Loading...
HomeMy WebLinkAboutExhibit (Version 2) SUBDevelopment Management Agreement By and Between The City Of Miami And Oak Plaza Associates (Del.), LLC For The Design District Improvements, B-30985 Department of Capital Improvements 444 SW 2nd Avenue, 8th Floor Miami, Florida 33130 {28998817;2} THIS DEVELOPMENT MANAGEMENT AGREEMENT (hereinafter "the Agreement"), made and entered into this day of June, 2014 by and between the City of Miami, Florida, a Florida municipal corporation (hereinafter, the "City"), and Oak Plaza Associates (Del.), LLC, a Delaware limited liability company doing business in the State of Florida, (hereinafter, "Development Manager" or "Oak Plaza"). WITNESSETH: WHEREAS, the City desires to enter into an Agreement for the enhancements to portions of City -owned public rights -of -way along NE 38th & 39t11 Streets between NE 1st and 2nd Avenues in the Miami Design District (the "Project"), and WHEREAS, Development Manager represents that it possesses the requisite expertise and desires to enter into an Agreement to act as the development manager to provide the services as set forth herein; and WHEREAS, pursuant to the applicable provisions of Chapter 163, Florida Statutes, Section 3.9 of the Miami 21 Code, and per Ordinance No. 13335, adopted on July 26, 2012, the City Commission approved a Development Agreement in conjunction with the Miami Design District Retail Street Special Area Plan ("SAP") which Development Agreement requires that Oak Plaza's affiliates undertake certain improvements in the public infrastructure and the public right-of-ways; and WHEREAS, this AGREEMENT serves a municipal purpose and primarily effectuates a public purpose furthering the general health, safety and welfare of the City as it enhances, improves and embellishes the public infrastructure and right-of-ways, and thoroughfares in the "Design District" of the City which is with each passing day becoming a more renown District which benefits the City and South Florida with premier design and decoration related establishments, and further offers arts and crafts, fine restaurants, boutique and fine interior design stores, among many other attractions to residents, guests and visitors; and WHEREAS, pursuant to Resolution No. 13-0437, passed on October 24, 2013, the City Commission allocated the required $500,000.00 to match in order to secure the appropriation and the Grant Funds proceeds in the amount of $1,000,000.00 from the State of Florida; and WHEREAS, this Agreement implements the expenditure of a sum not to exceed $1,500,000.00 by the City to be expended solely on work within the public infrastructure and right-of-ways which money is a not a charge against the general funds or accounts of the City but is limited to the $500,000.00 snatching funds to be contributed by the City as a match to the $ 1,000,000.00 Department of Economic Opportunity Division of Community Development ("DEO") Grant Funds contingent upon the provision of a match in the amount of $500,000.00 from the City, which funding has been allocated solely from the City's Capital hmprovements Program ("CIP") Design District Roadway and Stormwater Project No. B-30985 to underwrite the costs of Public Infrastructure and Public Right -of -Way hnprovements within the Miami Design District; and {28998817;2} WHEREAS, Development Manager has agreed to retain Coastal Construction of Miami -Dade County, Inc. ("Contractor") 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. 14-00108 on March 27, 2014; NOW THEREFORE, in consideration of the mutual covenants set forth herein the City and Development Manager, agree as follows: Section 1 - Terms and Conditions 1. Incorporation by Reference; Overview The foregoing recitals, the Exhibits to this Agreement, and the prior Agreements, ordinances and resolutions referenced in this Agreement are all deemed as being incorporated by reference herein as if set forth in full in this Section of the Agreement. This Agreement covers the services of Development Manager for the procurement and completion of the construction of the right-of-way improvements, through the Contractor (as defined below) which consists of enhancements to the portions of NE 38th and 39t1i 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"). The Work under this Agreement will be solely performed over areas which are owned by a public agency (e.g. City, County or State). No work under this Agreement will be performed on privately owned property. The Work is more fully described in the plans and specifications included in Attachment "A" (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 Development Manager, through its 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 Development Manager shall require that Contractor comply therewith. City shall have no duties other than those duties and obligations expressly set forth herein. {28998817;2}2 3. Definitions Architect/Engineer means the Architectural and/or Engineering firm(s) retained by the Development 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. ii. City Commission means the legislative body of the City of Miami. iii. City Manager means the duly appointed chief administrative officer of the City of Miami. iv. 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. v. Development Manager is the entity who provides development services for the City as Owner for the Design and Construction Phases of this Project covered by this Agreement. The Development Manager possesses the requisite training and experience to make decisions on behalf of the Owner and give advice on the time and cost consequences of design and construction decisions, scheduling, cost control, coordination of contract negotiations and awards, timely purchasing of critical materials and long -lead items, and coordination of development activities. The Development Manager under this Agreement is Oak Plaza. The Development Manager is responsible for supervising and directing the Contractor for the work funded by this Agreement. Development Project Manager means the person designated by Development Manager as its lead representative to the City. The person is an agent of the Development Manager and his or her actions bind the Development Manager. The Development Project Manager shall have the authority to obligate and bind Development Manager and to act on all matters on behalf of Development Manager except for revisions to the Contract Documents. The Development Manager shall mean Oak Plaza Associates (Del) LLC . vi. Construction Change Directive means a written directive to effect changes to the Work, prepared by the A/E and or Development Manager and executed by the City {28998817;2}3 vii. Contract Documents means this the documents described in Section 1, Article 6 of this Agreement. viii. Contractor means the entity responsible, pursuant to its Construction Agreement with Oak Plaza or its related companies for performing the work in the Design District and who is licensed, bonded, and insured to perform this Work in accordance with the ternis of the Agreement(s) between Oak Plaza or its affiliates and the Contractor. The Contractor under this Agreement is Coastal Construction of Miami -Dade County, Inc.. The Contractors means and methods of construction are as performed by it under applicable laws, rules, regulations, codes and construction practices. ix. Construction Work means all Work required by this Agreement. x. Contract Time means the time period defined in this Agreement for the Development Manager to complete the Project. xi. Cure means the action taken by the Development 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 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. xii. Cure Period means the period of time in which the Development 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. xiii. Design Documents means the construction plans and specification prepared by A/E(s) for this Project under separate agreement(s) with the Development Manager. xiv. 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. xv. 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 as prepared by the A/E(s) in Attachment "A". xvi. Field Directive means a written approval for the Development 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. {28998817;2}4 xvii. Final Completion means the date subsequent to the date of Substantial Completion at which time the Development 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. xviii. Guaranteed Maximum Cost means the sum established in this Agreement and related documents as the maximum cost to the City for performance of all work pursuant to the terms of this Agreement. The guaranteed maximum cost to the City is $1,500,000.00, which consists of the City's matching grant and the DEO grant funds referenced in the Whereas clauses. The City shall not be liable for any reimbursable expenditure, cost, fee, charge, damage, expense, assessment or imposition relative to or arising by virtue of this Agreement beyond the $500,000.00 matching grant contribution comprising its portion of the Guaranteed Maximum Cost. This guaranteed maximum cost ("GMC") shall be the maximum cost to the City for performance of the Work. The City acknowledges that it will cost more to complete the Work. However, any excess cost over the GMC and not included in an approved Change Order or CCD shall be paid for Oak Plaza or others. xix. 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 Development Manager, through its Contractor, may begin Work on the Project or a specific task of the Project. xx. 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 which has not been delegated to the Development Manager. xxi. Project means the construction of the Work specified in this Agreement as contemplated and budgeted by the City. xxii. Punch List means a compilation of items of Construction Work required to be performed by, or through the Development Manager prior to or after the Substantial Completion inspection and prior to Final Completion and payment. xviii. 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. xxiv. Request For Information (RFI) means a request from the Contractor seeking 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 {28998817;2}5 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. xxv. 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. xxvi. 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. xxvii. 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. xxviii. Sub-Contractor(s) means a person or entity other than a material person or laborer that has a direct contract with the Contractor to perform or supply a portion of the Construction Work. xxix. Submittals mean documents prepared by the Development 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. xxx. 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. xxxi. Work as used herein refers to all pre -construction, construction and other services required by the Contract Documents, including all labor, materials, equipment, procurement and services needed to complete the Project. 4. Scope of Work Development 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 "A", and in accordance with the Contract Documents. {28998817;2}6 5. Contract Value and Project Cost The Development Manager shall comply with the terms of this Agreement for no compensation. Payments shall be made for Work actually performed and accepted by the City. Total cost to complete the Project is estimated to cost approximately $1.5 million allocated under this Agreement. The Development Manager shall cover or ensure that others cover any and all cost overruns necessary to complete the Project. 6. Tine is of the Essence; Time for Completion; Term Time is of the essence in the performance of this Agreement. Development 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. Development Manager shall ensure that all Work under this Agreement is substantially completed by June 30, 2014. The term of this Agreement shall be from the date of City Commission approval on March 27, 2014 through June 30, 2014 , unless extended by mutual written agreement of the parties for a period not to exceed thirty(30) days. 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 Development 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 tern, statement, 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 {28998817;2}7 • 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 Development Manager may make Application for Payment for Work completed during the Project at intervals of not more than once a -month. Development Manager's Application for Payment shall be accompanied by a conditional partial release of liens relative to the Construction Work, which is the subject of the Application for Payment and any other information reasonably required by the City. Each Application for Payment shall be submitted in triplicate to City's Project Manager for approval. City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from loss on account of: • Defective Construction Work not remedied. • Claims filed by other parties against Development Manager, Contractor or City because of Development Manager and/or Contractor's negligent performance of the Work. {28998817;2}8 • Failure of Development Manager to make payments properly to its Contractor or Sub -Contractors or for material or labor arising out of the Work. ■ Failure of Development Manager to provide any and all documents required by the Contract Documents. 10. Payment Payment by the City of an approved Application for Payment approved by the A/E shall be made within twenty-five (25) days after receipt of Development Manager's Application for Payment to the City, which shall be accompanied by reasonably sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. All payment applications shall be sufficiently detailed so as to meet the definition of a "payment request for construction services" as that tern is defined in §218.72, Fla. Stat., the Definitions section of the "Local Government Prompt Payment Act". City acknowledges that payment will not be unreasonably withheld or delayed. No interest shall accrue on late payments. 11. Progress Meetings Development Manager and the City's Project Manager shall hold construction progress meetings as deemed necessary to ensure the timely completion of the Work, but not more often than once a month. 12. Indemnification Development Manager Indemnity. Development Manager and Contractor, by rider , addendum or amendment to its construction contract with Oak Plaza, shall jointly and severally indemnify, defend, save 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 Development Manager and persons employed or utilized by Development Manager in the performance of this Agreement and/or from any acts or omissions relative to the permitted work and/or to the services being perfoinied by the Development Manager and/or the Contractor which are funded in whole or in part by virtue of this Agreement and/or the failure of either the Development Manager or the Contractor to perform their respective work in accordance with the terns of this Agreement, the design documents, the construction contract between the Contractor and the Development Manager or the failure of either of them to perform their respective work in accordance with applicable laws, codes, rules and regulations. Development Manager's obligations hereunder shall apply even if part of the damage or injury is caused by the City. These indeimufications shall survive the tern or cancellation of this Agreement. In the event that any action or proceeding is brought against City by reason of any such claim or demand, Development Manager shall, upon written notice from City, resist and defend such action or proceeding by counsel satisfactory to City. Notwithstanding anything to the contrary herein, Development Manager and Contractor shall not be required to provide an indemnification obligations beyond what is provided for in Florida Statutes, Section 725.08, if applicable under Florida law. . {28998817;2}9 The indemnification provided above shall obligate Development Manager to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City Attorney's sole option, through counsel designated by the City Attorney, any and all claims of liability and all suits and actions of every name and description arising by, through or related to this Agreement or related to any work, materials or equipment perfonned which is funded in whole or in part by this Agreement above which may be brought against City whether performed by Development Manager, or persons employed or utilized by the Development 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. Statutes, if a applicable. Notwithstanding anything to the contrary herein, Development Manager shall not be required to provide any indemnification obligations beyond what is provided for in §725.06(2) and (3), Fla. Statutes., if applicable under Florida law. Additionally, Development Manager shall not be required to indemnify the City for the City's own negligence. Development Manager's indemnity and defense obligations shall be capped at the greater of the insurance proceeds available and actually paid or if no insurance proceeds are paid the amount paid by the City pursuant to this Agreement. Development Manager shall require all construction agreements it has with the Contractor, including, those with Coastal Construction, funded by the terns of this Agreement to include a provision that they will indemnify the City. The Development Manager agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Development Manager in which the City participated either through review or concurrence of the Development Manager's actions. In reviewing, approving or rejecting any submissions by the Development Manager or Contractor or other acts of the Contractor, the City in no way assumes or shares any responsibility or liability of the Development Manager, Contractor or Sub -Contractor under this Agreement. The City agrees and recognizes that the Development Manager shall not be held liable or responsible for any claims which may result from any actions or omissions of the City in which the Development Manager participated either through review or concurrence of the City's actions. 13. Insurance/ Bonding The Development Manager shall not authorize the initiation of any Work under this Agreement until the Development Manager has obtained, or required its Contractor to obtain, the insurance required and the City's Risk Management Director has approved such insurance. The insurance listed on Exhibit F attached to this Agreement will be the required insurance for this Agreement . Companies Providing Coverage {28998817;2} 10 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 Development 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 Development Manager or its Contractor has obtained insurance of the type, amount and classification as required by Exhibit F in excess of any pending claims at the time of contract award to the Development Manager. Development Manager shall maintain or require its Contractor to maintain coverage with equal or better rating as identified herein for the tern of this Agreement. Development Manager shall provide written notice to the Risk Administrator of any material change, cancellation and/or notice of non -renewal of the insurance within thirty 30 days of the change. Development 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 Development Manager be authorized to construct the Project, without limiting any of the other obligations or liabilities of Development Manager, Development Manager 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 coverage set forth in Exhibit B attached herein. Submittal of Certificates Development Manager shall furnish to the City of Miami Risk Management 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 naive the types of policies provided, refer specifically to this Contract, and state that such insurance is as required by this Contract. The City of Miami shall be a named insured, or co-insured, on all policies of insurance required by this Agreement, excluding only Worker's Compensation. The official title of the Owner is the City of Miami, Florida. This official title shall be used in all insurance documentation. {28998817;2} 11 The Development Manager on or before the commencement of any Work being funded by this Agreement shall require that its Contractor Coastal Construction obtain a Payment and Performance Bond in the minimum amount of One Million and Five Hundred Thousand ( $1, 500,000 ) Dollars , in substantially the form prescribed by § 255.05, Fla. Stat. , naming the City of Miami as the oblige of such bond. Such bond will provide that the contractor named in the bond, Coastal Construction, will properly and timely pay all legal debts arising from the construction work and will perform the Work referenced in this Agreement in accordance with the terms of this Agreement , all applicable laws, codes and regulations, and its construction contract with the Development Manager,. The required payment and performance bond will be furnished to the Director prior to the commencement of any Work under this Agreement. The bond will be issued by a surety licensed to do business in the State of Florida and rated A:V or better per A.M. Best's Key Rating Guide, latest edition. 14. Modifications to Coverage and Owner's Controlled Insurance Program The City through its Risk Management Director 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 Development 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 borne by the Development Manager or Contractor, as applicable Notwithstanding the insurance requirements required by the City in this Agreement, the City acknowledges that Oak Plaza already has in place an Owner Controlled Insurance Program ("OCIP") for the Project the details of which are attached hereto as Attachment "G". To the extent there is any conflict between the City's insurance requirements of this Agreement and the OCIP, the OCIP requirements shall control. The parties shall reasonably cooperate with each other to coordinate the City's insurance requirements with those of the OCIP. 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 delegated to the Development Manager or modified in writing by the City. All instructions to the Development Manager shall be issued in writing. All instructions to the Development Manager shall be issued through the Director or Project Manager. {28998817;2 } 12 The Project Manager shall have access to the Project Site. The Development 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 Development Manager's (through its Contractor) failure to carry out the Construction Work in accordance with the Agreement. The Project Manager will have authority to reasonably 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 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 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 Development 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 Development Manager, its Contractor, or anyone employed or contracted directly or indirectly by the Development 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 Development Manager or its Contractor. Development 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 Development Manager and/or its Contractor, are for use solely with respect to this Agreement. 19. Continuing the Work {28998817;2 } 13 Development 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 tirnefrarme 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 51, Resolution of Contract Disputes and Article 52 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 Development Manager shall result in cancellation of the City purchase and may result in Development Manager's debarment. 21. Nondiscrimination; Equal Employment Opportunity and Americans with Disabilities Act Development 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 Development Manager or it Contractor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Development 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 any provision of this Agreement. Development 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 Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Development Manager shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. 22. Audit Rights At any time during normal business hours and after reasonable notice has been provided, there shall be made available to the City and/or representatives of the City to audit, examine, and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other reasonable data in Development Manager's possession and relating to this Agreement. It is further understood that all records and supporting documents pertaining to this Agreement shall be maintained for a minimum period of four (4) years. The retention and access period starts from the date of the submission of the annual performance and evaluation report in {28998817;2} 14 which the specific activity is reported for the final time. The Contractor must request approval from the City before disposing of any records under this Agreement. Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City's agent or authorized representative shall have access to said records from the effective date of this Agreement, for the duration of the Work, and until 4 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 Development Manager'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. If an audit inspection or examination in accordance with this Article discloses overcharges in excess of 2% except negotiated fees by the Development Manager to the City, 50% of the actual cost of the City's audit shall be paid by the Development Manager. If the audit discloses contract billing or charges to which Development Manager is not contractually entitled, Development 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. If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the four (4) year period, the records must be retained until completion of the action and resolution of all issues which arise from it or until the end of the four (4) year period, whichever is later. During the course of an audit, if the City determines that any payment made to the Development Manager does constitute an allowable expenditure, then the City will have the right to deduct or reduce those amounts from the related invoices. The Development Manager must maintain records necessary to document compliance with the provisions of the Agreement. The Development Manager acknowledges that additionally the City has the audit and inspection rights set forth in § 18-100 to §18-102, City Code, as amended. 23. OSHA Compliance The Development 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 Development 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 safeguards for such safety and protection. Development 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 Development 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 Development Manager. {28998817;2} 15 Development 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 Development Manager a notice of Final Acceptance, said notice shall not be unreasonably withheld or delayed. Development Manager 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 City's Project Manager must be immediately notified of each and every occurrence. The Development 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. Development Manager shall require that Contractor ensure that all Work is perfommed 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 Development Manager must immediately notify the City's Project Manager of each and every occurrence. The Development 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 Development Manager pursuant to this Agreement shall be secured and paid for by Development 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 Development 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. Defective 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, Development Manager, through its {28998817;2} 16 Contractor, shall promptly either correct all defective work or remove such defective Work and replace it with non -defective Work. Development Manager shall bear all direct and indirect costs of such removal or corrections including cost of testing laboratories and personnel. Should Development 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 a reasonable time after notice in writing provided by the City, the City shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be reasonably necessary at Development Manager's expense. Any reasonable 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 Development Manager. In the event of failure of Development Manager to make all necessary repairs promptly and fully, which is not cured in the Cure Period, the City may declare Development 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, Development 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 Development Manager might have under the Contract Documents including but not limited to any claim regarding latent defects. 28. Warranty of Materials and Equipment Development Manager through its Contractor warrants to City that all materials and equipment furnished under this Agreement will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All equipment and materials not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by City, Development 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 Development Manager, through its Contractor shall warrant that the Work conforms to the Agreement and is free of any patent and/or latent defect of the workmanship for a minimum period of one year from the date of Substantial Completion. The Development 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 {28998817;2} 17 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. 30. Manufacturer's Warranty Development Manager through the Contractor shall provide to City all manufacturers' warranties. All warranties, expressed and/or implied, shall be given to the City for all material and equipment covered by this Agreement. All material and equipment furnished shall be fully guaranteed by the Development Manager, through the Contractor against factory defects and workmanship at time of installation. At no expense to the City, the Development 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. 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. No claim for damages or any claim, other than for an extension of time, shall be made or asserted against the City by reason of any delays except as provided herein. Development Manager shall not be entitled to an increase in the Contract Price or payment or compensation of any kind from City for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable. Otherwise, Development Manager shall be entitled only to extensions of the Contract Time as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above. 32. Excusable Delay Excusable Delay is caused by circumstances beyond the control of Development Manager, Contractor, its Sub -Contractors, suppliers and vendors. Development 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. Development Manager shall document its claim for any time extension as provided in Article 36 hereof. Where Development 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. Development Manager shall furnish to the City's Project Manager all {28998817;2} 18 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 agrees, in writing to an excusable delay and the Work is being performed by the Development Manager, the Development Manager shall be reimbursed for actual , direct costs associated with the delay. The Development Manager agrees that the above constitutes its sole and exclusive remedies for an excusable delay. Failure of Development Manager to materially 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. The Guaranteed Maximum Cost can never be exceeded or increased, except by an approved change order or approved Construction Change Directive ("CCD"). 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 Development 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 Development Manager's written notarized statement that the adjustment claimed is the entire adjustment to which the Development 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 Development 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 {28998817;2} 19 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 Development Manager be due to a condition of force Znajeure as that tern is interpreted under Florida law, then the City shall allow an extension of time reasonably commensurate with the cause of such failure to perform or cure. If the Development Manager is delayed in performing any obligation under this Agreement due to a force majeure condition, the Development Manager shall request a time extension from the City within seven (7) working days of said force rajeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Development Manager for extra compensation. Events of Force Majeure include inclement weather except as permitted by Florida law and may not include the acts or omissions of the general contractor or any Sub -Contractors. 36. Field Directives The City's Project Manager may at tunes issue Field Directives to the Development Manager based on visits to the Project site. Such Field Directives shall be issued in writing and the Development Manager shall be required to comply with such reasonable directives. Where the Development Manager believes that the directive is outside the scope of the Work or unreasonable, the Development Manager shall, within 48 hours, advise the City's Project Manager that the Field Directive is either unreasonable and/or outside the scope of the Work. At that time the Field Directive may be rescinded or the Development Manager may be required to submit a request for a Change Order proposal. Where the Development Manager is notified of the City's position that the Field Directive is within the scope and/or reasonable and the Development Manager disagrees, the Development Manager shall notify the City's Project Manager that the Development Manager reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Development Manager unreasonably refuse to comply with the directive. Failure to reasonably comply with the directive may result in a determination that the Development 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 time shall be authorized only by Change Orders approved in advance by City and Development Manager and issued in accordance with the terns of this Agreement. 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 {28998817;2}20 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 by less than $50,000 shall be approved in advance by the City Manager or his 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, shall be determined in one of the following ways: • Where the work involved is covered by unit prices contained in the Schedule of Values, by application of unit prices to the quantities of items involved. • By mutual acceptance of a lump sum which Development 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, or to relax any of the provisions of the Contract Documents or 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 forn, or the giving of any gratuity or the granting of any favor by Development Manager to any inspector, directly or indirectly, is strictly prohibited, and any such act on the part of Development Manager will constitute a breach of this Agreement. 40. Submittals All submittals for the Work shall be completed by the Architect/ Engineer ("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 Development Manager for its use and distribution. Approval of any submittal shall not relieve the Development Manager and Contractor of any responsibility for any deviations from the requirements of the Contract Documents unless the Development Manager has given written notice to the City of the specific deviations and the City has issued written approval of such deviations. {28998817;2}21 Development 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 Development Manager shall submit copies of all reports, permits and inspections required by governing authorities, or necessary for the Project. 41. Substitutions Development 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 Development Manager, through the Contractor shall submit Shop Drawings as required by the Contract Documents. The purpose of the Shop Drawings is to show, in detail, the suitability, efficiency, technique of manufacture, installation requirements, and details of the item and evidence of its compliance or noncompliance with the Contract Documents. If the Shop Drawings show or indicate departures from the Contract Documents' requirements, Development Manager, through the Contractor shall make specific mention thereof in its letter of transmittal. Failure to point out such departures shall not relieve Development 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 Development Manager, through the Contractor of responsibility for the accuracy of such Shop Drawings, nor for the proper fitting and construction of the work, nor for the furnishing of materials or work required by the Contract Documents and not indicated on the Shop Drawings. No work called for by Shop Drawings shall be performed until the said Shop Drawings have been approved by City. Approval shall not relieve Development 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 Development Manager's, through the Contractor'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 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. {28998817;2}22 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 Development Manager. Calculations, when required, shall be submitted in a neat clear and easy format to follow. Development Manager shall keep one set of Shop Drawings marked with A/E and City's approval at the job site at all tunes. 43. Product Data Development Manager, through the Contractor shall submit a copy of product data. Copies must be harked to identify applicable products, models, options and other data. Development Manager, through the Contractor shall supplement manufacturer's standard data to provide information unique to the Construction Work. Development Manager, through the Contractor shall only submit pages that are pertinent. Submittals shall be marked to identify pertinent products, with references to the specifications and the Contract Documents. Identify reference standards, performance characteristics and capacities, wiring and piping diagrams and controls, component parts, finishes, dimensions and required clearances. 44. As -Built Drawings During the Construction Work, Development Manager, through the Contractor 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 Development Manager, through the Contractor to check the As -Built Drawings for errors and omissions prior to submittal to the City and certify in writing that the As -Built Drawings are correct and accurate, including the actual location of all internal piping, electrical/signal conduits in or below the concrete floor. Indicate the size, depth and voltage in each conduit. Legibly mark to record actual construction: On -site structures and site work as follows: • Depths of various elements of foundation in relation to finish first floor datum. {28998817;2}23 • All underground piping and ductwork with elevations and dimensions and locations of valves, pull boxes, etc. Changes in location. Horizontal and vertical locations of underground utilities and appurtenances, referenced to permanent surface improvements. Actual installed pipe material, class, etc. • Location of internal utilities and appurtenances concealed in the construction, referenced to visible and accessible features of the structure. Air conditioning ducts with locations of dampers, access doors, fans and other items needing periodic maintenance. • Field changes in dimensions and details. • Changes made by 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 Development Manager or its Contractor shall submit in writing a Request for Information (RFI) to the City's Project Manager, where the Development 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 Manager 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 Development 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 Development 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 Development Manager until all documentation is delivered to the City. In such event, the City shall pay to Development Manager Compensation for Services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable {28998817;2 } 24 to Development Manager for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. 47. Termination by Default If Development Manager fails to comply with any material term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Development 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 Development Manager, terminate this Agreement. 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. Development Manager understands and agrees that termination of this Agreement under this Article shall not release Development 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 Development 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 Development Manager until such time as the actions giving rise to default have been cured. In no event shall the Development Manager be liable to the City for any additional expenses incurred, other than that provided herein, and in no event shall the Development Manager be liable for any consequential or incidental damages. A finding of default and subsequent termination for cause may include, without limitation, any of the following: • Development Manager fails to obtain the insurance herein required. • Development Manager fails to comply with any of its duties under this Agreement, with any terns or conditions set forth in this Agreement beyond the specified period allowed to cure such default. • Development Manager fails to commence the Work within the tilnefranes provided or contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement. The City shall provide Written Notice to Cure to Development Manager as to a finding of default, and Development Manager shall take all necessary action to Cure said default within such time as stipulated in the Written Notice. Such Written Notice shall provide a minimum of 30 days to Cure any alleged default. Such time to Cure shall be at the sole discretion of the City, but be no less than 30 days. The City may extend the Cure Period at its sole discretion or terminate the Agreement upon failure of the Development Manager to cure such default in the specified timefrane. 48. Development Manager's Right to Terminate The Development 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 {28998817;2}25 City's receipt of a written notice from Development Manager specifying the City's breach of its duties under this Agreement. The City shall only be responsible for payment of Development Manager compensation for Services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable to Development Manager for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. 49. Materiality and Waiver of Breach City and Development Manager agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Agreement. The parties 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. 50. Acceptance and Final Payment Upon receipt of written notice from Development Manager that the Construction Work is ready for final inspection and acceptance, the City 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, Development Manager shall deliver to City's Project Manager a conditional 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 or will be (out of the final payment) paid in full and that all other indebtedness connected with the Construction Work has been or will be paid; the final corrected As -Built Drawings; the Record Set; and the final bill of materials, if required, and Application for Payment. Development 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 Development 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 unknown claims. The making of and acceptance of final payment shall constitute a waiver of all claims by Development Manager and the City, except those previously made in strict accordance with the {28998817;2}26 provisions of the Agreement and identified by Development Manager or the City as unsettled at the time of the application for final payment. 51. Resolution of Contract Disputes Development 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 Development Manager, the Director shall render a decision within fourteen (14) calendar days. Where a mutually satisfactory resolution cannot be reached the Development Manager may submit the dispute to the City Manager or his/her designee for resolution. Where a mutual resolution cannot be reached between the Development Manager and the City Manager or designee, the Development Manager, prior to being entitled to seek judicial relief shall comply with Article 51 of this Agreement, in connection therewith. Should the amount of City's matching contribution hereunder exceed $500,000, the City Manager's decision shall be approved or disapproved by the City Commission. Development 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. If Development Manager is required to file a lawsuit in order to meet a statute of limitations before it has complied with any of the above requirements, it shall be entitled to file the action and then the City may move to stay the action to allow the Development Manager to comply with the conditions precedent to litigation as set forth in this Agreement. 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. {28998817;2}27 In an effort to expedite the conclusion of any litigation, the parties voluntarily waive their right to jury trial in any action arising under this Agreement. 53. Substantial Completion, Punch List and 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. City's Project Manager shall not unreasonably withhold or delay its approval. Upon Substantial Completion, City's Project Manager and the Development Manager shall sign the Substantial Completion Inspection Form. The signing of this form shall not relieve the Development Manager from its obligation to complete the Project. When the Development Manager believes that the Construction Work is substantially complete, the Development 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 Development Manager has obtained a Certificate(s) of Occupancy, Certificate of Completion or Completion or a Temporary Certificate of Occupancy, or other equivalent. The City shall schedule the date and time for any inspection and notify the Development 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 Development Manager confirming that the Punch List contains the item(s) necessary to complete the Construction Work. The failure or refusal of the Development Manager to sign the Project Substantial Completion Inspection Forrn or Punch List shall not relieve the Development Manager from complying with the reasonable 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 fore that the Work is not substantially complete, the City shall provide a list of all open items necessary to achieve Substantial Completion. Upon completion of such Construction Work, the Development Manager shall request another Substantial Completion inspection. The City's Project Manager and the Development 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 Development 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, {28998817;2}28 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 Development 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 Development Manager's duties to indemnify the City under this Agreement where Development Manager shall pay the City's reasonable attorney's fees. 55. Independent Contractor Development Manager is an independent contractor under this Agreement. Services provided by Development Manager pursuant to this Agreement shall be subject to the supervision of Contractor. In providing such services, neither Development Manager nor its agents shall act as officers, employees, or agents of the City. Development Manager further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Development Manager, and agrees to provide workers' compensation insurance for any employee, or entity working for the Development 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 Development 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 Development 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 Development Manager 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. 57. Third Party Beneficiaries {28998817;2)29 Neither Development Manager nor the City intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. 58. 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. 59. Amendments No modification, amendment, or alteration in the terns or conditions contained herein shall be effective unless contained in a written document prepared with the satne or similar formality as this Agreement and executed by the City Manager and Development Manager. 60. Severability In the event that any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights of either party, such party may elect, at its option, to terminate this Agreement in its entirety. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 61. Entire Agreement This Agreement, as it may be amended from time to time, represents the entire and integrated agreement between the City and the Development 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 be a waiver of any other breach 62. Conflict of Interest {28998817;2} 30 Development Manager covenants that no person under its employ who presently exercises any functions or responsibilities on behalf of the City in connection with this Agreement has any personal financial interests, direct or indirect, with the Contractor. Development Manager further covenants that, in the performance of the Agreement, no person having such conflicting interest shall be employed. Any such interest on the part of the Contractor or its employees must be disclosed in writing to the City. Development Manager is aware of the conflict of interest laws of the City, Miami City Code §2-611, Miami -Dade County, Florida, Miami -Dade County Code §2-11.1; and the State of Florida, Chapter 112, Part III, Florida Statutes, as amended, and agrees that it shall fully comply in all respects with the terms of said laws. 63. Independent Contractor Development Manager, its employees, agents or representatives, shall be deemed to be independent contractors and not agents or employees of the City and shall not attain any rights or benefits under the civil service or pension ordinances of the City, or any rights generally afforded classified or unclassified employees. Development Manager, its employees, agents or representatives, shall not be entitled to Florida Workers' Compensation benefits as an employee of the City. 64. Public Records Development Manager shall comply with Chapter 119, Florida Statutes, as may be applicable, shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and maintain public records that ordinarily and necessarily would be required by the City to perform this service; (2) provide the public with access to public records on the same terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; (5) all electronically stored public records must be provided to the City in a format compatible with the City's information technology systems. 65. Notices. All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the {28998817;2}31 day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. For The City of Miami: City Manager 444 SW 2nd Av, 10th Floor Miami, Fl. 33130-1910 With a copy to Director of Capital improvements 444 SW 2nd Av., 8th Floor Miami, Fl. 33130-1910 For Development Manager : Oak Plaza Associates (Del.) LLC Attn: Eric Wilson 3 841 NE 2nd Av. Suite 400 Miami, FL. 33137 Telephone (305) 722-7100 Facsimilie (305) 722-7263 [ SIGNATURE PAGE(S) TO FOLLOW ] {28998817;2}32 IN WITNESS WHEREOF, the parties have set their hands and seals on the day and year first shove written ATTEST: By. Todd A. Hannon, CityClek ATTEST: City ofMiatni, municipal corporation By. Daniel J. Alfonso , CityManager "Development Manager" Oak Plaza Associates (Del.) LLC, a Delaware limited liability company By: Name: Naive: Title: Title: APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Ann -Marie Sharpe Risk Management Director {28998817;2}33 ATTACHMENT A Those drawing, plans, and specifications on the list attached but only to the extent such drawings, plans and specifications relate to the Scope of Work attached hereto. {28998817;2} ATTACHMENT B CITY OF MIAMI Date of Inspection: Project information Project No.: Project Location: Representation City of Miami ser Agency: Contractor: DEPARTMENT OF CAPITAL IMPROVEMENTS 444 S.W. 2ND AVENUE, 8t FLOOR MIAMI, FLORIDA 33130 SUBSTANTIAL COMPLETION INSPECTION Re -Inspection No.: Project Name: Contractor's Name: Inspection 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 fonn 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. 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. {28998817;2}35 All punch Fist items must be completed on or before the mutually agreed upon date of Contractor City of Miami Accepted By: Approved By: Naive Name Signature Signature {28998817;2}36 ATTACHMENT C PUNCH LIST {28998817;2 } 37 CITY OF MIAM DEPARTMENT OF CAPITAL IMPROVEMENTS 444 NW 2P1D 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 {28998817;2} 38 Simpson Park Page Punch List developed and agreed to by: Project Manager: Contractor: Consultant: {28998817;2} 39 Page ATTACHMENT D CERTIFICATE OF SUBSTANTIAL COMPLETION: PROJECT: (name, address) AGREEMENT NUMBER: DEVELOPMENT MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: TO (City): DATE OF ISSUANCE: 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 Development 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. {28998817;2} 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 Development 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 Substantial Completion unless otherwise agreed in writing. City By Date In accordance with the Agreement, Development 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 Development Manager for security, maintenance, heat, utilities, damage to the work and insurance shall be as follows: {28998817;2} PROJECT: (name, address) TO (City): ATTACHMENT E FINAL CERTIFICATE OF PAYMENT: BID/CONTRACT NUMBER: DEVELOPMENT 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 (Time) (Date) City of Miami, Florida By Director Date {28998817;2} Page 42 ATTACHMENT F INSURANCE REQUIREMENTS DESIGN BUILD CONSTRUCTION AGREEMENT DESIGN DISTRICT ROAD IMPROVEMENTS I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent & Contractual Liability Premises & Operations Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement Additional Insured Endorsement Required II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. {28998817;2} $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy/Excess Liability (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $2,000,000 Aggregate $2,000,000 B. Endorsements Required City of Miami listed as an additional insured V. Owners & Contractor's Protective Each Occurrence General Aggregate City of Miami listed as named insured $1,000,000 $1,000,000 VI. Payment and Performance Bond $TBD City of Miami listed as Obligee VII. INSTALLATION FLOATER Causes of Loss: All Risk/Special Form Valuation: Replacement Cost Deductible: $10,000 AOP, 5% W/H VIII. Contractor's Professional Liability Each Claim $2,000,000 Policy Aggregate $2,000,000 Retro Date Included The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All {28998817;2} policies and/or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. {28998817;2} ATTACHMENT G {28998817;2} City of Miami Legislation Resolution City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 15-00238 Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE ALLOCATION OF FUNDS IN THE TOTAL AMOUNT OF $362,000.00, TO THE AGENCIES AS SPECIFIED IN ATTACHMENT "A," ATTACHED AND INCORPORATED, FOR PUBLIC SERVICES ACTIVITIES, WITH FUNDS ALLOCATED FROM THE CITY-WIDE POVERTY INITIATIVES PROGRAM, ACCOUNT NO. 14010.910101.882000; AUTHORIZING THE CITY MANAGER TO EXECUTE AGREEMENT(S), IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, WITH SAID AGENCIES, FOR SAID PURPOSE. WHEREAS, due to the continuous decrease of available Community Development Block Grant ("CDBG") funds in the last few years, Public Service agencies' allocations have been reduced, resulting in a reduction of services to residents; and WHEREAS, the City Commission wishes to allocate funding to cover public service program shortfalls for fiscal year 2015-2016 from the Poverty Initiatives Program Fund, Account No. 14010.910101.882000, which are funds transferred from the General Fund NDAAccount No. 00001.980000.891000; and WHEREAS, the City Commission recommends the allocation of funds in the amount of $362,000.00 from the Poverty Initiatives Program Fund, to the agencies as specified in Attachment "A," attached and incorporated; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as fully set forth in this Section. Section 2. The allocation of funds in the total amount of $362,000.00 to the agencies as specified in Attachment "A," attached and incorporated, for Public Services activities, is authorized, with said funds allocated from the Poverty Initiatives Account contained herein. Section 3. The City Manager is authorized {1} to execute agreement(s), in a form acceptable to the City Attorney, with said agencies, for said purpose. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.{2} City of Miami Page 1 of 2 File Id: 15-00238 (Version: 1) Printed On: 3/18/2015 File Number: 15-00238 APPROVED AS TO FORM AND CORRECTNESS: VICTORIA MENDEZ CITY ATTORNEY Footnotes: s:{1} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. {2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 2 of 2 File Id: 15-00238 (Version: 1) Printed On: 3/18/2015 Development Management Agreernen By and Between The City Of Miami And Oak Plaza Associates el.), LLC For The Design District Impr7 ements, B-30985 Capital Improvements anyliTransportation Program 444 SW Znd Avenue, 8th Floor Miami Blorida 33130 {28291848;1} THIS DEVELOPMENT MANAGEMENT AGREEMENT (hereinafter "the Agreement"), made and entered into this day March, 2014 by and between the City •of Miami, Florida, a Florida municipal corporation (hereinafter, the "City"), and Oak P19z'a' Associates (Del.), LLC, a Delaware limited liability company doing business in the State of Florida, (hereinafter, "Development Manager" or "Oak Plaza"). WITNESSETH: WHEREAS, the City desires to enter into an Areernent for the eSrhancements to portions of City -owned public rights -of -way along NE 38 & 39th Streets between NE 1st and 2"d Avenues in the Miami Design District (the "Project"), and WHEREAS, Development Manager represents that it posses €s the requisite expertise and desires to enter into an Agreement to act as the developme manager to provide the services as set forth herein; and WHEREAS, pursuant to the applicable provisions o7Chapter 163, Florida Statutes, Section 3.9 of the Miami 21 Code, and per Ordinance No. 13,335, adopted on July 26, 2012, the City Commission approved a Development Agreement innjunction with the Miami Design District Retail Street Special Area Plan ("SAP") which Development Agreement requires that Oak Plaza's affiliates undertake certain improvements i]I/the public infrastructure and the public right-of-ways; and WHEREAS, this AGREEMENT serves a .`unicipal purpose and primarily effectuates a public purpose furthering the general health, sa ety and welfare of the City as it enhances, improves and embellishes the public infrastruc re and right-of-ways, and thoroughfares in the "Design District" of the City which is with eO h passing day becoming a more renown District which benefits the City and South Floriyla with premier design and decoration related establishments, and further offers arts an crafts, fine restaurants, boutique and fine interior design stores, among many other attractions to residents, guests and visitors; and WHEREAS, pursuant to Reso . lion No. 13-0437, passed on October 24, 2013, the City Commission allocated the required $600,000.00 to match in order to secure the appropriation and the Grant Funds proceeds in the mount of $1,000,000.00 from the State of Florida; and WHEREAS, this Agree ent implements the expenditure of a sum not to exceed $500,000.00 by the City to be expended solely on work within the public infrastructure and right-of-ways which money is a not a charge against the general funds or accounts of the City but is limited to the $500,00 .00 matching funds to be contributed by the City as a match to the $ 1,000,000.00 Departmen of Economic Opportunity Division of Community Development ("DEO") Grant Funds cosy 'ngent upon the provision of a match in the amount of $500,000.00 from the City, which fu Fling has been allocated solely from the City's Capital Improvements Program ("CIP") Desig District Roadway and Stormwater Project No. B-30985 to underwrite the costs of Public Infrastructure and Public Right -of -Way Improvements within the Miami Design District; and {28291848;1} WHEREAS, Development Manager has agreed to retain Coastal Constructio of Miami -Dade County, Inc. ("Contractor") to perform the work identified in the project s pe,'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 Managey o execute and enter into this Agreement by its adoption of Resolution No. 14- on March/27, 2014; NOW THEREFORE, in consideration of the mutual covena is set forth herein the City and Development Manager, agree as follows: Section 1- Terms and Conditions 1. Incorporation by Reference; Overview The foregoing recitals, the Exhibits to this ordinances and resolutions referenced in this incorporated by reference herein as if set forth in f Agreement covers the services of Development of the construction of the right-of-way impro below) which consists of enhancements to th NE 1st. and 2"c1 Avenues (the "Project"). installation of storm drainage, sanitary se sidewalk pavers, tabletop crossings, trees, Agreement will be solely performed ove County or State). No work under t property. The Work is more fully Attachment "_" (the "Project Plans"). 2. Intention of City It is the intent of City • have the Project constructed in accordance with the Project Plans and in accordance with .11 codes and regulations governing construction of the Project. Any work, materials or equwent that may reasonably be inferred from the Project Plans as being required to produce he intended result shall be supplied by Development Manager, through its Contractor, w ether 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 i erpreted in accordance with that meaning. Reference to standard specifications, manual , or codes of any technical society, organization or association, or to the laws or regulatio of any govermnental authority, whether such reference be specific or by implication, sha-f mean the latest standard specification, manual, code or laws or regulations in effec at the time of contract approval and Development Manager shall require that Contractor c9 iply therewith. City shall have no duties other than those duties and obligations expre sly set forth herein. reement, and the prior Agreements, greement are all deemed as being 1 in this Section of the Agreement. This nager for the procurement and completion ements, through the Contractor (as defined portions of NE 38th and 39th Streets between his work includes the design, permitting, and r, water distribution, sidewalks, curbing, paving, and lighting (the "Work"). The Work under this areas which are owned by a public agency (e.g. City, s Agreement will be performed on privately owned described in the plans and specifications included in {28291848;1}2 3. Definitions Architect/Engineer means the Architectural and/or Enginee iffg firm(s) retained by the Development Manager for the preparation of thVProject Plans in connection with the Project. The Architectural and/or Engineering firms are referred to herein as the A/E. The companies are S,B Architect and Ford Engineers, Inc. ii. City Commission means the legislative body of the Cif of Miami. iii. City Manager means the duly appointed chief dininistrative officer of the City of Miami. iv. City means the City of Miami, Florida, a Florida municipal corporation. In all respects hereunder, City's performance is ursuant 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 ch regulatory authority and the enforcement of any rules, regulations, codes, 14ws and ordinances shall be deemed to have occurred pursuant to City's au hority 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 Agreemerl)t"City" without modification shall mean the City Manager or Director, as appl�r✓cable. v. Development Manag f is the entity who provides development services for the City as Owner f r the Design and Construction. Phases of this Project covered by this reement, The Development Manager possesses the requisite training , nd experience to make decisions on behalf of the Owner and give advice 9�}} the time and cost consequences of design and construction decisions, sche $cling, cost control, coordination of contract negotiations and awards, timer purchasing of critical materials and long -lead items, and coordination f development activities. The Development Manager under this Agreement ,is Oak Plaza. The Development Manager is responsible for supervisin / and directing the Contractor for the work funded by this Agreemen . Development Project Manager means the person designated by Developm t Manager as its lead representative to the City. The person is an agent of the Dev opment Manager and his or her actions bind the Development Manager. The D elopment Project Manager shall have the authority to obligate and bind Devel9jrnent Manager and to act on all matters on behalf of Development Manager exc i for revisions to the Contract Documents. vi. Co a struction Change Directive means a written directive to effect changes to the W +rk, prepared by the A/E and or Development Manager and executed by the City vii, ontract Documents means this the documents described in Section 1, Article 6 of this Agreement. {28291848;1 }3 viii. Contractor means the entity responsible, pursuant to its Constructs if Agreement with Oak Plaza or its related companies for performing the wo, 1(m. the Design District and who is licensed, bonded, and insured to pe,einn this Work in accordance with the terms of the Agreement(s) between OWPlaza or its affiliates and the Contractor. The Contractor under this Agreement is' Coastal Construction of Miami -Dade County, Inc.. The Contractors means anl.ethods of construction are as performed by it under applicable laws, rules, regulations, codes and construction practices. ix. Construction Work means all Work required by this Agreement x. Contract Time means the time period dpfined in this Agreement for the Development Manager to complete the Project. xi. Cure means the action taken b�the Development Manager, through its Contractor, promptly after receipt of written otice from the City of a breach of the Agreement for the Work which shall be perform 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, r -lacing or correcting any portion of the Work or the Project site disturbed in perfora ' such cure. xii, Cure Period me r4s the period of time in which the Development Manager is required to remedy defcie//cies in the Work or compliance with the Contract Documents after receipt of wri fen notice to Cure from the City identifying the deficiencies and the time to Cure. xiii. Design pbcuments means the construction plans and specification prepared by A/E(s) for this Pro�/ect under separate agreement(s) with the Development Manager. xiv. Dir etor means the Director of the Department of Capital Improvements and Tr portation or his/her designee, who has the authority and responsibility for managing tlProject under this Agreement. xv. trawings 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 as prepared by the A/E(s) in Attachment "_". vi. Field Directive means a written approval for the Development 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. xvii. Final Completion means the date subsequent to the date of Substantial Completion at which time the Development Manager, through its Contractor, has completed all {28291848;1}4 the Work in accordance with the Agreement as certified by the A/E or,) e City and submitted all documentation required by the Agreement. / xviii. Guaranteed Maximum Cost means the sum established in this Agreement and related work pursuant to the ity is $500,000.00, which s clauses. The City shall not e, damage, expense, assessment greement beyond the $500,000.00 mum cost ("GMC") shall be the documents as the maximum cost to the City for performance tams of this Agreement. The guaranteed maximum cost to th consists of the City's matching grant referenced in the Whet. be liable for any reimbursable expenditure, cost, fee, ch or imposition relative to or arising by virtue of this Guaranteed Maximum Cost. This guaranteed ma 0 maximum cost to the City for performance 2 the Work. The City acknowledges that it will cost more to complete the Wo�,}yk. However, any excess cost over the GMC and not included. in an approvedChange Order or CCD shall be paid for Oak Plaza or others. xix. Notice To Proceed means a w tfen letter or directive issued by the Director or City's Project Manager acknow ,6dging that all conditions precedent have been met and directing that the D elopment Manager, through its Contractor, may begin Work on the Project or,%'specific task of the Project. xx. Project Manager mean an employee or representative of the City assigned by the Director to monitor t Work to be performed under this Agreement and the construction of the 7roject which has not been delegated to the Development Manager, xxi. Project mea as contemplat / xxii. Punch List' means a compilation of items of Construction Work required to be petformedloy, or through the Development Manager prior to or after the Substantial Completion inspection and prior to Final Completion and payment. the construction of the Work specified in this Agreement and budgeted by the City. xxiii. Recot<d 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. xxiv. Request For Information (RFI) means a request from the Contractor seeking 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. {28291848;1}5 xxv. Risk Administrator means the City's Risk Management Administrator, or design9e'or the individual named by the City Manager to administer matters relating to insand risk of loss for the City. xxvi. Schedule of Values means a written schedule setting forth the detailed and itemized. cost breakdown, inclusive of labor, material, and taxes of all ele.=tents of the Project. This schedule (attached) shall be used to bill against monthlyia'sed on a percentage of completion. xxvii. Specifications as used herein means that portion of p Contract Documents which are the written requirements for the materials, e hpment, systems, standards and workmanship for completion of the Work and per mane of related services. xxviii. Sub-Contractor(s) means a person or entty other than a material person or laborer that has a direct contract with the Contryfor to perfou n or supply a portion of the Construction Work xxix. Submittals mean documents pr •ed by the Development Manager, Contractor or those working on their behalf to sho how a particular aspect of the Construction Work is to be fabricated and installed, eh submittals include shop drawings, product data, samples, mock-ups, test results, arranties, maintenance agreements, Project photographs, record documents, fie d measurement data, operating and maintenance manuals, reports, certifications nd any other information described in the Agreement. xxx. Substantial Co pletion means that point at which the Construction Work is at a level of comply ion in substantial compliance with the Agreement such that the City and member /of the general public can use, occupy and/or operate the facility in all respects to is intended purpose. Substantial Compliance shall not be deemed to have occ rred until any and all govermnental entities, which regulate or have jurisdicn over the Work, have inspected, and approved the Work. xxxi. Worl� as used herein refers to all pre -construction, construction and other services refired by the Contract Documents, including all labor, materials, ec 1ipment, procurement and services needed to complete the Project. 4. SconeWork Devi lopment Manager, either itself or through its Contractor, shall provide all managemyfit, supervision, manpower, equipment, tools, and all other necessary goods and services for the roject as detailed in the attached specifications, drawings and plans as contained in Attache} ent "_", and in accordance with the Contract Documents. {28291848;1}6 5. Contract Value and Project Cost The Development Manager shall comply with the terms of this Agreement for no c9thpensation. Payments shall be made for Work actually performed and accepted by the City, otal cost to complete the Project is estimated to cost approximately $1.5 million alto ted under this Agreement. The Development Manager shall cover or ensure that others cov r any and all cost overruns necessary to complete the Project. 6. Time for Completion Development Manager, either itself or through its Contr tor, will promptly perform its duties under the Contract Documents and will give the Work a much priority as is necessary to cause the Work to be completed on a timely basis in acco ance with the Contract Documents. Time is of the essence of this Agreement, Development Manager shall ensure that all Work under this Agreement is completed by June 30, 2014. 7. Contract Documents The Contract Documents shall onsist of this Agreement, the Drawings and Specifications, approved written int rpretations and clarifications, Field Directives, Construction Change Directives, an any modifications. Any modification to this Agreement shall only be effective if it is reduced to citing, and duly executed by both parties, except a Field Directive or Constructive Change/ irective shall be effective after approval and execution by Director or designee. The general ' Pent of the Contract Documents is to include all items necessary for the proper execution and completion of the Project by the Development Manager and its Contractor. 8. Priorit of Pro sions If there is a co u flirt or inconsistency between any term, statement requirement, or provision of any exh. . it attached hereto, any document or events referred to herein, or any document incorporat d into this Agreement by reference and a tern, statement, requirement, the specifications and pans prepared by the A/E, or provision of this Agreement the following order of precedence shah/apply: In t 'e event of conflicts in the Contract Documents the priorities stated below shall go ern: • 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 {28291848;1}7 • 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 rtions of the plans / • Specific notes shall govern over all other notes, and all/ther portions of the plans, unless specifically stated otherwise • Larger scale drawings shall govern over smaller sca .d drawings • Figured or numerical dimensions shall gove+ over dimensions obtained by scaling • Where provisions of codes, mancturer's specifications or industry. standards are in conflict, the more rest' ctive 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 re and to the manner of combining or installing equipment, parts, or materials, such detail shall e deemed to be an implied requirement of the Contract Documents. "Minor Detail" shal include the concept of substantially identical components, where the price of each such c mponent 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 profi,16e of the equipment, materials or parts otherwise specified in the Contract Documents, 9. Progress Payments Development Manager m make Application for Payment for Work completed during the Project at intervals of not mor than once a -month. Development Manager's Application for Payment shall be accompanied y a conditional partial release of liens relative to the Construction Work, which is the subject o the Application for Payment and any other information reasonably required by the City. Eac Application for Payment shall be submitted in triplicate to City's Project Manager for approv 1. City may withho, in whole or in part, payment to such extent as may be necessary to protect itself fro, loss on account of: ■ r efective Construction Work not remedied. Claims filed by other parties against Development Manager, Contractor or City because of Development Manager and/or Contractor's negligent performance of the Work. • Failure of Development Manager to make payments properly to its Contractor or Sub -Contractors or for material or labor arising out of the Work. {28291848;1)8 ■ Failure of Development Manager to provide any and all documents req ed by the Contract Docr7nrents. 10. Payment Payment by the City of an approved Application for Payment appr ed by the A/E shall be made within fifteen (15) days after receipt of Development Manager's pplication for Payment to the City, which shall be accompanied by reasonably sufficient pporting documentation and contain sufficient detail, to allow a proper audit of expenditures, s = ould. the City require one to be performed. All payment applications shall be sufficiently detailed so as; meet the definition of a "payment request for construction services" as that terra is defined in §218.72, .'la. Stat., the Definitions section of the "Local Government Prompt Payment Act". City acknowledg• .t payment will not be unreasonably withheld or delayed. 11. Progress Meetings Development Manager and the City's Projec anager shall hold construction progress meetings as deemed necessary to ensure the timely cpletion of the Work, but not more often than once a month. 12. Indemnification a. Development Managex/$ndemnity. Development Manager and Contractor shall jointly and severally indemnify, d tend, save and hold harmless City, its officers, agents, directors, and employees, from liabilitie , damages, losses, and costs, including, but not limited to reasonable attorney's fees, a d costs to the extent caused by the negligence, recldessness or intentional wrongful miscon ct of Development Manager and persons employed or utilized by Development Manager ' le performance of this Agreement and/or from any acts or omissions relative to the permitted w rk and/or to the services being performed by the Development Manager and/or the Contractor w 'ch are funded in whole or in part by virtue of this Agreement and/or the failure of either the D elopment Manager or the Contractor to perform their respective work in accordance with the erms of this Agreement, the design documents, the construction contract between the Contra or and the Development Manager or the failure of either of them to perform their respective ork in accordance with applicable laws, codes, rules and regulations. Development M ager's obligations hereunder shall apply even if part of the damage or injury is caused by the ty. These indemnifications shall survive the term or cancellation of this Agreement. In the event t any action or proceeding is brought against City by reason of any such claim or demand, De elopment Manager shall, upon written notice from City, resist and defend such action or roceeding by counsel satisfactory to City. Notwithstanding anything to the contrary herein, D velopment Manager and Contractor shall not be required to provide an indemnification obligati is beyond what is provided for in Florida Statutes, Section 725.08. The indemnification provided above shall obligate Development Manager to defend at its $vn expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for su defense, at City Attorney's sole option, through counsel designated by the City Attorney, {28291848;1 }9 any and all claims of liability and all suits and actions of every name and description arising by through or related to this Agreement or related to any work, materials or equipment perform d which is funded in whole or in part by this Agreement above which may be brought against ity whether performed by Development Manager, or persons employed or utilized y the Development Manager. This indemnity will survive the cancellation or expiration of this Ag .ement. This indemnity will be interpreted under and construed to conform to the laws of the ate of Florida, including without limitation and interpretation §725.06 and/or §725,08'MFla. Statutes, as applicable. Notwithstanding anything to the contrary herein, Development anager shall not be required to provide any indemnification obligations beyond what is provide t for in §725.06(2) and (3), Fla. Statutes. Additionally, Development Manager shall not be requir to indemnify the City for the City's own negligence. Development Manager's indemnity and fense obligations shall be capped at the greater of the insurance proceeds available and ac ally paid or if no insurance proceeds are paid the amount paid by the City pursuant to this Agre: ent. Development Manager shall require all construe on agreements it has with the Contractor funded by the terns of this Agreement to inelu.. a provision that they will indemnify the City. The Development Manager agrees and recogzes that the City shall not be held liable or responsible for any claims which may result from . ly actions or omissions of the Development Manager in which the City participated either thrgh review or concurrence of the Development Manager's actions. In reviewing, approving or rejecting any submissions by the Development Manager or Contractor or other acts of the Co tractor, the City in no way assumes or shares any responsibility or liability of the Developme Manager, Contractor or Sub -Contractor under this Agreement. b. City Indemnity. City shall ' ndeinnify, defend, save and hold harmless Development Manager, their officers, agents, directrrs, and employees, from liabilities, damages, losses, and costs, including, but not limited to rr asonable attorney's fees, and costs to the extent caused by the negligence, recklessness er intentional wrongful misconduct of the City and persons employed or utilized by the City in the performance of this Agreement and/or from any acts or omissions relative to the permitt d work and/or to the services being performed by the City which are funded in whole or in part virtue of this Agreement and/or the failure of the City to perform in accordance with the ter of this Agreement or its failure to perform in accordance with applicable laws, codes, ruleand regulations. City's obligations hereunder shall apply even if part of the damage or injury is c.. sed by the Development Manager. These indemnifications shall survive the tern or cancellation o ` this Agreement. In the event that any action or proceeding is brought against Development M ager by reason of any such claim or demand, City shall, upon written notice from Develop ent Manager, resist and defend such action or proceeding by counsel satisfactory to Develo ment Manager. Notwithstanding anything to the contrary herein, the City shall not be required o provide indenmification obligations beyond what is provided for in Florida Statutes, Section 72 .08. {28291848;1}10 The indemnification provided above shall obligate City to defend at its own expense to) and through appellate, supplemental or bankruptcy proceeding, or to provide for such defe se through counsel designated by the City Attorney, any and all claims of liability and all suitand actions of every name and description arising by, through or related to this Agreement orplated to any work, materials or equipment performed which is funded in whole or in part by this,Agreement above which may be brought against Development Manager whether performed by City, or persons employed or utilized by the City. This indemnity will survive the cancellation or expiration of this Agreement. Additionally, City shall not be required to indemnify . the Developme r Manager for its own negligence. The City agrees and recognizes that the Development Tager shall not be held liable or responsible for any claims which may result from any action or omissions of the City in which the 'Development Manager participated either through r iew or concurrence of the City's actions. 13. Insurance The Development Manager shall not a horize the initiation of any Work under this Agreement until the Development Manager 1 s obtained, or required its Contractor to obtain, the insurance required and the City's Risk Manag ent Director has approved such insurance. Companies Providin• Co erase All insurance policies shall be issued by companies authorized to do business under the 1s of the State of Florida and satisfactory to the Risk Administrator. Al companies shall have a Florida resident agent and be rated at least A( as per A.M. Best Company's Key Rating Guide, latest edition. Verification f Insurance Covera e The Deve ..pment Manager shall furnish certificates of insurance to the Risk Ad' istrator for review and approval prior to the execution of this Agreement and any amendment thereto. The Certificates shall clearly indicate that the Development Manager or its Contractor has obtai edinsurance of the type, amount and classification as required by hibit F in excess of any pending claims at the time of contract award to e Development Manager. Development Manager shall maintain or rewire its Contractor to maintain coverage with equal or better rating identified herein for the term of this Agreement. Development anager shall provide written notice to the Risk Administrator of any material change, cancellation and/or notice of non -renewal of the insurance within thirty 30 days of the change. (28291848;1 )11 Development Manager shall furnish a copy of the insurance policy or policies within ten (10) days of written request from the City's Ijislc Administrator. Forms Of Coverage Should Development Manager be authorized to cons d'ct the Project, without limiting any of the other obligations or liabilA of Development Manager, Development Manager shall provide, iy for and maintain in force until all of its work to be performed udder this Contract has been completed and accepted by City (or for ei duration as is otherwise specified hereinafter), the insurance cp erage set forth in Exhibit B attached herein. Submittal of Certificates—Develo dent Manager shall furnish to the City of Miami Risk Management Departmen Certificates of Insurance or endorsements evidencing the insurance coverage spy ified above within fifteen (15) calendar days after notification by the City. The requireertificates of Insurance shall name the types of policies provided, refer specifically to this C tract, and state that such insurance is as required by this Contract. The City of Miaini sh 11 be a named insured, or co-insured, on all policies of insurance required by this Agreement, xcluding only Worker's Compensation. The official title the Owner is the City of Miami, Florida. This official title shall be used in all insurance d. cumentation. 14. Modifications to Coverage and Owner's Controlled Insurance Program The Citf through its Risk Management Director or authorized designee reserves the right to e requi 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 tl 6 Development 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 ditional consideration from City accompanied by justification. All additional cost will be b,6rne by the Development Manager or Contractor, as applicable Notwi standing the insurance requirements required by the City in this Agreement, the City ackn ledges that Oak Plaza already has in place an Owner Controlled Insurance Program ("O P") for the Project the details of which are attached hereto as Exhibit " ", To the extent the is any conflict between the City's insurance requirements of this Agreement and the OCIP, th OCIP requirements shall control. The parties shall reasonably cooperate with each other to coordinate the City's insurance requirements with those of the OCIP. 15. Discretion of Director (28291848;1 )12 Any matter not expressly provided for herein dealing with the City or decisions of th .City shall be within the exercise of the reasonable professional discretion of the Direct 1` 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 fty to the extent provided by the Agreement, unless otherwise delegated to the Development Manager or modified in writing by the City. All instructions to the Development Manager s1 be issued in writing. All instructions to the Development Manager shall be issued througe Director or Project Manager. The Project Manager shall have access to the Proje9t°Site. The Development Manager shall provide safe facilities for such access so the Project M' rlager may perform their functions under the Agreement. The Project Manager will make eriodic visits to the Work Site to become generally familiar with the progress and quality the Work, and to determine if the Work is proceeding in accordance with the Contract Docup ents. The Project Manager will not be resaonsible for construction means, methods, techniques, sequences or procedures, or for safety p ecautions and programs in connection with the Work, and will not be responsible for the Dev9I pment Manager's (through its Contractor) failure to carry out the Construction Work in accordange with the Agreement. The Project Manager will ave authority to reasonably reject Construction Work that does not conform to the Contract D cuments requirements. Whenever, in his or her opinion, it is considered necessary or advisab to insure the proper implementation of the Contract Documents, the Project Manager will hale authority to require special inspections or testing of the Construction Work, wheth9f or not such Construction Work is fabricated, installed or completed. Neither the Project Man9fger's authority to act under this Article, nor any decision made by him/her in good faith Ether to exercise or not to exercise such authority, shall give rise to any duty or responsibility the Project Manager to the Development Manager, Contractor any Sub - Contractor, supplier g any of their agents, employees, or any other person performing any of the Construction Work. All interp etations and recommendations of the Proj ect Manager shall be consistent with the intent of, ne Contract Documents. The Piloject Manager will not be responsible for the acts or omissions of the Developmeny'Manager, its Contractor, or anyone employed or contracteddirectly or indirectly by the Deve1lopment Manager, including any Sub -Contractor, or any of their agents or employees, or any othe persons performing any of the Work. 17. bcontracts A Sub -Contractor is any person or entity that is performing, furnishing, supplying or provisfting any portion of the Construction Work pursuant to a contract with the Development {28291848;1 } 13 Manager or its Contractor. Development 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(), and copies thereof furnished to the Development Manager and/or its Contractor, are fouse solely with respect to this Agreement. 19. Continuing the Work Development Manager through its Contractor shall carry othe Work and adhere to the progress schedule during all disputes or disagreements with Ci (including, without limitation, disputes or disagreements concerning the Contract t neframe for ompletion of the Work. The Work shall not be delayed or postponed pending resolution of any dispu s or disagreements. All disputes shall be resolved in accordance with Article Resolution of Co. act Disputes and Article Mediation - Waiver of Jury Trial. 20. Public Entity Crimes In accordance with the Public Crimes Act, =ction 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provid-, who has been placed on the convicted vendor list following a conviction for a public entity crime' y not submit a bid on a contract to provide any goods or services to the City, may not submit a' bid on contract with the City for the construction or repair of a public building or public work, may not su 't 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 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 Development Manager shall result in cancellation of the City purchase an• nay result in Development Manager's debarment. 21. Nondiscrimination° R s ual Em • to ment 0 ortuni and Americans with Disabilities Act Development M ger warrants and represents that it does not and will not engage in discriminatory practices and that ther:'shall be no discrimination in connection with Development Manager or it Contractor's perform.: ce under this Agreement on account of race, color, sex, religion, age, handicap, marital pt`atus or national origin. Development Manager further covenants that no otherwise qualifi individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or tional origin, be excluded from participation in, be denied services, or be subject to discrimination der any provision of this Agreement. Dev99lopment Manager and its Contractor shall affirmatively comply with all applicable provisions of the Arnerieth s with Disabilities Act (ADA) in the course of providing any services funded by City, including/ itles 1 and II of the ADA (regarding nondisciinvnation on the basis of disability), and all {28291848;1)14 applicable regulations, guidelines, and standards. In addition, Development Manager shall take alfvxnative steps to ensure nondiscrimination in employment against disabled persons. 22. Audit Rights At any time during normal business hours and after reasonable notice has en provided, there shall be made available to the City and/or representatives of the City to aut, examine, and make audits of all contracts, invoices, materials, payrolls, records of persc el, conditions of employment and other reasonable data in Development Manager's possess'. n and relating to this Agreement. It is further understood that all records and supporting doc vents pertaining to this Agreement shall be maintained for a minimum period of four (4) year . The retention and access period starts from the date of the submission of the annual perfo nce and evaluation report in which the specific activity is reported for the final time. The Cdntractor must request approval from the City before disposing of any records under this Agre9i'ent. Records subject to the provisions of Public Record IKw, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpo 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 e Work, and until 4 years after the date of final payment by the City to Construction pursuant to this £eement. The City's agent or its authorized represe tative shall have access to the Development Manager's facilities, shall have access to all necessary rec rds, and shall be provided adequate and appropriate work space, in order to conduct audits in coin fiance with this provision. The City or its authorized representative shall give auditees reasonabadvance notice of intended audits. If an audit inspection or exaz,.lnation in accordance with this Article discloses overcharges in excess of 2% except negotiated fee by the Development Manager to the City, 50% of the actual cost of the City's audit shall be paid by tie Development Manager. If the audit discloses contract billing or charges to which Development M. Mager is not contractually entitled, Development Manager shall pay over to the City said sum within 20 da, s of receipt of a written demand unless otherwise agreed to by both parties in writing. If any litigation, aini, negotiation, audit or other action involving the records has been started before the expiation of the four (4) year period, the records must be retained until completion of the action and resolution of all issues which arise from it or until the end of the four (4) year period, hichever is later. During the course of an audit, if the City determines that any payment made o the Development Manager does constitute an allowable expenditure, then the City will have the right to deduct or reduce those amounts from the related invoices. The Development M nager must maintain records necessary to document compliance with the provisions of tl,1e Agreement. The Development Manager acknowledges that additionally the City has the ai flit and inspection rights set forth in § 18-100 to § 18-102, City Code, as amended. (28291848;1 )15 23. OSHA Compliance The Development 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 Development Manager, either itself or through its Contractor, shall comply w)th all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdic 'th for the safety of persons or property or to protect them from damage, injury or. loss; and shalllect and maintain all necessary safeguards for such safety and protection. Development Manager 46ugh 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 w die or in part, by Development Manager, Contractor, any Sub -Contractor or anyone directly or indir tty employed. by any of them or anyone for whose acts any of them may be liable, shall be r,j,edied by Development Manager. Development Manager's duties andresponsibilities for the safety ai3dprotection of the Work shall continue until such time as all the Work is completed and City has is�ed to Development Manager a notice of Final Acceptance, said notice shall not be unreasonably wit1 'eld or delayed. Development Manager must adhere to the appli able environmental protection guidelines for the duration of the Project. If hazardous waste material. are used, detected or generated at any time, the City's Project Manager must be immediately noti of each and every occurrence. The Development Manager shall comply with all codes, ordinance , 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 be on the performance of the Work. Development Manager shall r ire that Contractor ensure that all Work is performed using adequate safeguards, including but not ited to: proper safe rigging, safety nets, fencing, scaffolding, barricades, chain link fencing, ra' ' gs, banicades, steel plates, safety lights, and ladders that are necessary for the protection of its em loyees, as well as the public and City employees. All riggings and scaffolding shall be constructed A ith good sound materials, of adequate dimensions for their intended use, and substantiar braced, tied or secured to insure absolute safety for those required to use it, as well as those in the vicinity. Alt riggings, scaffolding, platforms, equipment guards, trenchir , 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 emergen`y condition should develop during the Project, the Development Manager must innnOiately notify the City's Project Manager of each and every occurrence. The Development//anager should also recommend any appropriate course(s) of action to the City's Project Mangy er. 25. Permits and Licenses Except s otherwise provided within the Agreement, all permits and licenses required by federal, state r local laws, rules and regulations necessary for the prosecution of the Work undertaken b Development Manager pursuant to this Agreement shall be secured and paid {28291848;1 } 16 for by Development 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 Proj.e6t for whom a Certificate of Competency is required. 26. Compliance with Laws Development Manager and its Contractor shall comply with ll applicable laws, codes, ordinances, rules, regulations and resolutions and all app,licable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement. 27. Defective Work The City's Project Manager shall have the authorij,to reject or disapprove Work which it finds to be defective. If required by the City� Development Manager, through its Contractor, shall promptly either correct all defectivve work or remove such defective Work and replace it with non -defective Work. Dev opment Manager shall bear all direct and indirect costs of such removal or correctio,• s including cost of testing laboratories and personnel; Should Development Manager, t . ough its Contractor, fail or refuse to remove or correct any defective Work or to make any ne9 ssary repairs in accordance with the requirements of the Contract Documents within a reasoble time after notice in writing provided by the City, the City shall have the authority toss/ause the defective work to be removed or corrected, or make such repairs as may be/Jseasonably necessary at Development Manager's expense. Any reasonable expense picurred by City in making such removals, corrections or repairs, shall be paid for oorft of any loonies due or which may become due to Development Manager. In the event//6f failure of Development Manager to make all necessary repairs promptly and fully, yfhich is not cured in the Cure Period, the City may declare Development Manag f in default. If, within one (1) year after the date of Substantial Completion or such longer period of time as may be piescribed 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, Development 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 construedto establish a period of limitation with respect to any other obligation which Development Manager might have under the Contract Documents including but not limited to any claim regarding latent defects. 28. /Warranty of Materials and Equipment Development Manager through its Contractor warrants to City that all materials and equ,i}pment furnished under this Agreement will be new unless otherwise specified and that all of the Wick will be of good quality, free from faults and defects and in conforrnance with the Contract {28291848;1 } 17 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, Development 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 Development Manager, through its Contractor shall warrant that the Worcconforms to the Agreement and is free of any patent and/or latent defect of the workmanship/or a minimum period of one year from the date of Substantial Completion. The Development Manager's obligation under this warranty sh i. be at its own cost and expense, to promptly repair or replace (including cost of removal ad installation), that item (or part or component thereof) which proves defective or fails to cop ly with the Agreement within the warranty period such that it complies with the Agreement. 30. Manufacturer's Warranty Development Manager through the Contra" or shall provide to City all manufacturers' warranties. All warranties, expressed and/or impl'dd, shall be given to the City for all material and equipment covered by this Agreement. All , aterial and equipment furnished shall be fully guaranteed by the Development Manager, h Tough the Contractor against factory defects and workmanship at time of installation. At z expense to the City, the Development Manager shall correct any and all apparent and latent defects that are required by Florida law. The Contract Documents may supersede the man u %cturer's standard warranty. 31. No Damages for Delay In the event of any dela s to the Project that are caused by actions or events that are out of the control of the owner or en 1es hired or control by the owner, the Contractor's sole remedy shall be to seek an extension of me in accordance with the terms of the Agreement. The City shall not be liable for any deladamages 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 t6 performance under this Agreement, No claim f r damages or any claim, other than for an extension of time, shall be made or asserted against he City by reason of any delays except as provided herein. Development Manager shall;} of be entitled to an increase in the Contract Price or payment or compensation of any kind fr ih City for direct, indirect, consequential, impact or other costs, expenses or damages, it oluding but not limited to costs of acceleration or inefficiency, arising because of delay, disption, interference or hindrance from any cause whatsoever, whether such delay, disruptio , interference or hindrance be reasonable or unreasonable, foreseeable or unfores cable, or avoidable or unavoidable. Otherwise, Development Manager shall be entitled only t extensions of the Contract Time as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided. above. {28291848;1)18 32. Excusable Delay Excusable Delay is caused by circumstances beyond the control of Development Manager, Contractor, its Sub -Contractors, suppliers and vendors. Development Manager is entitled to a time extension of the Constructjpi ork Time for Completion for each day the Construction Work is delayed due to Excusable Delay. Development Manager shall document its claim for any time extension a rovided in Article 36 hereof. Where Development Manager determines that the City is liable for payment of cost due to a delay any request for additional compensation it be submitted in accordance with Article 32. Development Manager shall furnisl to the City's Project Manager all documentation supporting its claim, including, det.rls of the claim, a description of the work affected and the actual costs resulting from the de Where the City agree to an excusabl- delay and the Work is being performed by a Sub - Contractor, the Contractor shall be paid actual costs associated with the delay plus a sum not to exceed 5% for indirect and overhead costs. Where the City agree to excusable delay and the Work is being performed by the Development Manager or Co tractor's own forces, the Development Manager or its Contractor shall be reimbursed/ for actual costs associated with the delay. The Development remedies for an exeusa le delay. Failure of Development Manager to materially comply with Article 32 hereo-` as to any particular event of delay shall be deemed conclusively to constitute a wai er, abandonment .or relinquishment of any and all claims resulting from that particular eve 't of delay. The Guaranteed Maximum. Cost can never be exceeded or increased, except ©y an approved change order or CCD. anager agrees that the above constitutes its sole and exclusive 33. Notifiction and CIaim for Chane of Construction Work Time Any claim for a change in the Time for Completion, shall be made by written notice by Develops' nt Manager to the Project Manager within fifteen (15) calendar days of the comme ement of the event giving rise to the claim and stating the general nature and cause of the clan. Thereafter, within twenty (20) calendar days of the termination of the event giving rise te' the claim, written notice of the extent of the claim with supporting information and doc nentation shall be provided unless City allows an additional period of time to ascertain mo fe accurate data in support of the claim and such notice shall be accompanied by Development nager's written notarized statement that the adjustment claimed is the entire adjustment to hich the Development Manager has reason to believe it is entitled as a result of the currence of said event. (28291848;1 )19 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 Development 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 of of changes in the character or quantity of the Work as may be considered necessary or des'.4ble to complete fully and acceptably the proposed construction in a satisfactory m Zer. Any extra or additional work within the scope of this Project must be issued in writiygn accordance with the requirements of this Agreement. Any changes to the terms of the Contract Documen)'must be contained in a written document, executed by the parties hereto, with the same f9th ality 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 hereinaftgx'provided. 35. Force Majeure Should any failure to perform othe part of Development Manager be due to a condition of force inaj eure as that term;interpreted under Florida law, then the City shall allow an extension of time reasonably ,, �ommensurate with the cause of such failure to perform or cure. If the Development Mager is delayed in performing any obligation under this Agreement due to a force mature condition, the Development Manager shall request a time extension from the City wi hin seven (7) working days of said force niajeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Develop it Manager for extra compensation unless additional services are required. Events of F Oce Majeure include inclement weather except as permitted by Florida law and may not inch e the acts or omissions of Sub -Contractors. es 36. Field Dir The Cit, s Project Manager may at times issue Field Directives to the Development Manager base on visits to the Project site. Such Field Directives shall be issued in writing and the Development Manager shall be required to comply with such reasonable directives. Where the evelopment Manager believes that the directive is outside the scope of the Work or unreas able, the Development Manager shall, within 48 hours, advise the City's Project Manage that the Field Directive is either unreasonable and/or outside the scope of the Work. At that time the Field Directive may be rescinded or the Development Manager may b 'required to submit a request for a Change Order proposal. Where the Development Manager is notified of the City's position that the Field Directive is within the scope and/or {28291848;1 } 20 reasonable and the Development Manager disagrees, the Development Manager shall notify the City's Project Manager that the Development Manager reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Development Manager unreasonably refuse to comply with the directive. Failure to reasonably comply with the directive may result in a determination that the Development Manager is in default of the Agreement. 37. Change Orders Changes in the quantity or character of the Construction Work of throj ect which are not properly the subject of Field Directives or Supplemental Instructions a lcluding all changes resulting in changes in the contract price or time shall be authorizedieinly by Change Orders approved in advance by City and Development Manager and issued in accordance with the terms of this Agreement. All changes to Construction Work must be approve advance in accordance with the value of the Change Order or the calculated value of t etime extension. All Change Orders increasing the value of the Agreement by $50,000 o more shall be approved in advance by the City Commission. All Change Orders Mercy, ing the value of the Agreement by less than $50,000 shall be approved in advance by theity Manager or his designee. 38. Value of Change Order Work The value of any Work to be bvered by a Change Order, or for any claim for an increase or decrease in the Agreement r hall be determined in one of the following ways: • Where the woc`involved is covered by unit prices contained in the Schedule of Values, by plication of unit prices to the quantities of items involved. • By routy 1 acceptance of a lump sum which Development Manager and City a knowledge contains a component for overhead and profit. 39. Ins»eetion of>Work The City at all times have access to the Work during normal work hours. Inspectors shall i ave no authority to permit deviations from, nor to relax any of the provisions of the Contract ocuments nor to delay the Work by failure to inspect the materials and Work with reasonalle promptness without the written permission or instruction of City. Th payment of any compensation, whatever may be its character or form, or the giving of any gratu. or the granting of any favor by Development Manager to any inspector, directly or indirectl , is strictly prohibited, and any such act on the part of Development Manager will consti to a breach of this Agreement. 40. Submittals {28291848;1 }2 1. 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 daysfn the date of receipt by the City. City's review shall only be for conformance with desi n concepts and the information provided in the Contract Documents. The approval of a sep e item shall not constitute approval of an assembly in which the item functions. The City sl3a return the shop drawings to the Development Manager for its use and distribution.. Approval of any submittal shall not relieve the Development anager and Contractor of any responsibility for any deviations from the requirements of the ontract Documents unless the Development Manager has given written notice to the City of tl)specific deviations and the City has issued written approval of such deviations, Development Manager shall be responsible f the distribution of all shop drawings, copies of product data and samples, which bea • the A/E and City's stamp of approval. Distribution shall include, but not be limited t , job site file, record documents file, sub- contractors, suppliers, and other affected contract rs or entities that require the information. During the progress of the Work, lfe Development Manager shall submit copies of all reports, permits and inspections required governing authorities, or necessary for the Project. 41. Substitutions Development Manager 11 submit all requests for substitutions to the City for review and approval. All such requests slyn.1 include sufficient documentation to support such request. City may request additional info' f cation as deemed necessary to properly review such requests. 42. Shop Drawings Development anager, through the Contractor shall submit Shop Drawings as required by the Contract Docun ents. The purpose of the Shop Drawings is to show, in detail, the suitability, efficiency, techniqy of manufacture, installation requirements, and details of the item and evidence of its cginpliance or noncompliance with the Contract Documents. If the hop Drawings show or indicate departures from the Contract Documents' requirement Development Manager, through the Contractor shall make specific mention thereof in is letter of transmittal. Failure to point out such departures shall not relieve Developm nt Manager from its responsibility to comply with the Contract Documents. ity shall review and approve Shop Drawings within ten (10) calendar days from the date receiv 'd, unless said Shop Drawings are rejected by City for material reasons. City's appro al of Shop Drawings will be general and shall not relieve Development Man ger, through the Contractor of responsibility for the accuracy of such Shop Drawings, {28291848;1}22 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 City. Approval shall not relieve Development 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 w,i-ich interconnect and/or are interdependent where necessary to properly evaluate the de i'gn. It is Development Manager's, through the Contractor's responsibility to assembl he Shop Drawings for all such. interconnecting and/or interdependent items, check . m and then make one submittal to City along with its comments as to compliance, incompliance, or features requiring special attention. If catalog sheets or prints of manufacturers' standard draw gs are submitted as Shop Drawings, any additional information or changes on such dra gs shall be typewritten or lettered in ink. Each shop drawing shall be clear, thoroughly d wiled and shall have listed on it all Contract Document references, drawing number(s), ocification section number(s) and the shop drawing numbers of related work. Shop dra toigs must be complete in every detail, including location of the work. Materials, ga -gees, methods of fastening and spacing of fastenings, connections with other work, cutting, xtting, drilling and any and all other necessary information per standard trade practices or as r uired for any specific purpose shall be shown. Where professional calculations an or corti.fication of performance criteria of materials, systems, and or equipment are require, the !City is entitled to rely upon the accuracy and completeness of such calculations an• certiflotions submitted by the Development Manager. Calculations, when required, shall be : bmittrd in a neat clear and easy format to follow. Development Manager s all keep one set of Shop Drawings marked with A/E and City's approval at the job site a all times. 43. Product Data Development M' ager, through the Contractor shall submit a copy of product data. ' Copies must be mark d to identify applicable products, models, options and other data. Development Mana: r, through the Contractor shall supplement manufacturer's standard data to provide info cation unique to the Construction Work. Developn ent Manager, through the Contractor shall only submit pages that are pertinent. Sub i 'ttals shall be marked to identify pertinent products, with references to the specifications and the Contract Documents. Identify reference standards, performance characteristi and capacities, wiring and piping diagrams and controls, component parts, finishes, diy ensions and required clearances. 44. As -Built Drawings {28291848;1) 23 During the Construction Work, Development Manager, through the Contract 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 c nges and deviations made during construction to reflect the work as it was actually construe d. It is the responsibility of the Development Manager, through the Contractor to check the As -Built Drawings for errors and omissions prior to submittal to the City and certify in riting that the As -Built Drawings are correct and accurate, including the actual location of al internal piping, electrical/signal conduits in or below the concrete floor. Indicate the size, de th and voltage in each conduit. Legibly mark to record actual construction: On -site structures and , 4te work as follows: • Depths of various elements of foundation in relation to finish first floor datum. • All underground piping and ductwork with elevations � d dimensions and locations of valves, pull boxes, etc. Changes in location. Hor ontal and vertical locations of underground utilities and appurtenances, ref enced to permanent surface improvements. Actual installed pipe material, cla etc. • Location of internal utilities and ap rtenances concealed in the construction, referenced to visible and a essible features of the structure. Air conditioning ducts with locations of dnipers, access doors, fans and other items needing periodic maintenance. • Field changes in dimensions ad details. • Changes made by City's writt instructions or by Change Order. • Details not on original Cont ;act Drawings. • Equipment, conduit, electr' Sal panel locations. • City schedule changes a cording to Contractor's records and shop drawings. Specifications and Addenda: Legibly ,lark each section to record: • Manufacturer, trade i ame, catalog number and Supplier of each product and item of equipm rt actually installed. • Approved Shop Drawings: Provide record copies for each process, equipment, pipin electrical system and instrumentation system. 45. Re • uests for information The Development Manager/or its Contractor shall submit in writing a Request for Inforrnation (RFI) to the City's Ilioject Manager, where the Development Manager believes that the specifications or drawing 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. {28291848;1 } 24 46. City's Right to Terminate The City Manager 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 Development 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 Developme Manager shall be paid for Work performed and accepted by the City, provided that s d 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 ,' ithout recourse by Development Manager until all documentation is delivered to the City. In such evs'nt, the City shall pay to Development Manager compensation for Services rendered and .. proved expenses incurred prior to the effective date of termination. In no event shall the City be liable to Development Manager for any additional compensation and expenses incurred, oth than that provided herein, and in no event shall the City be liable for any consequential o incidental damages. 47. Termination by Default If Development Manager fails to comply with any material term or condition i'f this Agreement, or fails to perform any of its obligations hereunder, then Development Manager shall be default Upon the occurrence of a default which is not cured within the Cure Period, in addition to . remedies available to it by law, the City may immediately, upon written notice to Development Mager, terminate this Agreement. The City may also suspend any payment or part thereof or order , Work stoppage until such time as the issues concerning compliance are resolved. Development M ager understands and agrees that termination of this Agreement under this Article shall not release De,' elopment 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 velopment Manager shall be liable for all costs and expenses incurred by the City in the re procures ent of the Work under this Agreement. In the event of Default, the City may also issue a Notice to re and suspend or withhold payments to Development Manager until such time as the actions givin rise to default have been cured. In no event shall the Development Manager be liable to the Ci for any additional expenses incurred, other than that provided herein, and in no event shalj/ the Development Manager be liable for any consequential or incidental damages. A finding of default and subsequent termination for cause ma a include, without limitation, any of the following: ® Development Manager fails to obtain the insurance herein required. ® Development Manager fails to comp y 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 defdult. {28291848;1)25 • Development Manager fails to commence the Work within the timefrarnes provided or contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement. The City shall provide Written Notice to Cure to Development Manager as to a finding of def .(aand Development Manager shall take all necessary action to Cure said default within such time as stirulated in the Written Notice. Such Written Notice shall provide a minimum of 30 days to Cure any alleged. default. Such time to Cure shall be at the sole discretion of the City, but be no less than 30 d. The City may extend the Cure Period at its sole discretion or terminate the Agreement upon f 'a ure of the Development Manager to cure such default in the specified timefranxe. 48. Development Manager's Right to Terminate The Development Manager shall have the right to terminate this Agreement, in Prong, following breach by the City, if breach of contract has not been corrected within thirty (30) days ./m the date of the City's receipt of a written notice from Development Manager specifying the City's breacof its duties under this Agreement The City shall only be responsible for payment of Development Man �ger compensation for Services rendered and approved expenses incurred prior to the effective ate of termination. In no event shall the City be liable to Development Manager for any ad.;'ional compensation and expenses incurred, other than that provided herein, and in no event s, all the City be liable for any consequential or incidental damages. 49. Materiality and Waiver of Breach City and Development Manager agree that each requirement, duty and obligation set forth in these Contract Documents is substantial and important to the formation of this A Bement. The parties failure to enforce any provision of this Agreement • Ball not be deemed a waiver of such provision or modification of this Agreement. A waiver of any brh of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall of be construed to be a modification of the terns of this Agreement. 50. Acceptance and Final Payment Upon receipt of written notice from Development Manager that the Construction Work is ready for final inspection and acceptance, the City shAii, within ten (10) calendar days, make an inspection thereof. If City's Project Manager find t '6 Work acceptable, the requisite documents have been submitted and the requirements of t e Contract Documents fully satisfied, and all conditions of the permits and regulatory agencies have been met, a Final Certificate for Payment (Attachrnent E) shall be issued by City's Projeo't Manager, over its signature, stating that the requirements of the Contract Documents ha, e been performed and the Work is ready for acceptance under the terms and conditions thereo, Before issuance of the Final Certificate/for Payment, Development Manager shall deliver to City's Project Manager a conditional release o. all liens arising out of this Agreement, or receipts in full in lieu thereof; an affidavit certifying tha all suppliers, Sub -Contractors, and Contractor have {28291848;1 } 26 been or will be (out of the final payment) paid in full and that all other indebtedness connected with the Construction Work has been or will be paid; the final corrected As -Built Drawings; the Record Set; and the final bill of materials, if required, and Application for Payment, Development 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, fuJi completion thereof is materially delayed through no fault of Development Manager or its Contractor, and A/E so certifies City shall, upon certificate of City's Project Manager, and without terminating the Agreeme . , make payment of the balance due for that portion of the Work fully completed and accepted. S,sch payment shall be made under the terms and conditions governing final payment, except that it .hall not constitute a waiver of unknown claims. The making of and acceptance of final payment shall constitute a waiver of all claims by Development Manager and the City, except those previously made in strict accordance,.` ith the provisions of the Agreement and identified by Development Manager or the City as unse ed at the time of the application for final payment. 51. Resolution of Contract Disputes Development Manager understands and agrees that all disputes between and the City based upon an alleged violation of the terms of this Agreement by the City s all be initially submitted to the Director for resolution. Upon receipt of the submittal from t e Development Manager, the Director shall render a decision within fourteen (14) calendar days. iere a mutually satisfactory resolution cannot be reached the Development Manager may subn the dispute to the City Manager or his/her designee for resolution. Where a mutual resolutio o°� cannot be reached between the Development Manager and the City Manager or designee, the D velopment 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 exeed $500,000, the City 'Manager's decision shall be approved or disapproved by the City. Copnvssion. Development Manager shall not be entitled to seek judicial relief unless: • It has first received City Manager's written decision, approvved by the City Commission if applicable, or • A period of sixty (30) days has expired after sub sitting to the City Manager a detailed statement of the dispute, acco panied by all supporting documentation, or a period of (75) days has/ expired where City Manager's decision is subject to City Commission approval; d • Mediation of the dispute, as stipulated in Art le 47, has not resulted in a mutual resolution; or • City has waived compliance with the procec'ure set forth in this Article by written instrument(s) signed by the City Manager. {28291848;1}27 r If Development Manager is required to file a lawsuit in order to meet a statute of limitations before it has complied with any of the above requirements, it shall be entitled to file the action and then the City may move to stay the action to allow the Development Manager to comply with the conditions precedent to litigation as set forth in this Agreement. 52. Mediation - Waiver of Jury Trial In an effort to engage in a cooperative effort to resolve conflict which may arise durin the course of the design and/or construction of the Project, and/or following the completion the Project, the parties to this Agreement agree all unresolved disputes between them shall ale submitted to non -binding mediation prior to the initiation of litigation, unless otherwise agre • m writing by the parties. A certified Mediator, who the parties fmd mutually acceptable, will co uct any Mediation Proceedings in Miami -Dade County, State of Florida. The parties will shar the costs of a certified Mediator on a 50/50 basis. In an effort to expedite the conclusion of any litigation, the parties voluntarily wa e their right to jury trial in any action arising under this Agreement. 53. Substantial Completion. Punch List and FinarCompletion The Construction Work shall be substantially complete when the City's Projec - Manager, in the reasonable exercise of his/her discretion determines that the Construction Work is omplete and there are no material and/or substantial variations from the Agreement and the Costruction Work is fit for its intended purpose. City's Project Manager shall not unreasonably wi °Old or delay its approval. Upon Substantial Completion, City's Project Manager and the Devel pment Manager shall sign the Substantial Completion Inspection Form. The signing of tll s form shall not relieve the Development Manager from its obligation to complete the Project. When the Development Manager believes that the Construction Work is substantially complete, the Development Manager shall request in writing that the City inspect the Construction Work to determine if Substantial Completion has been a Thieved. No request for Substantial Completion inspection is to be submitted until the De elopment Manager has obtained a Certificate(s) of Occupancy, Certificate of Completion or ompletion or a Temporary Certificate of Occupancy, or other equivalent. The City shall schedu e the date and time for any inspection and notify the Development Manager and any other arties deemed necessary. During this inspection, the Project Substantial Completion Inspectio orm, (Attachment B), will be completed as necessary. Any remaining Construction Work steal be identified on this form and shall be known as Punch List work. The Punch List, (Attachment ), shall be signed by the City's Project Manager and the Development Manager confirming tat the Punch List contains the item(s) necessary to complete the Construction Work. The f4. ure or refusal of the Development Manager to sign the Project Substantial Completion Inspection Form or Punch List shall not relieve the Development Manager from complying with the re sonable findings of the Project Substantial Completion Inspection and completing the Pro ect to the satisfaction of the City. Where the Punch List is limited to minor omissio s and defects, the City shall indicate that the Construction Work is substantially complete subject to completion of the Punch List. {28291848;1}28 Where the City determines, on the appropriate form that the Work is not substantially complete, the City shall provide a list of all open items necessary to achieve Substantial Completion. Upon completion of such Construction Work, the Development Manager shall request another Substantial Completion inspection. The City's Project Manager and the Development 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 Development Manager in writing of the closeout of th 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 substai ial completion is achieved the City shall be responsible for security, maintenance, eat, utilities, damage to the Project site, and insurance; and shall list all Construction Work yet o be completed to satisfy the requirements of the Contract Documents for Final Completio The failure to include any items of corrective work on such list does not alter the responsi : ility of Development Manager to complete all of the Work in accordance with the ontract Documents, Warranties required by the Contract Documents shall commence on t e date of Substantial completion of the Work or designated portion thereof unless otherwise ovided 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 t s Agreement, or arising out of this Agreement, shall be brought in Miami -Dade County, Florid.: Each party shall bear its own attorney's fees except in actions arising out of Development anager's duties to indemnify the City under this Agreement where Development Manager hall pay the City's reasonable attorney's fees. 55. Independent Contractor Development Manager is an independent contractor under t provided by Development Manager pursuant to this Agreement shall b of Contractor. In providing such services, neither Development M act as officers, employees, or agents of the City. Development Mai Florida Workers' Compensation benefits available to employees to Development Manager, and agrees to provide workers' con employee, or entity working for the Development Manager renderi Agreement. This Agreement shall not constitute or make the partie 56. Successors and Assigns {28291848;1 } 29 s Agreement. Services subject to the supervision nager nor its agents shall ger further understands that the City are not available ensation insurance for any services to the City under this a partnership or joint venture. The performance of this Agreement shall not be transfeixed pledged, sold, delegated or assigned, in whole or in part, by the Development 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 Development 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 witho City Commission approval shall be cause for the City to nullify this Agreement. ny assignment without the City's consent shall be null and void. The Development Manager Tall have no recourse from such cancellation. The City may require bonding, other sec rity, certified financial statements and tax returns from any proposed assignee and the exec on of an assignment/assumption agreement in a form satisfactory to the City Attorney as a c•ndition precedent to considering approval of an assignment. 57. Third Party Beneficiaries Neither Development Manager nor the City intends to directly or substantially benefit a • partybythis Agreement Therefore, the parties agree that there are no third party beneficiaries to this A - ement and that no third party shall be entitled to assert a claim against either of them based upon this Agr- - lent. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any • person or entity under this Agreement. 58. Joint Preparation- Interpretation The language of this Agreement has been agreed to by both parties to exprr�'s their mutual intent and no rule of strict construction shall be applied against either party hereto. Thejheadings contained in this Agreement are for reference purposes only and shall not affect in any way the m rg or interpretation of this Agreement All personal pronouns used in this Agreement shall include the oth gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. T nas such as "herein," "hereof," 'hereunder," and "hereinafter" refer to this Agreement as a whole and not t , any particular sentence, article, paragraph, or section where they appear, unless the context otherwise req ' /es. Whenever reference is made to a Section or Article of this Agreement; such reference is to the Section ortticle as a whole, including all of the subsections of such Section or Article, unless the reference is made to a pat icular subsection. 59. Amendments No modification, amendment, or alteration in the terns or co ditions contained herein shall be effective unless contained in a written document prepared with the same o similar formality as this Agreement and executedbythe City Manager and Development Manager. 60. Severability In the event that any provision of this Agreement is de ' ed by a Court of competent jurisdiction to be illegal or unenforceable, then such uneofoireable or unlawful p on shall be excised from this Agreement, and the remainder of this Agreement shall continue in full foce and effect. Notwithstanding the foregoing, 1 {28291848;1}30i 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, represents the entire and integrated agreement between the City and the Development 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 alter 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 62. Conflict of Interest Development Manager covenants that no person under its employ who prese fly exercises any functions or responsibilities on behalf of the City in connection with Zis Agreement has any personal financial interests, direct or indirect, with the Contr tor. Development Manager further covenants that, in the performance of the Agreement, no erson having such conflicting interest shall be employed. Any such interest on the part of the Contractor or its employees must be disclosed in writing to the City. Development Manager is aware .of the conflict of interest laws of the City, Miami City Code §2-611, Miami -Dade County, Florida, Miami -Dade County Code §2-11.1; and i e State of Florida, Chapter 112, Part III, Florida Statutes, as amended, and agrees that it shall lly comply in all respects with the terms of said laws. 63. Independent Contractor Development Manager, its employees, agents or representatives, shall e deemed to be independent contractors and not agents or employees of the City and shall not attain any rights or benefits under the civil service or pension ordinances of the City, or any right z' generally afforded classified or unclassified employees. Development Manager, its ei '.loyees, agents or representatives, shall not be entitled to Florida Workers' Compensation be+'efits as an employee of the City, 64. Public Records Development Manager shall comply with Chapter 119, Florida Statutes, as may be applicable, shall additionally comply with Section 119.0701, Florida statutes, including without limitation: (1) keep and maintain public records that ordinarily ' nd necessarily would be required by the City to perfoiru this service; (2) provide the public e'ith access to public records on the same terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that publi records that are exempt or confidential and exempt from disclosure are not disclosed except a authorized by law; (4) meet {28291848;1 }31 all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; (5) all electronically stored public records must be provided to the City in a format compatible with the City's information technology systems. { SIGNATURE PAGE(S) TO FOLLOW {28291848;1 }32 IN WITNESS WHEREOF, the parties have set their hands and seals on the day and year first shovewritten tritylt City of Aawi, amunicipal corporation ATTEST: By: By: ToddA. Hannon, City Cleric Daniel J. Alfonso, CityManager "Development Manager" 1EST: Oak Plaza Associates (Del.) LLC, a ►i elaware A Limited Liability Company By: Name: Name: Title: Title: APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS:, By: By: Victoria Mendez Calvin Elli City Attorney Risk Manement Director {28291848;1)33 CITY OF MIAM[ Date of Inspection: Project information Project No.: Project Location: .Representation City of Miami ser Agency: Contractor: Inspection Based on the request of the Contractor a substantial completion inspection as conducted, which resulted in the following: ❑ No punch list created. By signing below the City acknowle ges that the work has been performed in accordance with the contract and specification equirements. This form shall serve as the Notice of Final Completion. Project Close Out d final payment is subject to the submittal of all required documentation. ATTACHMENT B DEPARTMENT OF CAPITAL IMPROVEMENTS 444 S.W. 2N13 AVENUE, 8th FLOOR MIAMI, FLORIDA 33 : t SUBSTANTIAL COMPLETION INSPECTION Re -Inspection No.: Project Name: Contractor's Name: ❑ 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 . st is issued as a final punch list, subject to re -inspection by the City. By signing belo the City acknowledges that the work has been performed in accordance witlthe contract and specification requirements. This form shall serve as a partial acce,tance and notification of substantial completion. Final Acceptance shall be issued subse ent to completion and re -inspection of the punch list items. Project Close Out and fin - payment is subject to the punch list re -inspection and the submittal of all required docur entation. ❑ The punch list items listed are of a nature tha j precludes beneficial occupancy of the premises. Substantial completion is denied at t 's time. Items on the punch list must be completed and the Contractor must request anot t er Substantial Completion Inspection. The failure or refusal of the Contractor to sign the roject Substantial Completion Inspection Form or Punch List shall relieve the Contractor from'! complying with the findings of the Project Substantial Completion Inspection and completing ti4 Project to the satisfaction of the City. {28291848;1} 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 {28291848;1 } 35 CITY OF MIAMI 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✓U a new substantial completion inspection or, ❑ final completion. A detailed descripti•f for each item is provided below. Upon completion the City's Project Manager and the Co; ultant shall inspect the work performed and initial that each item has been completed and cepted. (Use additional pages as necessary.) Description of p Item Project Manager's Acceptance Date of Acceptance {28291848;1} 36 Shnpson Park Page ATTACHMENT D Punch List developed and agreed to by: Project Manager: Contractor: Consultant: (28291848;1} 37 Simpson Park Page ATTACHMENT D CERTIFICATE OF SUBSTANTIAL COMPLETION: PROJECT: (name, address) AGREEMENT NUMBER: DEVELOPMENT MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: TO (City): DATE OF ISSUANCE: PROJECT OR DESIGNATED PORTION SHALL INCLUDE: The Work performed under this Agreement has been reviewed and fou j d to be substantially complete and all documents required to be submitted by Development Manager under the Contract Documents have been received and accepted. The Date of Su stantial Completion of the Project or portion thereof designated above is 1ybreby established as DEFINITION OF DATE OF SUBSTANTIAL COMPL] TION 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 atisfied and the work is sufficiently complete in accordance ith the Contract Documents, so the Project is available for bene cial occupancy by City. A Certificate of Occupancy/Completion must be issued for Substantial Completion to be achieved. {28291848;1} A list of items to be completed or corrected, prepared by Consultant and approved o y City is attached hereto. The failure to include any items on such list does not alter the res .risibility of Development Manager to complete all work in accordance with the Contract D96uments. The date of commencement of warranties for items on the attached list will ,lie the date of Substantial Completion unless otherwise agreed in writing. City By Date In accordance with the Agreement, Development Manager will complete o : correct the work on the list of items attached hereto within from the above Date of Substantial ,ompletion. City By ate 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 Development Manager for Security, maintenance, heat, utilities, damage to the work and insurance shall be as follows: {28291848;1) PROJECT: (name, address) TO (City): DATE OF ISSUANCE: All conditions or requirements of any permits or regulatory agencies ove been satisfied. The documents required by the Agreement, and the final bill of materiat, if required, have been received and accepted. The Work required by the Contract Doctune v is has been reviewed and the undersigned certifies that the Work, including minor corrective /ork, has been completed in accordance with the provision of the Contract Documents and is accepted under the terms and conditions thereof. Consultant BY / ate City, through the Director, accepts the work as fully complete and ill assume full possession thereof at ATTACHMENT E FINAL CERTIFICATE OF PAYMENT: BID/CONTRACT NUMBER. DEVELOPMENT MANA , f R: AGREEMENT FOR: NOTICE TO PROCEE i DATE: (Time) (Date) City of Miami, Florida By Director / Date {28291848;1} Page 40 EXHIBIT F INSURANCE REQUIREMENTS DESIGN BUILD CONSTRUCTION AGREEMENT DESIGN DISTRICT ROAD IMPROVEMENTS I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent & Contractual Liability Premises & Operations Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement Additional Insured Endorsement Required II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,100,000 B. Endorsements Required / City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by a accident, each accident. {28291848;1} $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Policy/Excess Liability (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $2,000,000 Aggregate $2,000,000 B. Endorsements Required City of Miami listed as an additional insured V. Owners & Contractor's Protective Each Occurrence $1,000,000 General Aggregate $1,000,000 / City of Miami listed as named insured VI. Payment and Performance Bond City of Miami listed as Obligee VII. INSTALLATION FLOATER Causes of Loss: All Risk/Special Form Valuation: Replacement Cost Deductible: $10,000 AOP, 5% W/H $TBD VIII. Contractor's Professional Liability r Each Claim $400,000 Policy Aggregate $?,000,000 Retro Date Included /f The above policies shall provide the City of Miami witJwritten notice of cancellation or material change from the insurer not less than (30) days prior t / any such cancellation or material change, or in accordance to policy provisions. {28291848;1} 9 Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and/or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. {28291848;1)