Loading...
HomeMy WebLinkAboutReso 2013-2040RESOLUTION NO. 2013- 2,04 D A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING THE THIRD AMENDMENT TO DESIGN -BUILD AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND 4M INVESTORS, LLC., ATTACHED HERETO AS EXHIBIT "A'; AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Sunny Isles Beach is the owner of certain real property consisting of approximately 3.7 acres on Sunny Isles Boulevard; and WHEREAS, on July 21; 2011. via Resolution No. 2011 -1735, the City Commission entered into an Agreement with 4M Investors, LLC (Contractor) for certain parcels of real property located in the City which the City owns and upon which it intends to have constructed site improvements consisting of a Park and Parking Garage for Gateway Park located in the City of Sunny Isle Beach; and WHEREAS, Section 2.3 of the Agreement allows the Parties to amend the Contract Documents by written amendment; and WHEREAS, the City and Contractor agreed to enter into this Third Amendment to the Agreement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approval of Third Amendment to Design -Build Agreement. The City Commissioner hereby approves the Third Amendment to Design Build Agreement between the of City of Sunny Isles Beach and 4M Investors. LLC for a Park and Parking Garage in Gateway Park. attached hereto as Exhibit "A ". Section 2. Authorization of the Citv Manager and City Attorney. The City Manager and the City Attorney are hereby authorized to do all things necessary to effectuate the intent of this Resolution. Section 3. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 9h day of April 2013. S. Edelcup. Mayor 82013- 4%1 Investors 3rd Amend To Design Build Agmt Page 1 of 2 ATTE SIT. • 4, 0 Jane fA. Hines; CMC, City Clerk TO FORM =11 Vote: S- b Mayor Edelcup Vice Mayor Aelion Commissioner Gatto Commissioner Levin Commissioner Scholl Moved bv: //cp SGkiOLL Seconded by: L ^"Wu_ J Gflr['iD J/(Yes) (No) Yes) _(No) _j ,-(Yes) (No) t/(Yes) (No) Yes) (No) R2013- 4NI Investors Ratify Third Amend To Design Build Agml Page 2 of 2 art `FLO S O Crry OF SUN PX City Commission Norman S. Edelcup March 29, 2013 Mayor Via E -mail and U.S. Mail Isaac Aelion Joseph Milton vice Mayor 4 M Investors, LLC Jeanette Gotta 3211 Ponce de Leon Blvd., Suite 301 Commissioner Coral Gables, FL 33134 Jennifer Levin Commissioner Re: Third Amendment for Design —Build Agreement — Gateway Project George 'Bud" Scholl Commissioner Dear Mr. Milton: Christopher J. Russo Please find attached an executed original of the Third Amendment. Please note the City Manager City had made some minor revisions to the Third Amendment. The Mayor's initials Hans Ottinot are adjacent to the minor revisions. Please also note that the City has accepted certain City Attorney minor revisions that were made by you to the Amendment provided by the City. ,Jane A; Hines --City Cle.rkk`CMC Please be advised the Third Amendment is subject to the Approval of the City Commission. We intend to seek approval at a Special Commission meeting scheduled for April 9, 2013, at 6:30 p.m. Thank you for your cooperation in this matter. Sincerely Christopher J. Russo City Manager /attachments cc: The Honorable City Commission Hans Ottinot, City Attorney THIRD AMENDM ENTJO DESIGN -BUILD AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND 4M INVESTORS, LLC THIS THIRD AMENDMENT ( "Amendment) is made as of this 14 of % �/« M 3 by and among THE CITY OF SUNNY ISLES BEACH, FLORIDA (hereinafter "CITY ") and 4M INVESTORS LLC (hereinafter "CONTRACTOR "), hereinafter collectively referred to as Party or Parties. WHEREAS, the CITY and CONTRACTOR are parties to Design -Build Agreement ( "Agreement") executed on July 21, 2011. a full and complete copy of which is attached hereto and incorporated herein as Exhibit "A "; and WHEREAS. Section 2.3 of the Agreement allows the Parties to amend the Contract Documents by written amendment: and WHEREAS. the CITY and CONTRACTOR desire to execute a written amendment to the Agreement: and NOW, THEREFORE. in consideration of the terms and conditions contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the Parties agree as follows: The above - referenced recitals are true and correct and are incorporated herein. 2. All other terms of a particular provision in the Agreement not otherwise expressly modified herein shall remain in full force and affect. In the event of any conflict between the terms and conditions herein and those contained in the Agreement, as amended. then the terms herein shall supersede and govern. 3. Project Definition. Section 1.8 of the Agreement is amended to reflect the term "Project" as (a) 374 space Parking Garage Building with approximately a sixteen thousand (16000) square feet multi - purpose shell on the first floor of the Parking Garage: (b) Park: and (c) Performance Stage. The Project is generally described in the schematic proposal attached hereto as Exhibit "B," the Shopping List provided by the City which is attached hereto as Exhibit "C: 4. Revised GMP. This Paragraph amends Sections 1.13. and 5.1. of the Agreement. The revised Guaranteed Maximum Price (`GMP ") for this Project shall be Eighteen Million Seven Hundred Ten Thousand One Hundred Eighty Six Dollars ($18,710,186.00). This GMP shall include design fees and costs associated with the construction of the following: (a) the 374 space Parking Garage Building with the multi - purpose shell: (b) Park: and (c) Performance A4 SIB Stage. The GMP prior to this Amendment was Sixteen Million Five Hundred Thousand Dollars ($ 16,500,000.00). (a) This Paragraph amends Section 5.1.2 of the Agreement. The CITY shall receive a credit against the revised GMP in the amount of One Million Three Hundred Sixty Six Thousand Four Hundred Eighty Four Dollars and Seventy Cents ($1,366,484.70) for payments made for pay applications submitted for design services. As of the result of the credit, the revised GMP shall be reduced to a balance of Seventeen Million Three Hundred Forty Three Seven Hundred One Dollars and Thirty Cents (517,343,701.30). The sum total of One Million Two Hundred Thousand Dollars ($1.200,000.00) shall be attributed to the design phase of the Project. Ownership in the signed and sealed 100% "Issued for Construction" set of Plans and Specifications shall vest in the CITY once a permit is issued to commence construction. (b) This Paragraph deletes the text of Section 5.1.3 of the Agreement in its entirety. Section 5.1.3 relates to the selection of a restaurant operator by the Contractor. This is no longer a requirement of the Agreement. 5. Pedestrian Bridge. It is understood by the Parties that the CONTRACTOR shall not be responsible for the design and construction of the Pedestrian Bridge connecting the north side of the Park to the north side of the 826 West. Notwithstanding the foregoing. the CONTRACTOR agrees to cooperate with the CITY in providing any and all information (to the extent the information is available and within the care, custody or control of the CONTRACTOR) requested to facilitate the construction of the Pedestrian Bridge by another contractor. 6. Design Plans. The CITY agrees to supplement Article 6 of the Agreement as it relates to the plans and specifications prepared at 30 %. 60% and 90% of the Project. Once the CITY reviews the plans and specifications at the 30 %. 60% and 90% of the Project, the review by the CITY shall be deemed an acceptance of those particular plans and specifications for that percentage of the Project, whether it is 30 %, 60% or 90% and no substantial changes shall be made by the CITY thereafter. With that said, this acceptance by the CITY shall still not be deemed an acceptance or pre - approval of the plans or specifications by the Building Department for a building permit. (a) The Parties agree upon and will follow the values set forth on the Schedule of Values attached as Exhibit "D" to this Amendment. 7. Contract Time. Section 4.1 of the Agreement shall be amended to extend the Contract Time. Time is of the essence. The CONTRACTOR agrees to complete the design and construction of the entire Project no later than Three Hundred Sixty Five (365) days from the date of issuance of a building permit for the Project. The CONTRACTOR agrees to apply for a building permit for the Project with the Building Department of the City of Sunny Isles Beach no later than October 1. 2013. The CITY shall issue a Notice to Proceed for the construction of the Project upon the issuance of a building permit or no later than sixty (60) days from the date of filing an application for building permit for the Project, whichever occurs first. 2 8. Payment and Performance Bonds. Except for amendments herein, Article 10 shall remain in full force and effect and nothing herein in this Amendment shall be deemed to modify or change the duties and responsibilities of the CONTRACTOR as it relates to securing a payment bond and performance bond. Each bond must be for the full cost of the Project, excluding the design costs, as required under Section 10.1.2. This is a design build Project and has been since its inception when the CONTRACTOR signed the Agreement on July 21, 2011. The CITY does not waive and has not waived the CONTRACTOR's obligations to secure these necessary bonds. The payment bond is likewise necessary for all persons who are performing services for the CONTRACTOR on a subcontract basis as well as the subcontractors, material men, and other laborers who perform services for the CONTRACTOR during the construction of the Project. Section 10.1 of the Agreement requires the CONTRACTOR to secure these two bonds within fifteen (15) days after the issuance of the Notice to Award which in this instance was in 2011, but in any event prior to commencing the work on the Project. Section 10.1 of the Agreement is amended to require the CONTRACTOR to submit payment and performance bonds, each in the amount of Sixteen Million Two Hundred Forty Thousand Dollars ($16,240,000.000), upon the request of the CITY within five (5) days of issuance of the building permit for the Project. The CITY reserves all of its rights under Article 10 to demand that the CONTRACTOR execute and furnish to the CITY a performance and payment bond in a form reasonably acceptable to the CITY. (a) This Paragraph amends Section 10.2 of the Agreement. Payment and performance bonds shall continue in effect for one (1) year after final payment becomes due except as otherwise provided by law or regulation or by the Contract Documents with the final sum of said bonds reduced after final payment to an amount equal to fifteen percent (15 %) of the Guaranteed Maximum Price. The Parties agrees that Twenty Four Thousand Dollars ($24,000.00) of the GMP shall be for the costs associated with continuing the two bonds at the reduced rate for the time period set forth above. y 9. Site Investigation. Section 13.8 of the Agreement is deleted in its entirety and replaced with the following: CONTRACTOR understands and agrees that any information provided to it by the CITY. at any time, as to any aspect of the Project is not guaranteed. The CONTRACTOR acknowledges that it has satisfied itself as to the nature and location of the Work, the general and local conditions, particularly those bearing upon availability of transportation, disposal, handling and storage of materials, availability of labor, water. electric power, and roads, the conformation and conditions at the ground and all other matters which in any way affect the Work or the Guaranteed Maximum Price. The CONTRACTOR further acknowledges that it has satisfied itself as to the character. quality, and quantity of surface and subsurface materials to be encountered from evaluating information included in the Contract Documents. Any failure by the CONTRACTOR to acquaint itself with all the provided information will not relieve CONTRACTOR from responsibility for properly estimating the difficulty or cost thereof under the Contract Documents. 10. Construction Hours. The CITY agrees to allow the CONTRACTOR to work on Saturdays, if required. y ±14 3 9 11. Obligations. The Parties expressly agree that the CONTRACTOR shall not be released from any and all duties, obligations and/or liabilities arising under or related to the Agreement. 12. Conflict of Law. This Assignment shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to the conflicts of law or choice of law provisions thereof. 13. Signature. The Parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature. 14. Amendment. This Amendment shall be deemed fully executed on the date that the last Party signs it. SIGNATURES ON NEXT PAGE 4 IN WITNESYN IMREOF, CITY and CONTRACTOR agree to the above terms. Jane A. Rives, CMC, City Clerk CITY OF SUNNY ISLES BEACH, FLORIDA lNogan2S. Edelcup, Mayor 4M Investors, LLC, a Florida limited liability company ( "CONTRACTOR ") Jose Mil , Print Title 4M INVESTORS Signed and dated this � day of cd� . 2013. STATE OF FLORIDA COUNTY OF MIAMI -DADE The for yo m ment was acknowledged before me this day of AL 2013. by �/G3i �`/� �Dre� who is personally known to me or who has produced as identification Florida) SIB • Notary Public - State of BEATRR BAWEDANO • ;� "- !,,y COMMISSION 8 EE 633194 EXPIRES: June 17.2015 Bated R" NaaY Pthk UMa'�+Lers EXHIBIT "A" ORIGINAL DESIGN - BUILD AGREEMENT AND FIRST AND SECOND-AMENDMENTS S I, B DESIGN -BUII,D AGREII4HM PARK AND PARKING GARAGE THIS AGREEMENT (this °Agreement'), made and entered into the 2LS-� day of t1L`?, 2011 by and between: CLIENT: CITY OF SUNNY ISLES BEACH, FLORIDA a ninicapal corporation, and its assigns 18070 Collins Avenue Sunny Isles Beach, FL 33160 (hereinafter to referred to as "CITY'), and ME DESIGN BUILDER: 4M Investors, LLC a Florida corporation (hereinafter referred to as "CONTRACTOR') PROJECT: Paris and Parking Garage (hereinafter referred to as the "PROJECT" and which shall be further defined in this Agreement) This Agreement may refer to the CLIENT or CONTRACTOR, individually, or as "Party" or as "Parties." WHEREAS, the CITY, has identified a certain parcels of real property located in the CITY ( the " Land" specifically described in Exhibit "A'), which the CITY owns and upon which it intends to have constructed site improvements consisting of a Park and Parking Garage and all incidentals thereto including as further defined in this Agreement; WHEREAS, the CITY wishes to retain the CONTRACTOR to perform all design, construction and other services associated with and/or necessary to timely construct a code compliant Project within the Guaranteed Maximum Price (hereinafter referred to as "Desiga- Build" services which shall be further defined in this Agreement); WHEREAS, the CON'T'RACTOR agrees to complete the Design-Build services within the contract times and for a specified and fixed contract price as set forth in this Agreement; and WHEREAS, CITY has determined that entering into this Agreement with CONTRACTOR to provide the Design -Build services for this Project is in the best interests of the health, safety, and welfare of the citizens and residents of Miami -Dade County and of the CITY of Sunny Isles Beach, Florida; and NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and rmdataknigs and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties do mutually covenant and agree as follows: SIB SIB ARTICLE 1- DEFINITIONS ARTICLE 1- DEFT MONS Wherever used in this Agreement or in the other Contract Documents the following terms have the meaning indicated which are applicable to both the singular and plural thereof: 1.2 Building Department - The Building Department of the CITY of Sunny Isles Beach, Florida, or its authorized employees. 1.3 Change Order - A document which is signed by the CONTRACTOR and CITY, through its duly designated and formally authorized agent, which authorizes the performance of the Extra Wodr. The CONTRACTOR shall not perform Extra Work of any kind, however c iaiacterrzed, for which it expects to claim additional compensation without written authorization from the CITY. if the CITY authorizes the CONTRACTOR to perform Extra Work, then prior to performing the Extra Work, the C[rY and CONTRACTOR shall enter into a written Change Order specifying the services or work to be performed, the additional Contract Time that may be required and the compensation to be paid for this Extra Wor1L Any Extra Work performed by the CONTRACTOR without the CITY'S prior written approval shall not be compensable, without exception. The CONTRACTOR intentionally, knowingly and voluntarily waives any claim for unjust enrichment or quantum mean with respect to any work performed in the absence of a written Change order. Any waiver of this provision must be in writing and signed by both Parties and in no event shall such written waiver extend to any subsequent event. 1.4 CITY - The C[rY Commission of the CITY of Sunny Isles Beach, Florida and its designated official authorized to provide approval or consent with respect to this Agreement LS City Manager- City Manager of the City of Sunny Isles Beach or his designee. 1.6 Contract Documents - The Contract Documents consist of the Drawing, Plans and Specifications, Non - Collusive Affidavit, Public Entity Crimes Form, this Agreement, Notice of Award, Notice to Proceed, Certificate(s) of Insmance, Payment and Performance Bonds and any additional documents which are required to be submitted under this Agreement, and all Written Amendments and Change Orders issued on or after the effective date of the Contract. 1.7 Defective - An adjective which when modifying the Work refers to WcA that is defective under Applicable Building Codes and General Industry Standards, faulty or deficient, or does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contact Documents, or has been damaged prior to final payment 1.8 Design -Build Work — Shall be defined to include Park and Parlung Garage, all design services associated with and/or necessary to timely construct the code compliant Project and construction services associated with and/or necessary to timely complete the Project within the Guaranteed Maximum Price, including, but not limited to, all site related work without limitation, SIB yIB famishing all labor and services, the procurement of all equipment and materials reasonably inferable from the Contract Documents that will be used and/or incorporated into the Project. 1.9 Drawings (also referred to as "Plans") — shall be defined to mean the "Issued for Construction" design package, which are signed and sealed by a Florida Licensed Engineer and which are sufficient to secure a permit, that the CONTRAC'T'OR is obligated to produce to the complete satisfaction of the CITY and which is deemed one hundred percent (100%) complete for the construction of the entire Project. 1.10 Effective Date of the Agreement -The date indicated in the Agreement on which it becomes effective, but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 1.11 Extra Work - shall be defined to mean work totally outside the scope of the Drawings, Specifications and/or the contemplation of the Contract Documents. All extra work shall require an executed change order from the designated official authorized to provide the approval. Any Extra Work performed by the CONTRACTOR without the CITY'S prior written approval shall not be compensable without exception. Any waiver of this provision must be in writing and signed by both Parties and in no event shall such written waiver extend to any subsequent event. 1.12 Field Order - A written order issued by City Manager or designee which orders minor changes in the work but which does not involve a change in the Guaranteed Maximum Price or the Contract Time. 1.13 Guaranteed Maximum Price — shall be defined to mean that the CONTRACTOR warrants and guarantees that the maximum price to the CITY for all of the Design -Build Work on the Project shall be Ten Million Dollars ($10,000,000.00) (hereinafter referred to as "GMP" and/or "Contract Price"). The GMP is deemed to include costs, fees, prices, expenses, overhead, profit, including all sales, use, consumer and other taxes mandated by applicable law, and any escalation associated therewith with respect to all equipment material and labor through the completion of the entire Project. A portion of the GMP shall be attributed to the design phase of the Project and the remainder attributed to the construction phase. 1.14 Notice of Award - The written notice by CITY to the CONTRACTOR stating that the CONTRACTOR is awarded the privilege to design and construct the Project on the condition that the Parties are able to negotiate, to the CITY'S complete satisfaction, and execute an Agreement for the design and construction of the entire Project. 1.15 Notice to Proceed - A written notice given by CITY to CONTRACTOR fixing the date on which the Contract Time will commence to nun and on which CONTRACTOR shall start the design and construction phases under this Agreement. 1.16 Specifications — Shall be defined to mean the written technical descriptions, that accompany the Drawings of all materials, equipment and other construction systems, including the quantity and quality associated therewith, as well as other standards and workmanship as applied to SIB SIB the Work and certain administrative details applicable thereto that the CONTRACTOR is obligated to prepare to the complete satisfaction of the CrTY which is deemed one hundred percent (100%) complete for the construction of the entire Project 1.17 Project — The Project means the total and complete design and construction a Park and a three hundred eight (308) space Parking Garage consistent with structural design and aesthetic standards of City owned garage located at Heritage Park, associated landscape, irrigation work, underground drainage system, and as generally described in a schematic proposal submitted to the CrTY on April 21, 2011, and all other incidentals thereto identified by the CITY during the design and construction phases of the Project which the CrTY concludes, at its sole discretion, are required to be included complete the Project. The schematic proposal is attached hereto as Exhibit ..A„ 1.18 Subcontractor - An individual, firm or corporation having a direct Contract with CONTRACTOR or with any other Subcontractor for the performance of a part of the Work at the site. 1.19 Su tier - A manufacturer, fabricator, supplier, distributor, materialman or vendor. 1.20 Work — Shall be defined to include all of the services under the definition of Design- Build. 1.21 Work Change Directive - A written directive to CONTRACTOR issued on or after the Effective Date of the Agreement and signed by CUY and recommended by City Manager or designee ordering an addition, deletion or revision in the Work. A Work Change Directive shall not change the Guaranteed Maximum Price or Time, but demonstrates a desire that the parties expect that the change directed or documented by a Work Change Directive may be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Guaranteed Maximum Price or Contract Time. Notwithstanding the foregoing, the CONTRACTOR understands and agrees that the decision by the CITY to sign a Change Order is completely and totally within the CITY'S discretion and that if the CrTY decides not to execute a Change Order, the CONTRACTOR shall not be entitled to recover any compensation whatsoever for the work performed under the Work Change Directive. The CONTRACTOR understands and agrees that any work, however characterized, performed by the CONTRACTOR without the CITY'S prior written approval shall not be compensable, without exception. The CONTRACTOR intentionally, knowingly and voluntarily waives any claim for unjust enrichment or quantum meruit with respect to any work performed in the absence of a written Change Order. Any waiver of this provision must be in writing and signed by both Parties and in no event shall such written waiver extend to any subsequent event. 1.22 Written Amendment - A written amendment of the Contract Documents, signed by CITY and CONTRACTOR on or after the Effective Date of the Agreement. a SIB SIB ARTICLE 2 - CONTRACT DOCUMENTS ARTICLE 2 - CONTRACT DOCUMENTS 2.1 Enumeration of Contract Documents. The Contract Documents which comprise the entire agreement between CrrY and CONTRACTOR are attached to this Agreement, made a part hereof and consist of the following. 2.1.1 This Agreement (pages 1 -_ + Exhibits A & B + other items and documents identified on the attached Enumeration of Contract Documents). 2.1.2 Construction performance bond. 2.1.3 Construction payment bond. 2.1.4 Drawings and Specifications. 2.1.5 Insurance certificate. 2.1.6 Notice of Award and Notice to Proceed. 2.1.7 Clarifications and Exclusions. 2.1.8 All applicable provisions of State, Federal or local law. 2.1.9 Any modification, including all Change Orders, Field Orders and Written Amendments duly delivered after execution of Agreement. 2.2 Entire Agreement and Contract Interpretation. The Contract Documents comprise the entire agreement between CITY and CONTRACTOR concerning the Work. This Agreement shall be governed by the laws of the State of Florida, without regard to its conflict of law provisions. The Contract documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with the express qualification that the Contract Documents must be read in such a manner as to afford the greatest possible protection to the CITY, including, but not limited to, ensuring that all of the Design - Build Work for the Project is completed within the warranted Guaranteed Maximum Price. 2.3 Amending and Supplementing Contract Documents. The Contract Documents may be amended to modify the terms and conditions of the Agreement in one or more of the following ways: 2.3.1 A Change Order; 2.3.2 A Written Amendment; 5 SIB SIB 2.3.3 A Work Change Directive. 2.4 Supplements, Minor Variations or Deviations. CITY will not authorize any Change Orders to the Contract Documents, except in a manner set forth in this Agreement and allowed by law. CONTRACTOR covenants and agrees that CITY shall not be responsible for the costs above those set forth herein unless the same are set forth in a Change Order. Any and all Change Orders issued by the authority of an entity not a party to this Agreement shall not be compensated by CITY, and shall not constitute a Change Order. 2.5 Representation of CONTRACTOR. Execution of the Contract by the CONTRACTOR is a representation that CONTRACTOR has visited the site and become familiar with the local conditions under which the Work is to be performed. 2.6 Before Commencing Operation. Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon. ARTICLE 3 — SCOPE OF WORK 3.1 Scope of Work. 3.1.1 The CONTRACTOR shall provide services for the designing and construction of the Project as described in the Contract Documents with all required minimum standards of construction as inquired by the Contract Documents. When words which have a well -known technical or trade meaning are used to describe Work, materials or equipment such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of contract award, except as may be otherwise specifically stated. 3.1.2 The CONTRACTOR agrees to provide each and every item of expense necessary for the design and construction of the Project in accordance with and within the scope of the Guaranteed Maximum Price. It is agreed between the Parties that the Contract Documents describe a functionally complete Project consisting of total design performed by the design professional and construction to be completed in accordance with the Contract Documents. It is further agreed that the CONTRACTOR warrants that any and all Work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result will be supplied by the CONTRACTOR at its own costs within the Guaranteed Maximum Price, whether or not specifically called for. The CONTRACTOR warrants and accepts that any and all repair work required during the construction phase, irrespective of the cause, shall be deemed the responsibility of the CONTRACTOR and included in the Guaranteed Maximum Price. The 6 SIB vIB CONTRACTOR warrants and accepts that any and all work necessitated by inspections which is not prescribed in the Plans or Specifications, but necessitated to bring the project into conformity with the Contract Documents and all applicable laws, codes, regulations, procedures and/or considered inside the contemplation of the Contract Documents shall be deemed the responsibility of the CONTRACTOR and included in the Guaranteed Maximum Price. The CONTRACTOR warrants and accepts that all other work of any kind, however characterized, not prescribed in the Plans or Specifications, but necessitated to bring the project into conformity with the Contract Documents and all applicable laws, codes, regulations, procedures and/or considered inside the contemplation of the Contract Documents shall be deemed the responsibility of the CONTRACTOR and included in the Guaranteed Maximum Price. Finally, the CONTRACTOR accepts, understands and agrees that this provision of the Agreement is a material inducement for the CITY to enter into this Agreement and that the CITY has indeed relied on this particular provision in making its decision to enter into this Agreement. ARTICLE 4 - CONTRACT TRUE 4.1 Time is of the Essence of this Contract. CONTRACTOR agrees to obtain site plan approval for the Project from the City Commission of the City of Sunny Isles Beach no later than December 31, 2011. CONTRACTOR further agrees to apply for a building permit for the Project with the Building Department City of Sunny Isles Beach no later than June 30, 2012. The Work shall be shall be substantially completed no later than Three Hundred Ten (310) days from Notice to Proceed, or the issuance of a Temporary Certificate of Occupancy (` TCO "), whichever event occurs fast. The Notice to Proceed shall be issued for the construction of the Project upon the submittal of a application for building permit for the Project or the approval of 90% percent design by the CITY, whichever occurs first. The CONTRACTOR shall commence on site construction of the Project no later than five (5) days after the City's issuance of the Notice to Proceed. CONTRACTOR agrees that all Work shall be prosecuted regularly, diligently and uninterrupted at such rate of progress as will ensure full completion thereof within the time specified. Failure to achieve timely, substantial and/or final completion shall be regarded as a breach of this Agreement and subject to the appropriate remedies including but not limited to, liability for liquidated damages in accordance with Paragraph 12.3 herein. ARTICLE 5 CONTRACT SUM - GUARANTEED MAXIMUM PRICE 5.1 Guaranteed Maximum Price. 5.1.1 CITY shall pay CONTRACTOR in current funds as full compensation for the performance of all the Work for the design and construction of the Project which shall consist of a Park and a three hundred eight (308) space Parking Garage which is subject to additions and deductions by Change Order or Written Amendment as provided in this Agreement, and subject further to possible reductions as set forth in Article 6.2.1 below, the sum of ($10,000,000.00) Ten Million Dollars (the "Guaranteed Maximum Price"). This Article is subject to the terms and conditions of Article 20 hereof. SIB SIB 5.1.2 The initial sum total of ($950,000.00,) Nine Hundred Fifty Thousand Dollars shall be attributed to the design phase, with the remaining amount attributed to the construction phase. Ownership in the signed and sealed 100% "Issued for Construction" set of Plans and Specifications shall vest in the CITY once a permit is issued to commence construction. 5.1.3 The CONTRACTOR understands that the CITY is concerned with ensuring that an acceptable vendor is found to lease the high -end retail restaurant space to be constructed as part of the Project in accordance with a LeasefDevelopment Agreement. To that end, the CONTRACTOR agrees and warrants that it shall be the CONTRACTOR'S responsibility to locate and secure a vendor, acceptable to the CITY, to occupy the high -end retail restaurant space within six months from the date that this Agreement is signed or approved by the City Commission. Notwithstanding anything to the contrary in this Agreement, the CONTRACTOR agrees that if the CONTRACTOR is unable to locate and secure such a vendor, that the CITY shall have the absolute right to convert the proposed retail restaurant area ( "leased area ") to open/park space. If the leased area is converted to park area, the CONTRACTOR shall provide the CITY with a fixed price for the design and construction of the leased area to a park area. The fixed price shall be provided no later than five (5) days of approval of this Agreement by the City Commission. The Guaranteed Maximum Price may be increased to reflect the fixed price design and construction of the leased area. ARTICLE 6 CONTRACTOR'S RESPONSIBELITIES 6.1 Responsibilities - Construction Phase. 6.1.1 Consultation: CONTRACTOR will schedule and attend regular meetings and will consult with Cfl'Y regarding site use and improvements, and the selection of materials, building systems, and equipment. 6.1.2 Subcontractors and Suppliers: CONTRACTOR shall develop subcontractor interest in the Project and shall famish to the CITY, information, a list of subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design. The receipt of such list shall not require the CITY to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the CITY later to object to or reject any proposed subcontractor or supplier, and is furnished by CONTRACTOR to CITY for informational purposes only. Subject to the rights of the CITY to purchase supplies and materials in furtherance of the sales tax program as described in Article 6.16 hereof, CONTRACTOR shall have authority in awarding subcontractors and purchase orders. 6.1.3 Extent of Responsibility: CONTRACTOR shall be responsible for the architecture, engineering, construction and completion of the Project. 6.2 Guaranteed Maximum Price. 6.2.1 The Guaranteed Maximum Price is also subject to further reduction by an amount calculated by multiplying the applicable Florida sales tax rate times the amount of material and supplies purchased by the CITY under the sales tax program described in Article 6.16 hereof. The 8 SIB 3 86 Guaranteed Maximum Price may be modified only as herein provided including possible changes as a result of Extra Work as may be documented in a City Commission approved Change Orderls]. 6.2.2 The Guaranteed Maximum Price shall include in the Cost of Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established. 6.2.3 The Guaranteed Maximum Price shall include all direct and indirect costs associated with the design and construction phases of the Project, including but not limited to, procurement of materials and equipment, labor, overhead, profits, contingency, permits, insurance, performance and payment bonds, utilities, fees, and taxes. 6.3 Administration. 6.3.1 The CONTRACTOR shall schedule and conduct weekly meetings at which the CITY and CONTRACTOR, and appropriate Subcontractors can discuss the status of the Work. The CONTRACTOR shall prepare and promptly distribute meeting minutes. 6.3.2 The CONTRACTOR shall provide monthly written reports to the CITY and designated consultants on the progress of the entire Work. 6.3.3 The CONTRACTOR may develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. 6.4 Design Responsibilities. 6.4.1 CONTRACTOR shall prepare preliminary design documents consisting of preliminary drawings, specifications and other documents to fix and describe the size, quality, quantity and characters of the Work, its architectural, structural, mechanical and electrical systems and the materials and other elements of the Work. 6.4.1.1 CONTRACTOR shall submit the preliminary design documents to CITY for review and authorization to proceed with the final design preparation. The CONTRACTOR understands and agrees that the CITY, may at its sole discretion, require changes to the preliminary design. All such changes shall be made at the sole and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price, except for changes outside the scope of the Work Upon authorization from the CITY to proceed with the commencement of the entire design, CONTRACTOR shall begin to prepare drawings, schedules, specifications, technical criteria, written descriptions, design data, construction documents and diagrams setting forth in detail the requirements for the complete construction of the Work. The preparation of this work shall be done in three phases: 30% thirty percent, 60% sixty percent and 90% ninety percent. 6.4.1.2 The design services shall be performed by qualified architects, engineers and other professionals duly licensed by the State of Florida and holding current certificates of registration under the laws of the State of Florida. 9 SIB BIB 6.4.1.3 CONTRACTOR shall prepare and submit for review to the CITY a 30% design package consisting of drawings and specifications for the site work, foundations, utilities, irrigations systems and other related incidentals. The CONTRACTOR understands and agrees that the CITY, may at its sole discretion, require changes to the 30% percent design. All such changes shall he made at the sole and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price, except for changes outside the scope of the Work CONTRACTOR understands and agrees that any information provided to it by the CITY as to any aspect of the Project is not guaranteed. In particular, and without limiting the foregoing disclaimer, identifying the location of existing utilities shall be the CONTRACTOR'S responsibility including identifying the location, character and depth of the existing utilities. Extreme caution shall be exercised by the CONTRACTOR to eliminate any possibility of any damage to utilities resulting from the CONTRACTOR'S activities. Any and all such damage shall be the responsibility, of the CONTRACTOR and all work associated with repairs related to such damage shall be completed to the CrfY'S satisfaction and at the sole and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price. The location of all overhead utilities shall be verified. The CONTRACTOR shall be responsible for determining which poles will need shoring during excavation and shall provide such shoring and support as is required. The CITY'S review of the design plans shall not be deemed an acceptance of the plans nor be deemed a pre- approval related to the permitting process that the plans will be required to undergo with the Building Department. 6.4.1.4 CONTRACTOR shall prepare and submit for review to the CITY a 60% design package consisting of drawings and specifications for the structural, architectural and landscaping portion of the Project. The CONTRACTOR understands and agrees that the CITY, may at its sole discretion, require changes to the 60% percent design. All such changes shall be made at the sole and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price, except for changes outside the scope of the Work. CONTRACTOR understands and agrees that any information provided to it by the CfTY as to any aspect of the Project is not guaranteed. The CITY'S review of the design plans shall not be deemed an acceptance of the plans nor be deemed a pre- approval related to the permitting process that the plans will be required to undergo with the Building Department. 6.4.1.5 CONTRACTOR shall prepare and submit for review to the CITY a 90% design package consisting of drawings and specifications for the mechanical, plumbing, electrical, equipment, instrumentation and all other related work necessary to have a fully functional and completed Project. The CONTRACTOR understands and agrees that the CITY, may at its sole discretion, require changes to the 90% percent design. All such changes shall be made at the sole and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price, except of changes outside the scope of the Work CONTRACTOR understands and agrees that any information provided to it by the CITY as to any aspect of the Project is not guaranteed. The CITY'S review of the design plans shall not be deemed an acceptance of the plans nor be deemed a m SIB SIB pre- approval related to the permitting process that the plans will be required to undergo with the Building Department. 6.4.1.6 CONTRACTOR shall prepare and submit for review to the CITY an "Issued for Construction" design package, which necessarily includes Plans and Specifications, that the CONTRACTOR is obligated to produce to the complete satisfaction of the CITY which is deemed one hundred percent (100%) complete for the construction of the entire Project, which are signed and sealed by a Florida Licensed Engineer and which are sufficient to secure a permit for the construction of the entire Project. The CITY shall not make any changes to the Plans and Specifications at 100% percent design if CONTRACTOR satisfies all comments made by the CITY at 90% percent design.The CITY'S review of the design plans shall not be deemed an acceptance of the plans nor be deemed a pre- approval related to the permitting process that the plans will be required to undergo with the Building Department. The construction phase of the Project shall not commence until the Building Department has issued a permit based on the 100% "Issued for Construction' design package. 6.4.2 Once the 100% completed "Issued for Construction" design package has received a permit from the Building Department to commence construction, these Drawings and Specifications shall then be considered part of the Contract Documents. 6.4.3 The CONTRACTOR agrees that any and all revisions that the Building Department may require to the "Issued for Construction" Drawings and Specifications shall be the responsibility of the CONTRACTOR and be so revised at the sole and exclusive cost of the CONTRACTOR and be deemed part of the Guaranteed Maximum Price. 6.4.4 The CONTRACTOR shall provide to CITY three (3) record sets and three (3) working sets of full size prints of the Drawings and Specifications. CONTRAC'T'OR shall signify, by affixing an endorsement (seal/signature, as appropriate) on every sheet of the record set, that the Work shown on the endorsed sheets was produced by CONTRACTOR. With the record set of prints, CONTRACTOR shall submit a final set of approved design computations to the CITY. The computations shall be bound in an 8 1/2" by I V format and shall be endorsed (seal/signature as appropriate) by CONTRACTOR. 6.4.5 All final design documents, plans, reports, studies and other data prepared by CONTRACTOR shall bear the endorsement of a person duly registered in the appropriate professional category. Notwithstanding the foregoing, CONTRACTOR agrees to provide at least ten (10) days notice to the City Manager prior to submittal of any plans, or drawings for review by the Building Department. 6.5 Liability for use of Work for Intended Purpose. As an inducement for CITY to enter into this Agreement, CONTRACTOR represents that it has expertise in professional design services and the construction of public construction projects by qualified and licensed general construction contractors. The CONTRACTOR'S expertise includes estimating the total costs associated with the final completion of an entire design-build job. Such costs associated with the estimation and calculation, include, SIB SIB but are not limited to, consideration of material, equipment and labor and the escalation of the Costs of each in association with the realistic estimated duration of the project, the time of year, the weather patterns associated with the location of the project, the labor market for the design and construction associated with the location of the project, the type of facility, and consideration of the time associated with the design and permitting (including all associated delays that accompany a review through a municipal building department) of a complete set of plans and specifications. In reliance upon the above referenced representations, the CrFY hired the CONTRACTOR to provide professional design services and complete construction services. CONTRACTOR shall be liable for any defective or negligent design, whether patent or latent, and/or any negligence, strict liability or broach of other legal duty to the extent and in the manner as hereafter set forth. 6.6 Shop Drawings and Samples. 6.6.1 CONTRACTOR shall prepare and submit any submittals or shop drawings required for permitting to the authority having jurisdiction, and shall furnish a copy to the City Manager. 6.6.2 CONTRACTOR shall prepare and maintain shop drawings and submittals referenced in Paragraph 6.6.1 and make them available for review by CffY. 6.6.3 Review of the shop drawings by CrTY shall be general and shall not be deemed an acceptance of the shop drawings and shall not relieve the CONTRACTOR of the responsibility for the accuracy of such drawings, nor for the proper fitting and construction of the work, nor for the furnishing of material or work required by the Agreement and not indicated on the drawings. 6.7 Supervision and Superintendence. CONTRACTOR shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying CONTRACTOR'S best skill, attention and expertise. CONTRACTOR shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures of construction. CONTRACTOR shall be responsible to see that the finished Work complies with the Contract Documents. 6.8 Proiect Mana eg ment. 6.8.1 During the progress of on -site construction, CONTRACTOR shall provide full time (defined to be 8:00 a.m. through 5:00 p.m. Monday through Friday, legal holidays excluded) competent project supervision and any necessary assistants who shall not be replaced without written notice to CITY. The superintendent will be CONTRACTOR'S representative at the site. 6.8.2 The day to day management of the Project's subcontractors and vendors contracts, schedules and requests for payment shall be by a competent project manager to whom the superintendent shall report. The project manager will conduct regularly scheduled project meetings for the purpose of project coordination and communication. The project manager shall be included in the cost of the Work. 12 6.9 labor. 6.9.1 Construction services shall be performed only by qualified construction contractors licensed to do business in the State of Florida and suppliers, selected and paid by the CONTRACTOR. 6.9.2 CONTRACTOR shall provide and pay for competent, suitably qualified personnel to perform the work as required by the Contract Documents. CONTRACTOR shall not permit employment of unfit persons or persons not skilled in tasks assigned to them CONTRACTOR shall at all times maintain good discipline and order at the site. 6.10 Materials. 6.10.1 Unless otherwise specified herein, CONTRACTOR shall famish, pay for and assume full responsibility for all materials, equipment, transportation, machinery, tools, appliances, water, heat, utilities and all other facilities and services necessary for the furnishing, performance, testing, start-up and proper completion of the Work. 6.10.2 CONTRACTOR warrants that all materials and equipment shall be new and of good quality and that the work will be free from defects in material and workmanship whether patent or latent in nature. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable Supplier except as otherwise provided in the Contract Documents. 6.11 Concerning Subcontractors. Suppliers, and Others. 6.11.1 Prior to the commencement of each phase of the Work hereunder, upon request, CON'T'RACTOR shall furnish, in writing to CITY, the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for the relevant phase of the work. CITY shall advise CONTRACTOR, in writing, of any proposed person or entity to which CITY has a reasonable objection. Failure of CITY to reply within seven (7) business days from the date of receipt of the written notice shall constitute notice of no reasonable objection. CONTRACTOR shall not contract with a proposed person or entity to whom CITY has made a reasonable and timely objection. If CITY has reasonable objection to a person or entity proposed by CONTRACTOR, CONTRACTOR shall propose another to whom CITY has no reasonable objection. CONTRACTOR shall not change a subcontractor, person or entity previously selected if CITY makes reasonable objection to such change. 6.11.2 CONTRACTOR shall be fully responsible to CITY and shall indemnify and hold the CITY harmless for all acts and omissions of the CONTRACTOR'S employees, Subcontractors, Suppliers and other persons directly or indirectly employed by his Subcontractors, suppliers and of persons for whose acts any of them may be liable and any other persons and organizations performing or fumishing of the Work under a direct or indirect Contract with CONTRACTOR. 6.11.3 Nothing in the Contract Documents shall create any Contractual relationship between CrI Y and any such Subcontractor, supplier or other person or organization, nor shall it 13 S�8 olo create any obligation on the part of CITY to pay or to see to the payment of any moneys due any such Subcontractor, supplier or other person or organization except as may otherwise be required by laws and regulations. 6.11.4 All Work performed for CONTRACTOR by a Subcontractor will be pursuant to an appropriate agreement between CONTRACTOR and the Subcontractor which specifically binds the Subcontractor to the applicable terns and conditions of the Contract Documents for the benefit of C1TY. 6.12 Patent Fees and Royalties. CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others. 6.13 Permits. The CONTRACTOR agrees that it shall obtain and pay for all permits, approvals, licenses, government charges and inspection fees as reasonably inferable from the Con tract Documents that will be required to complete the Project, except permit fees or other fees charged by the CITY. 6.14 Laws and Regulations. CONTRACTOR shall comply with and give all notices requited by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to the performance of the Work. CITY shall not be responsible for monitoring CONTRACTOR'S compliance with any laws and regulations. CONTRACTOR shall promptly notify CITY if the Contract Documents are observed by CONTRACTOR to be at variance therewith. 6.15 Risk of Loss: Title. The risk of loss, injury or destruction shall be on CONTRACTOR until Final Completion and acceptance of the Project. Title to the Work shall pass to CITY upon Final Completion and acceptance of the Work by CITY. 6.16 Taxes. CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to be paid by CONTRACTOR in accordance with the laws and regulations of the State of Florida and its political subdivisions. CONTRACTOR is responsible for reviewing the pertinent state statutes involving such taxes and complying with all requirements. CITY and CONTRACTOR shall jointly cooperate so that CrrY may order and pay for goods and supplies which will be incorporated into the Work; the goods and supplies that may be purchased by CITY shall be approved in advance by the parties, and shall generally be only those that cost more than $10,000 14 SIB vlQ for the quantity or amount being ordered under the particular purchase order. Even though the CITY may purchase such goods and materials, the same shall be stored at the site in the same manner as goods and materials purchased by the CONTRACTOR, and CONTRACTOR shall bear the risk of loss. As compensation to the CONTRACTOR for accounting services respecting the sales tax savings program, an amount equal to one -sixth of the tax savings shall be paid to the CONTRACTOR. CITY hereby agrees to promptly purchase any materials requested by CONTRACTORS pursuant to this Section. The CITY and CONTRACTOR shall develop a list of items or materials that can be purchased under section 6.16. 6.17 Use of Premises. 6.17.1 CONTRACTOR shall confine equipment, the storage of materials and equipment and the operations of workers to the Project site and areas identified in and permitted by the Contract Documents and shall not unreasonably encumber the premises with equipment or other materials. CONTRACTOR shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any land or areas contiguous thereto, resulting from the performance of the Work. Should any claim be made against CITY by any such owner or occupant because of the performance of the Work, CONTRACTOR shall promptly attempt to settle with such other party by agreement or otherwise resolve the claim. The general indemnification provided elsewhere in this Contract specifically applies to claims arising out of CONTRACTOR'S use of the premises. 6.17.2 During the progress of the Work, CONTRACTOR shall at all times keep the premises free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the completion of the Work CONTRACTOR shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, equipment and machinery, and surplus materials, and shall leave the site clean and ready for occupancy by CITY. CONTRACTOR shall restore to original condition all property not designated for alteration by the Contract Documents. 6.17.3 CONTRACTOR shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall CONTRACTOR subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.18 Access to Work. CONTRACTOR shall provide CITY, CITY'S consultants, representatives and personnel, independent testing laboratories and governmental agencies with jurisdictional interests with access to the work at reasonable times for their observation, inspection and testing. CONTRACTOR shall provide them proper and safe conditions for such access; and shall advise them of CONTRACT'OR'S site safety procedures and programs so that they may comply therewith. 15 6.19 Safety and Protection. 6.19.1 CONTRACTOR shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work to prevent damage, injury or loss to all employees on the work site and other persons and organizations who may be affected thereby; all the Work and materials and equipment to be incorporated therein, whether in storage on or off the site; and other property at the site or adjacent thereto. 6.19.2 CONTRACTOR shall comply with all applicable laws and regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. 6.20 Indemnification. 6.20.1 GENERAL INDEMNERCATION: The parties agree that one percent (I %) of the total compensation paid to CONTRACTOR for the Work under this Agreement shall constitute specific consideration to CONTRACTOR for the indemnification to be provided under this Agreement. CONTRACTOR shall indemnify, defend, save and hold harmless the CITY and the Cn Y's elected officials, public employees, consultants and separate contractors, any of their subcontractors, sub - subcontractors, agents and employees from and against any and all claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or related to and/or resulting from performance of the Work. These indemnification obligations shall include claims, damages, losses or expenses (1) that are attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, and/or (2) to the extent such claims, damages, losses or expenses are caused in whole or in part by negligent acts or omissions of the CONTRACTOR'S, anyone directly or indirectly employed by either or anyone for whose acts either may be liable, regardless of whether or not they are caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Article. 6.20.2 In claims against the CITY or its consultants and its contractors, their subcontractors, sub - sub - contractors, agents or employees by an employee of the CONTRACTOR, its contractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Article 19.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Cost, or a CONTRACTOR's contractor, under workers' or workmen's compensation acts, disability benefits acts or other employee benefit acts. 6.21 Patent and Convright Indemnification. CONTRACTOR agrees to indemnify, defend, save and hold harmless the CITY, its officers, agents and employees, from all damages, liabilities, losses, claims, fines and fees, and from any and all suits and actions of every name and description that may be brought against CITY, its officers, agents and employees, on account of any claims, fees, royalties, or costs for any invention or patent and/or for the infringement of any and all copyrights or patent rights claimed by any 16 SIB UIQ person, firm, or corporation. CONTRACTOR shall pay all claims, losses, liens, settlements or judgments of any nature whatsoever in connection with the foregoing indemnifications including, but not limited to, reasonable attorney's fees and costs. CITY reserves the right to select its own legal counsel to conduct any defense in any such proceeding and all costs and fees associated therewith including any costs or fees of an appeal shall be the responsibility of CONTRACTOR under the indemnification agreement. Nothing contained herein is intended nor shall it be construed to waive CITY'S rights and immunities under the common law or Florida Statute 768.28 as amended from time to time. This obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party described in this Paragraph and its subparts. 6.22 Survival of Obligations. All representations, indemnifications, warranties and guarantees made in, required by, or given in accordance with this Agreement, as well as all continuing obligations indicated in the Contract Documents, shall survive final payment, completion and acceptance of the work and termination or completion of this Agreement. 6.23 Correction or Removal of Defective Work. If required by CITY, CONTRACTOR shall promptly, as directed, either correct all defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by CITY, remove it from the site and replace it with non- defective Work. CONTRACTOR shall hear all direct and indirect costs of such correction or removal (including but not limited to fees and charges of engineers, architects and other professionals) made necessary thereby. ARTICLE 7 - CITY'S RESPONSIBILITIES 7.1 CITY shall famish data required of CITY under the Contract Documents promptly. The CONTRACTOR understands and agrees that any information provided to it by the CITY as to any aspect of the Project is not guaranteed. 7.2 CONTRACTOR shall secure all necessary easements, assessments, and charges required for construction, use, or occupancy of permanent structures or permanent changes in existing facilities. 7.3 If the Work is defective, or CONTRACTOR fails to supply sufficient skilled workers or suitable materials or equipment, or fails to famish or perform the Work in such a way that the completed Work will conform to the Contract Documents, CITY may order CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of CITY to stop the Work shall not give rise to any duty on the part of CITY to exercise this right for the benefit of CONTRACTOR or any other party. 17 ARTICLES — CITY MANAGER 8.1 City Manager will be Crays contact person during the construction period and until final payment is due to CONTRACTOR. 8.2 Visits to Site. City Manager may, at the City Manager's sole discretion, make visits to the site to observe the progress and quality of the executed work. 8.3 Authorized Variations in Work. City Manager may authorize minor variations in the Work from the technical requirements of the Contract Documents which do not involve an adjustment in the Guaranteed Maximum Price or the Contract Time and are consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order and will be binding on CITY and on CONTRACTOR who shall perform the work involved promptly. 8.4 Reiecting Defective Work. If City Manager becomes aware of any fault or default in the Work, he may give written notice thereof to CONTRACTOR. The failure to provide notice shall not waive the warranty of the CONTRACTOR that the work is to be free of defect whether latent or patent. ARTICLE 9 - BUIIAING DEPARTMENT'S RESPONSIBUXFIES 9.1 It is understood and agreed by the CONTRACTOR that the Building Department and its inspectors are professionals who are dedicated to providing efficient and courteous service to all residents, professionals, contractors and the public at large through plans processing, inspections and building maintenance, which ensures the protection of the citizens and enhances the quality of life within the CITY. For the purposes of this Project the Building Department is not a surrogate of the CITY. All decisions by the Building Department as to whether some aspect of the Project is or is not in compliance with the Florida Building Code, Florida Fire Prevention Code and/or any other applicable codes, regulations, laws and ordinances are independent of and not deemed to be an act or decision by the Crl"f. The CONTRACTOR agrees that it shall be the responsibility of the CONTRACTOR to ensure compliance with all applicable codes, regulations, law and ordinances. As noted in Article 3 of this Agreement the CONTRACTOR warrants and accepts that any and all work necessitated by inspections which is not prescribed in the Plans or Specifications, but necessitated to bring the project into conformity with the Contract Documents and all applicable laws, codes, regulations, procedures and/or considered inside the contemplation of the Contract Documents shall be deemed the responsibility of the CONTRACTOR and included in the Guaranteed Maximum Price. 18 v�� SiE ARTICLE 10 - BONDS AND INSURANCE 10.1 Payment and Performance Bonds. 10.1.1 Within fifteen (15) calendar days after Notice of Award and in any event prior to commencing work, the CONTRACTOR shall execute and furnish to CITY a performance bond and a payment bond in a form acceptable to the CITY, each written by a corporate surety, having a resident agent in the State of Florida and having been in business with a record of successful continuous operation for at least five (5) years. The surety shall hold a current certificate of authority from the Secretary of Treasury of the United States as an acceptable surety on federal bonds in accordance with United States Department of Treasury Circular No. 570. If the amount of the Bond exceeds the underwriting limitation set forth in the circular, in order to qualify, the net retention of the surety company shall not exceed the underwriting limitation in the circular and the excess risks must be protected by coinsurance, reinsurance, or other methods, in accordance with Treasury Circular 297, revised September 1, 1978 (31 DFR, Section 223. 10, Section 223.11). Further, the surety company shall provide CITY with evidence satisfactory to CITY, that such excess risk has been protected in an acceptable manner. The surety company shall have at least the following minimum qualification in accordance with the latest edition of A.M. Best's Insurance Guide, published by Alfred M. Best Company, Inc., Ambest Road Oldwick, New Jersey 08858: A to A +. 10. 1.2 Two (2) separate bonds are required and both must be approved by the CMY. The penal sum stated in each bond shall be the amount equal to the total amount payable under the terms of the contract. The performance bond shall be conditioned that the CONTRACTOR perform the contract in the time and manner prescribed in the contract. The payment bond shall be conditioned that the CONTRACTOR promptly make payments to all persons who supply the CONTRACTOR with labor, materials and supplies used directly or indirectly by the CONTRACTOR in the prosecution of the work provided for in the Contract and shall provide that the surety shall pay the same in the amount not exceeding the sum provided in such bonds, together with interest at the maximum rate allowed by law; and that they shall indemnify and save harmless the CITY to the extent of any and all payments in connection with the carrying out of said Contract which the CITY may be required to make under the law. 10. 1.3 Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, it shall be the duty of the CONTRACTOR to record the aforesaid payment and performance bonds in the public records of Miami -Dade County, with the CONTRACTOR to pay all recording costs. 10.2 Bonds, Reduction After Final Payment. Such bonds shall continue in effect for one (1) year after final payment becomes due except as otherwise provided by law or regulation or by the Contract Documents with the final sum of said bonds reduced after final payment to an amount equal to fifty percent (50%) of the Guaranteed Maximum Price, or an additional bond shall be conditioned that CONTRACTOR shall correct any defective or faulty Work or material which appears within one (1) year after final completion of the Contract, upon notification by the CITY. 19 r� SIB 103 Duty to Substitute Surety. If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or becomes insolvent or its right to do business is terminated in the State of Florida or it ceases to meet the requirements of other applicable laws or regulations, CONTRACTOR shall within seven (7) days thereafter substitute another bond and surety, both of which must be acceptable to CITY. 10.4 Insurance. 10.4.1 UPON EXECUTION OF THE CONTRACT, THE CONTRACTOR SHALL SUBMIT CERTIFICATE(S) OF INSURANCE EVIDENCING THE REQUIRED COVERAGES AND SPECIFICALLY PROVIDING THAT THE CITY OF SUNNY ISLES BEACH IS AN ADDITIONAL NAMED INSURED RESPECT TO THE REQUIRED COVERAGE AND THE OPERATIONS OF THE CONTRACTOR UNDER THE CONTRACT. The certificates of insurance shall not only name the types of policies provided, but shall also specifically refer to this Agreement and shall state that such insurance is as required by Article 9 and its subparts of this Agreement. CONTRACTOR shall not commence work under this Agreement until after CONTRACTOR has obtained all of the minimum insurance herein described and the policies of such insurance detailing the provisions of coverage have been received and approved by CITY. CONTRACTOR shall not permit any subcontractor to begin work until after similar minimum insurance to cover subcontractor has been obtained and approved. In the event the insurance certificate provided indicates that the insurance shall terminate and lapse during the term of this Agreement, then in that event, CONTRACTOR shall furnish, at least thirty (30) calendar days prior to expiration of the date of such insurance, a renewed certificate of insurance as proof that equal and like coverage and extension thereunder is in effect. CONTRACTOR shall not continue to perform the services required by this Agreement unless all required insurance remains in full force and effect. 10.4.2 Insurance Companies selected must be acceptable the CITY. All of the policies of insurance so required to be purchased and maintained shall contain a provision or endorsement that the coverage afforded shall not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to CITY by certified mail. 10.4.3 The CONTRACTOR shall procure and maintain at its own expense and keep in effect during the full term of the Contract a policy or policies of insurance which must include the following coverage and minimum limits of liability: 10.4.3.1 Professional Liability (Errors and Omissions) Insurance for architectural and engineering services and the services of any other professional used in the performance of the work of this Agreement in the amount of $1,000,000.00 with a deductible (if applicable) not to exceed $5,000.00 per claim. The certificate of insurance for professional liability shall reference any applicable deductible and the work of this Agreement. 10.4.3.2 Worker's Compensation Insurance for statutory obligations imposed by Workers Compensation or Occupational Disease Laws, including, where applicable, the United States Longshoremen's and Harbor Workers Act, the Federal Employers' Liability Act and the 20 4j Homes Act. Employers Liability Insurance shall be provided with a minimum of One Hundred Thousand and xx/100 dollars ($100,000.00) per accident. CONTRACTOR agrees to be responsible for the employment, conduct and control of its employees and for any injury sustained by such employees in the course of their employment. 10.4.3.3 Comprehensive Automobile Liability Insurance for all owned, non- owned and hired automobiles and other vehicles used by the CONTRACTOR in the performance of the work with the following minimum limits of liability: $1,000,000.00 Combined Single limit, Bodily Injury and Property Damage Liability, per occurrence 10.4.3.4 Comprehensive General Liability Insurance (occurrence form) with the following minimum limits of liability: $1,000,000.00 Combined Single limit, Bodily Injury and Property Damage Liability, per occurrence Coverage must be offered in a form no more restrictive than the latest edition of the Comprehensive General Liability Policy without restrictive endorsements, as filed by the Insurance Services Office and shall specifically include the following with minimum limits not less than those required for Bodily Injury Liability and Property Damage Liability: 10.4.3.4.1 Premises and Operations; 10.4.3.4.2 Independent Contractors; 10.4.3.4.3 Product and Completed Operations Liability; 10.4.3.4.4 Broad Form Property Damage; 10.4.3.4.5 Broad Form Contractual Coverage applicable to the Contract and specifically confirming the indemnification and hold ham-Jess agreement in this Contract; and 10.4.3.4.6 Personal Injury coverage with employment contractual exclusions removed and deleted. 10.4.3.4.7 Explosion, collapse, underground coverage (XC -U) 10.4.3.5 Builder's Risk Insurance in an amount not less than THE REPLACEMENT COST for the construction of the work. Coverage shall be "All Risk" coverage for one hundred percent (100%) of the completed value with a deductible of not more than five thousand and 00 /100 dollars ($5,000.00) per claim. 21 SIB �f 10.4.4 CONTRACTOR shall maintain the Products/Completed Operations Liability Insurance for a period of at least three (3) years after final payment for the Work and furnish CITY with evidence of continuation of such insurance at final payment. 10.45 The required insurance coverage shall be issued by an insurance company authorized and licensed to do business in the State of Florida, with the following minimum rating of B+ to A +, in accordance with the latest edition of A.M. Best's Insurance Guide. 10.4.6 All required insurance policies shall preclude any underwriters rights of recovery or subrogation against CITY with the express intention of the parties being that the required insurance coverage protect both parties as the primary coverage for any and all losses covered by the above described insurance. 10.4.7 The CONTRACTOR shall ensure that any company issuing insurance to cover the requirements contained in this Contract agrees that they shall have no recourse against CITY for payment or assessments in any form on any policy of insurance. 10.4.8 The clauses "Other Insurance Provisions" and "Insurers Duties in the Event of an Occurrence, Claim or Suit" as it appears in any policy of insurance in which CITY is named as an additional named insured shall not apply to CITY. CITY shall provide written notice of occurrence within fifteen (15) wonting days of CITY 's actual notice of such an event. 10.4.9 The CONTRACTOR shall not commence performance of its obligations under this Agreement until after it has obtained all of the minimum insurance herein described and the same has been approved. 10.4.10 All required insurance policies shall preclude any underwriter's rights of recovery or subrogation against CITY with the express intention of the parties being that the required insurance coverages protect both parties as the primary coverages for any and all losses covered by the above described insurance. 10.4.11 The CONTRACTOR agrees to perform the work under the Contract as an independent CONTRACTOR, and not as a sub - contractor, agent or employee of CITY. 10.4.12 CONTRACTOR shall require each of its subcontractors of any tier to maintain the insurance required herein for each category, and CONTRACTOR shall provide verification thereof to CITY upon request of CITY. Notwithstanding the foregoing, the CONTRACTOR may provide insurance for subcontractors. 10.4.13 Violation of the terms of this Article and its subparts shall constitute a breach of the Contract and CITY, at its sole discretion, may cancel the Contract and all rights, title and interest of the CONTRACTOR shall thereupon cease and terminate. Notwithstanding the foregoing, the CONTRACTOR shall be given thirty (30) days to titre any breach. 22 SIB 10.5 CITY'S liability and Insurance. CITY shall not be responsible for purchasing and maintaining any insurance to protect the interests of CONTRACTOR, subcontractors or others on the Work. CITY specifically reserves all statutory and common law rights and immunities and nothing herein is intended to limit or waive same including, but not limited to, the procedural and substantive provisions of Section 768.28, Florida Statutes and Section 95.11, Florida Statutes. ARTICLE 11 - WARRANTIES: TESTS AND INSPECTIONS: CORRECTION OF 11.1 Warranty of Title. The CONTRACTOR warrants to the CITY that it possesses good, clear and marketable title to all equipment and materials provided hereunder and there are no pending liens, claims or encumbrances whatsoever against said equipment and materials. 1 1.2 Warranty of Specifications. The CONTRACTOR warrants that all equipment, materials and workmanship furnished, whether furnished by the CONTRACTOR or its sub - contractors and suppliers, will comply with the specifications, drawings and other descriptions supplied or adopted and that all services will be performed in a workmanlike manner. 11.3 Warranty of Merchantability. CONTRACTOR warrants that any and all equipment to be supplied pursuant to the Agreement is new, merchantable, free from defects, whether patent or latent in material or workmanship and fit for the ordinary purposes for which it is intended. 11.4 Correction Period. CONTRACTOR wan-ants all material and workmanship for a minimum of one (1) year from the date that CITY accepts occupancy of the parking garage and park. If within one (1) year after the date of Final Completion or such longer period of time as may be prescribed by laws or regulations or by the terms of any applicable special guarantee required by the Contract Documents, any work is found to be defective, whether observed before or after acceptance by CITY, CONTRACTOR shall promptly, without cost to CITY and in accordance with CITY'S written instructions, either correct such defective work, or, if it has been rejected by CfTY, remove it from the site and replace it with work that is not defective and satisfactorily correct and remove and replace any damage to other work or the work of others resulting therefrom. If CONTRACTOR does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, CITY may have the defective workmanship corrected or the rejected Work removed and replaced, and all direct, indirect and consequential costs of such removal and replacement (including but not limited to fees and charges of engineers, architects, attorneys and other professionals) will be paid by CONTRACTOR. SIB 23 Vf 11.4.1 Where defective Work (arid damage to other work resulting therefrom) has been corrected, removed or replaced under this paragraph, the correction period hereunder with respect to such Work will be extended for an additional period of one (1) year after such correction or removal and replacement has been satisfactorily completed 11.4.2 Nothing contained in this Article shall be construed to establish a period of limitation with respect to other obligations which CONTRACTOR might have under the Contract Documents. Establishment of the time period of one (1) year as described in Paragraph 10.4.1 relates only to the specific obligation of the CONTRACTOR to correct the work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish CONTRACTOR'S liability with respect to the CONTRACTOR'S obligation other than specifically to correct the work. 11.4.3 CONTRACTOR warrants to the CITY that it will comply with all applicable federal, state and local laws, regulations and orders in carrying out its obligations under the Contract. 11.4.4 CONTRACTOR warrants to the CITY that it is not insolvent, it is not in bankruptcy proceedings or receivership, nor is it engaged in or threatened with any litigation, arbitration or other legal or administrative proceedings or investigations of any kind which would have an adverse effect on its ability to perform its obligations under the Contract. 11.4.5 CONTRACTOR warrants to the CITY that the consummation of the work provided for in the Contract Documents will not result in the breach of any term or provision of, or constitute a default under any indenture, mortgage, contract, or agreement to which the CONTRACTOR is a per• 11.4.6 CONTRACTOR warrants that there has been no violation or copyrights of patent rights either in the United States of America or in foreign countries in connection with the work of the Contract 1 1.4.7 No warranty, either express or implied, maybe modified, excluded or disclaimed in any way by CONTRACTOR. All warranties shall remain in full force and effect, notwithstanding acceptance and payment by CITY. 11.5 Tests and Inspections. 11.5.1 CONTRACTOR shall give the City Manager and Building Department timely notice of readiness of the work for all required inspections, tests or approvals.. CONTRACTOR shall assume full responsibility, pay all costs, except for permit fees or other fees imposed by the CITY, in connection therewith and furnish the Building Department, with courtesy copies to the CITY, the required certificates of inspection, testing or approval for all materials, equipment or the Work or any par thereof unless otherwise specified herein. 11.5.2 Inspectors do have the full authority to order the CONTRACTOR to comply with 24 IB 0� all applicable codes. The CONTRACTOR shall be responsible for complying with all inspections and all costs associated therewith shall be deemed the responsibility of the CONTRACTOR and included in the GMP. 11.5.3 The payment of any compensation whatever may be its character or form, or the giving of any gratuity or the granting of any favor by the CONTRACTOR to any inspectors, directly or indirectly is strictly prohibited and any such action on the part of the CONTRACTOR will constitute a breach of this Agreement. ARTICLE 12 - CONTRACT TIME 12.1 Change of Contract Time. ALL TIME LIMITS STATED IN THE CONTRACT DOCUMENTS ARE OF THE ESSENCE OF THE AGREEMENT. EXCEPT AS PROVIDED HEREIN, NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF TIME SHALL BE MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY DELAYS. CONTRACTOR shall not be entitled to an increase in the construction cost or payment or compensation of any kind from CITY for direct, indirect, consequential, impact or other costs, expenses or damages including but no limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable; provided, however, that this provision shall not preclude recovery of damages by CONTRACTOR for hindrances or delays due solely to fraud, bad faith or active interference on the part of CTI'Y or its agents. If CONTRACTOR is delayed at any time in the progress of the Work by labor disputes, fire, unusual delay in deliveries, adverse weather conditions not reasonably anticipated (including strong storms, tropical storms and/or hurricanes which are common between June 1 and November 30), unavoidable casualties or other causes beyond the CONTRACTOR's control, or by other causes which the CITY and CONTRACTOR agree may justify delay, then the Contract Time shall be reasonably extended by Change Order. Otherwise, CONTRACTOR shall be entitled only to extensions of the Contract Time as the sole and exclusive remedy for such resulting delay, in accordance with and to that extent specifically provided above. No extension of time shall be granted for delays resulting from normal weather conditions prevailing in the area which necessarily excludes strong storms, tropical stones and/or hurricanes which are common between June 1 and November 30. 12.2 No Recovery for Early Completion. If the CONTRACTOR submits a schedule or expresses an intention to complete the Work earlier than any required milestone or completion date, the CITY shall not be liable to the CONTRACTOR for any costs incurred because of delay or hindrance should the CONTRACTOR be unable to complete the Work before such milestone or completion date. The duties, obligations and warranties of the CfTY to the CONTRACTOR shall be consistent with and applicable only to the completion of the Work and completion dates set forth in this Agreement. 25 SIB �P 12.3 Liquidated Damages 12.3.1 The CONTRACTOR understands that if the Project or the Work is not substantially completed within Three Hundred Ten (310) days from the date of the Notice to Proceed, then the CITY will suffer damages which are difficult to determine and accurately specify. As such, Liquidated Damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by CITY as a consequence of such delay and both parties desiring to obviate any question of dispute concerning the amount of said damages and the cost and effect of the failure of CONTRACTOR to complete the Contract on time. 12.3.2 Upon failure of CONTRACTOR to complete the Work within the time specified for the substantial completion of the Project (plus approved extensions if any), CONTRACTOR shall pay to Cil'Y the sum of Two Thousand dollar; ($2,000.00) for each and every calendar day beyond the time specified in this Agreement for completion, as fixed and agreed liquidated damages and not as a penalty. The Liquidated Damages shall apply regardless of whether or not a single Contract is involved and shall apply separately to each portion of the Work for which a time of completion is given. CITY shall have the right to deduct from and retain out of moneys which may be then due or which may become due and payable to CONTRACTOR, the amount of such liquidated damages and if the amount retained by CITY is insufficient to pay in full such liquidated damages, the CONTRACTOR shall pay in full such liquidated damages. 12.4 Delay. Any delay caused by the CITY ) shall extend the date for substantial completion date by the number of days that resulted from the delay. ARTICLE 13 - CHANGES IN THE WORK_ RESTRICTIONS AND LIMITATIONS 13.1 After the Plans and Specifications have been approved for construction by the Building Department, the CfTY, without invalidating this Agreement, may order additions, deletions or revisions to the Work. Such additions, deletions or revisions shall be authorized by a Written Amendment or Change Order. 13.2 All Change Orders which, individually or when cumulatively increase the cost of the work, or which extend the time for completion, must be formally authorized and approved by the City Commission prior to their issuance'and before work may begin. No claim against CfTY for Extra Work in furtherance of such Change Order shall be allowed unless prior approval has been obtained. The CONTRACTOR understands and agrees that any work, however characterized, performed by the CONTRACTOR without the C]TY'S prior written approval shall not be compensable, without exception. The CONTRACTOR intentionally, knowingly and voluntarily waives any claim for unjust enrichment or quantum meruit with respect to any work performed in the absence of a written Change Order. Any waiver of this provision must be in writing and signed by both Parties and in no event shall such written waiver extend to any subsequent event. 13.3 The Guaranteed Maximum Price and Contract Time shall be changed only by 26 SIB =''� Change Order or Written Amendment approved by the City Commission. 13.4 Proposed Change Orders shall be prepared by the CONTRACTOR. 13.5 The CONTRACTOR shall not be entitled to an increase in the Guaranteed Maximum Price or an extension of the Contract Time with respect to any work performed that is not required by the Contract Documents as amended, modified and supplemented 13.6 If notice of any change affecting the general scope of the work or the provisions of the Contract Documents is required by the provisions of any bond to be given to a surety, the giving of any such notice will be CONTRACTOR'S responsibility and the amount of each applicable bond shall be adjusted accordingly. 13.7 Any claim for adjustment in the Guaranteed Maximum Price or time shall be based upon written notice delivered by the party making the claim to the other Parties not later than ten (10) days after the occurrence or event giving rise to the claims and stating the general nature of the claim. No claim for an adjustment in the Guaranteed Maximum Price or an extension of the contract time will be valid if not submitted in accordance with this Paragraph. 13.8 CONTRACTOR understands and agrees that any information provided to it by the CITY, at any time, as to any aspect of the Project is not guaranteed. The CONTRACTOR is solely liable for all site conditions, including those that are subsurface or otherwise concealed physical conditions which may differ, materially or not, from those the CONTRACTOR encountered during its initial site inspection. Upon identifying subsurface physical conditions that do differ materially from those identified during the CONTRACTOR'S initial inspection, the CONTRACTOR shall notify CITY immediately. The CONTRACTOR shall promptly investigate such conditions and, if the CITY agrees that the concealed physical conditions could trot have been detected through a reasonable inspection, then the CONTRACTOR shall be entitled to an extension of time for the completion of the Project as its sole remedy. The CONTRACTOR accepts that any costs or expense associated with any differing site conditions encountered shall be the responsibility of the CONTRACTOR and included in the Guaranteed Maximum Price. ARTICLE 14 — NO CHANGES IN GUARANTEED MAXIMUM PRICE 14.1 The Guaranteed Maximum Price constitutes the total compensation (subject to authorized adjustments) payable to CONTRACTOR for performing the Work. All duties, responsibilities and obligations assigned to or undertaken by CONTRACTOR shall be at its expense without change in the Guaranteed Maximum Price. 14.2 The Guaranteed Maximum Price may only be changed by a Change Order or by a Written Amendment. Any claim for an increase or decrease in the Guaranteed Maximum Price shall be based on written notice delivered to the other Party (but in no event later than ten (10) days) after the occurrence of the event giving rise to the amount of the claim, along with supporting data which shall be delivered within twenty (20) days after the occurrence of the event giving rise to the amount of the claim and shall be accompanied by claimant's written statement that the amount claimed covers all known amounts (direct, indirect and consequential) to which the claimant is 27 SIB t ) vr� entitled as a insult of the occurrence of said event. No resolution of a claim for adjustment in the Guaranteed Maximum Price shall be effective until approved by the City Commission. No claim for an adjustment in the Guaranteed Maximum Price will be valid if not submitted in accordance with this Paragraph. The CONTRACTOR understands and agrees that the CrrY shall have the right and discretion to deny the approval of any Change Order, for any reason, despite the CONTRACTOR'S compliance with this Paragraph and/or the existence of an executed written Work Change Directive. If the CITY decides not to approve a Change Order for the work, then the CONTRACTOR will not be entitled to receive compensation under any theory of recovery whether at law or in equity. 14.3 The value of any Work covered by a Change Order or of any claim for an increase or decrease in the Guaranteed Maximum Price shall be determined in one of the following ways: 14.3.1 Where the Work involved is covered by unit prices contained in the Contract Documents, by application of unit prices to the quantities of the items involved. 14.3.2 By mutual acceptance of a lump sum (which may include an allowance for overhead and profit including any subcontractor fees). If the negotiated lump sum change order exceeds the percentages set forth for "Cost of Work," it must be accompanied by a detailed explanation justifying the increase. 14.4 Cost Breakdown Recuired. Whenever the cost of any Work is to be determined, CONTRACTOR will submit in form acceptable to City Manager an itemized cost breakdown together with supporting data. Whenever a change in the work is to be based upon mutual acceptance of a lump sum, whether the amount is an addition, credit, or no- change -in -cost, the CONTRACTOR shall submit an estimate substantiated by a complete itemized breakdown. The breakdown shall list quantities and unit prices for materials, labor, equipment and other items of cost. ARTICLE 15 - PAYMENTS TO CONTRACTOR AND COMPLETION OF WORK 15.1 Progress Payments during construction phase. 15.1.1 CONTRACTOR may requisition payments for Work completed during the project at intervals of not more than once a month. The CONTRACTOR shall submit a proposed schedule of values in a form acceptable to the Crl-Y and which will be required to be approved by the CITY before any design Work on this Project can commence. The proposed schedule of values shall be broken into two phases for design and for construction. Once approved all applications for payment shall be submitted in a form that shows a complete breakdown of the project components, the quantities completed and the amount due, together with a certification by the CONTRACTOR that the CONTRACTOR has disbursed to all subcontractors and suppliers their pro -rata shares of the payment out of previous progress payments received by the CONTRACTOR for all work completed and materials furnished in the previous period or properly executed releases of liens by all subcontractors, suppliers and materialmen who SID 28 1' �J were included in the CONTRACTOR'S previous applications for payment, and any other supporting documentation as may be required by the CITY. Each requisition shall be submitted in triplicate to the CITY for approval; CITY shall have fifteen (15) days to approve or disapprove the requisition. If the requisition in not approved, the reasons therefore shall be stated with particularity. The CITY shall make payment to the CONTRACTOR within fifteen (15) calendar days after approval by the CITY of the CONTRACTOR'S requisition for payment. 15.1.2 Ten percent (10 %) of all monies earned by the CONTRACTOR shall be retained by the CITY until the Work is completed in accordance with the requirements of the Contract Documents and accepted by the CITY as provided herein. After fifty percent (50%) of the Work has been completed, the CONTRACTOR may request reduction in the retainage to five percent (5 %) of all monies previously earned and all monies earned thereafter. 15.2 Finallnspection. Upon written notice from CONTRACTOR that the entire Work or an agreed portion thereof is complete, CITY will make a final inspection and will notify CONTRACTOR in writing of all particulars in which this inspection reveals that the Work is not in accordance with the Contract Documents. CONTRACTOR shall immediately take such measures as are necessary to remedy such deficiencies. 15.3 Final Application for Payment. After CONTRACTOR has completed all such corrections to the satisfaction of City Manager and delivered all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection and other documents required by the Contract Documents, and after City Manager has indicated that the work is acceptable, CONTRACTOR may make application for final payment. The final application for payment shall be accompanied by (1) complete and legally effective releases or waivers of all liens arising out of or filed in connection with the work; or (2) CONTRACTOR'S receipts in full covering all labor, materials and equipment for which a lien could be filed; or (3) a final affidavit stating that all laborers, materialmen, suppliers and subcontractors who worked for CONTRACTOR under this Contract have been paid in full or if the fact be otherwise, identifying the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services or materials furnished. If any subcontractor or supplier fails to furnish a release or receipt in full, CONTRACTOR may furnish a bond satisfactory to CITY to indemnify CITY against any lien. CONTRACTOR shall submit to CITY within forty -five days (45) of the date of issuance of the certificate of occupancy for the applicable portion of the Work the completed set of "As- Built" drawings relative to the parking garage and park for review and approval. The "As- Built" drawings shall be prepared, sealed and certified by the appropriate professional licensed by the State of Florida. Prior to approval, if necessary, the drawings may be returned to CONTRACTOR for changes or modifications if in the opinion of City Manager they do not represent correct or accurate "As- built" drawings. 29 V SIB 15.4 Final Payment and Acceptance. 15.4.1 If the Work is not acceptable to the CITY, then the CITY shall indicate the reasons for refusing to make final payment, in which case CONTRACTOR shall make the necessary corrections or compliance and resubmit the Application for payment. If the CITY is satisfied that the Work has been completed in accordance with the Contract Documents and the CONTRACTOR'S other obligations under the Contract Documents have been fulfilled, the CITY will agree to make the final payment. 15.4.2 If, through no fault of CONTRACTOR, final completion of the Work is significantly delayed, CITY may consider making payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be held by CITY for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if bonds have been furnished as required, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted may be submitted by CONTRACTOR for such payment. The CITY may consider making such payment under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 15.5 Final payment, constituting the entire unpaid balance of the Guaranteed Maximum Price, shall be paid by the CITY to the CONTRACTOR when the Work has been completed in accordance with the Contract Documents, and this Agreement fully performed. The making of food payment shall constitute a waiver of claims by CITY except those arising from: 15.5.1 Liens, claims, security interests or encumbrances arising out of this Agreement and unsettled. 15.5.2 Faulty or defective work and latent defects discovered after acceptance. 15.5.3 Failure of the work to comply with the requirements of the Contract Documents. 15.5.4 Terms of special warranties required by the Contract Documents. 15.5.5 Any of CONTRACTOR'S continuing obligations under this Agreement. The acceptance of final payment by CONTRACTOR or the Subcontractor for materials and supplies shall constitute a waiver of claims by that payee except those previously made in writing and identified by payee as unsettled at the time of final application for payment. 15.6 CITY'S Right to Withhold Payment. The CITY may withhold in whole or in part, final payment or any progress payment to such extent as may be necessary to protect itself from loss on account of: 15.6.1 Defective work not remedied. IB 30 Jl 15.62 Claims filed or reasonable evidence indicating the probable filing of claims by other parties against the CONTRACTOR. 15.63 Failure of the CONTRACTOR to make payment to Subcontractors or Suppliers for materials or labor. 15.6.4 Damage to another contractor not remedied. 15.6.5 liability for liquidated damages has been incurred by the CONTRACTOR. 15.6.6 Reasonable evidence that the work cannot be completed for the unpaid balance of the contract sum 15.6.7 Reasonable evidence that the work will not be completed within the Contract time. 15.6.8 Failure to carry out the work in accordance with the Contract Documents. When the above grounds are removed or resolved or the CONTRACTOR provides a surety bond or consent of surety satisfactory to the CITY which will protect the CITY in the amount withheld, payment may be made in whole or in part. ARTICLE 16 - TERMINATION OF THE CONTRACT 16.1 CITY'S Right to Terminate. Upon the occurrence of any one or more of the following events: 16.1.1 If CONTRACTOR commences a voluntary case under any chapter of the Bankruptcy Code as now or hereafter in effect, or if CONTRACTOR takes any equivalent or similar action by filing a petition or otherwise under any other federal or state law in effect at such time relating to the bankruptcy or insolvency. 16.1.2 If a petition is filed against CONTRACTOR under any chapter of the Bankruptcy Code as now or hereafter in effect at the time of filing, or if a petition is filed seeking any such equivalent or similar relief against CONTRACTOR under any other federal or state law in effect at the time relating to bankruptcy or insolvency. 16.1.3 If CONTRACTOR makes a general assignment for the benefit of creditors. 16.1.4 If a trustee, receiver, custodian or agent of CONTRACTOR is appointed under applicable law or under Contract, whose appointment or authority to take charge of property of CONTRACTOR is for the purpose of enforcing a Lien against such property or for the purpose of general administration of such property for the benefit of CONTRACTOR'S creditors. 16.1.5 If CON'T'RACTOR admits in writing an inability to pay its debts generally as they become due. 31 IB tJ;�; 16.1.6 If CONTRACTOR persistently fails to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled Workers or suitable materials or equipment or failure to adhere to the progress schedule as same may be revised from time to time), provided that CONTRACTOR is provided thirty (30) days to cure any breach. 16.1.7 If CONTRACTOR disregards laws or regulations of any authority with jurisdiction 16.1.8 If CONTRACTOR otherwise violates in any substantial way any provisions of the Contract Documents. CITY may, after giving CONTRACTOR seven (7) days written notice, terminate the services of CONTRACTOR without any liability, of any kind, accruing to the to the CITY and without prejudice to any right or remedy the CITY may have, and exclude the CONTRACTOR from the site and take possession of the Work and of all CONTRACTOR'S tools, appliances, construction equipment and machinery at the site and use the same to full extent they could be used by CONTRACTOR (without liability to CONTRACTOR for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for which CITY has paid CONTRACTOR but which are stored elsewhere, and finish the Work as CITY may deem expedient. In such case CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. Notwithstanding the foregoing, the CONTRACTOR is provided with thirty (30) days to cure any breach. SID 32 n �) J 16.2 Termination for Reasons Other Than Breach of the Agreement: 16.2.1 Upon seven (7) days written notice to CONTRACTOR. Cil'Y may, with cause, without liability of any kind and without prejudice to any other right or remedy, terminate this agreement for CITY'S reasons that are other than a breach of this Agreement. In such a case, the reasons should be clearly stated and shall be capable of cure by CONTRACTOR. Said written notice shall provide CONTRACTOR with a reasonable time in which to cure the reason(s) for the termination. This provision is different from the right to terminate set out in other parts of this Agreement. Where the agreement is terminated for these reasons, the notice of termination to CONTRACTOR must state that the Agreement is being terminated for the stated reason(s) under the termination clause and the effective date of the termination if not cured by CONTRACTOR. Upon receipt of the notice of termination and a failure to cure by CONTRACTOR, CONTRACTOR shall promptly discontinue all Work at the time and to the extent indicated on the notice of termination, terminate all outstanding Subcontractors and purchase orders to the extent that they relate to the terminated portion of the Agreement, and refrain from placing further orders and Subcontracts. CONTRACTOR shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. In the event of a termination under this provision, the CITY shall pay to the CONTRACTOR only those direct costs associated with all Work actually completed. The CONTRACTOR shall be obligated to support its costs with back -up documentation to the CITY'S satisfaction. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE CITY SHALL NOT BE LIABLE TO THE CONTRACTOR FOR ANY DIRECT, INDIRECT, SPECIAL AND /OR CONSEQUENTIAL LOSSES OR DAMAGES WHETHER ARISING IN AGREEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION AT LAW OR IN EQUITY, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING. 16.2.2 Once the Plans and Specifications for this Project receive a permit to commence construction, the ownership in the Plans and Specifications shall vest with the CITY. In the event CITY terminates the Agreement and proceeds to design and construct the Project through its employees, agents or other third parties, CONTRACTOR shall remain fully liable for the design of the Plans and Specifications and the CITY shall retain all its rights and remedies related thereto. 16.3 Termination by CONTRACTOR. If CITY fails to make payment thereon for a period of sixty (60) calendar days from payment submittal, CONTRACTOR may, upon thirty (30) additional days written notice to CITY, terminate the Contract and recover from the Contract payment for work executed and for proven loss with respect to materials, equipment, tools and construction equipment and machinery. 16.4 Non- Binding Mediation. 16.4.1 Non - Binding Mediation. In the event a dispute arises, either Party may request that the other party attend non- binding mediation. Mutual written consent is required for the non- binding mediation to take place. To the extent that mediation does occur, the CONTRACTOR is obligated to continue to perform the Work and the CITY shall continue to satisfy its payment SID 33 m) obligations pending the resolution of the mediation. Before requesting mediation, the parties shall first attempt to resolve the dispute amicably. 16.4.2 Scope of Dispute Review. Any controversy or claim arising out of or relating to this m Agreement or any breach of it may be subject to review under these non - binding dispute resolution procedures. 16.4.3 Mediator. The Parties agree that any mediator shall be jointly selected. 16.4.4 Time of Claim. Claims must be brought within the applicable statute of limitations by notice of a claim to the other party or parties affected thereby. Failure to bring the claim within the specified time shall constitute a waiver of the party's right to assert the claim. The notice of claim shall provide reasonably sufficient detail of the nature of the claim and the basis for it. The mediator shall be selected by the parties within twenty (20) days following the date that a party requests that the selection process commence. Each mediation hearing shall be held at a location mutually approved by the parties. Unless the parties otherwise agree in writing, mediation may be commenced on or after the thirtieth (30th) calendar day after the mediator is selected. Each party agrees that it will designate a representative, having authority to bind that party, who will attend all mediation hearings. Both parties shall endeavor, in good faith, to reach a resolution of the claim during the mediation. The mediator shall submit a swom affidavit to both parties indicating that the mediator has no past or present affiliation with either the CONTRACTOR or the CITY. 16.4.5 If the parties cannot agree on the production of documents or information (including rules relating thereto), then the mediator shall make a determination as to the scope and nature of the exchange. 16.4.6 Proceeding Costs and Fees. All parties participating in the non - binding mediation shall be responsible for their own costs, expenses and attorney fees necessary to pursue or defend against claim(s) raised under these provisions; however, the parties shall equally share the costs of any meeting or hearing place and the fees of the mediator. 16.4.7 Enforceability and Form of Decision. The decision resulting from mediation is not binding on any party participating in the mediation unless and until the parties agree to it in writing. In the absence of a written consent accepting the mediator's decision, the decision shall have no force or effect whatsoever. 16.4.8 Florida LawNenue/Jurisdiction. This Agreement shall be governed by the laws of the State of Florida, without regard to its conflict of law provisions. The Parties hereto hereby submit to the exclusive jurisdiction of the state and federal courts located in Miami -Dade County, Florida for any action or proceeding arising out of or relating to this Agreement and the Parties hereto hereby agree that all claims in respect of such action or proceeding shall be heard and determined exclusively in any such state or federal court. 34 n SIB IJ 16.4.9 Attomeys' Fees. In the event of any dispute arising under or related to this Agreement, the prevailing party shall be entitled to recover all actual attorney fees, costs and expenses incurred by it in connection with that dispute and/or the enforcement of this Agreement, including all such actual attorney fees, costs and expenses at all judicial levels, including appeal until such dispute is resolved with finality. ARTICLE 17 - NOTICE. COMPUTATION OF IBM ARTICLE 17.1 Giving Notice. All notices required by any of the Contract Documents shall be in writing and shall be deemed delivered upon mailing by certified mail, return receipt requested to the following: CONTRACTOR: 4M Investors, LL.0 3211 Ponce De Leon Blvd., Suite 301 Coral Gables, FL 33134 COPY TO: Weiss, Serota, Hellman, Pastoriza, Cole, et al. Attn: Clifford Schulman, Esq. 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134 Fax No. (305) 854 -2323 Alan J. Cohen, City Manager City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 COPY TO: Hans Ottinot, City Attomey City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33 t60 17.2 Computation of Time. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the fast and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. A calendar day of twenty four (24) hours measured from midnight to the next midnight shall constitute a day. 35 r� 3 IBs� 17.3 Force Maieure. Should any party fail to perform its obligations under this Agreement due to a condition of force majeure, as that term is interpreted under Florida Law, and specifically including but not limited to Acts of God (including hurricanes, tropical stoma and/or very strong storms which are anticipated by the Parties and taken into consideration when the CONTRACTOR agreed to the substantial completion date) fire, flood, earthquakes, then the time for performance of said obligation hereunder will be extended by a period reasonable commensurate with the cause of such failure to perform or cure. If the Contractor is delayed in performing any obligation under this agreement due to a force majeure condition, the CONTRACTOR shall request a time extension from the CITY within ten(10) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the CONTRACTOR for extra compensation. Events of force majeure do not include acts or omissions of sub- contractors. ARTICLE 18 — MISCELLANEOUS 18.1 The duties and obligations imposed by the Contract Documents and the rights and remedies available hereunder to the parties hereto, and, in particular but without limitation, the warranties, guaranties and obligations imposed upon CONTRACTOR and all of the rights and remedies available to CITY thereunder, are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available to any or all of them which are otherwise imposed or available by laws or regulations, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this Paragraph will be as effective as if repeated specifically in the Contract Documents, and the provisions of this Paragraph will survive final payment and termination or completion of the Agreement. 18.2 CONTRACTOR shall not assign or transfer the Contract or its rights, title or interests therein without CITY'S prior written approval. The obligations undertaken by CONTRACTOR pursuant to the Contract shall not be delegated or assigned to any other person or firm unless CITY shall first consent in writing to the assignment. Violation of the terms of this Paragraph shall constitute a breach of Contract by CONTRACTOR and the CITY may, at its discretion, cancel the Contract and all rights, title and interest of CONTRACTOR shall thereupon cease and terminate. 18.3 CONTRACTOR and its employees, volunteers and agents shall be and remain an independent contractors and not agents or employees of CITY with respect to all of the acts and services performed by and under the terms of this Agreement. This Agreement shall not in any way be construed to create a partnership, association or any other kind of joint undertaking or venture between the parties hereto. 18.4 The remedies expressly provided in this Agreement to CITY shall not be deemed to be exclusive but shall be cumulative and in addition to all other remedies in favor of CITY now or hereafter existing at law or in equity. (`I(� 36 n v 18.5 The validity, construction and effect of this Contras shall be governed by the laws of the State of Florida In the event of a dispute arising under or related to this Agreement it shall be filed in the Eleventh Judicial Circuit in and for Miami -Dade County, Florida 18.6 Should any part, tern or provision of this Agreement be by the courts decided to be invalid, illegal or in conflict with any law of the State, the validity of the remaining portion or provision shall not be affected thereby. ARTICLE 19 - NONDISCRIM[NATION AND EQUAL OPPORTUNITY EMPLOYMENT 19.1 During the performance of this Agreement, CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, religion, color, sex or national origin CONTRACTOR will take affirmative action to ensure that employees are treated during employment, without regard to their rice, creed, color or national origin. Such action must include, but not be limited to the following: employment, upgrading; demotion or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. CONTRACTOR shall agree to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. 19.2 CONTRACTOR shall comply with Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity" as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor Regulations (41 CFR Part 60). 19.3 CONTRACTOR shall comply with the Copeland Anti- Kickback Act (18 USC 874) as supplemented in Department of Labor Regulations (29 CFR Part 3). 19.4 CONTRACTOR shall comply with the Contract Work Hours and Safety Standards Act (40 US 327 -330) as supplemented by Department of Labor Regulations (29 CFR Part 5). 19.5 CONTRACTOR shall comply with the Florida Trench Safety Act. 19.6 CONTRACTOR shall comply with the OSHA Safety Act. 37 SIB �s IN WFFNESS WHEREOF, CITY and CONTRACTOR have signed this Agreement in triplicate. ATTEST: C Jane A. Hines, CMC, City Clerk State of Florida )ss: County of Miami -Dade ) CITY OF SUNNY ISLES BEACH, FLORIDA 4M Ines rs, L I C , a hlonda luruted liability comp By. Joseph Milton Title: Manager On this, the 6^15 T day of 2011, before me, the undersigned Notary Public of the State of Florida, the fo going instrument was acknowledged by TOS'94A ". ITo� (name of officer), M0.weaAer' (title), of 4M investors, IIC, a Florida liability, on behalf of the corporation, who is personally known to me or has produced as identification. Q4,UAiV,.ft­ 1, " otary Public, State of Florida /� My Commission Expires: 11' 1 �10r`I- 4�Stt;h 1 • t NQ�&_ _ P&ed, typed or stamped name of Notary Public SIB um ARNES �„n 1430N McA im SIB 0 R' a J mve nro•vw I'I'I 7 Ze 6 v � P g o�P U m QU � [f Y l m QU Wo m g m� co A 0! yg J rz C A LL V _ '^ V! , eQ V U. O }� I- Z s J of Uo E J ma$ i } \ � 2 \ � - \ ^ § & � � K| § ( @ 4 §| k z � k § k § # o| || || || §i ■ |2 §§ || W8 | 2 \\ r! k m� ! b§ k [k �� \/ EXHIBIT "A" LANDLORD'S PROPERTY Parcel 1 Folio No. 31- 2214 -007 -0040 Lots 5, 6, and 6 -A of the Second REVISED PLAT OF BELLA VISTA SUBDIVISION, according to the Plat thereof, recorded in Plat Book 50, at Page 76 of the Public Records of Miami -Dade County, Florida, situated at 215 -255 Sunny Isles Boulevard, Sunny Isles Beach, Miami -Dade County, Florida 33160. Parcel 2 Folio No. 31- 2214 - 007 -0050 Lot 7, of SECOND REVISED PLAT OF BELLA VISTA SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 50, at Page 76, of the Public Records of Miami -Dade County, Florida. Parcel 3 Folio No. 31- 2214 -07 -0060 Lot 8 of the SECOND REVISED PLAT OF BELLA VISTA, according to the Plat thereof, as recorded in Plat Book 50, at Page 76, of the Public Records of Miami -Dade County, Florida �a Preliminary Plans/Conceptual Plans y, Dtl °Q9 0 sg mm o- m � n0 0 a g 0 A_ m E > �m 3 0 3 d r 09 9 ° 3 0 x m a 0 0 O O Z ° v ti 0 A 0 Z� n m zo aT ,U) o c 0Z z c < �U) sm m O 1T�, z m fA n2 0 O �z r 6 G AIA -COLLM AVE m r z I i m O z O m G m r i O .9 r- r m r 1✓ �L40 {0 {E�'d�13 H U W� W 5 co 1 5 O>Y Z O Q W J ooW �1 Q F { d3 >0 j Qm W J O: `s W U O U U S U 0 n � a ci § c % E ° ee � � R az >3 W0 ms U100 '^ W U Z } 2 i Z S_ ° ZO � U LL v 0? °n } I U .3 o U O y (1111 ` ) r, FERST AMENDMENT TO THE DESIGN -BUILD �.:;. AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND 4M INVESTORS. LLC This Fast Amendment to the Design-Build Agreement for Parkk� Parkin ge between the City of Sunny Isles Beach and 4M Investors, LLC. executed this Z" day of � 2012, is made a part of the original Design-Build Agreement for Park an Parking Garage (the Agreement ") between the parties dated July 21, 2011, attached hereto as Attachment "A" and incorporated herein, between the City of Sunny Isles Beach ( "City's and 4M Investors, LLC. ( "Contractor ") a Florida Limited Liability Company. The City and Tenant hereby agree as follows: RECITALS WHEREAS, on or about July 21, 2011, the City and Contractor entered into the Agreement for certain parcels of real property located in the City which the City owns and upon which it intends to have constructed site improvements consisting of a Park and Parking Garage for Gateway Park located in the City of Sunny Isles Beach; and WHEREAS, on or about January 19, 2012, the City Commission passed and adopted Resolution No. 2012 -1841 which authorized Contractor an extension of time up to April 19, 2012, to present a site plan for the design of the Park and Parking Garage in accordance with the development review process of the Code of the City of Sunny Isles Beach (a copy of Resolution No. 2012 -1841 is attached hereto as Exhibit "A "). NOW, THEREFORE, the City and Contractor agree to enter into this First Amendment to the Agreement in accordance with Resolution No. 2012 -1841 and the terms and conditions below. 1. EXTENSION OF TIME FOR DEVELOPMENT APPROVALS: Article 4, Section 4.1 of the Agreement is hereby amended to reflect that Contractor shall be required to present a final site plan approval for the Project no later than April 19, 2012. 2. OTHER PROVISIONS REMAIN IN EFFECT: Except as specifically modified herein, all terms and conditions of the original Agreement between the parties, dated July 21, 2011, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this document as of the date mentioned above. SIB 4M INVESTORS, LLC. BY: Signature and Title n ATTEST: BY: , Jane . Rines, CMC, City Clerk SIB CITY OF SUNNY ISLES BEACH SECOND AMENDMENT TO THE DESIGN -BUILD AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND 4M INVESTORS LLC This Second Amendment to the Design -Build Agreement for Pa and Parking Garage between � the City of Sunny Isles Beach and 4M Investors, LLC. executed this � day of &I—A .fin , 2012, is made a part of the original Design -Build Agreement for Park and Parking Garage (the "Agreement ") between the parties dated July 21, 2011, between the City of Sunny Isles Beach ( "City ") and 4M Investors, LLC, ( "Contractor ") a Florida Limited Liability-Company. The City and Contractor hereby agree as follows: RECITALS WHEREAS, the City desires to include additional amenities to the project consisting of the total and complete design and construction of a park and a three hundred and eight (308) space parking garage consistent with the structural design and aesthetic standards of the City owned garage located at Heritage Park, associated landscape, irrigation work, underground drainage system, and as generally described in the revised schematic proposal submitted to the City on February 13, 2012; and WHEREAS, these additional amenities to the project will increase the guaranteed maximum price of the project from Ten Million Seven Hundred Thousand Dollars ($10,700,000.00) to Sixteen Million Five Hundred Thousand Dollars ($16,500,000.00). NOW, THEREFORE, the City and Contractor agree to enter into this Second Amendment to the Agreement in accordance with the terms and conditions stated below. I. PROJECT: Section 1.17 of the Agreement is hereby amended to reflect the Project has been redesigned to be consistent with the revised site plan submitted on February 13, 2012. 2. INCREASE IN GUARANTEED MAXIMUM PRICE: Sections 1, 13, 5. 1.1 and 5.1.3 of the Agreement are hereby amended to reflect that Contractor warrants and guarantees that the maximum price for all the Design -Build Work on the Project shall not exceed Sixteen Million Five Hundred Thousand Dollars ($16,500,000.00), subject to tax exemption savings, based on the revised Guaranteed Maximum Price Proposal dated March 20, 2012, attached hereto as Exhibit A ". 3. Contractor agrees to enter into a tax exemption agreemen whereby certain purchases under the Agreement can be i Contractor, at its own expense, agrees to install a wood panel the park design on the south side of the Project or Property. N FENCE. The City and the , attached hereto as Exhibit 'B ", iade through the City. Further, construction fence with a mural of 4. OTHER PROVISIONS REMAIN IN EFFECT: Except as specifically modified herein, all terms and conditions of the original Agreement between the parties, dated July 21, 2011, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this document as of the date mentioned above. :a WITNESS: Signature Print Name ATTEST: B . Jane A. Hines, CMC, City Clerk CJ)ri7 4M INVESTORS, LLC. BY: Signature and Title CITY OF SUNNY ISLES BEACH IM S. Edelcup, Mayor APPROVED AS TO FORM AND LEGAL SUFFICIENCY Attorney C) . tI March 20, 2012 Mr. Alan Cohen City Manager City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 Proled- 8unny)ates_ Beach — Gatewav Park Dear Mr. Cohen, corporate offloe o 30507.8333 7416 SW 4e1h Street 8 305.667,8870 Wanu. FL 33156 1 USA 21 "'a5®axlbma3.cbm With regards to the above referenced project and pursuant to Issues discussed during our meeting of 03/19/12 and further items discussed during the meetings of 03/02/12; 03/09/12 and 03/16/12, we hereby provide a revised Summary for all sddidonal Items submitted for approval ( to the Parking Structure Contract (dated 07/21/11) with a revised Total Project Cost amount. I. Move garage building to the east (approx. 20' -0" from west property line) accommodating the future service area at northwest corner of the site — this will be studied during Design Development. 2. Fire sprinkler system — Provide cost for a total of four (4) levels. 3. Security system - Provide an allowance for conduit prep work in park and garage, 4. Restrooms —Total of six (6) stalls for each men and women restroom capacity. 5. Fence at north side to be B' -0" high. 6. Add an entry walkway at the northeast comer of the park. 7. Leave walkway path all around the Great Lawn at 16' -0" wide but do not use any loose gravel and provide pavers and sub - surface compaction to sustain a truck. B. Make Great Lawn 15 feet wider and reduce the length of the north berm — the height of the retaining wall to remain while the slope will be greater. 9. Make sure that the daytime and nighttime lighting is In separate circult. 10. Incorporate LED lighting — No fluorescent lighting and leave Park Site Lighting doWance at $290,000.00. 11. Make sure that the water features have a covered area for pumps and chemical dwage. 12. Eliminate small berm and provide a seat wall with stone coping at the south edge of park behind the fence. Corporate Repfatmbbn / AA0002273 Architect Registration / AR14049 SkB EXHIBIT "A" Mr. Alan Cohen ftch 20, 2012 ( 13. Make 'Exotic Planter" a dry planter — no water feature at this location. 14. Study and adjust the proximity of the plaza trees to the kids water feature — Avoid leaves from clogging the waterjet system. 15. Great lawn shall maintain a constant elevation as originally designed. 16. Provide a 30'x60' stage with a 12'x20' back room and stage floor to be 42° above adjacent walkway flooring. — To be designed for a total budget of $500,000.00 17. Provide landscape lighting fixtures with outlets. 18. Provide sufficient electrical panel capacity for other park activities and /or functions 19. Do not use lemon or fruit trees on park. 20. Do not use Sabel palms and make landscaping budget an allowance in order to determine the specific tree species a later time — It is preferred to use a variety of trees similar to Fairchild Garden. 21. Provide three (3) flag poles at the northeast corner of the site. 22. Slope top of crash wall to avoid kids form walking on surface. 23. All three (3) Kids Play Equipment apparatus to remain as originally designed. 24. Leave Kids Water Court and the Water Wall. 25. Leave the Playground Cover for three apparatus. 26.40i Level Banquet Hall and Restaurant will not be included as part of the scope of work. 27. Provide a HC restroom for the stage back room. Note: Due to the fact that at this time there is no spit report or structural engineer design, we will maintain a structural slab Inside the storage room. Once we engage In the Design Development Phase and this Issue Is further reviewed we can make a better assessment on what type of slab better suits the project and achieves the target budget. The cost for a non- structural floating slab is estimated at $20.00 SF (Including the fill required to achieve the same level of the building ground floor slab). Please keep in mind that many of these Items are of a technical nature that will be Incorporate in the project documents during the Design Development and Construction Document Phase, therefore they are not reflected on the Site Plan Approval documents at this time. Summary of Total Project Coats Parking Structure Contract = $10,000,000.00 Additional Items to Parking Structure under contract dated 7121111 submitted for approval: Foundation Improvements for 49' Level Construction: $ 490,000.00 Park Improvements (60,000 SF Site) _ $ 3,734,321.00 Pedestrian Bridge and Towers = $ 2,217,941.00 Pertormance btaae = 2 guy. Total a $ 9,942, e e Tinkle credit 2 floors = 100 Ad !sled Total = $ 9,842, Page 2 or 3 NJ Mr. Nan Cohen ,^ march 20, 2012 rroJec[ i oiai = trcounaedl $10,500,000.00 Additionally and in accordance with the Parking Structure Contract (dated 07/21111) - Paragraph 8.18, it Is estimated that the City may achieve additional savings of approximately $200,000.00. This will brinn the Protect Coat to an estimated total amount of $16,300.000,00 We maintain our commitment to the City of Sunny Isles-Beach, Florida and p1e356 do not hesitate to contact me if you have any questions or concerns. Respectfully, L 4ato.�� X11 l axloma3ardiitects Eduardo CastiAeira, Architect President SIB Page 3 of 3 IN TAX EXEMPTION AGREEMENT TO CONTRACT City of Sunny Isles beach Q�rct1 3c3 .2012 The Contractor and Owner desire to enter into an arrangement whereby certain purchases under the Contract can be made through the Owner as a means of taking advantage of the Owner's status of being exempt from sales and use tax. Notwithstanding anything in the Contract to the contrary, the Owner shall directly purchase all materials and equipment identified in the Contract Documents as required for incorporation into the Project ( "Owner- Provided Materials') and as requested by Contractor pursuant to this Agreement. The Owner does hereby grant to the Contractor the full authority as an agent of the Owner to prepare, place and execute Purchase Orders for and in the name of the Owner for all Owner - Provided Materials. The Contractor as agent of the Owner shall sign such Purchase Orders. No such orders shall be less than $10,000.00. 2. The Owner will be liable for the timely payment for all Owner - Provided Materials. The Contractor will submit requisitions for orders of Owner - Provided Materials to the Owner for approval when required. Vendors will render statements ( "OPM Invoices") to the Owner for any Owner- Provided Materials purchased. The Owner will provide copies of all OPM Invoices to the Contractor upon approval by the Owner. After reviewing the OPM Invoices, the Contractor will return these OPM Invoices with proper back up to the Owner for payment. The Owner shall make payment directly to the respective vendors as provided in the OPM Invoices. The Owner will send such vendor payments along with Contractor payment to the Contractor who will, as Owner's agent, distribute such vendor payments to the respective vendors in return for Releases of Lien. The Owner will provide Contractor with any tax exemption certificates or other documents required or useful to provide to the vendors of Owner - Provided Materials to evidence the tax- exempt status of the Owner. 3. The Contract Sum and GMP, but not the Contractor's Fee, shall be reduced by the sum of all Costs of the Work paid by the Owner for Owner - Provided Materials plus any applicable sales and use tax amounts initially included in the Contract Sum and GMP for such Owner - Provided Materials. 4. The Contractor shall maintain separate accounting records for all transactions carried out under the authority of this Agreement. Such records shall be open to the Owner during normal business hours of the Contractor. As compensation to the Contractor for accounting services respecting the sales tax savings program, an amount equal to one-sixth of the tax savings shall be paid to the Contractor upon submittal of proper invoice to the City. Owner hereby agrees to promptly purchase any materials requested by Contractor pursuant to the Contract upon the submittal of Purchase Orders to the City. 5. The Contractor shall select, obtain approvals, submit samples, price shop drawings, pursue, receive, inspect, and accept or reject all Owner- Provided Materials purchased in the manner described herein per the Contract. The Contractor shall remain responsible for the proper installation of all Owner- Provided Materials and will continue to warrant its installation of these Owner - Provided Materials as provided in the Contract. This Agreement will not be an acceptable excuse for delay to the construction schedule. 6. The authority granted the Contractor hereunder may be revoked by the Owner at any time upon written notice delivered to the Contractor at its offices at: 3211 Ponce De Leon Blvd. Suite 301, Coral Gables Beach, Florida 33134, during normal business hours. The Owner agrees that the Contractor's Fee as set forth in the Contract shall not be reduced as a result of any Owner- Provided Materials deduct change orders; i.e., the Contractor's Fee shall continue to apply to the total sum of all remaining Costs of the Work plus the costs of all Owner- Provided Materials and plus the applicable tax amounts. Likewise, all agreed charging rates based on the GMP r Contract Sum, including without limitation for bonds and insurance, shall continue to be charged based on t total sum of the Contract Sum or GMP amount plus the costs of all Owner - Provided Materials and plus t li ble tax amounts. Alan J. Coh n, City Manager 4M Investors, LC The City of Sunny Isles Beach SIB EXHIBIT "B" INTERNATIONAL GENERAL CONTRACTOR Project Gateway Park -Pedestrian Bridge Date: 02116112 Location: City of Sunny Islas Beach, Florida Park Cost Estimate Summary a No Item Description Unit e Coat / Unit Total Remarks 2000 SITEWORK Sod (Installed) 10,000 SF 1.00 10,000.00 Plaza / Walkways (pavers) ,4,000 SF 7.00 28,000.00 Drainage / Site Utilities 1 UN 60,000.00 60,000.00 Landscape Planting 1 UN 50,000.00 50,000.00 Allowance Bridge Installation - Site related costs 1 UN 75,000.00 75,000.00 3000 CONCRETE Concrete /Masonry - Towers 2 UN 1 275,000.00 550.000.00 Including towdatbns 4000 MASONRY CMU - Included under Concrete 0.00 6000 METALS Metal Panels / Screens 1 UN 90,000.00 90,000.00 Stairs 2 UN 70,000.00 140,000.00 6000 CARPENTRY / WOOD 8. PLASTIC Included under Concrete 0,00 7000 THERMAL MOISTURE Included under Concrete 0.00 8000 DOORS S WINDOWS Metal Doors 2 UN 2,000.00 4,000.00 8000 FINISHES Stucco - Included under Concrete 0,00 Paint 1 1 UN 1 20,000.00 20,000.00 10000 SPECIALTIES Not Applicable 0.00 11000 EQUIPMENT Not Applicable 0 0.00 Page 1 of SIB Agend' a"Cferli - 3 Date 3 - 27S' 12.) Notes: Of- Estimated project costs does not include the following: Land acquisition cost. Testing fees. City / Agency fees. Relocation of existing elect. poles. Upgrades to e>asting utilities. Environmental related Issues and/or work. Demolition of existing structures, utillfies, underground constructlons, etc. 02- Costs are subject to change based on final program, design and/or site conditions. Page 2 or 2 SIB Park Cost Estimate Summary Code No. Item Description unit e Cost / Unit Total Remarks AmauN M,ipn,llal 12000 FURNISHINGS Not Applicable 0 0.00 13000 SPECIAL CONSTRUCTIONS Prefabricated Metal Bridge (Painted) 130 LF 2,200.00 288,000.00 Alkwance 14000 CONVEYING SYSTEMS Elevators 2 UN 85,000.00 170,000.00 15000 MECHANICAL Not Applicable 0.00 16000 ELECTRICAL Electrical work / Panels 1 I UN 1 80,000.00 BO,000.00 Lighting 1 UN I 100,000.00 100,000.00 Aaowance SUB -TOTAL $1,663,OOD.00 Contingency General Conditions Gen. Liability Insurance GC Overhead / Fee $41,575.00 $170,457.50 $26,250.46 $95,064.15 TOTAL HARD COST $1,996,347.10 ArE & Consultants Professional Fees Letter of Credit $199,634.71 $21,959.82 PROJECT TOTAL $2,217,941.63 Notes: Of- Estimated project costs does not include the following: Land acquisition cost. Testing fees. City / Agency fees. Relocation of existing elect. poles. Upgrades to e>asting utilities. Environmental related Issues and/or work. Demolition of existing structures, utillfies, underground constructlons, etc. 02- Costs are subject to change based on final program, design and/or site conditions. Page 2 or 2 SIB INTERNATIONAL GENERAL CONTRACTOR Protect Gateway Park Date: 03/16112 Localim: City of Sunny Isles Beach, Florida Park Cost Estimate Summary (Incorporates City Requirements of 3012; 3/9/12 and 3115/12) Code No. Unl a Item Description Am akWuqW Cost / Unit Total Remarks 2000 SITEWORK Site fill / Earthwork 4,445 CY 40.00 177,800.00 Fill s Sefaerrent Site leveling 8. compaction - labor 80,000 SF 1.50 90,000.00 Sloped berm fill & compaction 1,164 CY 40.00 46,560.00 Fills settlement Top soil (4' 395 CY 35.00 13,825.00 Golfcourse type sod (Installed) 44,438 SF 1.00 44,438.00 Bemuda grass Walkways (pavers) 30,200 SF 14.00 422,800.00 Drainage /Site Utilities 1 UN 200,000,00 200,000,00 Landscape planting / Irrigation 1 UN 222,480.00 222,480.00 Afko, n o Playground surface material (Installed) 3,600 UN 12.00 43,200.00 3000 CONCRETE 4000 Concrete /Masonry 7 UN 1 78,000.00 78,000.00L"feWnfrV"Wsaseat MASONRY -d Wr I r oanvete cep CMU - Included under Concrete 000 Stone wall copping 18' (Installed) 2,65001 LF 25.00 85,000.00 5000 METALS Picket Fence (6' -W high) 887 LF 60.00 53,220.00 Picket Fence (8' -D- high) 313 LF 80.00 25,040.00 Gates 1 UN 20,000.00 20,000.00 VeNcufara Pedestrian 6000 CARPENTRY / WOOD a PLASTIC Included under Concrete 0 7000 THERMAL MOISTURE Included under Concrete 0 8000 DOORS & WINDOWS Included under Concrete 0 9000 FINISHES Stucco - Included under Concrete 0 Paint 1 UN 15,000.00 15,000.00 10000 SPECIALTIES Not Applicable 0.00 Page i of 2 SIb- Park Cost Estimate Summary (Incorporates City Requirements of 312/12; 3/9112 and 3/15/12) Code No. Item Description Unit a Cost / Unit Total MEMO Remarks M,o,ua q,uUan Du 1100D EQUIPMENT Flag Poles (Installed) 3 UN 2,500.00 7,500.00 12000 FURNISHINGS Benches (Installed) 21 UN 1,500.00 31,600.00 abwence Trash Receptacles (Installed) 8 UN 800.00 8,400.00 Aaaranoa Plaza Tables 8 Chairs 1 UN 30,000.00 30,000.00 Allowance Kids Play Equipment (Installed) 3 UN 35,000.00 105,000.00 Aaavrance 13000 SPECIAL CONSTRUCTIONS Kids Water Court 1 UN 200,000.00 200,000.00 Playground Cover Construction 3 UN 30,000.00 90,000.00 Aaowance Fire Sprinkler System 1 UN 304,200.00 304,200.00 For 4 Wels Larger Restrocros 774 SF 90.00 69,660.00 Larger Storage 2,845 SF 30.00 85,350.00 14000 CONVEYING SYSTEMS Not Applicable 0.00 15000 MECHANICAL Not Applicable 0 16000 ELECTRICAL Park Site Lighting 1 UN 290,000.00 290,000.00 Aaow nce Parking Garage - LED Lighting 1 UN 25,000.00 25,000.00 Aaowance Day / Night1me Separate Curcuit 1 UN 8,000.00 8,000.00 Security System prep -work 1 UN 30,000.00 30,000.00 Aaowance SUB -TOTAL $2,799,973.00 Contingency $69,999.33 General Conditions $286,997.23 Gen. Liability Insurance $44,197.57 GC Overhead / Fee $160,058.38 TOTAL HARD COST $3,361,226.49 A/E 8 Consultants Professional Fees $336,122.55 Letter of Credit $38.973.48 PROJECT TOTAL $3,734,321.52 Total Cost/ SF $82 24 notes. O1- Estimated project costs does not Include the following: Land acquisition cost. Testing fees. City I Agency fees. Relocation of existing elect. poles. Upgrades to existing utilities. Environmental related Issues and/or work. Demolition of existing structures, utilities, underground constructions, etc. 02- Costs are subject to change based on final prograrMs IgNandlor site conditions. I INTERNATIONAL GENERAL CONTRACTOR Praia& Gateway Park -Performance Stage Date: 03/21112 Location: City of Sunny Isles Beach, Florida Park Cost Estimate Summary (Incorporates City Requirements of 312112 :3/9/12 and 3115/12) Code No. Item Des lion P Unit s Cost / unit Total Remarks Maanr o..ga.dan 2000 SITEWORK Installation - Equip. 8 site related costs 1 UN 18,000.00 16,000.00 3000 CONCRETE Conc. / Masonry - Stage/Wa11/Backreom 1 UN 109,000.00 109,000.00 Inctudaq foundations 4000 MASONRY CMU - Included under Concrete 000 5000 METALS Primary Support Columns 4 UN I 7,000.00 28,000.00 Roof support system - Beams 8 Truss 1.800 SF 20.00 36,000.00 6000 CARPENTRY / WOOD 8 PLASTIC Included under Concrete 000 7000 THERMAL MOISTURE Metal Roofing 1,800 SF 1 22.00 39,600.00 8000 DOORS & WINDOWS Not Applicable 0.00 9000 FINISHES Stucco - Included under Concrete 0 0.00 Paint - Metal/ Stucco 1 UN 15,000.00 15.000.00 10000 SPECIALTIES Not Applicable 0.00 I Not Applicable 000 Page 1 of 2 SIB Notes: 01- Estimated project costs does not include the following: Land acquisition cost. Sound System Design / Installation / Equipment Testing fees. City / Agency fees. Relocation of existing elect. poles. Upgrades to existing utilities. Environmental related issues and/or work. Demolition of existing structures, utilities, underground constructions, etc. 02- Costs are subject to change based on final program, design and /or site conditions, Pape 2 of 2 SIB Park Cost Estimate Summary (Incorporates City Requirements of 3/2112; 3MI12 and 3115112) Code No. Item Description p Unit a at I Unit Total Remarks 12000 FURNISHINGS Not Applicable 0 13000 SPECIAL CONSTRUCTIONS Not Applicable 000 14000 CONVEYING SYSTEMS Not Applicable 0.00 15000 MECHANICAL A/C System (Installed) 1 UN 1 10,00000 10,000.00 HC Restroom at bacluoom 1 UN 19,800. .00 19,600.00 Including � terasevar 16000 ELECTRICAL Electrical work / Panels 1 UN 40,000.00 40,000.00 Lighting 1 UN 1 60,000.00 60,D00.00 APOwance SUB -TOTAL $375,400.00 Contingency General Conditions Gen. Liability Insurance GC Overhead / Fee $9,385.00 $38,478.50 $5,925.69 $21,459.46 TOTAL HARD COST $450,646.65 AIE 8 Consultants Professional Fees Leper of Credit $45,064.86 $4,957.14 PROJECT TOTAL $500,670.65 ROUNDED PROJECT TOTAL $500,00100 Notes: 01- Estimated project costs does not include the following: Land acquisition cost. Sound System Design / Installation / Equipment Testing fees. City / Agency fees. Relocation of existing elect. poles. Upgrades to existing utilities. Environmental related issues and/or work. Demolition of existing structures, utilities, underground constructions, etc. 02- Costs are subject to change based on final program, design and /or site conditions, Pape 2 of 2 SIB SIB Sc6mitic Estimate �Gsrasj Park momm ®oar• -�� FIMIATITI 7". , rl - - - - - -- .. ElEi�vE�Ei9EEa��T -.l- ooEERM. NF' M��' ��E7 E o0METZ=womm *y�- TY7M, M�= = °oo Aim �. O0 ME EoT.mwo.ea�� SIB SIB liliji Park .,, r, l7aE Eii�� 1�sr �� 1. .__ 7"M •:1 .i I!'1 {._— 1 111 — fib: :_ •.V1: —_ —_ _— _— ___ SIB INi 00��0 ©�LL• -y..7 • d 0 E§7C7 EiiJO �f fT..:•� � � INi BEi r• ©gym ©��� .. O EEO r'aE,- P.T.. -rq BEi ------- ---- i �F R 01 VT I<iv I I N TA 0 O J_ 7 m Q G 0 Z Z N g g_ 3 i r i' I -� I e ;a � 5 444§ AI �d �I w aIV gmg d g e x (nbbn ig5 � •2 no y� da 8 T 6 y^y � O F y4 w O g j' 0 d i s F¢ 11 Q 0 Y a m W N 8 9�@ fi g_ 3 i r i' I -� I e ;a � 5 444§ AI �d �I w aIV gmg g e x (nbbn ig5 � •2 no y� da 8 T 6 y^y � O F y4 w O g j' 0 d i s F¢ 11 Q 0 Y a m W N 8 9�@ fi ° n - S a I I I r i' I -� I i' I AI �I kk L I 3'5.1. Ya4r •j 'y io �-- `�'wC�' -i ° n - S a LITTV, 01 - c qj 1� IJ SIB Ic Z 0 Oil E i6 w 8- te 16 SIB °i Z 0 Oil E i6 w 8- °i ,, c, r I s SIB ".v vl nvwvvv auy W VV 133HS 33S SIB ;, II i p D p �• i tanr NOW `` 741 a aM\\`\\\`\, SIB SIB VJ Y a 4 i LL N a d I O I �Q rp JF Q (7 of $g$ F ill Q a I` I I li `V/ — III II II �I I I I b Ab A!t I I I I I Is S� II II II II II Y a 4 i LL N a d I O I �Q rp JF Q (7 of $g$ F ill Q a I O ri SIB !F r-- i, �p �---ti SIB �7zggvA i � r y u15�ts S i KS — vMp o`� w a toll- -. .... 1 " �;IIIII'il .i.,i Iii _ i � r y u15�ts S i KS — vMp o`� w i we a toll- -. .... 1 " i we toll- -. .... i we ? a�� f; I FIN N i I■i�EE####11111 WI ZI I' i LL 1,I E!, Qn�a7:w1 1 lie IEEi�I W �I it w SIB y . WI ZI LL ® W �I it w a � I �3 0 =0 1111�7�i,. I ❑ I° z I �gi �9ZI W U I N I ° ° swi I I I I J I m wi �O Zm 1 N 0 0 f v 'c C a 0 I w v. rc EXHIBIT "B" SCHEMATIC OF PROJECT EXCLUDING THE PEDESTRIAN BRIDGE SIB 1 i oil 1 �aF 1f i I�/ I 1 1 � 1 1 1 1 � i� 1 1 1 1 ' dU• �Ipp I W R . RENEWER` 1 �aF 1f i Alf I IEIEa ,hl sec ne gdg ld a ! 1 it . 1 . IN �s�g9 S !1191€ r= fi l l I®& L U !"9 j3Wt i �at irF i i fill SIB lillill p �I1 I� i i t 9 44, �Ip1�4Pl1: �f s i pill HIM I I t' I i fill 11811 r i � I i!I i its i t �6a 4ri EXHIBIT "C" SHOPPING LIST PREPARED BY THE CITY OF SUNNY ISLES BEACH FOR PARKING GARAGE AND PARK SIB �l GATEWAY PARK GARAGE SHOPPING LIST 12/14/12 Listed below are the redesign criteria requested by the city for the Gateway Park Garage. This list is being compiled after an initial meeting that was held between Jaime Eisen, Helen Grey, Eduardo Castineira, and Clay Parker on 12/4/2012: 1. New garage design to be divided into two zones with 60' clear each side providing parking spaces 18' deep, parking access drive 24' wide. This will be similar to Heritage design. 2. No interior columns (open design), similar to Heritage. 3. Ground level height will be 15' slab to slab, to allow the development of usable ground floor space for future facility. Ground level dear height to be from 12' 6' to 14'. 4. Additional floors, floor to floor height should be adjusted to maintain a minimum clear headroom height with sprinkler system at 7' 60. 5. Enclose approximately 16,000 square feet of ground floor air conditioned space on the South side of parking garage for future facility. 6. The South perimeter wall of the parking structure to be designed utilizing a transfer beam to carry the load of the upper floors of the garage, allowing for the open design of the enclosed 16,000 square foot space, all the way to the south wall. 7. The South and East perimeter_ walls of the enclosed 16,000 square feet space should utilize as much glass storefront as possible. 8. All glazing for the entire project shall utilize impact safety glass to meet the High Wind Zones of the Florida Building Code. 9. Exhaust vents and electrical service through ramp area to the north (not to the roof). 10. Air Conditioning/Refrigeration Condensers to be placed on the North side of the building. 3-4-H 11. walqAaiRclesign for 368 parking spaces as spelled out in the Design -Build agreement 12. All handicap parking on ground level. (8 spaces) 13. The current design shows the West end of the parking structure at 18' 6' to the property line. The west setback by zoning ordinance is 15'. However, it could be reduced, as needed, for lengthening of parking structure to meet the 6% gra de for parking on ramp. If needed, the West set back could be reduced to a minimum of 10' by variance. 14. The previous design located the entrance drives 50' east of the west end of the garage. This was done to support the two future elevators that are not going to be needed and could be moved closer to the west end, giving us the needed additional length to allow for parking ramps. SIB 15. Provide adequate Electrical, Plumbing, and Mechanical rough -ins to prepare the 16,000 square feet of ground floor space, to accommodate the final occupational use of the 16. 1 space. Design a 49' public corridor along the North side of the 16,000 square feet of ground floor space, at the Center of the garage facility. Include 2 separate glassed -in store fronts for ingress and egress into the 16,000 square foot space. Likewise, provide 2 service entrances leading to the corridor. Within this corddor, design an additional 10' secured service corridor mid -way, which will cut thru the underside oflre ramp po ion of the parking garage. This service corridor will provide pickup and delivery service to 17. the North side of the building. Move the Southeast elevator /stair tower to the Northeast area of the building to provide a better park view for the enclosed space. 7' by 5' elevator lifts. We would 18. The Heritage parking garage has two 2,500 pound prefer 2 lifts similar to this design. The 3 stair shafts under the current design would be 19. adequate. Provide a 21' by 220' plaza area along the south side of the 16,000 square feet of ground floor space to accommodate approximately 4,50D square feet of outdoor patio 20. seating area. Finished park bathrooms to remain the same as the original calculations and design separate roughed out bathrooms for enclosed facility space to meet the minimum of an assembly use area. 21. Finished ground floor elevation to be 8' (NGVD 1929,] 1 foot above FEMA's Flood Plain. 22. Provide Handicap accessibility and egress from street sidewalk area to all enclosed areas of the parking garage. 23. Structural ground floor slab to be designed utilizing interior piles and grade beams. 24. Create sidewalk access on the North side of parking garage to pedestrian bridge and park/playground area. 25. Provide gated fence area on the East side of parking garage allowing for the closure of the park, leaving the egress going in and out of the parking garage /enclosed area open at all times. 26. Provide Office space similar to the original design. 27. Provide all other enclosed areas of the original design on this design as allowed and any remaining usable space under the ramp for storage 28. Provide future concession stand area similar to the original design. as the one 29. Create facade on North/East/South side of the garage. (Not a screen type used on Heritage parking garage) 30. Solid crash wall/security barrier on top deck sloped or angled with no eyebrows for sitters. 31. Building to have fire sprinkler system throughout. 32. Provide enclosed Dumpster/ Trash room on the North side, near the service corridor. 33. Service entrance should coincide to the dumpster /service corridor area. 34. wiriag.aad.conduit for security cameras. SIB 35. Vehicular access, both on north and south, is at West end of the building. Provide I ground level speed humps at these entrances. 37. Provide Bicycle /Motorcycle racks similar to original design. 38. Color rendering of.new Parking Garage Building. EXHIBIT "D" Schedule of Values For n seev" Cc=,s DESIGN ITEM DESCRIPTION 1. DESIGN CONCEPT OF DEVELOPMENT 2. CONSTRUCTION DEVELOPMENT — ARCHITECTURE COMPLETION OF ARCHITECTURAL DRAWING 3. CONSTRUCTION DOCUMENTS— ENGINEERING COMPLETION OF ENGINEERING DRAWING TOTAL DESIGN SIB 250.000.00 450,000.00 500,000.00 1,200,000.00 0 -fl City of Sunny Isles Beach 18070 Collins Avenue, Suite 250 Sunny Isles Beach, Florida 33160 (305) 947 -0606 City Hall • 4_ (305) 949-3113 Fax tiE °ar_ FtoPSO s,,e (305) 947 -2150 Building Department 305 947 -5107 Fax OF SUN MEMORANDUM TO: The Honorable City Commission FROM: Christopher J. Russo, City Manager Hans Ottinot, City Attorney DATE: April 8, 2013 City Commission Norman S. Edelcup, Mayor Isaac Aelion, Vice Mayor Jeanette Gana. Commissioner Jennifer Levin. Commissioner George "Bud" Scholl. Commissioner Christopher J. Russo City Manager Hans Ottinot, City Attorney Jane A. Hines, CJIC, City Clerk RE: Third Amendment to the Design -Build Agreement between the City of Sunny Isles Beach and 4M Investors, LLC Based on the instructions provided by the City Commission at the commission meeting held on March 21. 2013, the City and 4M Investors; LLC ( "Contractor') were able to finalize the terms and conditions of a Third Amendment to the Design -Build Agreement ( "Amendment'). The Amendment has been executed by Mayor Edelcup and Jose Milton, the principal of the Contractor. The Amendment is subject to the approval of the City Commission. The following are the essential terms of the Third Amendment: (1) A Revised Guaranteed Maximum Price ( "GMP ") of $18.710,186.00 was reduced to $17343.701.30 based on a credit for design services paid previously by the City; (2) The elimination of the Pedestrian Overpass Bridge from the description of the Project; (3) Requiring the Contractor to apply for building permit no later than October 1, 2013, and Final Completion of the Project no later than 365 days from date of issuance of building permit; (4) Requiring payment and performance bonds within 5 days of issuance of building permit; (5) Reducing payment and performance bonds amount to 15% of GMP after final completion; (6) City agreeing to pay costs of continuing bonds at reduced rate for the one year period after final completion. The cost of $24,000.00 is included in the GMP; and (7) Modifying the Site Investigation language in the original Design -Build Agreement to reduce exposure to liability. The above terms are consistent with the directions that we received from the City Commission. It is important to note that we will continue to work to construct the pedestrian bridge to connect the north side of Gateway Park to the north side of 826 West. The Contractor has agreed to provide the City with required information to construct the bridge. Based on the foregoing, we recommend approval of the Third Amendment. Agenda Item 3 P� Date 4-9-13