HomeMy WebLinkAboutExhibit 2Construction Manager At Risk Agreement
By and Between
The City Of Miami
And
Pirtle Construction Company
For
CM@Risk Services
For Little Haiti Park Cultural Center
Department of Capital Improvements & Transportation
444 SW 2nd Avenue, 8tt, Floor
Miami, Florida 3313D
Little Haiti Park
TABLE OF CONTENTS
Section
No.
Article
No.
Title
Page
No.
1
General Terms and Conditions
1
Overview
5
2
Intention of City
5
3
Construction of Agreement
5
4
Definitions
6
5
Time is of the Essence
10
6
Contract Documents
10
7
Site Investigation and Representation
11
8
Construction Manager's Duties
11
9
Construction Manager's Staff
11
10
Architect of Record
11
11
Owner's Representative
12
12
Primary Contact
12
13
Partnering
12
14
Policies, Procedures and Reporting
12
15
Ownership and Use of Documents
12
16
Plans and Working Drawings
12
17
Supplementary Drawings
12
18
Supplemental Instructions
12
19
Continuing the Work
13
20
Discretion of the Director
13
21
Authority of the City Project Manager
13
22
Removal of Unsatisfactory Personnel
14
23
Defective Work
14
24
Correction of Work
15
25
Warranty of Materials and Work
15
26
Materials and Equipment Shipment,
Handling, Storage and Protection
15
27
Manufacturer's Instructions
17
28
Manufacturer's Warranty.
17
29
Changes in the Work or Terms of Contract
Documents
18
30
No Damage for Delay
18
31
OSHA Compliance
18
32
Safety Precautions
18
33
Accidents
19
34
Priority of Provisions
20
35
Payments
20
36
Notices
20
37
Indemnification
21
Little Haiti Park
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Section
No.
Article
No.
Title
Page
No.
38
Insurance
21
39
Modification To Coverage
26
40
City's Right to Terminate
26
41
Termination for Default
26
42
Termination by CM
27
43
Termination Due to Undisclosed Lobbyist or
Agent
28
44
Materiallity and Waiver of Breach
28
45
Force Majeure
28
46
Resolution of Contract Disputes
28
47
Mediation -Waiver of Jury Trial
29
48
Applicable Law and Venue of Litigation
29
49
Permits, Licenses and Impact Fees
29
50
Compliance with Laws
30
51
Public Entity Crimes
30
52
Audit Rights
30
53
Nondiscrimination, Equal Opportunity, and
Americans with Disabilities Act
31
54
Independent Contractor
31
55
City's Transfer of Interest
31
56
Successors and Assigns
32
57
Third Party Benficiaries
32
58
No Interest
32
59
Contingency Clause
32
60
Performance Evaluation
33
61
Joint Preparation -Interpretation
33
62
Confidentiality
33
63
Amendments
33
64
Severability
33
65
Entire Agreement
33
2
Pre -Construction Phase
1
Contract Time
34
2
Pre -Construction Phase Services
34
3
Pre -Construction Phase Additional Service
36
4
Compensation for Pre -Construction Phase
Services
37
5
Pre -Construction Phase Performance and
Delegation
38
6
Pre -Construction Fee Application for
Payment Submittal
38
7
Sub -Consultants
38
8
Pre -Construction Phase Meetings
38
9
Guaranteed Maximum Price
39
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Page 2
Section
No.
Article
No.
Title
Page
No.
10
Market Analysis & Stimulation of Bidder
Interest
40
11
Bid and Award of Subcontracts
40
12
Responsibility
41
13
Project Schedule
41
14
Permits and Fees
41
15
Fixed Construction Budget
42
3
Construction Phase
1
Construction Phase Services
43
2
Construction Phase Time for Completion
43
3
Liquidated Damages
43
4
Hours of Operation
44
5
CM's Supervision
44
6
Construction Work Meetings
44
7
Progress Payments
45
8
Acceptance and Final Payment
45
9
Subcontracts
46
10
Interfacing with Sub -Contractors
47
11
Performance and Payment Bonds
47
12
Qualification of Surety
48
13
Warranty of Construction
49
14
Methods of Performing the Work
49
15
CM's Use of Project Site
50
16
Work Staging and Phasing
50
17
Existing Utilities
51
18
Differing Site Conditions
51
19
Project Site Facilities
51
20
Security
52
21
Worker's Identification
52
22
Royalties and Patents
52
23
Labor and Materials
52
24
Substitutions
53
25
NPDES Requirements
54
26
Construction Signage
54
27
Inspection of Work
54
28
Mounting Heights
55
29
Submittals
55
30
Shop Drawings
56
31
Product Data
57
32
Samples
57
33
Record Set
57
34
As -Built Drawings
58
35
Requests For Information (RFI)
59
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Page 3
Section
No.
Article
No.
Title
Page
No.
36
Field Directives
59
37
Work Logs
59
38
Change Orders
59
39
Value of Change Order Work
60
40
Substantial Completion, Punch List & Final
Completion
63
41
Training
64
42
Weather
64
43
No Damage for Delay
64
44
Excusable Delay
65
45
Notification and Claim for Change of
Construction Work Time for Completion of
GMP
65
46
Hurricane Precautions
65
47
Stop Work Order
66
48
Cleaning Up; City's Right to Clean Up
66
49
Removal of Equipment
66
Little Haiti Park Page 4
THIS AGREEMENT, made and entered into this day of , 2005 by and between
the City of Miami, Florida, a municipal corporation, hereinafter called the City, and James B.
Pirtle Construction Company, Inc., DBA Pirtle Construction Company, a Florida Corporation,
hereinafter called CM.
WITNESSETH:
WHEREAS, the City desires to enter into a Construction Manager at Risk (CM@Risk) contract,
for construction manager at risk services, for the construction of the Little Haiti Park Cultural
Center, and
WHEREAS, CM represents it possesses the requisite expertise and desires to enter into a
contract to act as the Construction Manager at Risk to the City to provide the services as set
forth herein; and
WHEREAS, the City Commission has authorized the City Manager to execute and enter into
this Agreement by Resolution No. adopted , 2005;
NOW THEREFORE, in consideration of the mutual covenants and compensation set forth
herein the City and CM agree as follows:
Section 1 - General Terms And Conditions
1. Ove rvii ew
This Agreement covers the services of a CM@Risk firm for the construction the Project,
which consists of a approximately 31,000 square foot Community Center (Center) at
Little Haiti Park. The Center includes a gymnasium, locker rooms and related auxiliary
space, and related sitework.
2. Intention of City
It is the intent of City to describe in the Contract Documents a functionally complete
Project (or part thereof) to be constructed in accordance with the Contract Documents
and in accordance with all codes and regulations governing construction of the Project.
Any work, materials or equipment that may reasonably be inferred from the Contract
Documents as being required to produce the intended result shall be supplied by CM
whether or not specifically called for. When words, which have a well-known technical or
trade meaning are used to describe work, materials or equipment, such words shall be
interpreted in accordance with that meaning. Reference to standard specifications,
manuals, or codes of any technical society, organization or association, or to the laws or
regulations of any governmental authority, whether such reference be specific or by
implication, shall mean the latest standard specification, manual, code or laws or
regulations in effect at the time of opening of bids and CM shall comply therewith. City
shall have no duties other than those duties and obligations expressly set forth within the
Contract Documents.
3. Construction of the Agreement
3.1 This Agreement is comprised of three sections, which are applicable in the
following manner:
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3.1.1 Section 1 — General Terms and Conditions: This Section applies to both
the Pre -Construction and Construction Phase Services, if awarded,
except where it is stated that the requirements apply to only a specific
Phase.
3.1.2 Section 2 — Pre -Construction Phase: The provisions of this Section apply
only to the Pre -Construction Phase Services.
3.1.3 Section 3 — Construction Phase: The provisions of this Section are only
applicable to the Construction Phase Services and shall only become
effective upon the City's execution of the GMP Amendment
4. Definitions
Architect/Engineer means Zyscovich, Inc. Zyscovich, Inc. has entered into a separate
agreement with the City for the provision of design services for this Project. The
Architect/Engineer is referred to herein as the A/E.
City Commission means the legislative body of the City of Miami.
City Manager means the duly appointed chief administrative officer of the City of Miami.
City means the City of Miami, Florida, a Florida municipal corporation. In all respects
hereunder, City's performance is pursuant to the City's capacity as Owner of the Project.
In the event the City exercises its regulatory authority as a governmental body, the
exercise of such regulatory authority and the enforcement of any rules, regulations,
codes, laws and ordinances shall be deemed to have occurred pursuant to City's
authority as a governmental body and shall not be attributable in any manner to the City
as a party to this Agreement. For the purposes of this Agreement, "City" without
modification shall mean the City Manager or Director, as applicable.
CM Project Superintendent means the person designated by CM as its lead
representative to the City. The CM Project Manager shall have the authority to obligate
and bind CM and to act on all matters on behalf of CM except for revisions to the
Contract Documents and Change Orders.
Constructability: means the creative, organized process of analyzing a project's
drawings, specifications and other project documentation with a goal of minimizing
design, detailing, and specification problems which might render the cohstruction
contract documents unbuildable or requiring addenda or change orders to make them
buildable.
Construction Change Directive means a written directive to effect changes to the
Work, prepared by the A/E and executed by the City
Construction Estimate means a cost estimate for the completion of the Work, which
estimate shall include all components of the cost of the Work, as well as the
Construction Manager's Fee for the Project.
Contract Documents means this Agreement, the GMP Amendment, and the plans,
drawings and specifications prepared by the A/E.
Construction Manager means the CM, Pirtle Construction Company, that shall provide
services including, but not limited to preparation of cost estimates, constructability
reviews, value engineering and assist in systems life cycle cost analysis, estimating,
scheduling, bidding and submission of a GMP, as defined below, for construction, and
construction management. Upon acceptance of the GMP the Construction Manager
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shall serve, from that point forward as the General Contractor under this Agreement.
Construction Manager is referred to herein as CM.
Construction Manager's Fee means the Construction Phase Fee to be negotiated with
the CM for general conditions, overhead and profit compensation portion of the GMP, as
defined below.
Construction Manager's General Conditions Costs or CM's General Conditions
Costs means the necessary and reasonable costs incurred by the CM directly
attributable to the GMP exclusive of the CM's overhead and profit. The CM's General
Conditions Costs shall be a component of the Construction Manager's fee, and shall be
a fixed amount during the entire Construction Phase for the Project, as set forth in the
GMP
Construction Phase Services means the services to be performed through the CM
during the construction phase of the Project, including without limitation, the
Construction Work and such other services as required by this Agreement or reasonably
inferred herein.
Construction Schedule means a critical path schedule or other construction schedule,
as defined and required by the Agreement.
Construction Work means all Work required by this Agreement for the Construction
Phase of the Project.
Contingency means a line item contingency amount contained in the Schedule of
Values for the Project, which contingent amount, if accepted by the City, shall be
included with the Project GMP.
Contract Time means the time period defined in this Agreement for the CM to complete
the Pre -Construction Phase Services and submit the GMP Proposal, which shall be
amended to reflect the Construction Phase should the City accept the GMP Proposal
Cure means the action taken by the CM promptly after receipt of written notice from the
City of a breach of the Agreement for the Work, which shall be performed at no cost to
the City, to repair, replace, correct, or remedy all material, equipment, or other elements
of the Work or the Agreement affected by such breach, or to otherwise make good and
eliminate such breach, including, without limitation, repairing, replacing or correcting any
portion of the Work or the Project site disturbed in performing such cure.
Cure Period means the period of time in which the Contractor is required to remedy
deficiencies in the Work or compliance with the Contract Documents after receipt of
written notice to Cure from the City identifying the deficiencies and the time to Cure.
Design Documents means the Design Development Documents and the Construction
Documents.
Director means the Director of the Department of Capital Improvements and
Transportation or designee, who has the authority and responsibility for managing the
Project under this Agreement.
Drawings means the graphic and pictorial portions of the Work, which serve to show the
design, location and dimensions of the Construction Work to be performed, including,
without limitation, all notes, schedules and legends on such Drawings.
Field Directive means a written approval for the CM to proceed with Work requested by
the City or the A/E, which is minor in nature and should not involve additional cost.
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Final Completion means the date subsequent to the date of Substantial Completion at
which time the CM has completed all the Work in accordance with the Agreement as
certified by the A/E or the City and submitted all documentation required by the
Agreement
Fixed Construction Budget means the cost of construction provided by the City for
purposes of design development.
Guaranteed Maximum Price (GMP) means the sum certain agreed to between the CM
and the City and set forth in a the GMP Amendment as the maximum total Project price
that the CM guarantees not to exceed for the Project for all services within this
Agreement, less only the Pre -Construction Fee. The Construction Manager's Fee plus
the sum of the accepted subcontract bids and the Contingency shall comprise the GMP.
GMP Amendment means the GMP Proposal, as may be amended and accepted by the
City, at its sole discretion, which amendment shall automatically become incorporated
herein upon the City and the CM's execution of same, and shall establish, among other
things, the GMP, the names of the CM's on -site management and supervisory personnel
for the Project and the Contract Time for the Construction Work.
GMP Proposal means a proposal for completing the Construction Work. Such proposal
shall include the GMP for the construction of the Project accepted by the City based
upon the drawings and specifications, the Contract Documents and the Memorandum of
Changes. The City has no obligation to accept the GMP Proposal.
Memorandum of Changes means the notification provided to the City and the A/E by
the CM at the times specified in this Agreement that recommends changes based on the
Value Engineering and Constructability reviews.
Notice To Proceed means a written letter or directive issued by the Director or Project
Manager acknowledging that all conditions precedent have been rnet and directing that
the CM may begin Work on the Project or a specific task of the Project.
Pre -Construction Fee means the lump sum fee payable to the CM for the Work
performed during the Pre -Construction Phase related to the Project, accepted by the
City and the CM, which fee includes all direct and indirect costs incurred by the CM in
the proper performance of the design, bid and award services.
Pre -Construction Phase Services mean the services the CM shall perform for the
design phase of the Agreement and culminates with the exercise by City of one of the
City's options regarding the GMP proposal.
Pre -Construction Work means all Work required by this Agreement during the Pre -
Construction Phase of the Project.
Project Manager means an employee or representative of the City assigned by the
Director to manage and monitor the Work to be performed under this Agreement and the
construction of the Project.
Project means the construction and incidentals thereto, of the Little Haiti Park Cultural
Center as contemplated and budgeted by the City.
Professional Services means those services within the scope of the practice of
architecture, professional engineering, landscape architecture, or registered surveying
and mapping, as applicable, as defined by the laws of the State of Florida, or those
performed by any architect, professional engineer, landscape architect, or registered
surveyor or mapper in connection with his or her professional employment or practice.
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Punch List means a compilation of items of Construction Work required to be performed
by, or through the CM after the Substantial Completion inspection and prior to Final
Completion and payment.
Record Set means the copy of the Drawings, Specifications, Change Orders and other
modifications of the Agreement to be maintained at the Project site by the CM, in good
order and marked currently to record changes and shall include additions, revisions,
modifications, change orders, approved substitutions, shop drawings and accurate
dimensioned locations for items recorded, including but not limited to, all underground
utilities.
Request For Information (RFI) means a request from the CM seeking an interpretation
or clarification by the A/E relative to the Agreement and/or the Drawings. The RFI,
which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or
item(s) requiring clarification or interpretation and why the response is needed. The RFI
must set forth the CM's interpretation or understanding of the document(s) in question,
along with the reason for such understanding.
Risk Administrator means the City's Risk Management Administrator, or designee, or
the individual named by the City Manager to administer matters relating to insurance and
risk of loss for the City.
Schedule of Values means a written schedule setting forth the detailed and itemized
cost breakdown, inclusive of labor, material, and taxes of all elements comprising the
GMP set forth in the GMP Proposal.
Specifications as used herein means that portion of the Contract Documents which are
the written requirements for the materials, equipment, systems, standards and
workmanship for completion of the Work and performance of related services.
Sub-Contractor(s) means a person or entity other than a materialrnan or laborer that
has a direct contract with the CM to perform or supply a portion of the Construction
Work.
Submittals means documents prepared by the CM or those working on its behalf to
show how a particular aspect of the Construction Work is to be fabricated and installed.
The CM's submittals include shop drawings, product data, samples, mock-ups, test
results, warranties, maintenance agreements, Project photographs, record documents,
field measurement data, operating and maintenance manuals, reports, certifications and
any other information described In the Agreement.
Substantial Completion means that point at which the Construction Work is at a level
of completion in substantial compliance with the Agreement such that the City can use,
occupy and/or operate the facility in all respects to its intended purpose. Substantial
Compliance shall not be deemed to have occurred until any and all governmental
entities, which regulate or have jurisdiction over the Work, have inspected, and approved
the Work. Beneficial use or occupancy shall not be the sole determining factor in
determining whether Substantial Completion has been achieved, unless a temporary
certificate of occupancy has been issued.
Value Engineering (VE): means the detailed analysis of systems, equipment, materials,
services, facilities and supplies required by this Agreement for the purpose of achieving
the desired and essential functions at the lowest cost consistent with required and
necessary performance, reliability, quality and safety through the elimination or
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modification of those features which add cost without contributing to the facility's
required function or design value.
Work as used herein refers to all pre -construction, construction and other services
required by the Contract Documents, including all labor, materials, equipment,
supervision and services needed to complete the Project,
5. Time is of the Essence
5.1 CM will promptly perform its duties under the Contract Documents and will give
the Work as much priority as is necessary to cause the Work to be completed on
a timely basis in accordance with the Contract Documents. Time is of the
essence of this Agreement. All Work shall be performed strictly (not substantially)
within the time limitations necessary to maintain the critical path and all deadlines
established in the Contract Documents.
52 All dates and periods of time set forth in the Contract Documents, including those
for the commencement, prosecution, interim milestones, milestones, and
completion of the Work, and for the delivery and installation of materials and
equipment, were included because of their importance to the City.
5.3 CM acknowledges and recognizes that (i) the City is entitled to full and beneficial
occupancy and use of the completed Work following expiration of the
Construction Phase Time for Completion, and (ii) the City will schedule the
opening of the Project site based upon the CM's achieving Final Completion of
the Work at the time stipulated for final completion in the Contract Documents.
5.4 Except and only to the extent provided otherwise by signing this Agreement, the
Construction Manager agrees:
1) to the assessment of liquidated damages under the Construction
Phase Services
55 In agreeing to bear the risk of delays for completion of the Work exceot for
extensions approved in accordance with Article 44, Excusable Delays, the CM
understands that, except and only to the extent provided otherwise in the
Agreement, the occurrence of events that delay within the CM's control, the Work
shall not excuse the CM from its obligation to achieve full completion of the Work
within the Construction Phase Time for Completion, and shall not entitle the CM
to an adjustment of the GMP, All parties under the control or contract with the
CM shall include but is not limited to Sub -contractors, materialmen and laborers.
5.6 The CM acknowledges that the City is purchasing the right to have the CM at the
Project Site for the full duration of the Project during the time Work is being
performed.
6. Contract Documents
The Contract Documents shall consist of this Agreement, the Drawings and
Specifications, approved written interpretations and clarifications, Field Directives,
Construction Change Directives, any Change Orders issued thereto, and any
modifications, including the GMP Amendment, duly issued after execution of the
Agreement. Any modification to this Agreement shall only be effective if it is reduced to
writing, and duly executed by both parties, except a Field Directive or Constructive
Change Directive shall be effective after approval and execution by Director or designee.
The general intent of the Contract Documents is to include all items necessary for the
proper execution and completion of the Project by the CM.
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7. Site Investigation and Representation
71 The CM acknowledges that it has satisfied itself as to the nature and location of
the Work, the general and local conditions, particularly those bearing upon
availability of transportation, disposal, handling and storage of materials,
availability of labor, water, electric power, and roads, the conformation and
conditions at the ground based on owner provided reports, the type of equipment
and facilities needed preliminary to and during the prosecution of the Work and
all other matters which can in any way affect the Construction Work or the cost
thereof under the Contract Documents.
7.2 The CM further acknowledges that it has satisfied itself based on owner provided
geotechnical reports and inspection of the Project Site as to the character,
quality, and quantity of surface and subsurface materials to be encountered from
inspecting the site and from evaluating information derived from exploratory work
that may have been done by the City or included in the Contract Documents. Any
failure by the CM to acquaint itself with all the provided information and
information obtained by visiting the Project Site will not relieve CM from
responsibility for properly estimating the difficulty or cost thereof under the
Contract Documents. In the event that the actual subsurface conditions vary fro
the actual owner provided reports the CM shall notify the owner and the contract
amount shall be adjusted up or down depending on the conditions.
8. Construction Manager's Duties
CM accepts the relationship of trust and confidence established between CM and City by
this Agreement. CM recognizes the necessity of a close working relationship with City
and agrees to furnish the skill and judgment of its organization in the performance of this
Agreement and to cooperate with the A/E in furthering the interests of City. CM shall
provide CM's knowledge, ideas, experience and abilities relating to the planning of the
construction of the Project; furnish efficient business administration and
superintendence; and use its best efforts to arrange for an adequate supply of workmen
and materials, equipment, tools and other services and things to complete the Work in
the best and soundest way and in the most expeditious and economical manner
consistent with the interests and objectives of City and the Contract Documents. CM
agrees to advise and make recommendations to City as specified in the Agreement.
9. Construction Manager's Staff
9.1 CM shall designate a CM Project Manager who possesses the necessary
experience and expertise necessary for the management of this Project. The CM
Project Manager shall be authorized to act on behalf of the CM to coordinate,
inspect provide general direction of the Work in progress.
9.2 CM shall provide any and all additional staff necessary for the successful
completion of this Project.
9.3 CM shall provide prior written notification to the City and the A/E of any changes
in personnel assigned to this Project.
10. Architect of Record
The City has retained Zyscovich, Inc. to serve as the Architect of record and to provide
basic architectural services, including normal civil, structural, mechanical, and electrical
engineering services, as described in the City's agreement with the A/E. The City shall
authorize and cause the A/E to provide those additional services which must necessarily
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be provided by the A/E for the Pre -Construction and Construction Phases of the Work.
Such services shall be provided in accordance with time schedules agreed to by the
City, NE, and CM. Upon request of the CM, the City will furnish to the CM a copy of the
City's agreement with the A/E.
11. Owner's Representative
The City shall utilize a company under contract with the city to provide on -site
construction examination and observation services. While his company will represent
the City at the site, the company and its employees have no authority to authorize
changes or deviations from the Contract Documents.
12. Primary Contact
CM shall coordinate all correspondence, submittals, applications for payment, requests
for information, change orders, claims and any other requests or documents through the
Project Manager.
13. Partnering
CM, prior to commencement of the Construction Phase Services, shall prepare and
submit for the Director's review and acceptance a proposed Partnering Program for the
Project. The Partnering Program shall contain, at a minimum, procedures for the
enhancement of communication and cooperation between the City, CM, A/E, separate
contractors, inspectors and other consultants and subcontractors on the Project, as well
as procedures for the speedy and efficient resolution of problems and disagreements
during construction. Upon acceptance by the Director, the Partnering Program shall be
implemented and coordinated by CM throughout the remainder of the Project
14. Policies, Procedures and Reporting
CM shall be responsible for compliance with the policies and procedures manual and
reporting requirements contained in Attachment A.
15. Ownership and Use of Documents
The Drawings, Specifications and other documents prepared by the AIE, and copies
thereof furnished to the CM, are for use solely with respect to this Agreement. They are
not to be used by the CM, sub -Consultants, Sub -Contractors, or material suppliers on
other projects, without the specific written consent of the City. The CM, Sub -Contractors,
Sub -Consultants, and material suppliers are granted only a limited license to use and
reproduce applicable portions of the Drawings, Specifications, and other documents
prepared by the A/E appropriate to and for use in the execution of their Work under this
Agreement.
16. Plans and Working Drawings
16.1 City, through A/E, shall have the right to modify the details of the Drawings and
Specifications, to supplement the Drawings and Specifications with additional
plans, drawings or additional information as the Work proceeds, all of which shall
be considered as part of the Contract Documents.
16.2 Where the CM believes that the modification or supplement is outside the scope
of the Work, the Contractor shall, within 48 hours, notify the A/E and the Project
Manager that the modification or supplement is outside the scope of the Work.
At that time the modification or supplement may be rescinded or the CM may be
required to submit a request for a Change Order proposal. Where the CM is
notified of the City's position that the modification or supplement is within the
Little Haiti Park Page 12
scope and the CM disagrees, the CM shall notify the A/E and the Project
Manager that the CM reserves the right to make a claim for the time and monies
based on the modification or supplement. At no time shall the CM refuse to
comply with the modification or supplement. Failure to comply with the
modification or supplement may result in a determination that the CM is in default
of the Agreement.
17. Supplementary Drawings
17.1. When, in the opinion of A/E, it becomes necessary to explain the Work to be
done more fully, or to illustrate the Work further, or to show any changes which
may be required, supplementary drawings, with specifications pertaining thereto,
will be prepared by A/E.
17.2. The supplementary drawings shall be binding upon CM with the same force as
the Contract Documents. Where such supplementary drawings require either
less or more than the original quantities of work, appropriate adjustments shall be
made by Change Order.
18. Supplemental Instructions
The Project Manager and/or A/E, as applicable, shall have the right to approve and issue
Supplemental Instructions setting forth written orders, instructions, or interpretations
concerning the Contract Documents or its performance.
19. Continuing the Work
CM shall carry on the Work and adhere to the progress schedule during all disputes or
disagreements with City, including, without limitation, disputes or disagreements
concerning a request for a Change Order, a request for a change in the Pre -
Construction Fee, the, GMP, the Contract Time, or Construction Work Time for
Completion. The Work shall not be delayed or postponed pending resolution of any
disputes or disagreements.
20. Discretion Of Director
Any matter not expressly provided for herein dealing with the City or decisions of the City
shall be within the exercise of the reasonable professional discretion of the Director or
the Director's authorized designee.
21. Authority Of The City Project Manager
21.1. The Director hereby authorizes the City's Project Manager and/or the A/E,
without limitation, to determine or answer, all questions of any nature whatsoever
arising out of, under or in connection with, or in any way relating to or on account
of the Work, and/or as to the interpretation of the Work to be performed.
21.2. The CM shall be bound by all determinations or orders of the Project Manager
and/or A/E and shall promptly respond to requests of the Project Manager and/or
AIE, including the withdrawal or modification of any previous order, and
regardless of whether the CM agrees with the Project Manager's and/or A/E's
determination or requests. Where requests are made orally, the Project Manager
and/or A/E will follow up in writing, within 24 hours.
21.3. The Project Manager and/or A/E shall have authority to act on behalf of the City
to the extent provided by the Agreement, unless otherwise modified in writing by
the City. All instructions to the CM shall be issued in writing. Ail instructions to
the CM shall be issued through the Director, Project Manager or the NE.
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21.4. The Project Manager and A/E shall have access to the Project Site during normal
work hours, unless access in required by the City due to health, safety or welfare
of the City or the public. The CM shall provide safe facilities for such access so
the Project Manager and NE may perform their functions under the Agreement.
The Project Manager and A/E will make periodic visits to the Work Site to
become generally familiar with the progress and quality of the Work, and to
determine if the Work is proceeding in accordance with the Contract Documents.
21.5. The Project Manager and AIE will not be responsible for construction means,
methods, techniques, sequences or procedures, or for safety precautions and
programs in connection with the Work, and will not be responsible for the CM's
failure to carry out the Construction Work in accordance with the Agreement.
21.6. The Project Manager and A/E will have authority to reject Construction Work that
does not conform to the Contract Documents requirements. Whenever, in his or
her opinion, it is considered necessary or advisable to insure the proper
implementation of the Contract Documents, the Project Manager and A/E will
have authority to require special inspections or testing of the Construction Work,
whether or not such Construction Work is fabricated, installed or completed.
Neither the Project Manager's and A/E's authority to act under this Article, nor
any decision made by him/her in good faith either to exercise or not to exercise
such authority, shall give rise to any duty or responsibility of the Project Manager
and A/E to the CM, any Sub -Contractor, Sub -Consultant, supplier or any of their
agents, employees, or any other person performing any of the Construction
Work.
21.7. All interpretations and recommendations of the Project Manager and AIE shall be
consistent with the intent of the Contract Documents.
21.8. The Project Manager and A/E will not be responsible for the acts or omissions of
the CM, or anyone employed or contracted directly or indirectly by the CM
including any Sub -Contractor, Sub -Consultant, or any of their agents or
employees, or any other persons performing any of the Work.
22. Removal of Unsatisfactory Personnel
The City may make written request to CM for the prompt removal and replacement of
any personnel employed or retained by the CM, or any Sub -Consultants or Sub -
Contractors, or any personnel of any such Sub -Consultants or Sub -Contractors engaged
by the CM to provide and perform services or Work pursuant to the requirements of this
Agreement. The CM shall respond to the City within fourteen (14) calendar days of
receipt of such request with either the removal and replacement of such personnel or
written justification as to why that" may not occur. The CITY shall make the final
determination as to the removal of unsatisfacotry personnel from work assigned by
CITY.. Such decision shall not be construed as directing the Contractor to terminate any
employees employment with the Contractor,
23. Defective Work
23.1. AIE shall have the authority to reject or disapprove Work which A/E finds to be
defective. If required by A/E, CM shall promptly either correct all defective work
or remove such defective Work and replace it with non -defective Work. CM shall
bear all direct, and indirect costs of such removal or corrections including cost of
testing laboratories and personnel.
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23.2. Should CM fail or refuse to remove or correct any defective Work or to make any
necessary repairs in accordance with the requirements of the Contract
Documents within the time indicated in writing by A/E, City shall have the
authority to cause the defective work to be removed or corrected, or make such
repairs as may be necessary at CM's expense. Any expense incurred by City in
making such removals, corrections or repairs, shall be paid for out of any monies
due or which may become due to CM, or may be charged against the
Performance Bond. In the event of failure of CM to make all necessary repairs
promptly and fully, which is not cured in the Cure Period City may declare CM in
default.
23.3. lf, within one (1) year after the date of Substantial Completion or such longer
period of time as may be prescribed by the terms of any applicable special
warranty required by the Contract Documents, or by any specific provision of the
Contract Documents, any of the Construction Work is found to be defective or not
in accordance with the Contract Documents, CM, after receipt of written notice
from City, shall promptly correct such defective or nonconforming Construction
Work within the time specified by City without cost to the City. Nothing contained
herein shall be construed to establish a period of limitation with respect to any
other obligation which CM might have under the Contract Documents including
but not limited to any claim regarding latent defects.
22.4. Failure to reject any defective work or material shall not in any way prevent later
rejection when such defect is discovered, or obligate City to final acceptance.
24. Correction Of Work
Where the City or A/E becomes aware of faults, defects or non -conformity in any of the
Work provided under this Agreement or with the Work being performed by the CM, the
City shall issue a Notice to Cure to the CM for correction. In no event shall the failure of
the City to bring to the attention of the CM such faults act as a waiver or release the CM
from responsibility or liability for such fault, defect or non -conforming Work.
25. Warranty of Materials and Equipment
CM warrants to City that all materials and equipment furnished under this Agreement will
be new unless otherwise specified and that all of the Work will be of good quality, free
from faults and defects and in conformance with the Contract Documents. All equipment
and materials not conforming to these requirements, including substitutions not properly
approved and authorized, may be considered defective. If required by A/E, CM shall
furnish satisfactory evidence as to the kind and quality of materials and equipment. This
warranty is not limited by any other provisions within the Contract Documents.
26. Material and Equipment Shipment, Handling, Storage and Protection (Article 26
belongs in the General Conditions and not in the actual body of the contract)
26.1 Preparation for Shipment
26.1.1 When practical, equipment shall be factory assembled. The equipment
parts and assemblies that are shipped unassembled shall be furnished
with assembly plan and instructions. The separate parts and assemblies
shall be factory match -marked or tagged in a manner to facilitate
assembly. All assemblies are to be made by the CM at no additional cost
to the City.
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26.1.2 Generally, machined and unpainted parts subject to damage by the
elements shall be protected with an application of a strippable protective
coating, or other approved protective method.
26.1.3 Equipment shall be packaged or crated in a manner that will provide
protection from damage during shipping, handling, and storage.
26.1.4 The outside of the package or crate shall be adequately marked or
tagged to indicate its contents by name and equipment number, if
applicable; approximate weight; state any special precautions for
handling; and indicate the recommended requirements for storage prior to
installation.
26.2 Packaging and Delivery of Spare Parts and Special Tools
26.2.1 Any spare parts and/or specialty tools shall be properly mark to identify the
associated equipment by name, equipment, and part number. Parts shall be
packaged in a manner for protection against damage from the elements during
shipping, handling, and storage. Shipping boxes are to be marked to indicate the
contents. Delivery of spare parts and special tools shall be made prior to the time
associated equipment is scheduled for the initial test run.
26.3 Shipment
26.3.1 All equipment and material shall be shipped with freight and shipping
paid, FOB job site.
26.3.2 The CM shall request a 7-day advance notice of shipment from
manufacturers, and, upon receipt of such notice, provide the A/E with a
copy of the current delivery information concerning equipment items and
material items of critical importance to the project schedule.
26.4 Receiving
26.4.1 The CM shall unload and record the receipt of all equipment and
materials at the jobsite.
26.4.2 All costs for receiving, inspection, handling, storage, insurance, inventory
control, and equipment maintenance for the CM -supplied materials and
equipment shall be included in the prices bid and no extra compensation
will be allowed.
26.5 Inspection
Immediately upon receipt of equipment and materials at the jobsite, the CM shall
inspect for completeness and any evidence of damage during shipment. City's
supplied equipment and material shall be inspected and inventoried together with
City's inspector. Should there appear to be any shortage or damage, the A/E
shall be immediately notified; and the CM shall be fully responsible for informing
the manufacturers and the transportation company of the extent of the shortage
or damage. If the item or items require replacing or supplying missing parts, the
CM shall take the necessary measures to expedite the replacement or supply the
missing parts. The CM shall be responsible for shortages or damaged to all
materials and equipment except for materials and equipment furnished by the
City.
26.6 Handling
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Equipment and materials received for installation on this Project shall be handled
in accordance with the manufacturer's recommendations, and in a manner that
will prevent damage.
26.7 Storage
Equipment and materials shall be stored prior to installation as recommended by
the manufacturer. Generally, materials such as pipe shall be stored off the
ground in approved storage yards. Items subject to damage by the elements,
vandalism, or theft shall be stored in secure buildings. Items requiring
environmental control for protection shall be provided with the necessary
environmentally controlled storage facilities at no cost to the City.
26.8 Insurance
The CM's insurance shall adequately cover the value of materials delivered but
not yet incorporated into the work. The CM and the City shall be named as co-
insured insofar as their respective interests may appear. The City shall not pay
for any materials stored but not incorporated into the Work.
26.9 Equipment Maintenance Prior to Acceptance by the City
CM shall provide the required or manufacturer's recommended maintenance
during storage, during the installation, and until such time as the City accepts the
equipment for full-time operation.
27. Manufacturer's Instructions (Article 27 belongs in the General Conditions and not
in the actual body of the contract)
27.1. The CM shall:
27.1.1. Comply with manufacturer's requirements for the handling, delivery and
storage of all materials. Where required by the Contract Documents,
CM shall submit manufacturer's printed instructions for delivery,
storage, assembly, and installation.
27.1.2. Comply with the manufacturer's applicable instructions and
recommendations for the performance of the Work, to the extent that
these instructions and recommendations are more explicit or more
stringent than requirements indicated in the Agreement.
27.1.3. Inspect each item of material or equipment immediately prior to
installation and reject damaged and defective items.
27.1.4. Provide attachment and connection devices and methods for securing
the Construction Work; secure Construction Work true to line plumb and
level, and within recognized industry standards; allow for expansion and
building movement; provide uniform joint width in exposed Construction
Work; arrange joints in exposed Construction Work to obtain the best
visual effect and refer questionable visual effect choices to the AIE for
final decision when applicable to the Construction Work,
27.1.5. Recheck measurements and dimensions of the Construction Work, as
an integral step in starting each portion of the Construction Work.
27.1.6. Install each unit or section of Construction Work during favorable
weather conditions, which shall ensure the best possible results in
coordination with the entire Project and isolate each unit of Construction
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Work from incompatible Construction Work as necessary to prevent
potential interference among each section and/or deterioration of
equipment.
27.1.7. Coordinate enclosure of the Construction Work, which requires
inspections and tests so as to minimize the necessity of uncovering
Construction Work for that purpose.
27.1.8 When required by the Contract Documents or the manufacturer, a
qualified representative shall be present to observe field conditions,
conditions of surface and installation, quality of workmanship, and
applications. Manufacturer's representative shall provide the CM and
the A/E a written report of field observations.
28. Manufacturer's Warranty (Article 28 belongs In the General Conditions and not in
the actual body of the contract)
CM shall provide to City all manufacturers' warranties. All warranties, expressed and/or
implied, shall be given to the City for all material and equipment covered by this
Agreement. All material and equipment furnished shall be fully guaranteed by the CM
against factory defects and workmanship. At no expense to the City, the CM shall
correct any and all apparent and latent defects that may occur within the manufacturer's
standard warranty. The Contract Documents may supersede the manufacturer's
standard warranty. Manufacturer's warranties will become effective upon final
completion of the Project.
29. Changes in the Work or Terms of Contract Documents
29.1. Without invalidating the Agreement and without notice to any Surety, City
reserves and shall have the right, from time to time to make such increases,
decreases or other changes in the character or quantity of the Work 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 this Project must be issued in writing in accordance with the
requirements of this Agreement
29.2. Any changes to the terms of the Contract Documents must be contained in a
written document, executed by the parties hereto, with the same formality and of
equal dignity prior to the initiation of any Work reflecting such change. This
Article shall not prohibit the issuance of Change Orders executed only by City as
hereinafter provided.
29.3 CM shall increase or decrease the value of the Performance and Payment Bonds
to reflect the value of the GMP as it may be revised.
30. No Damages For Delay
In the event of any delays to the Project that are caused by actions or events that are out
of the control of the owner or entities hired or control by the owner, the CM's sole
remedy shall be to seek an extension of time in accordance with the terms of the
Agreement. The City shall not be liable for any delay damages or damages attributable
to performing Work out of sequence, acceleration claims or other similar type claims,
incurred by CM arising out of or in any way associated with the performance under this
Agreement.
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31. OSHA Compliance
The CM warrants that it will comply with all safety precautions as required by federal,
state or local laws, rules, regulations and ordinances.
32. Safety Precautions
32.1. CM shall be solely responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the Project. CM and its Sub-
contractors shall take all necessary precautions for the safety of, and shall
provide the necessary protection to prevent damage, injury or loss to:
32.1.1. All employees on the Project site and other persons who may be
affected thereby;
32.1.2. All the Construction Work and all materials or equipment to be
incorporated therein, whether in storage on or off the Project site; and
32.1.3. Other property at the Project 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.
32.2. CM shall designate a responsible member of its organization at the Project site
whose duty shall be the prevention of accidents. This person shall be CM 's
Superintendent unless otherwise designated in writing by CM to the City.
32.3. CM shall comply with all applicable laws, ordinances, rules, regulations and
orders of any public body having jurisdiction for the safety of persons or property
or to protect them from damage, injury or loss; and shall erect and maintain all
necessary safeguards for such safety and protection. CM shall notify owners of
adjacent property and utilities when prosecution of the Construction Work may
affect them. All damage, injury or loss to any property, caused directly or
indirectly, in whole or in part, by CM, any Sub -Contractor 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 CM. CM 's duties and responsibilities for the safety
and protection of the Work shall continue until such time as all the Work is
completed and A/E has issued a notice to City and CM a notice of Final
Acceptance.
32.4 CM must adhere to the applicable environmental protection guidelines for the
duration of the Project. If hazardous waste materials are used, detected or
generated at any time, the A/E and the Project Manager must be immediately
notified of each and every occurrence. The CM shall comply with all codes,
ordinances, rules, orders and other legal requirements of public authorities
(including, without limitation, OSHA, EPA, DERM, the City, Miami -Dade County,
State of Florida, and Florida Building Code) which bear on the performance of
the Work.
32.5. CM shall have the responsibility to ensure that all Construction Work is
performed using adequate safeguards, including but not limited to: proper safe
rigging, safety nets, fencing, scaffolding, barricades, chain link fencing, railings,
barricades, steel plates, safety lights, and ladders that are necessary for the
protection of its employees, as well as the public and City employees. All
riggings and scaffolding shall be constructed with good sound materials, of
adequate dimensions for their intended use, and substantially braced, tied or
Little Haiti Park Page 19
secured to insure absolute safety for those required to use it, as well as those in
the vicinity. All riggings, scaffolding, platforms, equipment guards, trenching,
shoring, ladders and similar actions or equipment shall be OSHA approved, as
applicable, and in accordance with all federal state and local regulations.
32.6 If an emergency condition should develop during the Project, the CM must
immediately notify the A/E and the City's Project Manager of each and every
occurrence. The CM should also recommend any appropriate course(s) of action
to the A/E and the Project Manager.
33. Accidents
32.1 The CM shall provide such equipment and facilities as are necessary or required,
in the case of accidents, for first aid service to person who may be injured during
the Project duration. The CM shall also comply with the OSHA requirements as
defined in the United States Labor Code 29 CFR 1926.50.
32.2 In addition, the CM must report immediately to the A/E and Project Manager
every accident to persons or damage to property, and shall furnish in writing full
information, including testimony of witnesses regarding any and all accidents.
34. Priority Of Provisions
34.1 If there is a conflict or inconsistency between any term, statement requirement,
or provision of any exhibit attached hererto, any document or events referred to
herein, or any document incorporated into this Agreement by reference and a
term, statement, requirement, the specifications and plans prepared by the A/E,
or provision of this Agreement the following order of precedence shall apply:
34.1.1 In the event of conflicts in the Contract Documents the priorities stated
below shall govern;
• Revisions to the Contract Documents shall govern over the
Contract Documents
• No section of the Scope of Work, specifications or plans shall
govern over the Contract Terms and Conditions
• Scope of Work and Specifications shall govern over plans and
drawings
34.1.2 In the event of conflicts with the plans the priorities stated below shall
govern:
• Schedules, when identified as such shall govern
over all other portions of the plans
• Specific notes shall govern over all other notes, and
all other portions of the plans, unless specifically stated otherwise
• Larger scale drawings shall govern over smaller
scale drawings
• Figured or numerical dimensions shall govern over
dimensions obtained by scaling
• Where provisions of codes, manufacturer's
specifications or industry standards are in conflict, the more
restrictive or higher quality shall govern
34.2 In the event of omissions in the Contract Documents and are not complete as to
any minor detail of construction or construction system or with regard to the
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manner of combining or installing equipment, parts, or materials, such detail shall
be deemed to be an implied requirement of the Contract Documents. "Minor
Detail" shall include the concept of substantially identical components, where the
price of each such component is small. The quality and quantity of the
equipment, material, or part so furnished shall conform to trade standards and be
compatible with the type, composition, strengths, size and profile of the
equipment, materials or parts otherwise specified in the Contract Documents.
35. Payments
Payment of an approved Application for Payment approved by the NE shall be made
within thirty (30) days after receipt of CM's Application for Payment by the City, which
shall be accompanied by sufficient supporting documentation and contain sufficient
detail, to allow a proper audit of expenditures, should the City require one to be
performed.
36. Notices
Whenever either party desires to give Written Notice unto the other, such must be
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 Article. Notice shall be deemed given on the
date received or within 3 days of mailing, if mailed through the United States Postal
Service. Notice shall be deemed given on the date sent via e-mail or facsimile. Notice
shall be deemed given via courier/delivery service upon the initial attempted delivery
date by the courier/delivery service. For the present, the parties designate the following
as the respective places for giving of notice:
For City of Miami:
Mary H. Conway, P.E.
Director of Capital Improvements & Transportation
City of Miami
444 S.W. 2nd Ave., - 81h FI
Miami, Florida 33130
AND
Procurement Supervisor
City of Miami
Department of Capital improvements (CIP)
444 S.W. 2nd Ave., - 81h Fl
Miami, Florida 33130
With a copy to:
City Attorney
City of Miami
444 S.W. 2nd Ave., Suite 945
Miami, FI. 33130-1910
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FOR CM:
(Name of Individual)
(Name of Company)
(Address)
(Address)
(City/State/Zip Code)
37. Indemnification
37.1 CM shall indemnify and hold harmless City, its officers, agents, directors, and
employees, from liabilities, damages, losses, and costs, including, but not limited
to reasonable attorney's fees, and costs to the extent caused by the negligence,
recklessness or intentional wrongful misconduct of CM and persons employed or
utilized by CM in the performance of this Agreement. CM's obligations hereunder
shall apply even if part of the damage or injury are caused by the City. These
indemnifications shall survive the term of this Agreement. In the event that any
action or proceeding is brought against City by reason of any such claim or
demand, CM shall, upon written notice from City, resist and defend such action
or proceeding by counsel satisfactory to City.
37.2 The indemnification provided above shall obligate CM to defend at its own
expense to and through appellate, supplemental or bankruptcy proceeding, or to
provide for such defense, at City's option, any and all claims of liability and all
suits and actions of every name and description covered by Section 37.1 above
which may be brought against City whether performed by CM, or persons
employed or utilized by CM.
37.3 This indemnity will survive the cancellation or expiration of this Agreement. This
indemnity will be interpreted under and construed to conform to the laws of the
State of Florida, including without limitation and interpretation §725.06 and/or
§725.08, Fla. Statue.
37.4 CM shall require all Sub -Consultant and Sub -Contractor agreements to include a
provision that they will indemnify the City.
38. Insurance
38.1 The CM shall not start Work under each Phase of this Agreement until the CM
has obtained the insurance required for the applicable Phase hereunder and the
City's Risk Administrator has approved such insurance.
38.1.1 Companies Providing Coverage
All insurance policies shall be issued by companies authorized to do
business under the laws of the State of Florida and satisfactory to the
Risk Administrator. All companies shall have a Florida resident agent and
be rated at least A(X), as per A.M. Best Company's Key Rating Guide,
latest edition.
38.1.2 Verification Of Insurance Coverage
The CM shall furnish certificates of insurance to the Risk Administrator for
review and approval prior to the execution of this Agreement and any
amendment thereto. The Certificates shall clearly indicate that the CM
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has obtained insurance of the type, amount and classification required by
these provisions, in excess of any pending claims at the time of contract
award to the CM. CM shall maintain coverage with equal or better rating
as identified herein for the term of this Agreement. CM shall provide
written notice to the Risk Administrator of any material change,
cancellation and/or notice of non -renewal of the insurance within 30 days
of the change. CM shall furnish a copy of the insurance policy or policies
upon request of the Risk Administrator.
38.2 CM shall furnish copies of insurance policies pertaining to this Agreement to the
City's Risk Administrator within ten (10) days of written request.
38.3 Forms Of Coverage Pre -Construction Phase Services
38.3.1. Comprehensive General Liability and Automobile Liability
Coverage shall have minimum limits of $1,000,000 per Occurrence,
Combined Single Limit Bodily injury Liability and Property Damage
Liability. General Aggregated Limit shall have a minimum limit of
$2,000,000. This shall include Premises and Operations, Independent
Contractors, Products and Completed Operations, Broad Form Property
Damage, XCU Coverage, and Contractual Liability. Automobile coverage
including hired, borrowed or non -owned autos, limits of Liability, Bodily
Injury, Damage Liability for any one accident $1,000,000. The City of
38.3.2 Worker's Compensation Insurance
The CM shall maintain Worker's Compensation Insurance in compliance
with Florida Statutes, Chapter 440, as amended, and Employee's Liability
with a minimum limit of $500,000 each occurrence.
CM shall ensure that all Sub -Consultants comply with these same insurance
requirements.
38.3 Forms Of Coverage for Construction Phase Services
Should CM be authorized to construct the Project, without limiting any of the
other obligations or liabilities of Contractor, Contractor shall provide, pay for, and
maintain in force until all of its Work to be performed under this Contract has
been completed and accepted by City (or for such duration as is otherwise
specified hereinafter), the insurance coverages set forth herein.
38.3.1. Workers' Compensation insurance to apply for all employees in
compliance with the "Workers' Compensation Law" of the State of Florida
and all applicable federal laws. in addition, the policy(ies) must include:
38.3.1.1. Employers' Liability with a limit of One Million Dollars
($1,000,000.00) Dollars each bodily injury caused by an
accident, each accident. One Million Dollars ($1,000,000.00)
Dollars each bodily injury caused by disease, each employee.
One Million Dollars ($1,000,000.00 Dollars each bodily injury
caused by disease, policy limit.
38.3.1.2 Waiver of subrogation
38.3.2. Comprehensive General Liability with minimum limits of One Million
Dollars ($1,000,000.00) per occurrence, combined single limit for Bodily
Injury Liability and Property Damage Liability. General Aggregate Limit of
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Two Million Dollars ($2,000,000.00). Coverage must be afforded on a
form no more restrictive than the latest edition of the Comprehensive
General Liability policy, without restrictive endorsements, as filed by the
Insurance Services Office, and must include:
[ X ] 38.4.2.1. Premises and/or Operations.
[ X ] 38.4.2.2. Independent Contractors.
[ X ] 38.4.2.3. Products and/or Completed Operations for contracts with
an Aggregate Limit of Two Million Dollars
($2,000,000.00) per project. Contractor shall maintain in
force until at least three years after completion of all work
required under the Contract, coverage for Products and
Completed Operations, including Broad Form Property
Damage.
[ X ] 38.3.2.4. Explosion, Collapse and Underground Coverages.
[ ] 38.3.2.5. Broad Form Property Damage.
[ ] 38.3.2.6. Broad Form Contractual Coverage applicable to this
specific Contract, including any hold harmless and/or
indemnification agreement.
[ X ] 38.3.2.7. Personal Injury Coverage with Employee and Contractual
Exclusions removed, with minimum limits of coverage equal
to those required for Bodily Injury Liability and Property
Damage Liability.
[ X ] 38.3.2.8. City is to be expressly included as an Additional Insured
with respect to liability arising out of operations performed for
City by or on behalf of Contractor or acts or omissions of
Contractor in connection with general supervision of such
operation.
[ ] 38.3.2.9. Employee included as insured.
[ X ] 38.3.2.10. Contractual Liability.
[ X ] 38.3.2.11. Waver of Subrogation.
[ X ] 38.3.2.12. Personal and Advertising Injury.
[ X ] 38.3.2.13. Loading and Unloading.
[ X ] 38.3.2.14. Mobile Equipment (Contractor's Equipment) whether
owned, leased, borrowed or rented by Contractor or
employees of the Contractor.
38.3.3. Business Automobile Liability with minimum limits of One Million Dollars
($1,000,000.00) per occurrence combined single limit for Bodily Injury
Liability and Property Damage Liability. Coverage must be afforded on a
form no more restrictive than the latest edition of the Business Automobile
Liability policy, without restrictive endorsements, as filed by the insurance
Services Office, and must include:
36.3.3.1. Owned Vehicles.
36.3.3.2. Hired and Non -Owned Vehicles.
Little Haiti Park Page 24
36.3.3.3.
36.3.3.4
36.3.3.5
Employers' Non -Ownership.
Employees included as insured
City of Miami as Additional Insured
[ X ] 38.3.4. Umbrella Policy
37.3.4.1, Bodily injury and property damage liability with limits of Two
Million Dollars ($2,000,000) each occurrence and an
aggregate limit of Two Million Dollars ($2,000,000).
37.3,4.2. Products/Completed operations aggregate limit of Two
Million Dollars ($2,000,000).
Excess coverage over the policies as follows:
• Commercial General Liability
• Business Automobile Liability
[ X ] 38.3.5. Installation Floater for the installation of machinery and/or equipment into
an existing structure is required. The coverage shall be "All Risk"
coverage including installation and transit for 100 percent of the "installed
replacement cost value," covering City as a named insured, with a
deductible of not more than Five Thousand Dollars ($5,000.00) each
claim.
38.3.5.1. Cessation of insurance --Coverage is not to cease and is to
remain in force (subject to cancellation notice) until final
acceptance by City.
38.3.5.2. Flood Insurance --When the machinery or equipment is
located within an identified special flood hazard area, flood
insurance must be afforded for the lesser of the total
insurable value of such buildings or structure, or, the
maximum amount of flood insurance coverage available
under the National Flood Program.
[ X ] 38.3.6. Owners Contractors Protective — City of Miami — Limits of Liability for
Bodily Injury & Property Damage Liability shall be in the amounts of
$1,000,000,00 for each occurrence and $1,000,000.00 in the aggregate
[ X ] 38.3.7 Employer's Liability — Limits of Liability
$500,000 for bodily injury caused by accident, each accident
$500,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
38.3.8 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 $ 9,000,000 Adjust to reflect GMP amount
[X]
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S. 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. Business Interruption
10. Subsidence
11. 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.
12. Escalation clause in the event of a total loss up to 5% of policy.
limit.
13. Temporary structures, cribbing and false work built or erected at
construction site.
14. Unintentional errors and omissions in reporting clause
15. Full coverage up to policy limits for testing including physical
loss caused by pneumatic and hydrostatic testing.
16. Debris Removal."
38.4. If the initial insurance expires prior to the completion of the Work, renewal copies
of policies shall be furnished at least thirty (30) days prior to the date of their
expiration.
38.5. Notice of Cancellation and/or Modification --The policy(ies) must be endorsed to
provide City with at least thirty (30) days notice of cancellation and/or
modification.
38.6. Submittal of Certificates --Contractor shall furnish to the Capital Improvements
Department Certificates of Insurance or endorsements evidencing the insurance
coverage specified above within fifteen (15) calendar days after notification by
the City. The required Certificates of Insurance shall name the types of policies
provided, refer specifically to this Contract, and state that such insurance is as
required by this Contract.
38.7. The official title of the Owner is the City of Miami, Florida. This official title shall
be used in all insurance documentation.
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39. Modifications To Coverage
The City through its Risk Administrator or authorized designee, reserves the right to
require modifications, increases, or changes in the required insurance requirements,
coverage, deductibles or other insurance obligations and shall provide a thirty (30) day
written notice to the CM. In that event CM shall comply with such requests unless the
insurance coverage is not then readily available in the national market, and may request
additional consideration from City accompanied by justification. All additional cost will be
born by the City.
40. Citv's Right To Terminate
40.1 The City has the right to terminate this Agreement for any reason or no reason,
upon thirty (30) days Written Notice. Such Written Notice shall state the date upon
which CM shall cease all Work under this Agreement and vacate the Project site.
Upon termination of this Agreement, all charts, sketches, studies, drawings, reports
and other documents, including electronic documents, related to Work authorized
under this Agreement, whether finished or not, must be turned over to the City. The
CM shall be paid in accordance with provisions of this Agreement, provided that
said documentation is turned over to City within twenty (20) business days of
termination. Failure to timely deliver the documentation shall be cause to withhold
any payments due without recourse by CM until all documentation is delivered to
the City.
41. Termination for Default
41.1 If CM fails to comply with any term or condition of this Agreement, or fails to
perform any of its obligations hereunder, then CM shall be in default. Upon the
occurrence of a default hereunder the City which is not cured withing the Cure
Period, in addition to all remedies available to it by law, may immediately, upon
written notice to CM, terminate this Agreement whereupon all payments,
advances, or other compensation paid by the City to CM while CM was in default
shall be immediately returned to the City. The City may also suspend any
payment or part thereof or order a Work stoppage until such time as the issues
concerning compliance are resolved. CM understands and agrees that
termination of this Agreement under this Article shall not release CM from any
obligation accruing prior to the effective date of termination.
41.2 In the event of termination due to default, in addition to the foregoing CM shall be
liable for all costs and expenses incurred by the City in the re -procurement of the
Work under this Agreement. In the event of Default, the City may also issue a
Notice to Cure and suspend or withhold payments to CM until such time as the
actions giving rise to default have been cured.
41.3 A finding of default and subsequent termination for cause may include, without
limitation, any of the following:
41.3.1 CM fails to obtain the insurance or bonding herein required.
41.3.2 CM fails to comply with any of its duties under this Agreement, with any
terms or conditions set forth in this Agreement beyond the specified
period allowed to cure such default.
41.3.3 CM fails to commence the Work within the timeframes provided or
contemplated herein, or fails to complete the Work in a timely manner as
required by this Agreement.
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41.4 The City shall provide Written Notice to Cure to CM as to a finding of default, and
CM shall take all necessary action to Cure said default within such time as
stipulated in the Written Notice. Such time to Cure shall be at the sole discretion of
the City. The City may extend the Cure Period at its sole discretion or terminate the
Agreement upon failure of the CM to cure such default in the specified timeframe.
42. Termination by CM
42.1 The CM may terminate this Agreement if the Work is stopped for any of the
reasons listed below for a period of 60 days through no act or fault of the CM, his
agents, employees, or other persons performing any portion of the Work for the
CM.
421,1 Issuance of an Order of the Court or other Public Authority having
jurisdiction;
42.1.2 An act of government which results in a cession of Work on this
Agreement;
42.1.3 Failure of the City to pay the CM any properly presented and authorized
payment within 30 days after approval and subsequent to an additional 30
days after notification from the CM in writing of such failure.
42.2 If any one of the above reasons exists, the CM may, upon seven additional days
written notice to the City, stop work or terminate the Agreement and recover from
the City any costs for work performed in accordance with the Agreement for
which payment has not been made. The City shall not be liable for any
consequential damages of lost profits.
43. Termination Due To Undisclosed Lobbyist Or Agent
43.1 CM warrants that it has not employed or retained any company or person to
solicit or secure this Agreement and that he or she has not paid or agreed to pay
any person, company, corporation, individual, or firm any fee, commission,
percentage, gift, or other consideration contingent upon or resulting from the
award or making of this Agreement.
43.2 For the breach or violation of this provision, the City shall have the right to
terminate the Agreement without liability and, at its discretion, to deduct from the
Agreement, or otherwise recover, the full amount of such fee, commission,
percentage, gift, or consideration.
44. Materiality And Waiver Of Breach
44.1 City and CM agree that each requirement, duty, and obligation set forth in these
Contract Documents is substantial and important to the formation of this
Agreement.
44.2 City'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.
45. Force Maio ure
45.1 Should any failure to perform on the part of CM be due to a condition of force
majeure as that term is interpreted under Florida law, then the City may allow an
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extension of time reasonably commensurate with the cause of such failure to
perform or cure.
45.2 If the CM is delayed in performing any obligation under this Agreement due to a
force majeure condition, the CM shall request a time extension from the City
within two (2) working days of said force majeure occurrence. Any time
extension shall be subject to mutual agreement and shall not be cause for any
claim by the CM for extra compensation unless additional services are required.
Do Not Include inclement weather except as permitted by Florida law and may
not include the acts or omissions of Sub-Consultants/Sub-Contractors.
46. Resolution Of Contract Disputes
CM understands and agrees that all disputes between it and the City based upon an
alleged violation of the terms of this Agreement by the City shall be initially submitted to
the Director for resolution. Upon receipt of the submittal from the CM, the Director shall
render a decision within fourteen (14) calendar days. Where a mutually satisfactory
resolution cannot be reached the CM may submit the dispute to the City Manager or
his/her designee for resolution. Where a mutual resolution cannot be reached between
the CM and the City Manager or designee, the CM, prior to being entitled to seek judicial
relief shall comply with Article 46 of this Agreement, in connection therewith. Should the
amount of compensation hereunder exceed $500,000, the City Manager's decision shall
be approved or disapproved by the City Commission. CM shall not be entitled to seek
judicial relief unless:
(i) it has first received City Manager's written decision, approved by the City
Commission if applicable, or
(ii) a period of sixty (30) days has expired after submitting to the City Manager a
detailed statement of the dispute, accompanied by all supporting
documentation, or a period of (75) days has expired where City Manager's
decision is subject to City Commission approval; and
(iii) mediation of the dispute, as stipulated in Article 47, has not resulted in a
mutual resolution; or
(iv) City has waived compliance with the procedure set forth in this Article by
written instrument(s) signed by the City Manager.
47. Mediation - Waiver Of Jury Trial
47.1 In an effort to engage in a cooperative effort to resolve conflict which may arise
during the course of the design and/or construction of the Project, and/or
following the completion of the Project, the parties to this Agreement agree all
unresolved disputes between them shall be submitted to non -binding mediation
prior to the initiation of litigation, unless otherwise agreed in writing by the parties.
A certified Mediator, who the parties find mutually acceptable, will conduct any
Mediation Proceedings in Miami -Dade County, State of Florida. The parties will
share the costs of a certified Mediator on a 50/50 basis. The CM agrees to
include such similar contract provisions with all Sub -Consultants and Sub -
Contractors retained for the Work, thereby providing for non -binding mediation as
the primary mechanism for dispute resolution.
47.2 In an effort to expedite the conclusion of any litigation the parties voluntarily
waive their right to jury trial or to file permissive counterclaims in any action
arising under this Agreement.
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48. Applicable Law And Venue Of Litigation
This Agreement shall be interpreted and construed in accordance with and governed by
the laws of the State of Florida. Any suit or action brought by any party, concerning this
Agreement, or arising out of this Agreement, shall be brought in Miami -Dade County,
Florida. Each party shall bear its own attorney's fees except in actions arising out of
CM's duties to indemnify the City under this Agreement where CM shall pay the City's
reasonable attorney's fees.
49. Permits, Licenses and Impact Fees
49.1. Except as otherwise provided within the Agreement, all permits and licenses
required by federal, state or local laws, rules and regulations necessary for the
prosecution of the Work undertaken by Contractor pursuant to this Agreement
shall be secured and paid for by CM. It is CM's responsibility to have and
maintain appropriate Certificate(s) of Competency, valid for the Work to be
performed and valid for the jurisdiction in which the Work is to be performed for
all persons working on the Project for whom a Certificate of Competency is
required.
49.2. Impact fees levied by the City shall be waived by the City. CM shall be
reimbursed through its GMP only for the actual amount of the impact fee levied
by the other governmental entities as evidenced by an invoice or other
acceptable documentation issued by the municipality. Reimbursement to CM in
no event shall include profit or overhead of CM.
50. Compliance With Laws
CM shall comply with all applicable laws, codes, ordinances, rules, regulations and
resolutions and all applicable guidelines and standards in performing its duties,
responsibilities, and obligations related to this Agreement.
51. Public Entity Crimes
In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a person or
affiliate who is a contractor, consultant or other provider, who has been placed on the
convicted vendor list following a conviction for a public entity crime may not submit a bid
on a contract to provide any goods or services to the City, may not submit a bid on a
contract with the City for the construction or repair of a public building or public work,
may not submit bids on leases of real property to the City, may not be awarded or
perform work as a contractor, supplier, subcontractor, or subconsultant under a contract
with the City, and may not transact any business with the City in excess of the threshold
amount provided in Section 287.017, Florida Statutes, for category two purchases for a
period of 36 months from the date of being placed on the convicted vendor list. Violation
of this section by CM shall result in cancellation of the City purchase and may result in
CM's debarment.
52. Audit Rights
52.1 CM's records which shall include but not be limited to accounting records, payroll
time sheets, cancelled payroll checks, W-2's, 1099's, written policies and
procedures, computer records, disks and software, videos, photographs,
subcontract files (including proposals of successful and unsuccessful bidders),
originals estimates, estimating worksheets, correspondence, change order files
(including documentation covering negotiated settlements), and any other
supporting evidence necessary to substantiate charges related to this Agreement
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(all the foregoing hereinafter referred to as "records") shall be open to inspection
and subject to audit and/or reproduction, during normal working hours, by City's
agent or its authorized representative to the extent necessary to adequately
permit evaluation and verification of any invoices, payments or claims submitted
by the CM or any of his payees pursuant to the execution of the Agreement.
Such records subject to examination shall also include, but not be limited to,
those records necessary to evaluate and verify direct and indirect costs
(including overhead allocations) as they may apply to costs associated with this
Agreement.
52.2 Records subject to the provisions of Public Record Law, Florida Statutes Chapter
119, shall be kept in accordance with such statute. Otherwise, for the purpose of
such audits, inspections, examinations and evaluations, the City's agent or
authorized representative shall have access to said records from the effective
date of this Agreement, for the duration of the Work, and until 5 years after the
date of final payment by the City to CM pursuant to this Agreement.
52.3 The City's agent or its authorized representative shall have access to the CM's
facilities, shall have access to all necessary records, and shall be provided
adequate and appropriate work space, in order to conduct audits in compliance
with this provision. The City or its authorized representative shall give auditees
reasonable advance notice of intended audits.
52.5 If an audit inspection or examination in accordance with this Article discloses
overcharges in excess of 1% except negotiated fees by the CM to the City, the
actual cost of the City's audit shall be paid by the CM. If the audit discloses
contract billing or charges to which CM is not contractually entitled, CM shall pay
over to the City said sum within 20 days of receipt of a written demand unless
otherwise agreed to by both parties in writing.
53. Nondiscrimination, Equal Employment Opportunity, and Americans with
Disabilities Act
53.1 CM warrants and represents that it does not and will not engage in discriminatory
practices and that there shall be no discrimination in connection with CM's
performance under this Agreement on account of race, color, sex, religion, age,
handicap, marital status or national origin. CM further covenants that no
otherwise qualified individual shall, solely by reason of his/her race, color, sex,
religion, age, handicap, marital status or national origin, be excluded from
participation in, be denied services, or be subject to discrimination under any
provision of this Agreement.
53.2 CM shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act (ADA) in the course of providing any services funded by City,
including Titles I and II of the ADA (regarding nondiscrimination on the basis of
disability), and all applicable regulations, guidelines, and standards. In addition,
CM shall take affirmative steps to ensure nondiscrimination in employment
against disabled persons.
54. Independent Contractor
CM is an independent contractor under this Agreement. Services provided by CM
pursuant to this Agreement shall be subject to the supervision of CM. In providing such
services, neither CM nor its agents shall act as officers, employees, or agents of the
City. CM further understands that Florida Workers' Compensation benefits available to
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employees of the City are not available to CM, and agrees to provide workers'
compensation insurance for any employee, or entity working for the CM rendering
services to the City under this Agreement. This Agreement shall not constitute or make
the parties a partnership or joint venture.
55. City's Transfer of Interest
If the City conveys its interest in this Agreement to a third party, any rights which the City
may have against the CM arising from this Agreement shall automatically transfer to
such third party without the necessity of a written document or consent from the CM.
56. Successors And Assigns
56.1 The performance of this Agreement shall not be transferred pledged, sold,
delegated or assigned, in whole or in part, by the CM without the written consent
of the City. It is understood that a sale of the majority of the stock or partnership
shares of the CM, a merger or bulk sale, an assignment for the benefit of
creditors shall each be deemed transactions that would constitute an assignment
or sale hereunder requiring prior City approval.
56.2 The CM's services are unique in nature and any transference without City
Commission approval shall be cause for the City to nullify this Agreement. Any
assignment without the City's consent shall be null and void. The CM shall have
no recourse from such cancellation. The City may require bonding, other
security, certified financial statements and tax returns from any proposed
assignee and the execution of an assignment/ assumption agreement in a form
satisfactory to the City Attorney as a condition precedent to considering approval
of an assignment.
56.3 The CM and the City each binds one another, their partners, successors, legal
representatives and authorized assigns to the other party of this Agreement and
to the partners, successors, legal representatives and assigns of such party in
respect to all covenants of this Agreement.
57. Third Party Beneficiaries
Neither CM nor the City 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
intent to create any rights or obligations in any third person or entity under this
Agreement.
58. Contingency Clause
Funding for this Agreement is contingent on the availability of funds and continued
authorization for program activities and the Agreement is subject to amendment or
termination due to lack of funds, reduction of funds and/or change in regulations, upon
thirty (30) days notice.
59. Performance Evaluation
CM acknowledges that upon completion of the of the Work under this Agreement and/or
at any other time deemed appropriate by the City a performance evaluation report will be
completed by the City. A copy of each performance evaluation shall also be forwarded
to the CM. The performance evaluations will be kept in City files for evaluation on future
solicitations.
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60. Joint Preparation- Interpretation
The language of this Agreement has been agreed to by both parties to express their
mutual intent and no rule of strict construction shall be applied against 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 any particular sentence, article, paragraph, or section where they appear, unless
the context otherwise requires. Whenever reference is made to a Section or Article of
this Agreement, such reference is to the Section or Article as a whole, including all of the
subsections of such Section or Article, unless the reference is made to a particular
subsection or subparagraph of such section or article.
61. Confidentiality
Unless authorized by the Director, CM shall keep confidential all information concerning
and relating to this Project, including without limitation, any information and
documentation provided by employee or officers of the City to the CM any design costs,
drawings, specifications or any other materials prepared by the CM or Sub -Consultant's
in connection with the Work provided under this Agreement. CM shall not disclose any
confidential information to any persons or other entities not listed above without the prior
written consent of the City. Such consent may be granted or withheld at the sole
discretion of the City. The foregoing shall not prohibit such disclosures as may be
necessary in the performance of the Work under this Agreement or as required by law.
62. Amendments
No modification, amendment, or alteration in the terms or conditions contained herein
shall be effective unless contained in a written document prepared with the same or
similar formality as this Agreement and executed by the City Manager and CM.
63. Severability
In the event the any provision of this Agreement is determined by a Court of competent
jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision
shall be excised from this Agreement, and the remainder of this Agreement shall
continue in full force and effect. Notwithstanding the foregoing, if the result of the
deletion of such provision will materially and adversely affect the rights of either party,
such party may elect, at its option, to terminate this Agreement in its entirety. An
election to terminate this Agreement based upon this provision shall be made within
seven (7) days after the finding by the court becomes final.
64. Entire Agreement
This Agreement, as it may be amended from time to time, represents the entire and
integrated agreement between the City and the CM and supersedes ail prior
negotiations, representations or agreements, written or oral. This Agreement may not
be amended, changed, modified, or otherwise altered in any respect, at any time after
the execution hereof, except by a written document executed with the same formality
and equal dignity herewith, Waiver by either party of a breach of any provision of this
Agreement shall not be deemed to be a waiver of any other breach of any provision of
this Agreement.
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Section 2 - Pre -Construction Phase
1. Contract Time
1.1 Time is of the essence in the performance of the Work under this Agreement.
The "Pre -Construction Commencement Date" shall commence with the execution
of this Agreement. CM shall commence the Pre -Construction Phase Services
portion of the Work within five (5) calendar days after the Pre -Construction Phase
Commencement Date. Any Work performed by CM prior to the Pre -Construction
Phase Commencement Date shall be at the sole risk of CM and not
cornpensable from the City.
1.2 Because the Work is to be completed in two phases, the timely completion of the
first Phase is critical to the timely completion of the second phase and, therefore,
completion of the entire Project. Accordingly, CM agrees to provide the Pre -
Construction Phase Services in accordance with the design schedule established
pursuant to the terms of the City's agreement with the A/E, which requires that
the CM complete all Pre -Construction Work and submit the GMP Proposal no
later than seven working days after the A/E has obtained dry -run permit approval.
2. Fixed Construction Budget
2.1 CM shall cooperate with the A/E towards meeting the City's objective of having
GMP be no greater than the Fixed Construction Budget. The CM shall cooperate
with the A/E in the preparation of cost evaluations, including cost/benefit
analysis, for alternative approaches to bring costs in line with the Fixed
Construction Budget.
2.2 The CM shall recommend changes and corrections in the Drawings, Specifications
and other Design Documents provided by the A/E, when such Drawings,
Specifications and other Design Documents are determined by the City or the CM
not to be in conformance with the Fixed Construction Budget set forth by the City
for the Project. For purposes of this Agreement the Drawings, Specifications and
other Design Documents shall include the complete design documents that are
required by the City to establish a guaranteed maximum price for the completion of
the construction of the Project. The Fixed Construction Budget for this Project is
$10,000,000.00
2. Pre -Construction Phase Services
2.1 Design Review and Warranties
2.1.1 CM shall work with the A/E in reviewing and developing the design and
construction documents, taking into account the quality of the materials
and equipment, to ensure the most efficient design and minimum lifecycle
cost. CM shall provide information, estimates, schemes, and make
recommendations regarding construction materials, equipment, methods,
systems, phasing, and costs, and shall participate in design decisions to
provide the highest quality building within the budget and schedule. CM
shall call to City's and A/E's attention any defects and lack of coordination
in the design, drawings and specifications or other documents of which it
is aware.
2.1.2 At the time the GMP is mutually established, except only as to specific
matters as may be identified in the GMP Amendment, the CM shall be
deemed to have warranted to City, without assuming any architectural or
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engineering responsibility, that the construction documents are consistent
with each other, practical, feasible and constructible. Further, the CM
shall be deemed to have warranted to the City that the Work described in
the construction documents is constructible within the time stipulated in
the GMP Amendment.
2.2 Value Engineering & Constructability
2.2.1 The CM shall coordinate and cooperate with the A/E in the Value
Engineering and Constructability reviews during each phase of the Work.
2.2.2 The CM will review, to the best of its abilities, all Design Documents and
Specifications for Constructability and compliance with applicable laws,
rules, codes, design standards, and ordinances. The results of such
reviews shall be provided to the City and AIE in the form of a written
report in format as noted herein upon the Construction Documents
Phases.
2.2.3 The CM shall review all Design Documents and Specifications to provide
Value Engineering recommendations to minimize the City's capital outlay,
maximize the City's operational resources and maximize the potential of
the facility. The results of such reviews shall be provided to the City and
AIE in the form of a Memorandum of Changes for each Phase, in a format
acceptable to the City within fourteen {14) 30 calendar days receipt of
documents from the AIE. If the City and the A/E agree with such
Memorandum of Changes, the CM shall be so notified and the AIE shall
incorporate the changes described in the Memorandum of Changes into
the Design Documents. AIE retains sole responsibility and liability to any
and all changes made as a result of the Value Engineering &
Constructability reviews.
2.2.4 The CM shall review with the A/E and the City alternative approaches to
design and construction of the Project, site use and improvements;
selections of materials, building systems and equipment; potential
construction methods; and, if requested, shall make a recommendation
among such alternatives. Where alternative approaches are presented, a
comparison costs shall be provided as well as the benefits in the
completion of the Work or other aspect of the Project.
2.2.5 CM shall provide information as to the availability of materials and what
equipment and systems have long lead times, together with the
anticipated lead times.
2.2.6 The AIE shall keep the CM and the City informed of any proposed
changes in requirements or in construction materials, systems or
equipment as the Drawings and Specifications are developed. Proposed
changes must be reviewed by the CM and the City and approved in
writing by City prior to incorporation into the design or construction
documents. The A/E shall coordinate with the CM and the City by
participating and taking a leadership role in reviewing and commenting on
Constructability and Value Engineering studies performed by CM, and
attending meetings where the content of design and construction contract
documents will be coordinated and reconciled, scheduled during any
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phase of the Work. In the event the NE and the City accept CM's
recommendations from Value Engineering and Constructability studies,
the A/E shall implement same, including providing revised drawings and
specifications or other documents.
2.3. Preliminary Construction Estimates
2.3.1 The CM shall provide the following to the City and the A/E:
2.3.1.1 An itemized Construction Estimate with supporting data along
with the Memorandum of Changes, for each subsequent design
phase within thirty (30) calendar days of the Construction
Manager's receipt of the 50% construction documents, and the
100% complete construction documents from the A/E.
2.3.1.2 Each cost estimate should establish internal estimating
allowances, consistent with good professional practice,
appropriate to the phase of development. Larger allowances
may be assumed at early phases but shall gradually diminishing
to zero at completion of final cost estimate.
2.3.1.3 The CM hereby expressly acknowledges that by preparing the
Memorandum of Changes, the CM represents to the best of its
knowledge to the City that 100% complete construction
documents (as modified by the Memorandums of Changes) and
other Contract Documents related to the Project are consistent,
feasible and sufficient to construct the entire scope of the Work
within the Fixed Construction Budget and with the Project
Schedule.
2.3.1.4 If any Construction Estimate submitted by the CM exceeds any
previously approved Construction Estimate or the City's Fixed
Construction Budget, the CM shall make appropriate
recommendations to the City, including without limitation,
recommendations to modify the design, to reduce the scope of
Work and to reduce construction costs. in addition, the CM shall
promptly advise the City of any adjustments to any Construction
Estimate which would cause the Project cost to exceed the
Construction Estimate or the City's Fixed Construction Budget,
and shall promptly make recommendations for corrective action.
3. Pre -Construction Phase Additional Services
Should the CM be requested or required by the City to provide services which the CM
believes are outside of and/ or in addition to the scope of this Agreement, the CM shall,
within five days of being requested to perform such services, notify the City in writing of
the CM's opinion that they are extra services to this Agreement, the reason the CM
believes they are outside the scope of this Agreement, and the proposed costs, and time
impact, if any, for the performance of same. The City will respond in writing to such
requests by denying, granting, or granting with modifications. The City may direct the
CM to proceed with such services pending a final determination as to compensation. In
such case, the CM's right to consideration shall not be waived by proceeding as
directed.
4. Compensation for Preconstruction Phase Services
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4.1 The Pre -Construction Fee is the total compensation payable to the CM for the
performance of Pre -Construction Phase Services, except for Additional Pre -
Construction Services approved in advance and in writing by the City.
4.2 For the Pre -Construction Phase Services the CM's compensation shall be
calculated as a not to exceed fee of $60,000.00, Said amount includes a base
fee of $48,100.00 to be paid on a monthly basis commencing on the first month
after the date established for commencement of the Pre -Construction Phase
Services and an allowance for Additional Services, in the amount of $19,900.00,
In no event shall the amount of compensation exceed said total compensation
amount unless explicitly approved by action of the City Manager or the City
Commission, as may be applicable pursuant to Section 18-87 of the City Code,
and put into effect by written amendment to this Agreement.
4.3 Except as specifically allowed in this Article, the CM shall not be entitled to any
increase in the Pre -Construction Fee for any costs, expenses, liabilities or other
obligations arising from the performance of Pre -Construction Phase Services.
4.4 The Pre -Construction Fee includes specifically, without limitation, the following:
profit and profit sharing; general overhead; salaries and labor; estimating,
scheduling and information management systems and software; contract
administration; office expenses; printing and copying; consulting fees; legal or
accounting fees; cost of money; taxes; insurance premiums and deductibles;
bond costs; purchase or rental of equipment; utilities; travel; per diem; fines or
penalties; and damage awards.
4.5 If the scope of the Pre -Construction Phase Services is changed materially, the Pre -
Construction Fee may be equitably adjusted. There shall be no adjustments in the
Pre -Construction Fee following the City's acceptance of the GMP proposal.
4.6 For Additional Pre -Construction Services that are approved in advance and in
writing by the City, CM shall be entitled to additional compensation computed
based on any one of the following, at the City's sole discretion:
• A pre -established lump sum amount; or
• The hourly cost of $80.00 forCM's employee's, which includes overhead
and profit, plus the actual cost of allowable expenses incurred in the
performance of the Additional Services; or
• As otherwise agreed to by the parties in advance of performing the
Additional Pre -Construction Services.
5. Pre -Construction Phase Performance and Delegation
CM's performance under this Agreement shall not be delegated or assigned by the CM
without the written consent of the City, and such consent will not be given to any
proposed delegation which would relieve the CM for their responsibilities under this
Agreement. The Pre -Construction Work to be performed hereunder shall be performed
by the CM's own staff and the accepted Sub -Consultants unless otherwise approved by
the City. The employment of, contract with, or use of services of any other person or
firm by the CM as Sub -Consultants or otherwise, is subject to authorization by the
Director.
6 Pre -Construction Fee Application for Payment Submittal
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The CM shall submit monthly an application for payment to the A/E for the proportional
amount of the Pre -Construction Fee which shall be determined by dividing the Pre -
Construction Fee by the number of months from the effective date of this Agreement
until the scheduled submittal of the GMP Proposal by the CM. Delays to the schedule
shall result in re -calculation of the monthly application amount by dividing the amount of
Pre -Construction Fee remaining by the number of months currently remaining until the
submittal of the GMP Proposal.
8. Pre -Construction Phase Meetings
8.1 The A/E shall schedule meetings with the CM until submission and dry run
approval of the 100% construction documents. The frequency of the meetings
will be determined by the A/E. At each of these meetings, the A/E and CM shall
review the Project's budget, schedule, - and scope along with the A/E's
development and progress to date on the respective phases of the Project and
any special problems related to the continuing progress of the Project. NE shall
prepare and distribute all meeting minutes to participants present at the
meetings. The City reserves the right to revise the frequency of meetings
established by the A/E.
8.2 The CM shall meet with the City and others at such times and with such
frequency, as the City may require. The process of meeting, reviewing design
documents, drawings, specifications, and submitting, revising and resubmitting
construction estimates is included in the Work under this Agreement.
9. Guaranteed Maximum Price
9.1 CM shall provide the City and the A/E with a GMP Proposal within seven (7)
days after the Construction Documents have received dry -run approval. The
GMP shall be the sum of the proposed subcontracts and the CM's Construction
Manager's Fee. Further, the GMP Proposal shall be broken down into the
categories and level of detail required by the A/E. At the time CM submits its
GMP Proposal to the A/E and the City, CM shall also submit for review, a
Schedule of Values based upon the GMP Proposal; in a format acceptable to the
AIE, listing the major elements of the Construction Work and the dollar value for
each element. This Schedule of Values, as further revised to reflect the final
negotiated GMP amount, and as approved by City, will be used as the basis for
CM's monthly Applications for Payment under the GMP. This revised Schedule of
Values shall be updated for the current month, including all Change Orders, and
Construction Change Directives and submitted each month to the A/E along with
a completed Application for Payment. For each line item in the GMP, CM shall
develop and maintain a written report which identifies and explains all variances
and deviations from the construction estimates originally submitted for that line
item, to the final line item price incorporated into the GMP.
9.2 The GMP shall be broken down into two stages as stated below. Upon
acceptance of the GMP a GMP amendment will be issued only for Stage 1 of the
Construction Work. Once the funding becomes available for Stage 2 work, City
Commission approval will be obtained to execute the Stage 2 portion of the
GMP. The two stages are:
9.2.1 Stage 1
• Surveying & Layout
• Jobsite Security
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• Site Demolition
• Earthwork
• Paving
• Underground Utilities
• Soil Treatment
• Structural Pre -Cast concrete (joist & beams)
• Masonry
• Structural and Misc. Steel
• Roof System
• Waterproofing & Caulking
• Hollow Metal Doors, Frames, & Hardware
• Mechanical HVAC System
• Plumbing
• Fire Protection
• Electrical System
9.2.2 Stage 2
• All Construction Work remaining in the Scope of Work of the Project
9.3 CM agrees that all of its books, records and files, with respect to its development
of the GMP Proposal, shall be open to City and the NE for review and copying.
The final GMP shall be mutually agreed upon by City and the CM and shall be
set forth in an amendment to this Agreement. CM shall provide a detailed
breakdown acceptable to City of its GMP. By submitting its GMP Proposal, CM
shall be deemed to guarantee that in no event shall the Construction Manager's
Fee, the total cost of the subcontracts, purchase orders, work performed directly
by the CM and the contingency exceed the GMP. In the event CM and City fail to
reach an agreement on the GMP, the City may elect not to proceed with the
Construction Phase. In such event, CM shall only be entitled to receive only that
portion of the compensation attributable to the Pre -Construction Phase Services
earned through the date of termination.
9.4 CM shall include a line item contingency amount in the Schedule of Values for
the Project, which contingency amount, if accepted by the City, shall be included
within the GMP and to the GMP Agreement for the Project, and, subject to the
prior agreement of the City. The Contingency shall be used as the source of
funds for unforeseen costs that are reasonably and necessarily incurred and paid
by the CM, which costs shall be at rates not higher than the standard paid in
Miami -Dade County, as follows: (a) first, in connection with the proper
performance of Work required hereunder which Work was unforeseeable by the
CM, the NE, and the City at the time of execution of the GMP Agreement, (b)
second, to the extent that any portion of the Contingency remains unallocated on
the date of Final Completion and after the issuance of final payment for the
Project, such remaining portion of the Contingency shall accrue to the City. The
Contingency amount shall be set forth in the GMP Agreement for the Project, and
within the Schedule of Values attached thereto.
9.5 The Agreement amount for the Construction Phase is guaranteed by the CM not
to exceed the GMP. If cost of the Construction Phase exceeds the GMP, as may
be adjusted by Change Orders, the CM shall pay the overrun without
Little Haiti Park Page 39
reimbursement from the City. If the actual cost of the Construction Phase is less
than the GMP, as may be adjusted by Change Orders, the savings shall accrue
to the City. CM agrees to use all reasonable efforts to maximize cost savings
during the Construction Phase.
9.6 City's Project Manager must approve any and all expense of CM to be billed to
and paid from the Contingency, and such approval shall be requested and
approved in advance of incurring such expense, where practicable.
9.7 CM shall submit to the City a fist of names, addresses, licensing information and
phone numbers of the Sub -Contractors CM intends to use for each portion of the
Construction Work, as well as identifying in writing those portions of the
Construction Work it intends to perform with its own employees.
10. Market Analysis and Stimulation of Bidder Interest
10.1 The CM shall monitor conditions in the construction market to identify factors that
will or may affect costs and time for completing the Project; and shall make
analysis as necessary to (1) determine and report on availability of labor,
material, equipment, potential bidders, and possible impact of any shortages or
surpluses of labor or material, and (2) in light of such determinations, make
recommendations as may be appropriate with respect to long lead procurement,
separation of construction into bid packages, sequencing of work, use of
alternative materials, equipment or methods, other economics in design or
construction, and other matters that will promote cost savings and completion
within the scheduled time.
10.1 Within 60 days of commencement of Pre -Construction Phase Services the CM
shall submit a written "Construction Market Analysis and Prospective Bidders
Report" setting out recommendations and providing information as to prospective
bidders (including M/WBE and small business participation). As various bid
packages are prepared for bidding, the CM shall submit to the City and the A/E a
list of potential bidders. The CM shall be responsible to stimulate bidder interest
in the local market place and identify and encourage bidding competition.
10.1 The CM shall carry out an active program of stimulating interest of qualified
subcontractors in bidding on the work and of familiarizing those bidders with the
requirements of this Project.
11. Bid and Award of Subcontracts
11.1 CM shall review the design and shall determine how it desires to divide
the sequence of construction activities. CM will determine the breakdown
.and composition of bid packages for award of subcontracts, based on the
current Master Project Schedule CM shall take into consideration such
factors as natural and practical lines of severability, sequencing
effectiveness, access and availability constraints, total time for
completion, construction market conditions, availability of labor and
materials, community relations and any other factors pertinent to saving
time and costs.
11.2 At least thirty (30) days prior to the issuance of bids for the subcontracting
any portions of the Construction Work the CM shall submit a bid and
award plan to the City and the NE for review and comment. Upon
acceptance of the plan by the City and the A/E, the CM shall solicit and
Little Haiti Park Page 40
award all subcontracts in accordance with said plan. Said plan shall
include details on how the CM shall encourage the participation of
M/W BE firms as well as small and local businesses. The CM shall hold
harmless, indemnify, and defend the City, its employees, agents, and
representatives in any matter arising out of the City's acceptance of the
CM's bid and award plan, except where the sole cause of the meter is a
City directed decision.
11.3 Subcontracts are to be awarded to the lowest responsive and responsible
bidder. CM may award a subcontract to someone other than the lowest
responsive and responsible bidder provided CM has first received the
•City's written consent to such award. The City's consent to any such
award will be at the City's sole discretion. Whenever the CM wishes to
award a subcontract to someone who is not the lowest responsive and
responsible bidder, CM must notify the City in writing, setting out in detail
the reasons and justifications for the suggested award. The City shall
have no responsibility for Sub -Contractor performance.
11.4 As part of its bid preparation, CM shall review the specifications and
drawings prepared by the A/E. Ambiguities, conflicts or lack of clarity of
language, use of illegally restrictive requirements, and any other defects
in the specifications or in the drawings noted by CM shall be brought to
the attention of the City and A/E in written form.
12. Responsibility
The CM, as a result of the required reviews of the Design Documents and Specifications
shall be fully responsible for the coordination of the drawings and the coordination of
those drawings with the written specifications. This includes but is not limited to the CM's
review of the Construction Documents in coordination with the various Drawings and
Specifications themselves, and with the site to ensure proper coordination and
constructability and lack of conflict, and to minimize unforeseen conditions. The CM shall
take reasonable steps for the proper identification and location of all utilities, services,
and other underground facilities which may impact the Project.
13. Project Schedule
13.1 Develop a schedule ("Schedule") for review and acceptance by the AIE
and the City, that coordinates and integrates activities on the Project,
including the CM's services, the NE services, the work of others, and the
City's activities with the anticipated design and construction schedules.
The Schedule must identify all major milestones through Project Final
Completion.
13.2 The CM shall update the Schedule throughout the Pre -Construction
Phases and submit to the A/E and the City an updated projected
schedule with the submission of each Construction Estimate and
Memorandum of Changes. Each update will against the initial baseline
projection.
13.3 CM will provide a critical path method (CPM Schedule) construction
schedule with the GMP submission. Upon acceptance of the GMP the
CPM Schedule will be accepted as the baseline construction schedule.
14. Permits and Fees
Little Haiti Park
Page 41
The CM will be responsible for coordinating with the NE the submittal of all required
documents for permits. CM shall be responsible for obtaining any and all permits and
paying any and all related fees for the Work. The City shall not pay the CM any
additional sums beyond the Pre -Construction Fee and the GMP for these services if the
City proceeds with the CM for Construction Phase Services.
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SECTION 3 - Construction Phase
1. Construction Phase Services
CM shall provide all management, supervision, manpower, equipment, tools, and all
other necessary goods and services for the construction of Little Haiti Park Cultural
Center in accordance with the requirements of this Agreement. The Work includes the
construction of a 31,000 square foot community center.
2. Construction Phase Time for Completion
2.1 CM shall be issued a Notice of Award by the City upon approval of the GMP
Proposal by the City Commission. CM shall commence scheduling activities,
permit. applications within five (5) calendar days after receipt of the Notice of
Award. A Notice to Proceed and Purchase Order for the Construction Work will
not be issued until CM's submission to City of all required documents (including
but not limited to: Payment and Performance Bonds, and insurance Certificate)
and after execution of the GMP Amendment by both parties. The receipt of all
necessary permits by the CM is a condition precedent to the issuance of the
Notice to Proceed
2.2 Time is of the essence throughout this Agreement. Construction Work shall shall
be completed and Final Acceptance and Payment made within the timeframe
established in the GMP Amendment to this Agreement.
3. Liquidated Damages
3.1 Upon failure of CM to complete the Construction Work within the specified period
of time, plus approved time extensions (if applicable), CM shall pay to City the
sum of one thousand dollars($1,000.00) for each calendar day after the time
specified in the GMP Amendment plus any approved time extensions (if
applicable), for Final Completion. These amounts are not penalties but are
liquidated damages to City for its inability to obtain beneficial occupancy and/or
use of the Project. Liquidated damages are hereby fixed and agreed upon
between the parties, recognizing the impossibility of precisely ascertaining the
amount of damages that will be sustained by City as a consequence of such
delay, and both parties desiring to obviate any question of dispute concerning the
amount of said damages and the cost and effect of the failure of CM to complete
the Construction Work on time.
3.2 City is authorized to deduct liquidated damages from monies due to CM for
Construction Work under this Agreement or as much thereof as City may, in its
sole discretion, deem just and reasonable.
3.3 CM shall be responsible for reimbursing City, in addition to liquidated damages,
for all costs incurred by A/E in administering the construction of the Project
beyond the completion date less approved time extensions. A/E construction
administration costs shall be pursuant to the contract between City and A/E, a
copy of which is available upon request from the City. All such costs shall be
deducted from the monies due CM for performance of the Construction Work
under this Agreement by means of unilateral credit change orders issued by City
as costs are incurred by A/E and agreed to by the City.
Little Haiti Park Page 43
4. Hours Of Operation
CM may perform Work between the hours of 7:00 am and 6:00 pm, Monday through
Saturday. Any Work outside these hours or on Sundays requires the prior written
approval of the Project Manager.
5. CM's Supervision
5.1 CM is responsible for supervising, coordinating and performing the Construction
Work with such care and skill as would be provided by a contractor with
extensive and special expertise in the type of Work required under the Contract
Documents. CM is responsible for completing the Construction Work so that it
complies accurately and completely with the requirements of the Contract
Documents. CM shall keep a CM Superintendent on the Construction Work at all
times during its progress who shall not be replaced without prior written notice to
City and A/E except under extraordinary circumstances. The CM's
Superintendent shall have authority to act on behalf of CM. All communications
given to the CM's Superintendent shall be as binding as if given to CM. All
verbal communications given to the Superintendent will be follow up in writing
within 24 hours. The City shall have the right to direct CM to remove and replace
Superintendent or any other employee of CM or any employee of any Sub -
Contractor from this Project, with or without cause.
5.2 CM shall maintain sufficient off -site support staff, and competent full time staff at
the Project site authorized to act on behalf of CM to coordinate, inspect and
provide general direction of the Construction Work and progress of the Sub -
Contractors. CM shall not change any such personnel unless mutually agreed to
in writing by the City and CM. In such case, the City shall have the right to concur
with the replacement of personnel.
5.3 CM shall establish and maintain lines of authority for its personnel, and shall
provide this information to City and all other affected parties, such as the code
inspectors of any permitting authority, the Sub -Contractors, and the A/E. The City
and A/E may attend meetings between CM and its Sub -Contractors; however,
such attendance is optional and shall not diminish either the authority or
responsibility of CM to administer the subcontracts.
6. Construction Work Meetings
6.1 CM shall conduct a pre -construction conference with each Sub -Contractor after
award of the subcontract and prior to the start of its portion of the Construction
Work. CM shall hold progress and coordination meetings every 2 weeks, or
more frequently if required by Construction Work progress, to provide for the
timely completion of the Construction Work.
6.2 In addition, Construction Contractor shall arrange and conduct regular monthly
Project status meetings with the A/E and the City. CM shall use the job site
meetings as a tool for the pre -planning of Construction Work and enforcing
schedules, and for establishing procedures, responsibilities, and identification of
authority for all parties to clearly understand. During these meetings, CM shall
identify the party or parties responsible for following up on any problems, delay
items or questions, and CM shall note the action to be taken by such party or
parties. CM shall revisit each pending item at each subsequent meeting until
resolution is achieved. CM shall attempt to obtain from all present any potential
problems or delaying event known to them for appropriate attention and
Little Haiti Park Page 44
resolution. CM shall be responsible for keeping minutes of the meeting and
distribution of the minutes to all parties in attendance as well as the Director.
7. Progress Payments
7.1 CM may make Application for Payment for Construction Work completed during
the Project at intervals of not more than once a month. CM's Application for
Payment shall include an updated Schedule of Values, an updated project
schedule, and a partial release of liens or consent of Surety relative to the
Construction Work, which is the subject of the Application for Payment and any
other information required by the A/E. Each Application for Payment shall be
submitted in triplicate to NE for approval.
7.2 Ten percent (10%) of all monies earned by CM shall be retained by City until
Final Completion and -acceptance by City except that after fifty percent (50%) of
the Construction Work has been completed, the CM may request a reduction in
the retainage to five percent (5%) of all monies previously earned and all monies
earned thereafter. Any reduction in retainage shall be at the sole discretion of the
City, shall be recommended by the A/E and CM shall have no entitlement to a
reduction. Any interest earned on retainage shall accrue to the benefit of the
City, All requests for retainage reduction shall be in writing in a separate stand
alone document.
7.3 City may withhold, in whole or in part, payment to such extent as may be
necessary to protect itself from loss on account of:
7.3.1 Defective Construction Work not remedied.
7.3.2 Claims filed or reasonable evidence indicating probable filing of claims by
other parties against CM or City because of CM's performance.
7.3.3 Failure of CM to make payments properly to Sub -Contractors or for
material or labor.
7.3.4 Damage to another contractor not remedied.
7.3.5 Liquidated damages and costs incurred by A/E for extended construction
administration.
7.3.6 Failure of CM to provide any and all documents required by the Contract
Documents.
8. Acceptance and Final Payment
8.1 Upon receipt of written notice from CM that the Construction Work is ready for
final inspection and acceptance, A/E shall., within ten (10) calendar days, make
an inspection thereof. If A/E and Project Manager find the Work acceptable, the
requisite documents have been submitted and the requirements of the Contract
Documents fully satisfied, and all conditions of the permits and regulatory
agencies have been met, a Final Certificate for Payment (Attachment E) shall be
issued by A/E, over its signature, stating that the requirements of the Contract
Documents have been performed and the Work is ready for acceptance under
the terms and conditions thereof.
8.2 Before issuance of the Final Certificate for Payment, CM shall deliver to A/E a
complete release of all liens arising out of this Agreement, or receipts in full in
lieu thereof; an affidavit certifying that all suppliers and Sub -Contractors have
been paid in full and that all other indebtedness connected with the Construction
Little Haiti Park Page 45
Work has been paid, and a consent of the surety to final payment; the final
corrected As -Built Drawings; the Record Set; and the final bill of materials, if
required, and Application for Payment. CM shall deliver the written CM's and all
Manufacturer's warranties prior to issuance of the Final Certificate for Payment.
8.3 If, after the Construction Work has been substantially completed, full completion
thereof is materially delayed through no fault of CM, and A/E so certifies, City
shall, upon certificate of NE, and without terminating the Agreement, make
payment of the balance due for that portion of the Construction Work fully
completed and accepted. Such payment shall be made under the terms and
conditions governing final payment, except that it shall not constitute a waiver of
claims.
8.4 Final payment shall be made only after the City Manager or his designee has
reviewed a written evaluation of the performance of CM prepared by the Project
Manager, and approved the final payment. The acceptance of final payment
shall constitute a waiver of all claims by CM, except those previously made in
strict accordance with the provisions of the Agreement and identified by CM as
unsettled at the time of the application for final payment.
9. Subcontracts:
9.1. A Sub -Contractor is any person or entity who is performing, furnishing, supplying
or providing any portion of the Construction Work pursuant to a contract with CM.
CM shall be solely responsible for and have control over the Sub -Contractors.
CM shall negotiate all Change Orders, Construction Change Directive, Field
Directives and other related issues, with all affected Sub -Contractors and shall
review the costs all associated costs and advise City and A/E of their validity and
reasonableness, acting in the City's best interest, prior to requesting approval of
each Change Order from the City.
9.2 CM shall continuously update that Sub -Contractor list, so that it remains current
and accurate throughout the entire performance of the Construction Work. CM
shall not enter into a subcontract with any subcontractor, if the City reasonably
objects to that subcontractor. CM shall not be required to contract with anyone it
reasonably objects to. As part of the Project document file to be maintained by
CM at the Project site, CM shall keep on file a copy of the license for every Sub -
Contractor performing any portion of the Construction Work, as well as maintain
a log of all such licenses.
9.3 All subcontracts shall (1) require each Sub -Contractor to be bound to the CM to
the same extent CM is bound to the City by the terms of the Contract
Documents, as those terms may apply to the portion of the Construction Work to
be performed by the Sub -Contractor, (2) provide for the assignment of the
subcontracts from Sub -Contractor to the City at the election of the City upon
termination of the CM, (3) provide that the City will be an additional indemnified
party of the subcontract, (4) provide that the City will be an additional insured on
all insurance policies required to be provided by the Sub -Contractor except
workmans' compensation, (5) assign ail warranties directly to the City, (6) identify
the City as an intended third -party beneficiary of the subcontract, and (7) prior to
the execution of the subcontract, provide copies of the Contract Documents to to
the Sub -Contractor who be bound by this Article.
Little Haiti Park Page 46
9.4 The Sub -Contractor must agree to provide field (on -site) supervision through a
named superintendent for each trade (e.g., general concrete forming and
placement, masonry, mechanical, plumbing, electrical and roofing) included in
the subcontract. In addition, the Sub -Contractor shall assign and name a
qualified employee for.scheduling direction for its work.
9.5. CM shall be fully responsible for all acts and omissions of its Sub -Contractor and
of persons directly or indirectly employed by its subcontractors and of persons for
whose acts any of them may be liable to the same extent that CM is responsible
for the acts and omissions of persons directly employed by it. Nothing in the
Contract Documents shall create any contractual relationship between any Sub -
Contractor and City or any obligation on the part of City to pay or to see the
payment of any monies due any Sub -Contractor. City or AIE may furnish to any
subcontractor evidence of amounts paid to CM on account of specific work
performed.
9.6 CM shall be required to comply with all City requirements for Sub -Contractor
utilization reports.
9.7. CM agrees to bind specifically every Sub -Contractor to the applicable terms and
conditions of the Contract Documents for the benefit of City.
9.8. Multi -tier subcontracting is not permitted. CM shall not authorize subcontractors
to further subcontract any portions of the Construction Work.
10. Interfacing of Subcontracts
The CM shall take such measures as appropriate to provide that construction
requirements will be covered in the separate sub -contracts for procurement of long lead
items, that the separate construction sub -contracts and the general conditions items are
performed without duplication or overlap and are sequenced to maintain completion of
all work on schedule. Particular attention shall be given to provide that each bid
package clearly identifies the work included in that particular separate sub -contract, its
schedule for start and completion and its relationship to other separate contractors.
11. Performance Bond and Payment Bond
Within fifteen (15) calendar days of being notified of the acceptance of the GMP by the
City Commission, CM shall furnish a Performance Bond and a Payment Bond containing
all the provisions of the Performance Bond and Payment Bond attached hereto
11.1. Each Bond shall be in the amount of one hundred percent (100%) of the GMP
guaranteeing to City the completion and performance of the Work covered in the
amendment as well as full payment of all suppliers, laborers, or subcontractors
employed pursuant to this Project. Each Bond shall be with a Surety, which is
qualified pursuant to Article 12 below.
11.2. Each Bond shall continue in effect for one year after Final Completion and
acceptance of the Work with liability equal to one hundred percent (100%) of the
GMP sum, or an additional bond shall be conditioned that CM will, upon
notification by City, correct any defective or faulty work or materials which appear
within one year after Final Completion of the Agreement.
11.3. Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may
be amended from time to time, CM shall ensure that the bond(s) referenced
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above shall be recorded in the public records of Miami -Dade County and provide
City with evidence of such recording.
11.4. Alternate Form of Security:
In lieu of a Performance Bond and a Payment Bond, Contractor may furnish
alternate forms of security, which may be in the form of cash, money order,
certified check, cashier's check or unconditional letter of credit in the form
attached hereto. Such alternate forms of security shall be subject to the prior
approval of City and for same purpose and shall be subject to the same
conditions as those applicable above and shall be held by City for one year after
completion and acceptance of the Work.
12. Qualification of Surety:
12.1. Bid Bonds, Performance Bonds and Payment Bonds over Five Hundred
Thousand Dollars ($500,000.00):
12.1.1. Each 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.
12.1.2, The Surety 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 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 DFR Section 223.10,
Section 223.111). Further, the Surety shall provide City with evidence
satisfactory to City, that such excess risk has been protected in an
acceptable manner.
12.1.3. The City will accept a surety bond from a company with a rating of B+ or
better for bonds up to $2 million, provided, however, that if any surety
company appears on the watch list that is published quarterly by Intercom
of the Office of the Florida Insurance Commissioner, the City shall review
and either accept or reject the surety company based on the financial
information available to the City. A surety company that is rejected by the
City may be substituted by the Bidder or proposer with a surety company
acceptable to the City, only if the bid amount does not increase. The
following sets forth, in general, the acceptable parameters for bonds:
Policy- Financial
Amount of Bond holders Size
Ratings Category
500,001 to 1,000,000 B+ Class
1,000,001 to 2,000,000 B+ Class ....II
2,000,001 to 5,000,000 A Class ...III
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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
13. Warranty of Construction
The CM shall warrant that the Work conforms to the Agreement and is free of any patent
and/or latent defect of the workmanship for a minimum period of one year from the date
of Final Completion.
13.1. Exception to the above warranty:
13.1.1. The warranty hereunder shall be in addition to whatever rights the
City may have under law. The CM's obligation under this warranty
shall be at its own cost and expense, to promptly repair or replace
(including cost of removal and installation), that item (or part or
component thereof) which proves defective or fails to comply with
the Agreement within the warranty period such that it complies
with the Agreement.
13.1.2. In the event the CM fails to repair or replace defective
Construction Work in accordance with the terms of the
Agreement, and this warranty, the City shall have the right to
collect such costs incurred or withhold the cost of the anticipated
repairs by offsetting the amount against any payment due the CM
under any contract between the City and the CM.
13.1.3 As specified in the Contract Documents
All guarantees and warranties under the Agreement are fully
enforceable by the City acting in its own name.
14. Methods Of Performing The Work
14.1. If the A/E reasonably determines that the rate of progress of the Work is not such
as to insure its completion within the designated completion time, or if, in the
opinion of the A/E, the CM is not proceeding with the Work diligently or
expeditiously or is not performing all or any part of the Work according to the
progress schedule accepted by or determined by the A/E, the A/E shall have the
right to order the CM to do either or both of the following: (1) improve its work
force; and/or (2) improve its performance in accordance with the schedule to
insure completion of the project within the specified time. The CM shall
immediately comply with such orders at no additional cost to the City.
14.2. Where materials are transported in the performance of the Construction Work,
vehicles shall not be loaded beyond the capacity recommended by the vehicle
manufacturer or permitted by Federal, State or local law(s). When it is necessary
to cross curbing or sidewalks, protection against damage shall be provided by
the CM and any damaged curbing, grass areas, sidewalks or other areas shall be
repaired at the expense of the CM to the satisfaction of the A/E.
14.3. The CM shall furnish to the A/E and the Project Manager a complete listing of 24-
hour telephone numbers at which responsible representatives of the CM and all
of the CM 's Subcontractor can be reached should the need arise at any time.
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15. CM's Use Of Project Site
15.1. Limitations may be placed on the CM use of the Project Site and such
limitations will be identified by the City.???? In addition to such limitations, the
City will make storage available to the CM at its sole discretion based on
availability of space. The CM shall also coordinate and schedule deliveries so as
to minimize disruptions to City day-to-day operations.
15.2. The CM shall limit its use of the Project Site, so as to allow for the City's
continuous operation of other portions of Little Haiti Park (Park) not incorporated
in the Project Site. This is necessary, as the Park may remain in operation
during the Construction Work.
15.2.1 The CM shall:
a. Confine operations at the Project Site to the areas permitted by the City;•
not disturb portions of the Project Site beyond the specified areas;
conform to Project Site rules and regulations affecting the Construction
Work.
b. Keep existing driveways and entrances serving surrounding facilities clear
and available to the City, its employees and the public at all times; not
use areas for parking and/or storage of materials except as authorized by
the City.
c. Assume all responsibility for its tools, equipment and materials, including
any materials purchased for the Construction Work and not accepted by
the City, and its vehicles while performing Construction Work for the City
and/or while parked at a City facility. The City assumes no liability for
damage to the items specified in this paragraph.
d. Access to and egress from the Project Site shall be subject to the
approval of the A/E and the Project Manager. No worker's personal
vehicles shall be permitted to park outside of the Project Site, without the
prior written approval of the City.
16. Work Staging And Phasing
16.1. The Construction Work to be performed shall be done in such a manner so as
not to interfere with the normal City operations of the Project site or any other
facilities located within the Project site. There shall be no obstruction of City
services without the prior written approval of the AIE. All requests for such
interruption or obstruction must be given in writing to the A/E 24 hours in
advance of the interruption of City operations.
16.2. The CM shall familiarize itself with normal City operations where the Construction
Work is to be performed so that it can conduct the Construction Work in the best
possible manner to the complete satisfaction of the AIE and the Project Manager.
17. Existing Utilities
Known utilities and structures adjacent to or encountered in the Construction Work are
shown on the Drawings. The locations shown are taken from existing records and the
best information available from existing plans; however, it is expected that there may be
some discrepancies and omissions in the locations and quantities of utilities and
structures shown. Those shown are for the convenience of the CM only, and no
responsibility is assumed by either the City or the AIE for their accuracy or completeness
Little Haiti Park Page 50
The CM must coordinate all utility locations through "Sunshine State One Call of Florida,
Inc.
18. Differinq Site Conditions
18.1 In the event that during the course of the Construction Work CM encounters
subsurface or concealed conditions at the Project site which differ materially from
those shown on the Contract Documents and from those ordinarily encountered
and generally recognized as inherent in Construction 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 Construction Work of the
character called for in the Contract Documents, CM, without disturbing the
conditions and before performing any Construction Work affected by such
conditions, shall, within twenty-four (24) hours of their discovery, notify City and
NE in writing of the existence of the aforesaid conditions. A/E and City shall,
within two (2) business days after receipt of CM 's written notice, investigate the
site conditions identified by CM. If, in the sole opinion of A/E, the conditions do
materially so differ and cause an increase or decrease in CM 's cost of, or the
time required for, the performance of any part of the Construction Work, whether
or not changed as a result of the conditions, NE shall recommend an equitable
adjustment to the Agreement, in cost and/or time. If City, the A/E and CM cannot
agree on an adjustment in the adjustment shall be referred for determination in
accordance with the provisions of Section 1, Article 45, Resolution of Disputes.
18.2 No request by CM for an equitable adjustment to the Agreement under this
provision shall be allowed unless CM has given written notice in strict
accordance with the provisions of this Article. No request for an equitable
adjustment or for differing site conditions shall be allowed if made after the date
certified by A/E as the date of Substantial Completion.
19. Project Site Facilities
19.1 CM shall arrange for all Project -site facilities as necessary to enable the CM and
NE to perform their respective duties and to accommodate any representatives
of the City which the City may choose to have present at the Project. Project -site
facilities, include, but are not limited to such things as trailers, toilets, typewriters,
computers and any other equipment necessary to carry on the Construction
Work. The specifics of facilities required for the A/E or the City shall be provided
prior to the establishment of the GMP.
19.2 CM's, Sub -Contractor's, supplier's, materialrnen's personnel shall not use the
City restrooms at the Project site. The CM shall provide and maintain at his own
expense, in a sanitary condition, such accommodations for the use of his
employees as is necessary to comply with the requirements including Chapter 46
of the Building Code and regulations of the State of Florida Department of Health
and Rehabilitative Services or Dade County Health Department. The CM, his
employees or his Sub -Contractors shall commit no public nuisance or use any
facilities that have not been specifically provided for use by the CM.
19.3 The CM shall furnish an adequate supply of drinking water for his and his Sub -
Contractors' employees.
19.4 There shall be adequate provisions made by the CM to ensure all disposable
materials are properly disposed of and do not create a nuisance to the City or the
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public. The location of the temporary facilities shall be subject to the approval of
the A/E or Project Manager
19.5 The CM shall be required to obtain all necessary permits required for any Project
site facilities. CM shall also be responsible to maintain such facilities in a safe
and working condition.
19.6 All such facilities remain the property of the CM and the CM shall be responsible
for removal and disposal of such facilities prior to Final Acceptance.
20. Security
The Project site where the Construction Work is to be performed is not a secure area
and the public has access to the site. The CM shall have sole responsibility for the
security of all materials, tools, equipment and Construction Work at the Project Site. The
City shall not be liable for any damage or loss to such materials, tools, equipment and
Construction Work.
21. Worker's Identification
CM shall provide a mechanism to identify all employees and Sub -contractors working on
the site.
22. Royalties and Patents:
All fees, royalties, and claims for any invention, or pretended inventions, or patent of any
article, material, arrangement, appliance, or method that may be used upon or in any
manner be connected with the Construction Work or appurtenances, are hereby
included in the prices stipulated in this Agreement for said Construction Work.
23. Labor and Materials
23.1. Unless otherwise provided herein, CM shall provide and pay for all materials,
labor, water, tools, equipment, light, power, transportation and other facilities and
services necessary for the proper execution and completion of the Construction
Work, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Construction Work.
23.2. CM shall at all times enforce strict discipline and good order among its
employees and subcontractors at the Project site and shall not employ on the
Project any unfit person or anyone not skilled in the work to which they are
assigned.
24. Substitutions
24.1 Whenever materials or equipment are specified or described in the Contract
Documents by using the name of a proprietary item or the name of a particular
supplier, the naming of the item is intended to establish the type, function and
quality required. Unless the name is followed by words indicating that no
substitution is permitted, materials or equipment of other suppliers may be
accepted by City and A/E if sufficient information is submitted by CM to allow City
and A/E to determine that the material or equipment proposed is equivalent or
equal to that named. Requests for review of substitute items of material and
equipment will not be accepted by City and A/E from anyone other than CM.
24.2 If CM wishes to furnish or use a substitute item of material or equipment, CM
shall make application to A/E for acceptance thereof, certifying that the proposed
substitute shall perform adequately the functions and achieve the results called
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for by the general design, be similar and of equal substance to that specified and
be suited to the same use as that specified. The application shall state that the
evaluation and acceptance of the proposed substitute will not prejudice CM's
achievement of Substantial Completion on time, whether or not acceptance of
the substitute for use in the Work will require a change in any of the Contract
Documents to adapt the design to the proposed substitute and whether or not
incorporation or use by the substitute in connection with the Construction Work is
subject to payment of any license fee or royalty. All variations of the proposed
substitute from that specified will be identified in the application and available
maintenance, repair and replacement service shall be indicated. The application
also shall contain an itemized estimate of all costs that will result directly or
indirectly from acceptance of such substitute, including costs for redesign and
claims of other contractors affected by the resulting change, all of which shall be
considered by the A/E in evaluating the proposed substitute. The NE may
require the CM to furnish at CM's expense additional data about the proposed
substitute.
24.3 If a specific means, method, technique, sequence or procedure of construction is
indicated in or required by Contract Documents, CM may furnish or utilize a
substitute means, method, technique, sequence or procedure of construction
acceptable to the A/E, if the CM submits sufficient information to allow the A/E to
determine that the substitute proposed is equivalent to that indicated or required
by the Contract Documents. The procedures for submission to and review by the
NE shall be the same as those provided herein for substitute materials and
equipment.
24.4 The A/E shall be allowed a reasonable time within which to evaluate each
proposed substitute. The NE and the City shall be the sole judges of the
acceptability of any substitute. No substitute shall be ordered, installed or utilized
without the City's and the AIE's prior written acceptance which shall be
evidenced by either a Change Order or an approved submittal. The City and the
A/E may require the CM to furnish at CM's expense a special performance
guarantee or other surety with respect to any substitute.
25. NDPES Requirements
CM shall comply with the State of Florida rules and regulations for the National Pollutant
Discharge Elimination System (NPDES) including but not limited to all permitting,
Notices of Intent, and the Storm Water Pollution Prevention Plan (SWPPP). All costs for
NPDES and SWPPP shall be included in the bid prices. For further information on
compliance requirements for NPDES and SWPPP contact the City of Miami Public
Works Department at (305) 416-1200 or visit the State of Florida website at
http://www.dep.state.fl.us/water/stormwater/npdes/.
26. Construction Signage
26.1 The City shall provide the CM the construction requirements, wording and layout
for the signs prior to the submission of the GMP Proposal. The CM shall be
required to furnish two City of Miami signs at the Project Site.
26.2 The CM shall also post appropriate construction site warning signs at the Project
Site. Such signs shall be posted to warn pedestrian and vehicle traffic. Signage
shall also be placed waterside, where applicable, to alert boater to the
construction zone, requiring idle speed and a minimum clearance distance. CM
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shall provide drawings for the signage, which shall be subject to approval by the
Project Manager.
26.3 The City shall approve the locations for all signage.
27. Inspection of Work
27.1. A/E and City shall at all times have access to the Construction Work during
normal work hours, and CM shall provide proper facilities for such access and for
inspecting, measuring and testing.
27.1.1. Should the Contract Documents, AJE's/City Project Manager's
instructions, any laws, ordinances, or any public authority require any of
the Construction Work to be specially tested or approved, CM shall give
City Project Manager timely notice of readiness of the Construction Work
for testing. If the testing or approval is to be made by an authority other
than City, timely notice shall be given of the date fixed for such testing.
Testing shall be made promptly, and, where practicable, at the source of
supply. If any of the Construction Work should be covered up without
approval or consent of City Project Manager or NE, it must, if required
by City Project Manager, be uncovered for examination and properly
restored at CM 's expense.
27.1.2. Re-examination of any of the Construction Work may be ordered by City
Project Manager with prior written approval by the City, and if so ordered,
the Construction Work must be uncovered by CM. If such Construction
Work is found to be in accordance with the Contract Documents, City
shall pay the cost of reexamination and replacement by means of a
Change Order. If such Construction Work is not in accordance with the
Contract Documents, CM shall pay such cost.
27.2. Inspectors shall have no authority to permit deviations from, nor to relax any of
the provisions of the Contract Documents nor to delay the Construction Work by
failure to inspect the materials and Construction Work with reasonable
promptness without the written permission or instruction of A/E.
27.3. The payment of any compensation, whatever may be its character or form, or the
giving of any gratuity or the granting of any favor by CM to any inspector, directly
or indirectly, is strictly prohibited, and any such act on the part of CM will
constitute a breach of this Agreement.
28. Mounting Heights
Where mounting heights are not indicated, the CM shall mount individual units at
industry recognized standard mounting heights for the particular application indicated;
and, refer questionable mounting height choices to the NE for final decision.
29. Submittals
29.1 CM shall check and approve all shop drawing, samples, product data, schedule
of values, and any and all other submittals to make sure they comply with the
Contract Documents.
29.2 CM by approving and submitting any submittals, represents that they have
verified the accuracy of the submittals, and they have verified all of the submittal
information and documentation with the requirements of the Contract
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Documents. At time of submission the CM shall advise the A/E in writing of any
deviations from the Contract Documents.
29.3 Each shop drawing submittal shall contain a title block containing the following
information:
• Number and title of drawing, including Contract title and Number;
• Date of drawing and revisions;
• Name of CM and Subcontractor (if any) submitting drawings;
• Name of Project, Building or Facility;
• Specification Section title and number;
• CM 's Stamp of approval, signed by the CM or his checker;
• Space above the title block for AIE's action stamp;
• Submittal or re -submittal number (whether first, second, third,
etc.);
• Date of submittal.
CM shall sign, in the proper block, each sheet of shop drawing and data and
each sample label to certify compliance with the requirements of the Contract
Documents. Shop drawing submitted without the stamp and signature shall be
rejected and it will be considered that the CM has not complied with the
requirements of the Contract Documents. CM shall bear the risk of any delays
that may occur as a result of such rejection.
29.4 City shall not be liable for any materials, fabrication of products or Construction
Work commenced that requires submittals until the A/E has returned approved
submittals to the CM.
29.5 NE shall make every effort to review submittals within fourteen (14) calendar
days from the date of receipt by the A/E. A/E's review shall only be for
conformance with design concepts and the information provided in the Contract
Documents. The approval of a separate item shall not constitute approval of an
assembly in which the item functions. The A/E shall return the transparency
shop drawings to the CM for their use and distribution.
29.6 Approval of any submittal shall not relieve the CM of any responsibility for any
deviations from the requirements of the Contract Documents unless the CM has
given written notice to the A/E of the specific deviations and the A/E has issued
written approval of such deviations.
29.7 CM shall be responsible for the distribution of all shop drawings, copies of
product data and samples, which bear the AIEs stamp of approval. Distribution
shall include, but not be limited to; job site file, record documents file, sub-
contractors, suppliers, and other affected contractors or entities that require the
information.
29.8 During the progress of the Construction Work, the CM shall submit copies of all
reports, permits and inspections required by governing authorities, or necessary
for the Project. The CM shall also prepare a two week look -ahead schedule
which must be submitted to the A/E and the Project Manager on a weekly basis.
29.9 The CM shall also provide copies of all plans approved and permitted by the
required governing authorities.
30. Shop Drawings
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30.1. CM shall submit Shop Drawings as required by the Contract Documents. The
purpose of the Shop Drawings is to show, in detail, the suitability, efficiency,
technique of manufacture, installation requirements, details of the item and
evidence of its compliance or noncompliance with the Contract Documents.
30.2. Within three (3) calendar days after the Construction Work commencement, CM
shall submit to NE a complete list of items for which Shop Drawings are to be
submitted and shall identify the critical items. Approval of this list by AIE shall in
no way relieves the CM 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.
30.3. After the approval of the list of items required in Section 30.2 above, CM shall
promptly request Shop Drawings from the various manufacturers, fabricators,
and suppliers.
30.4. CM shall thoroughly review and check the Shop Drawings and each and every
copy shall show its approval thereon. CM shall submit three sets of shop
drawings.
30.5. If the Shop Drawings show or indicate departures from the Contract Documents'
requirements, CM shall make specific mention thereof in its letter of transmittal.
Failure to point out such departures shall not relieve CM from its responsibility to
comply with the Contract Documents.
30.6. AIE shall review and approve Shop Drawings within fourteen (14) calendar days
from the date received, unless said Shop Drawings are rejected by A/E for
material reasons. A/E's approval of Shop Drawings will be general and shall not
relieve CM of responsibility for the accuracy of such Shop Drawings, nor for the
proper fitting and construction of the work, nor for the furnishing of materials or
work required by the Contract Documents and not indicated on the Shop
Drawings. No work called for by Shop Drawings shall be performed until the
said Shop Drawings have been approved by A/E. Approval shall not relieve CM
from responsibility for errors or omissions of any sort on the Shop Drawings.
30.7. No approval will be given to partial submittals of Shop Drawings for items which
interconnect andlor are interdependent where necessary to properly evaluate
the design. It is CM's responsibility to assemble the Shop Drawings for all such
interconnecting and/or interdependent items, check them and then make one
submittal to AIE along with its comments as to compliance, noncompliance, or
features requiring special attention.
30.8. 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.
30.9. The minimum size for shop drawings shall be 11" X 17". Each shop drawing
shall be clear, thoroughly detailed and shall have listed on it all Contract
Document references, drawing number(s), specification section number(s) and
the shop drawing numbers of related work. Shop drawings must be complete in
every detail, including location of the work. Materials, gauges, methods of
fastening and spacing of fastenings, connections with other work, cutting, fitting,
drilling and any and all other necessary information per standard trade practices
or as required for any specific purpose shall be shown.
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30.10 Where professional calculations and/or certification of performance criteria of
materials, systems, and or equipment are required, the A/E is entitled to rely
upon the accuracy and completeness of such calculations and certifications
submitted by the CM. Calculations, when required, shall be submitted in a neat
clear and easy format to follow.
30.11. CM shall keep one set of Shop Drawings marked with A/E's approval at the job
site at all times.
31. Product Data
31.1 CM shall submit four copies of product data . Each copy must be marked to
identify applicable products, models, options and other data. CM shall
supplement manufacturer's standard data to provide information unique to the
Construction Work.
31.2 CM shall only submit pages that are pertinent. Submittals shall be marked to
identify pertinent products, with references to the specifications and the Contract
Documents. Identify reference standards, performance characteristics and
capacities, wiring and piping diagrams and controls, component parts, finishes,
dimensions and required clearances.
32. Samples
CM shall submit samples to illustrate the functional characteristics of the product(s).
Submittals shall be coordinated for different categories of interfacing Work. CM shall
include identification on each sample and provide full information.
33. Record Set
CM shall maintain in a safe place at the Project site one record copy and one permit set
of the Contract Documents, including, but not limited to, all Drawings, Specifications,
amendments, Change Orders, RFIs, and Field Directives, as well as all written
interpretations and clarifications issued by the A/E, in good order and annotated to show
all changes made during construction. The record Contract Documents shall be
continuously updated by CM throughout the prosecution of the Construction Work to
accurately reflect all field changes that are made to adapt the Construction Work to field
conditions, changes resulting from Change Orders, Construction Change Directives, and
Field Directives as well as all written interpretations and clarifications, and all concealed
and buried installations of piping, conduit and utility services. CM shall certify the
accuracy of the updated record Contract Documents. As a condition precedent to City's
obligation to pay CM, the CM shall provide evidence, satisfactory to the City and the A/E,
that CM is fulfilling its obligation to continuously update the record Contract Documents.
All buried items, outside the Project site, shall be accurately located on the record
Contract Documents as to depth and in relationship to not less than two (2) permanent
features (e.g. interior or exterior wall faces). The record Contract Documents shall be
clean and all changes, corrections and dimensions shall be given in a neat and legible
manner in red. The record Contract Documents shall be available to the City and the A/E
for reference. Upon completion of the Construction Work and as a condition precedent to
CM's entitlement to final payment, the record Contract Documents shall be delivered to
the A/E by the CM for the City.
34. As -Built Drawings
During the Construction Work, CM shall maintain records of all deviations from the
Drawings and Specifications as approved by the A/E and prepare As -Built Record
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Drawings showing correctly and accurately all changes and deviations made during
construction to reflect the work as it was actually constructed. It is the responsibility of
the CM to check the As -Built Drawings for errors and omissions prior to submittal to the
City and certify in writing that the As -Built Drawings are correct and accurate, including
the actual location of all internal piping, electrical/signal conduits in or below the concrete
floor. Indicate the size, depth and voltage in each conduit.
34.2. Legibly mark to record actual construction: On -site structures and site work as
follows:
36.1.1. Depths of various elements of foundation in relation to finish first floor
datum.
36.1.2. All underground piping and ductwork with elevations and dimensions
and locations of valves, pull boxes, etc. Changes in location.
Horizontal and vertical locations of underground utilities and
appurtenances, referenced to permanent surface improvements. Actual
installed pipe material, class, etc.
34.13. Location of internal utilities and appurtenances concealed in the
construction, referenced to visible and accessible features of the
structure. Air conditioning ducts with locations of dampers, access
doors, fans and other items needing periodic maintenance.
34.14. Field changes in dimensions and details.
34.1.5. Changes made by A/E's written instructions or by Change Order.
34.1.6. Details not on original Contract Drawings.
34.1.7. Equipment, conduit, electrical panel locations.
34.2.8. A/E schedule changes according to CM's records and shop drawings.
34.2. Specifications and Addenda: Legibly mark each section to record:
34.3.1. Manufacturer, trade name, catalog number and Supplier of each
product and item of equipment actually installed.
36.3.2. Changes made by A/E's written instructions or by Change Order.
34.3. Approved Shop Drawings: Provide record copies for each process equipment,
piping, electrical system and instrumentation system.
35. Requests For Information (RFI)
The CM shall submit in writing a Request for Information (RFI) to the A/E, with a copy to
the Project Manager, where the CM believes that the specifications or drawings are
unclear or conflict. All requests must be submitted in a manner that clearly identifies the
drawing and/or specification section where clarification or interpretation is being
requested.
36. Field Directives
The Project Manager or A/E may at times issue Field Directives to the CM based on
visits to the Project site. Such Field Directives shall be issued in writing and the CM
shall be required to comply with such directive. Where the CM believes that the directive
is outside the scope of the Work, the Contractor shall, within 48 hours, notify the A/E and
the Project Manager that the Field Directive is outside the scope of the Work. At that
time the Field Directive may be rescinded or the CM may be required to submit a
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request for a Change Order proposal. Where the CM is notified of the City's position
that the Field Directive is within the scope and the CM disagrees, the CM shall notify the
AIE and the Project Manager that the CM reserves the right to make a claim for the time
and monies based on the Field Directive. At no time shall the CM refuse to comply with
the directive. Failure to comply with the directive may result in a determination that the
CM is in default of the Agreement.
37 Work Logs
37.1 CM shall maintain at the Project Site a log of daily activities, including manpower
records, deliveries, inspections, testing, major decisions, delays, visitors to the
site, etc.
37.2 CM shall maintain a two week look ahead schedule, which shall be provided to
the NE, the City, and subcontractors at the progress meetings
38. Change Orders
38.1. Changes in the quantity or character of the Construction Work of the Project
which are not properly the subject of Field Directives or Supplemental
Instructions, including all changes resulting in changes in the GMP, or use of the
Contingency, or the increasing the value of the GMP by, shall be authorized only
by Change Orders approved in advance and issued in accordance with the
provisions of the City.
38.2. All changes to Construction Work must be approved in advance in accordance
with the value of the Change Order or the calculated value of the time extension.
All Change Orders, excluding those issued against the contingency, increasing
the value of the GMP by $50,000 or more shall be approved in advance by the
City Commission. All Change Orders increasing the value of the GMP, excluding
those issued against the contingency by less than $50,000 shall be approved in
advance by the City Manager or his designee. All Change Orders issued against
the contingency shall be approved by the Director or designee.
38.3. In the event satisfactory adjustment cannot be reached for any item requiring a
change in the GMP or increasing the value of the GMP, and a Change Order has
not been issued, City reserves the right at its sole option to either terminate the
Agreement as it applies to the items in question and make such arrangements as
may be deemed necessary to complete the disputed work; or may submit the
matter in dispute as set forth in Section 1, Article 45, Resolution of Disputes.
During the pendency of the dispute, and upon receipt of a Change Order
approved by City, CM shall promptly proceed with the change in the Work
involved and advise the AJE and Project Manager in writing within seven (7)
calendar days of CM's agreement or 'disagreement with the method, if any,
provided in the Change Order for determining the proposed adjustment in the
GMP or Construction Work Time for Completion.
38.4. On approval of any change increasing the GMP, CM shall ensure that the
performance bond and payment bond are increased so that each reflects the
total GMP as increased.
38.5. Under circumstances determined necessary by City, Change Orders may be
issued unilaterally by City.
39. Value of Change Order Work
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39.1. The value of any Work to be covered by a Change Order, or for any claim for an
increase or decrease in the GMP, or use of the Contingency shall be determined
in one of the following ways:
39.1.1. Where the work involved is covered by unit prices contained in the
Schedule of Values, by application of unit prices to the quantities of items
involved.
39.1.2. By mutual acceptance of a lump sum which CM and City acknowledge
contains a component for overhead and profit.
39.1.3. On the basis of the "cost of work," determined as provided in Sections
39.2 and 39.3, plus a proportional rate for the Construction Manager's fee
for general conditions, overhead and profit.
39.2. The term "cost of work" means the sum of all direct costs necessarily incurred
and paid by CM in the proper performance of the Construction Work described in
the Change Order. Except as otherwise may be agreed to in writing by City,
such costs shall be in amounts no higher than those prevailing in the locality of
the Project, and shall include only the following items, as applicable:.
39.2.1. Payroll costs for employees in the direct employ of the CM, where
such employees are performing the work described in the Change
Order under schedules of job classifications agreed upon by City and
Contractor. Payroll costs for employees not employed full time on the
work covered by the Change Order shall be apportioned on the basis
of their time spent on the work. Payroll costs shall include, but not be
limited to, salaries and wages plus the cost of fringe benefits which
shall include social security contributions, unemployment, excise and
payroll taxes, workers' or workmen's compensation, health and
retirement benefits, bonuses, sick leave, vacation and holiday pay
application thereto. Such employees shall include superintendents
and foremen at the site. The expenses of performing the work after
regular working hours, on Sunday or legal holidays, shall be included
in the above to the extent authorized by City. The City shall have the
right to require certified wage statements from the CM.
39.2.2. Cost of all materials and equipment furnished and incorporated in the
Construction Work, including costs of transportation and storage
thereof, and manufacturers' field services required in connection
therewith. All cash discounts shall accrue to CM unless City deposits
funds with CM with which to make payments, in which case the cash
discounts shall accrue to City. All trade discounts, rebates and
refunds, and all returns from the sale of surplus materials and
equipment shall accrue to City and CM shall make provisions so that
they may be obtained. Rentals of all construction equipment and
machinery and the parts thereof whether rented from CM or others in
accordance with rental agreements approved by City with the advice
of A/E and the costs of transportation, loading, unloading, installation,
dismantling and removal thereof, ail 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
Construction Work.
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39.2.3. Payments made by CM to Sub -Contractors for Work performed by
Sub -Contractors, If the Sub -Contract provides that the Subcontractor
is to be paid on the basis of cost of the work plus a fee, the Sub -
Contractor's cost of the work shall be determined in the same manner
as CM 's cost of the work. All Sub -Contractors shall be subject to the
other provisions of the Contract Documents insofar as applicable.
39.2,4. Cost of special A/Es, including, but not limited to, A/Es, architects,
testing laboratories, and surveyors employed for services specifically
related to the performance of the Construction Work described in the
Change Order.
39.2.5. Supplemental costs including the following:
39.2.5.1. The proportion of necessary transportation, travel and
subsistence expenses of CM's employees incurred in
discharge of duties connected with the work except for
local travel to and from the site of the Construction Work.
39.2.5.2. Cost, including transportation and maintenance, of all
materials, supplies, equipment, machinery, appliances,
office and temporary facilities at the site and hand tools
not owned by the workmen, which are consumed in the
performance of the work, and less market value of such
items used but not consumed which remains the property
of CM.
39.2.5.3. Sales, use, or similar taxes related to the work, and for
which CM is liable, imposed by any governmental
authority.
39.2.5.4. Deposits lost for causes other than CM's negligence;
royalty payments and fees for permits and licenses.
39.2.5.5. The cost of utilities, fuel and sanitary facilities at the site.
39.2.5.6. Receipted minor expenses such as telegrams, long
distance telephone calls, telephone service at the site,
expressage and similar petty cash items in connection
with the Construction Work.
39.3. The term "cost of the work" shall not include any of the following:
39.3.1, Payroll costs and other compensation for CM's officers, executives,
principals (of partnership and sole proprietorships), general
managers, A/Es, architects, estimators, lawyers, auditors,
accountants, purchasing and contracting agents, expediters,
timekeepers, clerks and other personnel employed by CM whether at
the site or in its principal or a branch office for general administration
of the work, all of which are to be considered administrative costs
covered by Construction Manager's Fee.
39.3.2. Expenses of CM 's principal and branch offices other than CM 's office
at the site.
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39.3.3. Any part of CM 's capital expenses, including interest on CM 's capital
employed for the work and charges against CM for delinquent
payments.
39.3.4. Cost of premiums for all Bonds and for all insurance whether or not
CM is required by the Contract Documents to purchase and maintain
the same, except for additional bonds and insurance required
because of changes in the work.
39.3.5. Costs due to the negligence or neglect of CM, any Sub -Contractors,
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 work, disposal of materials or equipment
wrongly supplied and making good .any damage to property.
39.3.6. Other overhead or general expense costs of any kind and/or the cost
of any item not specifically and expressly included in Section 39.2.
39.4. The amount of credit to be allowed by CM to City 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
Construction Manager's Fee shall be figured on the basis of the net increase, if
any. However, CM shall not be entitled to claim lost profits for any Construction
Work not performed.
39.5. Whenever the cost of any Construction Work is to be determined pursuant to
Sections 39.2 and 39.3, CM will submit in a form acceptable to AJE an itemized
cost breakdown together with the supporting data.
39.6. 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, CM shall
submit an initial cost estimate acceptable to A/E and Project Manager. The cost
estimate breakdown shall list the quantities and unit prices for materials, labor,
equipment and other items of cost.
39.7. 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 the work."
40. Substantial Completion. Punch List & Final Completion
40.1 The Construction Work shall be substantially complete when the Project
Manager, in the reasonable exercise of his/her discretion determines that the
Construction Work is complete and there are no material and/or substantial
variations from the Agreement and the Construction Work is fit for its intended
purpose. Upon Substantial Completion, Project Manager and the CM shall sign
the Substantial Completion Inspection Form. The signing of this form shall not
relieve the CM from its obligation to complete the Project.
40.2 When the CM believes that the Construction Work is substantially complete, the
CM shall request in writing that the A/E inspect the Construction Work to
determine if Substantial Completion has been achieved. No request for
Substantial Completion inspection is to be submitted until the CM has obtained a
Certificate(s) of Occupancy, Certificate of Completion or Completion or a
Temporary Certificate of Occupancy. The NE shall schedule the date and time
for any inspection and notify the CM and any other parties deemed necessary.
During this inspection, the Project Substantial Completion Inspection Form,
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(Attachment B), will be completed as necessary. Any remaining Construction
Work shall be identified on this form and shall be known as Punch List work. The
Punch List, (Attachment C), shall be signed by both the A/E, the Project
Manager, and the CM confirming that the Punch List contains the item(s)
necessary to complete the Construction Work. The failure or refusal of the CM to
sign the Project Substantial Completion Inspection Form or Punch List shall not
relieve the CM from complying with the findings of the Project Substantial
Completion Inspection and completing the Project to the satisfaction of the City
40.3 Where the Punch List is limited to minor omissions and defects, the NE shall
indicate that the Construction Work is substantially complete subject to
completion of the Punch List. Where the A/E determines, on the appropriate
form that the Work is not substantially complete, the NE shall provide a list of all
open items necessary to achieve Substantial Completion. Upon completion of
such Construction Work, the CM shall request another Substantial Completion
inspection.
40.4 The A/E and the CM on the time reasonably required to complete all remaining
Work included in the Punch List.
40.6 Upon the receipt of all documentation, resolution of any outstanding issues and
issuance of final payment, the NE shall notify the Contractor in writing of the
closeout of the Project.
40.7 The City will prepare a Certificate of Substantial Completion in the form attached
hereto as Attachment D which shall establish the Date of Substantial Completion.
Once substantial completion is achieved the City shall be responsible for
security, maintenance, heat, utilities, damage to the Project site, and insurance;
and shall list all Construction Work yet to be completed to satisfy the
requirements of the Contract Documents for Final Completion. The failure to
include any items of corrective work on such list does not alter the responsibility
of CM to complete all of the Work in accordance with the Contract Documents.
Warranties required by the Contract Documents shall commence on the date of
Substantial completion of the Work or designated portion thereof unless
otherwise provided in the Certificate of Substantial Completion.
41. Training
41.1 The CM shall provide training of all appropriate personnel employed by the City
or the City's agents in the installation, maintenance, calibrations, and routine care
of all equipment and systems provided and installed as part of the Construction
Work
41.2 Separate training sessions shall be conducted for equipment/system operation
and maintenance except when combining of these two (2) subjects is specifically
allowed by the City.'
41.3 The CM shall provide qualified, prepared instructors for all training plus all
necessary material and equipment (training aids, audio visual equipment,
seating, tables, etc.).
41.4 The CM shall provide factory -level maintenance training in system problem
identification and resolution. This training should be aimed at providing the City
with means to perform all corrective, scheduled and preventative maintenance.
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41.5 All training shall be conducted on -site or, if conducted at a remote location,
travel and expenses for City's personnel shall be reimbursed to the City by the
CM.
41.6 Training shall be conducted prior to final completion of the Project.
41.7 For each training session, the CM shall submit a training plan for review. The
plans shall include proposed dates/times/durations of training sessions,
suggested class size/attendees, proposed locations, session objectives and an
outline of the training topics to be presented. Training plans for all training
sessions shall be submitted not later than the date set forth in the Project
Schedule. The City shall have the right to modify proposed training dates in
conjunction with the CM to coordinate the schedule with availability of personnel
and ongoing operations.
42.
42. Excusable Delay
42.1 Excusable Delay is (i) caused by circumstances beyond the control of CM, its
Sub -Contractors, suppliers and vendors, or (ii) is caused jointly or concurrently
by CM, or its Sub -Contractors, suppliers or vendors and by the City or A/E. Then
CM shall be entitled to a time extension and no compensation for the delay.
42.2 CM is entitled to a time extension of the Construction Work Time for Completion
for each day the Construction Work is delayed due to Excusable Delay. CM shall
document its claim for any time extension as provided in Article 43 hereof.
42.3 Where CM determines that the City is liable for for payme of cost due to a delay
any request for additional compensation must be submitted in accordance with
Article 43.
42.3.1 CM shall furnish to the Project Manager all documentation supporting its
claim, including, details of the claim, a description of the work affected and the
actual costs resulting from the delay.
42.3.2 Where the City agree to an excusable delay and the Work is being
performed by a Sub -Contractor, the CM shall be paid for actual costs associated
with the delay plus 5% for indirect and overhead costs.
42.3.3 Where the City agree to an excusable delay and the Work is being
performed by the CM's own forces the CM shall be reimbursed for actual costs
associated with the delay
42.4 The CM agrees that the above constitutes its sole and exclusive remedies for an
excusable delay.
42.5 Failure of CM to comply with Article 43 hereof as to any particular event of delay
shall be deemed conclusively to constitute a waiver, abandonment or
relinquishment of any and ail claims resulting from that particular event of delay.
43. Notification and Claim for Change of Construction Work Time for Completion or
GMP
43.1. Any claim for a change in the Construction Work Time for Completion or GMP,
shall be made by written notice by CM to the to the A/E and Project Manager
within five (5) calendar days of the commencement of the event giving rise to the
claim and stating the general nature and cause of the claim. Thereafter, within
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twenty (20) calendar days of the termination of the event giving rise to the claim,
written notice of the extent of the claim with supporting information and
documentation shall be provided unless A/E allows an additional period of time to
ascertain more accurate data in support of the claim and such notice shall be
accompanied by CM 's written notarized statement that the adjustment claimed is
the entire adjustment to which the CM has reason to believe it is entitled as a
result of the occurrence of said event.
43.2. The Construction Work Time for Completion will be extended in an amount equal
to time lost on critical Construction Work items due to delays beyond the control
of and through no fault or negligence of CM if a claim is made therefore as
herein. Such delays shall include, but not be limited to, acts or neglect by any
separate contractor employed by City, fires, floods, epidemics, abnormal weather
conditions or acts of God.
44. Hurricane Precautions
44.1. During such periods of time as are designated by the United States Weather
Bureau as being a hurricane warning or alert, the CM, at no cost beyond the
GMP to the City, shall take all precautions necessary to secure the Project site
in response to all threatened storm events, regardless of whether the City or A/E
has given notice of same.
44.2. Compliance with any specific hurricane warning or alert precautions will not
constitute additional work.
44.3. Additional work relating to hurricane warning or alert at the Project site will be
addressed by a Change Order.
44.4. Suspension of the Construction Work caused by a threatened or actual storm
event, regardless of whether the City has directed such suspension, will entitle
the CM to additional time as non-compensable, excusable delay, and shall not
give rise to a claim for compensable delay.
45. Stop Work Order
45.1. The City may, at any time, by written order to the CM, require the CM to stop all,
or any part, of the Construction Work for a period of up to ninety (90) days (or
any lesser period), commencing no sooner than the date the order is delivered to
the CM, and for any further period to which the parties may agree. Any such
order shall be specifically identified as a "Stop Work Order" issued pursuant to
this paragraph. Within the period of ninety (90) days (or the lesser period
specified) after a Stop Work Order is delivered to the CM, or within any extension
to which the parties have agreed the City shall either:
45.1.1. Cancel the Stop Work Order; or
45.1.2. Terminate the Work covered by such order as provided in Section 1,
Article 39, City's Right to Terminiate.
45.2. If a Stop Work Order issued under this Article is canceled or the period of the
order or any extension thereof expires, the CM shall resume the Work. The Cm
may request an extension of time and/or additional time in accordance with
Article 43 above. In the event the A/E determines that the suspension of
Construction Work was necessary due to CM's defective or incorrect
Construction Work, unsafe Construction Work conditions caused by the CM or
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any other reason caused by CM's fault or omission, the CM shall not be entitled
to an extension of time as a result of the issuance of a Stop Work Order.
46. Cleaning Up; City's Right to Clean Up
CM shall at all times keep the premises free from accumulation of waste materials or
rubbish caused by its operations. At the completion of the Project, CM shall remove all
its waste materials and rubbish from and about the Project as well as its tools,
construction equipment, machinery and surplus materials. If CM fails to clean up during
the prosecution of the Work or at the completion of the Construction Work, City may do
so and the cost thereof shall be charged to CM. Cleaning operations should be
controlled to limit dust and other particles adhering to existing surfaces.
47. Removal of Equipment
In case of termination of this Agreement before completion for any cause whatsoever,
CM, if notified to do so by City, shall promptly remove any part or all of CM 's equipment
and supplies from the property of City. If the CM fails to comply with City's order, the City
shall have the right to remove such equipment and supplies at the expense of CM.
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