HomeMy WebLinkAboutExhibit-1CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO : DISTRIBUTION BELQW
FROM:
Joe Arriola
Chief Administrator
DATE : FILE :
October 28, 2005
SUBJECT :
Pocket item for the 10/27/05
City Commission Continuation Meeting
REFERENCES:
ENCLOSURES: Legislation packet
The attached agenda item, Resolution to Approve an Amendment to the Existing
Agreement with Recreation Design and Construction, Inc. for the Grapeland Heights
Park Ballfield Complex, is being distributed 6 days prior to the October 27, 2005 City
Commission continuation meeting to be held on November 3, 2005. The City
Manager's Office is respectfully requesting your consideration of this emergency item
as a pocket item for District One. This agenda item is critical to allow for
contamination remediation at the site as required by DERM to continue the timely
construction of the previously approved improvements at this important City park.
JA/ACS/MHC/cjp
cc: City Mayor and all City Commissioners
City Clerk
Agenda Office
Legislative Division
AGENDA ITEM SUMMARY FORM
FILE ID:
Date: 10/1/2005
Requesting Department: Capital Impvts. and Transp.
Commission Meeting Date: 11/3/2005 District Impacted: 1
Type: RI Resolution ❑ Ordinance ❑ Emergency Ordinance ❑ Discussion Item
❑ Other
Subject: Resolution to approve an amendment to the existing Agreement with Recreation Design &
Construction, Inc. for the Grapeland Heights Park Ballfield Complex, B-60496
Purpose of Item:
To authorize the City Manager to execute an Amendment to the existing Agreement between the City
and Recreational Design & Construction, Inc. (RDC), for the project entitled "Grapeland Heights Park
Ballfield Complex," B-60496, and to authorize an increase in the contract value by $4,800,000 from
$6,000,000 to $10,800,000, to allow for the environmental remediation of the site.
Background Information:
On March 1, 2005, the City Commision adopted Resolution 05-0137 authorizing the City Manager to
enter into an agreement with RDC for design -build services for the project. The City subsequently
executed an agreement with RDC on June 13, 2005.
Subsequent to entering into the agreement with RDC it was determined as a result of geotechnical
testing that the site soil possessed environmental contaminants. Capital Improvements &
Transportation (CIT) issued a work order to a firm under contract with the City to determine the
extent of the contamination and to obtain approval from Miami -Dade County DERM for a plan to
remove the contaminants. Based on the approved plan, CIT assisted RDC in obtaining competitive
bids for a firm to perform the site remediation work, to maximize competition and obtain the best
competitive price. Two bids were received for the work and the lowest responsible and responsive
bidder was selected by RDC and the City. Upon approval of this Amendment, RDC will enter into a
subcontract agreement with the lowest bidder. CIT estimates it will take RDC approximately,Ie
hundred twenty (120) days to perform the work.
Budget Impact Analysis
NO Is this item related to revenue?
YES Is this item an expenditure? If so, please identify funding source below.
General Account No:
Special Revenue Account No:
CIP Project No:
NO Is this item funded by Homeland Defense/Neighborhood Improvement Bonds?
Start Up Capital Cost:
Maintenance Cost:
Total Fiscal Impact:
CIP cirri31,
If usi or receiving capital fund
s t
Grants
$4,800,000.00
311711, 331419, 333138 - B60496
Final A i royals SIGN AND DATE
Budge
Purchasi
Risk Manage
Dept. Doi a or
Chief \ j( f /( f City Manager
Page 1 of 1
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OV 1 2005i- &,j'
AGENDA ITEM SUMMARY FORM
FILE ID:
Date: 10/1/2005
Requesting Department: Capital Impvts. and Transp.
Commission Meeting Date: 11/3/2005 District Impacted: 1
Type: 1771 Resolution ❑ Ordinance ❑ Emergency Ordinance ❑ Discussion Item
❑ Other
Subject: Resolution to approve an amendment to the existing Agreement with Recreation Design &
Construction, Inc. for the Grapeland Heights Park Ballfield Complex, B-60496
Purpose of Item:
To authorize the City Manager to execute an Amendment to the existing Agreement between the City
and Recreational Design & Construction, Inc. (RDC), for the project entitled "Grapeland Heights Park
Ballfield Complex," B-60496, and to authorize an increase in the contract value by $4,800,000 from
$6,000,000 to $10,800,000, to allow for the environmental remediation of the site.
Background Information:
On March 1, 2005, the City Commision adopted Resolution 05-0137 authorizing the City Manager to
enter into an agreement with RDC for design -build services for the project. The City subsequently
executed an agreement with RDC on June 13, 2005.
Subsequent to entering into the agreement with RDC it was determined as a result of geotechnical
testing that the site soil possessed environmental contaminants. Capital Improvements &
Transportation (CIT) issued a work order to a firm under contract with the City to determine the
extent of the contamination and to obtain approval from Miami -Dade County DERM for a plan to
remove the contaminants. Based on the approved plan, CIT assisted RDC in obtaining competitive
bids for a firm to perform the site remediation work, to maximize competition and obtain the best
competitive price. Two bids were received for the work and the lowest responsible and responsive
bidder was selected by RDC and the City. Upon approval of this Amendment, RDC will enter into a
subcontract agreement with the lowest bidder. CIT estimates it will take RDC approximatelyIe
hundred twenty (120) days to perform the work.
Budget Impact Analysis
NO Is this item related to revenue?
YES Is this item an expenditure? If so, please identify funding source below.
General Account No:
Special Revenue Account No:
CIP Project No:
NO Is this item funded by Homeland Defense/Neighborhood Improvement Bonds?
Start Up Capital Cost:
Maintenance Cost:
Total Fiscal Impact:
CIPc
If usi' or receiving capital fumy/
d}
Grants " ll
$4,800,000.00
311711, 331419, 333138 - B60496
Final A rovals SIGN AND DATE
Budget,,
Risk Manage
Purchasing 1 .9 i / Dept. D.
Chief
or
City Manager
Page 1 of 1
G1437
E C I V. D NO V 1 2005,- c>„"k
City of Miami
Text File Report
City Hall
3500 Pan American Drive
Miami, FL 33133
www.ci.miami.fl.us
File ID: 05-00104
Enactment #: R-05-0137
Version: 1
Type: Resolution
Int...� o.�• 2/1/05
Status: Passed
Enactment Date: 3/10/05
Controlling Body: Office of the City
Clerk
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY
THE ATTACHED FORM, WITH RECREATIONAL DESIGN AND CONSTRUCTION, INC. FOR
COMPREHENSIVE CONSTRUCTION AND DESIGN SERVICES FOR THE GRAPELAND
HEIGHTS PARK PROJECT -PHASE I, B-60496, UNDER A DESIGN -BUILD
DELIVERY METHOD FOR A TOTAL AMOUNT NOT TO EXCEED $7,000,000; ALLOCATING
FUNDS FROM CAPITAL IMPROVEMENT PROJECT ("CIP") NO. 331419, IN AN AMOUNT NOT
TO EXCEED $1,975,000; FROM CIP NO. 333138, IN AN AMOUNT NOT TO EXCEED
$3,025,000, AND FROM CIP NO. 311711, IN AN AMOUNT NOT TO EXCEED
$2,000,000, UNDER THE HOMELAND DEFENSE NEIGHBORHOOD IMPROVEMENT BOND
PROGRAM, FOR SAID PURPOSE.
WHEREAS, the City of Miami ("City") has established a capital improvement project to design and construct a
recreational complex at Grapeland Heights Park, located at located at 1550 Northwest 37th Street, Miami, Florida; and
WHEREAS, said project has been incorporated into the City's Capital improvement Program and Multi -year Plan as
Project No. 60496, entitled "Grapeland Heights Park Site Development ("Project"); and
WHEREAS, pursuant to Resolution No. 04-0786, adopted December 9, 2004, the City has determined that this Project is
best implemented using a Design -Build process, with Recreational Design & Construction, Inc. ("RDC") serving as the lead
contractor; and
WHEREAS, the scope of work for the entire Project is to create a water park, recreational community building, ballfields
and concession/restroom building on the existing park site; and
WHEREAS, RDC and the Department of Capital Improvement have negothted an agreement for the design and
construction of Phase I of the Project, and established a not to exceed fee of $7,000,000 for the comprehensive design -build
and
WHEREAS, Phase I of the Project consists of design services for the entire Grapeland Heights Park project and
construction of the baseball complex and the construction of the baseball complex which includes four (4) tournament
baseball/softball fields, a concession building includingrestrooms, storage and press box, batting cages, dugouts,
demolition, sitework and grading, irrigation, landscaping, sport and security lighting, and related parking; and
City of Miami
Page 1 Printed on 10/20/2005
ADDENDUM TO AGREEMENT
BETWEEN THE CITY OF MIAMI AND RECREATIONAL DESIGN AND
CONSTRUCTION, INC., FOR DESIGN BUILD SERVICES FOR
GRAPELAND HEIGHTS PARK PHASE 1
This Addendum is dated the same date and amends, as hereinafter set forth, the
agreement between the City of Miami, (COM) and Recreational Design and Construction, Inc. a
Florida corporation ("FIRM"), for the provision of Design -Build services for Grapeland heights
Park Phase 1, herewith (the Agreement"), and is hereby made a part of the Agreement.
1. Section 1.2, "Change Order", is amended to add the following sentence:
"Change Orders shall be approved in accordance with the
City of Miami Code."
2. Section 4.5, "Scope of Work", is amended to provide that any adjustment to the
Contract Price and/or Contract Time approved by the OAR shall be subject to the
provisions of the City of Miami Code, including, if necessary, City Commission
approval.
Section 7.2.9, "Method of Billing and Payment", is hereby deleted.
Section 17, "Firm's Right to Stop Work or Terminate Contract", is amended in its
entirety to read as follows:
"If COM fails to pay FIRM required payments, in the
manner and within the time provided in the Local
Government Prompt Payment Act (Section 218.70, Florida
Statutes), FIRM may provide written notice to COM of the
late payment, which may include a statement that the
FIRM may stop work or terminate the Agreement fifteen
(15) days after the date of notification. Starting with the
fourteenth (14th) day after notification, the FIRM may
provide a subsequent notification of their intent to stop
work or terminate the Agreement at the expiration of
twenty-four (24) hours, or such greater timeframe as
determined by the FIRM, if payment is not received by the
FIRM. All such notices to the COM shall be in writing and
sent in a manner that provides receipt, including but not
limited to; return receipt mail, courier, hand delivery, e-mail
(only in .pdf format containing the signature of the FIRM.
Upon termination of the Agreement by the FIRM, the FIRM
may recover from COM payment for all work executed and
any expenses incurred prior to termination, including
reasonable profit for services actually performed in full
prior to termination _hut_Pxcluding lost profits, indirect or
special, or other damages."
5. Section 45.5, "Insurance", is amended as follows:
A. Add the following sentence at the end of the first paragraph:
"The FIRM shall require and maintain records of proof
of insurance from all subcontractors hired by the FIRM
for the Project."
B. Amend Section 45.5 I. to read as follows:
"I. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost
Deductible: $2,500 All other Perils
5% maximum on Wind
A. Limit- at Site $ 482,000.00
B. Coverage Extensions:
1. Materials, supplies and similar property owned by others
for which you are responsible.
2. Full coverage up to policy limits for equipment
breakdown.
3. Temporary storage/transit coverage.
4. Full coverage up to policy limits for site preparation, re -
excavation, re -preparation and re -grade in the event of a
loss.
5. Fences, scaffolding, construction forms coverage and
signs
6. Valuable papers coverage for blueprints, site plans and
similar documents.
7. Trees, shrubs, sod, plants while at premises.
8. Flood, including inundation, rain, seepage and water
damage.
9. Earthquake
10. Business Interruption
11. Subsidence
12. New ordinance or law; reimbursement for any resulting
loss of value to the undamaged portion, and required
demolition expenses, including construction necessary to
repair, rebuild or re -construct damaged parts.
13. Escalation clause in the event of a total loss up to 5% of
policy limit.
14. Temporary structures, cribbing and false work built or
erected at construction site.
15. Unintentional errors and omissions in reporting clause
16. Full coverage up to policy limits for testing including
physical Toss caused by pneumatic and hydrostatic
17. Debris Removal."
C Delete the paragraph immediate following Section 45.5. VI., beginning
with the words "FIRM shall provide," and add the following requirement as
Section 45.5. V111:
"VIII: Professional Liability/Errors & Omissions
A. Limits of Liability
Each Claim $1,000,000
Aggregate $1,000,000
B. Project Specific Coverage
Each Claim $1,000,000
Aggregate $1,000,000"
Except as modified herein, all the terms and conditions of the Contract and the Contract
Documents remain unchanged.
In Witness Whereof, the parties have executed this Addendum effective as of the date of
the Agreement.
Attest:
(signature)
Print Name: (r IJt Y"
Secretary
Attest:
0).
.
Priscilla A. Thompson, City C
Approved as to Form and Correctness:
n.ez, City Attorney
FIRM
Recreational
Constrion, Inc. a Florida
corpo
Design and
(signature)
Print Name: 5E060 L 5;6� S
Title: C h iFf EAccv7W0j OfiC-Ek
Joe Arriola, City Manager
Approved as to Insurance
Requirements:
q 6./q40-C-
Dania Carrillo,
Risk Management Administrator
GRAPELAND PARK - PHASE I
DESIGN - BUILD SERVICES
B-60496
TABLE OF CONTENTS
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 THEREOF
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 FAC!L!T!Ec EQ! U!PMENT OR UTILITIES
31. CONTINUING THE WORK
32. FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS
33. CHANGE ORDERS
34. VALUE OF CHANGE ORDER WORK
35. SUBSTANTIAL COMPLETION
36. NO DAMAGES FOR DELAY
3
37. CHANGE OF CONTRACT TIME OR CONTRACT SUM
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
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 of Certificate of Insurance
Exhibit D — Form 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
4
This is an Agreement (the "Agreement") made and entered into this /3 day of
2005, by and between the City of Miami, (COM) and Recreational
sign and Construction, a Florida corporation ("FIRM") for the provision of Design -Build
ervices 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 Chapt.er
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 Project 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
and the FIRM, all as defined herein. Contract shall mean the same as Agreement.
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 Design 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 thepreparation 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 F1RM'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 all 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 NINE
HUNDRED SEVENTY-NINE THOUSAND SIXTY-THREE AND 00/100 Dollars ($5,979,063.00)
. FIRM
_ amount constitutes maximum rice and.
for the Project: The t-iKnn agrees cnarme.ioregaing the �r�ax����u„�-p.,.,� ..,,..
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
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 (i) the Contract Documents defined in Section 1.9;
and (ii) 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 FIRM'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 369 calendar days from the date of award by the City Commission.
- withof a building permit to support construction
Thee_Design Phase will conclude thc-�ssua� c� a ��,,....,y ,........, ,., ,,..rr.,.,_.._.._.. 1Ctlpn
completion within the 369 calendar days. 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 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
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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 agreedupon 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 City of Miami Master Permit Fee and applicable Major Trade Permit fees (i.e.
Mech., Plumbing, Elec., & Fire) are waived. Any other permit fees not directly
related to the actual construction of the project (i.e. Permits for dumpsters, Job
trailers) are not waived"..."Licenses, permits and fees which may be required by
Miami -Dade County, the State of Florida, or other governmental entities are not
waivable. 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 all acts or omissions of its consultants and
subcontractors and of persons directly employed by FIRM's consultants and
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
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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, Tight, 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 Project
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
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
11
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 Payment
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's
requisition shall show a complete breakdown of the Project components, the quantities
completed and the amount due, together with such supporting evidence as may 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.
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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 all
suppliers and subcontractors have been paid in full and that all other indebtedness
connected with the Project has been paid, and a consent of the surety to final payment.
All warranties, guarantees, operational 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 iabor urniess Surety t,1110c1 d. to payment.
(iv) Liquidated Damages pursuant to Section 5 hereof.
(v) As -built drawings not being in a'current and acceptable state.
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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 withrequirements of the Contract Documents or terms of any
warranties required by the Contract Documents. It shall also constitute a waiver of all
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
proposed construction in a satisfactory manner. Any extra or additional work within the scope of
14
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 of
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 of
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 COM
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
TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING, CLAIM, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
15
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-CONSTRUCTtONCONFERENCE
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 shaii repiace samewithno
cost to COM.
14. INSPECTION OF PROJECT
14.1 The OAR or designee shall at all times have access to the Project, and FIRM shall
provide proper facilities for such access.
16
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 this
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.
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 done for the Contract Sum. Thus, any errors or omissions
17
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 'Fit -KM, then COivi 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
excess.
16.2 lf, 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
18
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 (5`h) 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
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
19
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:
At least equal in quality, durability, appearance, strength and design;
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 requirements
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
in the opinion of the OAR may reasonably be inferred from this Agreement and plans as
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
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 orpersons 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
_. a...__ at aiiow
for i 1s delivered securely
23.1 COM may, at its sole option, avow partial payment materials delivered and 'Sc.. �.ir4iy
stored either on or off site for use on the Project.
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
21
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 shalt 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
establish a period of limitation :vith respect_ to any other obliaations which
Construed to��eJtQU11Dl �...a � period v� � .....u...... ...... _
FIRM might have under applicable state law.
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
22
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
i ... O any delay- arising
extension of time shall be made or asserted against t,vNi-'vy reasarr-of an,y u��Qy a���,��y. 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 designated for the use on the date needed by FIRM.
29. LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS
23
ARM 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 trafficand
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 the utilities 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. All
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.
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
24
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
responsibility of FIRM and must be satisfactorily completed with no cost to COM.
34. VALUE OF CHANGE ORDER WORK
25
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 -site 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 cost
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
engineers employed for services specifically related to the Project. If
required by the OAR, FIRM shall obtain competitive bids from
subcontractors acceptable to FIRM and shall deliver such bids to COM
who will then determine which bids will be accepted. If the subcontract
26
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. AU 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 of
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
shall be figured on the basis of the net increase, if any.
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 ofthe 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 FIRMS 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 from
submitting complete Shop Drawings and providing materials, equipment, etc., fully in
accordance with the Contract Documents. This procedure is required in order to expedite
final approval of Shop Drawings.
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
will be identified by the number and title of the respective major section of the
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
commercially released version of AutoCAD on CD not compressed which accurately
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 (iii) 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 Toss; 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 Toss
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
43.1 FiRM shall at all times keep the Project site free from accumulation of waste materials or
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.
A 7
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.
Perforr nce 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
applicable above and shall be held by COM for one year after completion
and acceptance of the Project.
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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
45.3.2.2
The surety company shall hold a current certificate of
authority as acceptable surety on federal bonds in
accordance with United States Department of Treasury
Circular 570, Current Revisions. If the amount of the Bond
exceeds the underwriting limitation set forth in the circular,
in order to qualify, the net retention of the surety company
shall not exceed the underwriting limitation in the circular,
and the excess risks must be protected by coinsurance,
reinsurance, or other methods in accordance with Treasury
Circular 297, revised September 1, 1978 (31 CFR Section
223.10 Section 223.111). Further, the surety company shall
provide COM with evidence satisfactory to COM, that such
excess risk has been protected in an acceptable manner.
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
Amount of Bond Ratings Category
500,001 to 1,000,000 6+ Class I
1,000,001 to 2,000,000 B+ Class 11
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
consequence of any such negligence or misconduct, excluding
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 appiicabie 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 Toss 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
• City of Miami included as an Additional Insured
36
• Products/Completed Operations -Coverage should be kept in force
for a period of not less 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
VI. Umbrella Policy
A. Limits of Liability
37
Bodily Injury and Property Damage Liability
Combined Single Limit $3,000,000
Each Occurrence $3,000,000
Aggregate
Products/Completed Operations
Aggregate Limit $3,000,000
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 tosecure_ thecompletion of the various portions of f 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
Agreement and that no third party shall be entitled to assert a claim against either of
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
F;R.,_hall keep such _ records ... andarrnu into _.a nrl requireany 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
Project pursuant to this Agreement. Incomplete or incorrect entries in such books and
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
one (1) COM employees_tn whom_ all communications
writing, of � i� or��iv�� v.....� .,.,.r...�..__ ._
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 changed by written notice in compliance
with the provisions of this paragraph. For the present, the parties designate the
following as the respective places for giving of notice:
FOR COM:
FOR FIRM:
Director, Department of Capital Improvements
And Transportation, City of Miami
444 SW 2nd Avenue
Miami, FL 33130
and
OAR
Cary Rea -Sanchez, URS Program Manager
c/o City of Miami, Dept of Capital Improvements
444 SW 2nd Avenue
Miami, FL 33130
Recreational Design & Construction, Inc.
Joseph Cerrone III, President
3990 N Powerline Rd.
Fort Lauderdale, FL 33309
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 contingentupon
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
In support of the Florida Waste Management Law, FIRM is encouraged to supply any
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,
glass, metal, etc.); and the percentage of recycled material contained in the product.
42
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
46.20.3
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.
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
written acceptance and acknowledgment of responsibility to complete or
correct the list of items identified in the Certificate as needing to be
completed or corrected. A date by which each listed item will be
completed or corrected shall also be included.
43
46.20.4 When FIRM considers the work to be complete, FIRM shall submit written
certification that:
46.20.5
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 A Final Certificate of Occupancy.
46.20.4.6.2 Certificates of inspection and testing for
mechanical work, and electrical work.
46.20.4.6.3 Project record documents and "as built"
drawings.
46.20.4.6.4 Operating and Maintenance data and
instructions to COM's personnel.
46.20.4.6.5 Warranties and bonds as required under the
Contract Documents.
46.20.4.6.6 Keys and keying schedule.
46.20.4.6.7 Evidence of all COM/user operating
demonstrations and training for all
equipment in Project.
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
finds that the work is acceptable under the Contract Documents, COM
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
Agreement.
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 not 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 torequire 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 SEVERABIiLITY
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 attached Exhibits A through L are incorporated into and made a part of this
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.
THE CITY OF MIAMI, FLORIDA
THE CITY OF MIAMI, FLORIDA, a municipal
Corporation of the State of Florida
ATTEST:
APPROVED AS TO FORM AND
CORRECTNESS FOR THE USE AND
RELIANCE OF THE CITY OF MIAMI,
FLORIDA, ONLY
oe Arriola, City Manager t, J•rg=-- ern- dez, City Attorneyir
APPRO i AS TO INSURANCE
REQUIREMENTS:
60/0-r
Priscilla A. Thompson, City Clerk Dania Carrillo, Risk Management Administrator
ATTEST:
Recreational Design and Construction, Inc
RecreationaipDesign and Construction, Inc.
By:
Corporate or Company Secretary
(Affix Corporate/Company Seal)
Date:
efq
Steven L Siems, CEO
Authorized Officer
47
.,Title
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDMENT, IN
SUBSTANTIALLY THE ATTACHED FORM, TO THE AGREEMENT WITH
RECREATIONAL DESIGN AND CONSTRUCTION, INC. ("RDC") DATED JUNE 13,
2005, FOR THE PROJECT ENTITLED "GRAPELAND HEIGHTS PARK BALLFIELD
COMPLEX, B-60496",TO INCLUDE ENVIRONMENTAL SITE REMEDIATION WORK
AND TO INCREASE THE AMOUNT OF COMPENSATION, TO PAY FOR SUCH
WORK, BY AN AMOUNT NOT TO EXCEED $4,800,000, FROM $5,979,063 TO
$10,779,063; ALLOCATING FUNDS FROM B-60496 CAPITAL IMPROVEMENT
PROJECT NUMBERS 311711, 331419, & 333138, FOR SAID PURPOSE.
..Body
WHEREAS, pursuant to Resolution No. 05-0137, adopted March 1, 2005, the City
Commission authorized the City Manager to enter into a design/build agreement with
RDC for the project entitled Grapeland Heights Park Ballfield Complex", B-60496
(Project) in an amount not to exceed $7,000,000; and;
Whereas, the City and RDC entered into a Design Build Agreement, on June 13, 2005,
in the amount of $5,979,063 (the "Contract"); and
WHEREAS, subsequent to execution of the Contract, geotechnical testing performed on
the property identified soil contamination; and
WHEREAS, the Project cannot proceed further without remediation of the site as
approved by Miami -Dade County DERM (the "Remediation Work"); and
WHEREAS, Capital Improvements and Transportation (CIT) assisted RDC in the
solicitation and evaluation of bids from subcontractors, to perform the Remediation
Work under the Contract, and CIT and RDC have negotiated a change order to the
Contract for the performance of the Remediation Work; and
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the Preamble of this Resolution are
adopted by reference and incorporated as if fully set forth in this section.
Section 2. The City Manager is authorized {1} to execute an Amendment, in substantially
the attached form, to the Contract with RDC, to include the provision of environmental
site remediation work and to increase the amount of compensation, to pay for such work,
by an amount not to exceed $4,800,000, with funds allocated from B-60496, CIP No.
311711, 331419, and 333138, for said increase.
Section 3. This Resolution shall become effective immediately upon its adoption and
signature of the Mayor.{2}
..Footnote
{1} The herein authorization is further subject to compliance with all requirements that
may be imposed by the City Attorney, including but not limited to those prescribed by
applicable City Charter and Code provisions.
{2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten
calendar days from the date it was passed and adopted. If the Mayor vetoes this
Resolution, it shall become effective immediately upon override of the veto by the City
Commission.
AMENDMENT NO. 1 TO DESIGN/BUILD AGREEMENT
GRAPELAND HEIGHTS PARK BALLFIELD COMPLEX
PROJECT B-60496
This Amendment is made this _ day of , 2005, between the City of Miami,
a municipal corporation of the State of Florida (City), and Recreational Design and Construction,
Inc. (RDC).
RECITALS
A. Pursuant to Resolution No. 05-0137, the City and RDC entered into a Design
Build Agreement dated June 13, 2005, for Grapeland Heights Park Ballfield Complex, Project
No. B-60496 (the "Agreement").
B. Subsequent to the date of the Agreement, it was determined, as a result of
geotechnical testing, that the site soil possessed environmental contaminants.
C. It is necessary to rerediate the environmental condition on the site prior to
proceeding with the Project.
D. RDC and the City have identified the subcontractor that will perform the
remediation work under the Agreement, for an amount not to exceed $4,800,000.
E. the parties wish to amend the Agreement to include the remediation work in the
Scope of Services and to increase the amount of compensation under the Agreement,
accordingl y.
NOW THEREFORE, in consideration of the foregoing, the parties agree as follows:
1. The Agreement is hereby amended as follows:
a. Section 4, Scope of Work:
The Scope of Work is amended to include the performance of environmental remediation
work, consisting of removal and disposal of approximately 68,000 tons of incinerator ash,
as approved by DERM and as more specifically described in Change Order No. 1, dated
, 2005 (to be finalized), which is incorporated into and made a part of
this Amendment (the "Remediation Work").
b. Compensation and Method of Payment:
The amount of compensation is hereby increased to $10,779,063, to provide for the
payment of the Remediation Work, in accordance with the costs and payment parameters
contained Change Order No. 1.
2. Except as specifically modified herein, all of the terms of the Agreement shall remain in
effect.
In Witness Whereof, the parties have executed this Amendment No. 1, effective as of the date
first above written.
Attest: City Of Miami
By: By:
Priscilla A. Thompson, City Clerk Joe Arriola, City Manager
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS
By: By:
Dania Carrillo, Jorge L. Fernandez, City Attorney
Risk Management Administrator
Attest: Recreational Design and Construction, Inc.
By:
Corporate Secretary Joe Cerrone, President
(Seal)