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HomeMy WebLinkAboutAgreementConstruction 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 2"d Avenue, 8th Floor Miami, Florida 33130 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 1 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 13 18 Supplemental Instructions 13 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 18 28 Manufacturer's Warranty 17 29 Changes in the Work or Terms of Contract Documents 18 30 No Damage for Delay 19 31 OSHA Compliance 19 32 Safety Precautions 19 33 Accidents 20 34 Priority of Provisions 20 35 Payments 21 36 Notices 21 37 Indemnification 22 Little Haiti Park Cultural Center, B-30295 Page 1 Section No. Article No. Title Page No. 38 Insurance 22 39 Modification To Coverage 27 40 City's Right to Terminate 27 41 Termination for Default 27 42 Termination by CM 28 43 Termination Due to Undisclosed Lobbyist or Agent 28 44 Materiality and Waiver of Breach 29 45 Force Majeure 29 46 Resolution of Contract Disputes 29 47 Mediation -Waiver of Jury Trial 30 48 Applicable Law and Venue of Litigation 30 49 Permits, Licenses and Impact Fees 30 50 Compliance with Laws 30 51 Public Entity Crimes 30 52 Audit Rights 31 53 Nondiscrirnination, Equal Opportunity, and Americans with Disabilities Act 31 54 Independent Contractor 32 55 Successors and Assigns 32 56 Third Party Beneficiaries 33 57 Contingency Clause 33 58 Performance Evaluation 32 59 Joint Preparation -Interpretation 32 60 Confidentiality 33 61 Amendments 33 62 Severability 33 63 Entire Agreement 34 64 Subcontract & Community Workforce Measures 34 2 Pre -Construction Phase 1 Contract Time 35 2 Fixed Construction Budget 35 3 Pre -Construction Phase Services 35 4 Pre -Construction Phase Additional Service 37 5 Compensation for Pre -Construction Phase Services 38 6 Pre -Construction Phase Performance and Delegation 38 7 Pre -Construction Fee Application for Payment Submittal 39 8 Pre -Construction Phase Meetings 39 9 Guaranteed Maximum Price 39 Little Haiti Park Cultural Center, B-30295 Page 2 Section No. Article No. Title Page No. 10 Market Analysis & Stimulation of Bidder Interest 41 11 Bid and Award of Subcontracts 41 12 Responsibility 42 13 Project Schedule 42 14 Permits and Fees 43 3 Construction Phase 1 Construction Phase Services 44 2 Construction Phase Time for Completion 44 3 Liquidated Damages 44 4 Hours of Operation 45 5 CM's Su.ervision 45 6 Construction Work Meetings 45 7 Progress Pa ments 46 8 Accestance and Final Payment 46 9 Subcontracts 47 10 Interfacing with Sub -Contractors 48 11 Performance and Payment Bonds 48 12 Qualification of Surety 49 13 Warrant of Construction 50 14 Methods of Performing the Work 50 15 CM's Use of Project Site 50 16 Work Staging and Phasing 51 17 Existing Utilities 51 18 Differing Site Conditions 52 19 Project Site Facilities 52 20 Securit 53 21 Worker's Identification 53 22 Royalties and Patents 53 23 Labor and Materials 53 24 Substitutions 53 25 NPDES Requirements 54 26 Construction Signa•e 54 27 Inspection of Work 55 28 Mounting Hei.hts 55 29 Submittals 55 30 Sho• Drawings 56 31 Product Data 58 32 Samples 58 33 Record Set 58 34 As -Built Drawings 58 35 Requests For Information (RFI) 59 36 Field Directives 59 Little Haiti Park Cultural Center, B-30295 Page 3 Section No. Article No. Title Page No. 37 Work Logs 60 38 Change Orders 60 39 Value of Change Order Work 60 40 Substantial Completion, Punch List & Final Completion 63 41 Training 64 42 Excusable Delay 65 43 Notification and Claim for Change of Construction Work Time for Completion of GMP 65 44 Hurricane Precautions 66 45 Stop Work Order 65 46 Cleaning Up; City's Right to Clean Up 67 47 Removal of Equipment 67 A Attachment A 68 66 Little Haiti Park Cultural Center, B-30295 Page 4 THIS AGREEMENT, made and entered into this 3r`.r day of , 2006 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. 05-01275 adopted November 17, 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. Overview This Agreement covers the services of a CM@Risk firm for the construction the Project, which consists of an approximately 31,000 square foot Community Center (Center) at Little Haiti Park (the "Project"). . 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: 3.1.1 Section 1 — General Terms and Conditions: This Section applies to both the Pre -Construction and Construction Phase Services, if awarded, Little Haiti Park Cultural Center, B-30295 Page 5 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 Manager 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 construction contract documents unbuiidable 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 NE 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 the documents described in Section 1, Article 6 of this Agreement. 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 execution of the GMP amendment the Construction Manager shall serve, from that point forward as the General Contractor under this Agreement. Construction Manager is referred to herein as CM. Little Haiti Park Cultural Center, B-30295 Page 6 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 construction plans and specification prepared by Zyscovich, Inc. for this Project under a separate Agreement 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, 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. 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 Little Haiti Park Cultural Center, B-30295 Page 7 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 construction of the Project and 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. The City reserves the right to request the submission of the GMP proposal to reflect one or more stages of construction. 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 City's Project Manager acknowledging that all conditions precedent have been met 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. Little Haiti Park Cultural Center, B-30295 Page 8 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 NE 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 materialman or laborer that has a direct contract with the CM to perform or supply a portion of the Construction Work. Submittals mean 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 Little Haiti Park Cultural Center, B-30295 Page 9 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 as provided in Section 3, Article 3. 5.5 In agreeing to bear the risk of delays for completion of the Work except for extensions approved in accordance with Article 42, Excusable Delays, the CM understands that, except and only to the extent provided otherwise in the Agreement, the occurrence of events of 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. Little Haiti Park Cultural Center, B-30295 Page 10 7. Site Investigation and Representation 7.1 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 from 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 AIE to provide those additional services which must necessarily Little Haiti Park Cultural Center, 13-30295 Page 11 be provided by the NE 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, A/E, 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 A/E's 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 A/E, 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 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 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 Little Haiti Park Cultural Center, B-30295 Page 12 the scope and the CM disagrees, the CM shall notify the A/E and the City's 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. 17. Supplementary Drawings 17.1. When, in the opinion of NE, 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 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. 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. All disputes shall be resolved in accordance with Article 46, Resolution of Contract Disputes and Article 47 Mediation -Waiver of Jury Trial. 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 City's Project Manager and/or A/E 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 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 NE 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. All instructions to the CM shall be issued through the Director, Project Manager or the A/E. Little Haiti Park Cultural Center, B-30295 Page 13 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 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. 21.5. 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 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 NE 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 A/E 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 unsatisfactory personnel from work assigned by CITY. Such decision shall not be construed as directing the Contractor to terminate any employee's employment with the Contractor. 23. Defective Work 23.1. A/E 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. Little Haiti Park Cultural Center, B-30295 Page 14 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. If, 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 NE 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 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. Little Haiti Park Cultural Center, B-30295 Page 15 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 mariner 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. Little Haiti Park Cultural Center, B-30295 Page 16 26.6 Handling 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 The Contractor may be paid for materials or equipment purchased and stored at the Project Site. Payment shall be conditioned upon submission by the CM of proof of purchase and an executed Material Purchased/Stored On -Premises form to establish the City's title to such materials or equipment, or otherwise protect the City's interest.. Equipment and materials shall be stored prior to installation as recommended by the manufacturer. The City shall inspect, check, or audit, the materials stored on site prior to payment. It is expressly understood and agreed that these actions are solely for the purpose of payment for the materials or equipment. The City shall only pay for the cost of the materials and shall not pay any indirect cost, profit or other direct costs including the installation of the materials or equipment. All materials shall be stored in accordance with the manufacturer's instructions. It is further understood that payment made on account of said materials not incorporated in the Work does not relieve the CM from the responsibility for proper insurance coverage and transportation to the site, or for replacing said materials that may be subsequently damaged, lost, or rejected for non- compliance with the Contract prior to or during installation, or prior to final acceptance by 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 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 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. Little Haiti Park Cultural Center, B-30295 Page 17 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 NE 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 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 CM shall provide to City all manufacturers' warranties. AM 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 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. 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. Little Haiti Park Cultural Center, B-30295 Page 18 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. 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 Toss 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 City's Project Manager must be immediately notified of each and every occurrence. The CM shall comply with all Little Haiti Park Cultural Center, B-30295 Page 19 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 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 City's Project Manager. 33. Accidents 33.1 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. 33.2 In addition, the CM must report immediately to the A/E and City's 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 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 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: Little Haiti Park Cultural Center, B-30295 Page 20 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 incidental detail of construction or construction system 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. 35. Payments Payment of an approved Application for Payment approved by the A/E 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 Little Haiti Park Cultural Center, B-30295 Page 21 Department of Capital improvements (CIP) 444 S.W. 2nd Ave., - 8th FI Miami, Florida 33130 With a copy to: City Attorney City of Miami 444 S.W. 2nd Ave., Suite 945 Miami, FI. 33130-1910 FOR CM: Mike Geary Executive Vice President Pirtle Construction Company 4740 Davie Road Davie, Florida 33314 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 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, 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 Little Haiti Park Cultural Center, B-30295 Page 22 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 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, 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 Miami shall be named as an additional insured. 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. 38.3.3 Business Automobile Liability Coverage shall have minimum limits of $1,000,000 combined single limit for bodily injury and property damage for any auto including hired, borrowed or non -owned auto for any one accident. The City of Miami shall be named as an additional insured. CM shall ensure that all Sub -Consultants comply with these same insurance requirements. Little Haiti Park Cultural Center, 8-30295 Page 23 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 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: 38.4.2.1. Premises and/or Operations. 38.4.2.2. Independent Contractor 38.4.2.3. 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. 38.3.2.4. Explosion, Collapse and Underground Coverages. 38.3.2.5. Incidental Medical Malpractice. 38.3.2.6. 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. 38.3.2.7. 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. 38.3.2.8. Employee included as insured. 38.3.2.9. Contractual Liability. Little Haiti Park Cultural Center, B-30295 Page 24 38.3.2.10. 38.3.2.11. 38.3.2.12. 38.3.2.14. 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. 38.3.2.15 City of Miami as Additional Insured 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. 36.3.3.2. 36.3.3.3. 36.3.3.4 36.3.3.5 Owned Vehicles. Hired, Borrowed, and Non -Owned Vehicles. Employers' Non -Ownership. Employees included as insured City of Miami as Additional Insured 38.3.4. Umbrella Policy 37.3.4.1. Bodily injury and property damage liability with limits of Three Million Dollars ($3,000,000) each occurrence and an aggregate limit of Three Million Dollars ($3,000,000). Excess coverage over the policies as follows: • Commercial General Liability • Business Automobile Liability 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. Little Haiti Park Cultural Center, B-30295 Page 25 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 38.3.7 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 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 City named as additional insured. A. Limit- at Site $ 10,000,000 Adjusted to reflect GMP amount B. Coverage Extensions: 1. Materials, supplies and similar property owned by others for which you are responsible. 2. Full coverage up to policy limits for equipment breakdown. 3. Temporary storage/transit coverage. 4. Full coverage up to policy limits for site preparation, re - excavation, re -preparation and re -grade in the event of a loss. 5. Fences, scaffolding, construction forms coverage and signs 6. Valuable papers coverage for blueprints, site plans and similar documents. 7. Trees, shrubs, sod, plants while at premises. 8. Flood, including inundation, rain, seepage and water damage. 9. 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 Little Haiti Park Cultural Center, B-30295 Page 26 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. 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. City'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 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 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 Little Haiti Park Cultural Center, B-30295 Page 27 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. 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, ernployees, or other persons performing any portion of the Work for the CM. 42.1.1 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, Little Haiti Park Cultural Center, 6-30295 Page 28 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. 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 Majeure 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 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 Little Haiti Park Cultural Center, B-30295 Page 29 (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. 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 Little Haiti Park Cultural Center, B-30295 Page 30 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 (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 Little Haiti Park Cultural Center, B-30295 Page 31 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 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. Successors And Assigns 55.1 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. 55.2 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. 55.3 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. 56. 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 Little Haiti Park Cultural Center, 8-30295 Page 32 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. 57. 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. 58. 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. 59. 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. 60. 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. 61. 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. 62. 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 Little Haiti Park Cultural Center, 8-30295 Page 33 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. 63. 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 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 of any provision of this Agreement. 64. Subcontract Measures & Community Workforce Measures A portion of this Project will be funded through Miami -Dade County's (County) General Obligation Bond program. CM shall be responsible for compliance with the County's requirements for compliance with any established Community Small Business Enterprise (CSBE) and Community Workforce Program (CWP) requirements. Little Haiti Park Cultural Center, B-30295 Page 34 Section 2 - Pre -Construction Phase 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 compensable 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 NE, which requires that the CM complete all Pre -Construction Work and submit the GMP Proposal no later than thirty (30) 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 3. Pre -Construction Phase Services 3.1 Design Review and Warranties 3.1.1 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. 3.1.2 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 Little !Haiti Park Cultural Center, B-30295 Page 35 deemed to have warranted to City, without assuming any architectural or 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. 3.2 Value Engineering & Constructability 3.2.1 The CM shall coordinate and cooperate with the NE in the Value Engineering and Constructability reviews during each phase of the Work. 3.2.2 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 NE in the form of a written report in format as noted herein upon the Construction Documents Phases. 3.2.3 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 A/E 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 A/E. If the City and the A/E agree with such Memorandum of Changes, the CM shall be so notified and the A/E shall incorporate the changes described in the Memorandum of Changes into the Design Documents. A/E retains sole responsibility and liability to any and all changes made as a result of the Value Engineering & Constructability reviews. 3.2.4 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. 3.2.5 CM shall provide information as to the availability of materials and what equipment and systems have Tong lead times, together with the anticipated lead times. 3.2.6 The A/E 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 Little Haiti Park Cultural Center, B-30295 Page 36 documents will be coordinated and reconciled, scheduled during any phase of the Work. In the event the A/E and the City accept CM's recommendations from Value Engineering and Constructability studies, the NE shall implement same, including providing revised drawings and specifications or other documents. 3.3 Preliminary Construction Estimates 3.3.1 The CM shall provide the following to the City and the NE: 3.3.1.1 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. 3.3.1.2 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. 3.3.1.3 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. 3.3.1.4 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. 4. 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. Little Haiti Park Cultural Center, B-30295 Page 37 5. Compensation for Preconstruction Phase Services 5.1 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. 5.2 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. 5.3 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. 5.4 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. 5.5 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 GNP proposal. 5.6 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 for CM'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: 6. 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. Little Haiti Park Cultural Center, B-30295 Page 38 7 Pre -Construction Fee Application for Payment Submittal 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 NE 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 NE and CM shall review the Projects 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 thirty (30) 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 A/E, 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 Little Haiti Park Cultural Center, 8-30295 Page 39 • Surveying & Layout • Jobsite Security • 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 A/E 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 A/E, 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 Little Haiti Park Cultural Center, B-30295 Page 40 within the Schedule of Values attached thereto. Use of the Contingency shall be at the sole discretion of the City. 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 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 list 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 Little Haiti Park Cultural Center, B-30295 Page 41 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 award all subcontracts in accordance with said plan. Said plan shall include details on how the CM shall encourage the participation of M/WBE 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 or multi -tier subcontractor's performance, which shall be the sole responsibility of the CM. 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 A/E and the City, that coordinates and integrates activities on the Project, including the CM's services, the A/E 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 Little Haiti Park Cultural Center, B-30295 Page 42 Memorandum of Changes. Each update will against the initial baseline projection. 13.3 CM will provide a critical path method (CPM Schedule) construction schedule within fifteen (15) days of the acceptance by the City of the GMP Proposal. Upon acceptance of the GMP the CPM Schedule will be accepted as the baseline construction schedule. CPM Schedules shall be prepared using Primavera software and all CPM Schedules will be provided electronically to the City unless CM is otherwise directed in writing by the A/E or City's Project Manager. 13.4 CM shall update the schedule on an ongoing basis to reflect any additions of deletions to the Work as well as the impact of any delays. CM shall at a minimum submit an updated schedule against the baseline on a monthly basis and at time of submission of a payment application. Failure to submit the required schedules will result in rejection of the payment application. 14. Permits and Fees 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. Little Haiti Park Cultural Center, B-30295 Page 43 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 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 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 Cultural Center, B-30295 Page 44 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. AU 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 NE. 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, CM 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 resolution. CM shall be responsible Little Haiti Park Cultural Center, B-30295 Page 45 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 A/E for approval. 7.2 Ten percent (10%0) 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 NE 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 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 Cultural Center, B-30295 Page 46 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 NE so certifies, City shall, upon certificate of A/E, 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 City's 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 that 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 workman's' 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 the Sub -Contractor who be bound by this Article. Little Haiti Park Cultural Center, B-30295 Page 47 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 NE 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. 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 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: Little Haiti Park Cultural Center, B-30295 Page 48 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 I 1,000,001 to 2,000,000 B+ Class ....II 2,000,001 to 5,000,000 A Class 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 Little Haiti Park Cultural Center, 8-30295 Page 49 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 City's 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. 15. CM's Use Of Project Site 15.1 Limitations may be placed on the CM's use of the Project Site and such limitations will be identified by the City. In addition to such limitations, the City Little Haiti Park Cultural Center, B-30295 Page 50 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 City's 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 A/E. 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 City's 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 A/E for their accuracy or completeness The CM must coordinate all utility locations through "Sunshine State One Call of Florida, Inc." Little Haiti Park Cultural Center, 6-30295 Page 51 18. Differing 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 NE, 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, A/E 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 A/E 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, materialmen'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 public. The location of the temporary facilities shall be subject to the approval of the A/E or City's Project Manager LittleHaiti Park Cultural Center, B-30295 Page 52 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 NE 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 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 Little Haiti Park Cultural Center, 8-30295 Page 53 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 A/E 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 NE, 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 A/E shall be the same as those provided herein for substitute materials and equipment. 24.4 The NE shall be allowed a reasonable time within which to evaluate each proposed substitute. The A/E 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 A/E's prior written acceptance which shall be evidenced by either a Change Order or an approved submittal. The City and the NE 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 shall provide drawings for the signage, which shall be subject to approval by the City's Project Manager. 26.3 Th.e City shall approve the locations for all signage. Little Haiti Park Cultural Center, B-30295 Page 54 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, A/E'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 AIE, 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 NE. 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 A/E 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 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: Little Haiti Park Cultural Center, 6-30295 Page 55 • 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 A/E'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 A/E 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 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 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. 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 City's 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 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. Little Haiti Park Cultural Center, B-30295 Page 56 30.2. Within three {30) calendar days after City's acceptance of the GMP Proposal, CM shall submit to A/E a complete list of items for which Shop Drawings are to be submitted and shall identify the critical items. Approval of this list by A/E 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. A/E shall review and approve Shop Drawings within fourteen (14) calendar days from the date received, unless said Shop Drawings are rejected by NE 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 and/or 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 A/E 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. 30.10 Where professional calculations and/or certification of performance criteria of materials, systems, and or equipment are required, the NE is entitled to rely upon the accuracy and completeness of such calculations and certifications Little Haiti Park Cultural Center, 6-30295 Page 57 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 NE 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 CM to check the As -built Drawings for errors and omissions prior to submittal to the Little Haiti Park Cultural Center, 8-30295 Page 58 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 City's 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 City's 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 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 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 Field Directive is within the scope and the CM disagrees, the CM shall notify the A/E and the City's Project Manager that the CM reserves the right to make a claim for Little Haiti Park Cultural Center, 8-30295 Page 59 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 A/E, 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 A/E and City's 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 39.1. The value of any Work to be covered by aChange 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: Little Haiti Park Cultural Center, B-302'95 Page 60 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, all in accordance with the terms of said agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the Construction Work. 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 Little Haiti Park Cultural Center, B-30295 Page 61 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 ernployees 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. 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 Little Haiti Park Cultural Center, B-30295 Page 62 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 A/E 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 City's 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 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 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 A/E 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, (Attachment 13), 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 City's 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 Little Haiti Park Cultural Center, B-30295 Page 63 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 A/E 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 A/E 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, the City's Project Manager, and the CM shall agree 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. 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. Little Haiti Park Cultural Center, B-30295 Page 64 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. 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. 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 payment 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 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. 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 all 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 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 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. Little Haiti Park Cultural Center, 8-30295 Page 65 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 Preparedness 44.1. At the time of GMP submission Cm shall submit to the City a Hurricane Preparedness Plan (Plan). The Plan shall include the measure to be taken by the CM in case of a hurricane or tropical storm. 44.2 During such periods of time as are designated by the United States Weather Bureau as being a tropical storm/hurricane warning or alert, or at such other time deemed necessary by the Project Manager the CM, at no cost beyond the GMP to the City, shall implement the Plan 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. Failure of the City to direct the CM to implement the Plan shall not relieve the CM for sole responsibility for implementation of the Plan. 44.3. Any damage to materials and equipment resulting from CM's failure to implement the plan shall be removed and replaced at no cost to the City. 44,4. Additional work relating to hurricane warning or alert at the Project site will be addressed by a Change Order. 44.5. 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, and City's Right to Terminate. 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 Cfvl's defective or incorrect Construction Work, unsafe Construction Work conditions caused by the CM or 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. Little Haiti Park Cultural Center, B-30295 Page 66 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 th.e 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. 48. Warranty Phase CM shall conduct, in conjunction with the City, a sixth ,6911 month and eleventh (11th) month warranty inspection. The City shall be responsible for setting the dates for said inspections. CM shall provide a warranty summary report to the City at the end of each inspection period. At a minimum the report shall include: 1. Description of each warranty item during the period 2. Date item reported to CM for correction 3. Date item corrected. If more than one trip is required, document each instance 4. Description of action taken to cure warranty item 5. Written approval by City accepting warranty work 6. Any other pertinent information Little Haiti Park Cultural Center, 8-30295 Page 67 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. THE CITY OF MIAMI, FLORIDA THE CITY OF MIAMI, FLORIDA, a municipal Corporation of the State of Florida By: Joe Arr ity Manager Fernandez, City Att• nej -'% ATTEST: APPROVED AS TO INSU REQUIREMENTS: / APPROVED AS TO FORM AND CORRECTNESS FOR THE USE AND RELIANCE OF THE CITY OF MIAMI, FLORIDA, ONLY --Priscilla A. Tho pson, City Clerk ATTEST: fr 14 .D nia Carrillo, Risk Management Administrator Pirtle Constructioh Company Pirtle Construction Company / By: . �4/7.E orporate or Company Secretary Michael S. Geary, Executive Authorized Officer (Affix Corporate/Company Seal) Date: December 14, 2005 Little Haiti Park Cultural Center, 8-30295 ATTACHMENT A POLICY AND PROCEDURES MANUAL CM shall provide the City, and the A/E with copies of a Policy and Procedure Manual (total number of copies not to exceed three (3) developed and updated in accordance with the following requirements: A. Upon execution of the Agreement, CM shall develop a draft of the comprehensive Policy and Procedure Manual describing the services to be provided by CM per the Agreement. This shall provide a plan for the control, direction, coordination and evaluation of the Work performed throughout the Project; the Project organization including identification of key personnel, responsibilities of CM, including Sub -Consultants and Sub -Contractors, City and NE; Work flow diagrams; and strategy for bidding and subcontracting the Work. City shall have the right to review the Policy and Procedure Manual and to recommend revisions to its content and format. The Policy and Procedure Manual may be updated as necessary throughout the Design and Construction Phases, but substantive changes will not be made without City's prior written concurrence. Three (3) copies of the Policy and Procedure Manual and any updates shall be submitted to the City and A/E. In developing the Policy and Procedure Manual, CM shall coordinate and consult with the City and the A/E. The initial manual shall be submitted to City for concurrence. B. Contents of Policy and Procedure Manual: The Policy and Procedure Manual shall describe in detail the procedures for executing the Work and the organizations participating. The Policy and Procedure Manual shall include, as a minimum, the following sections: • Project Definition: The known characteristics of the Project shall be described in general terms which will provide the participants a basic understanding of the Project and subprojects. • Project Goals: The schedule, budget, physical, technical and other objectives for the Project shall be defined. • Project Strategy: A narrative description of the Project delivery methods which shall be utilized to accomplish the Project goals. • Project Work Plan: A matrix display of the Work to be performed by the CM, as well as the services and items to be furnished by the NE and City during each phase of the Project, • Project Organization: A summary organization chart showing the inter- relationships between the City, CM and A/E, and other supporting organizations and permitting review agencies. Detailed charts, one each for Construction Contractor and Design Professional, showing organizational elements participating in the Project shall be included. • Responsibility Performance Chart A detailed matrix showing the specific responsibilities and interrelationships of the City, A/E, and CM. The Responsibility Performance Chart shall indicate major responsibility, and minor responsibility, for each specific task required to deliver the Project. CM shall develop a similar chart for the .personnel within its own organization who Little Haiti Park Cultural Center, B-30295 Page 68 are assigned to the Project, as well as for A/E's and City's personnel assigned to the Project from data supplied by them. • Flow Diagrams: These charts shall display the flow of information and the decision process for the review and approval of shop drawings and submittals, progress, and change orders. • Written Procedure: The CM will provide written procedures for communications and coordination required between the CM, A/E and the City throughout the Project. Procedures shall cover such items as correspondence, minutes, reports, inspections, team meetings, technical reviews, design reviews, and other necessary communications. • Emergency Contact List: A complete list of the names, company affiliation and emergency contact phone numbers (both day and night) for all key Project personnel from City, the CM and the A/E, as well as from all subcontractors, sub-A/Es and suppliers of any of them. This list shall be continuously updated by CM throughout the Project duration, with CM distributing a copy of all updates to the City and A/E. 3. This Policy and Procedure Manual shall be completed and submitted to the A/E and the City for their review and concurrence as a condition precedent to payment by City to CM for any services provided in the Construction Phase under this Agreement 4. This Policy and Procedure Manual is merely an amplification and clarification of this Agreement. Any conflicts between the Policy and Procedure Manual and this Agreement shall be governed by the latter. CM shall provide the following Project Management Information System ("PMIS"), in a format acceptable to the City, which system shall be in place for the Construction Phase services. 1. General: • Commencing immediately after the Notice to Proceed is issued to CM by City, CM shall implement and shall utilize throughout the life of this Agreement all subsystems of the PMIS. • The reports, documents, and data to be provided shall represent an accurate assessment of the current status of the Project and of the Work remaining to be accomplished and it shall provide a sound basis for identifying variances and problems and for making management decisions. • If requested by City, CM shall conduct a comprehensive workshop for participants designated by City and additional seminars as required by City to provide instruction with respect to the PMIS. This workshop and the seminars shall facilitate the City's representatives' use and understanding of the PMIS. • The PMIS shall be described in terms of the following major subsystems: • Narrative Reporting; • Schedule Control; • Cost Control and Estimating; • Project Accounting; • Accounting and Payment; and • Action Reports. • The above reports shall be submitted at least on a monthly basis and shall accompany each monthly Application for Payment. 2. Narrative Reporting Subsystem. • CM shall prepare written reports as described hereunder. All reports shall be in 8 1/2" x 11" format. Little Haiti Park Cultural Center, 8-30295 Page`69 • The Narrative Reporting Subsystem shall include the following reports: • Monthly Executive Summary which provides an overview of current issues and pending decisions, future developments and expected achievements, and any problems or delays, including code violations found by any permitting authority. ■ Monthly Cost Narrative describing the current construction cost estimate status of the Project. • A Monthly Scheduling Narrative summarizing the current status of the overall Master Project Schedule and an explanation of all variances from the plan. This report shall include an analysis of the various Project sub - schedules, a description of the critical path, and other analyses as necessary to compare planned performance with actual performance. • Monthly Accounting Narrative describing the current cost and payment status for the entire Project. This report shall relate current encumbrances and expenditures to the budget allocations. An explanation for all variances shall be provided. • A Monthly Construction Progress Report during the Construction Phase summarizing the Work of the various subcontractors. This report shall include information from the weekly job site meetings as applicable such as general conditions, long lead supplies, current deliveries, safety and labor relations, programs, permits, construction problems and recommendations, and plans for the succeeding month. ■ Daily Construction Diary during the Construction Phase describing events and conditions on the site. • The Reports outlined in above shall be bound with applicable computer schedule reports and submitted monthly during Design and Construction Phases and shall be current through the end of the preceding month. Copies shall be delivered to the City and NE. A bound copy of the complete diary shall be submitted to City at the conclusion of the Project. 3. Schedule Control Subsystem. • Master Project Schedule: Prior to the submittal of its first application for payment, CM shall submit to the City and NE for their review and approval a Master Project Schedule covering the planning and design approvals, construction, and City occupancy of the Project. This schedule shall conform to the format outlined below. This schedule shall serve as the framework for the subsequent development of all detailed schedules and shall be updated with each Application for Payment by CM throughout the Project. Within fifteen (15) calendar days of CM's submittal, the City and A/E shall review the schedule and provide CM a written list of corrections needed to accept the schedule. CM must make all corrections and resolve all comments within thirty (30) calendar days after its receipt of the City's and Design A/E's comments. If the schedule is not accepted within said thirty (30) calendar days, the City and A/E will withhold all payments due the CM until the schedule is accepted. The acceptance of the schedule by City and A/E in no way attests to the validity of the assumptions, logic constraints, dependency relationships, resource allocations, manpower and equipment, and any other aspect of the proposed schedule. CM is and shall remain solely responsible for the planning and execution of all Work in order to meet Project milestones or Contract completion dates. Little Haiti Park Cultural Center, B-30295 Page 7. • Construction Schedule: Upon acceptance of the GMP, CM shall prepare and submit to City and A/E, for their review and approval, a Construction Schedule. This schedule shall conform to the format outlined below. The approved Construction Schedule shall be attached and incorporated into the GMP Amendment. The Construction Schedule shall be integrated into the Master Project Schedule. • Following development and approval of the Construction Schedule, CM shall, at the completion of each pre -construction design phase and with each application for payment during the construction phase, or at such earlier intervals as circumstances may require, update and/or revise the Construction Schedule which shall be submitted to the City and the A/E in duplicate. No additional compensation will be due CM for making such updates. Failure of CM to update, revise, and submit the Construction Schedule as aforesaid shall be sufficient grounds for City to find CM in substantial default hereunder and that sufficient cause exists to terminate the Agreement or to withhold payment to CM until a schedule or schedule update acceptable to City is submitted. • CM shall prepare and incorporate into the schedule database, at the required intervals, the following schedules: • Sub -Contractor Construction Schedules (Subnetworks): Upon the award of each subcontract, CM shall jointly with the subcontractor, develop a schedule which is more detailed than the pre -bid schedule included in the bid packages, taking into account the Work schedule of the other subcontractors. The subcontractor's construction schedule shall include as many activities as necessary to make the schedule an effective tool for construction planning and for monitoring the performance of the subcontractor. The subcontractor's construction schedule also shall show pertinent activities for material purchase orders, manpower supply, shop drawing schedules and material delivery schedules. • Occupancy Schedule: CM shall jointly develop with A/E and City a detailed plan, inclusive of punch lists, final inspections, maintenance training and turn -over procedures, to be used for ensuring accomplishment of a smooth and phased transition from construction to City occupancy. The Occupancy Schedule shall be produced and updated monthly from its inception through final City occupancy and shall be integrated into the Master Project Schedule. • Schedule Format: The Master Project Schedule and the Construction Schedule shall be planned and recorded with a Critical Path Method .(CPM) schedule in the form of an activity -on -node diagram. All activity -on -node diagrams shall include the Activity Identification, Activity Description, and the type of relationship between activities, including any lead or lag time, as well as being cost loaded. Further, both the Master Project Schedule and the Construction Schedule shall incorporate and be based upon any Project milestone dates set forth in the Agreement. • No activity shall have a duration greater than fifteen (15) work days or less than one (1) work day. If requested by the City A/E, CM shall furnish any information needed to justify the reasonableness of activity duration. Such information shall include, but not be limited to, estimated activity manpower, anticipated quantities, and production rates. • Procurement shall be identified with at least two (2) activities: fabrication and delivery. CM shall insure that all Work activities that require a Little Haiti Park Cultural Center, B-30295 Page 71 submittal are preceded by the appropriate submittal and approval activities. • Only contractual constraints shall be shown in the schedule logic. No other restraints are allowed unless approved in writing by the City or A/E. This disallowance of constraints includes the use of any mandatory start or finish dates selected by CM. • Activities shall be identified by codes to reflect the responsible party for the accomplishment of each activity (only one party per activity), the Phase/Stage of the Project for each activity, and the Area/Location of each activity • The construction time for the Work, or any milestone, shall not exceed the specified Contract Time. Logic or activity durations shall be revised in the event that any milestone or Agreement completion date is exceeded in the schedule. Float is defined as the amount of time between when an activity "can start' (the early start) and when an activity "must start" (the late start). It is understood by the City and CM that float is a shared commodity, not for the exclusive use or financial benefit of either party. Either party has the full use of the float until it is depleted. • The CPM schedules must be compatible with Microsoft Project. It is CM's responsibility to ascertain the software compatibility with the City. • Initial Schedule Submittal Requirements: ✓ Predecessor/Successor Sort ✓ Total Float/Early Start Sort ✓ Responsibility/,Early Start Sort ✓ Area/Early Start Sort ✓ Logic Diagram: Produce diagram with not more than 100 activities per ANSI D (24-inch x 36-inch) size sheet. Insure each sheet includes title, match data or diagram correlation, and key to identify all components used in the diagram. ✓ Narrative discussing general approach to completion of the Work. ✓ Diskette in Primavera (P3) format. • Schedule Update Requirements: CM shall update the schedules as required by the Agreement to show actual, current progress. The schedule updates shall be submitted within seven (7) calendar days of the data dates. The updates shall include: ✓ Dates of activities' actual starts and completions. ✓ Percent of Work remaining for activities started but not completed as of the update date. ✓ Narrative report including a listing of monthly progress, the activities that define the critical path and any changes to the path of critical activities from the previous update, sources of delay, any potential problems, requested logic changes, and Work planned for the next month. ✓ Predecessor/Successor Sort ✓ Total Float/Early Start Sort ✓ Responsibility/Early Start Sort ✓ Area/Early Start Sort ✓ Diskette in the required Primavera format ✓ Fragnet of logic diagram for all requested logic changes. Little Haiti Park Cultural Center, B-30295 Page 72 V Updated logic diagram as required by the City. At a minimum, the City shall require a final logic diagram at the end of the Work showing the planned and actual starts and completions. / A bar chart comparison of the updated schedule to the initial schedule. This diagram shall show actual and planned performance dates for all completed activities. V All update information shall be an accurate representation of the actual Work progress. • Recovery Schedule: If the initial schedule or any current updates fail to reflect the Work's actual plan or method of operation, or a contractual milestone date is more than fifteen (15) days behind, City may require that a recovery schedule for completion of the remaining Work be submitted. The Recovery Schedule must be submitted within seven (7) calendar days of City's request. The Recovery Schedule shall describe in detail CM's plan to complete the remaining Work by the required Contract milestone date. The Recovery Schedule submitted shall meet the same requirements as the original Construction Schedule. The narrative submitted with the Recovery Schedule should describe in detail all changes that have been made to meet the Project milestone dates. • Change Orders: When a Change Order is proposed, CM must identify all logic changes as a result of the Change Order. CM shall include, as part of each Change Order proposal, a sketch showing all schedule logic revisions, duration changes, and the relationships to other activities in the approved Construction Schedule. This sketch shall be known as the fragnet for the change. Upon acceptance of the fragnet, CM will revise the Construction Schedule or current update. The logic changes required by the Change Order will be considered incidental to CM's Work. No separate payment will be made. 4. Cost Control Subsystem: The operation of this subsystem shall provide sufficient timely cost data and detail to permit CM to control and adjust the Project requirements, needs, materials, equipment and systems by building and site elements so that the Work will be completed at a cost which, together with the Construction Management Fee, will not exceed the GMP. Requirements of this subsystem include submissions at the following phases of the Project: • 4.1 Pre -Construction Phase Estimates; and • 4.2 At establishment of the GMP. 5. Project Accounting Subsystem: This subsystem shall enable CM to plan effectively and City to monitor and control the funds available for the Project, cash flow, costs, Change Orders, Construction Change Directives, payments, and other major financial factors by comparison of budget, estimate, total commitment, amounts invoiced, and amounts payable, and also enable City to stay informed as to the overall Project status. This subsystem will be produced and updated monthly and includes the following reports: • Costs Status Report representing the budget, estimate, and base commitment (awarded subcontracts and purchase orders) for any given subcontract or budget line item. It shall show approved Change Orders and Construction Change Directive for each subcontract which when added to the base commitment will become the total commitment. Pending Change Orders also will be shown to produce the total estimated probable cost to complete the Work. Little Haiti Park Cultural Center, B-30295 Page 73 • A Payment Status Report showing the value in place (both current and cumulative), the amount invoiced (both current and cumulative), and the balance remaining. A summary of this report shall accompany each pay request. • A Detailed Status Report showing the complete activity history of each item in the Project accounting structure and includes an earned value graph. It shall include the budget, estimate, and base commitment figures for each subcontract. It shall give the Change Order history, including Change Order numbers, description, proposed and approved dollar amounts. It also shall show all pending or rejected Change Orders. • A Cash Flow Diagram showing the projected accumulation of cash payments against the Project. Cash flow projections shall be generated for anticipated monthly payments as well as cumulative payments. • A Job Ledger shall be maintained as necessary to supplement the operation of the Project accounting subsystem. The job ledger will be used to provide construction cost accountability for general conditions work, on -site reimbursable expenses, and costs requiring accounting needs. Little Haiti Park Cultural Center, B-30295 Page 74 CITY OF MIAMI ATTACHMENT B DEPARTMENT OF CAPITAL IMPROVEMENTS 444 NW 2ND AVENUE MIAMI, FLORIDA 33130 SUBSTANTIAL COMPLETION INSPECTION Date of Inspection: Re -Inspection No.: Project Information Project No.: Project Location: Representation City of Miami User Agency: Contractor: Inspection Project Name: Contractor's Name: Based on the request of the Contractor a substantial completion inspection was conducted, which resulted in the following: ❑ No punch list created. By signing below the City acknowledges that the work has been performed in accordance with the contract and specification requirements. This form shall serve as the Notice of Final Completion. Project Close Out and final payment is subject to the submittal of all required documentation. ❑ The punch list items as stated on the punch list form are of a nature that will allow beneficial occupancy on the premises and the punch list is issued as a final punch list, subject to re -inspection by the City. By signing below the City acknowledges that the work has been performed in accordance with the contract and specification requirements. This form shall serve as a partial acceptance and notification of substantial completion. Final Acceptance shall be issued subsequent to completion and re -inspection of the punch list items. Project Close Out and final payment is subject to the punch list re -inspection and the submittal of all required documentation. Little Haiti Park Cultural Center, B-30295 Page 75 ❑ The punch list items listed are of a nature that precludes beneficial occupancy of the premises. Substantial completion is denied at this time. Items on the punch list must be -completed and the Contractor must request another Substantial Completion Inspection, The failure or refusal of the Contractor to sign the Project Substantial Completion Inspection Form or Punch List shall relieve the Contractor from complying with the findings of the Project Substantial Completion Inspection and completing the Project to the satisfaction of the City All punch list items must be completed on or before the mutually agreed upon date of Contractor City of Miami Consultant Accepted By: Approved By: Approved By: Name Signature Name Name Signature Signature Little Haiti Park C-ultural Center, 8-30295 Page 76 CITY OF MIAMI ATTACHMENT B DEPARTMENT OF CAPITAL IMPROVEMENTS 444 NW 2ND AVENUE MIAMI, FLORIDA 33130 PUNCH LIST Date of Substantial Completion Inspection: Date of Punch List Inspection: Project No.: Project Name: Project Location: Contractor's Name: City of Miami Representative: Contractor's Representative: Consultant's Representative: The following is a list of items, within the scope of work, that require correction prior to; ❑ a new substantial completion inspection or, ❑ final completion. A detailed description for each item is provided below. Upon completion the City's Project Manager and the Consultant shall inspect the work performed and initial that each item has been completed and accepted. (Use additional pages as necessary.) Description of Item Project Manager's Acceptance Date of Acceptance Little Haiti Park Cultural Center, B-30295 Page 77 Punch List developed and agreed to by: Project Manager: Contractor: Consultant: Little Haiti Park Cultural Center, B-30295 Page 78 ATTACHMENT D CERTIFICATE OF SUBSTANTIAL COMPLETION: PROJECT: (name, address) TO (City): DATE OF ISSUANCE: CONSULTANT: AGREEMENT NUMBER: CONSTRUCTION MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: PROJECT OR DESIGNATED PORTION SHALL INCLUDE: The Work performed under this Agreement has been reviewed and found to be substantially complete and all documents required to be submitted by Construction Manager under the Contract Documents have been received and accepted. The Date of Substantial Completion of the Project or portion thereof designated above is hereby established as DEFINITION OF DATE OF SUBSTANTIAL COMPLETION The Date of Substantial Completion of the Construction Work or portion thereof designated by City is the date certified by Consultant and/or Director when al] conditions and requirements of permits and regulatory agencies have been satisfied and the Work, is sufficiently complete in accordance with the Contract Documents, so the Project is available for beneficial occupancy by City. A Certificate of Occupancy/Completion must be issued for Substantial Completion to be achieved. Little Haiti Park Cultural Center, B-30295 Page 79 A list of items to be completed or corrected, prepared by Consultant and approved by City is attached hereto. The failure to include any items on such list does not alter the responsibility of Construction Manager to complete all work in accordance with the Contract Documents. The date of commencement of warranties for items on the attached list will be the date of final payment unless otherwise agreed in writing. Consultant BY Date In accordance with Agreement, Contractor will complete or correct the work on the Iist of items attached hereto within from the above Date of Substantial Completion. Consultant BY Date City, through the Director, accepts the Work or portion thereof designated by City as substantially complete and will assume full possession thereof at (time) on (date). City of Miami, Florida By Director Date The responsibilities of City and Construction Manager for security, maintenance, heat, utilities, damage to the work and insurance shall be as follows: Little Haiti Park Cultural Center, B-30295 Page '80 ATTACHMENT E FINAL CERTIFICATE OF PAYMENT: PROJECT: CONSULTANT: (name, address) BID/CONTRACT NUMBER: TO (City): CONSTRUCTION MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: DATE OF ISSUANCE: All conditions or requirements of any permits or regulatory agencies have been satisfied. The documents required by the Agreement, and the final bill of materials, if required, have been received and accepted. The Work required by the Contract Documents has been reviewed and the undersigned certifies that the Work, including minor corrective work, has been completed in accordance with the provision of the Contract Documents and is accepted under the terms and conditions thereof. Consultant BY Date City, through the Director, accepts the work as fully complete and Will assume full possession thereof at (Date). City of Miami, Florida (Time) By Director Date Little Haiti Park Cultural Center, B-30295 Page $1 FORM OF PERFORMANCE BOND (Page 1 of 3) BY THIS BOND, We , as Principal, hereinafter called Construction Manager, and , as Surety, are bound to the City of Miami, Florida, as Obligee, hereinafter called City, in the amount of Dollars ($ ) for the payment whereof Construction Manager and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally. WHEREAS, Contractor has by written agreement entered into this Agreement, awarded the day of , 20 , with City which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for liquidated damages, and other damages identified, and for the purposes of this Bond are hereafter referred to as the "Agreement"; THE CONDITION OF THIS BOND is that if Construction Manager: 1. Performs the Agreement between Construction Manager and City for construction of , the Agreement being made a part of this Bond by reference, at the times and in the manner prescribed in the Agreement; and 2. Pays City all losses, liquidated damages, expenses, costs and attorney's fees including appellate proceedings, that City sustains as a result of default by Construction Manager under the Agreement; and 3. Performs the guarantee of all Construction Work and materials furnished under the Agreement for the time specified in the Agreement; then THIS BOND IS VOID, OTHERWISE IT REMAINS ]N FULL FORCE AND EFFECT. 4. Whenever Construction Manager shall be, and declared by City to be, in default under the Agreement, City having performed City obligations thereunder, the Surety may promptly remedy the default, or shall promptly: 4.1. Complete the Project in accordance with the terms and conditions of the Contract Documents; or Little Haiti Park Cultural Center, B-30295 Page 82 00710. FORM OF PERFORMANCE BOND (Page 2 of 3) 3.2. Obtain a bid or bids for completing the Project in accordance with the terms and conditions of the Contract Documents, and upon determination by Surety of the lowest responsible Bidder, or, if City elects, upon determination by City and Surety jointly of the lowest responsible Bidder, arrange for a contract between such Bidder and City, and make available as work progresses (even though there should be a default or a succession of defaults under the Agreement or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the GMP; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the GMP," as used in this paragraph, shall mean the total amount payable by City to Construction Manager under the Agreement and any amendments thereto, less the amount properly paid by City to Construction Manager. No right of action shall accrue on this bond to or for the use of any person or corporation other than City named herein. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Agreement or the changes does not affect Surety's obligation under this Bond. Signed and sealed this day of , 20 Little Haiti Park Cultural Center, B-30295 Page 83 FORM OF PERFORMANCE BOND (Page 3of 3) WITNESSES: Secretary By: (CORPORATE SEAL) (Name of Corporation) (Signature) (Print Name and Title) IN THE PRESENCE OF: INSURANCE COMPANY: By: Agent and Attorney -in -Fact Address: (Street) (City/State/Zip Code) Telephone No.: Little Haiti Park Cultural Center, 88-30295 Page 84 FORM OF PAYMENT BOND (Page lof 3) BY THIS BOND, We , as Principal, hereinafter called Construction Manager, and , as Surety, are bound to the City of Miami, Florida, as Obligee, hereinafter called City, in the amount of Dollars ($ ) for the payment whereof Construction Manager and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally. WHEREAS, Construction Manager has by written agreement entered into this Agreement, awarded the day of , 20 , with City which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for Liquidated damages, and other damages identified, and for the purposes of this Bond are hereafter referred to as the "Agreement"; THE CONDITION OF THIS BOND is that if Construction Manager: 1. Pays City all losses, liquidated damages, expenses, costs and attorney's fees including appellate proceedings, that City sustains because of default by Construction Manager under the Agreement; and 2. Promptly makes payments to all claimants as defined by Florida Statute 255.05(1) for all labor, materials and supplies used dir irtly or indirectly by Contractor in the performance of the Agreement; " THEN CONSTRUCTION MANAGER 'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SHALL REMAIN <„FU L FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING Cd ITI NS: 2.1. A claimant, except a laborer, who is not in privity with Construction Manager and who has not received payment for its labor, materials, or supplies shall, within forty- five (45) days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish to Contractor a notice that he intends to Iook to the bond for protection. 2.2. A claimant who is not in privity with Construction Manager and who has not received payment for its labor, materials, or supplies shall, within ninety Little Haiti Park Cultural Center, B-30295 Page 85 FORM OF PAYMENT BOND (Page 2 of 3) (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to Construction Manager and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. 2.3. No action for the labor, materials, or supplies may be instituted against Construction Manager or the Surety unless the notices stated under the preceding conditions (2.1) and (2.2) have been given. 2.4. Any action under this Bond must be instituted in accordance with the longer of the applicable Notice and Time Limitations provisions prescribed in Section 255.05(2), or Section 95.11, Florida Statutes. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and .compliance or noncompliance with any'° M .,,alities connected with the Agreement or the changes does not affect the Surety's obligation' under this Bond. ,c. Signed and sealed this day of ATTEST: (Secretary) (Corporate Seal) , 20 Construction Manager (Name of Corporation) (Signature) (Print Name and Title) day of , 20 Little Haiti Park Cultural Center, B-30295 Page 86 FORM OF PAYMENT BOND (Page 3 of 3) IN THE PRESENCE OF: INSURANCE COMPANY: By: Agent and Attorney -in -Fact Address: (Street) (City/State/Zip Code) Telephone No.: Little Haiti Park Cultural Center, B-30295 Page 87 PERFORMANCE AND PAYMENT GUARANTY FORM UNCONDITIONAL/IRREVOCABLE LETTER OF CREDIT: (Page 1 of 2) Beneficiary: City of Miami 444 SW 2nd Avenue Miami, Florida 33130 at Amount: We hereby authorize you to draw on Date of Issue Issuing Bank's No. Applicant: in United States Funds Expiry: (Date) Agreement Ni'iurnber dnk, Issuer name) of and for the account of (branch address)'`"'; by order c© �". tractor, applicant, customer) up to an aggregate amount, in -United States Funds, of at sight, accompanied by: 1. A signed statement 'tom the City Manager or his authorized designee, that the drawing is due to default in performance of certain obligations on the part of (Construction Manager, applicant, customer) agreed upon by and between the City of Miami, Florida and (contractor, applicant, customer), pursuant to Bid/Contract No. for (name of project) and Section 255.05, Florida Statutes. available by your drafts Drafts must be drawn and negotiated not later than (expiration date) Little Haiti Park Cultural Center, B-30295 Page 88 PERFORMANCE AND PAYMENT GUARANTY FORM UNCONDITIONAL/IRREVOCABLE LETTER OF CREDIT: (Page 2 of 2) Drafts must bear the clause: "Drawn under Letter of Credit No. (Number), of (Bank name) dated This Letter of Credit shall be renewed for successive periods of one (1) year each unless we provide the City of Miami with written notice of our intent to terminate the credit herein extended, which notice must be provided at least thirty (30) days prior to the expiration date of the original term hereof or any renewed one (1) year term. Notification to the City that this Letter of Credit will expire prior to performance of the Construction Manager's obligations will be deemed a default. This Letter of Credit sets forth in full the terms of our undertaking, and such undertaking shall not in any way be modified, or amplified by reference to any documents, instrument, or agreement referred to herein or to which this Letter of Credit is referred or this Letter of Credit relates, and any such reference shall not be deemed to incorporate herein by reference any document, instrument, or agreement. We hereby agree with the drawers, endorsers, and bona fide holders Yof all drafts drawn under and in compliance with the terms of this credit that such drafts Will be duly honored upon presentation to the drawee. Obligations under this Letter of Credit shall be released one (1) year after the Final Completion of the Project by the <: -(contractor, applicant, customer) This Credit is subject to the "Uniform Customs and Practice for Documentary Credits," International Chamber of Commerce (1993 revision), Publication No. 500 and to the provisions of Florida Iaw. If a conflict between the Uniform Customs an'd Practice for Documentary Credits and Florida law should arise, Florida law shall prevai.1 ,t Ife conflict between the law of another state or country and Florida law should arise, Florida law shatlprvail. Authorized Signature Little Haiti Park Cultural Center, B-30295 Page 89 IN WITNESS WHEREOF, the parties have set their hands and seals on the day and year first above written. "City" City Of Miami, a municipal ATTEST: corporation Priscilla A. Thompson, City Clerk ATTEST: By: Joe Arriola, City Manager "Contractor" Pirtle Construction Cornparny. a Florida corporatioi By: Print Name: Print Name: Title: Titie'' APPROVED AS TO FORM AND CORRECTNESS: AR. ROVED AS TO INSURANCE REQUIREMENTS: Jorge L. Fernandez Risk Management Administrator City Attorney Dania Carrillo THE CITY REQUIRES FOUR (4) FULLY -EXECUTED AGREEMENTS, FOR DISTRIBUTION. Little Haiti Park Cultural Center, B-30295 Page 90 GMP AMENDMENT TO AGREEMENT BETWEEN THE CITY AND CONSTRUCTION MANAGER AT RISK CONTRACTOR Pursuant to the Agreement dated , between the City and Pirtle Construction Company (CM) for the construction of the Little Haiti Park Cultural Center, the City and CM hereby agree to amend and modify by this Amendment and establish a Guaranteed Maximum Price (GMP) and time for completion of the Construction Phase as set forth below: 1. Cm's GMP for the Construction Phase of the Work shall be ($ ) 2. The Construction Manager's Fee for the Construction Phase of the Work is hereby established as a lump sum amount of ($ ), and said lump sum amount is included within the above stated GMP. 3. The General Conditions expenses for the Construction Phase of the Work are hereby established as a lump sum amount of ($ ), and said lump sum amount is included in the above stated GMP. CM acknowledges and agrees that 4�h. the City shall have no liability for any General Condition expenses beyond payment of the above noted lump sum and CM agrees that it shall not;,be entitled to receive any additional compensation from the City for the General Conditions 'beyond tfle lump sum amount unless expressly adjusted by a Change Order. { 4. Monthly installment payments of the GMP shall be based upon the percentage of completion k.. F..,N:YE.n. of the portion of Work completed and accepted byline City for the preceding month. 5. Direct reimbursements allowed under the Agreement'Shall be made upon submission of proof of payment by the CM. 6. The City has established a cotiri9ency :•fund in the amount of ($ ) for this project. The CM has no right or entitlement to the contingency fund and use of such funds are subject,to the prior written approval and issuance of a Change Order by the City. Any contingency funds remaining at the completion of the Project will be credited from the GMP 7 If at the time final payment le'made to the CM for the Construction Phase of the Work the total cost has been increased'py approved Change Orders in an amount causing the original GMP as set forth in this Ai eridment to by exceeded by more than ($ ), then the;�CM shall be entitled to an increase in the Construction Manager's Fee in the amount'of (%) of the amount exceeding the sum of ($ ). 8. CM acknowledges that this Agreement includes Work for trench excavation and that the requirements set forth in Section 553.63 of the Florida Statutes titled Trench Safety Act apply. CM certifies that the required trench safety standards will be in effect during the Work. 9. The amount of .($ ) has been separately identified for the cost of compliance with the required trench safety standards and said amount is included within the GMP. 10. The Construction Phase commencement date (Commencement) for the Work is . The total time for performance of the Work from Commencement through the date required for Substantial Completion is ( ) days (Construction Time). The Substantial Completion date is therefore established as 11. Pursuant to this Agreement, the parties have established a liquidated damages rate for reasons stated therein, which the parties acknowledge and agree apply to this Amendment and CM responsibility to complete the Work with the Construction Time. Accordingly, the liquidated damages rate established in the Agreement shall be assessed from CM for each Little Haiti Park Cultural Center, B-30295 Page 91 calendar day CM fails to achieve Substantial Completion for the Construction Phase with in the Construction Time. 12. Except as modified herein, the term and conditions of the Agreement remain unchanged. In the event of a conflict between the terms of this Amendment and those of the Agreement, the City and the CM agree that the terms of this Amendment shall take precedence. Little Haiti Park Cultural Center, B-30295 Page 92 MATERIALS PURCHASED AND STORED AT PROJECT SITE TO: City's Project Manager or Consultant's Name City's Project Manager or Consultant's Title FROM: Contractor's Project Manager or Consultant's Name Contractor's Project Manager or Consultants Title Project Information Project Number: Project Title: Project Address/Location: Material Information Payment Application No.: This document is submitted in accordance with Contract (;contract number) and accompanies payment request/invoice number (number) for the purpcses''of payment of materials or equipment purchase exclusively for use on the above reference'°Projecnd stored at the Project Site. The undersigned stipulates that the ,;.following described material(s) has/have been purchased/fabricated for the exclusive use in this - Project (describe all materials purchased or fabricated) yy The material is to be stored at the ProjecttSite an d physically identified as City property for use only on the above named Project. The;City shall inspect, check, or audit, the materials stored on site. It is expressly understood and agreed that these actions are solely for the purpose of payment for the above materials before payment is'ap-proved forth materials and/or equipment. The City shall only pay for the cost of the Materials arfd shall not pay any indirect cost, profit or other direct costs including the installationroflhe materials or equipment. All materials shall be stored:w,.in accordance with the manufacturer's instructions. It is further understood that payment made on account of said materials not incorporated in the Work does not relieve the Contractor from the responsibility for proper insurance coverage and transportation to the site, or for replacing said materials that may be subsequently damaged, lost, or rejected for non- compliance with the Contract prior to or during installation, or prior to final acceptance by the City. Contractor Information Name of Contractor: Signature: cc: Date: Title: Date Received: Received By: Little Haiti Park Cultural Center, B-30295 Page 93