HomeMy WebLinkAboutReso 2014-2277RESOLUTION NO. 2014- 22_1
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AWARDING
REQUEST FOR PROPOSAL (RFP) NO. 13 -08 -01 TO AND
AUTHORIZING THE CITY MANAGER TO NEGOTIATE
AN AGREEMENT WITH RIC -MAN INTERNATIONAL,
INC. FOR THE DESIGN AND CONSTRUCTION OF A
PEDESTRIAN BRIDGE AT GATEWAY PARK, IN AN
AMOUNT NOT TO EXCEED TWO MILLION ONE
HUNDRED THOUSAND DOLLARS (S2,100,000.00),
PROVIDED SAID AGREEMENT IS APPROVED AS TO
FORM AND LEGAL SUFFICIENCY BY THE CITY
ATTORNEY; AUTHORIZING THE MAYOR TO EXECUTE
SAID AGREEMENT; FURTHER PROVIDING THE CITY
MANAGER AND THE CITY ATTORNEY WITH THE
AUTHORITY TO DO ALL THINGS NECESSARY TO
EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City is currently developing its largest, most centrally located park on
the Northside of Sunny Isles Boulevard: and
WHEREAS, the City was in need of a firm to design and construct a Pedestrian Bridge
at Gateway Park and issued RFP No. 13 -08 -01 of which three (3) responses were received; and
WHEREAS, the proposal submitted by Ric -Man International, Inc. was determined to be
the lowest responsible and responsive bidder for designing and constructing a Pedestrian Bridge
at Gateway Park: and
WHEREAS, Ric -Man International, Inc. is qualified, willing and able to provide the
desired services on the terms and conditions set forth herein: and
WHEREAS. the City Commission desires to award Bid No. 13 -08 -01 to Ric -Man
International, Inc.. in an amount not to exceed Two Million One Hundred Thousand Dollars
(52,100,00.00), and authorize the City Manager and the City Attorney to negotiate an agreement
with Ric -Man International, Inc. for the Design and Construction of a Pedestrian Bridge at
Gateway Park.
NOW THEREFORE, BE IT RESOLVED BY THE CITY CONIMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Incorporation of Recitals. The recitals set forth in this resolution are incorporated
herein by reference as if fully set forth herein.
R2014 Ric- \fan Rfp 13 -OS0I G=t ,ay Park Pedestrian Bridgeitic \fan R17P 13 -OMI Gatmar Park Pedestrian Bridge Page 7 of 2
Section 2. Award of Bid and Authorization of City Manager and City Attorney. The City
Commission herebv awards Bid No. 13 -08 -01 to Ric -Man International. Inc.. and authorizes the
City Manager and the City Attorney to negotiate an Agreement with Ric -Man International, Inc.,
in an amount not to exceed Two Million One Hundred Thousand Dollars ($2,100,000.00) to
design and construct a Pedestrian Bridge for Gateway Park.
Section 3. Authorization of Mavor. The Mavor is hereby authorized to execute said
Agreement.
Section 4. Authorization of City Manager and City Attorney. The City Manager and the City
Attorney are hereby authorized to do all things necessary to effectuate this Resolution.
Section 5. Effective Date. This Resolution shall take effect immediately upon adoption.
PASSED and ADOPTED this 3151 day of July 2014.
e 1,
a *E.
City Clerk
APPROVED AS TO FORM AND
LEG S 1 NCY:
H Ci Attorney
Moved by: 41- 0P1
Seconded by: WovA. SCkkpw
Vote:
Mayor Edelcup
✓ (Yes)
(No)
Vice Mayor Action
7(Yes)
Commissioner Gatto
v7_(Yes)
_(No)
(No)
Commissioner Levin
(Yes)
(No)
Commissioner Scholl
V_(Yes)
(No)
R2014- Ric-Man Rfp 13 -08 -01 Gateway Park Pedestrian BridgeRic -Man RFP 13 -08 -01 Gateway Park Pedestrian Bridge Page 2 of 2
SD CDD' O OQ y4�
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TO:
VIA:
FROM
DATE:
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947 -0606 City Hall
(305) 949 -3113 Fax
(305) 947 -2150 Building Department
(305) 947 -5107 Fax
Norman S. Edelcup, Mayor
Isaac Aelion, Vice Mayor
Jeanette Gatto, Commissioner
Jennifer Levin, Commissioner
George "Bud" Scholl, Commissioner
Christopher J. Russo, City Manager
Hans Ottinot, City Attorney
Jane A. Hines, MMC, City Clerk
MEMORANDUM
The Honorable Mayor and City Commission
Christopher J. Russo, City Manager
`—Bill Evans, Assistant City Manager
July 31, 2014
RE: A Resolution Authorizing City Staff to Negotiate a Contract with Ric -
Man International, Inc. for the Design and Construction of a Pedestrian
Bridge at Gateway Park
RECOMMENDATIONS:
Staff recommends City Commission approve the Resolution.
REASONS:
To provide for safe pedestrian access to Gateway Park from the north side of Sunny Isles
Boulevard (SR826) the City desires to construct a bridge from the east side of North Bay
Road over Sunny Isles Boulevard to Gateway Park. There are five westbound lanes
separated by a solid concrete barrier between the south three lanes and the north two
lanes. Currently, access to Gateway Park from north of North Bay Road at Sunny Isles
Boulevard is via either Collins Avenue or the loop road under SR 826 at the Intracoastal;
each of these travel routes are approximately one -half mile in length and still require
crossing active roadways.
In order to advance this project quickly, the City issued RFP No. 13 -08 -01 to solicit
qualification proposals from interested firms or teams for a Design -Build contract. The
City received three responses to this RFP. Respondents were asked to submit additional
information that included both technical and cost proposals; the submittals were reviewed
and presentations conducted on July 10, 2014. Ric -Man International, Inc. (RMI) was
determined to be the most responsive, responsible proposer. Staff recommends approval
to enter into contract negotiations with RMI.
FUNDING SOURCE: C C
Aeenda Item J
Not to Exceed $2,100,000 from Account No. 20- 600.5688 I I
Date
yVgNY s6
V L
i
M DESIGN -BUILD AGREEMENT
OF S " PEDESTRIAN BRIDGE
THIS AGREEMENT (this "Agreement "), made and entered into the
2014 by and between:
CLIENT:
CITY OF SUNNY ISLES BEACH, FLORIDA
a municipal corporation, and its assigns
18070 Collins Avenue
Sunny Isles Beach, FL 33160
(hereinafter to referred to as "CITY"), and
O C
DESIGN BUILDER:
RIC -MAN INTERNATIONAL, INC.
220 71` Street, Suite 206
Miami Beach, FL 33141
(hereinafter referred to as "CONTRACTOR ")
14 dday of
PROJECT:
Pedestrian Bridge (hereinafter referred to as the "PROJECT" and which shall be further defined in
this Agreement)
This Agreement may refer to the CLIENT or CONTRACTOR, individually, or as "Party" or as
"Parties."
WHEREAS, the CITY, has identified a certain parcel of real property located in the CITY
which the CITY owns and upon which it intends to have constructed site improvements consisting of
a Pedestrian Bridge and all incidentals thereto as further defined in this Agreement;
WHEREAS, the CITY wishes to retain the CONTRACTOR to perform all design,
construction and other services associated with and/or necessary to timely construct a code compliant
Project within the Guaranteed Maximum Price (hereinafter referred to as "Design - Build" services
which shall be further defined in this Agreement);
WHEREAS, the CONTRACTOR agrees to complete the Design -Build services within the
contract times and for a specified and fixed contract price as set forth in this Agreement as long as
any additions and revisions do not materially deviate from the information contained in City of Sunny
Isles Beach RFP No. 13 -08 -01 Gateway Park Pedestrian Access Improvements — Step 2 Technical
Proposal; and
WHEREAS, CITY has determined that entering into this Agreement with CONTRACTOR
to provide the Design -Build services for this Project is in the best interests of the health, safety, and
welfare of the citizens and residents of Miami -Dade County and of the CITY of Sunny Isles Beach,
Florida; and
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and undertakings
and other good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties do mutually covenant and agree as follows:
ARTICLE 1- DEFINITIONS ARTICLE 1- DEFINITIONS
Wherever used in this Agreement or in the other Contract Documents the following terms
have the meanings indicated which are applicable to both the singular and plural thereof:
1.1 Agreement - The written agreement between the CITY and CONTRACTOR covering
the Work to be performed including other Contract Documents that are attached to the Agreement or
made a part thereof.
1.2 Building Department - The Building Department of the CITY of Sunny Isles Beach,
Florida, or its authorized employees.
1.3 Change Order - A document which is signed by the CONTRACTOR and CITY,
through its duly designated and formally authorized agent, which authorizes the performance of the
Extra Work. The CONTRACTOR shall not perform Extra Work of any kind, however characterized,
for which it expects to claim additional compensation without written authorization from the CITY.
If the CITY authorizes the CONTRACTOR to perform Extra Work, then prior to performing the
Extra Work, the CITY and CONTRACTOR shall enter into a written Change Order specifying the
services or work to be performed, the additional Contract Time that may be required and the
compensation to be paid for this Extra Work. Any Extra Work performed by the CONTRACTOR
without the CITY'S prior written approval shall not be compensable, without exception. The
CONTRACTOR intentionally, knowingly and voluntarily waives any claim for unjust enrichment or
quantum merit with respect to any work performed in the absence of a written Change Order. Any
waiver of this provision must be in writing and signed by both Parties and in no event shall such
written waiver extend to any subsequent event.
1.4 CITY - The CITY Commission of the CITY of Sunny Isles Beach, Florida and its
designated official authorized to provide approval or consent with respect to this Agreement.
1.5 Ci y Manager- City Manager of the City of Sunny Isles Beach or his designee.
1.6 Contract Documents - The Contract Documents consist of the Design Criteria
Package, Drawings, Plans and Specifications, Non - Collusive Affidavit, Public Entity Crimes Form,
this Agreement, Notice of Award, Notice to Proceed, Certificate(s) of Insurance, Payment and
Performance Bonds and any additional documents which are required to be submitted under this
Agreement, and all Written Amendments and Change Orders issued on or after the effective date of
the Contract.
1.7 Defective - An adjective which when modifying the Work refers to Work that is
defective under Applicable Building Codes and General Industry Standards, faulty or deficient, or
does not conform to the Contract Documents, or does not meet the requirements of any inspection,
reference standard, test or approval referred to in the Contract Documents, or has been damaged prior
to final payment.
1.8 Design -Build Work — Shall be defined to include Pedestrian Bridge , all design
services associated with and/or necessary to timely construct the code compliant Project and
construction services associated with and/or necessary to timely complete the Project within the
Guaranteed Maximum Price, including, but not limited to, all site related work without limitation,
furnishing all labor and services, the procurement of all equipment and materials reasonably inferable
from the Contract Documents that will be used and/or incorporated into the Project.
1.9 Drawings (also referred to as "Plans ") — shall be defined to mean the "Issued for
Construction" design package, which are signed and sealed by a Florida Licensed Engineer and which
are sufficient to secure a permit, that the CONTRACTOR is obligated to produce to the complete
satisfaction of the CITY and which is deemed one hundred percent (100 %) complete for the
construction of the entire Project.
1.10 Effective Date of the Agreement - The date indicated in the Agreement on which it
becomes effective, but if no such date is indicated it means the date on which the Agreement is signed
and delivered by the last of the two parties to sign and deliver.
1.11 Extra Work - shall be defined to mean work totally outside the scope of the
Drawings, Specifications and/or the contemplation of the Contract Documents. All extra work
shall require an executed change order from the designated official authorized to provide the
approval. Any Extra Work performed by the CONTRACTOR without the CITY'S prior written
approval shall not be compensable without exception. Any waiver of this provision must be in writing
and signed by both Parties and in no event shall such written waiver extend to any subsequent event.
1.12 Field Order - A written order issued by City Manager or designee which orders minor
changes, information contained in City of Sunny Isles Beach RFP No. 13 -08 -01 Gateway Park
Pedestrian Access Improvements — Step 2 Technical Proposal in the work but which does not involve
a change in the Guaranteed Maximum Price or the Contract Time.
1.13 Final Completion. Means the date subsequent to the date of Substantial Completion
at which the Contractor has completed all the Work in accordance with the Agreement as certified by
the City Manager or his representative and submitted all documentation required by the Contract
Documents.
1.14 Guaranteed Maximum Price — shall be defined to mean that the CONTRACTOR
warrants and guarantees that the maximum price to the CITY for all of the Design -Build Work on the
Project shall be two million one hundred thousand dollars ($2,100,000.00) (hereinafter referred to as
"GMP" and/or "Contract Price "). The GMP is deemed to include costs, fees, prices, expenses,
overhead, profit, including all sales, use, consumer and other taxes mandated by applicable law, and
any escalation associated therewith with respect to all equipment material and labor through the
completion of the entire Project as long as any additions and revisions do not materially deviate from
the information contained in City of Sunny Isles Beach RFP No. 13 -08 -01 Gateway Park Pedestrian
Access Improvements — Step 2 Technical Proposal. A portion of the GMP shall be attributed to the
design phase of the Project and the remainder attributed to the construction phase as further delineated
in the attached Exhibit "A" titled Schedule of Values, which is incorporated herein by reference.
1.15 Notice of Award - The written notice by CITY to the CONTRACTOR stating that the
CONTRACTOR is awarded the privilege to design and construct the Project on the condition that the
Parties are able to negotiate, to the CITY'S complete satisfaction, and execute an Agreement for the
design and construction of the entire Project.
1.16 Notice to Proceed - A written notice given by CITY to CONTRACTOR fixing the
date on which the Contract Time will commence to run and on which CONTRACTOR shall start the
design and construction phases under this Agreement.
1.17 Specifications — Shall be defined to mean the written technical descriptions, that
accompany the Drawings of all materials, equipment and other construction systems, including the
quantity and quality associated therewith, as well as other standards and workmanship as applied to
the Work and certain administrative details applicable thereto that the CONTRACTOR is obligated
to prepare to the complete satisfaction of the CITY which is deemed one hundred percent (100 %)
complete for the construction of the entire Project.
1.18 Substantial Completion. Means that point at which the Work is at a level of
completion in substantial compliance with the Agreement such that the City can use, occupy and/or
operate the Project in all respects to its intended purpose. Substantial Completion shall not be deemed
to have occurred until any and all government entities, which regulate or have jurisdiction over the
Project, have inspected and approved the Project. Beneficial use or occupancy shall not be the sole
determining factor in determining whether Substantial Completion has been achieved, unless a
temporary certificate of occupancy has been issued.
1.19 Project — The Project means the design and construction of a Pedestrian Bridge over
westbound SR 826 (aka Sunny Isles Boulevard) to connect a parcel of City-owned property that lies
between eastbound and westbound SR826 ramps. The services include Design Services, Survey,
Permits, MOT, Demolition, Construction, Coordination with all Utility Relocations, Design, Review,
Best Value Analysis including cost estimates, GMP and Project management and coordination with
City personnel (per the DCP 5 of 27), and as generally described information contained in City of
Sunny Isles Beach RFP No. 13 -08 -01 Gateway Park Pedestrian Access Improvements — Step 2
Technical Proposal, and all other incidentals thereto identified by the CITY during the design and
construction phases of the Project which the CITY concludes, at its sole discretion, are required to be
included complete the Project.
1.20 Subcontractor - An individual, firm or corporation having a direct Contract with
CONTRACTOR or with any other Subcontractor for the performance of a part of the Work at the
site.
1.21 Supplier - A manufacturer, fabricator, supplier, distributor, materialman or vendor.
1.22 Work — Shall be defined to include all of the services under the definition of Design -
Build Work.
1.23 Work Change Directive - A written directive to CONTRACTOR issued on or after
the Effective Date of the Agreement and signed by CITY and recommended by City Manager or
designee ordering an addition, deletion or revision in the Work. A Work Change Directive shall not
change the Guaranteed Maximum Price as long as the changes do not materially deviate from the
information contained in City of Sunny Isles Beach RFP No. 13 -08 -01 Gateway Park Pedestrian
Access Improvements — Step 2 Technical Proposal or Time, but demonstrates a desire that the parties
expect that the change directed or documented by a Work Change Directive may be incorporated in
a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on
the Guaranteed Maximum Price or Contract Time. Notwithstanding the foregoing, the
CONTRACTOR understands and agrees that the decision by the CITY to sign a Change Order is
completely and totally within the CITY'S discretion and that if the CITY decides not to execute a
Change Order, the CONTRACTOR shall not be entitled to recover any compensation whatsoever for
the work performed under the Work Change Directive. The CONTRACTOR understands and agrees
that any work, however characterized, performed by the CONTRACTOR without the CITY'S prior
written approval shall not be compensable, without exception. The CONTRACTOR intentionally,
knowingly and voluntarily waives any claim for unjust enrichment or quantum meruit with respect to
any work performed in the absence of a written Change Order. Any waiver of this provision must be
in writing and signed by both Parties and in no event shall such written waiver extend to any
subsequent event.
1.24 Written Amendment - A written amendment of the Contract Documents, signed by
CITY and CONTRACTOR on or after the Effective Date of the Agreement.
1.25 Form AMement. This Agreement is based on a standard form contract and is subject
to modification by the City prior to execution by both parties.
ARTICLE 2 - CONTRACT DOCUMENTS ARTICLE 2 - CONTRACT DOCUMENTS
2.1 Enumeration of Contract Documents.
The Contract Documents which comprise the entire agreement between CITY and
CONTRACTOR are attached to this Agreement, made a part hereof and consist of the following:
2.1.1 This Agreement.
2.1.2 Construction performance bond.
2.1.3 Construction payment bond.
2.1.4 Drawings and Specifications.
2.1.5 Insurance certificate.
2.1.6 Notice of Award and Notice to Proceed.
2.1.7 Clarifications and Exclusions.
2.1.8 All applicable provisions of State, Federal or local law.
2.1.9 Any modification, including all Change Orders, Field Orders and Written
Amendments duly delivered after execution of Agreement.
2.2 Entire Agreement and Contract Interpretation.
The Contract Documents comprise the entire agreement between CITY and
CONTRACTOR concerning the Work. This Agreement shall be governed by the laws of the State
of Florida, without regard to its conflict of law provisions. The Contract documents are intended
to be complementary and interpreted in harmony so as to avoid conflict, with the express qualification
that the Contract Documents must be read in such a manner as to afford the greatest possible
protection to the CITY, including, but not limited to, ensuring that all of the Design -Build Work
for the Project is completed within the warranted Guaranteed Maximum Price.
2.3 Amending and Supplementing Contract Documents.
The Contract Documents may be amended to modify the terms and conditions of the
Agreement in one or more of the following ways:
2.3.1 A Change Order;
2.3.2 A Written Amendment;
2.3.3 A Work Change Directive.
2.4 Supplements, Minor Variations or Deviations.
CITY will not authorize any Change Orders to the Contract Documents, except in a
manner set forth in this Agreement and allowed by law. CONTRACTOR covenants and agrees that
CITY shall not be responsible for the costs above those set forth herein unless the same are set forth
in a Change Order. Any and all Change Orders issued by the authority of an entity not a party to this
Agreement shall not be compensated by CITY, and shall not constitute a Change Order.
2.5 Representation of CONTRACTOR.
Execution of the Contract by the CONTRACTOR is a representation that
CONTRACTOR has visited the site and become familiar with the local conditions under which the
Work is to be performed.
2.6 Before Commencing Operations.
6
Before undertaking each part of the Work, CONTRACTOR shall carefully study and
compare the Contract Documents and check and verify pertinent figures shown thereon.
ARTICLE 3 — SCOPE OF WORK
3.1 Scope of Work.
3.1.1 The CONTRACTOR shall provide services for the designing and construction of the
Project as described in the Contract Documents with all required minimum standards of construction
as required by the Contract Documents. 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 award, except as may be otherwise
specifically stated.
3.1.2 The CONTRACTOR agrees to provide each and every item of expense necessary for
the design and construction of the Project in accordance with and within the scope of the Guaranteed
Maximum Price. It is agreed between the Parties that the Contract Documents describe a functionally
complete Project consisting of total design performed by the design professional and construction to
be completed in accordance with the Contract Documents. It is further agreed that the
CONTRACTOR warrants that any and all Work, materials or equipment that may reasonably be
necessitated from the Contract Documents as being required to produce the intended result will be
supplied by the CONTRACTOR at its own costs within the Guaranteed Maximum Price, whether or
not specifically called for. The CONTRACTOR warrants and accepts that any and all repair work
required during the construction phase that results from the actions or inactions of the
CONTRACTOR, including those of employees, agents, representatives or subcontractors shall be
deemed the responsibility of the CONTRACTOR and included in the Guaranteed Maximum Price.
The CONTRACTOR warrants and accepts that any and all work necessitated by inspections which
is not prescribed in the Plans or Specifications, but necessitated to bring the project into conformity
with the Contract Documents and all applicable laws, codes, regulations, procedures and/or
considered inside the contemplation of the Contract Documents shall be deemed the responsibility of
the CONTRACTOR and included in the Guaranteed Maximum Price. The CONTRACTOR warrants
and accepts that all other work of any kind, however characterized, not prescribed in the Plans or
Specifications, but necessitated to bring the project into conformity with the Contract Documents and
all applicable laws, codes, regulations, procedures and/or considered inside the contemplation of the
Contract Documents shall be deemed the responsibility of the CONTRACTOR and included in the
Guaranteed Maximum Price. Finally, the CONTRACTOR accepts, understands and agrees that this
provision of the Agreement is a material inducement for the CITY to enter into this Agreement and
that the CITY has indeed relied on this particular provision in making its decision to enter into this
Agreement.
ARTICLE 4 - CONTRACT TIME
4.1 Time is of the Essence of this Contract. CONTRACTOR agrees to complete design
and submit for all associated approvals and permits within seventy five (75) calendar days of
conceptual design approval for the Project from the City Commission of the City of Sunny Isles
Beach. The Work shall be shall be in Substantial Completion no later than two hundred seventy
(270) calendar days from issuance of the Notice to Proceed by the City Manager or his designee. The
Contractor shall achieve Final Completion no later than thirty (30) days after the two hundred seventy
(270) day deadline to achieve Substantial Completion. The Notice to Proceed shall be issued for the
construction of the Project upon the submittal of an application for building permit for the Project or
the approval of 90% percent design by the CITY, whichever occurs first. The CONTRACTOR shall
commence on site construction of the Project the later of ninety (90) days after the City's issuance of
the Notice to Proceed for construction or issuance of all required permits. CONTRACTOR agrees
that all Work shall be prosecuted regularly, diligently and uninterrupted at such rate of progress as
will ensure full completion thereof within the time specified. Failure to achieve timely, substantial
and/or final completion shall be regarded as a breach of this Agreement and subject to the appropriate
remedies including but not limited to, liability for liquidated damages in accordance with Paragraph
12.3 herein.
ARTICLE 5 CONTRACT SUM - GUARANTEED MAXIMUM PRICE
5.1 Guaranteed Maximum Price.
5.1.1 CITY shall pay CONTRACTOR in current funds as full compensation for the
performance of all the Work for the design and construction of the Project which is subject to additions
and deductions by Change Order or Written Amendment as provided in this Agreement, and subject
further to possible reductions as set forth in Article 6.2.1 below, the sum of Two Million One Hundred
Thousand Dollars $2,100,000.00 (the "Guaranteed Maximum Price").
5.1.2 The initial sum total of Two Hundred Fifty Thousand Four Hundred Dollars
($250,400.00) shall be attributed to the design phase which includes Pre - development expenses,
architectural and design fees, legal and administrative fees, Building Risk and General Liability
Insurance and Permit Fee Allowance, with the remaining amount attributed to the construction phase
as further detailed in the attached Exhibit titled Schedule of Values. Ownership in the signed and
sealed 100% "Issued for Construction" set of Plans and Specifications shall vest in the CITY once a
permit is issued to commence construction.
ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES
6.1 Responsibilities - Construction Phase.
6.1.1 Consultation: CONTRACTOR will schedule and attend regular meetings and will
consult with CITY regarding site use and improvements, and the selection of materials, building
systems, and equipment.
6.1.2 Subcontractors and Suppliers: CONTRACTOR shall develop subcontractor interest
in the Project and shall furnish to the CITY, information, a list of subcontractors, including suppliers
who are to furnish materials or equipment fabricated to a special design. The receipt of such list shall
not require the CITY to investigate the qualifications of proposed subcontractors or suppliers, nor
shall it waive the right of the CITY later to object to or reject any proposed subcontractor or supplier,
and is furnished by CONTRACTOR to CITY for informational purposes only. Subject to the rights
of the CITY to purchase supplies and materials in furtherance of the sales tax program as described
in Article 6.16 hereof, CONTRACTOR shall have authority in awarding subcontractors and purchase
orders.
6.1.3 Extent of Responsibilit: CONTRACTOR shall be responsible for the architecture,
engineering, construction and completion of the Project.
6.2 Guaranteed Maximum Price.
6.2.1 The Guaranteed Maximum Price is also subject to further reduction. by an amount
calculated by multiplying the applicable Florida sales tax rate times the amount of material and
supplies purchased by the CITY under the sales tax program described in Article 6.16 hereof. The
Guaranteed Maximum Price may be modified only as herein provided including possible changes as
a result of Extra Work as may be documented in a City Commission approved Change Order[s].
6.2.2 The Guaranteed Maximum Price shall include in the Cost of Work only those taxes
which are enacted at the time the Guaranteed Maximum Price is established.
6.2.3 The Guaranteed Maximum Price shall include all direct and indirect costs associated
with the design and construction phases of the Project, including but not limited to, procurement of
materials and equipment, labor, overhead, profits, contingency, permits, insurance, performance and
payment bonds, utilities, fees, and taxes.
6.3 Administration.
6.3.1 The CONTRACTOR shall schedule and conduct weekly meetings at which the CITY
and CONTRACTOR, and appropriate Subcontractors can discuss the status of the Work. The
CONTRACTOR shall prepare and promptly distribute meeting minutes.
6.3.2 The CONTRACTOR shall provide monthly written reports to the CITY and
designated consultants on the progress of the entire Work.
6.3.3 The CONTRACTOR may develop a system of cost control for the Work, including
regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and
proposed changes.
6.4 Design Responsibilities.
6.4.1 CONTRACTOR shall prepare preliminary design documents consisting of
preliminary drawings, specifications and other documents to fix and describe the size, quality,
quantity and characters of the Work, its architectural, structural, mechanical and electrical systems
and the materials and other elements of the Work.
6.4.1.1 CONTRACTOR shall submit the preliminary design documents to
CITY for review and authorization to proceed with the final design preparation. The CONTRACTOR
understands and agrees that the CITY, may, at its sole discretion, require changes to the preliminary
design within 30 days of receipt of preliminary design unless otherwise agreed to in writing by both
parties. All such changes shall be made at the sole and exclusive cost of the CONTRACTOR and be
deemed part of the Guaranteed Maximum Price, except for changes outside the scope of the Work
Upon authorization from the CITY to proceed with the commencement of the entire design,
CONTRACTOR shall begin to prepare drawings, schedules, specifications, technical criteria, written
descriptions, design data, construction documents and diagrams setting forth in detail the
requirements for the complete construction of the Work. The preparation of this work shall be done
in three phases: 30% thirty percent, 60% sixty percent and 90% ninety percent. Any major changes
will be provided by the City at or before the 60% submittal. Minor changes after the 60% may or
may not result in additional design costs
6.4.1.2 The design services shall be performed by qualified architects,
engineers and other professionals duly licensed by the State of Florida and holding current certificates
of registration under the laws of the State of Florida.
6.4.1.3 CONTRACTOR shall prepare and submit for review to the CITY a
30% design package consisting of drawings and specifications for the site work, foundations, utilities,
irrigations systems and other related incidentals.
The CONTRACTOR understands and agrees that the CITY, may, at its sole discretion,
require changes to the 30% percent design. All such changes shall be made at the sole and exclusive
cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price, except for
changes outside the scope of the Work CONTRACTOR understands and agrees that any information
provided to it by the CITY as to any aspect of the Project is not guaranteed. In particular, and without
limiting the foregoing disclaimer, identifying the location of existing utilities shall be the
CONTRACTOR'S responsibility including identifying the location, character and depth of the
existing utilities. Extreme caution shall be exercised by the CONTRACTOR to eliminate any
possibility of any damage to utilities resulting from the CONTRACTOR'S activities. Any and all
such damage shall be the responsibility of the CONTRACTOR and all work associated with repairs
related to such damage shall be completed to the CITY'S satisfaction and at the sole and exclusive
cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price. The location of
all overhead utilities shall be verified. The CONTRACTOR shall be responsible for determining
which poles will need shoring during excavation and shall provide such shoring and support as is
required. The CITY'S review of the design plans shall not be deemed an acceptance of the plans nor
be deemed a pre - approval related to the permitting process that the plans will be required to undergo
with the Building Department.
6.4.1.4 CONTRACTOR shall prepare and submit for review to the CITY a
60% design package consisting of drawings and specifications for the structural, architectural and
landscaping portion of the Project.
The CONTRACTOR understands and agrees that the CITY, may at its sole discretion,
require changes to the 60% percent design. All such changes shall be made at the sole and exclusive
10
cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price, except for
changes outside the scope of the Work. CONTRACTOR understands and agrees that any information
provided to it by the CITY as to any aspect of the Project is not guaranteed. The CITY'S review of
the design plans shall not be deemed an acceptance of the plans nor be deemed a pre - approval related
to the permitting process that the plans will be required to undergo with the Building Department.
6.4.1.5 CONTRACTOR shall prepare and submit for review to the CITY a
90% design package consisting of drawings and specifications for the mechanical, plumbing,
electrical, equipment, instrumentation and all other related work necessary to have a fully functional
and completed Project.
The CONTRACTOR understands and agrees that the CITY, may at its sole discretion,
require changes to the 90% percent design. All such changes shall be made at the sole and exclusive
cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price, except of
changes outside the scope of the Work CONTRACTOR understands and agrees that any information
provided to it by the CITY as to any aspect of the Project is not guaranteed. The CITY'S review of
the design plans shall not be deemed an acceptance of the plans nor be deemed a pre - approval related
to the permitting process that the plans will be required to undergo with the Building Department.
6.4.1.6 CONTRACTOR shall prepare and submit for review to the CITY an
"Issued for Construction" design package, which necessarily includes Plans and Specifications, that
the CONTRACTOR is obligated to produce to the complete satisfaction of the CITY which is deemed
one hundred percent (100 %) complete for the construction of the entire Project, which are signed and
sealed by a Florida Licensed Engineer and which are sufficient to secure a permit for the construction
of the entire Project. The CITY shall not make any changes to the Plans and Specifications at 100%
percent design if CONTRACTOR satisfies all comments made by the CITY at 90% percent design.
The CITY'S review of the design plans shall not be deemed an acceptance of the plans nor be deemed
a pre - approval related to the permitting process that the plans will be required to undergo with the
Building Department. The construction phase of the Project shall not commence until the Building
Department has issued a permit based on the 100% "Issued for Construction" design package.
6.4.2 Once the 100% completed "Issued for Construction" design package has received a
permit from the Building Department to commence construction, these Drawings and Specifications
shall then be considered part of the Contract Documents.
6.4.3 The CONTRACTOR agrees that any and all revisions that the Florida Building Code
may require to the "Issued for Construction" Drawings and Specifications shall be the responsibility
of the CONTRACTOR and be so revised at the sole and exclusive cost of the CONTRACTOR and
be deemed part of the Guaranteed Maximum Price.
6.4.4 The CONTRACTOR shall provide to CITY three (3) record sets and three (3)
working sets of full size prints of the Drawings and Specifications. CONTRACTOR shall signify, by
affixing an endorsement (seal/signature, as appropriate) on every sheet of the record set, that the Work
shown on the endorsed sheets was produced by CONTRACTOR. With the record set of prints,
CONTRACTOR shall submit a final set of approved design computations to the CITY. The
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computations shall be bound in an 8 1/2" by 11" format and shall be endorsed (seal/signature as
appropriate) by CONTRACTOR.
6.4.5 All final design documents, plans, reports, studies and other data prepared by
CONTRACTOR shall bear the endorsement of a person duly registered in the appropriate
professional category. Notwithstanding the foregoing, CONTRACTOR agrees to provide at least ten
(10) days notice to the City Manager prior to submittal of any plans, or drawings for review by the
Building Department.
6.5 Liability for use of Work for Intended Purpose.
As an inducement for CITY to enter into this Agreement, CONTRACTOR represents
that it has expertise in professional design services and the construction of public construction projects
by qualified and licensed general construction contractors. The CONTRACTOR'S expertise includes
estimating the total costs associated with the final completion of an entire design -build job. Such
costs associated with the estimation and calculation, include, but are not limited to, consideration of
material, equipment and labor and the escalation of the costs of each in association with the realistic
estimated duration of the project, the time of year, the weather patterns associated with the location
of the project, the labor market for the design and construction associated with the location of the
project, the type of facility, and consideration of the time associated with the design and perntting
(including all associated delays that accompany a review through a municipal building department)
of a complete set of plans and specifications. In reliance upon the above referenced representations,
the CITY hired the CONTRACTOR to provide professional design services and complete
construction services. CONTRACTOR shall be liable for any defective or negligent design, whether
patent or latent, and/or any negligence, strict liability or breach of other legal duty to the extent and
in the manner as hereafter set forth.
6.6 Shop Drawings and Samples.
6.6.1 CONTRACTOR shall prepare and submit any submittals or shop drawings required
for permitting to the authority having jurisdiction, and shall furnish a copy to the City Manager.
6.6.2 CONTRACTOR shall prepare and maintain shop drawings and submittals referenced
in Paragraph 6.6.1 and make them available for review by CITY.
6.6.3 Review of the shop drawings by CITY shall be general and shall not be deemed an
acceptance of the shop drawings and shall not relieve the CONTRACTOR of the responsibility for
the accuracy of such drawings, nor for the proper fitting and construction of the work, nor for the
furnishing of material or work required by the Agreement and not indicated on the drawings.
6.7 Supervision and Superintendence.
CONTRACTOR shall supervise and direct the Work competently and efficiently,
devoting such attention thereto and applying CONTRACTOR'S best skill, attention and expertise.
CONTRACTOR shall be solely responsible for and have control over the means, methods,
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techniques, sequences and procedures of construction. CONTRACTOR shall be responsible to see
that the finished Work complies with the Contract Documents.
6.8 Project Management.
6.8.1 During the progress of on -site construction, CONTRACTOR shall provide full time
(defined to be 8:00 a.m. through 5:00 p.m. Monday through Friday, legal holidays excluded)
competent project supervision and any necessary assistants who shall not be replaced without written
notice to CITY. The superintendent will be CONTRACTOR'S representative at the site.
6.8.2 The day to day management of the Project's subcontractors and vendors contracts,
schedules -and requests for payment shall be by a competent project manager to whom the
superintendent shall report. The project manager will conduct regularly scheduled project meetings
for the purpose of project coordination and communication. The project manager shall be included
in the cost of the Work.
6.9 Labor.
6.9.1 Construction services shall be performed only by qualified construction contractors
licensed to do business in the State ofFlorida and suppliers, selected and paid by the CONTRACTOR.
6.9.2 CONTRACTOR shall provide and pay for competent, suitably qualified personnel to
perform the work as required by the Contract Documents. CONTRACTOR shall not permit
employment of unfit persons or persons not skilled in tasks assigned to them. CONTRACTOR shall
at all times maintain good discipline and order at the site.
6.10 Materials.
6.10.1 Unless otherwise specified herein, CONTRACTOR shall furnish, pay for and assume
full responsibility for all materials, equipment, transportation, machinery, tools, appliances, water,
heat, utilities and all other facilities and services necessary for the furnishing, performance, testing,
start-up and proper completion of the Work.
6.10.2 CONTRACTOR warrants that all materials and equipment shall be new and of good
quality and that the work will be free from defects in material and workmanship whether patent or
latent in nature. All materials and equipment shall be applied, installed, connected, erected, used,
cleaned and conditioned in accordance with the instructions of the applicable Supplier except as
otherwise provided in the Contract Documents.
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6.11 Concerning Subcontractors, Suppliers, and Others.
6.11.1 Prior to the commencement of each phase of the Work hereunder, upon request,
CONTRACTOR shall furnish, in writing to CITY, the names of persons or entities (including those
who are to furnish materials or equipment fabricated to a special design) proposed for the relevant
phase of the work. CITY shall advise CONTRACTOR, in writing, of any proposed person or entity
to which CITY has a reasonable objection. Failure of CITY to reply within seven (7) business days
from the date of receipt of the written notice shall constitute notice of no reasonable objection.
CONTRACTOR shall not contract with a proposed person or entity to whom CITY has made a
reasonable and timely objection. If CITY has reasonable objection to a person or entity proposed by
CONTRACTOR, CONTRACTOR shall propose another to whom CITY has no reasonable
objection. CONTRACTOR shall not change a subcontractor, person or entity previously selected if
CITY makes reasonable objection to such change.
6.11.2 CONTRACTOR shall be fully responsible to CITY and shall indemnify and hold the
CITY harmless for all acts and omissions of the CONTRACTOR'S employees, Subcontractors,
Suppliers and other persons directly or indirectly employed by his Subcontractors, suppliers and of
persons for whose acts any of them may be liable and any other persons and organizations performing
or fin-nishing of the Work under a direct or indirect Contract with CONTRACTOR
6.11.3 Nothing in the Contract Documents shall create any Contractual relationship between
CITY and any such Subcontractor, supplier or other person or organization, nor shall it create any
obligation on the part of CITY to pay or to see to the payment of any moneys due any such
Subcontractor, supplier or other person or organization except as may otherwise be required by laws
and regulations.
6.11.4 All Work performed for CONTRACTOR by a Subcontractor will be pursuant to an
appropriate agreement between CONTRACTOR and the Subcontractor which specifically binds the
Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of
CITY.
6.12 Patent Fees and Royalties.
CONTRACTOR shall pay all license fees and royalties and assume all costs incident
to the use in the performance of the Work or the incorporation in the Work of any invention, design,
process, product or device which is the subject of patent rights or copyrights held by others.
6.13 Permits.
The CONTRACTOR agrees that it shall obtain and pay for all permits, approvals,
licenses, government charges and inspection fees as reasonably inferable from the Contract
Documents that will be required to complete the Project, except permit fees or other fees charged by
the CITY.
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6.14 Laws and Regulations.
CONTRACTOR shall comply with and give all notices required by laws, ordinances,
rules, regulations and lawful orders of public authorities applicable to the performance of the Work.
CITY shall not be responsible for monitoring CONTRACTOR'S compliance with any laws and
regulations. CONTRACTOR shall promptly notify CITY if the Contract Documents are observed
by CONTRACTOR to be at variance therewith.
6.15 Risk of Loss; Title.
The risk of loss, injury or destruction shall be on CONTRACTOR until Final
Completion and acceptance of the Project. Title to the Work shall pass to CITY upon Final
Completion and acceptance of the Work by CITY.
6.16 Taxes.
CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to
be paid by CONTRACTOR in accordance with the laws and regulations of the State of Florida and
its political subdivisions. CONTRACTOR is responsible for reviewing the pertinent state statutes
involving such taxes and complying with all requirements. CITY and CONTRACTOR shall jointly
cooperate so that CITY may order and pay for goods and supplies which will be incorporated into the
Work. The goods and supplies that may be purchased by CITY shall be approved in advance by the
parties, and shall generally be only those that cost more than $10,000 for the quantity or amount being
ordered under the particular purchase order. Even though the CITY may purchase such goods and
materials, the same shall be stored at the site in the same manner as goods and materials purchased
by the CONTRACTOR, and CONTRACTOR shall bear the risk of loss. As compensation to the
CONTRACTOR for accounting services respecting the sales tax savings program, an amount equal
to one -sixth of the tax savings shall be paid to the CONTRACTOR. CITY hereby agrees to promptly
purchase any materials requested by CONTRACTORS pursuant to this Section. The CITY and
CONTRACTOR shall develop a list of items or materials that can be purchased under section 6.16.
6.17 Use of Premises.
6.17.1 CONTRACTOR shall confine equipment, the storage of materials and equipment and
the operations of workers to the Project site and areas identified in and permitted by the Contract
Documents and shall not unreasonably encumber the premises with equipment or other materials.
CONTRACTOR shall assume full responsibility for any damage to any such land or area, or to the
owner or occupant thereof or of any land or areas contiguous thereto, resulting from the performance
of the Work. Should any claim be made against CITY by any such owner or occupant because of the
performance of the Work, CONTRACTOR shall promptly attempt to settle with such other party by
agreement or otherwise resolve the claim. The general indemnification provided elsewhere in this
Contract specifically applies to claims arising out of CONTRACTOR'S use of the premises.
6.17.2 During the progress of the Work, CONTRACTOR shall at all times keep the premises
free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the
completion of the Work CONTRACTOR shall remove all waste materials, rubbish and debris from
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and about the premises as well as all tools, appliances, equipment and machinery, and surplus
materials, and shall leave the site clean and ready for occupancy by CITY. CONTRACTOR shall
restore to original condition all property not designated for alteration by the Contract Documents
including the area south of the work site where construction is currently occurring under a different
Contract by others as further shown in the final design by CONTRACTOR or as otherwise approved
in writing by the City.
6.17.3 CONTRACTOR shall not load nor permit any part of any structure to be loaded in
any manner that will endanger the structure, nor shall CONTRACTOR subject any part of the Work
or adjacent property to stresses or pressures that will endanger it.
6.18 Access to Work.
CONTRACTOR shall provide CITY, CITY'S consultants, representatives and
personnel, independent testing laboratories and governmental agencies with jurisdictional interests
with access to the work at reasonable times for their observation, inspection and testing.
CONTRACTOR shall provide them proper and safe conditions for such access; and shall advise them
of CONTRACTOR'S site safety procedures and programs so that they may comply therewith.
6.19 Safety and Protection.
6.19.1 CONTRACTOR shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the Work to prevent damage, injury or loss to all
employees on the work site and other persons and organizations who may be affected thereby; all the
Work and materials and equipment to be incorporated therein, whether in storage on or off the site;
and other property at the site or adjacent thereto.
6.19.2 CONTRACTOR shall comply with all applicable laws and regulations of any public
body having jurisdiction for the safety of persons or property or to protect them from damage, injury
or loss.
6.20 Indemnification.
6.20.1 GENERAL INDEMNIFICATION: The parties agree that one percent (1 %) of the
total compensation paid to CONTRACTOR for the Work under this Agreement shall constitute
specific consideration to CONTRACTOR for the indemnification to be provided under this
Agreement. CONTRACTOR shall indemnify, defend, save and hold harmless the CITY and the
CITY's elected officials, public employees, consultants and separate contractors, any of their
subcontractors, sub - subcontractors, agents and employees from and against any and all claims,
damages, losses and expenses, including but not limited to attorneys' fees, arising out of or related to
and/or resulting from performance of the Work. These indemnification obligations shall include
claims, damages, losses or expenses (1) that are attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of tangible property (other than the Work itself) including loss of
use resulting therefrom, and/or (2) to the extent such claims, damages, losses or expenses are caused
in whole or in part by negligent acts or omissions of the CONTRACTOR, its employees, agents, and
representatives, including those of CONTRACTOR's sub - contractor(s), and/or anyone directly or
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indirectly employed by CONTRACTOR or anyone for whose acts CONTRACTOR may be liable,
regardless of whether or not they are caused in part by a party indemnified hereunder. Such obligation
shall not be construed to negate, abridge or otherwise reduce other rights or obligations of indemnity
which would otherwise exist as to a party or person described in this Article.
6.20.2 In claims against the CITY or its consultants and its contractors, their subcontractors,
agents or employees by an employee of the CONTRACTOR, its contractors, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable, the indemnification
obligation under this Article 6.20 shall not be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the CONTRACTOR or a subcontractor under workers' or
workmen's compensation acts, disability benefits acts or other employee benefit acts.
6.21 Patent and Copyright Indemnification.
CONTRACTOR agrees to indemnify, defend, save and hold harmless the CITY, its
officers, agents and employees, from all damages, liabilities, losses, claims, fines and fees, and from
any and all suits and actions of every name and description that may be brought against CITY, its
officers, agents and employees, on account of any claims, fees, royalties, or costs for any invention
or patent and/or for the infringement of any and all copyrights or patent rights claimed by any person,
firm, or corporation. CONTRACTOR shall pay all claims, losses, liens, settlements or judgments of
any nature whatsoever in connection with the foregoing indemnifications including, but not limited
to, reasonable attorney's fees and costs. CITY reserves the right to select its own legal counsel to
conduct any defense in any such proceeding and all costs and fees associated therewith including any
costs or fees of an appeal shall be the responsibility of CONTRACTOR under the indemnification
agreement. Nothing contained herein is intended nor shall it be construed to waive CITY'S rights and
immunities under the common law or Florida Statute 768.28 as amended from time to time. This
obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation
of indemnity which would otherwise exist as to any party described in this Paragraph and its subparts.
6.22 Survival of Obli atg ions.
All representations, indemnifications, warranties and guarantees made in, required by,
or given in accordance with this Agreement, as well as all continuing obligations indicated in the
Contract Documents, shall survive final payment, completion and acceptance of the work and
termination or completion of this Agreement.
6.23 Correction or Removal of Defective Work.
If required by CITY, CONTRACTOR shall promptly, as directed, either correct all
defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected
by CITY, remove it from the site and replace it with non - defective Work. CONTRACTOR shall bear
all direct and indirect costs of such correction or removal (including but not limited to fees and charges
of engineers, architects and other professionals) made necessary thereby.
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ARTICLE 7 - CITY'S RESPONSIBILITIES
7.1 CITY shall furnish data required of CITY under the Contract Documents promptly.
The CONTRACTOR understands and agrees that any information provided to it by the CITY as to
any aspect of the Project is not guaranteed but contractor shall have the right to reasonably rely on
any data provided by the City and the City shall not knowingly provide false or inaccurate data.
7.2 Contractor shall secure all necessary assessments, charges, approvals and permits
required for construction, use, or occupancy of permanent structures or permanent changes in existing
facilities.
7.3 If the Work is defective, or CONTRACTOR fails to supply sufficient skilled workers
or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the
completed Work will conform to the Contract Documents, CITY may order CONTRACTOR to stop
the Work, or any portion thereof, until the cause for such order has been eliminated; however, this
right of CITY to stop the Work shall not give rise to any duty on the part of CITY to exercise this
right for the benefit of CONTRACTOR or any other party.
ARTICLE 8 — CITY MANAGER
8.1 City Manager will be CITY'S contact person during the construction period and until
final payment is due to CONTRACTOR.
8.2 Visits to Site.
City Manager may, at the City Manager's sole discretion, make visits to the site to
observe the progress and quality of the executed work.
8.3 Authorized Variations in Work.
City Manager may authorize minor variations in the Work from the technical
requirements of the Contract Documents which are mutually agreed to and do not involve an
adjustment in the Guaranteed Maximum Price or the Contract Time and are consistent with the overall
intent of the Contract Documents. These may be accomplished by a Field Order and will be binding
on CITY and on CONTRACTOR who shall perform the work involved promptly.
8.4 Rejecting Defective Work.
If City Manager becomes aware of any fault or default in the Work, he may give
written notice thereof to CONTRACTOR. The failure to provide notice shall not waive the warranty
of the CONTRACTOR that the work is to be free of defect whether latent or patent.
ARTICLE 9 - BUILDING DEPARTMENT'S RESPONSIBILITIES
It is understood and agreed by the CONTRACTOR that the Building Department and its
inspectors are professionals who are dedicated to providing efficient and courteous service to all
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residents, professionals, contractors and the public at large through plans processing, inspections
and building maintenance, which ensures the protection of the citizens and enhances the quality of
life within the CITY. For the purposes of this Project the Building Department is not a surrogate of
the CITY. All decisions by the Building Department as to whether some aspect of the Project is or is
not in compliance with the Florida Building Code, Florida Fire Prevention Code and/or any other
applicable codes, regulations, laws and ordinances are independent of and not deemed to be an act or
decision by the CITY. The CONTRACTOR agrees that it shall be the responsibility of the
CONTRACTOR to ensure compliance with all applicable codes, regulations, law and ordinances. As
noted in Article 3 of this Agreement the CONTRACTOR warrants and accepts that any and all work
necessitated by inspections which is not prescribed in the Plans or Specifications, but necessitated to
bring the project into conformity with the Contract Documents and all applicable laws, codes,
regulations, procedures and/or considered inside the contemplation of the Contract Documents shall
be deemed the responsibility of the CONTRACTOR and included in the Guaranteed Maximum Price.
ARTICLE 10 - BONDS AND INSURANCE
10.1 Payment and Performance Bonds.
10.1.1 Within fifteen (15) calendar days after Notice of Award and in any event prior to
commencing work, the CONTRACTOR shall execute and furnish to CITY a performance bond and
a payment bond in a form acceptable to the CITY, each written by a corporate surety, having a resident
agent in the State of Florida and having been in business with a record of successful continuous
operation for at least five (5) years. The surety shall hold a current certificate of authority from the
Secretary of Treasury of the United States as an acceptable surety on federal bonds in accordance
with United States Department of Treasury Circular No. 570. If the amount of the Bond exceeds the
underwriting limitation set forth in the circular, in order to qualify, the net retention of the surety
company shall not exceed the underwriting limitation in the circular and the excess risks must be
protected by coinsurance, reinsurance, or other methods, in accordance with Treasury Circular 297,
revised September 1, 1978 (31 DFR, Section 223. 10, Section 223.11). Further, the surety company
shall provide CITY with evidence satisfactory to CITY, that such excess risk has been protected in
an acceptable manner. The surety company shall have at least the following minimum qualification
in accordance with the latest edition of A.M. Best's Insurance Guide, published by Alfred M. Best
Company, Inc., Ambest Road, Oldwick, New Jersey 08858: A to A +.
10. 1.2 Two (2) separate bonds are required and both must be approved by the CITY. The
penal sum stated in each bond shall be the amount equal to the total amount payable under the terms
of the contract. The performance bond shall be conditioned that the CONTRACTOR perform the
contract in the time and manner prescribed in the contract. The payment bond shall be conditioned
that the CONTRACTOR promptly make payments to all persons who supply the CONTRACTOR
with labor, materials and supplies used directly or indirectly by the CONTRACTOR in the
prosecution of the work provided for in the Contract and shall provide that the surety shall pay the
same in the amount not exceeding the sum provided in such bonds, together with interest at the
maximum rate allowed by law; and that they shall indemnify and save harmless the CITY to the extent
of any and all payments in connection with the carrying out of said Contract which the CITY may be
required to make under the law.
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10.1.3 Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, it shall be the
duty of the CONTRACTOR to record the aforesaid payment and performance bonds in the public
records of Miami -Dade County, with the CONTRACTOR to pay all recording costs.
10.2 Bonds, Reduction After Final Payment. Such bonds shall continue in effect for
one (1) year after beneficial occupancy which is measured by the project having passed all final
inspections by the City's Building Department and other jurisdictional or permitting agencies and
entities except as otherwise provided by law or regulation or by the Contract Documents with the
final sum of said bonds reduced after final payment to an amount equal to fifty percent (50 %) of the
Guaranteed Maximum Price, or an additional bond shall be conditioned that CONTRACTOR shall
correct any defective or faulty Work or material which appears within one (1) year after final
completion of the Contract, upon notification by the CITY. Notwithstanding the foregoing, after final
payment, the CONTRACTOR may request reduction in the bond to 10% of all monies previously
earned and all monies earned thereafter.
10.3 Duty to Substitute Surety.
If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or
becomes insolvent or its right to do business is terminated in the State of Florida or it ceases to meet
the requirements of other applicable laws or regulations, CONTRACTOR shall within seven (7) days
thereafter substitute another bond and surety, both of which must be acceptable to CITY.
10.4 Insurance.
10.4.1 UPON EXECUTION OF THE CONTRACT, THE CONTRACTOR SHALL
SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING THE REQUIRED
COVERAGES AND SPECIFICALLY PROVIDING THAT THE CITY OF SUNNY ISLES
BEACH IS AN ADDITIONAL NAMED INSURED RESPECT TO THE REQUIRED
COVERAGE AND THE OPERATIONS OF THE CONTRACTOR UNDER THE
CONTRACT. The certificates of insurance shall not only name the types of policies provided, but
shall also specifically refer to this Agreement and shall state that such insurance is as required by this
Article 10 and its subparts of this Agreement. CONTRACTOR shall not commence work under this
Agreement until after CONTRACTOR has obtained all of the minimum insurance herein described
and the policies of such insurance detailing the provisions of coverage have been received and
approved by CITY. CONTRACTOR shall not permit any subcontractor to begin work until after
similar minimum insurance to cover subcontractor has been obtained and approved. In the event the
insurance certificate provided indicates that the insurance shall terminate and lapse during the term of
this Agreement, then in that event, CONTRACTOR shall furnish, at least thirty (30) calendar days
prior to expiration of the date of such insurance, a renewed certificate of insurance as proof that equal
and like coverage and extension thereunder is in effect. CONTRACTOR shall not continue to
perform the services required by this Agreement unless all required insurance remains in full force
and effect.
10.4.2 Insurance Companies selected must be acceptable the CITY. All of the policies of
insurance so required to be purchased and maintained shall contain a provision or endorsement that
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the coverage afforded shall not be canceled, materially changed or renewal refused until at least thirty
(30) calendar days written notice has been given to CITY by certified mail.
10.4.3 The CONTRACTOR shall procure and maintain at its own expense and keep in effect
during the full term of the Contract a policy or policies of insurance which must include the following
coverage and minimum limits of liability:
10.4.3.1 Professional Liability (Errors and Omissions) Insurance for
architectural and engineering services and the services of any other professional used in the
performance of the work of this Agreement in the amount of $1,000,000.00 with a deductible (if
applicable) not to exceed $5,000.00 per claim. The certificate of insurance for professional liability
shall reference any applicable deductible and the work of this Agreement.
10.4.3.2 Worker's Compensation Insurance for statutory obligations imposed
by Worker's Compensation or Occupational Disease Laws, including, where applicable, the United
States Longshoremen's and Harbor Worker's Act, the Federal Employers' Liability Act and the
Homes Act. Employer's Liability Insurance shall be provided with a minimum of One Hundred
Thousand and xx/100 dollars ($100,000.00) per accident. CONTRACTOR agrees to be responsible
for the employment, conduct and control of its employees and for any injury sustained by such
employees in the course of their employment.
10.4.3.3 Comprehensive Automobile Liability Insurance for all owned, non -
owned and hired automobiles and other vehicles used by the CONTRACTOR in the performance of
the work with the following minimum limits of liability:
$1,000,000.00 Combined Single Limit, Bodily Injury and Property
Damage Liability, per occurrence
10.4.3.4 Comprehensive General Liability Insurance (occurrence form) with
the following minimum limits of liability:
$1,000,000.00 Combined Single Limit, Bodily Injury and Property
Damage Liability, per occurrence
Coverage must be offered in a form no more restrictive than the latest edition
of the Comprehensive General Liability Policy without restrictive endorsements, as filed by the
Insurance Services Office and shall specifically include the following with minimum limits not less
than those required for Bodily Injury Liability and Property Damage Liability:
10.4.3.4.1 Premises and Operations;
10.4.3.4.2 Independent Contractors;
10.4.3.4.3 Product and Completed Operations Liability;
10.4.3.4.4 Broad Form Property Damage;
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10.4.3.4.5 Broad Form Contractual Coverage applicable to the
Contract and specifically confirming the
indemnification and hold harmless agreement in this
Contract; and
10.4.3.4.6 Personal Injury coverage with employment
contractual exclusions removed and deleted.
10.4.3.4.7 Explosion, collapse, underground coverage (XC -U)
10.4.3.5 Builder's Risk Insurance in an amount not less than THE
REPLACEMENT COST for the construction of the work. Coverage shall be "All Risk" coverage
for one hundred percent (100 %) of the completed value with a deductible of not more than five
thousand and 00 /100 dollars ($5,000.00) per claim.
10.4.4 CONTRACTOR shall maintain the Products/Completed Operations Liability
Insurance for a period of at least three (3) years after final payment for the Work and furnish CITY
with evidence of continuation of such insurance at final payment.
10.4.5 The required insurance coverage shall be issued by an insurance company authorized
and licensed to do business in the State of Florida, with the following minimum rating of B+ to A +,
in accordance with the latest edition of A.M. Best's Insurance Guide.
10.4.6 All required insurance policies shall preclude any underwriter's rights of recovery or
subrogation against CITY with the express intention of the parties being that the required insurance
coverage protects both parties as the primary coverage for any and all losses covered by the above
described insurance.
10.4.7 The CONTRACTOR shall ensure that any company issuing insurance to cover the
requirements contained in this Contract agrees that they shall have no recourse against CITY for
payment or assessments in any form on any policy of insurance.
10.4.8 The clauses "Other Insurance Provisions" and "Insurers Duties in the Event of an
Occurrence, Claim or Suit" as it appears in any policy of insurance in which CITY is named as an
additional named insured shall not apply to CITY. CITY shall provide written notice of occurrence
within fifteen (15) working days of CITY's actual notice of such an event.
10.4.9 The CONTRACTOR shall not commence performance of its obligations under this
Agreement until after it has obtained all of the minimum insurance herein described and the same has
been approved.
10.4.10 All required insurance policies shall preclude any underwriter's rights of recovery or
subrogation against CITY with the express intention of the parties being that the required insurance
coverages protect both parties as the primary coverages for any and all losses covered by the above
described insurance.
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10.4.11 The CONTRACTOR agrees to perform the work under the Contract as an
independent CONTRACTOR, and not as a sub - contractor, agent or employee of CITY.
10.4.12 CONTRACTOR shall require each of its subcontractors of any tier to maintain the
insurance required herein for each category, and CONTRACTOR shall provide verification thereof
to CITY upon request of CITY. Notwithstanding the foregoing, the CONTRACTOR may provide
insurance for subcontractors.
10.4.13 Violation of the terms of this Article and its subparts shall constitute a breach of the
Contract and CITY, at its sole discretion, may cancel the Contract and all rights, title and interest of
the CONTRACTOR shall thereupon cease and terminate. Notwithstanding the foregoing, the
CONTRACTOR shall be given thirty (30) days to cure any breach.
10.5 CITY'S Liability and Insurance.
CITY shall not be responsible for purchasing and maintaining any insurance to protect
the interests of CONTRACTOR, subcontractors or others on the Work. CITY specifically reserves
all statutory and common law rights and immunities and nothing herein is intended to limit or waive
same including, but not limited to, the procedural and substantive provisions of Section 768.28,
Florida Statutes and Section 95.11, Florida Statutes.
ARTICLE 11 - WARRANTIES; TESTS AND INSPECTIONS; CORRECTION OF
DEFECTIVE WORK
11.1 Warranty of Title.
The CONTRACTOR warrants to the CITY that it possesses good, clear and
marketable title to all equipment and materials provided hereunder and there are no pending liens,
claims or encumbrances whatsoever against said equipment and materials.
11.2 Warrantyof Specifications.
The CONTRACTOR warrants that all equipment, materials and workmanship
furnished, whether furnished by the CONTRACTOR or its sub - contractors and suppliers, will comply
with the specifications, drawings and other descriptions supplied or adopted and that all services will
be performed in a workmanlike manner.
11.3 Warranty of Merchantability.
CONTRACTOR warrants that any and all equipment to be supplied pursuant to the
Agreement is new, merchantable, free from defects, whether patent or latent in material or
workmanship and fit for the ordinary purposes for which it is intended.
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11.4 Correction Period.
CONTRACTOR warrants all material and workmanship for a minimum of one (1)
year from the date that CITY accepts occupancy of the parking garage and park. If within one (1)
year after the date of Final Completion or such longer period of time as may be prescribed by laws or
regulations or by the terms of any applicable special guarantee required by the Contract Documents,
any work is found to be defective, whether observed before or after acceptance by CITY,
CONTRACTOR shall promptly, without cost to CITY and in accordance with CITY'S written
instructions, either correct such defective work, or, if it has been rejected by CITY, remove it from
the site and replace it with work that is not defective and satisfactorily correct and remove and replace
any damage to other work or the work of others resulting therefrom. If CONTRACTOR does not
promptly comply with the terms of such instructions, or in an emergency where delay would cause
serious risk of loss or damage, CITY may have the defective workmanship corrected or the rejected
Work removed and replaced, and all direct, indirect and consequential costs of such removal and
replacement (including but not limited to fees and charges of engineers, architects, attorneys and other
professionals) will be paid by CONTRACTOR.
11.4.1 Where defective Work (and damage to other work resulting therefrom) has been
corrected, removed or replaced under this paragraph, the correction period hereunder with respect to
such Work will be extended for an additional period of one (1) year after such correction or removal
and replacement has been satisfactorily completed.
11.4.2 Nothing contained in this Article shall be construed to establish a period of limitation
with respect to other obligations which CONTRACTOR might have under the Contract Documents.
Establishment of the time period of one (1) year as described in Paragraph 11.4.1 relates only to the
specific obligation of the CONTRACTOR to correct the work, and has no relationship to the time
within which the obligation to comply with the Contract Documents may be sought to be enforced,
nor to the time within which proceedings may be commenced to establish CONTRACTOR'S liability
with respect to the CONTRACTOR'S obligation other than specifically to correct the work.
11.4.3 CONTRACTOR warrants to the CITY that it will comply with all applicable federal,
state and local laws, regulations and orders in carrying out its obligations under the Contract.
11.4.4 CONTRACTOR warrants to the CITY that it is not insolvent, it is not in bankruptcy
proceedings or receivership, nor is it engaged in or threatened with any litigation, arbitration or other
legal or administrative proceedings or investigations of any kind which would have an adverse effect
on its ability to perform its obligations under the Contract.
11.4.5 CONTRACTOR warrants to the CITY that the consummation of the work provided
for in the Contract Documents will not result in the breach of any term or provision of, or constitute
a default under any indenture, mortgage, contract, or agreement to which the CONTRACTOR is a
party.
11.4.6 CONTRACTOR warrants that there has been no violation or copyrights of patent
rights either in the United States of America or in foreign countries in connection with the work of
the Contract.
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11.4.7 No warranty, either express or implied, may be modified, excluded or disclaimed in
any way by CONTRACTOR. All warranties shall remain in full force and effect, notwithstanding
acceptance and payment by CITY.
11.5 Tests and Inspections.
11.5.1 CONTRACTOR shall give the City Manager and Building Department timely notice
of readiness of the work for all required inspections, tests or approvals.. CONTRACTOR shall
assume full responsibility, pay all costs, except for permit fees or other fees imposed by the CITY, in
connection therewith and furnish the Building Department, with courtesy copies to the CITY, the
required certificates of inspection, testing or approval for all materials, equipment or the Work or any
part thereof unless otherwise specified herein.
11.5.2 Inspectors do have the full authority to order the CONTRACTOR to comply with all
applicable codes. The CONTRACTOR shall be responsible for complying with all inspections and
all costs associated therewith shall be deemed the responsibility of the CONTRACTOR and included
in the GMP.
11.5.3 The payment of any compensation whatever may be its character or form, or the
giving of any gratuity or the granting of any favor by the CONTRACTOR to any inspectors, directly
or indirectly is strictly prohibited and any such action on the part of the CONTRACTOR will
constitute a breach of this Agreement.
ARTICLE 12 - CONTRACT TIME
12.1 Change of Contract Time.
ALL TIME LIMITS STATED IN THE CONTRACT DOCUMENTS ARE OF
THE ESSENCE OF THE AGREEMENT. EXCEPT AS PROVIDED HEREIN, 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.
CONTRACTOR shall not be entitled to an increase in the construction cost 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 be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or
unavoidable. If CONTRACTOR is delayed at any time in the progress of the Work by labor disputes,
fire, unusual delay in deliveries, adverse weather conditions not reasonably anticipated (including
strong storms, tropical storms and/or hurricanes which are common between June 1 and November
30), unavoidable casualties or other causes beyond the CONTRACTOR's control, or by other causes
which the CITY and CONTRACTOR agree may justify delay, then the Contract Time shall be
reasonably extended by Change Order. Otherwise, CONTRACTOR 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 that extent specifically provided above. No extension of time shall be granted
for delays resulting from normal weather conditions prevailing in the area which necessarily excludes
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strong storms, tropical storms and/or hurricanes which are common between June 1 and November
30.
12.2 No Recovery for Early Completion. If the CONTRACTOR submits a schedule or
expresses an intention to complete the Work earlier than any required milestone or completion date,
the CITY shall not be liable to the CONTRACTOR for any costs incurred because of delay or
hindrance should the CONTRACTOR be unable to complete the Work before such milestone or
completion date. The duties, obligations and warranties of the CITY to the CONTRACTOR shall be
consistent with and applicable only to the completion of the Work and completion dates set forth in
this Agreement.
12.3 Liquidated Damages
12.3.1 The CONTRACTOR understands that if the Work is not substantially complete
within two hundred seventy (270) days from the date of the Notice to Proceed, or if CONTRACTOR
does not achieve Final Completion within thirty (30) days thereafter, then the CITY will suffer
damages which are difficult to determine and accurately specify. As such, Liquidated Damages are
hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely
ascertaining the amount of damages that will be sustained by CITY as a consequence of such delay
and both parties desiring to obviate any question of dispute concerning the amount of said damages
and the cost and effect of the failure of CONTRACTOR to complete the Work on time.
12.3.2 Upon failure of CONTRACTOR to complete the Work within the time specified for
the substantial and final completion of the Work (plus approved extensions if any), CONTRACTOR
shall pay to CITY the sum of One Thousand Dollars ($1000.00) for each and every calendar day
beyond the time specified in this Agreement for substantial and final completion, as fixed and agreed
liquidated damages and not as a penalty. The Liquidated Damages shall apply regardless of whether
or not a single Contract is involved and shall apply separately to each portion of the Work for which
a time of completion is given. CITY shall have the right to deduct from and retain out of moneys
which may be then due or which may become due and payable to CONTRACTOR, the amount of
such liquidated damages and if the amount retained by CITY is insufficient to pay in full such
liquidated damages, the CONTRACTOR shall pay in full such liquidated damages.
12.4 Delay.
Any delay caused by the CITY shall extend the date for substantial completion date by the
number of days that resulted from the delay.
ARTICLE 13 - CHANGES IN THE WORK, RESTRICTIONS AND LIMITATIONS
13.1 After the Plans and Specifications have been approved for construction by the
Building Department, the CITY, without invalidating this Agreement, may order additions, deletions
or revisions to the Work. Such additions, deletions or revisions shall be authorized by a Written
Amendment or Change Order.
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13.2 All Change Orders which, individually or when cumulatively increase the cost of the
work, or which extend the time for completion, must be formally authorized and approved by the City
Commission prior to their issuance and before work may begin. No claim against CITY for Extra
Work in furtherance of such Change Order shall be allowed unless prior approval has been obtained.
The CONTRACTOR understands and agrees that any work, however characterized, performed by
the CONTRACTOR without the CITY'S prior written approval shall not be compensable, without
exception. The CONTRACTOR intentionally, knowingly and voluntarily waives any claim for
unjust enrichment or quantum meruit with respect to any work performed in the absence of a written
Change Order. Any waiver of this provision must be in writing and signed by both Parties and in no
event shall such written waiver extend to any subsequent event.
13.3 The Guaranteed Maximum Price and Contract Time shall be changed only by Change
Order or Written Amendment approved by the City Commission.
13.4 Proposed Change Orders shall be prepared by the CONTRACTOR.
13.5 The CONTRACTOR shall not be entitled to an increase in the Guaranteed Maximum
Price or an extension of the Contract Time with respect to any work performed that is not required by
the Contract Documents as amended, modified and supplemented.
13.6 If notice of any change affecting the general scope of the work or the provisions of
the Contract Documents is required by the provisions of any bond to be given to a surety, the giving
of any such notice will be CONTRACTOR'S responsibility and the amount of each applicable bond
shall be adjusted accordingly.
13.7 Any claim for adjustment in the Guaranteed Maximum Price or time shall be based
upon written notice delivered by the party making the claim to the other Parties not later than ten (10)
days after the occurrence or event giving rise to the claims and stating the general nature of the claim.
No claim for an adjustment in the Guaranteed Maximum Price or an extension of the contract time
will be valid if not submitted in accordance with this Paragraph.
13.8 CONTRACTOR understands and agrees that any information provided to it by the
CITY, at any time, as to any aspect of the Project is not guaranteed. The CONTRACTOR is solely
liable for all site conditions, including those that are subsurface or otherwise concealed physical
conditions which may differ, materially or not, from those the CONTRACTOR encountered during
its initial site inspection. Upon identifying subsurface physical conditions that do differ materially
from those identified during the CONTRACTOR'S initial inspection, the CONTRACTOR shall
notify CITY immediately. The CONTRACTOR shall promptly investigate such conditions and, if
the CITY agrees that the concealed physical conditions could not have been detected through a
reasonable inspection, then the CONTRACTOR shall be entitled to an extension of time for the
completion of the Project as its sole remedy. The CONTRACTOR accepts that any costs or expense
associated with any differing site conditions encountered shall be the responsibility of the
CONTRACTOR and included in the Guaranteed Maximum Price.
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ARTICLE 14 — NO CHANGES IN GUARANTEED MAXIMUM PRICE
14.1 The Guaranteed Maximum Price constitutes the total compensation (subject to
authorized adjustments) payable to CONTRACTOR for performing the Work. All duties,
responsibilities and obligations assigned to or undertaken by CONTRACTOR shall be at its expense
without change in the Guaranteed Maximum Price.
14.2 The Guaranteed Maximum Price may only be changed by a Change Order or by a
Written Amendment. Any claim for an increase or decrease in the Guaranteed Maximum Price shall
be based on written notice delivered to the other Party (but in no event later than ten (10) days) after
the occurrence of the event giving rise to the amount of the claim, along with supporting data which
shall be delivered within twenty (20) days after the occurrence of the event giving rise to the amount
of the claim and shall be accompanied by claimant's written statement that the amount claimed covers
all known amounts (direct, indirect and consequential) to which the claimant is entitled as a result of
the occurrence of said event. No resolution of a claim for adjustment in the Guaranteed Maximum
Price shall be effective until approved by the City Commission. No claim for an adjustment in the
Guaranteed Maximum Price will be valid if not submitted in accordance with this Paragraph. The
CONTRACTOR understands and agrees that the CITY shall have the right and discretion to deny the
approval of any Change Order, for any reason, despite the CONTRACTOR'S compliance with this
Paragraph and/or the existence of an executed written Work Change Directive. If the CITY decides
not to approve a Change Order for the work, then the CONTRACTOR will not be entitled to receive
compensation under any theory of recovery whether at law or in equity.
14.3 The value of any Work covered by a Change Order or of any claim for an increase or
decrease in the Guaranteed Maximum Price shall be determined in one of the following ways:
14.3.1 Where the Work involved is covered by unit prices contained in the Contract
Documents, by application of unit prices to the quantities of the items involved.
14.3.2 By mutual acceptance of a lump sum (which may include an allowance for overhead
and profit including any subcontractor fees). If the negotiated lump sum change order exceeds the
percentages set forth for "Cost of Work," it must be accompanied by a detailed explanation justifying
the increase.
14.4 Cost Breakdown Required.
Whenever the cost of any Work is to be determined, CONTRACTOR will submit in
form acceptable to City Manager an itemized cost breakdown together with supporting data.
Whenever a change in the work is to be based upon mutual acceptance of a lump sum, whether the
amount is an addition, credit, or no- change -in -cost, the CONTRACTOR shall submit an estimate
substantiated by a complete itemized breakdown. The breakdown shall list quantities and unit prices
for materials, labor, equipment and other items of cost.
ARTICLE 15 - PAYMENTS TO CONTRACTOR AND COMPLETION OF WORK
15.1 Progress Payments during construction phase.
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15.1.1 CONTRACTOR may requisition payments for Work completed during the project at
intervals of not more than once a month. The CONTRACTOR shall submit a proposed schedule of
values in a form acceptable to the CITY and which will be required to be approved by the CITY
before any design Work on this Project can commence. The proposed schedule of values shall be
broken into two phases for design and for construction.
Once approved all applications for payment shall be submitted in a form that shows a
complete breakdown of the project components, the quantities completed and the amount due,
together with a certification by the CONTRACTOR that the CONTRACTOR has disbursed to all
subcontractors and suppliers their pro -rata shares of the payment out of previous progress payments
received by the CONTRACTOR for all work completed and materials furnished in the previous
period or properly executed releases of liens by all subcontractors, suppliers and materialmen who
were included in the CONTRACTOR'S previous applications for payment, and any other supporting
documentation as may be required by the CITY. Each requisition shall be submitted in triplicate to
the CITY for approval. Invoices will be due and payable within thirty (30) calendar days after the
date on which the invoice is stamped as received by the initiating City department. Payment will be
made only for approved invoices.
15.1.2 Ten percent (10 %) of all monies earned by the CONTRACTOR shall be retained by
the CITY until the Work is completed in accordance with the requirements of the Contract Documents
and accepted by the CITY as provided herein. After fifty percent (50 %) of the Work has been
completed, the CONTRACTOR, may request reduction in the retainage to five percent (5 0/6) of all
monies previously earned and all monies earned thereafter The City shall review the Contractor's
request and approve or reasonably reject the request as required by Florida State Statute.
15.2 Final Inspection.
Upon written notice from CONTRACTOR that the entire Work or an agreed portion
thereof is complete, CITY will make a final inspection and will notify CONTRACTOR in writing of
all particulars in which this inspection reveals that the Work is not in accordance with the Contract
Documents. CONTRACTOR shall immediately take such measures as are necessary to remedy such
deficiencies.
15.3 Final Application for Payment.
After CONTRACTOR has completed all such corrections to the satisfaction of City
Manager and delivered all maintenance and operating instructions, schedules, guarantees, bonds,
certificates of inspection and other documents required by the Contract Documents, and after City
Manager has indicated that the work is acceptable, CONTRACTOR may make application for final
payment. The final application for payment shall be accompanied by (1) complete and legally
effective releases or waivers of all liens arising out of or filed in connection with the work; or (2)
CONTRACTOR'S receipts in full covering all labor, materials and equipment for which a lien could
be filed; or (3) a final affidavit stating that all laborers, materialmen, suppliers and subcontractors who
worked for CONTRACTOR under this Contract have been paid in full or if the fact be otherwise,
identifying the name of each lienor who has not been paid in full and the amount due or to become
due each for labor, services or materials furnished. If any subcontractor or supplier fails to furnish a
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release or receipt in full, CONTRACTOR may furnish a bond satisfactory to CITY to indemnify
CITY against any lien.
CONTRACTOR shall submit to CITY within forty-five days (45) of the date of
issuance of the certificate of occupancy for the applicable portion of the Work the completed set of
"As- Built" drawings relative to the parking garage and park for review and approval. The "As- Built"
drawings shall be prepared, sealed and certified by the appropriate professional licensed by the State
of Florida. Prior to approval, if necessary, the drawings may be returned to CONTRACTOR for
changes or modifications if in the opinion of City Manager they do not represent correct or accurate
"As- built" drawings.
15.4 Final Payment and Acceptance.
15.4.1 If the Work is not acceptable to the CITY, then the CITY shall indicate the reasons
for refusing to make final payment, in which case CONTRACTOR shall make the necessary
corrections or compliance and resubmit the Application for payment. If the CITY is satisfied that the
Work has been completed in accordance with the Contract Documents and the CONTRACTOR'S
other obligations under the Contract Documents have been fulfilled, the CITY will agree to make the
final payment.
15.4.2 If, through no fault of CONTRACTOR, final completion of the Work is significantly
delayed, CITY may consider making payment of the balance due for that portion of the Work fully
completed and accepted. If the remaining balance to be held by CITY for Work not fully completed
or corrected is less than the retainage stipulated in the Agreement, and if bonds have been furnished
as required, the written consent of the surety to the payment of the balance due for that portion of the
Work fully completed and accepted may be submitted by CONTRACTOR for such payment. The
CITY may consider making such payment under the terms and conditions governing final payment,
except that it shall not constitute a waiver of claims.
15.5 Final payment, constituting the entire unpaid balance of the Guaranteed Maximum
Price, shall be paid by the CITY to the CONTRACTOR when the Work has been completed in
accordance with the Contract Documents, and this Agreement fully performed. The making of final
payment shall constitute a waiver of claims by CITY except those arising from:
15.5.1 Liens, claims, security interests or encumbrances arising out of this Agreement and
unsettled.
15.5.2 Faulty or defective work and latent defects discovered after acceptance.
15.5.3 Failure of the work to comply with the requirements of the Contract Documents.
15.5.4 Terms of special warranties required by the Contract Documents.
15.5.5 Any of CONTRACTOR'S continuing obligations under this Agreement.
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The acceptance of final payment by CONTRACTOR or the Subcontractor for
materials and supplies shall constitute a waiver of claims by that payee except those previously made
in writing and identified by payee as unsettled at the time of final application for payment.
15.6 CITY'S Right to Withhold Payment.
The CITY may withhold in whole or in part, final payment or any progress payment
to such extent as may be necessary to protect itself from loss on account of:
15.6.1 Defective work not remedied.
15.6.2 Claims filed or reasonable evidence indicating the probable filing of claims by other
parties against the CONTRACTOR.
15.6.3 Failure of the CONTRACTOR to make payment to Subcontractors or Suppliers for
materials or labor.
15.6.4 Damage to another contractor not remedied.
15.6.5 Liability for liquidated damages has been incurred by the CONTRACTOR.
15.6.6 Reasonable evidence that the work cannot be completed for the unpaid balance of the
contract sum.
15.6.7 Reasonable evidence that the work will not be completed within the Contract time.
15.6.8 Failure to carry out the work in accordance with the Contract Documents.
When the above grounds are removed or resolved or the CONTRACTOR provides a surety
bond or consent of surety satisfactory to the CITY which will protect the CITY in the amount
withheld, payment may be made in whole or in part.
ARTICLE 16 - TERMINATION OF THE CONTRACT
16.1 CITY'S Right to Terminate with Cause.
Upon the occurrence of any one or more of the following events:
16.1.1 If CONTRACTOR commences a voluntary case under any chapter of the Bankruptcy
Code as now or hereafter in effect, or if CONTRACTOR takes any equivalent or similar action by
filing a petition or otherwise under any other federal or state law in effect at such time relating to the
bankruptcy or insolvency.
16.1.2 If a petition is filed against CONTRACTOR under any chapter of the Bankruptcy
Code as now or hereafter in effect at the time of filing, or if a petition is filed seeking any such
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equivalent or similar relief against CONTRACTOR under any other federal or state law in effect at
the time relating to bankruptcy or insolvency.
16.1.3 If CONTRACTOR makes a general assignment for the benefit of creditors.
16.1.4 If a trustee, receiver, custodian or agent of CONTRACTOR is appointed under
applicable law or under Contract, whose appointment or authority to take charge of property of
CONTRACTOR is for the purpose of enforcing a Lien against such property or for the purpose of
general administration of such property for the benefit of CONTRACTOR'S creditors.
16.1.5 If CONTRACTOR admits in writing an inability to pay its debts generally as they
become due.
16.1.6 If CONTRACTOR persistently fails to perform the Work in accordance with the
Contract Documents (including, but not limited to, failure to supply sufficient skilled Workers or
suitable materials or equipment or failure to adhere to the progress schedule as same may be revised
from time to time), provided that CONTRACTOR is provided thirty (30) days to cure any breach.
16.1.7 If CONTRACTOR disregards laws or regulations of any authority with jurisdiction.
16.1.8 If CONTRACTOR otherwise violates in any substantial way any provisions of the
Contract Documents.
CITY may, after giving CONTRACTOR seven (7) days written notice, terminate the services of
CONTRACTOR without any liability, of any kind, accruing to the to the CITY and without prejudice
to any right or remedy the CITY may have, and exclude the CONTRACTOR from the site and take
possession of the Work and of all CONTRACTOR'S tools, appliances, construction equipment and
machinery at the site and use the same to full extent they could be used by CONTRACTOR (without
liability to CONTRACTOR for trespass or conversion), incorporate in the Work all materials and
equipment stored at the site or for which CITY has paid CONTRACTOR but which are stored
elsewhere, and finish the Work as CITY may deem expedient. In such case CONTRACTOR shall
not be entitled to receive any further payment until the Work is finished. Notwithstanding the
foregoing, the CONTRACTOR is provided with thirty (30) days to cure any breach.
16.2 My's Right to Terminate without Cause:
16.2.1 Upon seven (7) days written notice to CONTRACTOR, CITY may, without cause,
without liability of any kind, and without prejudice to any other right or remedy, terminate this
agreement. This provision is different from the right to terminate set out in other parts of this
Agreement. Upon receipt of the notice of termination, CONTRACTOR shall promptly discontinue
all Work at the time and to the extent indicated on the notice of termination, terminate all outstanding
Subcontractors and purchase orders to the extent that they relate to the terminated portion of the
Agreement, and refrain from placing further orders and Subcontracts. CONTRACTOR shall not be
paid on account of loss of anticipated profits or revenue or other economic loss arising out of or
resulting from such termination. In the event of a termination under this provision, the CITY shall
pay to the CONTRACTOR only those direct costs associated with all Work actually completed. The
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CONTRACTOR shall be obligated to support its costs with back -up documentation to the CITY'S
satisfaction. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
THE CITY SHALL NOT BE LIABLE TO THE CONTRACTOR FOR ANY DIRECT, INDIRECT,
SPECIAL AND /OR CONSEQUENTIAL LOSSES OR DAMAGES WHETHER ARISING IN
AGREEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR
ANY OTHER CAUSE OF ACTION AT LAW OR IN EQUITY, INCLUDING BUT NOT
LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING.
16.2.2 Once the Plans and Specifications for this Project receive a permit to
commence construction, the ownership in the Plans and Specifications shall vest with the CITY. In
the event CITY terminates the Agreement and proceeds to design and construct the Project through
its employees, agents or other third parties, CONTRACTOR or its subcontractor(s) shall furnish to
the City electronic files of all design and components thereof in editable format. Future use of the
design by the City shall be fully compliant with F.A.C. Chapter 61G15 -27 "Procedures for the
Adoption of Another's Work ".
16.3 Termination by CONTRACTOR.
If CITY fails to make payment thereon for a period of sixty (60) calendar days from
payment submittal, CONTRACTOR may, upon thirty (30) additional days written notice to CITY,
terminate the Contract and recover from the CITY payment for work executed and for proven losses
with respect to materials, equipment, tools, construction equipment, machinery and labor.
16.4 Non - Binding Mediation.
16.4.1 Non - Binding Mediation. In the event a dispute arises, either Party may request that
the other party attend non - binding mediation. Mutual written consent is required for the non - binding
mediation to take place. To the extent that mediation does occur, the CONTRACTOR is obligated to
continue to perform the Work and the CITY shall continue to satisfy its payment obligations pending
the resolution of the mediation. Before requesting mediation, the parties shall first attempt to resolve
the dispute amicably.
16.4.2 Scope of Dispute Review. Any controversy or claim arising out of or relating to this
Agreement or any breach of it may be subject to review under these non - binding dispute resolution
procedures.
16.4.3 Mediator. The Parties agree that any mediator shall be jointly selected.
16.4.4 Time of Claim. Claims must be brought within the applicable statute of limitations
by notice of a claim to the other party or parties affected thereby. Failure to bring the claim within the
specified time shall constitute a waiver of the party's right to assert the claim.
The notice of claim shall provide reasonably sufficient detail of the nature of the claim and
the basis for it. The mediator shall be selected by the parties within twenty (20) days following the
date that a party requests that the selection process commence. Each mediation hearing shall be held
at a location mutually approved by the parties. Unless the parties otherwise agree in writing,
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mediation may be commenced on or after the thirtieth (30th) calendar day after the mediator is
selected. Each party agrees that it will designate a representative, having authority to bind that party,
who will attend all mediation hearings. Both parties shall endeavor, in good faith, to reach a resolution
of the claim during the mediation. The mediator shall submit a sworn affidavit to both parties
indicating that the mediator has no past or present affiliation with either the CONTRACTOR or the
CITY.
16.4.5 If the parties cannot agree on the production of documents or information (including
rules relating thereto), then the mediator shall make a determination as to the scope and nature of the
exchange.
16.4.6 Proceeding Costs and Fees. All parties participating in the non - binding mediation
shall be responsible for their own costs, expenses and attorney fees necessary to pursue or defend
against claim(s) raised under these provisions; however, the parties shall equally share the costs of
any meeting or hearing place and the fees of the mediator.
16.4.7 Enforceability and Form of Decision. The decision resulting from mediation is not
binding on any party participating in the mediation unless and until the parties agree to it in writing.
In the absence of a written consent accepting the mediator's decision, the decision shall have no force
or effect whatsoever.
16.4.8 Florida LawNenue /Jurisdiction. This Agreement shall be governed by the laws of
the State of Florida, without regard to its conflict of law provisions. The Parties hereto hereby
submit to the exclusive jurisdiction of the state and federal courts located in Miami -Dade County,
Florida for any action or proceeding arising out of or relating to this Agreement and the Parties
hereto hereby agree that all claims in respect of such action or proceeding shall be heard and
determined exclusively in any such state or federal court. The parties expressly waive any rights
either party may have to a trial by jury of any civil litigation related to any cause of action under
this Agreement. Nothing in this Agreement is intended to waive the City's sovereign immunity
defenses, including but not limited to the limitations on damages pursuant to Section 768.28,
Florida Statutes.
16.4.9 Attorneys' Fees. In the event of any dispute arising under or related to this
Agreement, the prevailing party shall be entitled to recover all reasonable attorney fees, costs and
expenses incurred by it in connection with that dispute and/or the enforcement of this Agreement,
including all such reasonable attorney fees, costs and expenses at all judicial levels, including
appeal until such dispute is resolved with finality.
ARTICLE 17 - NOTICE, COMPUTATION OF TIME ARTICLE
17.1 Giving _Notice.
All notices required by any of the Contract Documents shall be in writing and shall be
deemed delivered upon mailing by certified mail, return receipt requested to the following:
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CONTRACTOR:
Rene L. Castillo Sr., President
RIC -MAN INTERNATIONAL, INC.
220 71s` Street, Suite 206
Miami Beach, FL 33141
COPY TO:
CITY:
Christopher J. Russo, City Manager
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
COPY TO:
Hans Ottinot, City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
17.2 Computation of Time.
When any period of time is referred to in the Contract Documents by days, it will be
computed to exclude the first and include the last day of such period. If the last day of any such period
falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction,
such day will be omitted from the computation. A calendar day of twenty four (24) hours measured
from midnight to the next midnight shall constitute a day.
17.3 Force Majeure.
Should any party fail to perform its obligations under this Agreement due to a
condition of force majeure, as that term is interpreted under Florida Law, and specifically including
but not limited to Acts of God (including hurricanes, tropical storms and/or very strong storms which
are anticipated by the Parties and taken into consideration when the CONTRACTOR agreed to the
substantial completion date) fire, flood, earthquakes, then the time for performance of said obligation
hereunder will be extended by a period reasonable commensurate with the cause of such failure to
perform or cure. If the Contractor is delayed in performing any obligation under this agreement due
to a force majeure condition, the CONTRACTOR shall request a time extension from the CITY
within ten (10) working days of said force majeure occurrence. Any time extension shall be subject
to mutual agreement and shall not be cause for any claim by the CONTRACTOR for extra
compensation. Events of force majeure do not include acts or omissions of sub - contractors.
ARTICLE 18 — MISCELLANEOUS
18.1 The duties and obligations imposed by the Contract Documents and the rights and
remedies available hereunder to the parties hereto, and, in particular but without limitation, the
35
warranties, guaranties and obligations imposed upon CONTRACTOR and all of the rights and
remedies available to CITY thereunder, are in addition to, and are not to be construed in any way as
a limitation of, any rights and remedies available to any or all of them which are otherwise imposed
or available to any or all of them which are otherwise imposed or available by laws or regulations, by
special warranty or guarantee or by other provisions of the Contract Documents, and the provisions
of this Paragraph will be as effective as if repeated specifically in the Contract Documents, and the
provisions of this Paragraph will survive final payment and termination or completion of the
Agreement.
18.2 CONTRACTOR shall not assign or transfer the Contract or its rights, title or interests
therein without CITY'S prior written approval. The obligations undertaken by CONTRACTOR
pursuant to the Contract shall not be delegated or assigned to any other person or firm unless CITY
shall first consent in writing to the assignment. Violation of the terms of this Paragraph shall
constitute a breach of Contract by CONTRACTOR and the CITY may, at its discretion, cancel the
Contract and all rights, title and interest of CONTRACTOR shall thereupon cease and terminate.
18.3 CONTRACTOR and its employees, volunteers and agents shall be and remain an
independent contractors and not agents or employees of CITY with respect to all of the acts and
services performed by and under the terms of this Agreement. This Agreement shall not in any way
be construed to create a partnership, association or any other kind of joint undertaking or venture
between the parties hereto.
18.4 The remedies expressly provided in this Agreement to CITY shall not be deemed to
be exclusive but shall be cumulative and in addition to all other remedies in favor of CITY now or
hereafter existing at law or in equity.
18.5 The validity, construction and effect of this Contract shall be governed by the laws of
the State of Florida. In the event of a dispute arising under or related to this Agreement it shall be
filed in the Eleventh Judicial Circuit in and for Miami -Dade County, Florida.
18.6 Should any part, term or provision of this Agreement be by the courts decided to be
invalid, illegal or in conflict with any law of the State, the validity of the remaining portion or
provision shall not be affected thereby.
ARTICLE 19 - NONDISCRIMINATION AND EQUAL OPPORTUNITY EMPLOYMENT
19.1 During the performance of this Agreement, CONTRACTOR shall not discriminate
against any employee or applicant for employment because of race, religion, color, sex or national
origin. CONTRACTOR will take affirmative action to ensure that employees are treated during
employment, without regard to their race, creed, color or national origin. Such action must include,
but not be limited to the following: employment, upgrading; demotion or transfer; recruitment or
recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. CONTRACTOR shall agree to post in conspicuous
places, available to employees and applicants for employment, notices to be provided by the
contracting officer setting forth the provisions of this nondiscrimination clause.
36
19.2 CONTRACTOR shall comply with Executive Order 11246 of September 24, 1965,
entitled 'Equal Employment Opportunity" as amended by Executive Order 11375 of October 13,
1967 and as supplemented in Department of Labor Regulations (41 CFR Part 60).
19.3 CONTRACTOR shall comply with the Copeland Anti- Kickback Act (18 USC 874)
as supplemented in Department of Labor Regulations (29 CFR Part 3).
19.4 CONTRACTOR shall comply with the Contract Work Hours and Safety Standards
Act (40 US 327 -330) as supplemented by Department of Labor Regulations (29 CFR Part 5).
19.5 CONTRACTOR shall comply with the Florida Trench Safety Act.
19.6 CONTRACTOR shall comply with the OSHA Safety Act.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in triplicate
on the day and year first written above.
Signature
Print
ATTEST:
. I 11;:� : I I I _ta.. -)
Jane . Hines, MMC, City Clerk
37
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