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HomeMy WebLinkAboutReso 2010-1522 ~ RESOLUTION NO. 2010 - I S ~ A.., A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, A'WARDING RFP NO. 09-11-01 TO AND ENTERING INTO AN AGREEMENT WITH WEST CONSTRUCTION, INC. FOR PROFESSIONAL DESIGN AND BUILD SERVICES FOR A SKATEBOARD PARK AT TOWN CENTER PARK, IN AN AMOUNT NOT TO EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00), IN SUBST ANTIALL Y THE SAME FORM AS ATTACHED HERETO AS EXHIBIT "A", BASED ON THE PRICING, TERMS, AND CONDITIONS LISTED IN THE BID RESPONSE, A TT ACHED HERETO AS ATTACHMENT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THE TERMS OF THIS AGREEMENT; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission has long desired to have a skateboard park for the enjoyment and safety of our youth; and WHEREAS, the City issued and advertised Request for Proposals (RFP) No. 09-11-01, for Professional Design and Build Services for a Skateboard Park at Town Center Park, for which nine (9) responses were received; and WHEREAS, three (3) firms were short listed by City staff from the nine (9) responses received; and WHEREAS, staff has determined that the bid response from, West Construction, Inc., attached hereto as Attachment "A", is the lowest responsive responsible bid, based on a careful review of the line items and consideration for the Contractor's reputation; and WHEREAS, the City wishes to award RFP No. 09-11-01 to and enter into an agreement with West Construction, Inc. to provide services on a unit price basis for Professional Design and Build Services for a Skateboard Park at Town Center Park, in an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00), attached hereto as Exhibit "A". NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION 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. Section 2. Award of Bid and Approval of Agreement. The City Commission hereby awards RFP No. 09-11-01 to and enters into an agreement with West Construction, Inc., in an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000.00), in substantially the same form as attached hereto as Exhibit "A", based on the pricing, terms, and conditions listed in the bid response, attached hereto as Attachment "A". R201O- Skateboard Park Agmt West Construction (RFP 09-10-01) (2) Page I of2 Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said Agreement. Section 4. Authorization of City Manager. The City Manager is hereby authorized to do all things necessary to effectuate the terms of this Agreement. Section 5. Effective Date. This Resolution will become effective upon adoption. PASSED AND ADOPTED this 28th day of January 2010. . mwdd ~. . ATTEST: ~It-~ Jane A. Hines, CMC, City Clerk . - APPROVED AS TO FORM AND SUE ICIENCY: Moved by: C..o ~ S(.\-1-oLL ~ \ a ((\~\) v\t\:Prl..tR. Seconded by: Vote: t; -0 Mayor Edelcup Vice Mayor Thaler Commissioner Brezin Commissioner Goodman Commissioner Scholl ~(Y es) V (Yes) \7'(Yes) V (Yes) V(Yes) _(No) _(No) _(No) _(No) _(No) R201O- Skateboard Park Agmt (RFP 09-10-01) Page 2 of2 CITY OF SUNNY ISLES BEACH AGREEMENT WITH WEST CONSTRUCTION, INC. TO DESIGN AND BUILD A SKATEBOARD PARK AT TOWN CENTER PARK 0, Su" CONTRACT NO. C0910-027 THIS AGREEMENT made and entered into this ~ttday of ~thJu~ 2010 by and between the CITY OF SUNNY ISLES BEACH, FLORIDA, a municip I corporation of the State of Florida, (hereinafter referred as to "City" or "Owner") and WEST CONSTRUCTION, INC., a Florida corporation, authorized to do business in the State of Florida, (hereinafter referred to as "Design-Builder"). WHEREAS, the City wishes to employ Design-Builder to design and build a skateboard park at Town Center Park pursuant to the specifications outlined in RFP No. 09-11-01 ("Services"); and WHEREAS, the Design-Builder was selected by the City as the lowest responsible, responsive bidder in response to RFP No. 09-11-01; and WHEREAS, the Design-Builder is qualified, willing and able to provide the desired Services on the terms and conditions set forth herein. Article 1: Scope of Work 1.1 Design-Builder shall perform all design and construction services, and provide all material, equipment, tools and labor, necessary to complete the Work described in and reasonably inferable from the Contract Documents. Article 2: Contract and Contract Documents 2.1 This Agreement consists of the following documents collectively referred to as the "Contract Documents": .1 All written modifications amendments and change orders to this Agreement issued in accordance with General Conditions of Contract between Owner and Design-Builder; .2 This Agreement, including all exhibits and attachments; .3 The aforementioned General Conditions of Contract; .4 Supplemental Conditions of Contract; .5 Request for Proposals ("RFP") No. 09-11-01; .6 Design Plans and Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract; and - .7 Designer-Builder's Proposal in response to RFP No. 09-11-01. The enumerated Contract Documents above are hereby incorporated herein by references regardless of whether they are specifically attached to this Agreement. Article 3: Interpretation and Intent 3.1 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. 3.2 Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract. Whenever such terms, words or phrase are not defined in the General Conditions, they shall have the generally accepted meaning as they are used in the construction industry; and if there is no such generally accepted meaning, they shall be interpreted according to their common and customary usage. Heading are used herein solely for convemence. 3.3 The Contract Documents form the entire agreement between Owner and Designer-Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representation representative or other agreements have been made by the parties except as specifically stated on the Contract Documents. 3.4 The specifications herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of this Agreement shall not imply that other non-specified acts, failures, refusals, omissions, events, occurrences or conditions shall be deemed not to constitute a material breach of this Agreement. 3.5 In the event of any conflict, discrepancy, or inconsistency among any of the Contract Documents, the following shall control: .1 As between figures given on plans and scaled measurements, the figures shall govern, .2 As between large scale plans and small scale plans, large scale plans shall govern, .3 As between approved plans and specifications, the requirements of the specifications shall govern, .4 As between this Agreement including amendments and labeled Exhibits, and approved plans or specifications, this Agreement shall govern, Article 4: Ownership of Work Product 4.1 Work Product. The Design Plans to be produced by Design-Builder, and in addition all reports, estimates, logs, original drawings, and other materials furnished, prepared or executed by Design-Builder during the term of and in accordance with the provisions of this Contract (hereinafter, "Work Product") shall be the property of the Owner and delivered to the Owner upon demand; provided, however the Owner agrees to each of the following conditions (I) Owner's use of such Work Product prior to the Final Design Plans being sealed by or at the direction of Design-Builder and approved by Owner, shall be at Owner's risk and without the warranties otherwise applicable as to such Design Plans; and (2) not to use the Work Product on another project without Design-Builder's consent. Article 5: Contract Time 5.1 Date of Commencement. The Work shall commence on the date of the Notice to Proceed ("Date of Commencement") unless the parties mutually agree otherwise in writing. 5.2 Substantial Completion and Final Completion. 5.2.1 Substantial Completion of the entire Work shall be achieved no later than 180 calendar days from the Notice to Proceed ("Scheduled Substantial Completion Date") 5.2.2 Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. 5.2.3 All of the dates set forth in this Article 5 ("Contract Tine(s)") shall be subject to adjustment in accordance with the General Conditions of Conduct. 5.2.4 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents. 5.2.5 Liquidated Damages. Design-Builder understands that if the Substantial Completion is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not attained by 180 calendar days from the Notice to Proceed then Designer-Builder shall pay Owner Five Hundred Dollars ($500.00) as liquidated damages for each day that extends beyond the substantial Completion Date. Article 6: Contract Price 6.1 Contract Price. Owner shall pay Designer-Builder in accordance with Article 6 of the General Conditions of Contract the sum of Two Hundred and Fifty Thousand Dollars ($250,000.00) ("Contract Price") subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract - Documents, the Contract Price is deemed to include all sales, use, consumer, and other taxes mandated by applicable Legal Requirements. 6.2 Markups for changes. In the Contract Price requires an adjustment due to change in the Work, and the cost of such changes is determined under Section 9.4.1.3 or Section 9.4.1.4 of the General Conditions of Contract, the following markups shall be allowed on such changes: Design-Builder shall be entitled to an additional payment of 5% indirect overhead costs, plus 10% of all costs, including overhead, as Design- Builder's fee. Article 7: Procedure for Payment 7.1 Progress Payments 7.1.1 Design- Builder shall submit to Owner on the fifth (5th) day. of each month,. beginning with the first month after the Date of Commencement, Design-Builder's Application for Payment in accordance with Article 6 of the G'eneral Conditions of Contract. 7.1.2 Owner shall make payment with thirty (30) days after Owner's receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of . the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract. 7.2 Retainage on Progress Payment 7.2.1 Owner will retain ten percent (10%) of each Application for Payment provided, however, that, at the Owner's Representative discretion, when fifty percent (50%) of the Work has been completed by Designer-Builder, Owner will not retain additional amounts from Designer-Builder's subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Subcontractors completing their work early in the Project. 7.2.2 Upon Final Competition of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, Owner shall release to Designer-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work. 7.3 Final Payment. Designer-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design-Builder's properly submitted and accurate Final Application for Payment within thirty (30) days after Owner's receipt of the Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract. '~ 7.4 Interest. Payments due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall bear interest in accordance with the Florida Prompt Payment Act, Florida Statutes 255.0705 through 255.078. 7.5 Records Keeping and Finance Controls. With respect to changes in the Work performed on a cost basis by Design-Builder pursuant to the Contract Documents, Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner's accountants shall be afforded access from time to time, upon reasonable notice, to Design-Builder's records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to changes in the Work performed on a cost basis in accordance with the Contract Documents, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment Article 8: Termination for Convenience 8.1 Upon ten (10) days written notice to Design-Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following: .1 All Work executed by Design-Builder and accepted by Owner In connection with the Work; .2 The reasonable costs incurred by Design-Builder by reason of such termination. 8.2 In addition to the amounts set forth in Section 8.1 above, Design-Builder shall be entitled to receive one of the following as applicable: .1 If Owner terminates this Agreement prior to commencement of construction, Design-Builder shall be paid zero percent (0%) of the remaining balance of the Contract Price. .2 If Owner terminates this Agreement after commencement of construction, Design-Builder shall be paid zero percent (0%) of the remaining balance of the Contract Price. Article 9: Party Representatives 9.1 Owner's Representatives 9.1.1 Owner designates the individual listed below as its Senior Representative ("Owner's Senior Representative"), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: Rick Conner, City Manager City of Sunny Isles Beach 18070 Collins Avenue 4th Floor Sunny Isles Beach, FL 33160 305-792-1701 9.1.2 Owner designates the individual listed below as its Owner's Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract: Jorge Vera, Assistant City Manager City of Sunny Isles Beach 18070 Collins Avenue 4th Floor Sunny Isles Beach, FL 33160 305-792-1701 9.2 Design-Builder's Representative 9.2.1 Design-Builder designates the individual listed below as its senior Representative ("Design-Builder's Senior Representative"), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: Martha A. Morgan, President 318 South Dixie Highway Suite 4-5 Lake Worth, FL 33460 561-588-2027 Article 10: Bonds and Insurance 10.1 Insurance. Design-Builder shall procure insurance coverages in accordance with Article 5 of the General Conditions of Contract and any amendments thereto. 10.2 Payment Bond. Design-Builder shall provide the following payment bond as security. 10.2.1 The Payment Bond shall be in an amount of Two Hundred Fifty Thousand ($250,000) guaranteeing to Owner the full payment of all suppliers, material, laborers, or Sub-Contractors employed pursuant to the work described in the Request for Proposal -- and this Agreement. The Payment Bond shall be with a Surety company meeting the qualifications of the Request for Proposal and this Agreement. The Payment Bond shall continue in effect for one and one half years after final completion and acceptance of the work described in the Request for Proposal and this Agreement. Pursuant to the requirements of Section 255.05(1), Florida Statutes, Design-Builder shall ensure that the Payment Bond referenced above shall be recorded in the public records of Miami-Dade County and provide Owner with evidence of such recording. The Payment Bond must be executed by a Surety company authorized to do business in the State of Florida as a 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 company shall hold a current certificate of authority as acceptable surety on federal bonds in accordance with the United States Department of Treasury Circular 570, current Revisions. Owner will accept a surety bond from a company with a rating B+ or better. 10.2.2 Additionally, the payment bond shall state as follows: "This bond is issued in compliance with Section 255.05, Florida Statutes (2001 Supp.), as may be amended. A claimant, except a laborer, who is not in privity with the Design- Builder shall, before commencing or not later than 45 days after commencing to furnish labor, materials, or supplies for the prosecution of the work, furnish the Design-Builder with a notice that he or she intends to look to the bond for protection. A claimant who is not in privity with the Design-Builder and who has not received payment for his or her labor, materials, or supplies shall deliver to the Design-Builder and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. The notice of nonpayment may be served at any time during the progress of the work or thereafter but not before 45 days after the first furnishing or labor, services, or materials, and not later than 90 days after the final furnishing of the labor, services or materials by the claimant or, with respect to rental equipment not later than 90 days after the date the rental equipment was last on the job site available for use. No action for the labor, materials, or supplies may be instituted against the Design-Builder or the surety unless both notices have been given. Notices required or permitted under this section may be served in accordance with S.713.18." 10.2.3 An action, except for an action exclusively for recovery of retainage, must be instituted against the Design-Builder or the surety on the payment bond within one (1) year after the performance of the labor or completion of delivery of the materials or supplies. An action exclusively for recovery of retain age must be instituted against the Design-Builder or the surety within one (1) year after the performance of the labor or completion of delivery of the materials or supplies, or within ninety (90) days after the Design-Builder's receipt of final payment (or the payment estimate containing the Owner's final reconciliation of quantities if no further payment is earned and due as a result of deductive adjustments) by the Design-Builder or surety, whichever comes last. A claimant may not waive in advance his or her right to bring an action under the bond against the surety. In any action bought to enforce a claim against a payment bond under this section, the prevailing party is entitled to recover a reasonable fee for the services for his or her attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party's costs, as allowed in equitable actions. The time periods for service of a notice of nonpayment or for bringing an action against a Design-Builder or a surety shall be measured from the last day of furnishing labor, services, or materials by the claimant and shall not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion. Article II: Desi!!n-Builder's Representations 11.1 Specific Representations. In order to induce Owner to execute this Agreement and recognizing that Owner is relying thereon, Design-Builder, by executing this Agreement, and without superseding, limiting, or restricting any other representation or warranty set forth elsewhere in the Contract Documents, or implied by operation of law, makes the following express representations to Owner: .1 Design-Builder has substantial experience in being responsible for the design and construction of skateboard parks of the kind provided for in this Agreement, and the necessary skill to complete the Project. .2 Design-Builder has significant experience in collaborating with the other entities referenced in Design-builder's Proposal; .3 Design-Builder is professionally and fully qualified to act as the design professional and the general Contractor for the Project and is, and will remain, licensed to practice engineering and architecture or general contracting by all public entities having jurisdiction over Design-Builder or the Project; .4 Design-Builder will maintain all necessary licenses, permits or other authorizations necessary to act as Design-Builder for the Project until Design-Builder's duties under this Agreement have been fully satisfied; .5 Design-Builder has the expertise, experience, and knowledge as well as the necessary personnel and financial capability to perform the Design Services and the Work in accordance with the terms of this Agreement; and .6 Design-Builder assumes full responsibility to Owner for the improper acts and omissions of its Subcontractors or others employed or retained by Design-Builder in connection with the Project. . Article 12: Warranties 12.1 Warranty of Construction Workmanship and Materials. Design-Builder warrants and guarantees to Owner that all labor furnished to perform the Construction Work under - this Agreement will be competent to perform the tasks undertaken and is the best quality obtainable, that the product of such labor will yield only first-class results in strict compliance with this Agreement, that materials and equipment furnished will be of high quality and new unless otherwise permitted by this Agreement, and that the Construction Work will be of high quality, free from faults and defects and in strict conformance with this Agreement. Any and all Construction Work not strictly conforming to these requirements shall be considered defective and shall constitute a breach of Design- Builder's warranty. 12.2 Procurement and Review of Warranties. Design-Builder shall procure from all Subcontractors and Suppliers and shall transmit to the Owner, all warranties offered by the suppliers of any materials and equipment and all warranties required by this Agreement. Design-Builder shall review all such warranties and shall certify to Owner that the warranties are in strict compliance with the requirements of this Agreement. 12.3 Procurement of Operations and Maintenance Documentation. Design-Builder shall prepare or procure and shall transmit to the Owner all documentations required by this Agreement regarding the operation and recommended maintenance programs relating to the various elements of the Construction Work. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK .... IN WITNESS WHEREOF, the parties hereto have executed this Agreement in triplicate on the day and year first written above. WEST CONSTRUCTION, INC. Print Name BY: Martha A. Morgan, President Signature Print Name Jane A. Hines, CMC, City Clerk CI~Y OF SUNNY ISLES BEACH) &~J (; ~ ts !~orman S. Edelcup, May r ATTEST: By:~A~ ,~ General Conditions Table of Contents Article 1: General.................................... ........................................................ .....1 Article 2: Design-Builder's Services and Responsibilities ...................................1 Article 3: Owner's Services and Responsibilities .................................................5 Article 4: Hazardous Conditions and Differing Site Conditions ..........................6 Article 5: Insurance and Bonds............................................................................ 7 Article 6: Payment......... ......................................................... ..............................8 Article 7: Indemnification...................................................................................l 0 Article 8: Time................................................................................................... 11 Article 9: Changes to the Contract Price and Time ............................................12 Article 10: Contract Adjustments and Disputes.. ...... .................................. .......13 Article 11: Stop Work and Termination for Cause............................................. 14 Article 12: Miscellaneous........................................................... .................... ....16 Article 1 General 1.1 Mutual Obligations 1.1.1 Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents. 1.2 Basic Definitions 1.2.1 Agreement refers to the executed contract between Owner and Design-Builder. 1.2.2 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents. 1.2.3 Design Consultant is a qualified, licensed design professional who is not an employee of Design- Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder or Subcontractor, to furnish design services required under the Contract Documents. 1.2.4 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements. 1.2.5 General Conditions of Contract refer to this document. 1.2.6 Legal Requirements are all applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work. .- 1.2.7 Owner's Project Criteria (or, alternatively, "Owner's Design Criteria ") are developed by or for Owner to describe Owner's program requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design-Builder's performance of the Work. Owner's Project Criteria may include conceptual documents, design criteria, performance requirements and other Project-specific technical materials and requirements. 1.2.8 Site is the land or premises on which the Project is located. 1.2.9 Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers. 1.2.10 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor's Work and shall include materialmen and suppliers. 1.2.11 Substantial Completion is the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete so that Owner can occupy and use the Project or a portion thereof for its intended purposes. 1.2.12 Work is comprised of all Design-Builder's design, construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents. Article 2 Design-Builder's Services and Responsibilities 2.1 General Services 2.1.1 Design-Builder's Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Design-Builder's Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design- Builder. Design-Builder's Representative may be ,.' replaced only with the mutual agreement of Owner and Design-Builder. 2.1.2 Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work, including whether (i) the Work is proceeding according to schedule, (ii) discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) health and safety issues exist in connection with the Work, and (iv) other items require resolution so as not to jeopardize Design-Builder's ability to complete the Work for the Contract Price and within the Contract Time(s). 2.1.3 Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated by Section 2.1.4 hereof, a schedule for the execution of the Work for Owner's review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are' required to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner's review of and response to the schedule shall not be construed as relieving Design-Builder of its complete and exclusive control over the means, methods, sequences arid techniques for executing the Work. 2.1.4 The parties will meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. 2.2 Design Professional Services 2.2.1 Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant. 2.3 Standard of Care for Design Professional Services 2.3.1 The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project. Notwithstanding the preceding sentence, if the parties agree upon specific performance standards for any aspect of the Work, which standards are to be set forth in an exhibit 10 the Agreement entitled "Performance Standard Requirements," the design professional services shall be performed to achieve such standards. 2.4 Design Development Services 2.4.1 Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim design submissions that Owner may wish to review, which interim design submissions may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. On or about the time of the scheduled submissions, Design-Builder and Owner shall meet and confer about the submissions, with Design-Builder identifying during such meetings, among other things, the evolution of the design and any significant changes or deviations from the Contract Documents, or, if applicable, previously submitted design submissions. Minutes of the meetings will be maintained by Design- Builder and provided to all attendees for review. FoIlowing the design review meeting, Owner shall review and approve the interim design submissions in a time that is consistent with the turnaround times set forth in Design-Builder's schedule. 2.4.2 Design-Builder shaIl submit to Owner Construction Documents setting forth in detail drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions, as such submissions may have been modified in a design review meeting. The parties shall have a design review meeting to discuss, and Owner shall review and 2 approve, the Construction Documents in accordance with the procedures set forth Section 2.4.1 above. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction. 2.4.3 Owner's review and approval of interim design submissions and the Construction Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither O\~ner's review nor approval of any interim design submissions and Construction Documents shall be deemed to transfer any design liability from Design-Builder to Owner. 2.4.4 To the extent not prohibited by the Contract Documents or Legal Requirements, Design-Builder may prepare interim design submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work. 2.5 Legal Requirements 2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements. 2.5.2 The Contract Price and/or Contract Time(s) may be adjusted to compensate Design-Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price. Such effects may include revisions Design- Builder is required to make to the Construction Documents because of changes in Legal Requirements. 2.6 Government Approvals and Permits 2.6.1 Reserved. 2.6.2 Design-Builder shall provide reasonable assistance to Owner in obtaining those permits, approvals and licenses that are Owner's responsibility. 2.7 Design-Builder's Construction Phase Services 2.7.1 Unless otherwise provided in the Contract Documents to be the responsibility of Owner, as in the case of a purchase made under the Owner Direct Purchase provisions attached to the Agreement as Exhibit A, or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start- up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents. 2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite expertise, skill and competence to satisfy the requirements of the Contract Documents, Design-Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction. 2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work consistent with the Contract Documents. Owner may reasonably object to Design- Builder's selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent thaI Owner's decision impact'> Design-Builder's cost and/or time of performance. 2.7.4 Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub-Subcontractor. 2.7.5 Design-Builder shall coordinate the activities of all Subcontractors. If Owner performs other work on the Project or at the Site with separate contractors under Owner's control, Design-Builder agrees to reasonably cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption. 2.7.6 Design-Builder shall keep the Site reasonably free from debris, trash and construction wastes to permit Design-Builder to perform its construction services efficiently, safely and without interfering with 3 the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, Design-Builder shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project for its intended use. 2.8 Design-Builder's Responsibility for Project Safety 2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work. Unless otherwise required by the Contract Documents, Design-Builder's Safet)' Representative shall be an individual stationed at the Site who may have responsibilities on the Project in addition to safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design-Builder's personnel, Subcontractors and others as applicable. 2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety, as well as any Owner-specific safety requirements set forth in the Contract Documents, provided that such Owner-specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to Owner's Representative and, to the extent mandated by Legal Requirements, to all government or quasi- government authorities having jurisdiction over safety- related matters involving the Project or the Work, 2.8.3 Design-Builder's responsibility for safety under this Section 2.8 is not intended in any way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injury, losses, damages or accidents resulting from their performance of the Work. 2.9 Design-Builder's Warranty 2.9.1 Design-Builder warrants to Owner that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder's warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work by persons other than Design- Builder or anyone for whose acts Design-Builder may be liable. Nothing in this warranty is intended to limit any manufacturer's warranty which provides Owncr with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design- Builder will provide Owner with all manufacturers' warranties upon Final Completion. 2.10 Correction of Defective Work 2.10.1 Design-Builder agrees to correct any Work that is found to not be in conformance with the Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period of one year from the date of Final Completion of the Work or any portion of the Work, or within such longer period to the extent required by the Contract Documents. 2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conformance with the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If Design- Builder fails to commence the necessary steps within such seven (7) day period, Owner, in addition to any other remedies provided under the Contract Documents, may provide Design-Builder with written notice that Owner will commence correction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, Design-Builder shall be responsible for all reasonable costs incurred by 4 Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response, the seven (7) day periods identified herein shall be deemed inapplicable. 2.10.3 The one year period referenced in Section 2.10.1 above applies only to Design-Builder's obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies Owner may have regarding Design-Builder's other obligations under the Contract Documents. Article 3 Owner's Services and Responsibilities 3.1 Duty to Cooperate 3.1.1 Owner shall, throughout the performance of the Work, cooperate with Design-Builder and perform its responsibilities, obligations and services in a timely manner to facilitate Design-Builder's timely and efficient performance of the Work and so as not to delay or interfere with Design-Builder's performance of its obligations under the Contract Documents. 3.1.2 Owner shall provide timely reviews and approvals of interim design submissions and Construction Documents consistent with the turnaround times set forth in Design-Builder's schedule. 3.2 Furnishing of Services and Information 3.2.1 Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, at its own cost and expense, for Design-Builder's information and use the following: .1 Surveys describing the property, boundaries, topography and reference points for use during construction, including existing service and utility lines; ,2 Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site; .- .3 Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project and enable Design-Builder to perform the Work; .4 A legal description of the Site; .5 To the extent available, as-built and record drawings of any existing structures at the Site; and .6 To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site. 3.2.2 Reserved 3.3 Financial Information 3.3.1 At Design-Builder's request, O\~ner shall promptly furnish reasonable evidence satisfactory to Design-Builder that Owner has adequate funds available and committed to fulfill all of Owner's contractual obligations under the Contract Documents. If Owner fails to furnish such financial information in a timely manner, Design-Builder may stop Work under Section 11.3 hereof or exercise any other right permitted under the Contract Documents. 3.3.2 Design-Builder shalI cooperate with the reasonable requirements of Owner's lenders or other financial sources. Notwithstanding the preceding sentence, after execution of the Agreement Design- Builder shalI have no obligation to execute for Owner or Owner's lenders or other fi nancial sources any documents or agreements that require Design-Builder to assume obligations or responsibilities greater than those existing obligations Design-Builder has under the Contract Documents. 3.4 Owner's Representative 3.4.1 Owner's Representative shall be responsible for providing Owner-supplied information and approvals in a timely manner to permit Design-Builder 5 to fulfill its obligations under the Contract Documents. Owner's Representative shall also provide Design- Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors, omissions or defects in the performance ofthe Work. 3.5 Government Approvals and Permits 3.5.1 Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees set forth in the Owner's Permit List attached as an exhibit to the Agreement. 3.5.2 Owner shall provide reasonable assistance to Design-Builder in obtaining those permits, approvals and licenses that are Design-Builder's responsibility. 3.6 Owner's Separate Contractors 3.6.1 Owner is responsible for all work performed on the Project or at the Site by separate contractors under Owner's control. Owner shall contractually require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, Design-Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents. Article 4 Hazardous Conditions and Differing Site Conditions 4.1 Hazardous Materials 4.1.1 Disclosure, Identification and Handling. The Design-Builder must maintain at the Site, available to the Owner, appropriate information pertaining to all Hazardous Materials brought to the Site. Such materials must be properly labeled or identified, and the Design-Builder must properly store, handle and use them at all times. Manufacturers and distributors are required by the federal Hazard Communication Standard (29 CFR SSI910.1200) and Florida Statute 252 to label each Hazardous Material or chemical container, and to provide Material Safety Data sheets to the purchaser. The Design-Builder must comply with these laws and must provide the Owner with copies of all relevant documents, including Material Safety Data sheets prior to performance or services or contemporaneous with delivery of goods. The Design- Builder must provide and designate appropriate and secure areas for their storage and must notify the Owner of their presence and location at the Site. The Design-Builder must not store Hazardous Materials at the Site in excess of those reasonably needed for the Design-Builder's currcnt operations, and must properly remove or dispose of all Hazardous Materials, including combustible waste, as soon as possible after completion of the operations in which they are utilized. 4.1.2 Discovery of Hazardous Materials at the Site In the event the Design-Builder encounters on the Site material reasonably believed to be a Hazardous Material (other than those for which the Design- Builder may have specific responsibility for remediation under the Contract), and the Design- Builder's reasonable precautions will be inadequate to prevent foreseeable damage or injury and the Design- Builder cannot proceed with the Work in the absence of the removal, containment or remediation of the Hazardous Material, the Design-Builder must immediately stop Work in the area affected and report the condition to the Owner in writing. 4.1.3 Investigation and Remediation Upon receipt of notice of suspected hazardous Materials, the Owner will cause an investigation to be made to verify the presence and extent of such materials, to determine whether such materials are in fact hazardous, and the steps necessary for their removal, containment or remediation. 4.1.4 Resumption of Work. If the Owner's investigation confirms the presence of Hazardous Materials which present a risk of injury or damage which will not be adequately protected against by the Design-Bui Ider's reasonable precautions, then the Work in the affected area must not thereafter be resumed except at the written direction of the Owner. The Work in the affected area will be resumed promptly (i) in the absence of a finding of Hazardous Material by the Owner, (ii) upon the removal, containment or remediation of the Hazardous Materials, or (iii) upon the establishment of appropriate safety precautions. 4.1.5 Adjustments for PCBs and Asbestos. If the Design-Builder incurs additional costs on account of or is delayed by the need to remove, contain or remediate asbestos or polychlorinated biphenyl (PCB) which has not be rendered harmless at the Site unless the Design- Builder is responsible for same under the Contract, the Design-Builder may request a change in the Contract Sum or contract Time to account for such action. Any such requested change in the Contract Sum or Contract Time must be made in writing within ten (10) days of 6 discovery of the asbestos or polychlorinated biphenyl (PCB) which has not been rendered hannless giving rise to the request for the change and must fully comply with Article 9 or any claim will be deemed conclusively waived by the Design-Builder. 4.1.6 Reserved 4.2 Differing Site Conditions 4.2.1 Notice of Concealed or Unknown Site Conditions. No Differing Site Conditions Claims. The Site is considered Unwarranted. No claim may be made and no additional compensation, or time extension, will be granted as a consequence of any differing site or subsurface conditions encountered by the Design-Builder. Unwarranted Site means the Design-Builder is responsible for undertaking and completing all excavation work specified in the contract at the contract Sum and within the Contract Time regardless of subsurface conditions encountered whether those conditions be naturally occurring, man- made or artificial and includes all unexpected, unanticipated or unforeseen geoteclmical conditions, materials dumped or artificially place on the Site or buried, man-made obstacles or debris such as rubble, underground tanks, abandoned or unknown utilities or pipes or similar artificial or man-made conditions. The presence of differing subsurface conditions (whether naturally occurring or man-made or artificial) or increases or decreases in quantities of subsurface conditions indicated, does not entitle the Design- Builder to additional compensation or any extension of time beyond the Contract Sum and Contract Time for completion of the Work specified in the Contract. Notwithstanding anything contrary, Design-Builder's responsibility arising from unforeseen conditions shall not exceed 1 % of the contract price or $5,000,00, whichever is greater. 4.2.2 Upon encountering a Differing Site Condition, Design-Builder shall provide prompt written notice to Owner of such condition, which notice shall not be later than fourteen (14) days after such condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide such notice before the Differing Site Condition has been substantially disturbed or altered. Article 5 Insurance and Bonds 5.1 Design-Builder's Insurance Requirements 5.1.1 Design-Builder shall purchase and maintain, at its own expense, the following types and amounts of insurance, in form and companies satisfactory to the City: 5.1.1.1 Workers' Compensation Insurance - As required by Florida Statutes, Chapter 440. Workers' Compensation Insurance, for all employees of Design- Builder, employed at the site ofthe work or in any way connected with the work, which is the subject of this service. 5.1.1.2 The insurance required by this provision shall comply fully with the Florida Workers' Compensation Law and include Employers' Liability Insurance with limits of not less than $500,000 per occurrence. Any associated or subsidiary company involved in the service must be named in the Workers' Compensation coverage. 5.1.1.3 Liability Insurance - Commercial General Liability Insurance, including coverage for operations, independent contractors, products-completed operations, broad form property damage, and personal injury on an "occurrence" basis insuring Design- Builder and any other interests, including but not limited to any associated or subsidiary companies involved in the work. 5.1.1.4 Automobile Liability Insurance which shall insure claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle used by Design-Builder at the site ofthe project or in any way connected with the work which is the subject of this agreement. THE LIABILITY INSURANCE SHALL NAME THE CITY AS AN ADDITIONAL INSURED. 5.1.1.5 The limit of liability shall be a combined single limit for bodily injury and property damage of no less than $1,000,000 per occurrence. If insurance is provided with a general aggregate, then the aggregate shall be in an amount of no less than $1,000,000. 5.1.1.6. Professional Liability Insurance - Professional Liability Insurance insuring Design-Builder and other 7 5.3.1 Design Builder shall procure and maintain at its own expense the following types and amounts of insurance, in form and companies satisfactory to the ::'11'';00 Flo",,, - g9';l~K ~ ~";'.;.~ maintain an Installation Floater on an hall risk" basis, . including but not limited to, the perils of theft, 6.1 vandalism and malicious mischief, on 100 percent of the value of the contract or 100 percent on that 6.1.1 Within ten (10) days of execution of the portion of the Contract that is insurable under an Agreement, Design-Builder shall submit for Owner's Installation Floater in a form satisfactory to the review and approval a schedule of values for all of the Owner, and for the benefit of the Owner, Design- Work. The Schedule of Values will (i) subdivide the Builder and subcontractors as their interests may Work into its respective parts, (ii) include values for all appear. The Owner, Design-Builder and any items comprising the Work and (iii) serve as the basis subcontractor insured therein waive al\ rights against each other for damage caused by fire and other perils to :r.l:onththly ~rogr~ss payments made to Design- the extent covered by the insurance obtained pursuant UI er roug out t e Work. to this paragraph. C/}/ll/ A ., ~~ \""0 f V tpV~~ Monthly Progress Payments B 'Id . R' k T'\' . . .~ .. UI ers. IS' - uRn ~... 1'-! rpq111r~nl tQ maIntaIn Builders Risk Insurance on an "all ris\.;" basis. 6.2 On or before the date established in the including but not limited to the completed value basi~ Agreement, Design-Builder shall submit lor Owner"s on the insurable portion of the work for the benefit of review and approval its Application for Payment the Owner, Design-Builder and subcontractors as their requesting payment for all Work performed as of the interests may appear. The Owner, Design-Builder and date of the Application for Payment. The Application any subcontractor insured therein waive al\ rights for Payment shall be accompanied by al\ supporting against each other for damages caused by fire and other documentation required by the Contract Documents perils to the extent covered by the insurance obtained and/or established at the meeting required by Section pursuant to this paragraph 2.1.4 hereof. interest, including, but not limited to, any associated or subsidiary companies involved in the work, for errors or omissions in the performance of professional services to be rendered pursuant to this Agreement. The limit of liability of Professional Liability Insurance shall be no less than $1,000,000. 5.2 Owner's Liability Insurance 5.2.1 Owner shall procure and maintain from insurance companies authorized to do business in the state in which the Project is located such liability insurance to protect Owner from claims which may arise from the performance of Owner's obligations under the Contract Documents or Owner's conduct during the course of the Project. In lieu of providing evidence of purchased insurance, Owner may provide evidence of self insurance for claims which may arise from the liability exposure referenced in this Section. 5.3 Design-Builder's Property Insurance Builders' Risk Insurance is required when the project includes or consists of construction, fabrication, installation, erection, repair, alteration or completion of a facility. 5.3.2 - 5.3.4 Reserved 5.3.5 Owner and Design-Builder waive against each other and Owner's separate contractors, Design Consultants, Subcontractors, agents and employees of each and all of them, all damages covered by property insurance provided herein, except such rights as they may have to the proceeds of such insurance. Design- builder and Owner shall, where appropriate, require similar waivers of subrogation ti'om Owner's separate contractors, Design Consultants and Subcontractors and shall require each of them to include similar waivers in their contracts. 5.4 Bonds and Other Performance Security 5.4.1 If Owner requires Design-Builder to obtain performance and labor and material payment bonds, or other forms of performance security, the amount, for m and other conditions of such security shall be as set forth in the Agreement. Article 6 Payment Schedule of Values 8 , - The Application for Payment may request payment for equipment and materials not yet incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials are suitably stored at either the Site or another acceptable location, (ii) the equipment and materials are protected by suitable insurance and (iii) upon payment, Owner wiII receive the equipment and materials free and clear of all liens and encumbrances. 6.2.3 The Application for Payment shall constitute Design-Builder's representation that the Work has been performed consistent with the Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project, or upon Design-Builder's receipt of payment, whichever occurs earlier. 6.3 Withholding of Payments 6.3.1 On or before the date established in the Agreement, Owner shall pay Design-Builder all .amounts properly due. If Owner determines that Design-Builder is not entitled to . all .01' part of an Application for Payment, it wiIlnotify Design-Builder in writing at least five (5) days prior to the date' payment is due. The notice shall indicate the specific amounts Owner intends to withhold, the reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectifY Owner's concerns. Design-Builder and Owner will attempt to resolve Owner's concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract Documents, including those under Article 10 hereof. 6.3.2 Notwithstanding anything to the contrary in the Contract Documents; Owner shall pay Design- Builder all undisputed amounts in an Application for Payment within the times required by the Agreement. 6.4 Right to Stop Work and Interest 6.4.1 If Owner fails to pay Design-Builder any amount that becomes due, Design-Builder, in addition to all other remedies provided in the Contract Documents, may stop Work pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate set forth in the Agreement. - 6.S Design-Builder's Payment Obligations 6.S.1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its contractual obligations to such parties, all the amounts Design- Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Design Consultants and Subcontractors to pay those parties with whom they have contracted. Design-Builder will indemnify and defend Owner against any claims for payment and mechanic's liens as set forth in Section 7.3 hereof. 6.6 Substantial Completion 6.6.1 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in the Contract Documents, a portion of the Work, is substantially complete. Within five (5) days of Owner's receipt of Design-Builder's notice, Owner and Design-Builder will jointly inspect such Work to verify that it is substantially complete in accordance with the requirements ofthe Contract Documents. If such Work is substantially complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or portion thereof, (ii) the remaining items of Work that have to be completed before final payment, (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner's and Design-Builder's responsibility for the Project's security, maintenance, utilities and insurance pending final payment and (iv) an acknowledgment that warranties commence to run on the date of Final Completion, except as may otherwise be noted in the Certificate of Substantial Completion. 6.6.2 Upon Final Completion of the entire Work or, if applicable, any portion of the Work, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work. 6.6.3 Owner, at its option, may use a portion of the Work which has been determined to be substantially complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section 6.6.1 above, (ii) Design-Builder and Owner have obtained the consent of their sureties and insurers, and to the extent applicable, the appropriate government 9 )" authorities having jurisdiction over the Project, and (iii) Owner and Design-Builder agree that Owner's use or occupancy will not interfere with Design-Builder's completion of the remaining Work. 6.7 Final Payment 6.7.1 After receipt of a Final Application for Payment from Design-Builder, Owner shall make final payment by the time required in the Agreement, provided that Design-Builder has completed all of the Work in conformance with the Contract Documents. 6.7.2 At the time of submission of its Final Application for Payment, Design-Builder shall provide the following information: .1 an affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner's interests; .2' a general release executed by Design- Builder waiving, upon receipt of final payment by Owner, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment; .3 consent of Design-Builder's surety, if any, to final payment; .4 all operating manuals, warranties and other deliverables required by the Contract Documents; and .5 certificates' of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract Documents. .6 a general release executed by all sub- contractors and sub-consultants that have submitted Notices to Owner, waiving, upon receipt of final payment by Design- Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment '" 6.7.3 Upon making final payment, Owner waives all claims against Design-Builder except claims relating to (i) Design-Builder's failure to satisfy its payment obligations, if such failure affects Owner's interests, (ii) Design-Builder's failure to complete the Work consistent with the Contract Documents, including defects appearing after Substantial Completion and (iii) the terms of any special warranties required by the Contract Documents. Article 7 Indemnification 7.1 Patent and Copyright Infringement 7.1.1 Design-Builder shall defend any action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or the operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner shall give prompt written notice to Design-Builder of any such action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design-Builder shall indemnify and hold harmless Owner from and against all damages and costs, including but not limited to attorneys' fees and expenses awarded against Owner or Design-Builder in any such action or proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of such actions. 7.1.2 If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result of any patent or copyright suit, claim, or proceeding, Design- Builder shall at its sole expense take reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so procure such right within a reasonable time, Design-Builder shall promptly, at Design-Builder's option and at Design-Builder's expense, (i) modify the Work so as to avoid infringement of any such patent or copyright or (ii) replace said Work with Work that does not infringe or violate any such patent or copyright. 7.1.3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based on infringement or violation of a patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by Owner and not 10 r I , 1. offered or recommended by Design-Builder to Owner or (ii) arising from modifications to the Work by Owner or its agents after acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the preceding sentence, Owner shall defend, indemnify and hold harmless Design-Builder to the same extent Design-Builder is obligated to defend, indemnify and hold harmless Owner in Section 7.1.1 above. 7.1.4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between the parties relating to liability for infringement of violation of any patent or copyright. 7.2 Reserved. 7.3 Payment Claim Indemnification 7.3.1 Providing that Owner is not in breach of its contractual obligation to make payments to Design- Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic's liens brought against Owner or against the Project as a result of the failure of Design-Builder, or those for whose acts it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within three (3) days of receiving written notice from Owner that such a claim or mechanic's lien has been tiled, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic's lien bond. If Design-Builder fails to do so, Owner will have the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses incurred. including attorneys' tees. 7.4 Design-Builder's General Indemnification 7.4.1 Design-Builder, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Owner, its officers, directors, employees and agents from and against claims, losses, damages, liabilities, including attorneys' lees and expenses, for bodily injury, sickness or death, and property damage or destruction (other than to the Work itself) to the extent resulting from the negligent acts or omissions of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable. --'" 7.4.2 If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable has a claim against Owner, its officers, directors, employees, or agents, Design- Builder's indemnity obligation set forth in Section 7.4.1 above shall not be limited by any limitation on the amount of damages, compensation or benefits payable by or for Design-Builder, Design Consultants, Subcontractors, or other entity under any employee benefit acts, including workers' compensation or disability acts. Article 8 Time 8.1 Obligation to Achieve the Contract Times 8.1.1 Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s) in accordance with Article 5 of the Agreement. 8.2 Delays to the Work 8.2.1 If Design-Builder is delayed in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or those for whom Design-Builder is responsible, the Contract Time(s) for performance shall be reasonably extended by Change Order. By way of example, events that will entitle Design-Builder to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under Owner's control (including separate contractors). changes in the Work, Differing Site Conditions, Hazardous Conditions, wars, floods, labor disputes, unusual delay in transportation, epidemics abroad, earthquakes, adverse weather conditions not reasonably anticipated, and other acts of God. 8.2.2 In addition to Design-Builder's right to a time extension for those events set forth in Section 8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price provided, however, that the Contract Price shall not be adjusted for those events set forth in Section 8.2.1 above that are beyond the control of both Design-Builder and Owner, including the events of war, floods, labor disputes, earthquakes, epidemics, adverse weather conditions not reasonably anticipated, and other acts of God. 11 Article 9 Changes to the Contract Price and Time 9.1 Change Orders 9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by Owner and Design-Builder, stating their agreement upon all of the following: .1 The scope of the change in the Work; .2 The amount of the adjustment to the Contract Price; and .3 The extent of the adjustment to the Contract Time(s). 9.1.2 All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes. 9.1.3 If Owner requests a proposal for a change in the Work from Design-Builder and subsequently elects not to proceed with the change, a Change Order may be issued to reimburse Design-Builder for reasonable costs incurred for estimating services, design services and services involved in the preparation of proposed revisions to the Contract Documents if the Contract time or progress of work is affected by development of the Change Order. 9.2 Work Change Directives 9.2.1 A Work Change Directive is a written order prepared and signed by Owner, directing a change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract Time(s). 9.2.2 Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement. . :~L 9.3 Minor Changes in the Work 9.3.1 Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however that Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Design-Builder. 9.4 Contract Price Adjustments 9.4.1 The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods: .1 Unit prices set forth in the Agreement or as subsequently agreed to between the parties; .2 A mutually accepted, lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner; .3 Costs, fees and any other markups set forth in the Agreement; and .4 If an increase or decrease cannot be agreed to as set forth in items .1 through .3 above and Owner issues a Work Change Directive, the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change, including a reasonable overhead and profit, as may be set forth in the Agreement. If the net result of both additions and deletions to the Work is an increase in the Contract Price, overhead and profit shall be calculated on the basis of the net increase to the Contract Price. If the net result of both additions and deletions to the Work is a decrease in the Contract Price, there shall be no overhead or profit adjustment to the Contract Price. Design-Builder shall maintain a documented, itemized 12 r accounting evidencing the expenses and savings associated with such changes. 9.4.2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit prices will cause substantial inequity to Owner or Design-Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted. 9.4.3 If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed changes to the Work, Owner and Design-Builder shall resolve the disagreement pursuant to Article 10 hereof As part of the negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner's interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the services in accordance with Owner's interpretations, Design-Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design-Builder (i) directing Design-Builder to proceed and (ii) specifying Owner's interpretation of the services that are to be performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the express understanding that (i) such payment by Owner does not prejudice Owner's right to argue that it has no responsibility to pay for such services and (ii) receipt of such payment by Design- Builder does not prejudice Design-Builder's right to seek full payment of the disputed services if Owner's order is deemed to be a change to the Work. 9.5 Emergencies 9.5.1 In any emergency affecting the safety of persons and/or property, Design-Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price and/or Contract Time(s) on account of emergency work shall be determined as provided in this Article 9. .. Article 10 Contract Adjustments and Disputes 10.1 Requests for Contract Adjustments and, Relief 10.1.1 If either Design-Builder or Owner believes that it is entitled to relief against the other for any event arising out of or related to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. Such notice shall if possible, be made prior to incurring any cost' or expense and in accordance with any specific notice requirements contained in applicable sections of these General Conditions of Contract. In the absence of any specific notice requirement, written notice shall be given within a reasonable time, not to exceed twenty- one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later. Such notice shall include sufficient information to advise the other party of the circumstances giving rise to the claim for relief the specific contractual adjustment or relief requested and the basis of such request. 10.2 Dispute Avoidance and Resolution 10.2.1 The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Design-Builder and Owner each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work. 10.2.2 Design-Builder and Owner will first attempt to resolve disputes or disagreements at the field level through discussions between Design-Builder's Representative and Owner's Representative. 10.2.3 If a dispute or disagreement cannot be resolved through Design-Builder's Representative and Owner's Representative, Design-Builder's Senior Representative and Owner's Senior Representative. upon the request of either party, shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to 13 resolve such dispute or disagreement. Prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement. 10.2.4 Reserved 10.3 Reserved 10.4 Duty to Continue Performance 10.4.1 Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to perform the Work and Owner shall continue to satisfy its payment obligations to Design-Builder, pending the final resolution of any dispute or disagreement between Design-Builder and Owner. 10.5 Consequential Damages 10.5.1 Notwithstanding anything herein to the contrary (except as set forth in section 10.5.2 below), neither Design-Builder nor Owner shall be liable to the other for any consequential losses or damages, whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, including but not limited to losses of use, profits, business, reputation or fmancing. 10.5.2 The consequential damages limitation set forth in Section 10.5.1 above is not intended to affect the payment of liquidated damages, if any, set forth in Article 5 of the Agreement, which both parties recognize has been established, in part, to reimburse Owner for some damages that might otherwise be deemed to be consequential. Article 11 Stop Work and Termination for Cause 11.1 Owner's Right to Stop Work 11.1.1 Owner may, without cause and for its convenience, order Design-Builder in writing to stop and suspend the Work. Such suspension shall not exceed sixty (60) consecutive days or aggregate more than ninety (90) days during the duration of the Project. 11.1.2 Design-Builder is entitled to seek an adjustment of the Contract Price and/or Contract -- Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension of stoppage of work by Owner. 11.2 Owner's Right to Perform and Terminate for Cause 11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers, (ii) supply the materials required by the Contract Documents, (iii) comply with applicable Legal Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v) prosecute the Work with promptness and diligence to ensure that the Work is completed by the Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract Documents, then Owner, in addition to any other rights and remedies provided in the Contract Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below. 11.2.2 Upon the occurrence of an event set forth in Section 11.2.1 above, Owner may provide written notice to Design-Builder that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured within seven (7) days of Design-Builder's receipt of such notice. . If Design- Builder fails to cure, or reasonably commence to cure such problem, then Owner may give a second written notice to Design-Builder of its intent to terminate within an additional seven (7) day period. If Design- Builder, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Owner may declare the Agreement terminated for default by providing written notice to Design-Builder of such declaration. 11.2.3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, Owner may enter upon the premises and take possession, for the purpose' of completing the Work, of all materials, equipment, scaffolds, tools, appliances and other items thereon, which have been purchased or provided for the performance of the Work, all of which Design-Builder hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to complete the Work and provide all of the required labor services, materials, equipment and other items. In the event of such termination, Design-Builder shall not be entitled to receive any further payments under the Contract Documents until the Work shall be finally completed in accordance with the Contract Documents. 14 r If the Agreement establishes a Guaranteed Maximum Price, Design-Builder wi\l only be entitled to be paid tor Work pertormed prior to its default. If Owner's cost and expense of completing the Work exceeds the unpaid balance of the Contract Price, then Design- Builder shall be obligated to pay the difference to Owner. Such costs and expense sha1l include not only the cost of completing the Work, but also losses, damages. costs and expense, including attorneys' fees and expenses, incurred by Owner in connection with the reprocurement and defense of claims arising from Design-Builder's default. 11.2.4 If Owner wrongfu1ly terminates the Agreement for cause, the termination for cause will be converted to a termination for convenience in accordance with the provisions of Article 8 of the Agreement. 11.3 Design-Builder's Right to Stop Work 11.3.1 Design-Builder may, in addition to any other rights afforded under the Contract Documents or at law, stop work for the following reasons; .1 Owner's failure to provide linancial assurances as required under Section 3.3 hereof; or .2 Owner's failure to pay amounts properly due under Design-Builder's Application for Payment. 11.3.2 Should any of the events set forth in Section 11.3.1 above occur, Design-Builder has the right to provide Owner with written notice that Design-Builder will stop work unless said event is cured within seven (7) days from Owner's receipt of Design-Builder's notice. If Owner, within such seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Design-Builder may stop work by providing seven (7) days written notice to the Owner. In such case, Design-Builder sha1l be entitled to make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been adversely impacted by such stoppage. 11.4 Design-Builder's Right to Terminate for Cause ~ 11.4.1 Design-Builder, in addition to any other rights and remedies provided in the Contract Documents or by law, may terminate the Agreement for cause for the following reasons: .1 The Work has been stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, because of court order, any government authority having jurisdiction over the Work, or orders by Owner under Section 11.1.1 hereof, provided that such stoppages are not due to the acts or omissions of Design-Builder or anyone for whose acts Design-Builder may be responsible. .2 Owner's failure to provide Oesign- Builder with any information, permits or approvals that are O\\TIer's responsibility under the Contract Documents which result in the Work being stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, even though Owner has not ordered Design-Builder in writing to stop and suspend the Work pursuant to Section 11.1.1 hereof .3 Owner's failure to cure the problems set forth in Section 11.3.1 above after Design-Builder has stopped the Work. 11.4.2 Upon the occurrence of an event set forth in Section 11.4.1 above, Design-Builder may provide written notice to Owner that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Owner's receipt of such notice. If Owner, within such seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Design-Builder may declare the Agreement terminated for default by providing written notice to Owner of such declaration. In such case, Design-Builder shall be entitled to recover in the same manner as if Owner had terminated the Agreement for its convenience under Article 8 of the Agreement. 11.5 Bankruptcy of Owner or Design-Builder 11.5.1 If either Owner or Design-Builder institutes or has instituted against it a case under the United States 15 " (I Bankruptcy Code (such party being referred to as the "Bankrupt Party''), such event may impair or frustrate the Bankrupt Party's ability to perform its obligations under the Contract Documents. Accordingly, should such event occur: .1 The Bankrupt Party, its trustee or other successor, shall furnish, upon request of the non-Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to perform all future material obligations under the Contract Documents, which assurances shall be provided within ten (10) days after receiving notice of the request; and .2 The Bankrupt Party shall file an appropriate action within the bankruptcy court to seek assumption or rejection of the Agreement within sixty (60) days of the institution of the bankruptcy filing and shall diligently prosecute such action, If the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt Party shall be entitled to request the bankruptcy court to reject the Agreement, declare the Agreement terminated and pursue any other recourse available to the non-Bankrupt Party under this Article II. 11.5.2 The rights and remedies under Section 11.5.1 above shall not be deemed to limit the ability of the non-Bankrupt Party to seek any other rights and remedies provided by the Contract Documents or by law, including its ability to seek relief from any automatic stays under the United States Bankruptcy Code or the right of Design-Builder to stop Work under any applicable provision of these General Conditions of Contract. Article 12 Miscellaneous 12.1 Assignment 12.1.1 Neither Design-Builder nor Owner shall, without the written consent of the other assign, transfer or sublet any portion or part of the Work or the obligations required by the Contract Documents. 12.2 Successorship 12.2.1 Design-Builder and Owner intend that the provisions of the Contract Documents are binding upon the parties, their employees, agents, heirs, successors and assigns. 12.3 Governing Law 12.3.1 The Agreement and all Contract Documents shall be governed by the laws of the place of the Project, without giving effect to its conflict of law principles, 12.4 Severability 12.4.1 If any provision or any part of a provision of the Contract Documents shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any applicable Legal Requirements, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of the Contract Documents, which shall remain in full force and effect as if the unenforceable provision or part were deleted. 12.5 No Waiver 12.5.1 The failure of either Design-Builder or Owner to insist, in anyone or more instances, on the performance of any of the obligations required by the other under the Contract Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance. 12.6 Headings 12.6.1 The headings used in these General Conditions of Contract, or any other Contract Document, are for ease of reference only and shall not in any way be construed to limit or alter the meaning of any provision. 12.7 Notice 12.7.1 Whenever the Contract Documents require that notice be provided to the other party, notice will be deemed to have been validly given (i) if delivered in person to the individual intended to receive such notice, (ii) four (4) days after being sent by registered or certified mail, postage prepaid to the address 16 r r I I indicated in the Agreement or (iii) if transmitted by facsimile, by the time stated in a machine generated confirmation that notice was received at the facsimile number of the intended recipient. 12.8 Amendments 12.8.1 The Contract Documents may not be changed, altered, or amended in any way except in writing signed by a duly authorized representative of each party. 17 SUPPLEMENT ARY CONDITIONS The following supplements modify, change from or add to the General Conditions of the Contract. Where any Article of the General Conditions is modified by any Paragraph, Subparagraph or Clause thereof is modified or deleted by these supplements, the unaltered provisions shall remain in effect: ARTICLE 2 - DESIGN-BUILDER'S SERVICES AND RESPONSIBILITIES In Paragraph 2.7.1, edit the first sentence to read: "Unless otherwise provided in the Contract Documents to be the responsibility of Owner, as in the case of a purchase made under the Owner Direct Purchase pro'.'isions attached to the Agreement as Exhibit A,..." ARTICLE 5 - INSURANCE AND BONDS In Paragraph 5.1.1.2, change the term "...$500,000..." to read: ".. .$1,000,000..." In Paragraph 5.1.1.3, add the following at the end of the paragraph to read: Design-Builder shall. at its sole cost and expense. during the period of any work being performed under this Agreement. procure and maintain the following: minimum insurance coverage to protect the Owner and Design-Builder against all loss. claims. damage and liabilities caused by Design-Builder. its agents. sub-contractors or employees. as indicated below: Comprehensive General Liability ("CGL") insurance. with minimum limits of One Million Dollars ($1.000.000) per occurrence. combined single limit for Bodily Iniury Liability and Property Damage Liability. and Two Million Dollars ($2.000.000) aggregate. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability policy. without restrictive endorsements. as filed by the Insurance Services Office. and must include: Products and/or Completed Operations for contracts with an Aggregate Limit of One Million Dollars ($1.000.000.00) Additionally. Design-Builder shall maintain in force until at least three (3) years after completion of all Services required under this Agreement, coverage for Products and Completed Operations. including Broad Form Property Damage. - · Personal and Advertising Iniury with an aggregate limit of One Million Dollars ($1,000,000.00). · CGL Required Endorsements include the following: . Employees included as insured . Independent Contractor's Coverage . Contractual Liability . Waiver of Subrogation . Premises and/or Operations . Explosion, Collapse and Underground Hazards . Loading and Unloading . Mobile Equipment (Contractor's Equipment) whether owned, leased, borrowed or rented by Design-Builder or employees of Design-Builder Owner is to be expressly included as an Additional Insured with respect to liability arising out of operations performed for City by or on behalf of Design- Builder or acts or omissions of Design-Builder in connection with general supervision of such operation. Insurance required of the Design-Builder shall be primary to, and not contribute with, any insurance or self-insurance maintained by Owner. Such insurance shall not diminish Design-Builder's indemnification and obligations hereunder. The insurance policy(ies) shall be issued by companies authorized to do business under the laws of the State of Florida and acceptable to Owner with a minimum AM. Best rating of A-Excellent. Before any work under this Agreement is performed, and at any time upon request, Design-Builder shall furnish to Owner certificates of insurance evidencing the minimum required coverage and shall be appropriately endorsed for contractual liability, with Owner named as additional insured. All policies shall contain a waiver of subrogation endorsement. All policies and certificates shall be in forms and issued by insurance companies acceptable to Owner. All insurance policies and certificates of insurance shall provide that the policies may not be canceled or altered without thirty (30) days prior written notice to Owner. Design-Builder shall also require and ensure that each of its sub- Contractors providing services hereunder (if any) procures and maintains, until the completion of the services, insurance of the types and to the limits specified herein. ANY EXCEPTIONS TO THE INSURANCE REQUIREMENTS IN THIS SECTION MUST BE APPROVED IN WRITING BY THE CITY. In Paragraph 5.1.1.4, add the following at the end of the paragraph to read: Business Automobile Liability which shall include coverage for all owned, non-owned and hired vehicles for minimum limits of not less than One Million Dollars ($1,000,000) per occurrence, One Million Dollars ($1.000,000) per accident for bodily iniury and Five Hundred Thousand Dollars ($500,000) per accident for property damage. - Delete Paragraph 5.1.1.5 in its entirety. Add the following after Paragraph 5.1.1.6 to read: 5.1.1.7 Umbrella Policy (Excess Follow Form) which shall include bodily injury and property damage liability with limits of three million dollars ($3.000.000.00) each occurrence and an aggregate limit of three million dollars ($3.000.000.00). Umbrella Policy coverage shall provide excess coverage over (1) Commercial General Liability. (2) Professional Liability Insurance and (2) Business Automobile Liability. ARTICLE 10 - CONTRACT ADJUSTMENTS AND DISPUTES In Paragraph 10.2.4 delete the word "Reserved" and add the following to read: In the event a dispute or disagreement cannot be resolved through the procedures outlined in Paragraphs 10.2.2 and 10.2.3 above then such dispute or controversy shall be settled by arbitration in accordance with the procedures. rules and regulations of the American Arbitration Association. The decision rendered by the Arbitrator shall be final and binding upon the parties and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. Arbitration shall be held in Miami-Dade County. Florida. The non-prevailing party shall pay all costs of arbitration and attorneys' fees incurred by the parties or. if neither party prevails on the whole. each party shall be responsible for a portion of the costs of arbitration and their respective attorneys' fees as may be determined by the court on confirmation. - WEST CONSTRUCTION, INC. 318 S. Dixie Hwy. Suite 4 - 5 Lake Worth, FL 33460-4452 Phone (561)588-2027 Fax (561)582-9419 January 27, 2010 Mr. Jorge Vera Assistant City Manager City of Sunny Isles Beach 18070 Collins A venue Sunny Isles Beach, Florida 33160 Re: Skateboard Park at Town Center Park Dear Jorge, In response to your request our revised proposal amount for the above referenced project would be as folIows: . General Conditions $19,660.00 (Field supervision, temp toilet, fencing, clean-up, etc) . One (1) custom built skate park $188,235.00 (Includes - earthwork, flatwork & skate park) . Upgrade existing lighting $9,000.00 (Six (6) existing light poles) . New aluminum picket fence & gate $900.00 (Approx. 12 lineal feet) . Design Fees $16,550.00 (Design & Construction drawings) . Overhead & Profit $11,905.00 . Bond $3,750.00 Total Oesi2n-Build RFP Cost $250,000.00 Any questions or if you need any additional infonnation please contact us at your earliest convenience. Sincerely, George Morales Director of Preconstruct ion GENERAL CONTRACTORS CGC007966 CONSTRUCTION MANAGERS CBC057038 Attachment "A" DESIGN/BUILD SERVICES CBCI251192 '" ~ ~ CJ) -. ,~ et) ;0 '0 .'::::J I -.cr .:0 jCJ) 'jet) ~'cr ..-. Q... -- ~ '- a " ~ sk(jre PCI-:< 'Ii "C)\!vTI <::ente( pork [TI:A:f8 F:~!!J . SCHEMATIC DESIGN .1 BUcllddlwblr*lSMsioa l r """"'- -Lodge.....:.~~J:= I =:::::~_ ThltlIgestPc*f.fomtthtblsell I O'ItCMtlI'..-kldoIrblr* ,.,. ....Up..."""'" T......... and I Top d bIIa 1"11- Inlf botbn IS l' _Pad"""'" _.""'__.. MeIl:M 11M The Ledges we uch i (!he ~ pwt<< __ ~ .......-.- \ ...............- I . <0'11'_"",_ ""-""'_. \ ~'::.':' , "__1nlI \ :- --_Up"",", ..-......... I ' I I _t...._ I TNsWbilIt l'e.waan -'. PldbeNndt. I 'I ..... (..._J'l 1 ' {' __."t'_ : T_AolSllb . i II - _..._ j -'......... -. "..- I Ir Lodge-_.-.... I T.......... '" .... / _.____..j _ ,.... I 1..._.........'...._.-. I 2~...wIh -... SklU8Inch-"-""SlyW -- 1'1ll1.....__ _ Lodge Oplion ".. -,.,.- ....... -. - ......... .- /- :::'O'~--=~~~mtNdIck" / alddler,..,WItit,. / / r ....-... StW'III'lCfIlde~ / -....-- Lodge-> . And Gr_ PIdI tJI Rooflilp"_'" ....iong. -..- ,...~-::=- I Heigtt~dl'tD17 from -Zf!!fi' *"'1tIon I / , Aol"""" Glmtd.....' 1/ / -- _IllGlp.._..... ------- "Gmdup"_ U-InMl!lght. \ \..... stInard GranIte Ienctt t',,_ Concept Isles Sketepert< TeemPeln Sketeper\(S sunny By Professional Design and Build Services for aeSkateboard Park at Town Center Park City of Sunny Isles Beach RFP No, 09-11-01 Section 10 I Schematic Desian SWORN STATEMENT PURSUANT TO SECTION 287.133(3)(a) FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICIAL AUTHORIZED TO ADMINISTER OATHS. 1. This sworn statement is submitted W The City of Sunny Isles by Martha A. Morqan for West Construction, Inc whose business address is 318 South Dixie Hwy, Suite 4-5 Lake Worth, FL 33460 and (if applicable) its Federal Employer Identification Number (FEIN) 59-1809068 (If the entity had no FEIN, include the Social Security Number of the individual signing this sworn statement: 2. I understand that a "public entity crime" as defined in Paragraph 287.133(l)(g), Florida Statutes, means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity or with an agency or political subdivision of any other state or of the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. 3. I understand that "convicted" or "conviction" as defined in Paragraph 287 . 133 (l)(b ), Florida Statutes means a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contenders. 4. I understand that an "affiliate" as defined in Paragraph 287.133(l)(a), Florida Statutes, means: a. A predecessor or successor of a person convicted of a public entity crime; or b. An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity come. The term "affiliate" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, shall be a prima facie case that one person controls another person. A person who knowingly enters into a joint venture with a 1fl person who has been convicted of a public entity cnme in Florida during the preceding 36 months shall be considered an affiliate. 5. I understand that a "person" as defined in Paragraph 287. 133(l)(e), Florida Statutes, means any natural person or entity organized under the laws of any state or of the United States with the legal power to enter into a binding contract and which bids or applies to bid on contracts for the provision of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of any entity. 6. Based on information and belief, the statement which I have marked below is true in a relation to the entity submitting this sworn statement. (Please indicate which one (1) of the following three (3) statements is applicable.) ~ (1) Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or any affiliate of the entity has been charged with and convicted of a public entity crime within the past 36 months. _(2) The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or any affiliate of the entity has been charged with and convicted of a public entity crime within the past 36 months. _(3) The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or agents who are active in management of the entity, or any affiliate of the entity has been charged with and convicted of a public entity crime within the past 36 months. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order by the Hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. (Attached is a copy of the final order.) I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH 1 (ONE) ABOVE IS FOR THE PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED AND FOR THE PERIOD OF THE CONTRACT ENTERED INTO , WHICHEVER PERIOD IS LONGER. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR THE CATEGORY TWO OF ANY CHANGE IN THE .~~ORMATI~ON C,ONTAINED IN THIS FORM. ~ ~ Martha A. Morgan, President SIGNATUR OF IA~TU (Printed or Typed Legal Name of Affiant) 17 ~ STATE OF FLORIDA ) )ss. COUNTY OF MIAMI-DADE) The ore~oing F;ml1 was acknowledged before me tl}~aL day of l) l.~ ,2009, by - t1.- /". , as t:d--ltLu. P of , a Florida corporation, on behalf of said corporation and limited partnership. He/She personally appeared before me and is personally known to me. {NOTARY SEAL} e""J;. '>:",,"''''''- ~\u'~ GEORGiA KARA MISNI > ,~ MYCOMMISSION#DD90I99~ l I~ EXl'IREs: Junc 23. 2013 AllY Fl. NOloly DiSCOunt AMcc. Co. l Notary: ~~ Print Name Notary Public, State of Florida My Commission Expires: 18 - NON-COLLUSION AFFIDA VIT STATE OF FLORIDA COUNTY OF MIAMI-DADE The undersigned being first duly sworn as provided by law, deposes, and says: 1.1. This Affidavit is made with the knowledge and intent that it is to be filed with the City of Sunny Isles Beach City Commission and that it will be relied upon by said City, in any consideration which may give to and any action it may take with respect to this proposal. 1.2. The undersigned IS authorized to make this Affidavit on behalf of, West Construction, Inc. (Name of Corporation, Partnership, Individual, etc.), a corporation duly organized and existing under the laws of the State of Florida of which he is President (Sole Owner, Partner, President, etc.) 1.3. Neither the undersigned nor any person, firm, or corporation named in above Paragraph 1.2, nor anyone else to the knowledge of the undersigned, have themselves solicited or employed anyone else to solicit favorable action for this proposal by the City, also that no head of any department or employee therein, or any officer of the City of Sunny Isles Beach, Florida is directly interested therein. 1.4. This proposal is genuine and not collusive or a sham; the person, firm or corporation named above in Paragraph 1.2 has not colluded, conspired, connived or agreed directly or indirectly with any Proposer or person, firm or corporation, to put in a sham proposal, or that such person, firm or corporation, shall refrain from Proposing, and has not in any manner, directly or indirectly, sought by agreement or collusion, or communication or conference with any person, firm or corporation, to fix the prices of said proposal or proposals of any other Proposer; and all statements contained in the proposal or proposals described above are true; and further; neither the undersigned, nor the person, firm or corporation named above in Paragraph 1.2, has directly or indirectly submitted said proposal or the contents thereof, or divulged information or data relative thereto, to any association or to any member or agent thereof. Martha A. Morqan, President AFFIANT'S TITLE 19 - r The foreg?ing AftiPavit was acknowledged before II1fihis~~~ay of UL, 2009, by '-If1 t2LC!ca..... U. '71JDJ~ ' as r /LL.!]-Iru h P- of , a Flonda corporatIon, on behalf of saId corporatIon and limited partnership. He/She personally appeared before me and is personally known to me. ~~ GEORGIA KARA MISNIK ..w~ MY COMMISSION # D09OI993 ~ EXPlRES:J~23.2013 l_worARY A. NOUIy Di-.a AIIOO. Co. Notary: Print Name: ./ Notary Public, State of Florida My Commission Expires: { NOTORIAL SEAL } 20 PERSONNEL ..... .1 Kurt King Superintendent Kurt will be responsible for managing the day-to-day field work. Includ- ing but not limited to subcontractor quality and adherence to the plans and specifications, coordinating all inspections as well as preparing daily log reports and two and four week look ahead schedules. Experience Total: 13 With West: 6 Education Associates Degree of Arts from The University of Detroit Credentials Graduate of FAST Sprinkler School 10 Hour OSHA Certified Project Experience Wilson Park, Boynton Beach, Florida 14,000 Square Feet $6 Million Project Involvement: Superintendent Palm Beach Sheriff's Office Substation, Boynton Beach, Florida 23,000 Square Feet $4.8 Million Project Involvement: Superintendent Fire Station #7 & Riverwalk, West Palm Beach, Florida 12,000 Square Feet $4.2 Million Project Involvement: Superintendent Gymnasium at Village Park, Wellington, Florida "'.\~ 18,000 Square Feet ,.~~~ $2.9 Million .:. Project Involvement: Superintendent ..., Fire Rescue Station #3. West Palm Beach, Florida 11,000 Square Feet $3 Million Project Involvement: Superintendent Wilson Park I I I I . \ \ I \ --~-\- ~'Il.I:".''''''''\.''u. I l I' I L \ ~ \ \ \ PBSO Sub-Station Fire Station #7 I :p:::;~) i~. ".\1, Village Park G)'mnasiulll Fire Sial ion 1#3 Professional Design and Build Services for a Skateboard Park at Town Center Park City of Sunny Isles Beach RFP No. 09-11-01 Section 7 I Personnel To: Via: From: Date: Re: - City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 City Commission Norman S. Edelcup, Mayor Lewis J. Thaler" Vice Mayor Roslyn Brezin Commissioner Gerry Goodman Commissioner George "Bud" Scholl, Commissioner (305) 947-0606 City Hall (305) 792-1565 Fax (305) 947-2150 Building Department Rick Conner, City Manager Hans Ottinot, City Attorney Jane A. Hines, City Clerk MEMORANDUM Honorable Mayor and City Commission Rick Conner, City Manager Jorge L Vera, Assistant City Manager/ Service DiViSU- January 28, 2009 Award contract for skate park at Town Center RECOMMENDATION It is recommended that the City Commission approve the attach resolution awarding the proposed skate park at Town Center Park. REASONS The City issued and advertised a Request for Proposal No. 09-11-01 for the design and build services for a skate park located at Town Center Park. Nine responses were received of which three fIrms were short listed and interviewed. Staff determined that West Construction, Inc besides being the lowest responsible bid would provide the City the services that it needed. Therefore staff recommends that the bid be awarded to West Construction, Inc for the design and build of the skate park in an amount not to exceed $250,000 dollars. ADDITIONAL INFORMATION Funding for this project comes from account no.20-600-5675. be completed by Department Hetld To be completed by City Clerk's Otlice Funding l\PProe. Agenda Item No.: \Dl= m'ailablc: I-~~-LCL Finance / City Manager Commission Meeting Date: Denartment