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HomeMy WebLinkAboutExhibit (Version 1) 02.27.14Construction Agreement By and Between The City Of Miami And Oak Plaza Associates (Del.), LLC For The Design District Roadway and Stormwater Improvements Project No. B-30985 Department of Capital Improvements 444 SW 2nd Avenue, 8t" Floor Miami, Florida 33130 (Zf,/ (7/-vJ3 THIS AGREEMENT, made and entered into this day March, 2014 by and between the City of Miami, Florida, a municipal corporation (hereinafter, the "City"), and Oak Plaza Associates (Del.), LLC, a Delaware limited liability company (hereinafter, "Construction Manager"). WITN ESSETH: WHEREAS, the City desires to enter into an Agreement for the enhancements to portions of City -owned rights -of -way along NE 38th & 39th Streets between NE 1st and 2nd Avenues in the Miami Design District (the "Project"), and WHEREAS, Construction Manager represents that it possesses the requisite expertise and desires to enter into an Agreement to act as the construction manager to provide the services as set forth herein; and WHEREAS, Construction Manager has agreed to perform the work identified in the project scope, as described herein below, within the available funds and cover the costs of any funding shortfalls to complete the desired improvements; and WHEREAS, the City Commission has authorized the City Manager to execute and enter into this Agreement by its adoption of Resolution No. 14- on March 1, 2014; NOW THEREFORE, in consideration of the mutual covenants set forth herein the City and Construction Manager agree as follows: Section 1 - Terms and Conditions 1. Overview This Agreement covers the services of Construction Manager for the supervision of the construction of the right-of-way improvements, which consists of enhancements to the portions of NE 38th and 39th Streets between NE 1st and 2nd Avenues (the "Project"). This Work includes the design, permitting, and installation of storm drainage, sanitary sewer, water distribution, sidewalks, curbing, paving, sidewalk pavers, tabletop crossings, trees and lighting. The Work is more fully described in the plans and specifications included in Attachment "_" (the "Project Plans"). 2. Intention of City It is the intent of City to have the Project constructed in accordance with the Project Plans 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 Project Plans as being required to produce the intended result shall be supplied by Construction Manager, through its contractor, Coastal Construction Group of South Florida, Inc. (the "Contractor"), whether or not specifically called for. When words, which have a well-known technical or trade meaning, are used to describe work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of contract approval and Construction Manager shall comply therewith. City shall have no duties other than those duties and obligations expressly set forth herein. 3. Definitions Architect/Engineer means the Architectural and/or Engineering firm(s) retained by the Construction Manager for the preparation of the Project Plans in connection with the Project. The Architectural and/or Engineering firms are referred to herein as the A/E. The companies are SB Architect and Ford Engineers, Inc. {28062945;1} Page 2 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. Construction Project Manager means the person designated by Construction Manager as its lead representative to the City. The Construction Project Manager shall have the authority to obligate and bind Construction Manager and to act on all matters on behalf of Construction Manager except for revisions to the Contract Documents. Construction Change Directive means a written directive to effect changes to the Work, prepared by the NE and executed by the City Contract Documents means this the documents described in Section 1, Article 6 of this Agreement. Construction Work means all Work required by this Agreement. Contract Time means the time period defined in this Agreement for the Construction Manager to complete the Project. Cure means the action taken by the Construction Manager, through its Contractor, promptly after receipt of written notice from the City of a breach of the Agreement for the Work, which shall be performed at no cost to the City, to repair, replace, correct, or remedy all material, equipment, or other elements of the Work or the Agreement affected by such breath, 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 Construction Manager 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 A/E(s) for this Project under separate agreement(s) with the Construction Manager. Director means the Director of the Department of Capital Improvements and Transportation or his/her 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 showthe design, location and dimensions of the Construction Work to be performed, including, without limitation, all notes, schedules and legends on such Drawings as prepared by the A/E(s) in Attachment "_". Field Directive means a written approval for the Construction Manager to proceed with Work requested by the City or the A/E(s), which is minor in nature and should not involve additional cost. {28062945;1} Page 3 Final Completion means the date subsequent to the date of Substantial Completion at which time the Construction Manager, through its Contractor, has completed all the Work in accordance with the Agreement as certified by the A/E or the City and submitted all documentation required by the Agreement. 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 Construction Manager, through its Contractor, may begin Work on the Project or a specific task of the Project. Project Manager means an employee or representative of the City assigned by the Director to monitor the Work to be performed under this Agreement and the construction of the Project. Project means the construction of the Work specified in this Agreement as contemplated and budgeted by the City. Punch List means a compilation of items of Construction Work required to be performed by, or through the Construction Manager prior to or after the Substantial Completion inspection and prior to Final Completion and payment. Record Set means the copy of the Drawings, Specifications, and other modifications of the Agreement to be maintained at the Project site by the Contractor, in good order and marked currently to record changes and shall include additions, revisions, modifications, change orders, approved substitutions, shop drawings and accurate dimensioned locations for items recorded, including but not limited to, all underground utilities. Request For Information (RFI) means a request from the Contractor sccking an interpretation or clarification by the A/E(s) relative to the Agreement and/or the Drawings. The RFI, which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or item(s) requiring clarification or interpretation and why the response is needed. The RFI must set forth the Contractor's interpretation or understanding of the document(s) in question, along with the reason for such understanding. Risk Administrator means the City's Risk Management Administrator, or designee, or the individual named by the City Manager to administer matters relating to insurance and risk of loss for the City. Schedule of Values means a written schedule setting forth the detailed and itemized cost breakdown, inclusive of labor, material, and taxes of all elements of the Project. This schedule (attached) shall be used to bill against monthly based on a percentage of completion. Specifications as used herein means that portion of the Contract Documents which are the written requirements for the materials, equipment, systems, standards and workmanship for completion of the Work and performance of related services. Sub-Contractor(s) means a person or entity other than a materialman or laborer that has a direct contract with the Contractor to perform or supply a portion of the Construction Work. Submittals mean documents prepared by the Construction Manager, Contractor or those working on their behalf to show how a particular aspect of the Construction Work is to be fabricated and installed. Such 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. {28062945;1} Page 4 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 and members of the general public 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. Work as used herein refers to all pre -construction, construction and other services required by the Contract Documents, including all labor, materials, equipment, supervision and services needed to complete the Project. 4. Scope of Work Construction Manager, either itself or through its Contractor, shall provide all management, supervision, manpower, equipment, tools, and all other necessary goods and services for the Project as detailed in the attached specifications, drawings and plans as contained in Attachment "_", and in accordance with the Contract Documents. 5. Contract Value and Project Cost The Construction Manager shall perform all Work under this Agreement for no compensation. Payments shall be made for Work actually performed and accepted by the City. Total cost to complete the Project are estimated to cost approximately $1.5 million allocated under this contract. The Construction Manager shall cover any and all cost overruns necessary to complete the Project.. 6. Time for Completion Construction Manager, either itself or through its Contractor, will promptly perform its duties under the Contract Documents and will give the Work as much priority as is necessary to cause the Work to be completed on a timely basis in accordance with the Contract Documents. Time is of the essence of this Agreement. Construction Manager shall ensure that all Work under this Agreement is completed by June 30, 2014. 7. Contract Documents The Contract Documents shall consist of this Agreement, the Drawings and Specifications, approved written interpretations and clarifications, Field Directives, Construction Change Directives, and any modifications. Any modification to this Agreement shall only be effective if it is reduced to writing, and duly executed by both parties, except a Field Directive or Constructive Change Directive shall be effective after approval and execution by Director or designee. The general intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Project by the Construction Manager and its Contractor. 8. Priority of Provisions 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, {28062945;1} Page 5 requirement, the specifications and plans prepared by the A/E, or provision of this Agreement the following order of precedence shall apply: In the event of conflicts in the Contract Documents the priorities stated below shall govern: • Revisions to the Contract Documents shall govern over the Contract Documents • No section of the specifications or plans shall govern over the Contract Terms and Conditions • Scope of Work and Specifications shall govern over plans and drawings In the event of conflicts with the plans the priorities stated below shall govern: • Schedules, when identified as such shall govern over all other portions of the plans • Specific notes shall govern over all other notes, and all other portions of the plans, unless specifically stated otherwise • Larger scale drawings shall govern over smaller scale drawings • Figured or numerical dimensions shall govern over dimensions obtained by scaling • Where provisions of codes, manufacturer's specifications or industry standards are in conflict, the more restrictive or higher quality shall govern In the event of omissions in the Contract Documents that are incidental detail(s) of construction or construction system(s) or with regard to the manner of combining or installing equipment, parts, or materials, such detail shall be deemed to be an implied requirement of the Contract Documents. "Minor Detail" shall include the concept of substantially identical components, where the price of each such component is small. The quality and quantity of the equipment, material, or part so furnished shall conform to trade standards and be compatible with the type, composition, strengths, size and profile of the equipment, materials or parts otherwise specified in the Contract Documents. 9. Progress Payments Construction Manager may make Application for Payment for Construction Work completed during the Project at intervals of not more than once a -month. Construction Manager's Application for Payment shall be accompanied by a partial release of liens relative to the Construction Work, which is the subject of the Application for Payment and any other information required by the City. Each Application for Payment shall be submitted in triplicate to City's Project Manager for approval. City may withhold, in whole or in part, payment to extent as may be necessary to protect itself from loss on account of: • Defective Construction Work not remedied. • Claims filed or reasonable evidence indicating probable filing of claims by other parties against Construction Manager, Contractor or City because of Construction Manager and/or Contractor's performance. • Failure of Construction Manager to make payments properly its Contractor or Sub - Contractors or for material or labor. • Failure of Construction Manager to provide any and all documents required by the Contract Documents. 10. Payment Payment of an approved Application for Payment approved by the A/E shall be made within thirty (30) days after receipt of Construction Manager's Application for Payment to 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. {28062945;1} Page 6 11. Progress Meetings Construction Manager and the City's Project Manager shall hold construction progress meetings as deemed necessary to ensure the timely completion of the Work. 12. Indemnification Construction Manager 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 Construction Manager and persons employed or utilized by Construction Manager in the performance of this Agreement. Construction Manager'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, Construction Manager shall, upon written notice from City, resist and defend such action or proceeding by counsel satisfactory to City. The indemnification provided above shall obligate Construction Manager 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 Construction Manager, or persons employed or utilized by the Construction Manager. 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. 13. Insurance The Construction Manager shall not authorize the initiation of any Work under this Agreement until the Construction Manager has obtained, or required its Contractor to obtain, the insurance required and the City's Risk Administrator has approved such insurance. Companies Providing Coverage All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and satisfactory to the Risk Administrator. All companies shall have a Florida resident agent and be rated at least A(X), as per A.M. Best Company's Key Rating Guide, latest edition. Verification Of Insurance Coverage The Construction Manager 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 Construction Manager or its Contractor has obtained insurance of the type, amount and classification required by these provisions, in excess of any pending claims at the time of contract award to the Construction Manager. Construction Manager shall maintain, or require its Contractor to maintain, coverage with equal or better rating as identified herein for the term of this Agreement. Construction Manager 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. Construction Manager shall furnish a copy of the insurance policy or policies within ten (10) days of written request from the City's Risk Administrator. Forms Of Coverage Should Construction Manager be authorized to construct the Project, without limiting any of the other obligations or liabilities of Construction Manager, Construction Manager shall provide, pay for, and maintain in force until all of its Work to be rWri; erk Page 7 {28062945;1} 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. Workers' Compensation insurance to apply for all employees in compliance with the 'Workers' Compensation Law" of the State of Florida and all applicable federal laws. In addition, the policy (ies) must include: • Employers' Liability with a limit of One Million Dollars ($1,000,000.00) Dollars each bodily injury caused by an accident, each accident. One Million Dollars ($1,000,000.00) Dollars each bodily injury caused by disease, each employee. One Million Dollars ($1,000,000.00) each bodily injury caused by disease, policy limit. • Waiver of subrogation Comprehensive General Liability with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability; General Aggregate Limit of Two Million Dollars ($2,000,000.00). Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: • Premises and/or Operations. • Independent Contractor • Products and/or Completed Operations for contracts with an Aggregate Limit of One Million Dollars ($1,000,000.00) per project. Construction Manager shall maintain in force until at least one year after completion of all work required under the Contract, coverage for Products and Completed Operations, including Broad Form Property Damage. • 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 Construction Manager or acts or omissions of Construction Manager in connection with general supervision of such operation. • Employee included as insured. • Contractual Liability. • Waver of Subrogation. • Personal and Advertising Injury One Million Dollars ($1,000,000.00). • Loading and Unloading. • Contingent Liability (Independent Contractors Coverage) • Explosion, Collapse and Underground Hazard Mobile Equipment (Contractor's Equipment) whether owned, leased, borrowed or rented by Construction Manager, it Contractor or employees of the Contractor. 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: • Owned Vehicles. • Hired, Borrowed, and Non -Owned Vehicles. • Employers' Non -Ownership. • Employees included as insured • City of Miami as Additional Insured Employer's Liability — Limits of Liability • $1,000,000 for bodily injury caused by accident, each accident Page 8 • $1,000,000 for bodily injury caused by disease, each employee • $1,000,000 for bodily injury caused by disease, policy limit Owners and Contractors Protective: Bodily injury and property damage liability with limits of One Million Dollars ($1,000,000) each occurrence and an aggregate limit of One Million Dollars ($1,000,000). If the initial insurance expires prior to the completion of the Work, renewal copies of policies shall be furnished at least thirty (30) days prior to the date of their expiration. Notice of Cancellation and/or Modification --The policy(ies) must be endorsed to provide City with at least thirty (30) days notice of cancellation and/or modification. Submittal of Certificates —Construction Manager shall furnish to the Capital Improvements Department Certificates of Insurance or endorsements evidencing the insurance coverage specified above within fifteen (15) calendar days after notification by the City. The required Certificates of Insurance shall name the types of policies provided, refer specifically to this Contract, and state that such insurance is as required by this Contract. The official title of the Owner is the City of Miami, Florida. This official title shall be used in all insurance documentation. 14. 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 Construction Manager. In that event Contractor shall comply with such request 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. 15. 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. 16. Authority of the City Project Manager The Project Manager 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 Construction Manager shall be issued in writing. All instructions to the Construction Manager shall be issued through the Director or Project Manager. The Project Manager shall have access to the Project Site. The Construction Manager shall provide safe facilities for such access so the Project Manager may perform their functions under the Agreement. The Project Manager will make periodic visits to the Work Site to become generally familiar with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. The Project Manager 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 Construction Manager's failure to carry out the Construction Work in accordance with the Agreement. {28062945;1 } Page 9 The Project Manager 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 NE 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 '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 to the Construction Manager, Contractor any Sub - Contractor, supplier or any of their agents, employees, or any other person performing any of the Construction Work. All interpretations and recommendations of the Project Manager shall be consistent with the intent of the Contract Documents. The Project Manager will not be responsible for the acts or omissions of the Construction Manager, its Contractor, or anyone employed or contracted directly or indirectly by the Construction Manager, including any Sub -Contractor, or any of their agents or employees, or any other persons performing any of the Work. 17. Subcontracts A Sub -Contractor is any person or entity that is performing, furnishing, supplying or providing any portion of the Construction Work pursuant to a contract with the Construction Manager or its Contractor. Construction Manager, through its Contractor, shall be solely responsible for and have control over the Sub -Contractors. 18. Ownership and Use of Documents The Drawings, Specifications and other documents prepared by the A/E(s), and copies thereof furnished to the Construction Manager and/or its Contractor, are for use solely with respect to this Agreement. 19. Continuing the Work Construction Manager through its Contractor shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with City, including, without limitation, disputes or disagreements concerning the Contract timeframe for completion of the Work. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. All disputes shall be resolved in accordance with Article , Resolution of Contract Disputes and Article _ Mediation -Waiver of Jury Trial. 20. Public Entity Crimes In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, or subcontractor, under a contract with the City, and may not transact any business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section by Construction Manager shall result in cancellation of the City purchase and may result in Construction Manager's debarment. 21. Nondiscrimination. Equal Employment Opportunity. and Americans with Disabilities Act Construction Manager warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Construction Manager or it Contractor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Construction Manager 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 {28062945;1) Page 10 any provision of this Agreement. Construction Manager and its Contractor shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by City, including Trtles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Construction Manager shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. 22 Audit Rights Construction Manager'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 (induding 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 neoessary to adequately permit evaluation and verification of any invoices, payments or claims submitted by the Construction Manager or any of his payees pursuant to the execution of the Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Agreement. Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City's agent or authorized represcntative 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 Construction pursuant to this Agreement. The City's agent or its authorized representative shall have access to the Construction Manager's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audit in compliance with this provision. The City or its authorized representative shall give auditees reasonable advance notice of intended audits. If an audit inspection or examination in accordance with this Article discloses overcharges in excess of 1% except negotiated fees by the Construction Manager to the City, the actual cost of the City's audit shall be paid by the Construction Manager. If the audit discloses contract billing or charges to which Construction Manager is not contractually entitled, Construction Manager 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. 23. OSHA Compliance The Construction Manager warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. 24. Safety Precautions Construction Manager, either itself or through its Contractor, shall comply with all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguardsfor such safety and protection. Construction Manager through its Contractor shall notify owners of adjacent property and utilities when prosecution of the Work may affect them. All damage, injury or loss to any property, caused directly or indirectly, in whole or in part, by Construction Manager, Contractor, any Sub -Contractor or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by Construction Manager. Construction Manager's duties and responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed and City has issued to Construction Manager a notice of Final Acceptance. Construction Manager must adhere to the applicable environmental protection guidelines for the duration {28062945;1} Page 11 of the Project. If hazardous waste materials are used, detected or generated at any time, the City's Project Manager must be immediately notified of each and every occurrence. The Construction Manager shall comply with all codes, ordinances, rules, orders and other legal requirements of public authorities (including, without limitation, OSHA, EPA, DERM, the City, Miami -Dade County, State of Florida, and Florida Building Code) which bear on the performance of the Work. Construction Manager shall have the responsibility to ensure that all Work is performed using adequate safeguards, including but not limited to: proper safe rigging, safety nets, fencing, scaffolding, barricades, chain link fencing, railings, barricades, steel plates, safety lights, and ladders that are necessary for the protection of its employees, as well as the public and City employees. All riggings and scaffolding shall be constructed with good sound materials, of adequate dimensions for their intended use, and substantially braced, tied or secured to insure absolute safety for those required to use it, as well as those in the vicinity. All riggings, scaffolding, platforms, equipment guards, trenching, shoring, ladders and similar actions or equipment shall be OSHA approved, as applicable, and in accordance with all federal state and local regulations. If an emergency condition should develop during the Project, the Construction Manager must immediately notify the City's Project Manager of each and every occurrence. The Construction Manager should also recommend any appropriate course(s) of action to the City's Project Manager. 25. Permits. and Licenses 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 Construction Manager pursuant to this Agreement shall be secured and paid for by Construction Manager. It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency, valid for the Work to be performed and valid for the jurisdiction in which the Work is to be performed for all persons working on the Project for whom a Certificate of Competency is required. 26. Compliance With Laws Construction Manager and its Contractor shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement. 27. Defedive Work The City's Project Manager shall have the authority to reject or disapprove Work which it finds to be defective. If required by the City, Construction Manager, through its Contractor, shall promptly either correct all defective work or remove such defective Work and replace it with non -defective Work. Construction Manager shall bear all direct and indirect costs of such removal or corrections including cost of testing laboratories and personnel. Should Construction Manager, through its Contractor, fail or refuse to remove or correct any defective Work or to make any necessary repairs in accordance with the requirements of the Contract Documents within the time indicated in writing by City, City shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be necessary at Construction Manager'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 Construction Manager. In the event of failure of Construction Manager to make all necessary repairs promptly and fully, which is not cured in the Cure Period, the City may declare Construction Manager in default. 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 Work is found to be defective or not in accordance with the Contract Documents, Construction {28062945;1} Page 12 Manager, 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 Construction Manager might have under the Contract Documents including but not limited to any claim regarding latent defects. Failure to reject any defective work or material shall not in any way prevent later rejection when such defect is discovered, or obligate City to final acceptance. 28. Warranty of Materials and Equipment Construction Manager 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 City, Construction Manager 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. 29. Warranty of Construction The Construction Manager shall warrant that the Work conforms to the Agreement and is free of any patent and/or latent defect of the workmanship for a minimum period of one year from the date of Final Completion. The Construction Manager's obligation under this warranty shall be at its own cost and expense, to promptly repair or replace (including cost of removal and installation), that item (or part or component thereof) which proves defective or fails to comply with the Agreement within the warranty period such that it complies with the Agreement. In the event the Construction Manager fails to repair or replace defective Construction Work in accordance with the terms of the Agreement, and this warranty, the City shall have the right to collect such costs incurred or withhold the cost of the anticipated repairs by offsetting the amount against any payment due the Contractor under any contract between the City and the Contractor. 30. Manufacturer's Warranty Construction Manager shall provide to City all manufacturers' warranties. All warranties, expressed and/or implied, shall be given to the City for all material and equipment covered by this Agreement. All material and equipment furnished shall be fully guaranteed by the Construction Manager against factory defects and workmanship at time of installation. At no expense to the City, the Construction Manager 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. 31. No Damages For Delay In the event of any delays to the Project that are caused by actions or events that are out of the control of the owner or entities hired or control by the owner, the Contractor's sole remedy shall be to seek an extension of time in accordance with the terms of the Agreement. The City shall not be liable for any delay damages or damages attributable to performing Work out of sequence, acceleration claims or other similar type claims, incurred by Contractor arising out of or in any way associated with the performance under this Agreement. 32. Excusable Delay Excusable Delay is caused by circumstances beyond the control of Construction Manager, Contractor, its Sub -Contractors, suppliers and vendors. {28062.945;1 } Page 13 Construction Manager 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. Construction Manager shall document its claim for any time extension as provided in Article 36 hereof. Where Construction Manager 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 32. Construction Manager shall furnish to the City's Project Manager all documentation supporting its claim, including, details of the claim, a description of the work affected and the actual costs resulting from the delay. Where the City agree to an excusable delay and the Work is being performed by a Sub - Contractor, the Contractor shall be paid for actual costs associated with the delay plus 5% for indirect and overhead costs. Where the City agree to an excusable delay and the Work is being performed by the Construction Manager or Contractor's own forces, the Construction Manager or its Contractor shall be reimbursed for actual costs associated with the delay The Construction Manager agrees that the above constitutes its sole and exclusive remedies for an excusable delay. Failure of Construction Manager to comply with Article 32 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. 33. Notification and Claim for Change of Construction Work Time Any claim for a change in the Time for Completion, shall be made by written notice by Construction Manager to the 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 City allows an additional period of time to ascertain more accurate data in support of the claim and such notice shall be accompanied by Construction Manager's written notarized statement that the adjustment claimed is the entire adjustment to which the Construction Manager has reason to believe it is entitled as a result of the occurrence of said event. The Time for Completion will be extended in an amount equal to time lost on critical Work items due to delays beyond the control of and through no fault or negligence of Construction Manager 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. 34. Changes in the Work or Terms of Contract Documents Without invalidating the Agreement and without notice to any Surety, City reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the scope of this Project must be issued in writing in accordance with the requirements of this Agreement Any..changes to the terms of the... Contract Documents must be contained in a written. document, executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any Work reflecting such change. This Article shall not prohibit the issuance of Change Orders executed only by City as hereinafter provided. 35. Force Majeure Should any failure to perform on the part of Construction Manager 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. {28062945;1 } Page 14 If the Construction Manager is delayed in performing any obligation under this Agreement due to a force majeure condition, the Construction Manager shall request a time extension from the City within seven (7) 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 Construction Manager for extra compensation unless additional services are required. Events of Force Majeure include inclement weather except as permitted by Florida law and may not include the acts or omissions of Sub -Contractors. 36. Field Directives The City's Project Manager may at times issue Field Directives to the Contractor based on visits to the Project site. Such Field Directives shall be issued in writing and the Construction Manager shall be required to comply with such directive. Where the Construction Manager believes that the directive is outside the scope of the Work, the Construction Manager shall, within 48 hours, 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 Construction Manager may be required to submit a request for a Change Order proposal. Where the Construction Manager is notified of the City's position that the Field Directive is within the scope and the Construction Manager disagrees, the Construction Manager shall notify the City's Project Manager that the Construction Manager reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Construction Manager refuse to comply with the directive. Failure to comply with the directive may result in a determination that the Construction Manager is in default of the Agreement. 37. Change Orders Changes in the quantity or character of the Construction Work of the Project which are not properly the subject of Field Directives or Supplemental Instructions, including all changes resulting in changes in the contract price, or use of the Contingency shall be authorized only by Change Orders approved in advance and issued in accordance with the provisions of the City. 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 Agreement by $50,000 or more shall be approved in advance by the City Commission. All Change Orders increasing the value of the Agreement, excluding those issued against the contingency by less than $50,000 shall be approved in advance by the City Manager or his designee. All Change Orders issued against the contingency shall be approved by the Director or designee. 38. Value of Change Order Work The value of any Work to be covered by a Change Order, or for any claim for an increase or decrease in the Agreement, or use of the Contingency shall be determined in one of the following ways: • Where the work involved is covered by unit prices contained in the Schedule of Values, by application of unit prices to the quantities of items involved. • By mutual acceptance of lump lump sum which Construction Manager and City acknowledge contains a component for overhead and profit. 39. Inspection of Work The City shall at all times have access to the Work during normal work hours. Inspectors shall have no authority to permit deviations from, nor to relax any of the provisions of the Contract Documents nor to delay the Work by failure to inspect the materials and Work with reasonable promptness without the written permission or instruction of City. The payment of any compensation, whatever may be its character or form, or the giving of any {28062945;1} Page 15 gratuity or the granting of any favor by Construction Manager to any inspector, directly or indirectly, is strictly prohibited, and any such act on the part of Construction Manager will constitute a breach of this Agreement. 40. Submittals All submittals for the Work shall be completed by the A/E. City shall not be liable for any materials, fabrication of products or Work commenced that requires submittals until the City has returned approved submittals to the Contractor. City shall make every effort to review submittals within ten (10) calendar days from the date of receipt by the City. .City'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 City shall return the shop drawings to the Construction Manager for its use and distribution. Approval of any submittal shall not relieve the Construction Manager of any responsibility for any deviations from the requirements of the Contract Documents unless the Construction Manager has given written notice to the City of the specific deviations and the City has issued written approval of such deviations. Construction Manager shall be responsible for the distribution of all shop drawings, copies of product data and samples, which bear the A/E and City's stamp of approval. Distribution shall include, but not be limited to; job site file, record documents file, sub -contractors, suppliers, and other affected contractors or entities that require the information. During the progress of the Work, the Construction Manager shall submit copies of all reports, permits and inspections required by governing authorities, or necessary for the Project. 41. Substitutions Construction Manager shall submit all requests for substitutions to the City for review and approval. All such requests shall include sufficient documentation to support such request. City may request additional information as deemed necessary to properly review such requests. 42. Shop Drawings Construction Manager shall submit Shop Drawings as required by the Contract Documents. The purpose of the Shop Drawings is to show, in detail, the suitability, efficiency, technique of manufacture, installation requirements, and details of the item and evidence of its compliance or noncompliance with the Contract Documents. If the Shop Drawings show or indicate departures from the Contract Documents' requirements, Construction Manager shall make specific mention thereof in its letter of transmittal. Failure to point out such departures shall not relieve Construction Manager from its responsibility to comply with the Contract Documents. City shall review and approve Shop Drawings within ten (10) calendar days from the date received, unless said Shop Drawings are rejected by City for material reasons. City's approval of Shop Drawings will be general and shall not relieve Construction Manager 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 untilthe said Shop Drawings have been approved by City. Approval shall not relieve 'Construction Manager from responsibility for errors or omissions of any sort on the Shop Drawings. No approval will be given to partial submittals of Shop Drawings for items which interconnect and/or are interdependent where necessary to properly evaluate the design. It is Construction Manager's responsibility to assemble the Shop Drawings for all such interconnecting and/or interdependent items, check them and then make one submittal to City along with its comments as to compliance, noncompliance, or features requiring special {28062945;1 } Page 16 attention. If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. Each shop drawing shall be clear, thoroughly detailed and shall have listed on it all Contract Document references, drawing number(s), specification section number(s) and the shop drawing numbers of related work. Shop drawings must be complete in every detail, including location of the work. Materials, gauges, methods of fastening and spacing of fastenings, connections with other work, cutting, fitting, drilling and any and all other necessary information per standard trade practices or as required for any specific purpose shall be shown. Where professional calculations and/or certification of performance criteria of materials, systems, and or equipment are required, the City is entitled to rely upon the accuracy and completeness of such calculations and certifications submitted by the Construction Manager. Calculations, when required, shall be submitted in a neat clear and easy format to follow. Construction Manager shall keep one set of Shop Drawings marked with A/E and City's approval at the job site at all times. 43. Product Data Construction Manager shall submit a copy of product data. Copies must be marked to identify applicable products, models, options and other data. Construction Manager shall supplement manufacturer's standard data to provide information unique to the Construction Work. Construction Manager 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. 44. As -Built Drawings During the Construction Work, Construction Manager shall maintain records of all deviations from the Drawings and Specifications as approved by the City 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 Construction Manager to check the As -Built Drawings for errors and omissions prior to submittal to the City and certify in writing that the As -Built Drawings are correct and accurate, including the actual location of all internal piping, electrical/signal conduits in or below the concrete floor. Indicate the size, depth and voltage in each conduit. Legibly mark to record actual construction: On -site structures and site work as follows: • Depths of various elements of foundation in relation to finish first floor datum. • All underground piping and ductwork with elevations and dimensions and locations of valves, pull boxes, etc. Changes in location. Horizontal and vertical locations of underground utilities and appurtenances, referenced to permanent surface improvements. Actual installed pipe material, class, etc. • Location of internal utilities and appurtenances concealed in the construction, referenced to visible and accessible features of the structure. Air conditioning ducts with locations of dampers, access doors, fans and other items needing periodic maintenance. • Field changes in dimensions and details. {28062945;1} Page 17 • Changes made by City's written instructions or by Change Order. • Details not on original Contract Drawings. • Equipment, conduit, electrical panel locations. • City schedule changes according to Contractor's records and shop drawings. Specifications and Addenda: Legibly mark each section to record: • Manufacturer, trade name, catalog number and Supplier of each product and item of equipment actually installed. • Approved Shop Drawings: Provide record copies for each process, equipment, piping, electrical system and instrumentation system. 45. Requests For information (RFI) The Construction Manager or its Contractor shall submit in writing a Request for Information (RFI) to the City's Project Manager, where the Construction Manager 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. 46. City's Right To Terminate The City has the right to terminate this Agreement for any reason or no reason, upon thirty (30) days Written Notice. Such Written Notice shall state the date upon which Construction Manager 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 Construction Manager shall be paid for Work performed and accepted by the City, provided that said documentation is turned over to City within twenty (20) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Construction Manager until all documentation is delivered to the City. 47. Termination by Default If Construction Manager fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Construction Manager 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 Construction Manager, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Construction Manager while Construction Manager was in default shall be immediately returned to the City. The City may also suspend any payment or part thereof or order a Work stoppage until such time as the issues concerning compliance are resolved. Construction Manager understands and agrees that termination of this Agreement under this Artide shall not release Construction Manager from any obligation accruing prior to the effective date of termination. In the event of termination due to default, in addition to the foregoing Construction Manager 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 Construction Manager until such time as the actions giving rise to default have been cured. A finding of default and subsequent termination for cause may include, without,limitation, any of. the following: • Construction Manager fails to obtain the insurance herein required. • Construction Manager 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. • Construction Manager 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. {28062945;1 } Page 18 The City shall provide Written Notice to Cure to Construction Manager as to a finding of default, and Construction Manager 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 Construction Manager to cure such default in the specified timeframe. 48. Construction Manager's Right To Terminate The Construction Manager shall have the right to terminate this Agreement, in writing, following breach by the City, if breach of contract has not been corrected within thirty (30) days from the date of the City's receipt of a written notice from Construction Manager specifying the Oty's breach of its duties under this Agreement. 49. Materiality And Waiver Of Breach City and Construction Manager agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Agreement. City's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be wnstrued to be a modification of the terms of this Agreement. 50. Acceptance and Final Payment Upon receipt of written notice from Construction Manager that the Construction Work is ready for final inspection and acceptance, NE shall, within ten (10) calendar days, make an inspection thereof. If City's Project Manager find the Work acceptable, the requisite documents have been submitted and the requirements of the Contract Documents fully satisfied, and all conditions of the permits and regulatory agencies have been met, a Final Certificate for Payment (Attachment E) shall be issued by City's Project Manager, over its signature, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance under the terms and conditions thereof. Before issuance of the Final Certificate for Payment, Construction Manager shall deliver to City's Project Manager a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof; an affidavit certifying that all suppliers, Sub -Contractors, and Contractor have been paid in full and that all other indebtedness connected with the Construction Work has been paid; the final corrected As -Built Drawings; the Record Set; and the final bill of materials, if required, and Application for Payment. Construction Manager shall deliver the written Contractor's and all Manufacturer's warranties prior to issuance of the Final Certificate for Payment. If, after the Construction Work has been substantially completed, full completion thereof is materially delayed through no fault of Construction Manager or its Contractor, and A/E so certifies, City shall, upon certificate of City's Project Manager, and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. The acceptance of final payment shall constitute.a waiver of all claims by Construction Manager, except those previously made lin strict accordance with the:. provisions, of. the Agreement and identified by Construction Manager as unsettled at the time of the application for final payment. 51. Resolution Of Contract Disputes Construction Manager 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 Construction Manager, the Director shall render a decision within fourteen (14) calendar days. Where a mutually satisfactory resolution cannot be reached the Construction Manager may submit the dispute to the City {28062945;1} Page 19 Manager or his/her designee for resolution. Where a mutual resolution cannot be reached between the Construction Manager and the City Manager or designee, the Construction Manager, prior to being entitled to seek judicial relief shall comply with Article 51 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. Construction Manager shall not be entitled to seek judicial relief unless: • It has first received City Manager's written decision, approved by the City Commission if applicable, or • A period of sixty (30) days has expired after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation, or a period of (75) days has expired where City Manager's decision is subject to City Commission approval; and • Mediation of the dispute, as stipulated in Article 47, has not resulted in a mutual resolution; or • City has waived compliance with the procedure set forth in this Article by written instrument(s) signed by the City Manager. 52. Mediation - Waiver Of Jury Trial In an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and/or construction of the Project, and/or following the completion of the Project, the parties to this Agreement agree all unresolved disputes between them shall be submitted to non -binding mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties. A certified Mediator, who the parties find mutually acceptable, will conduct any Mediation Proceedings in Miami -Dade County, State of Florida. The parties will share the costs of a certified Mediator on a 50/50 basis. 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. 53. Substantial Completion, Punch List & Final -Completion The Construction Work shall be substantially complete when the City's Project Manager, in the reasonable exercise of his/her discretion determines that the Construction Work is complete and there are no material and/or substantial variations from the Agreement and the Construction Work is fit for its intended purpose. Upon Substantial Completion, City's Project Manager and the Construction Manager shall sign the Substantial Completion Inspection Form. The signing of this form shall not relieve the Construction Manager from its obligation to complete the Project. When the Construction Manager believes that the Construction Work is substantially complete, the Construction Manager shall request in writing that the City inspect the Construction Work to determine if Substantial Completion has been achieved. No request for Substantial Completion inspection is to be submitted until the Construction Manager has obtained a Certificate(s) of Occupancy, Certificate of Completion or Completion or a Temporary Certificate of Occupancy. The City shall schedule the date and time for any inspection and notify the Construction Manager and any other parties deemed necessary. During this inspection, the Project Substantial Completion Inspection Form, (Attachment B), will be completed as necessary. Any remaining Construction Work shall be identified on this form and shall be known as Punch List work. The Punch List, (Attachment C), shall be signed by the City's Project Manager and the Construction Manager _confirming that the Punch List contains the item(s) necessary.. to complete the Construction Work. The failure or refusal of the Construction Manager to sign the Project Substantial Completion Inspection Form or Punch List shall not relieve the Construction Manager from complying with the findings of the Project Substantial Completion Inspection and completing the Project to the satisfaction of the City Where the Punch List is limited to minor omissions and defects, the City shall indicate that the Construction Work is substantially complete subject to completion of the Punch List. Where the City determines, on the appropriate form that the Work is not substantially complete, the {28062945;1) Page 20 City shall provide a list of al! open items necessary to achieve Substantial Completion. Upon completion of such Construction Work, the Construction Manager shall request another Substantial Completion inspection. The City's Project Manager and the Construction Manager shall agree on the time reasonably required to complete all remaining Work included in the Punch List. Upon the receipt of all documentation, resolution of any outstanding issues and issuance of final payment, the City shall notify the Construction Manager in writing of the closeout of the Project. The City will prepare a Certificate of Substantial Completion in the form attached hereto as Attachment D which shall establish the Date of Substantial Completion. Once substantial completion is achieved the City shall be responsible for security, maintenance, heat, utilities, damage to the Project site, and insurance; and shall list all Construction Work yet to be completed to satisfy the requirements of the Contract Documents for Final Completion. The failure to include any items of corrective work on such list does not alter the responsibility of Construction Manager 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. 54. 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 Construction Manager's duties to indemnify the City under this Agreement where Construction Manager shall pay the City's reasonable attorney's fees. 55. Independent Contractor Construction Manager is an independent contractor under this Agreement. Services provided by Construction Manager pursuant to this Agreement shall be subject to the supervision of Contractor. In providing such services, neither Construction Manager nor its agents shall act as officers, employees, or agents of the City. Construction Manager further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Construction Manager, and agrees to provide workers' compensation insurance for any employee, or entity working for the Construction Manager rendering services to the City under this Agreement. This Agreement shall not constitute or make the parties a partnership or joint venture. 56. Successors And Assigns The performance of this Agreement shall not be transferred pledged, sold, delegated or assigned, in whole or in part, by the Construction Manager without the written consent of the City.- It is understood that a sale of the majority of the stock or partnership shares of the Construction Manager, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. The Construction Manger'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 Construction Manager shall have no recourse from such cancellation. The City may require bonding, other security, {28062945;1 } Page 21 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. 57. Third Party Beneficiaries Neither Construction Manager nor the Clty intends to direly 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 daim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. 58. 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 purpo cs only and shall not affect in any way the meaning or interpretation of this Agreement All personal pronouns used in this Agreement shall indude the other gender, and the singular shall indude the plural, and vice versa, unle the context otherwise requires. Tears 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 Agreernent, such refererm is to the Section or Artide as a whole, inducting all of the subsections of such Section or Artide, unlc the refer enoe is made to a particular 59. Amendments No modification, amendment, or alteration in the tears 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 Construction Manager. 60. Severability In the event the any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenfonoeable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights of either party, such party may elect, at its option, to terminate this Agreement in its entirety. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 61. Entire Agreement This Agreement, as it may be amended from time to time, represcnts the entire and integrated agreement between the City and the Construction Manager 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 Le a waiver of any other breach {28062945;1} Page 22 CITY OF MJAMI ATTACHMENT B DEPARTMENT OF CAPITAL IMPROVEMENTS 114 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. ❑ 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. {28062945;1} Simpson Park Page 23 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 Fist items must be completed on or before the mutually agreed upon date of Contractor City of Miami Accepted By: Approved By: Name Name Signature Signature {28062945;1} Page 24 CITY OF NIIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS 444 NW 2a) AVENUE NIIAMI, 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 {28062945;1} 25 Simpson Park Page Punch List developed and agreed to by: Project Manager: Contractor: Consultant: {28062945;1) 26 PROJECT: (name, address) TO (City): DATE OF ISSUANCE: ATTACHMENT D CERTIFICATE OF SUBSTANTIAL COMPLETION: AGREEMENT NUMBER: CONS [RUCTION MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: PROJECT OR DESIGNATED PORTION SHALL INCLUDE: The Work perfoiuied 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 all 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. {28062945;1} Page 27 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. City By Date In accordance with Agreement, Construction Manager will complete or correct the work on the list of items attached hereto within from the above Date of Substantial Completion. City 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: {gliN 16.6)Park Page28 PROJECT: (name, address) TO (City): DATE OF ISSUANCE: ATTACHMENT E FINAL CERTIFICATE OF PAYMENT: BID/CONTRACT NUMBER: CONSTRUCTION MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: 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 (Time) (Date) City of Miami, Florida By Director Date {28062945;1} Page 29 IN WITNESS WHEREOF, the parties have set their hands and seals on the day and year first shovewtitten City ofMiami, amuricipal corporation ATTEST: BY ToddAHannon, CityCie& JohnnyMari$nez,CityManaga "Construction Manager" Al'EST: Oak Plaza Associates (Del.) LLC, a Delaware limited liability company By: Name: Name: Title: Title: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Calvin Ellis Risk Management Director CITY OF MIAMI, FLORIDA PUBLIC NOTICE As required by Section 255.20, Florida Statutes, and in accordance with Section 18-85 (a) of the City Code of the City of Miami, the City Commission of the City of Miami, Miami -Dade County, Florida, will conduct a public hearing in the Commission Chambers of Miami City Hall, 3500 Pan American Drive, Miami, Florida, on Thursday, February 27, 2014, at 9 a.m., to consider whether it is practical or advantageous and in the public's best interest to waive competitive sealed bids for the Design District Roadway and Stormwater Improvements, Project No. B-30985, with the construction of stoma drainage, sanitary sewer, water distribution, sidewalks, curbing, paving, sidewalk pavers, tabletop crossings, trees, and lighting (the "Right -of -Way Improvements") along NE 38th and 39th Streets between NE 1st and 2nd Avenues, Miami, Florida 33137 and, per F.S. 255.20, authorize the award of the Right - of -Way Improvements to Oak Plaza Associates (Del.), LLC, a Delaware limited liability company, ("Oak Plaza") who through it contractor, Coastal Construction Group of South Florida, Inc. ("Coastal"), an appropriately licensed contractor uniquely qualified to undertake the Right -of -Way Improvements, because Oak Plaza is currently completing similar improvements in the immediate area of the Miami Design District. The Right -of -Way Improvements are estimated to cost approximately $1,500,000 to be funded with $500,000 in proceeds from the City of Miami Capital Improvements Budget and grant proceeds in the amount of $1 million from the State of Florida. The Right -of -Way Improvements are located within the Miami Design District. The City Manager will present written findings to the City Commission which shall contain reasons supporting the conclusion that competitive sealed bidding is not practicable or advantageous to the City, which findings must be ratified and the contract award approved by an affirurative vote of four -fifths 4/5d, of the City Commission. All interested parties may appear and be heard at the time and place specified. Persons who decide to appeal any decision made by the City Commission with respect to any matter considered at its meeting or hearing, will need a record of the proceedings. Such persons may need to ensure that a verbatim record of the proceedings is made, including the testimony and evidence upon which the appeal is based. The City of Miami provides equal access and equal opportunity and does not discriminate on the basis of disability in its programs or services. For material in alternate format, a sign language interpreter or other accommodation, please call (305) 250-5360. (# ) Todd B. Hannon City Clerk (28023217;1}