WORK OR TERMINATE CONTRACT 18. "OR EQUAL" CLAUSE 19. PLANS AND WORKING DRAWINGS 20. FIRM TO CHECK DRAWINGS AND DATA 21. WARRANTY 22. SUPPLEMENTARY DRAWINGS 23. DELIVERY, INVENTORY, AND STORAGE OF MATERIALS AND PARTIAL PAYMENT THEREFOR 24. GENERAL WORKMANSHIP 25. DEFECTIVE WORK 26. SUBCONTRACTS 27. CONSTRUCTION AREA 28. LANDS FOR WORK 29. LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS 30. DAMAGE TO EXISTING FACILITIES, EQUIPMENT OR UTILITIES 31. CONTINUING THE WORK 32. FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS 33. CHANGE ORDERS 34. VALUE OF CHANGE ORDER WORK 37. SUBSTANTIAL COMPLETION 36. NO DAMAGES FOR DELAY 35, CHANGE OF CONTRACT TIME OR CONTRACT SUM 36. NO DAMAGES FOR DELAY 37. SUBSTANTIAL COMPLETION 38. SHOP DRAWINGS AND SCHEDULE OF VALUES 39. FIELD ENGINEERING 40. FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS 41, SAFETY AND PROTECTION 42. PROJECT SIGNAGE 2 43. CLEANING UP AND REMOVAL OF EQUIPMENT 44. BONDS AND INDEMNIFICATION 45. MISCELLANEOUS EXHIBITS Exhibit A - Design Criteria Exhibit B - Scope of Work and Plans and Specifications Exhibit C - Form Certificate of Insurance Exhibit D - Foram of Performance Bond Exhibit E - Form of Payment Bond Exhibit F — Certificate of Substantial Completion Exhibit G - Final Certificate of Payment Exhibit H - Form of Final Receipt Exhibit I - Optional Upgrades Exhibit J — Construction Schedule Exhibit K — Schedule of Values Exhibit L — Detailed Cost Estimate 3 This is an Agreement (the "Agreement") made and entered into this day of 2005, by and between the City of Miami, (COM) and Recreational Design and Construction, a Florida corporation ("FIRM") for the provision of Design -Build services for Grapeland Heights Park, Phase 1. In consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, COM and FIRM agree as follows: 1. DEFINITIONS For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the DEFINITIONS set forth below are assumed to be true and correct and are agreed upon by the parties. Whenever the following terms or pronouns in place of them appear in this Agreement the intent and meaning shall be interpreted as follows: 1.1 Architect: An architectural firm, in good standing and licensed pursuant to Chapter 481, Florida Statutes, to be retained by the FIRM for the provision of architectural services to the Project. This definition includes the rendering or offering to render services in connection with the design and construction of the Protect including providing preliminary study designs, drawings and specifications, job -site inspection, administration of construction costs, drawings and specifications, and job -site observations. 1.2 Change Order: A written document ordering a change in the Contract Sum or contract time or a material change in the work as determined by the OAR/Owner's Representative (OAR). Change Orders will be in compliance with the applicable provisions of the City of Miami Procurement Code. No Change Order initiated by FIRM shall be authorized if the Change Order will result in an increase in either the Contract Sum or the Contract time unless the time and/or price change is a direct consequence of a new or changed government regulation enacted or imposed after the date this Agreement is approved by COM. COM shall have the discretion to initiate Change Orders to add or delete work, including increases or decreases in the Contract Sum or the Contract time. 1.3 Commission: The City of Miami Commission, which is the governing body of the COM and is the only body which is authorized to approve amendments to this Agreement and Change Orders exceeding limits as set forth in the City of Miami Procurement Code. 1.4 Construction Documents Phase: The phase in which the Architect prepares the final documents for construction of the Project based upon the approved Design Development Documents. 1.5 Construction Phase: The phase of services which constitutes the construction of the Project and all activities necessary for the completion of the Project. 1.6 Contract: This Agreement and all addenda and amendments thereto between the COM gdiasUlaaF f'nntcpri siumuzaaamlbasanxiissaaaananiat 4 1.7 Contract Completion: The date certified by FIRM that all conditions of the permits and regulatory agencies have been met, all construction, including corrective work, has been performed, all administrative requirements of the Contract Documents have been completed, and COM has received, from FIRM, a release of all liens, consent of surety, release of claims by FIRM, corrected as -built drawings, a final bill of materials, executed final adjusting Change Order if any, final invoice, final reconciliation, copies of pertinent test results, correspondence and other necessary documentation. 1.8 Contract Documents: The Design Criteria for the Project which includes preliminary plans, the plans and specifications, addenda, qualifications, and supplemental instructions, which are to be developed by FIRM pursuant to this Agreement, the performance bond and payment bond, the design documents, the construction documents such as Critical Path Method (CPM) and Schedule of Values, and any additional documents, the submission of which is required by this Agreement. When reference is made in the Contract Documents to publications, standards or codes issued by associations or societies, the intent shall be to specify the current edition of such publication or standard including revision and effect on the date of the Contract advertisement notwithstanding any reference to a particular date. 1.90 CPM: The Critical Path Method (CPM) is one of several related techniques for doing project planning. CPM is for projects that are made up of a number of individual "activities." If some of the activities require other activities to finish before they can start, then the project becomes a complex web of activities, requiring a methodical path. 1.10 Desicin Phase: This phase will consist of the Schematic Design Phase during which FIRM will consult with the OAR and prepare Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship for approval of the COM. The Design Development Phase also includes the preparation by FIRM, of Design Development Documents, based on approved Schematic Design Documents, and submittal to the COM of a further Statement of Construction Costs. 1.11 FIRM: Recreational Design and Construction. The FIRM has been selected to perform the Work pursuant to action of the City Commission evidenced by Resolution No., 04- 786, adopted December 9, 2004.. The FIRM has full responsibility under this Agreement for the design and construction of the Project and is liable for the acceptable performance of the work and payment of all sums due to Its employees, agents, servants, consultants, subcontractors, materialpersons, and suppliers pertaining to the Project. All references in the Contract Documents to third parties under contract or control of FIRM shall be deemed to be a reference to FIRM. The FIRM will be responsible for the provision, installation, and performance of all equipment, materials, and services offered. 1.12 Field Order: A written order issued by the OAR which orders minor changes in the Project but which does not involve a change in the total cost or time for performance. 1.13 Final Completion: The date certified by the OAR that all conditions of the permits and regulatory agencies have been met, all construction, including corrective and punch list 5 work, has been performed, all administrative requirements of the Contract Documents have been completed, and COM has received from FIRM a release of all liens, consent of surety, release of claims by FIRM, corrected as -built drawings, a final bill of material, executed final adjusting Change Order if any, final Invoice, and copies of pertinent test results, including all warranties, guarantees, operational manuals, spare parts, service contracts and tools. At a minimum, a final Certificate of Occupancy Is one of the requirements for final completion. 1,14 Liquidated Damages: The amount prescribed in this Agreement to be paid the COM, or to be deducted from any payments due the FIRM for each day's delay in completing the whole or any specified portion of the work beyond the Contract Time. 1.15 Notice to Proceed: A written document issued by the OAR informing the FIRM to officially begin each phase of the Project. 1.16 Owner's Authorized Representative (OAR): The individual expressly designated in writing by COM's City Manager to administer the Project and to act as the authorized agent of the COM. 1.17 Plans and/or Drawings: The official graphic representations of this Project which, upon written approval of COM, shall become a part of the Contract Documents. 1.18 Project: Design Services for the entire Grapeland Heights Park project, and Construction Services for Phase 1 of the project, consisting of the baseball complex, as more particularly described in, and in accordance with the Design Criteria attached hereto as Exhibit "A". The Construction Services for other phases of the entire Grapeland Heights Park project shall be authorized by separate agreement, or amendments to this Contract, subject to Commission approval. 1.19 Project Commencement Date: The date upon which the Notice to Proceed is issued by the OAR. 1.20 Project Representative: An authorized representative of FIRM assigned to represent FIRM on the Project as approved by the OAR, which approval shall not be unreasonably withheld. 1.21 Proposal, The Proposal submitted by the FIRM for Design -Build Services for the entire Grapeland Heights Park project dated December 9, 2004. 1.22 Shop Drawings: Drawings, diagrams and schedules (excluding, however, the CPM Schedule), and other data specially prepared by the FIRM or its subcontractors, sub.. subcontractors, manufacturer, supplier or distributor to illustrate some portion of the work. 1.23 Subcontractor: The person or entity having a direct contract with FIRM including one who furnishes material worked to a special design according to the Contract Documents for this Project, but does not include one who merely furnishes material not so worked. 6 1.24 Substantial Completion: Subject to the requirements of this Agreement, the date certified by the OAR that all conditions of the permits and regulatory agencies have been met for the COM's intended use, and all construction has been performed in accordance with the Contract Documents so COM can occupy or utilize the Project for its intended purposes. At a minimum, a Temporary Certificate of Occupancy is one of the requirements for Substantial Completion. 1.25 Superintendent: Individual employed by FIRM to provide construction management services for the Project. 1.26 Surety: The surety company which is bound by the performance bond and payment bond with and for FIRM and who is primarily liable and responsible for FIRM's acceptable performance of the work under this Contract and for the payment of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes. 1.27 Work: The completed construction required by the Contract Documents, including all labor necessary to produce such construction, and ail materials and equipment incorporated or to be incorporated in such construction. 2. PREAMBLE It is the intent of the Contract Documents and this Agreement to describe a functionally complete Project to be designed and constructed by the FIRM in accordance with the Contract Documents. All work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result will be supplied by FIRM whether or not specifically called for, unless same may be the subject of a Change Order. 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 execution of this Agreement. A change in the applicable laws or codes after execution of this Agreement or after a permit is issued may result in additional compensation should additional work be required on behalf of the FIRM. The FIRM shall be deemed to have decided for itself the character and difficulties which may be encountered at the Project site; and FIRM acknowledges that it is satisfied regarding the nature and extent of the work and that it has correlated its study and observations of the Project site with the requirements of the Contract Documents. This Project is funded with public funds, and COM has budgeted FIVE MILLION SEVEN HUNDRED TWENTY-FIVE THOUSAND NINE HUNDRED FORTY-TWO and 00/100 Dollars ($5,725,942.00)for the Project. The FIRM agrees that the foregoing amount constitutes the maximum price and payment that COM will be obligated to pay for Firm's design and construction services for the complete and fully functional Project described in this Contract except for COM-approved Change Orders. 7 14 3. CONTRACT DOCUMENTS 3.1 FIRM shall not deviate but shall strictly follow the Contract Documents as to work„ material, and dimensions except when the OAR in his/her sole reasonable discretion„ authorizes an exception in writing. 3.2 FIRM shall maintain four (4) copies of the Contract Documents; two (2) of which shall be preserved and always kept accessible to the OAR or his/her authorized representatives. 3.3 This Contract incorporates by reference and in the following order of authoritative precedent, the following documents (1) the Contract Documents defined in Section 1.9; and (i1) the Proposal, including any addenda. 4. SCOPE OF WORK 4.1 FIRM hereby agrees to complete the Project described by the Contract Documents and the final Design Criteria as set forth in Exhibit A, including furnishing all architectural, engineering, landscape architecture, and land surveying services, labor, materials, equipment and other services necessary to perform all of the work described in the Contract Documents including drawings and addenda thereto for the construction of the Project to be constructed in accordance with the requirements and provisions of the Contract Documents. The Scope of Work shall include all items necessary to provide a complete project which meets all codes as defined by plan review incident to permitting. The Scope of Work also includes all Project site preparation. The Scope of Work for this Project shall be performed pursuant this Agreement for the Contract Sum. 4.2 FIRM agrees to meet with OAR or designee at reasonable times and upon reasonable notice. 4.3 FIRM will develop from its proposal and layout drawings the specifications which will be reviewed and approved by COM for concept only and will meet or exceed the standards noted in the scope of services attached hereto and incorporated herein, and all applicable codes, ordinances, statutes and any other regulations imposed by any regulatory body or authority governing the design and construction. All such documents shall become a part of the Contract Documents at the time they are provided by FIRM and approved for concept by COM. 4.4 Prior to the Final Completion there shall be established a record set of plans and specifications, on Mylar and the latest commercially released version of AutoCAD, which shall bear the approval of FIRM and OAR. Such approval shall be indicated by the written signature of both parties. In addition, prior to the commencement of services under this Agreement, FIRM shall submit to the OAR a Critical Path Method (CPM) Schedule for the Design, Permitting and Construction Phases of the Project. The CPM shall be updated monthly and submitted to OAR as part of each pay request. 4.5 The major elements of the Project are the Design Phase and the Construction Phase, all in accordance with the requirements and provisions of the following documents which are 8 hereby made a part of this Agreement: FIRM's Final Proposal and the Plans and Specifications as approved and accepted by COM and attached hereto as Exhibit B, and thereafter amended by FIRM and approved by COM. 4.6 If, during performance of the Work, FIRM encounters subsurface or concealed conditions at the Project site which differ materially 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, FIRM shall, without disturbing the conditions and before performing any work affected by such conditions, notify the OAR in writing, by facsimile with telephone, of the existence of the aforesaid conditions no later than twenty-four (24) hours after their discovery and request an equitable adjustment of the Contract Price and/or Contract Time. FIRM shall also notify the OAR of such conditions in writing by certified mail forwarded no later than the next business day. Within twenty-four (24) hours after receipt of FIRM's written notice, excluding legal holidays, the OAR shall investigate the site conditions identified by FIRM. If, in the sole opinion of the OAR, the conditions materially differ and justify an increase or decrease in FIRM's cost of performing any part of the Work, the OAR shall determine an equitable adjustment to the Contract Price and/or Contract Time. Should the OAR determine that the conditions of the Project site are not so materially different to justify a change in the Contract Price and/or Contract Time, the OAR shall so notify FIRM in writing, stating the reasons. If FIRM does not agree with the OAR's determination, FIRM may invoke the procedure authorized by Section 33. No request by FIRM for an equitable adjustment to the Contract under this provision shall be allowed unless FIRM has given written notice in strict accordance with the provisions of this Section. No request for an equitable adjustment or change to the Contract Price or Contract time for differing site conditions shall be allowed if made after the date of Substantial Completion. 5. COMPLETION DATE — LIQUIDATED DAMAGES 5.1 Contract Time: 5.1.1 OAR shall instruct the FIRM to commence the Design Phase and the Construction Phase of the Project by written instructions in the form of a Notice to Proceed. The Project shall be commenced within fifteen (15) calendar days from F1RM's receipt of the Notice to Proceed. The Notices to Proceed will not be issued until receipt by the OAR of all required documents and after the proper execution of this Agreement by all parties. 5.1.2 Time is of the essence throughout this Contract. Substantial Completion of the Project by the FIRM shall be October 1, 2005. The Design Phase will conclude with the issuance of a building permit to support a construction date of not later than December 15, 2005, The Design Phase duration assumes a permitting period not to exceed 30 calendar days. Should additional time be required for permitting processes, the FIRM's only remedy will be an extension of time for the Design Phase, to be requested in accordance with this Agreement. The time frames and dates stipulated in this Section 5.1.2. are based on an assumed Contract execution date of no later than March 10, 2005 Should the Contract execution date be delayed„ 9 then all time frames and dates referenced herein shall be extended accordingly. The total Project shall be completed by FIRM and ready for final payment in accordance with Section 7.2.4 no later than 45 calendar days after Substantial Completion. Any time extension authorized by COM or the OAR pursuant to this Agreement shall extend the dates in this Section by an equal amount of time. 5.1.3 Upon failure of FIRM to substantially complete the Project by the date specified for Substantial Completion, plus approved time extensions for such Substantial Completion, FIRM shall pay to COM Liquidate Damages in the sum of One Thousand Dollars ($1,000.00) for each calendar day after such time, until Substantial Completion. Upon failure of FIRM to finally complete the Project by the date specified for Final Completion, plus approved time extensions for Final Completion, FIRM shall pay to COM the sum of Five Hundred Dollars ($500.00) for each calendar day after such time until Final Completion. These amounts are not penalties but are Liquidated Damages to COM for its inability to obtain full beneficial use of the Project. Liquidated Damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by COM as a consequence of such delay, and both parties desiring to obviate any questions or dispute concerning the amount of said damages and the cost and effect of the failure of FIRM to complete this Contract on time. 5.1,4 COM is authorized to deduct Liquidated Damages from monies due to FIRM for the work under this Contract or as much thereof as COM may, at its own option, deem just and reasonable. 6. FIRM'S RESPONSIBILITY 6.1 The parties acknowledge and agree that COM is purchasing, and FIRM is bound to deliver, the design and construction of a complete Project including landscaping, and drainage, which shall be constructed in accordance with the Contract Documents, and in compliance with all applicable laws and technical codes in effect at the time of permitting. 6.2 FIRM shall be responsible for applying for and securing all permits and approvals from all governmental authorities having jurisdiction over the Project. All permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the Project by FIRM pursuant to this Agreement shall be secured and paid for by the FIRM. An aggregate maximum of 30 days extension of time shall be granted to FIRM for completion of the Project due to delays in obtaining any approval or permit from a governmental authority. It is FIRM's responsibility to have and maintain appropriate certificate(s) of competency, valid for the work to be performed and for all persons working on the Project for whom a certificate of competency is required. 6.3 FIRM shall be fully responsible for the actions or omissions of all its agents, servants, employees, subcontractors, sub -subcontractors, material persons, and persons working for it in conjunction with the design and construction of the Project. 6.4 FIRM shall be fully responsible for ail acts or omissions of its consultants and subcontractors and of persons directly employed by FIRM's consultants and 10 subcontractors and of persons for whose acts any of them may be liable to the same extent FIRM is responsible for the acts and omissions of persons directly employed by FIRM. Nothing in this Agreement shall create any contractual relationship between any consultant or subcontractor and COM or any obligation on the part of COM to pay or to see to the payment of any monies due to any consultant or subcontractor. 6.5 FIRM agrees to bind specifically every subcontractor and consultant to the applicable terms and conditions of this Agreement for the benefit of COM. 6.6 FIRM shall provide and pay for all architecture, engineering, landscape architecture, and land surveying services, materials, labor, water, tools, equipment, light, power, transportation and other facilities and services necessary for the proper execution and completion of the Project, whether temporary or permanent, and whether or not incorporated or to be incorporated in the Project. 6.7 FIRM shall at all times enforce strict discipline and good order among its employees„ consultants, and subcontractors at the Project site and shall not employ on the Projecll any unfit person or anyone not skilled in the work assigned to him or her. 6.8 FIRM shall maintain suitable and sufficient guards and barriers as may be necessary, as may be determined by FIRM, OAR or permitting authority, and at night suitable and sufficient lighting for the prevention of accidents and thefts. 6.9 FIRM 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 in violation of any such law, ordinance, regulation, order or decree, FIRM shall forthwith report the same to the OAR in writing. FIRM shall cause all its agents, employees, subcontractors and consultants to observe and comply with all applicable laws, ordinances, regulations, orders and decrees. 6.10 FIRM shall pay all applicable sales, consumer, use and other taxes required by law in effect at the execution of this Agreement. FIRM is responsible for reviewing the pertinent state statutes involving state taxes and complying with all requirements. 6.11 COM shall have the right to inspect and copy, at COM's expense, the books and records and accounts of FIRM which relate in any way to the Project, and to any claim for additional compensation made by FIRM, and to conduct an audit of the financial and accounting records of FIRM which relate to the Project and to any claim for additional compensation made by FIRM. FIRM shall retain and make available to COM all such books and records and accounts, financial or otherwise, which relate to the Project and to any claim for the required retention period of the Florida Public Records Act (Chapter 119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not applicable, for a 11 10 period of three (3) years following final completion of the Project. During the Project and the three (3) year period following final completion of the Project, FIRM shall provide COM access to its books and records upon 3 days prior written notice. If an audit has been initiated and audit findings have not been resolved at the end of the retention period or the three-year period, whichever is longer, the books, records, and accounts shall be retained and made available to COM until resolution of the audit findings. 7. COMPENSATION AND METHOD OF PAYMENT 7.1 Contract Sum 7.1.1 COM agrees to pay FIRM, as compensation for its services under the terms of this Agreement, the sum of FIVE MILLION NINE HUNDRED SEVENTY-NINE THOUSAND SIXTY-THREE AND 00/100 Dollars ($5.979,063.00) ("Contract Sum"). FIRM's failure to properly evaluate any cost factors prior to submitting a its Proposal shall not form the basis for additional compensation. The compensation for the Project to be performed by FIRM includes all costs, expenses and fees for all Work provided by the FIRM and its subcontractors and consultants and all other persons retained by the FIRM to perform the services described herein. 7.1.2 The Contract Sum shall be the maximum amount payable by COM to FIRM for the costs of this Project. The Sum is a specific amount set forth which is the total payment for performance of this Contract and shall not be exceeded unless authorized by Change Order. 7.1.3 FIRM shall submit to the OAR a schedule of values for each item comprising the Contract Sum. Any negotiated Change Order shall be based upon such schedule of values. 7.2 Method of Billing and Pavment 7.2.1 During the Design Phase, payments shall be made monthly based upon percentage of completion of final construction plans and specification preparation, Payments shall be made no more frequently than monthly. The OAR shall verify completion of the various stages as noted and authorize payment. During the Construction Phase, FIRM may submit a request for payment thirty (30) calendar days after beginning field operations and every thirty (30) calendar days thereafter. Payment will be based on quantities certified by the FIRM and approved by the OAR. FIRM requisition shall show a complete breakdown of the Project components, the quantities completed and the amount due, together with such supporting evidence as may be required by the OAR. When applicable, the requisition for payment shall be accompanied by a completed certification of work. The certification of work will mean compliance by FIRM with SDBE, CPM Schedule, and prevailing wages and applicable laws, codes, rules and regulations. Each requisition shall be submitted in triplicate to the OAR for approval. An updated CPM Schedule shall be submitted monthly with payment requests. Should the Project fall behind schedule as indicated in the CPM Schedule, FIRM shall include a written plan demonstrating how the final completion date shall be maintained. 12 7.2.2. COM agrees that it will pay FIRM ninety percent (90%) of the total shown to be due on such statement within thirty (30) calendar days of receipt of FIRM's proper invoice, as provided above, accompanied by an acceptable updated CPM Schedule and as -built drawings. 7.2.3 Ten percent (10%) of all monies earned by FIRM shall be retained by COM until the Project is totally completed and the Final Certificate for Payment has been issued. After . After seventy-five percent (75%) of the Project has been completed, OAR shall have the authority to reduce to five percent (5%) the amount of retainage for moneys earned subsequent to achieving 75% completion. After Substantial Completion, OAR shall have the authority to reduce to two and one-half percent (2.5%) the amount of retainage for I monies earned after Substantial Completion. . Any interest earned on retainage shall accrue to the benefit of COM. 7.2.4 Upon receipt of written notice from FIRM that the Project is ready for final inspection and acceptance, the OAR shall, within ten (10) calendar days, make an inspection thereof. If the OAR finds the Project fully performed and in compliance with the Contract Documents, and DESIGN BUILDER complies with the provisions of Section 7.2.4. below, the OAR shall issue a Final Certificate of Payment in the form of Exhibit I. 7.2.5. Before issuance of the Final Certificate for Payment, FIRM shall deliver to the OAR a final receipt in the form of Exhibit J, a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof, and an Affidavit certifying that alll suppliers and subcontractors have been paid in full and that all other indebtedness, connected with the Project has been paid, and a consent of the surety to final payment„ All warranties, guarantees, operational and maintenance manuals and videos, and instructions in operation must be delivered to COM at this time. As built drawings will be completed, a hard reproducible copy and an AutoCAD version in the latest commercially released format, uncompressed shall be delivered to COM, and certificate of occupancy will be obtained prior to final payment being made. 7.2.6. COM may withhold final payment or any progress payment to such extent as may be necessary on account of: (I) Defective work not remedied. (ii) Claims filed or written notices of nonpayment indicating probable filing of claims as may be prescribed by law by other parties against FIRM unless Surety consents to payment. (iii) Failure of FIRM to make payments properly to subcontractors or consultants or for material or labor unless Surety consents to payment. (iv) Liquidated Damages pursuant to Section 5 hereof. (v) As -built drawings not being in a current and acceptable state. 13 • i 7.2.7 The FIRM warrants to the COM that all materials and equipment furnished under this Agreement will be new unless otherwise specified, and that all work will be of good quality and in conformance with the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved and authorized by OAR, may be considered defective. If required by the COM, the FIRM shall furnish satisfactory evidence as to the origin, nature and quality of materials and equipment used for the Project. FIRM shall properly store and protect all construction materials. Materials which become defective through improper storage shall be replaced by FIRM with new materials at no additional costs to COM. When the above grounds are removed or resolved or FIRM provides a surety bond or consent of Surety satisfactory to COM which will protect COM in the amount withheld, payment may be made to FIRM in whole or in part, as applicable. 7.2.8 COM may withhold final payment to such extent as may be necessary on account of damage to another subcontractor, supplier, material person, party, or person. not remedied which are attributable to FIRM, its agents, servants, employees, subcontractors and sub -subcontractors, material person and suppliers. FIRM shall use reasonable measures to remedy such damage, and COM shall not unreasonably withhold final payment. 7.2.9 If, after the Project has been substantially completed, full completion thereof is delayed through no fault of FIRM, or by issuance of Change Orders affecting final completion, and the OAR so certifies, COM shall, upon certification of the OAR, and without terminating this Contract, make payment of the balance due for that portion of the Project fully completed and accepted. Such payment shall be made as required by law under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 7.2.10 The making and acceptance of the final payment shall constitute a waiver of all claims by COM, other than those arising from faulty or defective work, failure of the Project to comply with requirements of the Contract Documents or terms of any warranties required by the Contract Documents. It shall also constitute a waiver of alll claims by FIRM, except those previously made in writing and identified by FIRM as unsettled at the time of the final application for payment. 7.2.11 Payment will be made to FIRM at: Recreational Design & Construction, Inc. 3990 N. Powerline road Ft. Lauderdale, FL 33309 8. ADDITIONAL SERVICES AND CHANGES IN SCOPE OF WORK Without invalidating this Agreement and without notice to any surety, COM reserves and shall have the right to make such changes from time to time in the character or quantity of the Project as may be considered necessary or desirable to complete fully and acceptably the 14 proposed construction in a satisfactory manner. Any extra or additional work within the scope of this Project may be accomplished by means of appropriate and fully executed and approved Change Orders. FIRM shall not be obligated to perform any extra or additional work until a valid change order has been executed. 9. COM'S RESPONRIBILITIES COM shall assist FIRM by placing at its disposal any available information pertinent to the Project including previous reports, laboratory tests and inspections of samples, materials and equipment; property, boundary, easement, rights -of -way, topographic and utility surveys;; property descriptions; and known zoning, deed and other land use restrictions. COM shall arrange for access to and make all provisions for FIRM, to enter upon public and private property as required for FIRM to perform its services. 10. RESOLUTION OF DISPUTES — WAIVER OF TRIAL BY JURY 10.1. Claims, disputes or other matters in questions between the FIRM and COM arising out of or relating to this Agreement, or the breach thereof, shall be initially subject to mediation by a mediator to be selected by the parties, as a condition precedent to litigation. Unless the parties mutually agree otherwise, such mediation shall be conducted in accordance with the Construction Industry Mediation Rules of the American Arbitration Association in effect at the time of the claim. Requests for mediation shall be filed in writing with the other party to this Agreement. The parties shall endeavor to expedite the mediation and, if necessary, any litigation or arbitration during the actual construction of the Project,. The parties shall share the Mediator's fee and any mediation filing fees equally. The mediation shall be conducted in Miami, Florida, unless the parties mutually agree otherwise. Agreements reached in mediation shall be set forth in writing and executed by both parties and shall be enforceable as settlement agreements in any court having jurisdiction thereof. 10.2 Claims, disputes or other matters in questions between the FIRM and COM arising out off or relating to this Agreement, or the breach thereof, which are not resolved by mediation shall be subject to and decided by litigation exclusively in the sate or federal courts off Miami -Dade county, Florida, unless COM elects, in its sole discretion, to have such claims, disputes, or other matters in questions, be subject to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. FIRM consents to the exclusive venue of the sate and federal courts of Miami -Dade County. Florida. 10.3 Pending final resolution of a claim, including mediation, unless otherwise agreed in writing, FIRM shall proceed diligently with performance of this Contract and the CONI shall continue to make payments in accordance with the Contract Documents. 10.4 Any mediator used shall be certified in accordance with Florida law. Mediation will be conducted in Miami -Dade County. 10.5 IN THE EVENT OF LITIGATION, FIRM HEREBY KNOWINGLY, IRREVOCABLY„ VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A 15 COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR BREACH THEREOF, OR IN CONNECTION WITH THE WORK, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ANY ACTIONS OR INACTIONS OF EITHER PARTY. COM RESERVES ALL RIGHTS TO DETERMINE WHETHER THE DISPUTE WILL BE DECIDED BY ARBITRATION OR BY A JURY. 11. PRE-CONSTRUCTIONCONFERENCE 11.1 Before beginning work at the Project site, the FIRM shall schedule, administer, and attend a pre -construction conference and bring the Superintendent employed by the FIRM for this Project. Advance written notice of the pre -construction conference shall be provided to the OAR. 11.2 At the pre -construction conference, all parties concerned will discuss the Project under contract and prepare a program of procedure in keeping with requirements of the drawings and specifications. The Superintendent shall henceforth make every effort to expeditiously coordinate all phases of the work to obtain the end result within the full purpose and Intent of the drawings and specifications for the Project. 11.3 The FIRM shall be fully responsible for coordinating, and taking all required steps and precautions, to ensure the COM full security measures without interruption during the progress of the work and within the areas of construction and other assigned areas for FIRM's use during construction. The FIRM shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Work. 11.4 The FIRM shall cooperate in every respect with COM in the execution of this work. FIRM shall abide by security requirements of the COM at all times, and shall schedule work so as to conform to the CPM Schedule and related schedules of this Project. 12. PROJECT MEETINGS FIRM shall schedule periodic progress meetings with the OAR twice a month and, as necessary, shall call special meetings throughout the progress of the work. Representatives of FIRM, subcontractors and suppliers, and OAR attending meetings shall be qualified and authorized to act on behalf of the entity each represents. 13. SECURITY FIRM shall provide a project security program to protect work, stored products and construction equipment from theft and vandalism, and to protect premises from entry by unauthorized persons. In the event any such materials, equipment and supplies are lost, stolen, damaged or destroyed prior to final inspection and acceptance, FIRM shall replace same with no cost to COM. 14. INSPECTION OF PROJECT 16 44 14.1 The OAR or designee shall at all times have access to the Project, and FIRM shall provide proper facilities for such access. 14.2 Should the Contract Documents, instructions, any laws, ordinances, or any public authority require any work for the Project to be specially tested or approved, FIRM shall give to the OAR timely notice of readiness of the work for inspection. If the testing or approval is to be made by an authority other than COM, timely notice shall be given of the date fixed for such testing. Inspections shall be made promptly, and, where practicable, at the source of supply. If any work for the Project should be covered up without inspection, approval or consent of the OAR, it must, if required by the OAR, be uncovered for examination and properly restored at FIRM's expense. 14.3 Reexamination and retesting of any work for the Project may be ordered by the OAR; and if so ordered, such work must be uncovered by FIRM. If such work is found to be In accordance with the Contract Documents, COM shall pay the cost of reexamination, retesting and replacement. If such work is not in accordance with the Contract Documents, FIRM shall pay such cost. 14.4 No City of Miami Inspector nor any other person or entity with regulatory authority affecting the Project shall have authority to permit deviations from, or to relax any of the provisions of, the Contract Documents without the written permission or instruction of the OAR. 14.5 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 FIRM to any inspector other than its consultant, is forbidden, and any such act on the part of FIRM will constitute a breach of this Agreement. 15. SUPERINTENDENCE AND SUPERVISION 15.1 The orders of the COM are to be given through the OAR, whose instructions are to be strictly and promptly followed in every case, provided that they are in accordance with thls Contract. FIRM shall keep on the Project during its progress a competent supervisor who shall serve as the Project Representative, and any necessary assistants. The Superintendent on site shall be responsible for continuous field supervision, coordination, and completion of the Work. The Superintendent shall not be changed except upon notice to the OAR, unless the Superintendent proves to be unsatisfactory to FIRM. The Superintendent shall represent FIRM, and all direction given to the Superintendent shall be as binding as if given to FIRM. Directions will be confirmed in writing to FIRM. Other directions will be so confirmed on written request in each case. 15.2 FIRM's Superintendent shall 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 OAR or designee at all times during the Project. 17 15.3 The parties acknowledge and recognize that this is a Design/Build Project and, except where based on an authorized Change Order (as provided pursuant to this Contract), all work for this Project shall be clone for the Contract Sum. Thus, any errors or omissions shall be corrected by FIRM without claim for additional time and/or funds from COM. Nevertheless, if, in the course of the Project, FIRM finds any discrepancy between the Contract Documents and the physical conditions of the site, or any errors or omissions In the Contract Documents including drawings (plans) and specifications, it shall be the FIRM's duty to immediately inform the OAR. 15.4 FIRM shall coordinate, supervise and direct the Project competently and efficiently„ devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Project in accordance with the Contract Documents. FIRM shall be solely responsible for the design, means, methods, techniques, safety, sequences and procedures of construction. FIRM shall give efficient supervision to the work, using FIRM's best skill, attention, and judgment. 16. COM'S RIGHT TO TERMINATE AGREEMENT — OTHER REMEDIES 16.1 If FIRM fails to begin the design and construction of the Project within the time specified, or fails to perform the Project with sufficient workers and equipment or with sufficient materials to ensure the prompt completion of the Project, in accordance with the Contract Documents and schedules, or shall perform the work unsuitably, or cause it to be rejected as defective and unsuitable, or shall discontinue the prosecution of the Project, except for excused delays in accordance with this Agreement; or if FIRM shall become insolvent or be declared bankrupt, or commit any act of bankruptcy or insolvency, or shall make an assignment for the benefit of creditors, or shall not carry on the Project in accordance with the Contract Documents, or shall breach a material provision of this Contract (each such event referred to herein as a "Default"), COM shall give notice in writing to FIRM and its surety of such default, specifying the same. If FIRM fails to cure such default within a period of ten (10) business days after receipt of such notice then, upon written certificate from the OAR that the default has not been cured, COM, in addition to all legal and equitable remedies available to it, may terminate the services of FIRM by giving written notice of its intent to terminate in accordance with Subsection 16.5 (the "Notice of Termination"). The Notice of Termination shall specify the effective date of termination, which shall be no earlier than 10 days from the date of the notice. Upon giving the Notice of Termination, COM shall have the right to exclude FIRM from the site and take the prosecution of the Project out of the hands of FIRM, as appropriate or use any or all materials and equipment on the Project site as may be suitable and acceptable. In such case, COM may enter into an agreement with another party for the completion of the Project according to the terms and provisions of the Contract Documents or use such other methods as in its opinion shall be required for the completion of the Project in an acceptable manner. All damages, costs and charges incurred by COM shall be deducted from any monies due or which may have become due to said FIRM without affecting COM's rights to proceed against the surety under the bonds. In case the damages and expense so incurred by COM shall be less than the sum which would have been payable under this Agreement, if it had been completed by said FIRM, then COM shall nave no obligation to remit the difference to the FIRM. If such damages and costs exceed the unpaid balance, then FIRM shall be liable and shall pay to COM the amount of said 18 16.2 If, after Notice of Termination, it is determined for any reason that FIRM was not in default, the rights and obligations of COM and FIRM shall be the same as if the Notice of Termination had been issued pursuant to the Termination for Convenience clause as set forth below. 16.3 The performance of work under this Agreement may be terminated in writing by COM for convenience upon giving a Notice of Termination at least ten (10) business days prior to the intended effective date of termination. In such case, FIRM shall be paid for all work executed, and expenses incurred prior to termination in addition to termination settlement costs reasonably incurred by FIRM relating to commitments which had become FIRM prior to the termination. Payment shall include reasonable profit for services actually performed in full prior to termination date, but shall exclude all lost profits, indirect or special, or other damages. 16.4 Upon receipt of Notice of Termination as provided above, FIRM shall promptly discontinue all affected work, unless the Notice of Termination directs otherwise, and deliver to COM within fourteen (14) calendar days of termination all data, drawings, specifications, reports, estimates, summaries and such other information as may have been required by the Contract Documents whether completed or in process. Compensation shall be withheld until all documents are provided to COM pursuant to this Agreement. 16.5 Notice of Termination shall be in writing and shall be delivered by personal service or by certified mail addressed to the FIRM at the address indicated In Section 7.2.10, or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which personally served, or if by certified mail, on the fifth (5th) day after being posted or the date of actual receipt, whichever is earlier. 17. FIRM'S RIGHT TO STOP WORK OR TERMINATE CONTRACT If the Project should be stopped under an order of any court or other public authority for a period of more than ninety (90) calendar days, through no act or fault of FIRM or of anyone employed by FIRM, or if the OAR should fail to review or approve without stating in writing the reasons for non -approval of any estimate for payment within twenty (20) calendar days after it is presented, or if COM fails to pay FIRM within thirty (30) calendar days after approval and certification by the OAR of any proper statement certified by FIRM accompanied by the required update of the CPM Schedule, then FIRM may, upon seven (7) calendar days prior written notice to COM and the OAR, stop work until payment is made. If COM fails to cure the matter for which notice was given within the seven-day notice period, FIRM may terminate this Agreement and recover from COM payment for all work executed and any expense incurred prior to termination in addition to termination settlement costs reasonably incurred by FIRM relating to commitments which had become FIRM prior to the termination. Payment shall include reasonable profit for services actually performed in full prior to termination date, but shall exclude all lost profits, indirect or special, or other damages. 18. "OR EQUAL" CLAUSE 19 18.1 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 OAR: 18.1.1 At least equal in quality, durability, appearance, strength and design; 18.1.2 Performs at least equally the function imposed in the general design for the Project; 18.1.3 Conforms substantially, even with deviations, to the detailed requirement; for the items as indicated by the Plans and Specifications; and 18.1.4 Carries the same guaranty or warranty of the specified equipment. All substitution requests shall be made in writing by FIRM to OAR which shall be attached to a shop drawing and/or Field 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 OAR 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 FIRM or subcontractor responsible for the work item. 18.2 OAR's written consent shall be required as to acceptability, and no substitute will be ordered, installed or utilized without OAR's prior written acceptance which will be evidenced by either a Field Order or an accepted shop drawing. COM may require FIRM to furnish at FIRM's expense a special performance guarantee or other surety with respect to any substitute. 19. PLANS AND WORKING DRAWINGS COM, through its OAR, shall have the right to require FIRM to modify the details of these drawings (plans) and specifications, to supplement said plans with additional plans, drawings or additional information as the Project proceeds which are within the specific intent and stated scope of the Project and which do not cause increase in Contract Sum or Contract time, all of which shall be considered as part of the Contract Documents at no additional cost to the COM. All plans, general and detail, are to be deemed a part of this Agreement, and the plans and specifications and Agreement are to be considered together, and are intended to be mutually complementary, so that any work shown on the plans, though not specified in the specifications, and any work specified in the specifications though not shown on the plans, is to be executed by FIRM as part of this Agreement. Figured dimensions are to prevail over scale. All things which ira.fiaawapia .aufhe.GiAB yr .jabaad l., .nao it d plate wo 20 developed by FIRM and approved by COM are to be executed by FIRM under the terms of this Agreement; and the OAR shall determine whether the detail plans conform to the Contract Documents. The dispute resolution procedures set forth in this Agreement shall be applicable to the determination of the OAR. 20. FIRM TO CHECK DRAWINGS AND DATA FIRM shall 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 FIRM of full responsibility for unsatisfactory work, faulty construction, or improper operation resulting therefrom nor from rectifying such condition at FIRM's sole cost and expense. FIRM will not be allowed to take advantage of any error or omissions. 21. WARRANTY FIRM warrants to COM 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 Design/Build FIRMs that are duly qualified and licensed to perform similar projects. All work for the Project not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If materials or equipment is improperly stored and becomes altered as a result of such improper storage, FIRM shall replace said materials with new materials at no additional cost to COM. FIRM shall be responsible for proper storage and safeguarding of all materials. If required by the OAR, FIRM shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The warranty requirements set forth in the Contract Documents as herein defined shall govern warranty terms and conditions for all warranty items expressed or implied. The FIRM's warranty period under this Section shall be twelve (12) months from the date of Substantial Completion. However, this Section shall not abridge the times or impede the rights and remedies afforded the COM against other entities or persons under the Contract Documents, or by law. 22. SUPPLEMENTARY DRAWINGS 22.1 When, in the opinion of FIRM and/or COM, 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 Architect and submitted by FIRM to the OAR for review and written acceptance. 22.2 The authorized supplementary drawings shall be binding upon FIRM with the same force as the Contract Documents. 23. DELIVERY, INVENTORY, AND STORAGE OF MATERIALS AND PARTIAL PAYMENT THEREFORE 23.1 COM may, at its sole option, allow partial payment for materials delivered and securely stored either on or off site for use on the Project. 21 23.2 Material stored on the job site shall be verified as to quantity and condition by the OAR or his or her representative prior to any payment. Safeguarding the material shall be the responsibility of the FIRM. Any materials which have been lost, stolen, damaged or otherwise deemed unacceptable by the OAR shall be removed and/or immediately replaced by the FIRM at no additional cost to COM. 23.3 Materials stored off the job site for which partial payment is sought shall be stored in a bonded warehouse. The material shall be inspected by the OAR who will verify quantities and condition of all materials. Safeguarding the material shall be the responsibility of the FIRM. Such bonded warehouse shall have insurance for fire, extended coverages, and theft protection in the full one hundred percent (100%) amount of the materials stored off the job site for which partial payment is sought. 24. GENERAL WORKMANSHIP 24.1 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, and as approved by the OAR. FIRM shall, if required, furnish satisfactory evidence as to kind and quality of the materials. Should materials arrive to the job -site new and be improperly stored and deteriorate from new condition, the materials shall be replaced at no additional cost to COM. 24.2 FIRM shall apply, install, connect, and erect manufactured items or materials according to recommendations of manufacturer when such recommendations are not in conflict with the Contract Documents. FIRM shall furnish copies of manufacturer's recommendations to COM before proceeding with the work. 24.3 If there is conflict between manufacturer recommendations and the Construction Documents, OAR shall be notified and participate in the corrective actions. 25. DEFECTIVE WORK 25.1 OAR shall have the authority to reject or disapprove work for the Project which OAR finds to be defective. Defective work is defined as work not 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 -work -like manner. If required by OAR, FIRM shall promptly either, as directed, correct all defective work or remove it from the Project site and replace it with non - defective work. FIRM shall bear all costs of such removal or correction. 25.2 If, within one (1) year after Substantial Completion, any work is found to be defective or not in accordance with the Contract Documents, FIRM shall correct it promptly without cost to COM, after receipt of written notice from COM to do so unless COM has given FIRM a written acceptance of such conditions. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligations which FIRM might have under applicable state law. 22 25.3 Should FIRM fail or refuse to remove or correct any defective work performed for the Project or to make any necessary repairs in an acceptable manner and in accordance with the requirements of this Agreement within a reasonable time, indicated in writing, COM shall have the authority to cause the unacceptable or defective work to be removed or corrected, or make such repairs as may be necessary to be made at FIRM's expense. Any expense incurred by COM in making these removals, corrections or repairs, which FIRM has failed or refused to make shall be paid for out of any monies due or which may. become due to FIRM, or may be charged against the bond or guaranty. Continued failure or refusal on the part of FIRM to make any or all necessary repairs promptly, fully, and in an acceptable manner shall be sufficient cause for COM to declare this Agreement forfeited, in which case COM, at its option, may purchase materials, tools, and equipment and employ labor or may contract with any other individual, FIRM or corporation, or may proceed with its own forces to perform the work. All costs and expenses incurred thereby shall be charged against the defaulting FIRM; and the amount thereof deducted from any monies due, or which may become due to FIRM, or shall be charged against the bond or guaranty. Any special work performed, as described herein, shall not relieve FIRM in any way from its responsibility for the work performed by it. 25.4 Failure to reject any defective work or material shall not in any way prevent later rejection when such defect is discovered or obligate COM to final acceptance. Work shall not be rejected after final acceptance by COM. 26. SUBCONTRACTS FIRM shall, at such times as FIRM decides which subcontractors shall perform the various portions of the work, promptly notify the OAR in writing of the names of subcontractors for the Project and identify the portion of the work for the Project each will perform. FIRM shall have a continuing obligation to notify the OAR of any change in subcontractors. Notification of the names of subcontractors shall not relieve FIRM from the prime responsibility of full and complete satisfactory performance of all contractual obligations. 27. CONSTRUCTION AREA 27.1 FIRM shall use areas approved by the OAR for deliveries and personnel. Contract limits of construction area are indicated on the concept drawings as issued by the OAR. Equipment, material and personnel shall be in conformance with this Contract. 27.2 To provide for maximum safety and security, FIRM 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. 28. LANDS FOR WORK COM 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 FIRM. No claim for damages or other claim other than for an extension of time shall be made or asserted against COM by reason of any delay arising as a result of any failure of COM to provide such lands, rights -of -way and easements for access thereto and such other lands ..as are desjpnataci iar ibP,A.44SE.PnA10..dale nalidgiCI4y.FJEOL 23 29. LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS FIRM shall conform to all applicable laws, regulations, and ordinances with regard to labor employed, hours of work and FIRM's general operations. FIRM shall also conduct Its operations so as to assure the least possible obstruction to traffic and inconvenience to the general public, and provide adequate protection of persons and property in the vicinity of the work. FIRM shall make all necessary arrangements concerning maintenance of traffic and selection of detours required, which shall be subject to the approval of the OAR. 30. DAMAGE TO EXISTING FACILITIES. EQUIPMENT OR UTILITIES 30.1 It is the FIRM's responsibility to ascertain the location of existing utilities and verify such information and to preserve all existing utilities whether shown in the Contract Documents or not. If utility conflicts are encountered by FIRM during construction, FIRM shall give sufficient notice to the owners of theutilities so that they may make the necessary adjustments. 30.2 FIRM shall exercise care and take all precautions during excavation and construction operations to prevent damage caused by FIRM to any existing facilities, equipment, or utilities. Any damage caused by FIRM shall be reported immediately to the OAR and such work shall be repaired and/or replaced by FIRM in a manner approved by COM. Ali costs to repair and/or replace any damage caused by FIRM to existing facilities, equipment, or utilities shall be the sole responsibility of FIRM, and such repair or replacement shall be performed expeditiously with no cost to COM. 30.3 FIRM shall provide 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. 30.4 Protection of work shall include protecting of work that is factory finished, during transportation, storage, during and after installation. Where applicable and as required, FIRM shall close off spaces of areas where certain work has been completed to protect it from any damages caused by others during their operations. 30.5 FIRM shall store materials and shall be responsible for and shall maintain partly or wholly finished work during the continuance of this Contract and until the final acceptance of the structure. If any materials or part of the work should be lost, damaged, or destroyed by any cause or means whatsoever, the FIRM shall satisfactorily repair and replace the same at FIRM's own cost. The FIRM shall maintain suitable and sufficient guards, if necessary, and barriers, and at night, suitable and sufficient lighting for the prevention of accidents. The determination of necessity will be made by the OAR. 30.6 To all applicable sections where preparatory work is part of work thereon, FIRM shall carefully examine surfaces over which finished work is to be installed, laid or applied, before commencing with the work. FIRM shall not proceed with said work until defective surfaces on which work is to be applied are satisfactorily corrected by FIRM. 24 30.7 It will be the FIRM's responsibility to preserve all existing utilities within the Project limits or as otherwise effected by FIRM. If utility conflicts are encountered by the FIRM during construction, sufficient notice shall be given to their owners so that they may make the necessary adjustments. Damage to any utilities caused by FIRM, shall be repaired at the FIRM's expense. 31. CONTINUING THE WORK FIRM shall carry on the Project and adhere to the progress schedule during all disputes or disagreements with COM. No work shall be delayed or postponed pending resolution of any disputes or disagreements. Unless otherwise specifically stated, the provisions of this Section shall supersede all other provisions of this Agreement. 32. FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS 32.1 The OAR shall have the right to approve and issue Field Orders setting forth written interpretations of the intent of the Contract Documents and ordering minor changes in contract execution, providing the Field Order involves no change in the total cost of the Project or the time of performance. 32.2 The OAR shall have the right to approve and issue supplemental instructions setting forth written orders, instructions, or interpretations concerning this Agreement or its performance, provided they make no major changes in Contract execution and involve no change in the total cost of the Project or the time of performance: 33. CHANGE ORDERS 33.1 Changes in the quantity or character of work within the scope of this Project which are not properly the subject of Field Orders or supplemental instructions, to include all changes resulting in changes in the total cost of the Project or the time of performance, shall be authorized only by Change Orders approved and issued by COM in accordance with the City of Miami Procurement Code. 33.3 FIRM shall not start work on any alteration requested by OAR which requires an increase in price or extension of time for completion unless and until a Change Order setting forth the adjustments is approved by COM. 33.5 On approval of any Change Order increasing the price, FIRM shall ensure that the applicable Performance and Payment Bonds and Guarantees are each increased so that it reflects the total amount of the Project as increased. 33.6 Proposed Change Orders shall be prepared by the OAR on forms provided by COM. When submitted for approval, they shall carry the signature of the FIRM and the OAR. 33.7 Change Orders may be issued unilaterally by COM. 33.8 FIRM shall deliver copies of all Change Orders to the Surety. 33.9 Change Orders which arise from oversight in the Design by FIRM shall be the sole 25 34, VALUE OF CHANGE ORDER WORK 34.1 The value of any work covered by a Change Order shall be determined in one of the following ways: 34.1.1 Where the work involved is covered by unit prices contained in the Contract Documents, by application of unit prices to the quantities of items involved, subject to the provisions herein. 34.1.2 By mutual acceptance of a lump sum which includes FIRM's fee for overhead and profit and includes any Design and Subcontractor fees. 34.1.3 On the basis of the "cost of the work," determined as provided in Sections 34.2 and 38.3 below. 34.2 The term "cost of work" means: 34.2.1 For all labor, including employees, on-slte project manager, project engineer, project superintendent, and assistant project superintendent, the FIRM shall receive a sum equal to the current local rate of wage for every hour that the labor is actually engaged in such work, to which shall be added an amount equal to 15% of such sum. Additionally the FIRM shall be paid the actual cost of Social Security Taxes, Health insurance, Surety Bond, Unemployment Insurance, Workmen's Compensation Insurance and other employee benefits, and Public Liability and Property Insurance involved in such extra work, based on actual wages paid to such labor. 34.2.2 For all materials used, the actual costs of such materials used and incorporated in the Project, including costs of transportation, to which cosi. shall be added an amount equal to 10% thereof. All cash discounts shall accrue to FIRM unless COM deposits funds with FIRM. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to COM, and FIRM shall make provisions so that they may be obtained. 34.2.3 The actual cost of rentals of construction equipment and machinery and the parts thereof whether rented from FIRM or others in accordance with rental agreements approved by COM and the costs of transportation, loading, unloading, installation, dismantling and removal thereof, all in accordance with the terms of said agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the Project. Late charges, penalties, restocking charges and similar assessments in said agreements will not be recognized by the COM as a supplemental cost, unless such charges were incurred and actually assessed against the FIRM due to performance of the work at the request of the COM. 34.2.4 Payments made by FIRM to subcontractors for work performed by subcontractors. The term subcontractor shall include architects and 4 required by the OAR, FIRM shall obtain competitive bids from 26 subcontractors acceptable to FIRM and shall deliver such bids to COM who will then determine which bids will be accepted. If the subcontract provides that the subcontractor is to be paid on the basis of cost of the work plus a fee, the subcontractor's cost of the work shall be determined in the same manner as FIRM's cost of the work. Whenever a subcontractor is involved, a complete and separate breakdown must be submitted by the subcontractor for its portion of work. All subcontractors shall be subject to the other provisions of the Contract Documents insofar as applicable. 34.2.5 Costs of special consultants, including, but not limited to, testing laboratories, surveyors, lawyers and accountants, employed for services specifically related to the Project. 34.3 The term "cost of the work" shall not include any of the following: 34.3.1 Payroll costs and other compensation of FIRM's officers, executives, principals (of partnership and sole proprietorships), general managers, estimators, lawyers, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks and other personnel employed by FIRM whether at the Project site or in FIRM's principal or branch office for general administration of the Project and not specifically included in the agreed -upon schedule of job classifications, all of which are to be considered administrative costs covered by FIRM's fee. 34.3.2 Expenses of FIRM's principal and branch offices other than FIRM's office at the Project site. 34.3.3 Any part of FIRM's capital expenses, including interest on FIRM's capital employed for the Project and charged against FIRM for delinquent payments. 34.3.4 Cost of premiums for all bonds and for all insurance whether or not FIRM is required by the Contract Documents to purchase and maintain the same, except for additional bonds and insurance required because or changes in the Project. 34.3.5 Costs due to the negligence of FIRM, any subcontractors, any consultants of FIRM, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective or nonconforming work, disposal of materials or equipment wrongly supplied and making good any damage to property. 34.3.6 Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in Section 34.2. 34.4 The amount of credit to be allowed by FIRM to COM for any such change which results in a net decrease in cost will be the amount of the actual net decrease. When both additions and credits are involved in any one change, the combined overhead and profit 27 34.5 Whenever the cost of any work is to be determined pursuant to this Section, FIRM will submit in a form acceptable to the OAR an itemized cost breakdown together with the supporting data. 34.6 Where the quantity of work with respect to any item that is covered by a unit price is increased or decreased by more than twenty percent (20%) from the quantity of such work indicated in the Contract Documents, an appropriate Change Order may be issued to adjust the unit price, if warranted. 34.7 Whenever a change in the work is to be based on mutual acceptance of a lump sum, whether the amount is an addition, credit or no -change -in -cost, FIRM shall promptly submit to the OAR an estimate substantiated by a complete itemized breakdown. 34.7.1 Breakdown shall list quantities and unit prices for materials, labor, equipment and other items of cost, 38.7.2 Whenever a change involves FIRM and one or more subcontractors or consultants and the change is an increase in the Contract price, overhead and profit percentages for FIRM and each subcontractor or consultant shall be itemized separately. 34.8 Each Change Order must state within the body of the Change Order whether it is based upon unit price, negotiated lump sum, or "cost of work." 35. CHANGE OF CONTRACT TIME OR CONTRACT SUM 35.1 The Contract Time and 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 fee to be paid to FIRM shall be based on written notice delivered by the party making the claim to the OAR promptly (but in no event later than seven (7) business days after the occurrence of the event giving rise to the claim and stating the general nature of the claim). Notice of the extent of the claim with supporting data shall be delivered within twenty (20) calendar days after such written notice (unless OAR allows, in writing, an additional period of time to ascertain more accurate data in support of the claim) and shall be accompanied by the claimant's written statement that the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in the Contract Time or for an increase in the Contract Sum shall be decided by the OAR in accordance with this Agreement. No claim for an adjustment in the Contract time or for an increase in the fee to be paid to FIRM will be valid if not submitted in strict accordance with the requirements of this Section. . 35.2 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 FIRM if a claim is made therefor as provided herein. Such delays shall include, but not be limited to, acts or neglect by COM, or by any employee of COM, or any separate contractor or consultant employed by COM, fires, floods, labor disputes, epidemics, or acts of God. 36. NO DAMAGES FOR DELAY 28 NO CLAIM FOR DAMAGES OR ANY CLAIM, OTHER THAN FOR AN EXTENSION OF TIME, SHALL BE MADE OR ASSERTED AGAINST COM BY REASON OF ANY DELAYS. FIRM shall not be entitled to an increase in the Contract Sum or payment or compensation of any kind from COM for direct, indirect, consequential, impact or other costs, expenses or damages, including, but not limited to, costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable; except due solely to fraud, bad faith or active interference on the part of COM or its agents. Otherwise, FIRM shall be entitled only to extensions of the contract time as the sole and exclusive remedy for such resulting delays, in accordance with and to the extent specifically provided above. The specific application of this Section to other provisions of this Agreement shall not be construed as a limitation of any sort upon the further application of this Section. Ten dollars ($10.00) of FIRM'S fee is acknowledged as separate and independent consideration for the covenants contained in this Section. 37. SUBSTANTIAL COMPLETION When FIRM considers a Phase of the Project, or a designated portion thereof which is acceptable to COM, is substantially complete, FIRM shall so notify the OAR in writing and shall prepare for submission to the OAR a thorough list of items to be completed or corrected, together with a schedule for completion of all items. Said list shall include all disciplines including but not limited to HVAC, plumbing, electric, architecture, civil, landscape, etc. List shall be prepared by Design Professional in each discipline. The failure to include any items on such list does not alter the responsibility of FIRM to complete all work in accordance with the Contract Documents. The OAR or a designee shall conduct an inspection to determine that the Project or designated portion thereof is substantially complete. The OAR will then instruct FIRM to prepare and deliver to the OAR a Certificate of Substantial Completion which shall establish the date of Substantial Completion. After review of the Certificate by the OAR, COM shall either accept or reject the Certificate. Acceptance of Substantial Completion by COM and its OAR shall be based upon compliance with the Contract Documents and applicable codes, laws, rules, and regulations having jurisdiction over this Project and obtaining a temporary certificate of occupancy. FIRM shall have thirty (30) days to complete the items listed therein. Warranties required by the Contract Documents and submitted in appropriate form to the OAR along with the request for Substantial Completion shall commence on the date of Substantial Completion. The Certificate of Substantial Completion shall be submitted to COM through the OAR and FIRM for written acceptance of the responsibilities assigned to them in such Certificate. 38. SHOP DRAWINGS AND SCHEDULE OF VALUES 38.1 FIRM shall submit Shop Drawings for all equipment, apparatus, machinery, fixtures, piping, wiring, fabricated structures and manufactured articles. The purpose of a Shop Drawing is to show the suitability, efficiency, technique of manufacture, installation requirements, details of the item and evidence of its compliance or noncompliance with the Contract Documents. 38.2 FIRM shall submit to the OAR within thirty (30) calendar days following the application for a building permit a complete list of preliminary data on items for which Shop Drawings are to be submitted. Approval of this list by the OAR shall in no way relieve FIRM frorn submitting complete Shop Drawings and providing materials, equipment, etc., fully in anommlemssoviiiidikeamitimotiOeimments. Z4hisloveseakiteismageksaliessmisighadmillamilt final approval, of Shop Drawings. 29 38.3 After the approval of the list of items required in this Section, FIRM shall promptly request Shop Drawings from the various manufacturers, fabricators, and suppliers. 38.4 FIRM shall thoroughly review and check the Shop Drawings and each and every copy shall show FIRM's approval thereon. 38.5 If the Shop Drawings show or indicate departures from the Contract requirements, FIRM shall make specific mention thereof in its letter of transmittal. Failure to point out such departures shall not relieve FIRM from its responsibility to comply with the Contract Documents. 38.6 No work called for by Shop Drawings shall be done until the said Drawings have been furnished to and accepted by the OAR. Acceptance is for design intent only and shall not relieve FIRM and Architect from responsibility for fit, form, function, quantity or for errors or omissions of any sort on the Shop Drawings. 38.7 No acceptance will be given to partial submittal of Shop Drawings for items which interconnect and/or are interdependent. It is FIRM's responsibility to assemble the Shop Drawings for all such interconnecting and/or independent items, check them and then make one submittal to the OAR along with FIRM's comments as to compliance„ noncompliance, or features requiring special attention. 38.8 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. 38.9 FIRM shall submit, to OAR, six (6) copies. Resubmissions of Shop Drawings shall be made in the same quantity until final acceptance is obtained. 38.10 OAR's acceptance of the Shop Drawings as approved by FIRM will be for general compliance with the plans and specifications design intent and shall not relieve FIRM of responsibility for the accuracy of such Drawings, nor for the proper fittings and construction of the work, nor for the furnishing of the materials or work required by this Contract and not Indicated on the Drawings. 38.11 FIRM shall keep one set of Shop Drawings marked with the OAR's acceptance at the Project site at all times. 38.12 At least thirty (30) calendar days prior to the Project Commencement Date, the FIRM shall submit a schedule of values to the OAR. FIRM shall submit to COM a separate schedule of values for demolition, abatement, and site work thirty (30) calendar days prior to commencing such portion of the work. The schedule will be typed on 8-1/2" x 11" white paper listing: Title of project, location, project number, architect, contractor, contract designation, and date of submission. The schedule shall list the installed value of the component parts of the work 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 .rwNJ�eisibiiadje Diet and 41410411 id TIE specifications. For each line item, FIRM shall list the sub -values of major products or 30 operations under the item. Each item shall include the proportion of FIRM's overhead and profit. For any items for which progress payments will be requested for stored materials, the value will be broken down with (i) the cost of materials delivered, unloaded, properly stored and safeguarded, with taxes paid; and (ii) the total installed value. 39. FIELD ENGINEERING 39.1 The FIRM shall provide and pay for field engineering services required for the Project. This work shall include the following elements: 39.1.1 Survey work required in execution of the Project. 39,1,2 Civil, structural or other professional engineering services specified, or required to execute the FIRM's construction methods. 39,2 The survey completed by FIRM shall identify the qualified engineer or registered land surveyor, acceptable to the COM, and he or she shall be retained by the FIRM at the outset of this Project. The surveyor shall be duly registered as a surveyor or mapper, as required by state law. 39.3 The survey will locate and protect control points prior to starting site work, and will preserve all permanent reference points during construction. The surveyor shall be required to replace Project control points which may be lost or destroyed. Replacements shall be established based upon original survey control. A report shall be made to the FIRM when any reference point is lost or destroyed, or requires relocation because of necessary changes in grades or locations. No changes or relocations will be made without prior written notice to FIRM. Threshold inspection and test and balancing to be done by consultants directly employed by COM. 40. FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS 40.1 The entire responsibility for establishing and maintaining a line and grade in the field lies with FIRM. FIRM 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 OAR 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. 40.2 FIRM 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 OAR for reference. Upon completion of the Project, these record documents, samples and Shop Drawings shall be delivered to OAR. 40.3 At the completion of the Project, the FIRM shall turn over do the COM a set of reproducible drawings (Mylars) and a complete set of all drawings in the latest oweesion 421.4mkaGigianliDwat.omrApispasad.rr h.aoamiaig reflect the "as built" conditions of the new facility. All changes made to the construction 31 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 OAR. These "as built" drawings on Mylar and the latest commercially released version of AutoCAD media must be delivered and found to be acceptable prior to final payments. 41. SAFETY AND PROTECTION 41.1 FIRM shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project. FIRM shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: (i) all employees on the Project and other persons who may be affected thereby; (II) all the work and all materials or equipment to be incorporated therein, whether in storage on or off the Project site; and (111) 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. 41.2 FIRM shall comply with all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. FIRM shall notify owners of adjacent property and utilities when prosecution of the work may affect them. All damage, injury or loss to any property referred to in this section, caused directly or indirectly, in whole or In part, by FIRM, any subcontractor or consultant or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by FIRM; however, FIRM shall not be liable for injury or damage caused by COM, its employees, consultants or its separate contractors. FIRM's duties and responsibilities for the safety and protection of the Project shall continue until such time as the Project is completed and the OAR has issued a notice to FIRM that the Project is acceptable. 41.3 FIRM shall designate a responsible member of its organization at the Project site whose duty shall be the prevention of accidents. This person shall be FIRM's Project Representative unless otherwise designated in writing by FIRM to COM. 41.4 In an emergency affecting safety of persons or property, the FIRM shall act, at the FIRM's discretion, to prevent threatened damage, injury or loss 42. PROJECT SIGNAGE FIRM, in consultation with COM, shall furnish and erect two (2) signs at the Project site. Each sign shall be made of 3/4 inch plywood, substantially in accordance with this Section. Signs shall be placed in a prominent location and maintained in good condition until completion of the Project when signs shall then become the property of COM. The dimensions of the Project Signs shall be four feet by eight feet or as otherwise determined by the OAR. The detail of the Project Signs, and the language to be displayed, shall be as determined by the OAR. At a minimum, FIRM shall submit artwork with name and logos of Project, FIRM, COM and date of completion. 43. CLEANING UP AND REMOVAL OF EQUIPMENT 41:41461%ftilistiall rubbish caused by FIRM's operations. At the completion of the Project, FIRM shall 32 remove all its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If FIRM fails to clean up at the completion of the Project, COM may do so; and the cost thereof shall be charged to FIRM. 43.2 If a dispute arises between FIRM and separate contractors as to responsibility for cleaning up, COM may clean up and charge the cost thereof to the contractors responsible therefore in the proportion for which they are responsible after timely notice and opportunity to correct. This provision is solely for cleaning. 43.3 In case of termination of this Agreement before completion for any cause whatever, FIRM, if notified to do so by COM, shall promptly remove any part or all of FIRM's equipment and supplies from the property of COM, failing which COM shall have the right to remove such equipment and supplies at the expense of FIRM. 44. DAVIS-BACON WAGE DETERMINATION AND SECTION 3 REQUIREMENTS NOT APPLICABLE 45. BONDS AND INDEMNIFICATION 'NOTE: SUBJECT TO RISK MANAGEMENT'S, APPROVAL)] FIRM shall furnish, on or before execution of this Agreement, the following: 45.1 Performance Bond and Payment Bond (Surety): 45.1.1 A performance bond and payment bond in the form and containing all the provisions attached hereto and made a part hereof as Exhibits E and F. 45.1.2 The Bonds shall be in the amount of one hundred percent (100%) of the Contract Sum guaranteeing to COM the completion and performance of the Project as well as full payment of all suppliers, materialpersons„ laborers, or subcontractors employed pursuant to this Project. Such Bonds shall be with surety qualified pursuant to Section 45.3. 45.1.3 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 price, or an additional bond shall be conditioned that FIRM will, upon notification by COM, correct any defective or faulty work or materials which appear within one year after completion of this Contract. 45.2 Performance and Payment Guaranty: 45.2.1 In lieu of a performance bond and payment bond under Section 45.1, FIRM may furnish to COM an alternate form of security which may be in the form of cash, money order, certified check, cashier's check or irrevocable letter of credit. Such alternate forms of security shall be for the same purpose and shall be subject to the same conditions as those a}s OiseiglelmlNve w and acceptance of the Project. 33 i4 45.3 Qualifications of Surety: 45.3.1 A separate performance bond and payment bond must be executed by a surety company of recognized standing, authorized to do business in the state of Florida as surety, having a resident agent in the state of Florida and having been in business with a . record of successful continuous operation for at least five (5) years. 45.3.2 In addition to the above -minimum qualifications, the surety company must meet at least one of the following additional qualifications: 45.3.2.1 The surety company shall hold a current certificate of authority as acceptable surety on federal ' bonds in accordance with United States Department of Treasury Circular 570, Current Revisions. If the amount of the Bond exceeds the underwriting limitation set forth in the circular, in order to qualify, the net retention of the surety comiaany shall not exceed the underwriting limitation in the circular, and the excess risks must be protected by coinsurance, reinsurance, or other methods in accordance with Treasury Circular 297, revised September 1, 1978 (31 CFR Section 223.10 Section 223.111). Further, the surety company shall provide COM with evidence satisfactory to COM, that such excess risk has been protected in an acceptable manner. 45.3.2.2 Amount of Bond The surety company shall have at least the following minimum ratings in the latest revision of Best's Insurance Report: Policy- Financial holder's Size Ratings Category 500,001 to 1,000,000 B+ Class I 1,000,001 to 2,000,000 B+ Class II 2,000,001 to 5,000,000 A Class III 5,000,001 to 10,000,000 A Class IV 10,000,001 to 25,000,000 A Class V 25,000,001 to 50,000,000 A Class VI 50,000,001 or more A Class VII 45.4 INDEMNIFICATION OF COM 45.4.1 FIRM shall Indemnify and save harmless COM and the City of Miami, its officers, agents, and employees, from or on account of any injuries or damages, received or sustained by any person, persons, or property caused by the negligence or misconduct of FIRM, its agents, employees, subcontractors, or other persons permitted by FIRM to perform on the Project site during, or on account of, any operations connected with the construction of this Project, including warranty period; or by or in .seal.ku+cmetlr+at, negligence of COM, in connection with the same; or any negligent act or 34 omission of FIRM or its subcontractors, agents, servants or employees. FIRM agrees to indemnify and save harmless COM, its officers, agents and employees, against any claims or liability arising from or based upon the violation of any federal, state, or local laws, ordinances or regulations and any misconduct related thereto by FIRM, its subcontractor, agents, servants or employees. FIRM agrees to indemnify and save harmless COM, its officers, agents and employees, from all such claims and fees, and from any and all suits and actions of every name and description that may be brought against COM, its officers, agents and employees, 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 COM, its officers, agents and employees, for the negligence or misconduct of FIRM which results in infringement of any and all patents or patent rights claimed by any person, FIRM, or corporation. FIRM further agrees to indemnify and save harmless COM, its officers, agents and employees, for or on account of any injuries or damages, received or sustained by any person or persons resulting from any construction defects, including patent defects caused by the negligence or misconduct of FIRM, its agents, servants, employees, and subcontractors. These indemnifications survive the term of this Contract. In the event that any action or proceeding is brought against COM by reason of any such claim or demand, FIRM, upon written notice from COM shall resist and defend such action or proceeding by counsel satisfactory to COM. This consideration is separate and distinct from any other consideration received by FIRM. 45.4.2 The indemnification provided above shall obligate FIRM to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at COM's option, any and all claims of liability and all suits and actions of every name and description that may be brought against COM which may result from the operations and activities under this Agreement performed by FIRM, its subcontractors, its consultants or by anyone employed by any of the above. 45.4.3 The execution of this Agreement by FIRM shall obligate FIRM to comply with the foregoing indemnification provision. 45.5 INSURANCE Without limiting any other obligations or liabilities of FIRM, FIRM shall provide, pay for, and maintain in force at all times until the Project is completed and accepted by COM and COM's Risk Management (provided that if a longer duration is specified in this Agreement for particular coverages, then the longer duration shall be applicable thereto), such insurance as follows: I. Builders' Risk A. Limits of Liability -To be determined in accordance with the terms of the construction contract. 35 B. Endorsements Required • "All Risk" Form • Non -Reporting Form - Completed Value • Specific Coverage (Project Location and Description) • Loss or Damage to building material, and property of every kind and description, including insured's property to be used in, or incidental to construction • Business Interruption • Boiler and Machinery • Transit • Foundation Coverage • Scaffolding and Forms Coverage • Plans, Blueprints, and Specifications Coverage • Collapse • Flood, including inundation, rain, seepage and water damage • Earthquake • Subsidence • Windstorm including hurricane • Freezing and Temperature Extremes or changes coverage • Ordinance or building laws • Theft or burglary • Coverage for loss arising out of Faulty Work or Faulty Materials • Coverage for loss arising out of Design Error or Omission • Testing • Debris Removal • Soft (Additional Financing) Costs Coverage • Replacement Cost Valuation • Coinsurance Requirements Waived • Waiver of Subrogation • Maintenance of Insurance Coverage through warranty period II. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations Aggregate Limit per project $ 2,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required l'itiI't Aliamiilne a lmsan AtIllTfivnlrinsweti 36 • Products/Completed Operations -Coverage should be kept in force for a period of not Tess than three years from the date of which the work was performed • Employees included as insured • Independent Contractors Coverage • Personal Injury • Contractual Liability • Waiver of Subrogation • Premises/Operations • Care, Custody and Control Exclusion Removed • Explosion, Collapse and Underground Hazard • Incidental Medical Malpractice • Loading and Unloading • Mobile Equipment (Contractors Equipment) whether owned, leased, borrowed or rented by the contractor or employees of the contractor III. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident B. Endorsements Required City of Miami included as an Additional Insured Employees included as insured Waiver of Subrogation IV. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation V. Employer's Liability A. Limits of Liability $ 1,000,000 $1,000,000 for bodily injury caused by an accident, each accident $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit ILJ. Jixabadia,Rallgy A. Limits of Liability 37 Bodily Injury and Property Damage Liability Combined Single Limit $ 5,000,000 Each Occurrence $ 5,000,000 Aggregate Products/Completed Operations Aggregate Limit $ 5,000,000 B. Excess Coverage over the policies as follows Commercial General Liability Business Automobile Liability Employers' Liability FIRM shall provide, pay for and maintain in force at all times during the Project, Professional Liability Insurance, as will assure to COM the protection contained in this Agreement. The insurance coverages shall be at least as set forth below. Each insurance policy shall clearly identify the foregoing indemnification as insured. 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. FIRM shall specifically protect COM by naming COM, its Board, and the City of Miami named insureds under the Comprehensive General Liability Insurance Policy hereinafter described. 46. MISCELLANEOUS 46.1 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. 46.2 DATUM All elevations are referred to as National Geodetic Vertical Datum (N.G.V.D.) of 1929. 46.3 RIGHTS OF VARIOUS INTERESTS Whenever work being done by COM'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 OAR to secure the completion of the various portions of the work in general harmony. 46.4 THIRD PARTY BENEFICIARIES Neither FIRM nor COM intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this AgirseivestevidiNnitlasititing figartreimmtlitnrertaledloosseltemisierapiustistliewalt them based upon this Agreement. The parties expressly acknowledge that it is not their 38 intent to create any rights or obligations under this Agreement in any third person or entity. 46.5 ASSIGNMENT Neither party to this Agreement shall assign this Agreement nor subcontract it as a whole without the written consent of the other, nor shall FIRM assign any monies due or to become due to it hereunder, without the prior written consent of theOAR. 46,6 NO INTEREST Any monies not paid by COM when claimed to be due to FIRM under this Agreement shall not be subject to interest. However, the provisions of COM's prompt payment ordinance, as such relates to timeliness of payment, and the provisions of Section 218.74(4), Florida Statutes, as such relates to the payment of interest, shall apply to valid and proper invoices. 46.7 OWNERSHIP OF DOCUMENTS Drawings, specifications, designs, architectural plans, models, photographs, computer AutoCAD disks, reports, surveys, and other data provided in connection with this Agreement and for which COM has rendered payment, are and shall become and remain the property of COM whether the Project for which they are made is executed or not. FIRM and COM agree that all such work shall be considered work made for hire. If this Agreement is terminated for any reason prior to completion of the work, COM may, in its discretion, use any design and documents prepared hereunder for the purpose of completing the Project; provided that if such termination occurs prior to completion of documents and/or through no fault of FIRM; FIRM shall have no liability for such use. After COM has paid for services under this Agreement, COM may reuse any design and documents prepared pursuant to this Agreement at other locations or sites without written verification or adaptation of FIRM, including reuse with modification or adaptation by others; provided that any reuse without the written verification or adaptation of FIRM for the specific purpose intended will be without liability to FIRM. At the completion of the Project, as part of the Project closeout, copies of all drawings on AutoCAD disks shall be transmitted from FIRM to the OAR within seven (7) calendar days of termination of this Agreement in addition to the record drawings (Mylars). 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 FIRM shall be withheld until all documents are received as provided herein. 46.8 RECORDS FIRM shall keep such records and accounts and require any and all architects, consultants and subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement. Such books and records will be available at all reasonable times for examination and audit by COM and shall be kept for the required retention period of the Florida Public Records Act (Chapter 119, Fla. Stat.) if applicable or, if the Florida Public Records Act is not applicable, for a period of three (3) years after the completion of the 21.Qiiicliguasta01.41).1kiis dig wawa. -kaacamplakisorjaararaiclemakiiisakifilaasiailaModiva records will be grounds for disallowance by COM of any fees or expenses based upon such entries. 39 • • 46.9 NONDISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY. AND AMERICANS WITH DISABILITIES ACT FIRM shall not unlawfully discriminate against any person in its operations and activities in its use or expenditure of the funds or any portion of the funds provided by this Agreement and shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded in whole or in part by COM, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. FIRM's decisions regarding the delivery of services under this Agreement shall be made without regard to or consideration of race, age, religion, color, gender, 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 or other affected activity. FIRM shall comply with Title I of the Americans with Disabilities Act regarding nondiscrimination on the basis of disability in employment and further shall not discriminate against any employee or applicant for employment because of race, age, religion, color, gender, sexual orientation, national origin, marital status, political affiliation, or physical or mental disability. FIRM shall not engage in or commit any discriminatory practice in violation of any applicable law in the performance of this Agreement. 46.10 NO CONTINGENT FEE FIRM warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for FIRM to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or FIRM, other than a bona fide employee working solely for FIRM, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, COM shall have the right to terminate this Agreement without liability at its discretion, to deduct from the Contract price, or otherwise recover the full amount of such fees, commission, percentage, gift or consideration. 46.11 REPRESENTATIVE OF COM AND FIRM 46.11.1 It is recognized that questions in the day-to-day conduct of the Project will arise. The OAR shall designate in writing and shall advise FIRM in writing, of one (1) or more COM employees to whom all communications pertaining to the day-to-day conduct of the Project shall be addressed. 46.11.2 The OAR will represent COM in administering the Contract Documents from concept through Closeout. The OAR is the chief liaison between COM and the FIRM. All communications between the FIRM and the COM shall be through the OAR. 40 46.11.3 FIRM shall inform the OAR in writing of the representative of FIRM to whom matters involving the day-to-day conduct of the. Project shall be addressed. 46.12 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. 46.13 NOTICES Whenever either party desires to give notice unto the other, it must be given by written notice, sent by certified United States mail, with return receipt requested, addressed to the party for whom it is intended, at the place last specified; and the place for giving of notice shall remain such until it shall have been changedby written notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as the respective places for giving of notice: FOR COM: FOR FIRM: Director, Department of Capital Improvements And Transportation, City of Miami and OAR Recreational Design & Construction, Inc. Joseph Cerrone Ill, President 46.14 TRUTH -IN -NEGOTIATION CERTIFICATE 41 FIRM's execution of this Agreement shall act as the execution of a truth -in -negotiation certificate stating that wage rates and other factual unit costs supporting the compensation of this Agreement are accurate, complete, and current at the time of contracting. The original Contract price and any additions thereto shall be adjusted to exclude any significant sums by which COM determines the Contract price was increased due to inaccurate, incomplete, or non -current wage rates and other factual unit costs. All such Contract adjustments shall be made within one (1) year following the end of this Agreement. 46.15 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 of this Agreement, such reference is to the Section as a whole, including all of the subsections and subparagraphs of such Section, unless the reference is expressly made to a particular subsection or subparagraph of such Section. 46.16 CONDITION PRECEDENT TO AGREEMENT It is understood by the parties to this Agreement that all duties and obligations as set forth herein for the Design and Construction Phases of the Project are contingent upon and shall not be binding upon COM until such time as Notice to Proceed is issued. The parties hereto acknowledge that as of the date of execution of this Agreement certain necessary governmental approvals may not have been obtained by FIRM in order to lawfully commence the Project. COM shall not be responsible or liable for any damages of any nature whatsoever, including but not limited to, direct, indirect, consequential, impact or other costs and expenses, which may arise as a result of, or connected to, the failure of any governmental entity, other than COM, refusing to grant any necessary approval, permit, variance or any other required consent which may be necessary to commence construction of the Project, or which may arise as a result of any delay in the granting of any such approval, permit, variance or other required consent. 46.17 ENVIRONMENTAL REGULATIONS FIRM shall notify COM immediately of notice of any citation or violation which FIRM may receive during the time of performance of this Contract. 46.18 RECYCLED CONTENT Jra.s44,wddLlf-tbe..Zadda1Alastalil=49=AQUAigkfaaler information available regarding recycled material content in the products provided. COM is particularly interested in the type of recycled material used (such as paper, plastic, 42 glass, metal, etc.); and the percentage of recycled material contained in the product. COM 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. 46.19 PUBLIC ENTITY CRIME ACT FIRM represents that the execution of this Agreement will not violate the Public Entity Crime Act (Section 287.133, Florida Statutes), which essentially provides that a person or affiliate who is a contractor, consultant, or other provider and 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 COM, may not submit a bid on a contract with COM for the construction or repair. of a public building or public work, may not submit bids on leases of real property to COM, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with COM, and may not transact any business with COM 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 termination of this Agreement and recovery of all monies paid by COM pursuant to this Agreement, and may result in debarment from COM's competitive procurement activities. In addition to the foregoing, FIRM further represents that there has been no determination, based on an audit, that it committed an act defined by Section 287.133, Florida Statutes, as a "public entity crime" and that it has not been formally charged with committing an act defined as a "public entity crime" regardless of the amount of money involved or whether FIRM has been placed on the convicted vendor list. 46.20 CONTRACT CLOSEOUT 46.20.1 FIRM shall comply with requirements stated in this Agreement and in Specifications for administrative procedures in closing out the work. When FIRM considers the work substantially complete, FIRM shall submit to OAR a written note that the work, or designated portion thereof, is substantially complete, and a list of items to be completed or corrected. 46.20.2 Within five (5) business days after receipt of such notice, OAR will make an inspection to determine the status of completion. Should OAR determine that the work is not substantially complete, OAR will promptly notify the FIRM, in writing, giving the reasons therefor. FIRM shall remedy the deficiencies in the work, and send a second written notice to OAR that the work or designated portion thereof, is substantially complete, again listing items to be completed or corrected. 46.20.3 FIRM and OAR will reinspect the work. When OAR determines that the work is substantially complete, FIRM will prepare a Certificate of Substantial Completion in the form of Exhibit H, accompanied by FIRM's list of items to be completed or corrected, as verified and amended by OAR. FIRM will submit the Certificate to the OAR together with FIRM's wvr-mi indaarapasiam correct the list of items identified in the Certificate as needing to be 43 completed or corrected. A date by which each listed item will be completed or corrected shall also be included. 46.20.4 When FIRM considers the work to be complete, FIRM shall submit written certification that: 46.20.4.1 The Contract Documents have been reviewed. 46.20.4.2 The work has been inspected for compliance with Contract Documents. 46.20.4.3 The work has been completed in accordance with Contract Documents. 46.20.4.4 Equipment and systems have been tested in the presence of the COM's representative and are operational. 46.20.4.5 The work is completed and ready for final inspection. ' 46.20.4.6 At the same time that FIRM submits certification, FIRM shall also submit: 46.20.4.6.1 46.20.4.6.2 46.20.4.6.3 46.20.4.6.4 46.20.4.6.5 46.20.4.6.6 46.20.4.6.7 A Final Certificate of Occupancy. Certificates of inspection and testing for mechanical work, and electrical work. Project record documents and "as built" drawings. Operating and Maintenance data and instructions to COM's personnel. Warranties and bonds as required under the Contract Documents. Keys and keying schedule. Evidence of all COM/user operating demonstrations and training for all equipment in Project. 46.20.5 FIRM and OAR or designee will make an inspection to verify the status of completion within ten (10) business days after receipt of such certification. Should the OAR consider that the work is incomplete or defective, OAR will promptly notify the FIRM, in writing, listing the incomplete or defective work. FIRM shall take immediate steps to remedy the stated deficiencies, and send a second written certification to OAR that the work is complete. FIRM and OAR or designee will then reinspect the work. When the OAR fi wia that the shall request the FIRM to make closeout submittals. 44 46.20.6 FIRM's closeout submittals to COM shall provide evidence of compliance with requirements of governing authorities and testing agencies and shall include: 46.20.6.1. The requirements of the Contract Documents. 46.20.6.2. Evidence of payment and release of liens: To requirements of general and special conditions. 46.20.6.3. Certificate of Insurance for products and completed operations. 46.20.7 FIRM shall submit a final statement of accounting to the OAR. The statement shall reflect all adjustments to the Contract Sum as follows: 46.20.7.1. The original Contract Sum. 46.20.7.2. Additions and deductions resulting from: a. Previous Change Orders. b. Allowances, if applicable. c. Unit prices. d. Deductions for uncorrected work. e. Penalties and bonuses. f. Deductions for liquidated damages. g. Deductions for reinspection payments. h. Other adjustments 46.20.7.3. Total Contract Sum, as required. 46.20.7.4. Previous payments. 46.20.7.5. Sum remaining due. 46.20.8 FIRM will prepare a final Change Order, reflecting approved adjustments to the Contract Sum which were not previously made by Change Orders. 46.20.9 FIRM shall submit the final application for payment in accordance with procedures and requirements stated in the conditions of this Contract. 46.21 JURISDICTION, VENUE, WAIVER OF JURY TRIAL This Agreement shall be interpreted and construed in accordance with and governed by the laws of the state of Florida. Any controversies or legal problems arising out of this Agreement and any action involving the enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction of the state courts of the Eleventh Judicial Circuit and venue for litigation arising out of this Agreement shall be in such state courts. By entering into this Agreement, FIRM and COM hereby expressly waive any rights either party may have to a trial by jury of any civil litigation related to this vAlpraeareat 45 The parties acknowledge and agree that this Agreement is the product of negotiations and has been typed by one party for the benefit of both, and the negotiated terms and conditions herein shall riot be construed for or against either party. 46.22 INDEPENDENT CONTRACTOR FIRM is an independent contractor under this Agreement. Services provided by FIRM pursuant to this Agreement shall be subject to the supervision of FIRM. In providing such services, neither FIRM nor its agents shall act as officers, employees, or agents of the COM. This Agreement shall not constitute or make the parties a partnership or joint venture. 46.23 CONFLICTS Neither FIRM nor its employees shall have or hold any continuing or frequently recurring employment or contractual relationship that is substantially antagonistic or incompatible with FIRM's loyal and conscientious exercise of judgment and care related to Its performance under this Agreement. FIRM further agrees that none of its officers or employees shall, during the term of this Agreement, serve as an expert witness against COM in any legal or administrative proceeding in which he, she, or FIRM is not a party, unless compelled by court process. Further, FIRM agrees that such persons shall not give sworn testimony or issue a report or writing, as an expression of his or her expert opinion, which is adverse or prejudicial to the interests of COM in connection with any such pending or threatened legal or administrative proceeding unless compelled by court process. The limitations of this section shall not preclude FIRM or any persons in anyway from representing themselves, including giving expert testimony in support thereof, in any action or in any administrative or legal proceeding. In the event FIRM is permitted pursuant to this Agreement to utilize subcontractors to perform any services required by this Agreement, FIRM agrees to require such subcontractors, by written contract, to comply with the provisions of this section to the same extent as FIRM. 46.24 WAIVER COM's and FIRM's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 46.25 SEVERABILITY The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision. 46.26 INCORPORATION BY REFERENCE The ialleched initigh44-40e4igaimpasetaiCristaosetaisimiodampatiatatitis Agreement. 46 • • 46.27 MULTIPLE ORIGINALS This Agreement may be fully executed in counterparts, each of which, bearing original signatures, shall have the force and effect of an original document. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. WITNESS: APPROVED AS TO FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney APPROVED AS TO INSURANCE REQUIREMENTS Dania F. Carillo, Risk Management Administrator 47 CITY OF MIAMI By: EXHIBIT A DESIGN CRITERIA 48 EXHIBIT B FINAL PROPOSAL AND THE PLANS AND SPECIFICATIONS 49 EXHIBIT C SCHEDULE OF SDBE PARTICIPATION EXHIBIT D CERTIFICATE OF INSURANCE 50 (See Section 45.5 - Insert form Certificate's of Insurance) 51 EXHIBIT E FORM OF PERFORMANCE BOND 52 EXHIBIT F FORM OF PAYMENT BOND 53 EXHIBIT G DAVIS-BACON WAGE DETERMINATION AND SECTION 3 REQUIREMENTS 54 EXHIBIT H CERTIFICATE OF SUBSTANTIAL COMPLETION 55 II EXHIBIT I FINAL CERTIFICATE OF PAYMENT 56 EXHIBIT J FORM OF FINAL RECEIPT: [The following form will be used to show receipt of final payment for this Contract.] FINAL RECEIPT FOR CONTRACT NO. A Received this day of , 20 , from COM, the sum of Dollars ($ ) as full and final payment to FIRM for all work and materials for the Project described as: This sum includes full and final payment for all extra work and material and all incidentals. FIRM hereby indemnifies and releases COM from all liens and claims whatsoever arising out of the Contract and Project. FIRM hereby certifies that all persons doing work upon or furnishing materials or supplies for the Project have been paid in full. In lieu of this certification regarding payment for work, materials and supplies, FIRM may submit consent of surety to final payment in a form satisfactory to COM. FIRM further certifies that all taxes imposed by Chapter 212, Florida Statutes (Sales and Use Tax Act), as amended, have been paid and discharged. [If incorporated sign below.] ATTEST: Secretary (CORPORATE SEAL) [If not incorporated sign below.] WITNESSES: FIRM By Date: (Name) Title FIRM By Date: (Name) 57 EXHIBIT K ADD/DEDUCT ALERNATES 58