HomeMy WebLinkAboutExhibit 2Construction Agreement
By and Between
The City Of Miami
And
CMC Construction
For The
Miami Watersports Complex Renovations
Department of Capital Improvements & Transportation
444 SW 2nd Avenue, 8kh Floor
Miami, Florida 33130
Shake -A -Leg
THIS AGREEMENT, made and entered into this day of , 2006 by and between
the City of Miami, Florida, a municipal corporation, hereinafter called the City, and CMC
Construction, a Florida Corporation, hereinafter called Contractor.
WtTNESSETH:
WHEREAS, the City desires to enter into an Agreement for the renovations of the Miami
Watersports Complex operated by Shake -A -Leg and enhancements to the Dinner Key Spoil
Islands, and
WHEREAS, Contractor represents it possesses the requisite expertise and desires to enter into
an Agreement to act as the Contractor to provide the services as set forth herein; and
WHEREAS, Contractor has agreed to donate its services, where possible obtain materials at
reduced or no cost ands and to have other contractors perform their work at no cost or
reduced costs ; and
WHEREAS, the City Commission has authorized the City Manager to execute and enter into
this Agreement by Resolution No. adopted 2006;
NOW THEREFORE, in consideration of the mutual covenants and compensation set forth
herein the City and Contractor agree as follows:
Section 1 - Terms and Conditions
1. Overview
This Agreement covers the services of Contractor for the construction of the Project,
which consists of renovations .to the Miami Watersports Complex and enhancements to
the Spoil Islands (the "Project"). This Work includes electrical upgrades and installation
of an additional elevator in the administration building, renovatons to the U.S.C.G.
Hanger to include new bathrooms , office space, windows, and doors, site work to the
exterior of the buildings, and clean-up and replanting of the Dinner Key Spoil Islands..
The Work is more fully described in the drawings and specifications included in
Attachment F
2. Intention of Citv
It is the intent of City to have the Project 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 Contractor 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 Contractor shall comply
therewith. City shall have no duties other than those duties and obligations expressly
set forth within the Contract Documents.
3. Definitions
Miami Watersports Complex Page 1
Architect/Engineer means the Architectural and/or Engineering firm(s) who have
entered into a separate agreement(s) with the City for the provision of design services
for this Project. The Architectural and/or Engineering firms are 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.
Contractor Project Manager means the person designated by Contractor as its lead
representative to the City. The Contractor Project Manager shall have the authority to
obligate and bind Contractor and to act on all matters on behalf of Contractor except for
revisions to the Contract Documents and Change Orders.
Construction Change Directive means a written directive to effect changes to the
Work, prepared by the A/E and executed by the City
Contract Documents means this the documents described in Section 1, Article 6 of this
Agreement.
Construction Schedule means a 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.
Contract Time means the time period defined in this Agreement for the Contractor to
complete the Project.
Cure means the action taken by the Contractor 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 construction plans and specification prepared by AIE(s).
for this Project under separate agreement(s) with the City.
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,
Miami Watersports Complex Page 2
without limitation, all notes, schedules and legends on such Drawings as prepared by
the AIE(s) in Attachment F..
Field Directive means a written approval for the Contractor to proceed with Work
requested by the City or the AIE(s), which is minor in nature and should not involve
additional cost.
Final Completion means the date subsequent to the date of Substantial Completion at
which time the Contractor has completed all the Work in accordance with the Agreement
as certified by the A/E or the City and submitted ail documentation required by the
Agreement
Notice To Proceed means a written letter or directive issued by the Director or City's
Project Manager acknowledging that all conditions precedent have been met and
directing that the Contractor may begin Work on the Project or a specific task 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 of the Work specified in this Agreement as
contemplated and budgeted by the City.
Punch List means a compilation of items of Construction Work required to be performed
by, or through the Contractor prior to or 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 Contractor, 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 Contractor seeking an
interpretation or clarification by the AIE(s) 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 Contractor'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 of the Project.
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 materialman or laborer that
has a direct contract with the Contractor to perform or supply a portion of the
Construction Work.
Miami Watersports Complex Page 3
Submittals mean documents prepared by the Contractor or those working on its behalf
to show how a particular aspect of the Construction, Work is to be fabricated and
installed. The Contractor'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.
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.
4. Scope of Work
Contractor shall provide all management, supervision, manpower, equipment, tools, and
all other necessary goods and services for the renovation of the Miami Watersports
complex and the enhancements to the Dinner Key Spoil Islands as detailed in the
attached specifications, drawings and plans as contained in Attachment F, and in
accordance with the Contract Documents.
5. Contract Value
The Contractor shall perform all Work under this Agreement for an amount not to exceed
$1,420,000. Payments shall be made for Work actually performed and accepted by the
City.
6. Time for Completion
Contractor 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.
Contractor shall complete all Work under this Agreement within 245 days from issuance
of the Notice to Proceed.
7. 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,. 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 Contractor.
8. Priority Of Provisions
Miami Watersports Complex Page 4
If there is a conflict or inconsistency between any term, statement requirement, or
provision of any exhibit attached hereto, 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 AIE, or provision of this
Agreement the following order of precedence shall apply:
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 specifications or plans shall govern over the
Contract Terms and Conditions
• Scope of Work and Specifications shall govern over plans and
drawings
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
In the event of omissions in the Contract Documents that are incidental detail(s) of
construction or construction system(s) or with regard to the 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.
9. Progress Payments
Contractor may make Application for Payment for Construction Work completed during
the Project at intervals of not more than once a month. Contractor 's Application for
Payment shall be accompanied by a partial release of liens relative to the Construction
Work, which is the subject of the Application for Payment and any other information
required by the City. Each Application for Payment shall be submitted in triplicate to
City's Project Manager for approval.
City may withhold, in whole or in part, payment to such extent as may be necessary to
protect itself from loss on account of:
• Defective Construction Work not remedied.
• Claims filed or reasonable evidence indicating probable filing of claims by
other parties against Contractor or City because of Contractor's
performance.
Miami Watersports Complex Page 5
• Failure of Contractor to
for material or labor.
• Failure of Contractor to
Contract Documents.
make payments properly to Sub -Contractors or
provide any and all documents required by the
10. Payments
Payment of an approved Application for Payment approved by the AIE shall be made
within thirty (30) days after receipt of Contractor'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.
11. Progress Meetings
Contractor and the City's Project Manager shall hold construction progress meetings as
deemed necessary to ensure the timely completion of the Work.
12. Performance and Payment Bond or Letter of Credit
Contractor shall furnish a Performance Bond and a Payment Bond containing all the
provisions of the Performance Bond and Payment Bond attached hereto as forms 0071,0
and 00720.
Each Bond shall be in the amount of one hundred percent (100%) of the Contract Price
guaranteeing to City the completion and performance of the Work covered in such
Contract .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 6.
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 Contract sum, or an
additional bond shall be conditioned that Contractor will, upon notification by City, correct
any defective or faulty work or materials which appear within one year after Final
Completion of the Contract.
Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be
amended from time to time, Contractor shall ensure that the bond(s) referenced above
shall be recorded in the public records of Miami -Dade County and provide City with
evidence of such recording.
In lieu of or in combination with the Performance and Payment Bond the Contractor may
furnish the City an unconditional letter of credit in the form attached hereto in an amount
equal to the full value of the Agreement. Contractor may request return of the letter of
credit thirty days after final completion of the Agreement.
13. Indemnification
Contractor 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 Contractor and persons employed or
utilized by Contractor in the performance of this Agreement. Contractor's obligations
hereunder shall apply even if part of the damage or injury is 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, Contractor
Miami Watersports Complex Page 6
shall, upon written notice from City, resist and defend such action or proceeding by
counsel satisfactory to City.
The indemnification provided above shall obligate Contractor 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 Contractor, or persons employed or utilized by
Contractor.
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.
Contractor shall require all Sub -Contractor agreements to include a provision that they
will indemnify the City.
14. Insurance
The Contractor shall not start Work under this Agreement until the Contractor has
obtained the insurance required and the City's Risk Administrator has approved such
insurance.
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.
Verification Of Insurance Coverage
The Contractor 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 Contractor 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
Contractor. Contractor shall maintain coverage with equal or better rating as
identified herein for the term of this Agreement. Contractor 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. Contractor
shall furnish a copy of the insurance policy or policies upon request of the Risk
Administrator.
Contractor shall furnish copies of insurance policies pertaining to this Agreement to the
City's Risk Administrator within ten (10) days of written request.
Forms Of Coverage
Should Contractor 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.
Miami Watersports Complex Page 7
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:
• 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.
• Waiver of subrogation
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 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:
• Premises and/or Operations.
• Independent Contractor
• Products and/or Completed Operations for contracts with an
Aggregate Limit of One Million Dollars ($1,000,000.00) 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.
• Incidental Medical Malpractice.
• 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.
• 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.
• Employee included as insured.
• Contractual Liability.
• Waver of Subrogation.
• Personal and Advertising Injury.
• Loading and Unloading.
• Mobile Equipment (Contractor's Equipment) whether owned,
leased, borrowed or rented by Contractor or employees of the
Contractor.
• City of Miami as Additional Insured
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:
Miami Watersports Complex Page 8
• Owned Vehicles.
• Hired, Borrowed, and Non -Owned Vehicles.
• Employers' Non -Ownership.
• Employees included as insured
• City of Miami as Additional Insured
Employer's Liability — Limits of Liability
• $1,000,000 for bodily injury caused by accident, each accident
• $1,000,000 for bodily injury caused by disease, each employee
• $1,00,000 for bodily injury caused by disease, policy limit
The following insurance shall be furnished by the Sub -Contractor performing
Work on the Dinner Key Spoil Islands. The Certificates shall name the City and
the Contractor as additional insured.
• Marine General Liability, including coverage for protection and
liability in the amount of $1,000,000
• Pollution Liability in the amount of $1,000,000
• Jones Act coverage for captain and crew
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.
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.
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.
The official title of the Owner is the City of Miami, Florida. This official title shall be used
in all insurance documentation.
15. 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 Contractor. In that event Contractor 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.
16. 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.
17. Authority Of The City Proiect Manager
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,
Miami Watersports Complex Page 9
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.
The Contractor shall be bound by all determinations or orders of the City's Project
Manager and/or AIE and shall promptly respond to requests of the Project Manager
and/or A/E, including the withdrawal or modification of any previous order, and
regardless of whether the Contractor agrees with the Project Manager's and/or A/E's
determination or requests. Where requests are made orally, the Project Manager and/or
AIE will follow up in writing, within 24 hours.
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 Contractor shall be issued in writing. All instructions to the Contractor
shall be issued through the Director, Project Manager or the A/E.
The Project Manager and AIE 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 Contractor shall provide safe facilities for such access so the Project
Manager and A/E 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.
The Project Manager and A/E 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 Contractor's failure to carry
out the Construction Work in accordance with the Agreement.
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 Contractor, any Sub -Contractor, supplier or any of
their agents, employees, or any other person performing any of the Construction Work.
All interpretations and recommendations of the Project Manager and A/E shall be
consistent with the intent of the Contract Documents.
The Project Manager and A/E will not be responsible for the acts or omissions of the
Contractor, or anyone employed or contracted directly or indirectly by the Contractor
including any Sub -Contractor, or any of their agents or employees, or any other persons
performing any of the Work.
18. Subcontracts
A Sub -Contractor is any person or entity that is performing, furnishing, supplying or
providing any portion of the Construction Work pursuant to a contract with Contractor.
Contractor shall be solely responsible for and have control over the Sub -Contractors.
All subcontracts shall (1) require each Sub -Contractor to be bound to the Contractor to
the same extent Contractor is bound to the City by the terms of the Contract Documents.
19. Ownership and Use of Documents
Miami Watersports Complex Page 10
The Drawings, Specifications and other documents prepared by the A/E(s), and copies
thereof furnished to the Contractor, are for use solely with respect to this Agreement.
They are not to be used by the Contractor, Sub -Contractors, or material suppliers on
other projects, without the specific written consent of the City. The Contractor, Sub -
Contractors, 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.
20. Plans and Working Drawings
City, through AIE, 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.
Where the Contractor believes that the modification or supplement is outside the scope
of the Work, the Contractor shall, notify the A/E and the City's 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 Contractor may be required to
submit a request for a Change Order proposal. Where the Contractor is notified of the
City's position that the modification or supplement is within the scope and the Contractor
disagrees, the Contractor shall notify the NE and the City's Project Manager that the
Contractor reserves the right to make a claim for the time and monies based on the
modification or supplement. At no time shall the Contractor refuse to comply with the
modification or supplement.
21. Supplementary Drawings and Instructions
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.
The supplementary drawings shall be binding upon contractor with the same force as the
contract documents. Where such supplementary drawings require either Tess or more
than the original quantities of work, appropriate adjustments shall be made by change
order.
The City's 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.
22. Continuing the Work
Contractor 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, the Contract timeframe for
completion of the Work. The Work shall not be delayed or postponed pending resolution
of any disputes or disagreements. All disputes shall be resolved in accordance with
Article 52, Resolution of Contract Disputes and Article 53 Mediation -Waiver of Jury Trial.
23. 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
Miami Watersports Complex Page 11
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, or subcontractor, 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 Contractor shall result in cancellation of the City purchase and may result in
Contractor's debarment.
24. Nondiscrimination, Equal Employment Opportunity, and Americans with
Disabilities Act
Contractor warrants and represents that it does not and will not engage in discriminatory.
practices and that there shall be no discrimination in connection with Contractor's
performance under this Agreement on account of race, color, sex, religion, age,
handicap, marital status or national origin. Contractor 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.
Contractor 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, Contractor shall take
affirmative steps to ensure nondiscrimination in employment against disabled persons.
25. Audit Rights
Contractor '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 (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 Contractor 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.
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
Contractor pursuant to this Agreement.
The City's agent or its authorized representative shall have access to the Contractor'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.
Miami Watersports Complex Page 12
The City or its authorized representative shall give auditees reasonable advance notice
of intended audits.
If an audit inspection or examination in accordance with this Article discloses
overcharges in excess of 1% except negotiated fees by the Contractor to the City, the
actual cost of the City's audit shall be paid by the Contractor. If the audit discloses
contract billing or charges to which Contractor is not contractually entitled, Contractor
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.
26. OSHA Compliance
The Contractor warrants that it will comply with all safety precautions as required by
federal, state or local laws, rules, regulations and ordinances.
27. Safety Precautions
Contractor 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. Contractor shall notify owners of adjacent
property and utilities when prosecution of the Work may affect them. All damage, injury
or loss to any property, caused directly or indirectly, in whole or in part, by Contractor,
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 Contractor. Contractor'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
Contractor a notice of Final Acceptance.
Contractor 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 City's Project Manager must be immediately notified of each
and every occurrence. The Contractor 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.
Contractor shall have the responsibility to ensure that all 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 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.
If an emergency condition should develop during the Project, the Contractor must
immediately notify the A/E and the City's Project Manager of each and every occurrence.
The Contractor should also recommend any appropriate course(s) of action to the A/E
and the City's Project Manager.
28. Permits, and Licenses
Miami Watersports Complex Page 13
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 Contractor. It is Contractor'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.
29. Compliance With Laws
Contractor 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.
30. Defective Work
AIE and the City's Project Manager shall have the authority to reject or disapprove Work
which AIE finds to be defective. If required by AIE, Contractor shall promptly either
correct all defective work or remove such defective Work and replace it with non -
defective Work. Contractor shall bear all direct and indirect costs of such removal or
corrections including cost of testing laboratories and personnel.
Should Contractor 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
Contractor'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 contractor, or may be charged against the Performance Bond and/or Letter of Credit.
In the event of failure of Contractor to make all necessary repairs promptly and fully,
which is not cured in the Cure Period the City may declare Contractor in default.
1f, 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 Work is found to be defective or not in accordance with the Contract Documents,
Contractor, 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 Contractor might have under the Contract
Documents including but not limited to any claim regarding latent defects.
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.
31. Warranty of Materials and Equipment.
Contractor 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, Contractor 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.
Miami Watersports Complex Page 14
32. Warranty of Construction
The Contractor 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.
The Contractor'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.
In the event the Contractor 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 Contractor under any contract
between the City and the Contractor.
33. Manufacturer's Warranty
Contractor 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
Contractor against factory defects and workmanship at time of installation. At no
expense to the City, the Contractor shall correct any and all apparent and latent defects
that are required by Florida law. The Contract Documents may supersede the
manufacturer's standard warranty. Manufacturer's warranties will become effective upon
substantial completion of the Project.
34. 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 Contractor'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 Contractor arising out of or in any way associated with the performance
under this Agreement.
35. Excusable Delay
Excusable Delay is (i) caused by circumstances beyond the control of Contractor, its
Sub -Contractors, suppliers and vendors.
Contractor 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. Contractor shall
document its claim for any time extension as provided in Article 36 hereof.
Where Contractor determines that the City is liable for payment of cost due to a delay
any request for additional compensation must be submitted in accordance with Article
35. Contractor shall furnish to the City's 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.
Where the City agree to an excusable delay and the Work is being performed by a Sub -
Contractor, the Contractor shall be paid for actual costs associated with the delay plus
5% for indirect and overhead costs.
Miami Watersports Complex Page 15
Where the City agree to an excusable delay and the Work is being performed by the
Contractor's own forces the Contractor shall be reimbursed for actual costs associated
with the delay
The Contractor agrees that the above constitutes its sole and exclusive remedies for an
excusable delay. Failure of Contractor to comply with Article 35 hereof as to any
particular event of delay shall be deemed conclusively to constitute a waiver,
abandonment or relinquishment of any and all claims resulting from that particular event
of delay.
36. Notification and Claim for Change of Construction Work Time
Any claim for a change in the Time for Completion, shall be made by written notice by
Contractor to the to the AIE and Project Manager within fifteen (15) 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 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 NE allows an additional period
of time to ascertain more accurate data in support of the claim and such notice shall be
accompanied by Contractor 's written notarized statement that the adjustment claimed is
the entire adjustment to which the Contractor has reason to believe it is entitled as a
result of the occurrence ofsaid event.
The Time for Completion will be extended in an amount equal to time lost on critical
Work items due to delays beyond the control of and through no fault or negligence of
Contractor 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.
37. Changes in the Work or Terms of Contract Documents
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
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.
38. Force Maieure
Should any failure to perform on the part of Contractor be due to a condition of force
majeure as that term is interpreted under Florida law, then the City may allow an
extension of time reasonably commensurate with the cause of such failure to perform or
cure.
If the Contractor is delayed in performing any obligation under this Agreement due to a
force majeure condition, the Contractor 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 Contractor
for extra compensation unless additional services are required. Events of Force
Miami Watersports Complex Page 16
Majeure include inclement weather except as permitted by Florida law and may not
include the acts or omissions of Sub -Contractors.
39. Field Directives
The City's Project Manager or AIE may at times issue Field Directives to the Contractor
based on visits to the Project site. Such Field Directives shall be issued in writing and
the Contractor shall be required to comply with such directive. Where the Contractor
believes that the directive is outside the scope of the Work, the Contractor shall, within
48 hours, notify the A/E and the City's Project Manager that the Field Directive is outside
the scope of the Work. At that time the Field Directive may be rescinded or the
Contractor may be required to submit a request for a Change Order proposal. Where
the Contractor is notified of the City's position that the Field Directive is within the scope
and the Contractor disagrees, the Contractor shall notify the AIE and the City's Project
Manager that the Contractor reserves the right to make a claim for the time and monies
based on the Field Directive. At no time shall the Contractor refuse to comply with the
directive. Failure to comply with the directive may result in a determination that the
Contractor is in default of the Agreement.
40. Change Orders
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 contract price, or use of the Contingency shall be
authorized only by Change Orders approved in advance and issued in accordance with
the provisions of the City.
NI 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
Agreement by $50,000 or more shall be approved in advance by the City Commission.
All Change Orders increasing the value of the Agreement, 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.
41. Value of Change Order Work
The value of any Work to be covered by a Change Order, or for any claim for an
increase or decrease in the Agreement, or use of the Contingency shall be determined in
one of the following ways:
• 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.
• By mutual acceptance of a lump sum which Contractor and City
acknowledge contains a component for overhead and profit.
42. Inspection of Work
AIE and City shall at all times have access to the Work during normal work hours.
Inspectors shall have no authority to permit deviations from, nor to relax any of the
provisions of the Contract Documents nor to delay the Work by failure to inspect the
materials and Work with reasonable promptness without the written permission or
instruction of A/E.
Miami Watersports Complex Page 17
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 Contractor to any inspector, directly or
indirectly, is strictly prohibited, and any such act on the part of Contractor will constitute
a breach of this Agreement.
43. Submittals
All submittals for the Work shall be done so to the A/E.
City shall not be liable for any materials, fabrication of products or Work commenced that
requires submittals until the A/E has returned approved submittals to the Contractor.
A/E shall make every effort to review submittals within ten (10) 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 shop drawings to the Contractor for its use and distribution.
Approval of any submittal shall not relieve the Contractor of any responsibility for any
deviations from the requirements of the Contract Documents unless the Contractor has
given written notice to the A/E of the specific deviations and the A/E has issued written
approval of such deviations.
Contractor shall be responsible for the distribution of all shop drawings, copies of
product data and samples, which bear the A/Es 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.
During the progress of the Work, the Contractor shall submit copies of all reports,
permits and inspections required by governing authorities, or necessary for the Project.
44. Substitutions
Contractor shall submit all requests for substitutions to the A/E for review and approval.
All such requests shall include sufficient documentation to support such request. NE
may request additional information as deemed necessary to properly review such
requests.
45. Shop Drawings
Contractor 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, and details of the item and evidence of its
compliance or noncompliance with the Contract Documents.
If the Shop Drawings show or indicate departures from the Contract Documents'
requirements, Contractor shall make specific mention thereof in its letter of transmittal.
Failure to point out such departures shall not relieve Contractor from its responsibility to
comply with the Contract Documents.
A/E shall review and approve Shop Drawings within ten (10) calendar days from the date
received, unless said Shop Drawings are rejected by A/E for material reasons. AJE's
approval of Shop Drawings will be general and shall not relieve Contractor 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
Miami Watersports Complex Page 18
AIE. Approval shall not relieve Contractor from responsibility for errors or omissions of
any sort on the Shop Drawings.
No approval will be given to partial submittals of Shop Drawings for items which
interconnect and/or are interdependent where necessary to properly evaluate the
design. It is Contractor'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.
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.
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.
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 Contractor.
Calculations, when required, shall be submitted in a neat clear and easy format to follow.
Contractor shall keep one set of Shop Drawings marked with AIE's approval at the job
site at all times.
46. Product Data
Contractor shall submit a copy of product data. Copies must be marked to identify
applicable products, models, options and other data. Contractor shall supplement
manufacturer's standard data to provide information unique to the Construction Work,
Contractor 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.
47. As -Built Drawings
During the Construction Work, Contractor shall maintain records of all deviations from
the Drawings and Specifications as approved by the A/E and prepare As -Built Record
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 Contractor 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.
Legibly mark to record actual construction:. On -site structures and site work as follows:
• Depths of various elements of foundation in relation to finish first floor
datum.
Miami Watersports Complex Page 19
• 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.
• 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.
• Field changes in dimensions and details.
• Changes made by A/E's written instructions or by Change Order.
• Details not on original Contract Drawings.
• Equipment, conduit, electrical panel locations.
• AIE schedule changes according to Contractor's records and shop
drawings.
Specifications and Addenda: Legibly mark each section to record:
• Manufacturer, trade name, catalog number and Supplier of each product
and item of equipment actually installed.
• Approved Shop Drawings: Provide record copies for each process,
equipment, piping, electrical system and instrumentation system.
48. Requests For Information (RFfl
The Contractor shall submit in writing a Request for Information (RFI) to the A/E, with a
copy to the City's Project Manager, where the Contractor 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
49. City's Right To Terminate
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
Contractor 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 Contractor
shall be paid for Work performed and accepted by the City, 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 Contractor until all documentation is delivered to the City.
50. Termination for Default
If Contractor fails to comply with any term or condition of this Agreement, or fails to
perform any of its obligations hereunder, then Contractor shall be in default. Upon the
occurrence of a default which is not cured within the Cure Period, in addition to all
remedies available to it by law, the City may immediately, upon written notice to
Contractor, terminate this Agreement whereupon all payments, advances, or other
compensation paid by the City to Contractor while Contractor 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
Miami Watersports Complex Page 20
are resolved. Contractor understands and agrees that termination of this Agreement
under this Article shall not release Contractor from any obligation accruing prior to the
effective date of termination.
In the event of termination due to default, in addition to the foregoing Contractor 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 Contractor until such time as the actions giving
rise to default have been cured.
A finding of default and subsequent termination for cause may include, without limitation,
any of the following:
• Contractor fails to obtain the insurance or bonding herein required.
• Contractor 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.
• Contractor 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.
The City shall provide Written Notice to Cure to Contractor as to a finding of default, and
Contractor 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 Contractor to cure such default in the specified timeframe.
51. Contractor's Right To Terminate
The Contractor shall have the right to terminate this Agreement, in writing, following
breach by the City, if breach of contract has not been corrected within thirty (30) days
from the date of the City's receipt of a written notice from Contractor specifying the City's
breach of its duties under this Agreement.
52. Materiality And Waiver Of Breach
City and Contractor agree that each requirement, duty, and obligation set forth in these
Contract Documents is substantial and important to the formation of this Agreement.
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.
53. Acceptance and Final Payment
Upon receipt of written notice from Contractor 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 City's 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 City's
Project Manager, 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.
Miami Watersports Complex Page 21
Before issuance of the Final Certificate for Payment, Contractor shall deliver to City's
Project Manager 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 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. Contractor shall deliver the written Contractor's and all Manufacturer's
warranties prior to issuance of the Final Certificate for Payment.
if, after the Construction Work has been substantially completed, full completion thereof
is materially delayed through no fault of Contractor, and AIE so certifies, City shall, upon
certificate of City's Project Manager, and without terminating the Agreement, make
payment of the balance due for that portion of the Work fully completed and accepted.
Such payment shall be made under the terms and conditions governing final payment,
except that it shall not constitute a waiver of claims.
The acceptance of final payment shall constitute a waiver of all claims by Contractor,
except those previously made in strict accordance with the provisions of the Agreement
and identified by Contractor as unsettled at the time of the application for final payment.
54. Resolution Of Contract Disputes
Contractor 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 Contractor, the
Director shall render a decision within fourteen (14) calendar days. Where a mutually
satisfactory resolution cannot be reached the Contractor may submit the dispute to the
City Manager or his/her designee for resolution. Where a mutual resolution cannot be
reached between the Contractor and the City Manager or designee, the Contractor, prior
to being entitled to seek judicial relief shall comply with Article 53 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.
Contractor shall not be entitled to seek judicial relief unless:
• it has first received City Manager's written decision, approved by the City
Commission if applicable, or
• 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
• mediation of the dispute, as stipulated in Article 47, has not resulted in a
mutual resolution; or
• City has waived compliance with the procedure set forth in this Article by
written instrument(s) signed by the City Manager.
55. Mediation - Waiver Of Jury Trial
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
Miami Watersports Complex
Page 22
50/50 basis. The Contractor agrees to include such similar contract provisions with all
Sub -Contractors retained for the Work, thereby providing for non -binding mediation as
the primary mechanism for dispute resolution.
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.
56. Substantial Completion. Punch List & Final Completion
The Construction Work shall be substantially complete when the City's 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,
City's Project Manager and the Contractor shall sign the Substantial Completion
Inspection Form. The signing of this form shall not relieve the Contractor from its
obligation to complete the Project.
When the Contractor believes that the Construction Work is substantially complete, the
Contractor shall request in writing that the AIE inspect the Construction Work to
determine if Substantial Completion has been achieved. No request for Substantial
Completion inspection is to be submitted until the Contractor has obtained a
Certificate(s) of Occupancy, Certificate of Completion or Completion or a Temporary
Certificate of Occupancy. The A/E shall schedule the date and time for any inspection
and notify the Contractor and any other parties deemed necessary. During this
inspection, the Project Substantial Completion Inspection Form, (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 the AIE, the City's Project Manager, and the Contractor confirming that the
Punch List contains the item(s) necessary to complete the Construction Work. The
failure or refusal of the Contractor to sign the Project Substantial Completion Inspection
Form or Punch List shall not relieve the Contractor from complying with the findings of
the Project Substantial Completion Inspection and completing the Project to the
satisfaction of the City
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 AIE determines, on the appropriate form that the Work is not
substantially complete, the A/E shall provide a list of all open items necessary to achieve
Substantial Completion. Upon completion of such Construction Work, the Contractor
shall request another Substantial Completion inspection.
The A/E, the City's Project Manager, and the Contractor shall agree on the time
reasonably required to complete all remaining Work included in the Punch List.
Upon the receipt of all documentation, resolution of any outstanding issues and issuance
of final payment, the A/E shall notify the Contractor in writing of the closeout of the
Project.
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
Miami Watersports Complex Page 23
such list does not alter the responsibility of Contractor 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.
57. 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
Contractor's duties to indemnify the City under this Agreement where Contractor shall
pay the City's reasonable attorney's fees.
58. Independent Contractor
Contractor is an independent contractor under this Agreement. Services provided by
Contractor pursuant to this Agreement shall be subject to the supervision of Contractor.
In providing such services, neither Contractor nor its agents shall act as officers,
employees, or agents of the City. Contractor further understands that Florida Workers'
Compensation benefits available to employees of the City are not available to
Contractor, and agrees to provide workers' compensation insurance for any employee,
or entity working for the Contractor rendering services to the City under this Agreement.
This Agreement shall not constitute or make the parties a partnership or joint venture.
59. Successors And Assigns
The performance of this Agreement shall not be transferred pledged, sold, delegated or
assigned, in whole or in part, by the Contractor without the written consent of the City. It
is understood that a sale of the majority of the stock or partnership shares of the
Contractor, 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.
The Contractor'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 Contractor 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.
60. Third Party Beneficiaries
Neither Contractor 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.
61. 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
Miami Watersports Complex Page 24
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
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 Contractor.
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 Contractor and supersedes all 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
Miami Watersports Complex Page 25