Construction Manager at Risk Agreement By and Between The City

Construction Manager at Risk Agreement By and Between The City Of Miami And (TBD) For Construction Manager at Risk Services

For Stadium Site Parking

Capital Improvements Program 444 SW 2nd Avenue, 8th Floor

Miami, Florida 33130

Stadium Site Parking, B-30648 Page 1

Contents

TABLE OF CONTENTS

Section 1 - General Terms and Conditions ................................................................................. 5 1. Overview/Recitals ................................................................................................................ 5 2. Intention of City ................................................................................................................... 5 3. Construction of the Agreement ............................................................................................ 6 4. Agreement Term .................................................................................................................. 6 5. Definitions............................................................................................................................ 6 6. Time is of the Essence ....................................................................................................... 12 7. Taxes .................................................................................................................................. 13 8. Contract Documents........................................................................................................... 13 9. Review of Contract Documents ......................................................................................... 14 10. Site Investigation and Representation ............................................................................ 14 11. Construction Manager’s Duties ...................................................................................... 15 12. Construction Key Personnel and Staffing ...................................................................... 16 13. Subcontractors ................................................................................................................ 17 14. Quality Management ...................................................................................................... 19 15. Progress Report .............................................................................................................. 20 16. Architect of Record ........................................................................................................ 20 17. Construction Inspection Services ................................................................................... 21 18. Primary Contact.............................................................................................................. 21 19. Partnering ....................................................................................................................... 21 20. Policies, Procedures and Reporting ................................................................................ 21 21. Ownership and Use of Documents ................................................................................. 21 22. Plans and Working Drawings ......................................................................................... 22 23. Supplementary Drawings ............................................................................................... 22 24. Supplemental Drawings and Instructions ....................................................................... 22 25. Continuing the Work ...................................................................................................... 22 26. Discretion of Director..................................................................................................... 23 27. Authority Of The City’s Project Manager...................................................................... 23 28. Lines and Grades ............................................................................................................ 24 29. Removal of Unsatisfactory Personnel ............................................................................ 24 30. Defective Work .............................................................................................................. 24 31. Correction Of Work ....................................................................................................... 25 32. Warranty of Materials and Equipment ........................................................................... 25 33. Material and Equipment Shipment, Handling, Storage and Protection ......................... 26 34. Manufacturer’s Instructions ........................................................................................... 27 35. Manufacturer’s Warranty ............................................................................................... 28 36. Reference Standards ....................................................................................................... 28 37. Changes in the Work or Terms of Contract Documents ................................................ 29 38. Construction Manager’s Damages for Delay ................................................................. 29 39. Occupational Health and Safety ..................................................................................... 29 40. Safety Precautions .......................................................................................................... 30


41. Accidents ........................................................................................................................ 31 42. Loss & Damage to Property ........................................................................................... 32 43. Priority Of Provisions..................................................................................................... 32 44. Payments ........................................................................................................................ 33 45. Communication and Notices .......................................................................................... 33 46. Indemnification .............................................................................................................. 34 47. Owner Controlled Insurance Program & Construction Manager’s Insurance ............... 35 48. Modifications To Coverage ............................................................................................ 39 49. Payments Related to Guaranteed Obligations ................................................................ 40 50. Default/ Events of Default.............................................................................................. 40 51. Notice of Default-Opportunity to Cure .......................................................................... 41 52. Remedies for Construction Manager’s Default /Waiver of Claims for Consequential

Damages ......................................................................................................................... 41 53. Termination for Convenience......................................................................................... 42 54. Termination Due To Undisclosed Lobbyist Or Agent ................................................... 43 55. Materiality And Waiver Of Breach ................................................................................ 44 56. Force Majeure ................................................................................................................ 44 57. Resolution Of Agreement Disputes................................................................................ 44 58. Mediation - Waiver Of Jury Trial .................................................................................. 45 59. Applicable Law And Venue Of Litigation ..................................................................... 46 60. City May Avail Itself of All Remedies .......................................................................... 46 61. Permits, Licenses and Impact Fees ................................................................................ 46 62. Compliance With Applicable Laws ............................................................................... 47 63. Public Entity Crimes ...................................................................................................... 47 64. Audit Rights ................................................................................................................... 47 65. Nondiscrimination, Equal Employment Opportunity, and Americans with Disabilities

Act .................................................................................................................................. 48 66. Independent Contractor .................................................................................................. 48 67. Successors And Assigns ................................................................................................. 48 68. Third Party Beneficiaries ............................................................................................... 49 69. Contingency Clause........................................................................................................ 49 70. Performance Evaluation ................................................................................................. 49 71. Joint Preparation- Interpretation..................................................................................... 49 72. Confidentiality ................................................................................................................ 50 73. Agreement Limiting Time in Which to Bring Action Against the City ........................ 50 74. Defense of Claims .......................................................................................................... 50 75. Amendments................................................................................................................... 50 76. Severability..................................................................................................................... 50 77. Survival .......................................................................................................................... 51 78. Entire Agreement ........................................................................................................... 51 79. Small Business/Local Workforce Participation ............................................................. 51 80. First Source Hiring Agreements ..................................................................................... 51 81. Special City Provisions: ................................................................................................. 52

Section 2 - Pre-Construction Phase ........................................................................................... 53 1. Agreement Time ................................................................................................................ 53 2. Fixed Construction Budget ................................................................................................ 53


3. Pre-Construction Phase Services ....................................................................................... 53 4. Value Engineering & Constructability............................................................................... 54 5. IGMP.................................................................................................................................. 55 6. Pre-Construction Phase Additional Services ..................................................................... 55 7. Compensation for Preconstruction Phase Services ............................................................ 56 8. Pre-Construction Phase Performance and Delegation ....................................................... 56 9. Pre-Construction Fee Application for Payment Submittal ................................................ 57 10. Pre-Construction Phase Meetings .................................................................................. 57 11. Guaranteed Maximum Price........................................................................................... 57 12. Cost Control ................................................................................................................... 59 13. Market Analysis and Stimulation of Bidder Interest ...................................................... 59 14. Bid and Award of Subcontracts ..................................................................................... 59 15. Responsibility ................................................................................................................. 61 16. Project Schedule ............................................................................................................. 61

Section 3 - Construction Phase .................................................................................................. 63 1. Construction Phase Services .............................................................................................. 63 2. Construction Phase Time for Completion.......................................................................... 63 3. Liquidated Damages .......................................................................................................... 63 4. Hours Of Operation............................................................................................................ 64 5. Construction Manager’s Supervision ................................................................................. 64 6. Construction Coordination/Adjacent Development Work................................................. 64 7. Acceleration ....................................................................................................................... 65 8. Construction Work Meetings ............................................................................................. 66 9. Progress Payments ............................................................................................................. 66 10. Acceptance and Final Payment ...................................................................................... 67 11. Subcontracts: .................................................................................................................. 68 12. Interfacing of Subcontracts ............................................................................................ 68 13. Performance Bond and Payment Bond .......................................................................... 68 14. Qualification of Surety: .................................................................................................. 69 15. Warranty of Construction ............................................................................................... 70 16. Methods Of Performing The Work ................................................................................ 70 17. Construction Manager’s Use Of Project Site ................................................................. 71 18. Work Staging And Phasing ............................................................................................ 71 19. Existing Utilities and Trees ............................................................................................ 71 20. Construction Manager’s Responsibility for Utility Properties and Service ................... 72 21. Differing Site Conditions ............................................................................................... 73 22. Product and Material Testing ......................................................................................... 73 23. Project Site Facilities ...................................................................................................... 74 24. Safety and Security......................................................................................................... 74 25. Worker’s Identification .................................................................................................. 75 26. Royalties and Patents: .................................................................................................... 76 27. Labor and Materials ....................................................................................................... 76 28. Substitutions ................................................................................................................... 76 29. Maintenance of Traffic and Public Streets ..................................................................... 77 30. NDPES Requirements .................................................................................................... 79 31. Construction Signage ..................................................................................................... 79


32. Inspection of Work ......................................................................................................... 79 33. Mounting Heights ........................................................................................................... 80 34. Submittals ....................................................................................................................... 80 35. Shop Drawings ............................................................................................................... 81 36. Product Data ................................................................................................................... 83 37. Samples .......................................................................................................................... 83 38. Record Set ...................................................................................................................... 83 39. As-Built Drawings.......................................................................................................... 83 40. Requests For Information (RFI) ..................................................................................... 84 41. Field Directives .............................................................................................................. 85 42. Work Logs ...................................................................................................................... 85 43. Change Orders ................................................................................................................ 85 44. Value of Change Order Work ........................................................................................ 86 45. Substantial Completion, Punch List & Final Completion .............................................. 89 46. Training .......................................................................................................................... 90 47. Post Occupancy Inspection ............................................................................................ 90 48. Excusable Delay ............................................................................................................. 90 49. Notification and Claim for Change of Construction Work Time for Completion or GMP 91 50. Hurricane Preparedness .................................................................................................. 91 51. Stop Work Order ............................................................................................................ 92 52. Cleaning Up; City's Right to Clean Up .......................................................................... 92 53. Removal of Equipment................................................................................................... 93 54. Warranty Phase .............................................................................................................. 93

ATTACHMENT A ....................................................................................................................... 94 ATTACHMENT B ..................................................................................................................... 101 ATTACHMENT D ..................................................................................................................... 105 ATTACHMENT E...................................................................................................................... 107 FORM OF PERFORMANCE BOND (Page 1of 3) ................................................................... 108 FORM OF PAYMENT BOND (Page 1of 3) .............................................................................. 111 PERFORMANCE AND PAYMENT GUARANTY FORM ..................................................... 114 GMP AMENDMENT TO AGREEMENT ................................................................................. 117 MATERIALS PURCHASED AND STORED AT PROJECT SITE ......................................... 119


THIS AGREEMENT, made and entered into this ______ day of _____, 2009 by and between the City of Miami, Florida, a municipal corporation, hereinafter called the City, and (Name of Contractor), a Florida Corporation, hereinafter called Construction Manager.

WITNESSETH:

WHEREAS, the City, Miami-Dade County (the “County”) and Marlins Ballpark Developer LLC (“Stadium Developer”) entered into a Construction Administration Agreement (“CAA”) that provides for the design, development and construction of a baseball stadium, public infrastructure and related improvements (the “Baseball Stadium”) on the site depicted and described in Attachment A as the “Baseball Stadium Site,” which Exhibit is incorporated into and made a part of this Agreement (the “Adjacent Site”); and

WHEREAS, the City, the County and Marlins Stadium Operator LLC entered into a City Parking Agreement (the “Parking Agreement”) that provides for the construction, operation and use of certain parking facilities on the site located within the vicinity of 1501 NW 3rd Street, Miami, Fl, and depicted and described in Attachment C as the “Parking Site”, which Exhibit is incorporated into and made a part of this Agreement (the “Project Site”); and WHEREAS, on ___________, 2009, the City issued a Request for Proposal for Construction Management-at-Risk Services for Stadium Site Parking (RFP) for the construction of the Stadium Site Parking on the Project Site (the “Stadium Site Parking”); and

WHEREAS, the Construction Manager submitted the Response to the RFP (the “Response”) that was deemed the most qualified for the performance of the services described in the RFP, which Response and RFP are incorporated into and made a part of this Agreement; and

WHEREAS, Construction Manager represents that it possesses the requisite expertise and desires to enter into an agreement to act as the Construction Manager at Risk to the City to provide the services as set forth herein; and

WHEREAS, the City Commission has authorized the City Manager to execute and enter into this Agreement by Resolution No. (xx-xxxx) adopted (date);

NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and compensation set forth herein the City and Construction Manager agree as foIlows:

Section 1 - General Terms and Conditions 1.

This Agreement sets forth the terms and conditions pursuant to which Construction Manager will provide Construction Manager at Risk Services for the construction of the Stadium Site Parking, as further detailed in the Agreement. The Recitals are incorporated into and made a part of this Agreement.

Overview/Recitals

2. It is the intent of City to describe in the Contract Documents a functionally complete Project to be constructed in accordance with the Contract Documents and in accordance with all codes and regulations governing construction of the Project. Any work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied by Construction Manager whether or not specifically called for. Where words, which have a well-known technical or trade meaning, are used to describe work, materials or equipment, such words shall

Intention of City


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 opening of bids and Construction Manager shall comply therewith. City shall have no duties other than those duties and obligations expressly set forth within the Contract Documents.

3. This Agreement is comprised of three sections, which are applicable in the following manner:

Construction of the Agreement

• Section 1 – General Terms and Conditions:

•

This Section applies to both the Pre-Construction and Construction Phase Services, if awarded, except where it is stated that the requirements apply to only a specific Phase.

Section 2 – Pre-Construction Phase

•

: The provisions of this Section apply only to the Pre-Construction Phase Services.

Section 3 – Construction Phase

4.

: The provisions of this Section are only applicable to the Construction Phase Services and shall only become effective upon the City’s execution of the GMP Amendment.

The Agreement shall commence upon issuance of the Notice of Award, which shall be issued subsequent to the execution of the Agreement by the City. The Agreement shall terminate upon notice by the City that the Agreement has been closed-out after final completion or otherwise terminated by the City pursuant to the terms and conditions herein set forth.

Agreement Term

5. Adjacent Property shall have the meaning ascribed to it in the Recitals. Definitions

Agreement means this Agreement, together with all documents incorporated herein by reference and the Contract Documents.

Adjacent Development Work means work contemplated for the development and construction of the Baseball Stadium. Agreement Time means the time period defined in this Agreement for the Construction Manager to complete the Pre-Construction Phase Services and submit the GMP Proposal, which shall be amended to reflect the Construction Phase should the City accept the GMP Proposal.

Baseball Stadium shall have the meaning ascribed to it in the Recitals.

Basis of Design means a specific manufacturer’s product that is named, including the make or model number or other designation, establishing the significant qualities related to type, function, dimension, in-service performance, physical properties, appearance, and other characteristics for purposes of evaluating comparable products of other manufacturers.

CAA shall have the meaning ascribed to it in the Recitals.

Change Order means a written document ordering a change in the Agreement Price or Agreement Time or a material change in the Work. A change order must comply with the Contract Documents.


City means the City of Miami, Florida, a Florida municipal corporation. In all respects hereunder, City’s performance is pursuant to the City’s capacity as Owner of the Project. In the event the City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, codes, laws and ordinances shall be deemed to have occurred pursuant to City’s authority as a governmental body and shall not be attributable in any manner to the City as a party to this Agreement. For the purposes of this Agreement, “City” without modification shall mean the City Manager or Director, as applicable. City Commission means the legislative body of the City of Miami.

City Manager means the duly appointed chief administrative officer of the City of Miami.

City’s Project Manager means an employee or representative of the City assigned by the Director to manage and monitor the Work to be performed under this Agreement and the construction of the Project.

Construction Manager’s Project Manager or CM’s Project Manager means the person designated by Construction Manager as its lead representative to the City. The Construction Manager Project Manager shall have the authority to obligate and bind Construction Manager and to act on all matters on behalf of Construction Manager except for revisions to the Contract Documents and Change Orders. CM Project Manager’s responsibilities include creating clear and attainable project objectives, building the project requirements, and managing cost, time, and scope.

Constructability: means the creative, organized process of analyzing a project’s drawings, specifications and other project documentation with a goal of minimizing design, detailing, and specification problems which might render the construction contract documents unbuildable or requiring addenda or change orders to make them buildable.

Construction Change Directive means a written directive to effect changes to the Work, prepared by the Consultant and executed by the City

Construction Estimate means a cost estimate for the completion of the Work, which estimate shall include all components of the cost of the Work, as well as the Construction Manager’s Fee for the Project.

Contract Documents means the documents described in Section 1, Article 8 of this Agreement.

Construction Change Directive means a written directive to effect changes to the Work, issued by the Consultant or the City’s Project Manager that may affect the Agreement Price or Time.

Construction Manager means that (name of Firm), shall provide services including, but not limited to preparation of cost estimates, constructability reviews, value engineering and assist in systems life cycle cost analysis, estimating, scheduling, bidding and submission of a GMP, as defined below, for construction, and construction management. Upon execution of the GMP Amendment, the Construction Manager shall serve, from that point forward, as the General Contractor under this Agreement.

Construction Manager’s Fee means the Construction Phase Fee to be negotiated with the Construction Manager for general conditions, overhead and profit compensation portion of the GMP, as defined below.


Construction Manager’s General Conditions Costs means the necessary and reasonable costs incurred by the Construction Manager directly attributable to the GMP exclusive of the Construction Manager’s overhead and profit. The Construction Manager’s General Conditions Costs shall be a component of the Construction Manager’s fee, and shall be a fixed amount during the entire Construction Phase for the Project, as set forth in the GMP.

Construction Manager’s Project Schedule or Project Schedule means the schedule that the Construction Manager prepares and maintains for the Project. The Project Schedule includes all aspects of the Project, including but not limited to: design, pre-construction services, construction, construction engineering and observation services, testing, project closeout, and warranty.

Construction Superintendent means the CM’s representative who is responsible for continuous field supervision, coordination, and completion of the Work. The Construction Superintendent is responsible for management of the Project Site and tasks including, but not limited to, organization and coordination of the Work of trade craft employees, keeping cost records on Work performed and materials, controlling of costs in materials and wages; exercising control over rate of construction progress to assure complete construction Project within scheduled time; inspecting Construction Work to enforce conformity to the Contract Documents and supervising trades, subcontractors, clerical staff, and other personnel employed in the construction.

Construction Phase Services means the services to be performed through the Construction Manager during the construction phase of the Project, including without limitation, the Construction Work and such other services as required by this Agreement or reasonably inferred herein.

Construction Work means all Work required by this Agreement for the Construction Phase of the Project.

Consultant means a firm that has entered into a separate agreement with the City for the provision of design/engineering services for the Project. Wherever the word "Architect" or “Engineer” appears in the Contract Documents, it shall be deemed to include Architect's or Engineer’s consultants, including architects, engineers, landscape architects and others engaged by Architect. All communications, directives, instructions, interpretations and actions required of Architect shall be issued or taken only by or through the individual identified as Architect in the Agreement or Architect's authorized representative. For the purposes of this Agreement, the Consultant means Leo A. Daly.

Construction Manager’s Contingency means the sum included in the GMP to cover unforeseen costs during construction. The City retains exclusive use and control of said Contingency, and all expenditures must be approved in writing by the City’s Project Manager.

Cure means the action taken by the Construction Manager promptly after receipt of written notice from the City of a breach of the Agreement for the Work, which shall be performed at no cost to the City, to repair, replace, correct, or remedy all material, equipment, or other elements of the Work or the Agreement affected by such breach, or to otherwise make good and eliminate such breach, including, without limitation, repairing, replacing or correcting any portion of the Work or the Project site disturbed in performing such cure.


Cure Period means the period of time in which the Contractor is required to remedy deficiencies in the Work or compliance with the Contract Documents after receipt of written notice to Cure from the City identifying the deficiencies and the time to Cure.

Design Development means the requirements established in the Consultant’s Agreement with the City establishing the requirements for Design Development.

Design Documents means the construction plans and specification prepared by the Consultant for this Project.

Director means the Director of the Capital Improvements Program and or designee, who has the authority and responsibility for managing the Project under this Agreement.

Drawings means the graphic and pictorial portions of the Work, which serve to show the design, location and dimensions of the Construction Work to be performed, including, without limitation, all notes, schedules and legends on such Drawings.

Field Directive means a written approval for the Construction Manager to proceed with Work requested by the City or the Consultant, which is minor in nature and should not involve additional cost.

Final Completion means the date subsequent to the date of Substantial Completion at which time the Construction Manager has completed all the Work in accordance with the Agreement as certified by the Consultant and the City and submitted all documentation required by the Agreement

Fixed Construction Budget means the cost of construction provided by the City for purposes of design development, which has been established at $84,600,000, inclusive of the Construction Manager’s Contingency.

Guaranteed Maximum Price (GMP) means the sum agreed to between the Construction Manager and the City and set forth in the GMP Amendment as the maximum total Project price that the Construction Manager guarantees not to exceed for the construction of the Project and for all services under this Agreement, excluding only the Pre-Construction Fee. The Construction Manager’s Fee plus the sum of the accepted subcontract bids and the Construction Manager’s Contingency shall comprise the GMP. The City reserves the right to request the submission of the GMP proposal to reflect one or more stages of construction.

GMP Amendment means the GMP Proposal, as may be amended and accepted by the City, at its sole discretion, which amendment shall automatically become incorporated herein upon the City and the Construction Manager’s execution of same, and shall establish, among other things, the GMP, the names of the Construction Manager’s on-site management and supervisory personnel for the Project, and the Agreement Time for the Construction Work.

GMP Proposal means a proposal for completing the Construction Work, which will be submitted at 95% completion of Construction Documents. Such proposal shall include the GMP for the construction of the Project once it has been accepted by the City based upon the Drawings and Specifications, the Contract Documents and the Memorandum of Changes. However, the City has no obligation to accept the GMP Proposal.

IGMP means the Interim GMP Proposal which shall be due at 50% completion of Design Development and 50% completion of Construction Documents.


Master Project Schedule means the project schedule prepared by the construction manager of the Baseball Stadium pursuant to the CAA, using a critical path method, as updated from time to time, that identifies, coordinates and integrates the design and construction schedules for the development of the Baseball Stadium (which includes the Public Infrastructure Work) and the Project. The Preliminary Master Project Schedule is attached to the CAA.

Memorandum of Changes means the notification provided to the City and the Consultant by the Construction Manager at the times specified in this Agreement that recommends changes based on the Value Engineering and Constructability reviews.

Notice To Proceed means a written letter or directive issued by the Director or City’s Project Manager acknowledging that all conditions precedent have been met and directing that the Construction Manager may begin Work on the Project or a specific task of the Project.

Parking Agreement shall have the meaning ascribed to it in the Recitals.

Pre-Construction Fee means the fixed lump sum fee of _________________($______), payable to the Construction Manager for the Work performed during the Pre-Construction Phase related to the Project, accepted by the City and the Construction Manager, which fee includes all direct and indirect costs incurred by the Construction Manager in the proper performance of the design, bid and award services.

Pre-Construction Phase Services mean the services the Construction Manager shall perform for the design phase of the Agreement and culminates with the exercise by City of one of the City’s options regarding the GMP proposal.

Pre-Construction Work means all Work required by this Agreement during the Pre-Construction Phase of the Project including the IGMP submittals.

Professional Services means those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as applicable, as defined by the laws of the State of Florida, or those performed by any architect, professional engineer, landscape architect, or registered surveyor or mapper in connection with his or her professional employment or practice.

Progress Report means a monthly progress report to be prepared by Construction Manager and will contain the following: (a) listing of actual costs for completed activities and estimates for uncompleted tasks; (b) identification of variances between actual and budgeted or estimated costs; (c) the updated Project Schedule; (d) progress photos; (e) an executive summary; (f) a discussion of pending items and existing or anticipated problems, status of Requests For Information ("RFIs"); (g) a safety and accident report; (h) information on each Subcontractor and each Subcontractor's Work as well as the entire Work, showing percentages of completion and the number and amounts of Change Orders and Field Directives and relating such information to the Project Schedule and the GMP; (i) a list of all identified claims or disputes, any threatened claims and issues that, in the reasonable judgment of Construction Manager, may potentially become claims; (j) status of Construction Manager’s Contingency; (k) information on compliance with the Small Business and Local Workforce participation goals established for the Project; (l) monthly procurement decisions; and (m) such other relevant information as may be reasonably required by the City from time to time.


Project shall mean the total construction of the Stadium Site Parking including surface lots and infrastructure and related improvements, including sitework, as detailed in the Contract Documents.

Project Site shall have the meaning ascribed to it in the Recitals.

Punch List means a compilation of items of Construction Work required to be performed by, or through the Construction Manager, after the Substantial Completion inspection and prior to Final Completion and payment.

Project Manual means volumes assembled for the Work that include the bidding requirements, sample forms, General Conditions, Specifications and Drawings.

Public Infrastructure Work means the utilities, roadwork, walkways, street lighting, way-finding signage, traffic control, off-site improvements and transportation linkages which will provide ingress and egress to, and support the construction of, the Baseball Stadium, and this Project the construction of which is governed by the CAA.

QM/QA Plan means the comprehensive Construction Quality Management and Quality Assurance Plan described in Article 14.

Record Set means the copy of the Drawings, Specifications, Change Orders and other modifications of the Agreement to be maintained at the Project Site by the Construction Manager, in good order and updated to record current changes which shall include additions, revisions, modifications, change orders, approved substitutions, shop drawings and accurate dimensioned locations for items recorded, including but not limited to, all underground utilities. Request for Information (RFI) means a request from the Construction Manager seeking an interpretation or clarification by the Consultant relative to the Agreement and/or the Contract Documents. The RFI, which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or item(s) requiring clarification or interpretation and why the response is needed. The RFI must set forth the Construction Manager’s interpretation or understanding of the document(s) in question, along with the reason for such understanding or recommendation for proposed change.

Risk Administrator means the City’s Risk Management Administrator, or designee, or the individual named by the City Manager to administer matters relating to insurance and risk of loss for the City.

Schedule of Values means a written schedule setting forth the detailed and itemized cost breakdown, inclusive of labor, material, and taxes of all elements comprising the GMP set forth in the GMP Proposal.

Separate Contractor means any entity hired by the City, the County or the developer of the Adjacent Development Work to render any services at the Project Site or the Adjacent Property.

Small Business/Local Workforce Goals means the requirements set forth in the Request for Proposals.

Specifications as used herein means that portion of the Contract Documents which are the written requirements for the materials, equipment, systems, standards and workmanship for completion of the Work and performance of related services.

Subconsultant means a firm contracted by the Construction Manager to provide Professional Services during the Pre-Construction Phase of the Project.


Subcontractor(s) means a person or entity other than a materialman or laborer, that has a direct contract with the Construction Manager to perform or supply a portion of the Construction Work. Submittals mean documents prepared by the Construction Manager or those working on its behalf to show how a particular aspect of the Construction Work is to be fabricated and installed. The Construction Manager’s submittals include shop drawings, product data, samples, mock-ups, test results, warranties, maintenance agreements, Project photographs, record documents, field measurement data, operating and maintenance manuals, reports, certifications and any other information described in the Agreement.

Substantial Completion means that point at which the Construction Work is at a level of completion in substantial compliance with the Agreement such that the City can use, occupy and/or operate the facility in all respects to its intended purpose. Substantial Completion shall not be deemed to have occurred until any and all governmental entities, which regulate or have jurisdiction over the Work, have inspected, and approved the Work. Beneficial use or occupancy shall not be the sole determining factor in determining whether Substantial Completion has been achieved. The Project will not be reviewed for Substantial Completion unless a Temporary Certificate of Occupancy has been issued.

Value Engineering (VE): means the detailed analysis of systems, equipment, materials, services, facilities and supplies required by this Agreement for the purpose of achieving the desired and essential functions at the lowest cost consistent with required and necessary performance, reliability, quality and safety through the elimination or modification of those features which add cost without contributing to the facility’s required function or design value.

Work as used herein refers to all pre-construction, construction and other services required by the Contract Documents, including all labor, materials, equipment, supervision and services needed to complete the Project.

Unless otherwise defined herein, terms in the Agreement shall have the same meaning as those words that have well known technical or construction industry meanings and are used in the Agreement with such recognized meanings.

As the context of the Agreement may require, terms in the singular shall include the plural (and vice versa) and the use of feminine, masculine or neuter genders shall include each other. Wherever the word "including" or any variation thereof, is used herein, it shall mean "including, without limitation," and shall be construed as a term of illustration, not a term of limitation. Wherever the word "or" is used herein, it shall mean "and/or".

6. Time is of the essence of this Agreement and the Construction Manager will promptly perform its duties under the Contract Documents and will give the Work as much priority as is necessary to cause the Work to be completed on a timely basis in accordance with the Contract Documents. All Work shall be performed strictly (not substantially) within the time limitations necessary to maintain the critical path and all deadlines established in the Contract Documents.

Time is of the Essence

All dates and periods of time set forth in the Contract Documents, including those for the commencement, prosecution, interim milestones, milestones, and completion of the Work, and for the delivery and installation of materials and equipment, were included because of their importance to the City.


Construction Manager acknowledges and recognizes that (i) the Work must be performed in accordance with the Master Project Schedule and the Project Schedule, (ii) Substantial Completion must occur no later than December 31, 2011, (iii) City is entitled to full and beneficial occupancy and use of the completed Work following expiration of the Construction Phase Time for Completion, and (iv) the City will schedule the opening of the Project Site based upon the Construction Manager’s achieving Final Completion of the Work at the time stipulated for final completion in the Contract Documents.

Except and only to the extent provided otherwise by signing this Agreement, the Construction Manager agrees to the assessment of liquidated damages under the Construction Phase Services as provided in Section 3, Article 3.

In agreeing to bear the risk of delays for completion of the Work except for extensions approved in accordance with the Agreement, the Construction Manager understands that, except and only to the extent provided otherwise in the Agreement, the occurrence of events of delay within the Construction Manager’s control, the Work shall not excuse the Construction Manager from its obligation to achieve full completion of the Work within the Construction Phase Time for Completion, and shall not entitle the Construction Manager to an adjustment of the GMP. All parties under the control or contract with the Construction Manager shall include but are not limited to Subcontractors, materialmen and laborers.

The Construction Manager acknowledges that the City is purchasing the right to have the CM’s Project Manager 100% of the time, and Construction Superintendent full time at the Project Site for the full duration of the Project during the time Work is being performed.

7. Construction Manager shall pay all applicable sales, consumer, use and other taxes required by law unless the City implements a Direct Purchase Program. Construction Manager is responsible for reviewing the pertinent state statutes involving state taxes and complying with all requirements.

Taxes

8. The Contract Documents are complementary and are intended to include all items necessary for the execution and performance of the Work by Construction Manager. Construction Manager shall perform all Work indicated in or reasonably inferable from and consistent with the Contract Documents for the proper execution and completion of the Work. The Contract Documents shall consist of this Agreement, the Drawings and Specifications, approved written interpretations and clarifications, Field Directives, Construction Change Directives, any Change Orders issued thereto, and any modifications, including the GMP Amendment, duly issued after execution of the Agreement. Any modification to this Agreement shall only be effective if it is reduced to writing, and duly executed by both parties, except a Field Directive or Constructive Change Directive shall be effective after approval and execution by Director or designee. The general intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Project by the Construction Manager.

Contract Documents

The Contract Documents represent the entire and integrated agreement between Construction Manager and City hereto and supersedes all prior negotiations, representations or agreements, either written or oral. The Contract Documents shall not be construed to create a contractual relationship of any kind (a) between Consultant and Construction Manager or (b) between the City and a Subcontractor or sub-subcontractor.


9. Construction Manager shall carefully study, compare and coordinate the Contract Documents and shall at once report to the Consultant and the City’s Project Manager any error, inconsistency or omission or any variance from Applicable Laws that may be discovered and any necessary changes shall be accomplished by appropriate modification. Notwithstanding the above, Consultant, and not Construction Manager, shall have responsibility to confirm that the Drawings and Specifications comply with Applicable Laws and the requirements of the CAA and the Parking Agreement, relating to design matters. Construction Manager shall not be liable to City, or Consultant for any damage resulting from any such errors, inconsistencies or omissions in the Contract Documents, unless Construction Manager discovered such errors, inconsistencies or omissions and failed to report as required by this Article. In such event, Construction Manager shall be liable for only the cost that would have otherwise been avoided had Construction Manager reported such errors, inconsistencies or omissions to the City as required above. Construction Manager shall not be authorized to perform, and shall not be entitled to compensation for, any portion of the Work that is not in compliance with the requirements of the Contract Documents or, if required Submittals.

Review of Contract Documents

In the event that errors, inconsistencies or omissions are discovered by Construction Manager in the Contract Documents, Construction Manager shall not proceed with the affected portions of the Work until Construction Manager has requested and received written interpretation with respect thereto from the Consultant. Requests for interpretation shall not become a reason for an extension of time, unless Consultant unreasonably delays providing such interpretation. If Construction Manager proceeds with Work involving an error, inconsistency or omission in the Contract Documents prior to receipt of a clarification thereof requested from Consultant, or knowing that an error, inconsistency or omission exists, nonetheless proceeds with Work without requesting such interpretation, Construction Manager shall, without increase to the GMP, correct Work performed, and/or furnish and install Work that may be required in accordance with the Contract Documents as determined by the Consultant.

Unless otherwise noted by Construction Manager to the City in writing, commencement of any particular portion of the Work shall constitute a representation by Construction Manager that Construction Manager has reviewed the Contract Documents associated with such portion of the Work, and that to the best of Construction Manager's knowledge, the Contract Documents are sufficiently detailed and complete to permit Construction Manager to (1) commence that portion of the Work and (2) complete that portion of the Work in accordance with the Contract Documents and all Applicable Laws; provided that the City (as between Construction Manager and the City) and Architect shall have responsibility for the sufficiency and completeness of the Contract Documents and for confirming that the Contract Documents conform to the requirements of the CAA and the Parking Agreement and all governmental requirements relating to design matters.

If Construction Manager observes that any of the Contract Documents are at variance with any permits or governmental notices, or with the requirements of the CAA or the Parking Agreement, Construction Manager shall promptly notify Consultant and the City’s Project Manger in writing, and any necessary changes shall be accomplished by appropriate Change Order.

10. The Construction Manager acknowledges that it has satisfied itself as to the nature and location of the Work, the Adjacent Development Work to be performed on the Adjacent

Site Investigation and Representation


Property, 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 based on owner provided reports, the type of equipment and facilities needed preliminary to and during the prosecution of the Work and all other matters which can in any way affect the Construction Work or the cost thereof under the Contract Documents.

The Construction Manager further acknowledges that it has satisfied itself based on City provided geotechnical reports and inspection of the Project Site as to the character, quality, and quantity of surface and subsurface materials to be encountered from inspecting the site and from evaluating information derived from exploratory work that may have been done by the City or included in the Contract Documents.

Construction Manager should examine the soil conditions at the Project Site to determine if any special shoring, sheeting, or other procedures are necessary to protect the Adjacent Property during excavation of subsoil materials or during filling of any area(s), or for any operation during the performance of the Work.

Any failure by the Construction Manager to acquaint itself with all the provided information and information obtained by visiting the Project Site, will not relieve Construction Manager from responsibility for properly estimating the difficulty or cost under the Contract Documents. In the event that the actual subsurface conditions vary from the reports provided by the Construction, City shall notify the City and the Agreement amount shall be adjusted up or down depending on the conditions.

11. Construction Manager accepts the relationship of trust and confidence established between Construction Manager and City by this Agreement. Construction Manager recognizes the necessity of a close working relationship with City and agrees to furnish the skill and judgment of its organization in the performance of this Agreement and to cooperate with the Consultant in furthering the interests of City. Construction Manager shall provide Construction Manager's knowledge, ideas, experience and abilities relating to the planning of the construction of the Project; furnish efficient business administration and superintendence; and use its best efforts to arrange for an adequate supply of workmen and materials, equipment, tools and other services and things to complete the Work in the best and soundest way and in the most expeditious and economical manner consistent with the interests and objectives of City and the Contract Documents. Construction Manager agrees to advise and make recommendations to City as specified in the Agreement.

Construction Manager’s Duties

Construction Manager shall provide administrative, management and related services as required to coordinate, supervise and direct the performance of the Work by all Subcontractors with each other and with the activities and responsibilities of the City and Consultant to complete the Work in accordance with the Contract Documents.

Construction Manager shall be solely responsible for all construction means, methods, techniques, sequences and procedures, including those employed by Subcontractors in the performance of the Work.

Construction Manager shall coordinate all aspects of the Work with all Governmental Authorities, utility companies, Adjacent Property Work and the work of separate Contractors.

Construction Manager shall be responsible to the City for the acts and omissions of Construction Manager's employees, Subcontractors and their agents and employees,


and any other persons performing any of the Work under a contract with Construction Manager, or claiming by, through or under Construction Manager, for all damages, losses, costs and expenses resulting from such acts or omissions.

Construction Manager shall not be relieved from Construction Manager's obligations to perform the Work in accordance with the Contract Documents either by the activities or duties of the City, its Representative or the Consultant in their administration of the Agreement, or by inspections, tests or approvals required or performed under the Agreement by persons other than Construction Manager.

Construction Manager shall keep a daily log containing a record of weather (including specific information regarding named storm preparation and costs incurred or lost time due to named storms), Subcontractor's Work on the Site, number of workers, Work accomplished, problems encountered, and other similar relevant data as the City may reasonably require. This log shall be available to the City and the Consultant at the jobsite.

Construction Manager shall inspect the Work on an ongoing basis and shall maintain an ongoing log of non-conforming Work that has been installed. The log shall record any items that have been noted as non-conforming by Governmental Authorities, City, or Consultant. Such log shall be available to the City and the Consultant during regular business hours and shall be included in Construction Manager's monthly Progress Report.

Construction Manager shall maintain a spreadsheet based concrete placement log and shall regularly and diligently enter all concrete placement yardage for all pours broken down by footings, slab on grade, columns, beams, shear walls and elevated slabs in a format acceptable to the City and the Consultant and such log shall be available to the City and the Consultant during regular business hours.

Construction Manager shall maintain a log of (1) recordable OSHA incidents and (2) recordable lost time accidents, a format that is acceptable to the City and the Consultant. Such log shall be available to the City and the Consultant during regular business hours.

Construction Manager shall maintain a log of all Submittals in a format that is acceptable to the City and the Consultant. Such log shall be available to the City and the Consultant during regular business hours.

Construction Manager shall establish and enforce a recycling program including all waste and construction materials.

12. Construction Manager shall assign to this Project all of the Key Personnel identified in its Response to the RFP. Such personnel shall remain assigned to the Project through the duration of this Project and shall not be reassigned without the prior written approval of the City’s Project Manager, unless the individual has left the employment of the Construction Manager. The Construction Superintendent and CM’s Project Manager shall be authorized to act on behalf of the Construction Manager to coordinate, inspect provide general direction of the Work in progress.

Construction Key Personnel and Staffing

The Project Manger is expected to spend at a minimum 100% of his/her time full-time on site and the Construction Superintendent is to be on site 100% of the time.


The employee(s) of the Construction Manager and Subcontractors shall be considered to be at all times employee(s) of the Construction Manager or the Subcontractors, as applicable, and not an employee(s) or agent(s) of the City or any of its departments.

The Construction Manager agrees that the Construction Manager and its Subcontractors shall at all times employ, maintain and assign to the performance of the Project a sufficient number of competent and qualified professionals and other personnel to meet the requirements of the Work to be performed.

The Construction Manager and Subcontractors agrees to adjust staffing levels or to replace any staff personnel if so requested by the City’s Project Manager, should the City’s Project Manager make a determination that said staffing is unacceptable or that any individual is not performing in a manner consistent with the requirements for such a position.

13. A Subcontractor is any person or entity that is performing, furnishing, supplying or providing any portion of the Work pursuant to a contract with Construction Manager. Construction Manager shall be solely responsible for and have control over the Subcontractors.

Subcontractors

All subcontracts shall:

• require each Subcontractor to be bound to the Construction Manager to the same extent Construction Manager is bound to the City by the terms of the Contract Documents, as those terms may apply to the portion of the Construction Work to be performed by the Subcontractor;

• require the Subcontractor to indemnify and hold harmless the City, its officers, agents, directors, and employees, and instrumentalities as provided in this Agreement.

• an agreement that the City is a third-party beneficiary of the Subcontract, entitled to enforce any rights thereunder for their respective benefits, and that, subject to the terms of the applicable Subcontract, the City shall have the same rights and remedies vis-à-vis such Subcontractors that Construction Manager shall have, including, without limitation, the right to be compensated for any loss, expense or damage of any nature whatsoever incurred by the City resulting from any breach of such Subcontract by Subcontractor, any breach of representations and warranties, if any, implied or expressed, arising out of such agreements and any error, omission or negligence of such Subcontractor in the performance of any of its obligations under such Subcontract;

• provide that the City will be an additional indemnified party of the subcontract;

• a provision requiring Subcontractor to maintain insurance in accordance with the Contract Documents;

• provide that the City will be an additional insured on all insurance policies required to be provided by the Subcontractor except workman’s’ compensation;

• a provision that such Subcontract shall be terminable for default or convenience upon ten (10) days' prior written notice by Construction Manager, or, if the Subcontract has been assigned to the City, by the City or its designee;


• a provision that neither Construction Manager nor such Subcontractor shall have the right to require arbitration of any disputes in those cases where the City (or its assignee) is a party;

• a provision that Subcontractor shall promptly notify the City (with a copy to Construction Manager) of any default of Construction Manager under the Subcontract, whether as to payment or otherwise;

• a provision that Construction Manager and Subcontractor acknowledge that (i) it is entering into a contract for the construction of a public building as contemplated in Chapter 255, Florida Statutes, and (ii) it has no right to file a construction lien against the Work or the Project and agrees to include a similar requirement in any purchase order or subcontract entered into by Subcontractor;

• provisions that Subcontractor shall comply with all Applicable Laws (including prompt payment) and the City requirements as set forth in the Agreement and maintain all files, records, accounts of expenditures for Subcontractor's portion of the Work to the standards set forth in the Agreement.

• a provision that the City may, at reasonable times, contact Subcontractor, after notice to Construction Manager, to discuss, or obtain a written report of, Subcontractor's services, with Construction Manager entitled to be present during any such discussions; provided that in no event, prior to any assignment of the Subcontract to the City, shall Subcontractor take instructions directly from the City;

• a requirement that Subcontractor promptly disclose to the City and Construction Manager any defect, omission, error or deficiency in the Contract Documents or the Work about which it has knowledge;

• a provision that permits Construction Manager's rights and duties under the Subcontract to be assigned, at the same price, to City's designee after termination of the Agreement upon written notice thereof given by the City to both Construction Manager and Subcontractor;

• assign all warranties directly to the City, identify the City as an intended third-party beneficiary of the subcontract, and prior to the execution of the subcontract, provide copies of the Contract Documents to the Subcontractor who will be bound by this Article. Pursuant to the Agreement, Construction Manager has conditionally assigned to the City all the rights, title and interest of Construction Manager in, to and under any and all Subcontracts. The assignment is exercisable by the City, at its election, in the event that the City has exercised its right to terminate the Agreement in whole or in part or to take control of, or cause control to be taken of, the Work, or any portion thereof. The City may reassign the Subcontracts to another contractor or any other person or entity, and such assignee may exercise the City's rights in the Subcontracts. Each Subcontractor shall, upon written notice that the City has exercised its rights under the Contract Documents (or the portion thereof applicable to the materials or services being furnished by such Subcontractor), continue to perform all of such party's obligations, covenants and agreements under such Subcontract for the benefit of the City.

Each Subcontract entered into by Construction Manager in connection with the Work shall contain the consent of each Subcontractor to the foregoing assignment and the


agreement of each such Subcontractor that, upon written notice from the City, it has assumed the Subcontract and exercised its rights under these General Conditions or portion thereof applicable to the materials or services being furnished by such Subcontractor. Such Subcontractor, as so requested by the City, shall continue to perform all of such party's obligations, covenants and agreements under Subcontractor's Subcontract with Construction Manager for the benefit of the City.

The Subcontractor must agree to provide field (on-site) supervision through a named superintendent for each trade (e.g., general concrete forming and placement, masonry, mechanical, plumbing, electrical and roofing) included in the subcontract. In addition, the Subcontractor shall assign and name a qualified employee for scheduling direction for its Work.

Construction Manager shall be fully responsible for all acts and omissions of its Subcontractor and of persons directly or indirectly employed by its subcontractors and of persons for whose acts any of them may be liable to the same extent that Construction Manager is responsible for the acts and omissions of persons directly employed by it. Nothing in the Contract Documents shall create any contractual relationship between any Subcontractor and City or any obligation on the part of City to pay or to see the payment of any monies due any Subcontractor. City or Consultant may furnish to any subcontractor evidence of amounts paid to Construction Manager on account of specific work performed.

Construction Manager shall be required to comply with all City requirements for Subcontractor utilization reports.

Construction Manager agrees to bind specifically every Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of City.

If Construction Manager requires a Subcontractor to obtain performance and payment bonds, then such bonds shall name the Construction Manager and the City as co-obligees, shall cover all warranties and guarantees of the Subcontractor, and shall comply with all bond requirements under this Agreement.

Construction Manager shall require all Subcontractor agreements to include a provision that they will indemnify and hold harmless the City, its officers, agents, directors, and employees, and instrumentalities as herein provided.

14. Construction Manager shall develop and implement the Quality Management/Quality Assurance (“QM/QA”) Plan that includes the prevention of defects and have a Quality Control Manager who is the person directly responsible for ensuring the Project is of the highest standards and conforms to the drawings and specification. The QM/QA Plan shall ensure that appropriate procedures are implemented to verify and document compliance with the Contract Documents. The QM/QA Plan shall include the following: (a) allocation of quality control and assurance responsibilities to the various participants in the Work; (b) an inspection and testing plan for each critical component of the Work; (c) field monitoring and inspection reports, documenting the results of inspection; (d) audit plan to audit Subcontractor's quality control and assurance efforts; (e) identification and reporting procedures for non-conforming Work; (f) tracking system to monitor correction of non-conforming Work; (g) address concerns specific to the City, including issues associated with ingress and egress.

Quality Management


As part of the QM/QA Plan, Construction Manager shall review the Work of Subcontractors to determine if the Work of each Subcontractor is being performed in accordance with the requirements of the Contract Documents, and to determine if there are any defects and deficiencies in the Work. Construction Manager shall promptly bring all such material defects and deficiencies that are not subject to correction in the normal course of construction to the attention of the applicable Subcontractor and the City. Communications between Construction Manager and Subcontractors with regard to quality management and assurance shall not in any way be construed as releasing Construction Manager or its Subcontractors from performing their Work in accordance with the terms of the Contract Documents.

Within 30 days after award of the Agreement, the Construction Manager shall submit the formalized QM/QA Plan to the City’s Project Manager and Consultant for review and acceptance. The Construction Manager’s format is acceptable, provided the QM/QA Plan is legibly typed on 8 ½” x 11” paper. The Construction Manager shall provide any update(s) to the City’s Project Manager and Consultant at least 30 days prior to incorporation. The Construction Manager shall not incorporate such update(s) until it receives the City’s Project Manager and Consultant’s written acceptance.

15. Construction Manager shall submit to the City and the Consultant, within thirty (30) days of the effective date of the Agreement, a form of the Progress Report for use on the Project for the City and the Consultant review, comment and acceptance. Upon acceptance by the City and the Consultant, the form of Progress Report shall establish the standard for detail required for the remainder of the Work and shall be updated monthly. The Progress Report shall be indexed, bound and tabulated in a manner acceptable to the City. The Progress Report shall be delivered with each monthly Application for Payment. Delivery of the Progress Report shall be a condition precedent to payment of that Application for Payment.

Progress Report

16. The City has retained Leo A. Daly to serve as the Architect of Record and to provide basic architectural services, including normal civil, structural, mechanical, and electrical engineering services, as described in the City’s agreement with the Consultant. The City shall authorize and cause the Consultant to provide those additional services which must necessarily be provided by the Consultant for the Pre-Construction and Construction Phases of the Work. Such services shall be provided in accordance with time schedules agreed to by the City, Consultant, and Construction Manager. Upon request of the Construction Manager, the City will furnish to the Construction Manager a copy of the City’s agreement with the Consultant.

Architect of Record

On the basis of the on-site observations, the Consultant will keep the City’s Project Manager informed of the progress of the Work. In the capacity of interpreter, the Consultant will exercise the best efforts to ensure faithful performance by the Construction Manager.

The City’s Project Manager will assist the Consultant in conducting inspections to determine the date or dates of Substantial Completion and Final Acceptance and will receive and review written warranties and related documents required by the Contract Documents. The Consultant will be responsible for receiving all documentation for review and acceptance. Upon acceptance such documentation will be forwarded to the City’s Project Manager. The City’s Project Manager in conjunction with the Consultant will review Schedules of Values, Project Schedule, Subcontractors and invoices.


In case of the termination of employment of the Consultant, the City may, at its sole discretion, appoint another Consultant, whose status under the Agreement shall be as that of the former Consultant.

During the performance of the Work, should any errors, omissions, conflicts, ambiguities or discrepancies be found in the drawings and/or specifications, the Consultant will clarify in writing the intent of the drawings and/or specifications and the Construction Manager agrees to abide by the Consultant’s interpretation and perform the Work in accordance with the decision of the Consultant. In such event, the Construction Manager will be held to have included in its GMP the best materials suitable for the purpose and/or methods of construction.

17. The City may utilize a company under contract with the City to provide on-site

construction examination and observation services. Such services are intended to be additional services and are not intended to and shall not be construed to supplant or alter the role and responsibilities of the Consultant. While this company will represent the City at the site, the company and its employees have no authority to authorize changes or deviations from the Contract Documents.

Construction Inspection Services

18. Construction Manager shall coordinate all correspondence, submittals, applications for payment, requests for information, change orders, claims and any other requests or documents through the Consultant.

Primary Contact

19. Construction Manager, prior to commencement of the Construction Phase Services, shall prepare and submit for the Director’s review and acceptance a proposed Partnering Program for the Project. The Partnering Program shall contain, at a minimum, procedures for the enhancement of communication and cooperation between the City, Construction Manager, Consultant, separate contractors, inspectors and other consultants and subcontractors on the Project, as well as procedures for the speedy and efficient resolution of problems and disagreements during construction. Upon acceptance by the Director, the Partnering Program shall be implemented and coordinated by Construction Manager throughout the remainder of the Project

Partnering

20. Construction Manager shall be responsible for compliance with the policies and procedures manual and reporting requirements contained in Attachment A.

Policies, Procedures and Reporting

21. The Drawings, Specifications and other documents prepared by the Consultant, and copies thereof furnished to the Construction Manager, are for use solely with respect to this Agreement. They are not to be used by the Construction Manager, Subconsultants, Subcontractors, or material suppliers on other projects, without the specific written consent of the City. The Construction Manager, Subcontractors, Subconsultants, and material suppliers are granted only a limited license to use and reproduce applicable portions of the Drawings, Specifications, and other documents prepared by the Consultant appropriate to and for use in the execution of their Work under this Agreement.

Ownership and Use of Documents


22. City, through Consultant, shall have the right to modify the details of the Drawings and Specifications, to supplement the Drawings and Specifications with additional plans, drawings or additional information as the Work proceeds, all of which shall be considered as part of the Contract Documents.

Plans and Working Drawings

Where the Construction Manager believes that the modification or supplement is outside the scope of the Work, the Construction Manager shall, within 48 hours, notify the Consultant and the City’s Project Manager that the modification or supplement is outside the scope of the Work. At that time the modification or supplement may be rescinded or the Construction Manager may be required to submit a request for a Change Order proposal. Where the Construction Manager is notified of the City’s position that the modification or supplement is within the scope and the Construction Manager disagrees, the Construction Manager shall notify the Consultant and the City’s Project Manager that the Construction Manager reserves the right to make a claim for the time and monies based on the modification or supplement. At no time shall the Construction Manager refuse to comply with the modification or supplement.

23. When, in the opinion of Consultant, it becomes necessary to explain the Work to be done more fully, or to illustrate the Work further, or to show any changes which may be required, supplementary drawings, with specifications pertaining thereto, will be prepared by Consultant.

Supplementary Drawings

The supplementary drawings shall be binding upon Construction Manager with the same force as the Contract Documents. Where such supplementary drawings require either less or more than the original quantities of work, appropriate adjustments shall be made by Change Order.

24. The City’s Project Manager and/or Consultant, as applicable, shall have the right to approve and issue Supplemental Instructions setting forth written orders, instructions, or interpretations concerning the Contract Documents or its performance, provided such Supplemental Instructions involve no change in the Agreement price or this Agreement time for performing the Work.

Supplemental Drawings and Instructions

City’s Project Manager and/or Consultant shall have the right to modify the details of the plans and specifications, to supplement the plans and specifications with additional plans, drawings or additional information as the Work proceeds, all of which shall be considered as part of the Contract Documents.

25. Construction Manager shall carry on the Work and adhere to the Project Schedule during all disputes or disagreements with City, including, without limitation, disputes or disagreements concerning a request for a Change Order, a request for a change in the Pre-Construction Fee, the GMP, the Agreement Time, or Construction Work Time for Completion. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. All disputes shall be resolved in accordance with the provisions of the Contract Documents.

Continuing the Work


26. Any matter not expressly provided for herein dealing with the City or decisions of the City shall be within the exercise of the reasonable professional discretion of the Director or the Director’s authorized designee.

Discretion of Director

27. The Director hereby authorizes the City’s Project Manager and/or the Consultant, without limitation, to determine or answer, all questions of any nature whatsoever arising out of, under or in connection with, or in any way relating to or on account of the Work, and/or as to the interpretation of the Work to be performed the Contract Documents.

Authority of The City’s Project Manager

The Construction Manager shall be bound by all determinations or orders of the City’s Project Manager and/or Consultant and shall promptly respond to requests of the City’s Project Manager and/or Consultant, including the withdrawal or modification of any previous order, and regardless of whether the Construction Manager agrees with the City’s Project Manager’s and/or Consultant’s determination or requests. Where requests are made orally, the City’s Project Manager and/or Consultant will follow up in writing, as soon thereafter as is practicable.

The City’s Project Manager and/or Consultant shall have authority to act on behalf of the City to the extent provided by the Agreement, unless otherwise modified in writing by the City. All instructions to the Construction Manager shall be issued in writing. All instructions to the Construction Manager shall be issued through the Director, City’s Project Manager or the Consultant.

The City’s Project Manager and Consultant shall have access to the Project Site during normal work hours, unless access is required by the City due to health, safety or welfare of the City or the public. The Construction Manager shall provide safe facilities for such access so the City’s Project Manager and Consultant may perform their functions under the Agreement. The City’s Project Manager and Consultant will make periodic visits to the Work Site to become generally familiar with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents.

The City’s Project Manager and Consultant will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and will not be responsible for the Construction Manager’s failure to carry out the Construction Work in accordance with the Contract Documents.

The City’s Project Manager and Consultant will have authority to reject Construction Work that does not conform to the Contract Documents requirements. Whenever, in his or her opinion, it is considered necessary or advisable to insure the proper implementation of the Contract Documents, the City’s Project Manager and Consultant will have authority to require special inspections or testing of the Construction Work, whether or not such Construction Work is fabricated, installed or completed. Neither the City’s Project Manager’s and Consultant’s authority to act under this Article, nor any decision made by him/her in good faith either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of the City’s Project Manager and Consultant to the Construction Manager, any Subcontractor, Subconsultant, supplier or any of their agents, employees, or any other person performing any of the Construction Work.

All interpretations and recommendations of the City’s Project Manager and Consultant shall be consistent with the intent of the Contract Documents.


The City’s Project Manager and Consultant will not be responsible for the acts or omissions of the Construction Manager, or anyone employed or contracted directly or indirectly by the Construction Manager including any Subcontractor, Subconsultant, or any of their agents or employees, or any other persons performing any of the Work.

28. The Construction Manager shall, at its own expense, establish all working and construction lines and grades as required from the Project control points set by the Construction Manager, and shall be solely responsible for the accuracy thereof.

Lines and Grades

29. The City may make written request to Construction Manager for the prompt removal and replacement of any personnel employed or retained by the Construction Manager, or any Sub-Consultants or Subcontractors, or any personnel of any such Sub-Consultants or Subcontractors engaged by the Construction Manager to provide and perform services or Work pursuant to the requirements of this Agreement. The Construction Manager shall respond to the City within fourteen (14) calendar days of receipt of such request with either the removal and replacement of such personnel or written justification as to why that may not occur. The City shall make the final determination as to the removal of unsatisfactory personnel. Such decision shall not be construed as directing the Construction Manager to terminate any employee’s employment with the Construction Manager.

Removal of Unsatisfactory Personnel

30. City’s Project Manager and/or Consultant shall have the authority to reject or disapprove Work which Consultant finds to be defective. If required by Consultant, Construction Manager shall promptly either correct all defective work or remove such defective Work and replace it with non-defective Work. Construction Manager shall bear all direct and indirect costs of such removal or corrections including cost of testing laboratories and personnel.

Defective Work

Should Construction Manager fail or refuse to remove or correct any defective Work or to make any necessary repairs in accordance with the requirements of the Contract Documents within the time indicated in writing by Consultant, City shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be necessary at Construction Manager's expense. Any expense incurred by City in making such removals, corrections or repairs, shall be paid for out of any monies due or which may become due to Construction Manager, or may be charged against the Performance Bond. In the event of failure of Construction Manager to make all necessary repairs promptly and fully, which is not cured in the Cure Period, City may declare Construction Manager in default.

If, within one (1) year after the date of Substantial Completion or such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, or by any specific provision of the Contract Documents, any of the Construction Work is found to be defective or not in accordance with the Contract Documents, Construction Manager, after receipt of written notice from City, shall promptly correct such defective or nonconforming Construction Work within the time specified by City without cost to the City. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which Construction Manager might have under the Contract Documents including but not limited to any claim regarding latent defects.


Failure to reject any defective work or material shall not in any way prevent later rejection when such defect is discovered, or obligate City to final acceptance.

31. The Construction Manager shall promptly correct all Work rejected by the City’s Project Manager or Consultant as defective or as failing to conform to the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Construction Manager shall bear all cost of correcting such rejected Work, including the cost of the City’s additional services thereby made necessary.

Correction of Work

The Construction Manager further agrees that after being notified in writing by the City’s Project Manager or Consultant of any Work not in accordance with the requirements of the Contract Documents or any defects in the Work, the Construction Manager will commence and prosecute with due diligence all Work necessary to fulfill the terms of the Agreement and to complete the Work within a reasonable period of time, as determined by the City’s Project Manager or Consultant, and in the event of failure to so comply, the Construction Manager does hereby authorize the City to proceed to have such Work done at the Construction Manager’s expense and that the Construction Manager will pay the cost thereof upon demand. The City shall be entitled to all costs, including reasonable attorneys' fees, necessarily incurred upon the Construction Manager’s refusal to pay the above costs. Notwithstanding the foregoing paragraph, in the event of an emergency constituting an immediate hazard to the health or safety of personnel, property, or licensees, the City may undertake, at the Construction Manager 's expense, without prior notice, all Work necessary to correct such hazardous condition when it was caused by Work of the Construction Manager not being in accordance with the requirements of the Agreement.

If, within one (1) year after the date of final completion of the Project or within such longer period of time as may be prescribed by law, by the Contract Documents, or by the terms of any applicable special warranty required by the Contract Documents, any of the Work is found to be defective or not in accordance with the Contract Documents, the Construction Manager shall correct it promptly after receipt of a written notice from the City to do so. The City shall give such notice promptly after discovery of the condition.

All such defective or non-conforming Work shall be removed from the site if necessary and the Work shall be corrected to comply with the Contract Documents without cost to the City.

In no event shall the failure of the City or the Consultant to bring to the attention of the Construction Manager such faults act as a waiver, or release the Construction Manager from responsibility or liability for such fault, defect or non-conforming Work.

32. Construction Manager warrants to City that all materials and equipment furnished under this Agreement will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All equipment and materials not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by Consultant, Construction Manager shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by any other provisions within the Contract Documents.

Warranty of Materials and Equipment


33. Preparation for Shipment Material and Equipment Shipment, Handling, Storage and Protection

When practical, equipment shall be factory assembled. The equipment parts and assemblies that are shipped unassembled shall be furnished with assembly plan and instructions. The separate parts and assemblies shall be factory match-marked or tagged in a manner to facilitate assembly. All assemblies are to be made by the Construction Manager at no additional cost to the City.

Generally, machined and unpainted parts subject to damage by the elements shall be protected with an application of a strippable protective coating, or other approved protective method. Equipment shall be packaged or crated in a manner that will provide protection from damage during shipping, handling, and storage.

The outside of the package or crate shall be adequately marked or tagged to indicate its contents by name and equipment number, if applicable; approximate weight; state any special precautions for handling; and indicate the recommended requirements for storage prior to installation.

Any spare parts and/or specialty tools shall be properly mark to identify the associated equipment by name, equipment, and part number. Parts shall be packaged in a manner for protection against damage from the elements during shipping, handling, and storage. Shipping boxes are to be marked to indicate the contents. Delivery of spare parts and special tools shall be made prior to the time associated equipment is scheduled for the initial test run.

Packaging and Delivery of Spare Parts and Special Tools

All equipment and material shall be shipped with freight and shipping paid, FOB job site.

Shipment

The Construction Manager shall request a 7-day advance notice of shipment from manufacturers, and upon receipt of such notice, provide the Consultant with a copy of the current delivery information concerning equipment items and material items of critical importance to the Project Schedule.

The Construction Manager shall unload and record the receipt of all equipment and materials at the jobsite.

Receiving

All costs for receiving, inspection, handling, storage, insurance, inventory control, and equipment maintenance for the Construction Manager supplied materials and equipment, shall be included in the prices bid and no extra compensation will be allowed.

Immediately upon receipt of equipment and materials at the jobsite, the Construction Manager shall inspect for completeness and any evidence of damage during shipment. City’s furnished equipment and material shall be inspected and inventoried together with City’s inspector. Should there appear to be any shortage or damage, the Consultant shall be immediately notified; and the Construction Manager shall be fully responsible for informing the manufacturers and the transportation company of the extent of the shortage or damage. If the item or items require replacing or supplying of missing parts, the Construction Manager shall take the necessary

Inspection


measures to expedite the replacement or supply the missing parts. The Construction Manager shall be responsible for shortages or damages to all materials and equipment except for materials and equipment furnished by the City.

Equipment and materials received for installation on this Project shall be handled in accordance with the manufacturer’s recommendations, and in a manner that will prevent damage.

Handling

The Construction Manager may be paid for materials or equipment purchased and stored at the Project Site. Payment shall be conditioned upon submission by the Construction Manager of proof or purchase and an executed Material Purchased/Stored On-Premises form to establish the City’s title to such materials or equipment, or otherwise protect the City’s interest.

Storage

Equipment and materials shall be stored prior to installation as recommended by the manufacturer. The City shall inspect, check, or audit, the materials stored on site prior to payment. It is expressly understood and agreed that these actions are solely for the purpose of payment for the materials or equipment. The City shall only pay for the cost of the materials and shall not pay any indirect cost, profit or other direct costs including the installation of the materials or equipment.

All materials shall be stored in accordance with the manufacturer’s instructions. It is further understood that payment made on account of said materials not incorporated in the Work does not relieve the Construction Manager from the responsibility for proper insurance coverage and transportation to the site, or for replacing said materials that may be subsequently damaged, lost, or rejected for non-compliance with the Contract Documents prior to or during installation, or prior to final acceptance by the City.

The Construction Manager’s insurance shall adequately cover the value of materials delivered but not yet incorporated into the work. The Construction Manager and the City shall be named as co-insured insofar as their respective interests may appear.

Insurance

Construction Manager shall provide the required or manufacturer’s recommended maintenance during storage, during the installation, and until such time as the City accepts the equipment for full-time operation.

Equipment Maintenance Prior to Acceptance by the City

Any salvageable pipe, fittings, or other miscellaneous material or equipment removed during construction and not reused in the Work shall be cleaned, hauled, and stored by the Construction Manager at his own expense, where directed by the City’s Project Manager or Consultant, and shall remain the property of the City. All other material shall be disposed of by the Construction Manager at his own expense.

Salvage Equipment

34. The Construction Manager shall: Manufacturer’s Instructions

Comply with manufacturer’s requirements for the handling, delivery and storage of all materials. Where required by the Contract Documents, Construction


Manager shall submit manufacturer’s printed instructions for delivery, storage, assembly, and installation.

Comply with the manufacturer’s applicable instructions and recommendations for the performance of the Work, to the extent that these instructions and recommendations are more explicit or more stringent than requirements indicated in the Agreement.

Inspect each item of material or equipment immediately prior to installation and reject damaged and defective items.

Provide attachment and connection devices and methods for securing the Construction Work; secure Construction Work true to line plumb and level, and within recognized industry standards; allow for expansion and building movement; provide uniform joint width in exposed Construction Work; arrange joints in exposed Construction Work to obtain the best visual effect and refer questionable visual effect choices to the Consultant for final decision when applicable to the Construction Work.

Recheck measurements and dimensions of the Construction Work, as an integral step in starting each portion of the Construction Work.

Install each unit or section of Construction Work during favorable weather conditions, which shall ensure the best possible results in coordination with the entire Project and isolate each unit of Construction Work from incompatible Construction Work as necessary to prevent potential interference among each section and/or deterioration of equipment.

Coordinate enclosure of the Construction Work, which requires inspections and tests so as to minimize the necessity of uncovering Construction Work for that purpose.

When required by the Contract Documents or the manufacturer, a qualified representative shall be present to observe field conditions, conditions of surface and installation, quality of workmanship, and applications. Manufacturer’s representative shall provide the Construction Manager and the Consultant a written report of field observations.

35. Construction Manager shall provide to City all manufacturers’ warranties. All warranties, expressed and/or implied, shall be given to the City for all material and equipment covered by this Agreement. All material and equipment furnished shall be fully guaranteed by the Construction Manager against factory defects and workmanship. At no expense to the City, the Construction Manager shall correct any and all apparent and latent defects that are required by Florida law. The Contract Documents may supersede the manufacturer’s standard warranty. Manufacturer’s warranties will become effective upon Substantial Completion of the Project.

Manufacturer’s Warranty

36. Reference to the standards of any technical society, organization or body shall be construed to mean the latest standard adopted and published at the date of request for qualifications, even though reference may have been made to an earlier standard. Such reference is hereby made a part of the Contract Documents the same as if herein repeated in full and in the event of any conflict between any of these standards and those specified, the most stringent shall govern unless otherwise stated.

Reference Standards


37. Without invalidating the Agreement and without notice to any Surety, City reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional Work within the scope of the Project(s) must be accomplished by means of appropriate Field Orders, Supplemental Instructions, and/or Change Orders issued in accordance with this Agreement.

Changes in the Work or Terms of Contract Documents

Any changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto, This Article shall not prohibit the issuance of Change Orders executed only by City as hereinafter provided.

Construction Manager shall increase or decrease the value of the Performance and Payment Bonds to reflect the value of the GMP as it may be revised.

38. No claim for damages or any claim, other than for an extension of time, shall be made or asserted against City by reason of any delays except as provided herein. Construction Manager shall not be entitled to an increase in the Agreement Price or payment or compensation of any kind from City for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable; provided, however, that this provision shall not preclude recovery of damages by Construction Manager for actual delays due solely to fraud, bad faith or active interference on the part of City or its Consultant. Otherwise, Construction Manager shall be entitled only to extensions of the Agreement time for completion of the Work as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above.

Construction Manager’s Damages for Delay

Except as may be otherwise specifically provided for in the Contract Documents, the Construction Manager agrees to make no claim for damages for delay of any kind in the performance of the Contract Documents whether occasioned by any act or omission of the City or any of its representatives (whether it is an Excusable Delay or otherwise) and the Construction Manager agrees that any such claim shall be compensated solely by an extension of time to complete performance of the Work. In this regard, the Construction Manager alone hereby specifically assumes the risk of such delays, including without limitation: delays in processing or approving shop drawings, samples or other submittals or the failure to render determinations, approvals, replies, inspections or tests of the Work, in a timely manner. Construction Manager shall not receive monetary compensation for City delay. Time extensions may be authorized by the City in certain situations.

39. Occupational Health and SafetyThe Construction Manager warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances.

In compliance with 29 CFR 1910 and with Section 442, Florida Statutes, any toxic substance listed in Section 38I-30.33.03 of the Florida Administrative Code delivered as a result of a Project must be accompanied by a Material Safety Data Sheet (MSDS)


which may be obtained from the manufacturer. The MSDS must include the following information:

• The chemical name and the common name of the substance. • The hazards or other risks in the use of the substance, including: The potential

for fire, explosion, corrosion, and reaction; the known acute and chronic health effects of risks from exposure, including the medical conditions which are generally recognized as being aggravated by exposure to the substance; and the primary routes of entry and symptoms of overexposure.

• The proper precautions, handling practices, necessary personal protective equipment, and other safety precautions in the use of or exposure to the substances, including appropriate emergency treatment in case of overexposure.

• The emergency procedure for spills, fire, disposal, and first aid. • A description in lay terms of the known specific potential health risks posed by

the substance intended to alert any person reading this information.

• The year and month, if available, that the information was compiled and the name, address, and emergency telephone number of the manufacturer responsible for preparing the information.

40. Construction Manager shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project. Construction Manager and its Subcontractors shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to:

Safety Precautions

• All employees on the Project site and other persons who may be affected thereby;

• All the Construction Work and all materials or equipment to be incorporated therein, whether in storage on or off the Project site; and

• Other property at the Project Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction.

Construction Manager shall monitor the establishment and execution of effective safety practices known to the industry, as applicable to Work on the Project, and the compliance with all applicable regulatory and advisory agency construction safety standards.

Construction Manager shall designate a responsible member of its organization at the Project site whose duty shall be the prevention and management of accidents. This person shall be Construction Manager's Superintendent unless otherwise designated in writing by Construction Manager to the City’s Project Manager.

Construction Manager shall comply with all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Construction Manager shall notify owners of adjacent property and utilities when prosecution of the Construction Work may affect them. All damage, injury or loss to any property, caused directly or indirectly, in whole or in part, by Construction Manager, any Subcontractor or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by Construction Manager. Construction Manager’s duties and


responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed and Consultant has issued a notice to City and Construction Manager a notice of Final Acceptance.

Construction Manager must adhere to the applicable environmental protection guidelines for the duration of the Project. If hazardous waste materials are used, detected or generated at any time, the Consultant and the City’s Project Manager must be immediately notified of each and every occurrence. The Construction Manager shall comply with all codes, ordinances, rules, orders and other legal requirements of public authorities (including, without limitation, OSHA, EPA, DERM, the City, Miami-Dade County, State of Florida, and Florida Building Code) which bear on the performance of the Work.

Construction Manager shall have the responsibility to ensure that all Construction Work is performed using adequate safeguards, including but not limited to: proper safe rigging, safety nets, fencing, scaffolding, barricades, chain link fencing, railings, barricades, steel plates, safety lights, and ladders that are necessary for the protection of its employees, as well as the public and City employees. All riggings and scaffolding shall be constructed with good sound materials, of adequate dimensions for their intended use, and substantially braced, tied or secured to insure absolute safety for those required to use it, as well as those in the vicinity. All riggings, scaffolding, platforms, equipment guards, trenching, shoring, ladders and similar actions or equipment shall be OSHA approved, as applicable, and in accordance with all federal state and local regulations.

All open trenches or holes shall be properly marked and barricaded to assure the safety of both vehicular and pedestrian traffic. No open trenches or holes are to be left open during nighttime or non-working hours without the prior written approval of the City’s Project Manager.

If an emergency condition should develop during the Project, the Construction Manager must immediately notify the Consultant and the City’s Project Manager of each and every occurrence. The Construction Manager should also recommend any appropriate course(s) of action to the Consultant and the City’s Project Manager.

41. Construction Manager shall immediately notify the City’s Project Manager and Brown & Brown of any accident, incident or circumstance, where property damage, injury or death has occurred. This includes any circumstances that may lead to an insurance claim.

Accidents

Failure to notify the City’s Project Manager and Brown & Brown could result in denial of the claim by the insurance carrier. Contact the City’s Project Manager and Brown & Brown for clarifications on insurance coverage.

Construction Manager shall report in writing to City’s Project Manager, OSHA and all applicable governmental entities of all accidents arising out of or in connection with the Work which cause death, personal injury or property damage, giving full details and statements of witnesses. Construction Manager shall submit five copies of a detailed report to the City’s Project Manager within twenty (20) days after the occurrence. In addition, if death or serious personal injuries or serious property damage are caused, the accident shall be reported immediately by telephone or messenger to City’s Project Manager.

In preparing the report the Construction Manager shall clearly identify the impacted insurance coverage, including the following:


• Worker’s Compensation – Report shall be completed for all individuals becoming sick or injured

• General Liability – Report shall be completed when any member of the public is injured or his/her property is damaged. A report shall also be made when injury occurs to personnel or property of other contractors and/or subcontractors.

42. Construction Manager shall accept full responsibility for Work against all losses or damages of whatever nature sustained until Final Acceptance by City, and shall promptly repair or replace, at no additional cost to the City any Work, materials, equipment, or supplies damaged, lost, stolen, or destroyed from any cause whatsoever.

Loss & Damage to Property

Construction Manager shall accept full responsibility for Work against all losses or damages of whatever nature sustained until Final Acceptance by City, and shall promptly repair or replace, at no additional cost to the City, and to the satisfaction of the City’s Project Manager, any Work, materials, equipment, or supplies damaged, lost, stolen, or destroyed from any cause whatsoever.

Lawn Areas - All lawn areas disturbed by construction shall be replaced with like kind to a condition similar or equal to that existing before construction. Where sod is to be removed, it shall be carefully removed, and the same re-sodded, or the area where sod has been removed shall be restored with new sod in the manner described in the applicable section. Fences - Any fence, or part thereof, that is damaged or removed during the course of the work shall be replaced or repaired by the Construction Manager, and shall be left in as good a condition as before the starting of the work.

Where fencing, walls, shrubbery, grass strips or area must be removed or destroyed incidental to the construction operation, the Construction Manager shall, after completion of the work, replace or restore to the original condition all such destroyed or damaged landscaping and improvements.

The Construction Manager shall provide such equipment and facilities as are necessary or required, in the case of accidents, for first aid service to person who may be injured during the Project duration. The Construction Manager shall also comply with the OSHA requirements as defined in the United States Labor Code 29 CFR 1926.50.

43. If there is a conflict or inconsistency between any term, statement requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, the specifications and plans prepared by the Consultant, or provision of this Agreement, then the provision that imposes the quality, quantity, duty or obligation most consistent with the intent of the Contract Documents, as reasonably determined by the City, shall govern. Should any conflict or inconsistency continue to exist, the following order of precedence shall apply:

Priority Of Provisions

In the event of conflicts in the Contract Documents, the priorities stated below shall govern;

• Revisions to the Contract Documents shall govern over the Contract Documents.

• No section of the Scope of Work, specifications or plans shall govern over the Agreement Terms and Conditions.

• Scope of Work and Specifications shall govern over plans and drawings.


In the event of conflicts with the plans, the priorities stated below shall govern:

• Schedules, when identified as such shall govern over all other portions of the plans.

• Specific notes shall govern over all other notes, and all other portions of the plans, unless specifically stated otherwise.

• Larger scale drawings shall govern over smaller scale drawings. • Figured or numerical dimensions shall govern over dimensions obtained by

scaling. • Where provisions of codes, manufacturer’s specifications or industry

standards are in conflict, the more restrictive or higher quality shall govern.

In the event of omissions in the Contract Documents which are not complete as to any incidental detail of construction or construction system or with regard to the manner of combining or installing equipment, parts, or materials, such detail shall be deemed to be an implied requirement of the Contract Documents. “Minor Detail” shall include the concept of substantially identical components, where the price of each such component is small. The quality and quantity of the equipment, material, or part so furnished shall conform to trade standards and be compatible with the type, composition, strengths, size and profile of the equipment, materials or parts otherwise specified in the Contract Documents.

44. Payment of an approved Application for Payment approved by the Consultant shall be made within thirty (30) days after receipt of Construction Manager’s Application for Payment by the City, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed.

Payments

45. Whenever notice is desired or required under this Agreement, the notice shall be given in writing, by mail, email, facsimile or via courier/delivery service, must be addressed to the party for whom it is intended and delivered at the place last specified (“Notice”); and the place for giving of notice shall remain such until it shall have been changed by Notice given in compliance with this provision. Notice shall be deemed given on the date received or within 3 days of mailing, if mailed through the United States Postal Service. If given via email or facsimile, Notice shall be deemed given on the date sent.. If given via courier/delivery service, Notice shall be deemed given upon the initial delivery date by the courier/delivery service. For the present, the parties designate the following as the respective places for giving of notice:

Communication and Notices

For City of Miami:

Pedro G. Hernandez, P.E., City Manager 3500 Pan American Drive Miami, Florida 33133

Julie O. Bru, City Attorney City of Miami

444 S.W. 2nd Avenue, - 9th Floor Miami, Florida 33130


with copies to:

Mr. Gary Fabrikant, Assistant Director Capital Improvements Program City of Miami 444 S.W. 2nd Avenue, - 8th Floor Miami, Florida 33130

Robert Fenton, Project Manager Office of the City Manager City of Miami 444 S.W. 2nd Avenue, - 10th Floor Miami, Florida 33130

FOR Construction Manager:

(TBD)

Construction Manager shall develop, in conjunction with the City and the Consultant, procedures acceptable to the City and the Consultant for implementing, documenting, reviewing and processing field questions and responses, field variance authorizations and directives, minor changes, Construction Change Directives, Field Directives, and Change Orders.

46. Construction Manager shall indemnify and hold harmless City, its officers, agents, directors, and employees, from liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Construction Manager and persons employed or utilized by Construction Manager in the performance of this Agreement. These indemnifications shall survive the term of this Agreement. In the event that any action or proceeding is brought against City by reason of any such claim or demand, Construction Manager shall, upon written notice from City, resist and defend such action or proceeding by counsel satisfactory to City. The Construction Manager expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by Construction Manager shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, agents and instrumentalities as herein provided.

Indemnification

The indemnification provided above shall obligate Construction Manager to defend at its own cost and expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of liability and all suits and actions of every name and description which may be brought against City whether performed by Construction Manager, or persons employed or utilized by Construction Manager.

This indemnity will survive the cancellation or expiration of the Agreement. This indemnity will be interpreted under the laws of the State of Florida, including without limitation, Chapter 725, Florida Statutes. To the extent this indemnification provision does not comply with Chapter 725, Florida Statutes, as may be amended, this provision shall hereby be interpreted as the parties intention for the indemnification clauses to comply with Chapter 725, Florida Statutes.


Construction Manager shall require all Subcontractor agreements to include a provision that they will indemnify and hold harmless the City, its officers, agents, directors, and employees, and instrumentalities as herein provided.

The Construction Manager agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Construction Manager in which the City participated either through review or concurrence of the Construction Manager's actions. In reviewing, approving or rejecting any submissions by the Construction Manager or other acts of the Construction Manager, the City in no way assumes or shares any responsibility or liability of the Construction Manager or Subcontractor, under this Agreement.

Ten ($10.00) dollars payable by the City to the Construction Manager constitutes separate and distinct consideration for this indemnity and hold harmless provision, the sufficiency of which is hereby acknowledged by the Construction Manager.

47. The City will utilize an Owner Controlled Insurance Program (OCIP) for this Project. In addition to the OCIP the Construction Manager is required to maintain off-site insurance in accordance with the following:

Owner Controlled Insurance Program & Construction Manager’s Insurance

The City will procure and maintain the insurance coverages, excess or additional required under an OCIP. The purpose of the OCIP is to provide one master insurance program that provides broad coverages with high limits that will benefit all participants involved in the Project. The City shall procure, pay for, and administer the OCIP during the duration of the Project. The OCIP will be administered by Brown & Brown Insurance on behalf of the City. The program will include the following Coverages:

OCIP

• Builder Risk • Worker’s Compensation • Commercial Liability • Excess Umbrella Liability

The OCIP will not include the following:

• Automobile liability Coverage • Business Interruption of Loss of Use • Professional Liability (E&O) • Equipment Floater

The OCIP will also not cover any contracts for asbestos abatement, consultants such as architects and engineers, pollution liability, suppliers, vendors, material dealers, and day laborers (labor services).

The named insured on the OCIP shall include the City, Construction Manager, and Subcontractors of any tier, exclusive of suppliers.

Coverages shall be limited to the Project Site.

Within two (2) days after award of the Agreement the Construction Manager shall furnish to Brown and Brown Insurance construction insurance information form (IF201), which will be provided by the City to the Construction Manager.

The Construction Manager, for the coverages provided under the OCIP warrants that all insurance charges, except as provided on IF201, are excluded from this Agreement.


The Construction Manager hereby warrants the accuracy of the information to be provided on IF201 and agrees that the City, its insurance representative, Brown & Brown, and/or OCIP carrier may audit the Construction Manager’s records to confirm the accuracy of any and all insurance credit, including without limitation, in connection with any changes in the work as referenced in this Agreement. The Construction Manager also agrees to provide complete certified copies of the current insurance policy(ies) if requested by the City to verify insurance deduction accuracy. The Construction Manager further warrants and agrees that the City is entitled to and may collect additional insurance credits as may be developed as a result of said audit.

• Workers’ Compensation and Employers Liability Workers’ Compensation – Statutory amount and coverages as required by law, including any applicable provisions for voluntary Workers’ Compensation benefits as required by Labor Union Agreements and including the “All State” endorsement; USL&H.

The OCIP will provide the following coverages:

o Employers Liability – A minimum of $1,000,000 Each Accident $1,000,000 Each Employee, and $1,000,000 Policy Limit Disease.

• Commercial General Liability to cover Construction Manager and any Subcontractor performing work under the Agreement from claim for damages for personal injury including accidental death, as well as from claims for personal property damages which may arise from operations under the Agreement, whether such operations be by Construction Manager or by any Subcontractor or by anyone directly or indirectly employed by them.

• City shall procure insurance coverage for direct operations, sublet work, contractual liability, and completed operation with limits not less than those stated below.

o Bodily Injury and Property Damage Liability – a minimum of $2,000,000 Per Each Occurrence.

o Products and Completed Operations Aggregate Limit – a minimum of $2,000,000 Per Each Occurrence.

o General Aggregate Limit Products and Completed Operations – $4,000,000 annual; coverage will continue for a period of ten (10) years beyond termination and/or completion of the construction program.

o Personal and Advertising Injury Limit – a minimum of $2,000,000 per occurrence;

• Excess/Umbrella policy raising the above limits to a minimum of $50,000,000 and to also cover the primary Liability Coverage – Employers Liability, Public Liability, and Products and Completed Operations.

Certification and Policies – All City furnished insurance coverage outlined above shall be written by insurance companies approved to do business in the State of Florida. The City shall provide all the Construction Manager and Subcontractors with appropriate certificates of insurance evidencing the coverage outlined above. The actual insurance policies will be available for inspection at the City. Construction Manager nor Subcontractors shall commence Work at the Project Site until they have received a copy of the Certificate of Insurance.


The Construction Manager agrees that, in case of payment by the insurers arising out of Damage to property caused by Construction Manager, the City will withhold from the Construction Manager a sum equal to such payment, but not to exceed $2,500 for each occurrence, except that for the utilities of gas, electrical, telephone, telegraph, sewer and water, the City will withhold $5,000 per utility for the first occurrence after the second. The sum shall be assessed to the Construction Manager as determined by the insurer and shall become the property of the City and not collectible under any part of parts of City-furnished insurance policies.

In addition to completing and submitting Form IF201, the Construction Manager shall, within two (2) days after award of the Agreement, submit the following information to the City’s Project Manager and to Brown & Brown, in writing by certified mail, e-mail, or hand delivery:

1. Agreement Number 2. Prime Contractor 3. Legal Name of Subcontractor(s) 4. Address(es) 5. Telephone, persons to contact for insurance information 6. Estimated amount of subcontract 7. Estimated dates the subcontract work will commence and will be completed 8. Type(s) of work to be performed 9. Estimated Project Site payroll by Workers’ Compensation classification 10. Present Workers’ Compensation experience modification 11. Present Workers’ Compensation Policy anniversary date 12. Whether or not any work will be sublet under the subcontract and, if so the

names of potential subcontractors and estimated subcontract amount.

The City, its elected officials, officers, representatives, agents, and employees shall have no responsibility whatsoever to the Construction Manager with respect to any insurance coverage, its procurement or absence thereof. The policies of insurance procured and maintained hereunder shall not affect the Construction Manager’s liability to City, or for the performance of any obligations assumed by Construction Manager under the Contract Documents.

All dividends or refunds payable under the policy shall belong to the City, and are hereby assigned to the City, and the Construction Manager, at the request of the City, shall execute and deliver to the City any release, assignment, directions, or authorization which the City or an insurance company may require for such purpose.

In addition to the OCIP provided by the City and without limiting any of the other obligations or liabilities of Construction Manager, Construction Manager shall provide, pay for, and maintain in force until all of its Work to be performed under this Agreement has been completed and accepted by City (or for such duration as is otherwise specified hereinafter), the insurance coverages set forth herein.

The Construction Manager shall not commence Work under the Agreement until the Construction Manager has obtained the insurance required hereunder and the City’s Risk Administrator has approved such insurance.


Companies Providing Coverage All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and satisfactory to the Risk Administrator. All companies shall have a Florida resident agent and be rated at least A(X), as per A.M. Best Company’s Key Rating Guide, latest edition.

Verification of Insurance Coverage The Construction Manager shall furnish certificates of insurance to the Risk Administrator for review and approval prior to the execution of this Agreement and any amendment thereto. The Certificates shall clearly indicate that the Construction Manager has obtained insurance of the type, amount and classification required by these provisions, in excess of any pending claims at the time of contract award to the Construction Manager. Construction Manager shall maintain coverage with equal or better rating as identified herein for the term of this Agreement. Construction Manager shall provide written notice to the Risk Administrator of any material change, cancellation and/or notice of non-renewal of the insurance within 30 days of the change. Construction Manager shall furnish a copy of the insurance policy or policies upon request of the Risk Administrator.

Construction Manager shall ensure that all Subconsultants comply with these same insurance requirements unless otherwise stipulated.

Coverage shall include all owned, hired, borrowed or non-owned autos, with a combined single limit of $1,000,000 for Bodily Injury, or Property Damage. The City of Miami, Marlins Stadium Operator, LLC, Marlins Stadium Developer, LLC, Florida Marlins, LP and Miami-Dade County shall be named as an additional insured.

Automobile, Bodily Injury, and Property Damage Liability – On and Off Site

Coverage shall include all owned, used, and leased equipment required to perform the services called for in the Contract Documents.

All Risk Contractor’s Equipment

The Construction Manager shall maintain Worker's Compensation Insurance in compliance with Florida Statutes, Chapter 440, as amended, and Employee’s Liability with the following minimum limits:.

Worker's Compensation Insurance - Off Site Activities Only

• Employers' Liability with a limit of One Million Dollars ($1,000,000.00) Dollars each bodily injury caused by an accident, each accident. One Million Dollars ($1,000,000.00) Dollars each bodily injury caused by disease, each employee. One Million Dollars ($1,000,000.00 Dollars each bodily injury caused by disease, policy limit.

• Waiver of subrogation

The Construction Manager shall maintain a commercial general liability policy written on a “primary and non-contributory basis” with minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability; General Aggregate Limit of Two Million Dollars ($2,000,000.00). Coverage must be afforded on a form no more restrictive than the latest edition of the Commercial General Liability form, without restrictive endorsements, as filed by the Insurance Services Office, and must include:

Commercial General Liability - Off Site Activities Only


• Premises and Operations Liability

• Products and Completed Operations Liability (3 yrs after date of completion)

• Contractual and Contingent Liability

• Personal and advertising Liability

• Explosion, Collapse and Underground Hazard

• Waiver of Subrogation

• City of Miami as Additional Insured as per CG 2010 (11/85) as well as Marlins Stadium Operator, LLC, Marlins Stadium Developer, LLC, Florida Marlins, LP and Miami-Dade County

The Construction Manager shall maintain an umbrella policy issued on an “excess follow form” basis providing for Bodily injury and property damage liability with limits of Five Million Dollars ($5,000,000) each occurrence and an aggregate limit of Five Million Dollars ($5,000,000). The umbrella policy shall be excess over the Commercial General Liability, and Automobile Liability and Employer’s Liability.

Umbrella Policy

Subcontractors shall provide the Construction Manager a certificate of insurance affording coverage for general liability with limits of $300,000 each occurrence and $600,000 aggregate limit, including premises and operations, products and completed operations, contractual liability, personal and advertising liability and Explosion, Collapse and Underground Hazard. In addition, Subcontractors shall furnish the Construction Manager a certificate of insurance for automobile insurance with limits of $300,000 combined single limit for bodily injury and property damage, covering all owned, hired, borrowed, and non-owned autos. In addition, the Subcontractor shall provide the Construction Manager with a certificate of workers’ compensation with statutory limits in accordance to Florida law.

Cessation of Insurance--Coverage is not to cease and is to remain in force (subject to cancellation notice) until final acceptance by City.

If the initial insurance expires prior to the completion of the Work, renewal copies of policies shall be furnished at least thirty (30) days prior to the date of their expiration.

Notice of Cancellation and/or Modification--The policy(ies) must be endorsed to provide City with at least thirty (30) days notice of cancellation and/or modification.

Submittal of Certificates -- Construction Manager shall furnish to Capital Improvements Program office Certificates of Insurance or endorsements evidencing the insurance coverage specified above within fifteen (15) calendar days after notification by the City. The required Certificates of Insurance shall name the types of policies provided, refer specifically to this Agreement, and state that such insurance is as required by this Agreement.

The official title to be used on all insurance documents is the City of Miami, Florida.

48. The City through its Risk Administrator or authorized designee reserves the right to require modifications, increases, or changes in the required insurance requirements, coverage, deductibles or other insurance obligations and shall provide a thirty (30) day

Modifications To Coverage


written notice to the Construction Manager. In that event Construction Manager shall comply with such requests unless the insurance coverage is not then readily available in the national market, and may request additional consideration from City accompanied by justification. All additional cost will be borne by the City.

49. The City may withhold from any payments to be made such sums as may reasonably be necessary to ensure completion of the Project with respect to defective Work, equipment or materials which may be identified by the City’s Project Manager. The City may deduct from any payment due the Construction Manager an amount equal to its cost incurred on account of the Construction Manager’s failure to fully perform its obligations under the Agreement.

Payments Related to Guaranteed Obligations

The City’s Project Manager, prior to withholding or deducting any monies hereunder, shall give the Construction Manager notice of the defective Work, equipment or material and the basis for the withholding or deduction.

Upon the City’s Project Manager’s determination that the Construction Manager has fulfilled its obligations, the City will pay the Construction Manager any monies owed, subject to Construction Manager’s submission of, or compliance with, any remaining documentation or obligation, as the case may be, in accordance with the Contract Documents.

50. An event of default shall mean a breach of the Agreement by the Construction Manager (“Event of Default”). Without limiting the generality of the foregoing, and in addition to those instances referred to herein as a breach, an Event of Default shall include but is not limited to, the following:

Default/ Events of Default

• The Construction Manager has not performed the Work in a timely manner; • The Construction Manager has refused or failed, except in case for which an

extension of time is provided, to supply properly skilled staff or provided sufficient quantities of staff to perform the Work;

• The Construction Manager has failed to make prompt payment to Subcontractors or suppliers for any services or materials they have provided;

• The Construction Manager has become insolvent or has assigned the proceeds received for the benefit of the Construction Manager’s creditors, or the Construction Manager has taken advantage of any insolvency statute or debtor/creditor law or if the Construction Manager’s affairs have been put in the hands of a receiver;

• The Construction Manager has failed to obtain the approval of the City where required by the Contract Documents;

• The Construction Manager has failed in the representation of any warranties stated herein;

Construction Manager fails to obtain the insurance or bonding herein required.

Construction Manager fails to comply with any of its duties under this Agreement, with any terms or conditions set forth in this Agreement beyond the specified period allowed to cure such default.

Construction Manager fails to commence the Work within the timeframes provided or contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement.


• When, in the opinion of the City, reasonable grounds for uncertainty exist with respect to the Construction Manager’s ability to perform the Work, the City shall notify the Construction Manager in writing that it must, within the time frame set forth in the City’s request, provide adequate assurances and a plan of action to the City, in writing, of the Construction Manager’s ability to perform in accordance with the terms of the Contract Documents. In the event that the Construction Manager fails to provide to the City the requested assurances within the prescribed time frame, such failure shall be deemed an Event of Default. In the event the City may, at its sole discretion terminate the Agreement for default, the City or its designated representatives may immediately take possession of all applicable documentation and data.

• Where the City erroneously terminates the Agreement for default, the terminations shall be converted to a Termination for Convenience, and the Construction Manager shall have no further recourse of any nature for wrongful termination.

51. In the event that the City determines that an Event of Default has occurred, the City may, at its sole discretion, notify the Construction Manager, specifying the basis for such default, and advising the Construction Manager that such default must be cured within Cure Period determined by the City. The City is under no obligation to issue such notification. The City may grant an extension to the Cure Period if the City deems it appropriate and in the best interest of the City, without waiver of any of the City’s rights hereunder. The City, at its sole discretion, may have a default corrected by its own forces or another contractor and any such costs incurred will be deducted from any sums due the Construction Manager under this Agreement or any other contract between Construction Manager and the City.

Notice of Default-Opportunity to Cure

52.

If an Event of Default occurs that is not cured within the applicable Cure Period, if any, then in addition to all remedies available to it by law, the City may (i) have the default corrected by its own forces or another contractor, and any such costs incurred will be deducted from any sums due the Construction Manager under this Agreement or any other contract between Construction Manager and the City, (ii) suspend any payment or part thereof or order a Work stoppage until such time as the issues concerning compliance are resolved, or (iii) immediately, upon written notice to Construction Manager, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Construction Manager while Construction Manager was in default shall be immediately returned to the City.

Remedies for Construction Manager’s Default /Waiver of Claims for Consequential Damages

In the event the City exercises it right to terminate due to a default, the City shall take possession of the Project Site and of all materials, equipment, tools and machinery thereon owned by Construction Manager and may finish the Work by whatever method it may deem expedient. In such event, Construction Manager shall not be entitled to receive any further payment until the Work is finished nor shall it be relieved from its obligations under the Contract Documents. Additionally, Construction Manager shall be liable for all costs and expenses incurred by the City in the re-procurement of the Work under this Agreement.

If the City completes all or any portion of the Work as a result of a default, and the unpaid balance of the GMP exceeds the cost of finishing the Work, including all costs,


losses, damages, and expenses incurred by the City by reason of Construction Manager’s default, including, without limitation, attorney’s fees and costs, then the City shall pay the Construction Manager the amount that will compensate the Construction Manager for the Work actually performed by the Construction Manager. If the cost to the City to complete the Work, together with all costs, losses, damages, and expenses incurred by the City by reason of Construction Manager’s default, including, without limitation, attorney’s fees and costs, exceed the unpaid balance of the GMP, then Construction Manager shall pay the difference to the City upon demand. This obligation for payment shall survive termination of this Agreement.

The Construction Manager shall stop Work as of the date of notification of the termination. At the City’s option, the City may order the Construction Manager to immediately remove all labor, equipment and materials (not owned or paid for by the City for the Work) from the Work Site. The City assumes no liability for the Construction Manager’s failure to remove such items from the Project(s) site(s) as required.

Construction Manager understands and agrees that termination of this Agreement under this Article shall not release Construction Manager from its obligations under this Agreement and the Contract Documents. As an alternative to termination, the City may bring suit or proceedings for specific performance or for an injunction. Where it has been determined by a court of competent jurisdiction that the Construction Manager has been erroneously terminated, such termination shall be deemed to have occurred under Article 53, as a Termination for Convenience. Construction Manager waives all claims and rights of recovery for consequential damages arising out of or relating to the Agreement including damages incurred by Construction Manager for principal office expenses including the compensation of personnel stationed there not directly involved in the Work, losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work.

53. In addition to any other rights the City may have by law or under this Agreement with respect to cancellation or termination, the City may at any time, in its sole discretion, with or without cause, terminate the Agreement, in whole or in part, by written notice to the Construction Manager. Such Written Notice shall state the date upon which Construction Manager shall cease all Work under the Agreement and vacate the Project Site.

Termination for Convenience

The Construction Manager shall, upon receipt of such notice, unless otherwise directed by the City:

• Stop all Work on the Project on the date specified in the notice (“the Effective Date”);

• Take such action as may be necessary for the protection and preservation of the City’s materials and property;

• Cancel all cancelable orders for materials and equipment; • Assign to the City and deliver to the Project Site, or any other location specified

by the City’s Project Manager, any non-cancelable orders for materials and equipment that can not otherwise be used except for Work under the


Agreement and have been specifically fabricated for the sole purpose of the Work and not incorporated in the Work;

• Take no action that shall increase the amounts payable by the City under the Contract Documents; and

• Take reasonable measures to mitigate the City’s liability under the Contract Documents.

• All Work Product, including but not limited to charts, sketches, studies, drawings, reports and other documents, including electronic documents, related to Work authorized under the Agreement, whether finished or not, must be turned over to the City. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Construction Manager until all documentation is delivered to the City.

In the event that the City exercises its right to terminate this Agreement, the City will pay the Construction Manager:

• For the actual cost or the fair and reasonable value, whichever is less, of (1) the portion of the Project(s) completed in accordance with the Agreement through the termination date, and (2) non-cancelable material(s) and equipment that is not of any use to the City except in the performance of the Agreement, and has been specifically fabricated for the sole purpose of the Agreement but not incorporated in the Work; and

• To the extent practical, the fair and reasonable value shall be based on the price established as a result of the Agreement. In no event, shall any payments under this Paragraph exceed the maximum cost set forth in the Agreement.

• The amount due hereunder may be offset by all payments made to the Construction Manager.

• All payments pursuant to this Article shall be accepted by the Construction Manager in full satisfaction of all claims against the City arising out of the termination including, overhead and profit Further, the City may deduct or set off against any sums due and payable under this Article any claims it may have against the Construction Manager.

• Construction Manager shall not be entitled to lost profits, overhead or consequential damages as a result of a Termination for Convenience.

• All payments made under the Agreement are subject to audit

Upon the City’s payment in full of the amounts due the Construction Manager under this Article, the Construction Manager grants the City full use of the Work and any Work Product to complete the Project and subsequently occupy the Project.

54. Construction Manager warrants that it has not employed or retained any company or person to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement.

Termination Due To Undisclosed Lobbyist Or Agent

For the breach or violation of this provision, the City shall have the right to terminate the Agreement without liability.


55. City and Construction Manager agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Agreement and, therefore, is a material term hereof.

Materiality and Waiver of Breach

City's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement.

56. Should any failure to perform on the part of Construction Manager be due to a condition of force majeure as that term is interpreted under Florida law, then the City may allow an extension of time reasonably commensurate with the cause of such failure to perform or cure.

Force Majeure

If the Construction Manager is delayed in performing any obligation under this Agreement due to a force majeure condition, the Construction Manager shall request a time extension from the City within two (2) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Construction Manager for extra compensation unless additional services are required. Force Majeure shall not include inclement weather, except as permitted by Florida law, and shall not include the acts or omissions of Subconsultants/Subcontractors.

57. Construction Manager understands and agrees that all disputes between it and the City based upon an alleged violation of the terms of this Agreement by the City shall be submitted for resolution in the following manner.

Resolution of Agreement Disputes

The initial step shall be for the Construction Manager to notify the City’s Project Manager in writing of the claim or dispute and submit a copy to the City of Miami personnel identified in Article 45, Communication and Notices.

Should the Construction Manager and the City’s Project Manager fail to resolve the dispute, the Construction Manager shall submit the dispute in writing, with all supporting documentation, to the Capital Improvements Program Assistant Director-Contracts, as identified in Article 45, Communication and Notices. Upon receipt of said notification, the Assistant Director-Contracts shall review the issues relative to the claim or dispute and issue a written finding.

Should the Construction Manager and the Assistant Director-Contracts fail to resolve the dispute within fourteen (14) calendar days, or such other timeframe agreed to by both parties in writing, the Construction Manager shall submit the dispute in writing, within five (5) calendar days of the issuance of the written finding, to the Director. Failure to submit such appeal of the written finding within five (5) calendar days shall constitute acceptance of the finding by the Construction Manager. Upon receipt of said notification, the Director shall review the issues relative to the claim or dispute and issue a written finding within fourteen (14) calendar days, or such other timeframe agreed to by both parties in writing.

Construction Manager must submit any further appeal in writing within five (5) calendar days of the issuance of the written finding or failure by the Director to issue a written finding, to the City Manager. Failure to submit such appeal of the written finding within


five (5) calendar days shall constitute acceptance of the finding by the Construction Manager. Appeal to the City Manager for his/her resolution, is required prior to Construction Manager being entitled to seek judicial relief in connection therewith. Should the amount of compensation hereunder exceed $100,000, the City Manager’s decision shall be approved or disapproved by the City Commission. Construction Manager shall not be entitled to seek judicial relief unless it has complied with all of the requirements of this Article, and:

(i) it has first received City Manager’s written decision, approved by the City Commission, if applicable, or

(ii) a period of thirty (30) days has expired after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation, or a period of (90) days has expired where City Manager’s decision is subject to City Commission for approval; or

(iii) City has waived compliance with the procedure set forth in this Article by written instrument(s) signed by the City Manager.

In the event the determination of a dispute under this Article is unacceptable to the Construction Manager, the Construction Manager must notify the City, in writing, within seven (7) calendar days of receipt of the written determination that it intends to seek arbitration of the claim. The notice must state the basis of the objection and must be accompanied by a statement that any price or time adjustment claimed is the entire adjustment to which the Construction Manager has reason to believe it is entitled to as a result of the determination. Failure to submit such notification within the stipulated timeframe shall constitute acceptance of the City’s final position in response to any claim. Both parties will work together and make their best efforts to have the mediation held within thirty (30) calendar days of the request being submitted by the Construction Manager.

Within sixty (60) calendar days after Final Completion of the Work, the parties shall participate in mediation to address all objections to any determinations hereunder and to attempt to prevent litigation. The mediator shall be mutually agreed upon by the parties. Should any objection not be resolved in mediation, the parties retain all their legal rights and remedies provided under State law. Construction Manager specifically waives all of its rights provided hereunder, including its rights and remedies under State law, if said party fails to comply in strict accordance with the requirements of this Article.

Notwithstanding the existence of any dispute between the City and Construction Manager, each Party shall continue to perform as required under the Contract Documents, and City shall continue to pay Construction Manager as provided in the Contract Documents.

58. In an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and/or construction of the Project, and/or following the completion of the Project, the parties to this Agreement agree that all unresolved disputes between them shall be submitted to non-binding mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties. A certified Mediator, who the parties find mutually acceptable, will conduct any Mediation Proceedings in Miami-Dade County, State of Florida. The parties will share the costs of a certified Mediator on a 50/50 basis. The Construction Manager agrees to include a similar provision in all contracts with all Subconsultants and Subcontractors retained for the Work, thereby providing for non-binding mediation as the primary mechanism for dispute resolution.

Mediation - Waiver of Jury Trial


In an effort to expedite the conclusion of any litigation, the parties voluntarily waive their right to jury trial or to file permissive counterclaims in any action arising under this Agreement.

Any dispute submitted to the courts for resolution prior to the completion of the procedures stipulated in Article 57, Resolution of Agreement Disputes and Article 58, Mediation – Waiver of Jury Trial shall be rejected by the courts until such time as the stipulated procedures have been completed.

59. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out of this Agreement, shall be brought in Miami-Dade County, Florida. Each party shall bear its own attorney’s fees except in actions arising out of Construction Manager's duties to indemnify the City under this Agreement where Construction Manager shall pay the City’s reasonable attorney’s fees.

Applicable Law And Venue Of Litigation

60. The City may avail itself of each and every remedy herein specifically given to it now or existing at law or in equity, and each and every such remedy shall be in addition to every other remedy so specifically given or otherwise so existing and may be exercised from time to time and as often and in such order as may be deemed expedient by the City. The exercise or the beginning of the exercise, of one remedy shall not be deemed a waiver of the right to exercise, at the same time or thereafter, of any other remedy. The City’s rights and remedies as set forth in the Contract Documents are not exclusive and are in addition to any other rights and remedies in law or in equity.

City May Avail Itself of All Remedies

61. Pursuant to the Public Bid Disclosure Act, each license, permit or fee REQUIRED BY THE CITY AND PAYABLE TO THE CITY by virtue of this construction as part of the Agreement is waived as follows:

Permits, Licenses and Impact Fees

City’s Master Permit Fee and applicable Major Trade Permit fees (i.e. Mech., Plumbing, Elec., & Fire) are waived. Any other permit fees not directly related to the actual construction of the Project(s) (i.e. Permits for dumpsters, job trailers) are not waived”…”Licenses, permits and fees which may be required by Miami-Dade County, the State of Florida, or other governmental entities are not waivable.”

Except as otherwise provided within the Agreement, all permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the Work undertaken by Construction Manager pursuant to this Agreement shall be secured and paid for by Construction Manager. It is Construction Manager’s responsibility to have and maintain appropriate Certificate(s) of Competency, valid for the Work to be performed and valid for the jurisdiction in which the Work is to be performed for all persons working on the Project for whom a Certificate of Competency is required.

Impact fees levied by the City shall be waived by the City. Construction Manager shall be reimbursed through its GMP only for the actual amount of the impact fee levied by the other governmental entities as evidenced by an invoice or other acceptable documentation issued by the municipality. Reimbursement to Construction Manager in no event shall include profit or overhead of Construction Manager.


62. The Construction Manager shall comply with the most recent editions and requirements of all applicable laws, regulations, building and construction codes of the Federal government, the State of Florida, the County, and the City.

Compliance With Applicable Laws

The attention of the Construction Manager is directed to the requirements of the Florida Building Code and the Codes of Miami-Dade County and the City of Miami, Florida, governing the qualifications for Construction Manager and Subcontractor doing business anywhere in the City.

63. In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime, may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or subconsultant under a contract with the City, and may not transact any business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section by Construction Manager shall result in cancellation of the City purchase and may result in Construction Manager’s debarment.

Public Entity Crimes

64. Construction Manager's records which shall include but not be limited to accounting records, payroll time sheets, cancelled payroll checks, W-2’s, 1099’s, written policies and procedures, computer records, disks and software, videos, photographs, subcontract files (including proposals of successful and unsuccessful bidders), originals estimates, estimating worksheets, correspondence, change order files (including documentation covering negotiated settlements), and any other supporting evidence necessary to substantiate charges related to this Agreement (all the foregoing hereinafter referred to as "records") shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by City's agent or its authorized representative to the extent necessary to adequately permit evaluation and verification of any invoices, payments or claims submitted by the Construction Manager or any of his payees pursuant to the execution of the Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Agreement.

Audit Rights

Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City's agent or authorized representative shall have access to said records from the effective date of this Agreement, for the duration of the Work, and until 5 years after the date of final payment by the City to Construction Manager pursuant to this Agreement.

The City's agent or its authorized representative shall have access to the Construction Manager's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this provision. The City or its authorized representative shall give auditees reasonable advance notice of intended audits.


If an audit inspection or examination in accordance with this Article discloses overcharges in excess of 1% except negotiated fees by the Construction Manager to the City, the actual cost of the City's audit shall be paid by the Construction Manager. If the audit discloses contract billing or charges to which Construction Manager is not contractually entitled, Construction Manager shall pay over to the City said sum within 20 days of receipt of a written demand unless otherwise agreed to by both parties in writing.

65.

Construction Manager warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Construction Manager’s performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Construction Manager further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement.

Nondiscrimination, Equal Employment Opportunity, and Americans with Disabilities Act

Construction Manager shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Construction Manager shall take affirmative steps to ensure nondiscrimination in employment against disabled persons.

66. The Construction Manager is engaged as an independent business and agrees to perform Work as an independent contractor. In accordance with the status of an independent contractor, the Construction Manager covenants and agrees that the Construction Manager will conduct business in a manner consistent with that status, that the Construction Manager will not claim to be an officer or employee of the City for any right or privilege applicable to an officer or employee of the City, including, but not limited to: worker’s compensation coverage; unemployment insurance benefits; social security coverage; retirement membership, or credit.

Independent Contractor

The Construction Manager’s staff shall not be employees of the City, and the Construction Manager alone shall be responsible for their Work, the direction thereof, and their compensation and benefits of any kind. Nothing in the Contract Documents shall impose any liability or duty on the City on account of the Construction Manager’s acts, omissions, liabilities or obligations of those of any person, firm, company, agency association, corporation, or organization engaged by the Construction Manager as a Subcontractor, expert, consultant, independent contractors, specialist, trainee, employee, servant or agent or for taxes of any nature, including, but not limited to: unemployment insurance; worker’s compensation and anti-discrimination, or workplace legislation of any kind. The Construction Manager hereby agrees to indemnify and hold harmless the City against any such liabilities, even if they arise from actions directed or taken by the City.

67. The performance of this Agreement shall not be transferred pledged, sold, delegated or assigned, in whole or in part, by the Construction Manager without the written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Construction Manager, a merger or bulk sale, an assignment for the benefit of

Successors And Assigns


creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval.

The Construction Manager’s services are unique in nature and any transference without City Commission approval shall be cause for the City to nullify this Agreement. Any assignment without the City’s consent shall be null and void. The Construction Manager shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed assignee and the execution of an assignment/ assumption agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment.

The Construction Manager and the City each binds one another, their partners, successors, legal representatives and authorized assigns to the other party of this Agreement and to the partners, successors, legal representatives and assigns of such party in respect to all covenants of this Agreement.

If the Construction Manager assigns, transfers, sublets or otherwise disposes of the Agreement or its right, title or interest in or to the same or any part thereof without the previous consent in writing of the City, such action shall be an Event of Default. Nothing herein shall either restrict the right of the Construction Manager to assign monies due to, or to become due or be construed to hinder, prevent or affect any assignment by the Construction Manager for the benefit of its creditors, made pursuant to applicable law.

68. Neither Construction Manager nor the City intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement.

Third Party Beneficiaries

69. Contingency ClauseFunding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days notice.

70. Construction Manager acknowledges that upon completion of the of the Work under this Agreement and/or at any other time deemed appropriate by the City a performance evaluation report will be completed by the City. A copy of each performance evaluation shall also be forwarded to the Construction Manager. The performance evaluations will be kept in City files for evaluation on future solicitations.

Performance Evaluation

71. The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as “herein,” “hereof,” “hereunder,” and “hereinafter” refer to this Agreement as a whole and not to any particular sentence, article, paragraph, or section where they appear, unless

Joint Preparation- Interpretation


the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section or Article, unless the reference is made to a particular subsection or subparagraph of such section or article.

72. Unless authorized by the Director, Construction Manager shall keep confidential all information concerning and relating to this Project, including without limitation, any information and documentation provided by employee or officers of the City to the Construction Manager any design costs, drawings, specifications or any other materials prepared by the Construction Manager or Subcontractor’s in connection with the Work provided under this Agreement. Construction Manager shall not disclose any confidential information to any persons or other entities not listed above without the prior written consent of the City. Such consent may be granted or withheld at the sole discretion of the City. The foregoing shall not prohibit such disclosures as may be necessary in the performance of the Work under this Agreement or as required by law.

Confidentiality

73. In the event the Construction Manager may be deemed to have a cause of action against the City, no action shall lie or be maintained by the Construction Manager against the City upon any claim arising out of or based upon the Contract Documents by reason of any act or omission or requirement of the City or its agents, unless such action shall be commenced within six (6) months after the date of issuance of a final payment under the Agreement, or if final payment has not been issued within six (6) months of substantial completion of the Work or upon any claim relating to monies required to be retained for any period after the issuance of the said certificate, unless such action is commenced within six (6) months after such monies become due and payable under the terms of the Contract Documents, or if the Agreement is terminated or declared abandoned under the provisions of the Agreement unless such action is commenced within six (6) months after the date of such termination or declaration of abandonment by the City.

Agreement Limiting Time in Which to Bring Action Against the City

74. Should any claim be made or any legal action brought in any way relating hereto or to the Work hereunder, except as expressly provided herein, the Construction Manager shall diligently render to the City, after additional compensation is mutually agreed upon, any and all assistance which the City may require of the Construction Manager.

Defense of Claims

75. No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City, Director or designee.

Amendments

76. In the event that any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights of either party, such party may elect, at its option, to terminate this Agreement in its entirety. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final.

Severability


77. The parties acknowledge that any of the obligations in the Contract Documents will survive the term, termination and cancellation hereof. Accordingly, the respective obligations of the Construction Manager and the City under the Agreement, which by nature would continue beyond the termination, cancellation or expiration thereof, shall survive termination, cancellation or expiration thereof.

Survival

78. This Agreement, as it may be amended from time to time, represents the entire and integrated agreement between the City and the Construction Manager and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may not be amended, changed, modified, or otherwise altered in any respect, at any time after the execution hereof, except by a written document executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach of any provision of this Agreement.

Entire Agreement

79. Pursuant to the CAA, the City, in cooperation with the County’s Department of Small Business Development, has established certain goals for the utilization of local small businesses and local workforce in the construction of the Project, in accordance with the County’s Community Small Business Enterprise (CSBE) program for construction, and the Community Workforce Program (CWP). The preliminary CSBE and CWP goals are set forth in the Request for Proposals. Construction Manager shall make a good faith effort to assist the City in establishing the final bid CSBE and CWP goals associated with each bid package for the Project, if needed, and shall use good faith efforts to comply with the established CSBE and CWP goals. Construction Manager shall, and shall require all Subcontractors to, grant the City all rights of access to records to monitor compliance with the CSBE and CWP goals, and shall include the above requirements in each bid package and Subcontract.

Small Business/Local Workforce Participation

80. Section 18-110 of the City Code states: First Source Hiring Agreements

(a) The City commission approves implementation of the first-source hiring agreement policy and requires as a condition precedent to the execution of service contracts for facilities, services, and/or receipt of grants and loans, for projects of a nature that create new jobs, the successful negotiation of first source hiring agreements between the organization or individual receiving said contract and the Authorized Representative unless such an agreement is found infeasible by the City Manager and such finding approved by the City Commission at a public hearing.

(b) For the purpose of this section, the following terms, phrases, words and their derivations shall have the following meanings:

Authorized Representative means the Private Industry Council of South Florida/South Florida Employment and Training Consortium, or its successor as local recipient of federal and state training and employment funds.

Facilities means all publicly financed projects, including but without limitation, unified development projects, municipal public works, and municipal improvements to the extent they are financed through public money or services or the use of publicly owned property.


Grants and loans means, without limitation, urban development action grants (UDAG), economic development agency construction loans, loans from Miami Capital Development, Incorporated, and all federal and state grants administered by the City.

Service contracts means contracts for the procurement of services by the City which include professional services.

Services include, without limitation, public works improvements, facilities, professional services, commodities, supplies, materials and equipment.

(c) The Authorized Representative shall negotiate each first source hiring agreement.

(d) The primary beneficiaries of the first-source hiring agreement shall be participants of the City training and employment programs, and other residents of the City.

Contractors are strongly encouraged to identify opportunities to hire qualified City residents if an Agreement is awarded, and are expected to secure the cooperation of subcontractors in this effort as well. Approved community agencies are available to assist with recruitment and screening of job applicants, and may periodically monitor contractors’ employment records during the term of the Agreement. Resident job applicants are not expected to receive special consideration by the prospective employer, and must meet all hiring requirements normally imposed by the employer. During the term of the Agreement, if awarded, the City may require the Construction Manager and its subcontractors to periodically review its manpower needs and resubmit First Source Hiring forms.

The Construction Manager is expected to meet the goals and objective detailed in its Response to the Request for Proposals, which has been previously incorporated into this Agreement.

81. The Construction Manager acknowledges receipt, and represents that it has reviewed and agrees to comply with the relevant provisions, of the CAA and the Parking Agreement, affecting the construction of the Project, including, without limitations, Sections 4.3, 4.4, 4.6, and 4.7 of the Parking Agreement, and Article II, and Sections 3.6, 3.9, 4.1, 4.5, 5.3, 5.7 and 6.5 of the CAA. In the event of a conflict between the relevant provisions of the CAA and the Parking Agreement, and the provisions of this Agreement, the provisions of the CAA and the Parking Agreement shall control.

Special City Provisions:


Section 2 - Pre-Construction Phase 1.

Time is of the essence in the performance of the Work under this Agreement. The “Pre-Construction Commencement Date” shall commence with the execution of this Agreement. Construction Manager shall commence the Pre-Construction Phase Services portion of the Work within five (5) calendar days after the Pre-Construction Phase Commencement Date. Any Work performed by Construction Manager prior to the Pre-Construction Phase Commencement Date shall be at the sole risk of Construction Manager and not compensable from the City.

Agreement Time

Because the Work is to be completed in two phases, the timely completion of the first Phase is critical to the timely completion of the second phase and, therefore, completion of the entire Project. Accordingly, Construction Manager agrees to provide the Pre-Construction Phase Services in accordance with the design schedule established pursuant to the terms of the City’s agreement with the Consultant, which requires that the Construction Manager complete all Pre-Construction Work and submit the GMP Proposal no later than fifteen (15) working days after the Consultant has completed 95% Construction Documents, which shall be determined by the Consultant’s agreement with the City.

2. Construction Manager shall cooperate with the Consultant towards meeting the City’s objective of having GMP be no greater than the Fixed Construction Budget. The Construction Manager shall cooperate with the Consultant in the preparation of cost evaluations, including cost/benefit analysis, for alternative approaches to bring costs in line with the Fixed Construction Budget.

Fixed Construction Budget

The Construction Manager shall recommend changes and corrections in the Drawings, Specifications and other Design Documents provided by the Consultant, when such Drawings, Specifications and other Design Documents are determined by the City or the Construction Manager not to be in conformance with the Fixed Construction Budget set forth by the City for the Project. For purposes of this Agreement the Drawings, Specifications and other Design Documents developed under the Consultant’s agreement with the City are included in the 95% construction documents that are required by the City to establish a Guaranteed Maximum Price for the completion of the construction of the Project.

3. Pre-Construction Phase Services

Construction Manager shall work with the Consultant in reviewing and developing the design and construction documents, taking into account the quality of the materials and equipment, to ensure the most efficient design and minimum lifecycle cost. Construction Manager shall provide information, estimates, schemes, and make recommendations regarding construction materials, equipment, methods, systems, phasing, and costs, and shall participate in design decisions to provide the highest quality building within the budget and Project Schedule. Construction Manager shall call to the City’s and Consultant’s attention any defects and lack of coordination in the design, drawings and specifications or other documents of which it is aware.

Design Review and Warranties


In addition to the GMP, the Construction Manager shall submit IMGPs based on the Consultant’s 50% of Design Development and 50% completion of Construction Documents. Each of these percentages shall be determined by the Consultant’ agreement with the City.

At the time the GMP is mutually established, except only as to specific matters as may be identified in the GMP Amendment, the Construction Manager shall be deemed to have warranted to City, without assuming any architectural or engineering responsibility, that the construction documents are consistent with each other, practical, feasible and constructible. Further, the Construction Manager shall be deemed to have warranted to the City that the Work described in the Construction Documents is constructible within the time stipulated in the GMP Amendment.

4. The Construction Manager shall coordinate and cooperate with the Consultant in the Value Engineering and Constructability reviews during each phase of the design process.

Value Engineering & Constructability

The Construction Manager will review all Design Documents and Specifications for constructability and compliance with applicable laws, rules, codes, design standards, and ordinances. The results of such reviews shall be provided to the City and Consultant in the form of a written report in format as noted herein upon the Construction Documents. The Construction Manager shall assure that design is achievable within the budget and Project Schedule.

The Construction Manager shall review all Design Documents and Specifications to provide Value Engineering recommendations to minimize the City’s capital outlay, maximize the City’s operational resources and maximize the potential of the Project. The results of such reviews shall be provided to the City and Consultant in the form of a Memorandum of Changes in a format acceptable to the City within fifteen (15) working days receipt of documents from the Consultant. If the City and the Consultant agree with such Memorandum of Changes, the Construction Manager shall be so notified and the Consultant shall incorporate the changes described in the Memorandum of Changes into the Design Documents. Consultant retains sole responsibility and liability to any and all changes made as a result of the Value Engineering and Constructability reviews.

The Construction Manager shall review with the Consultant and the City alternative approaches to design and construction of the Project, site use and improvements; selections of materials, building systems and equipment; potential construction means and methods; and, if requested, shall make a recommendation among such alternatives. Where alternative approaches are presented, a comparison costs shall be provided as well as the benefits in the completion of the Work or other aspect of the Project.

Construction Manager shall provide information as to the availability of materials and what equipment and systems have long lead times, together with the anticipated lead times.

The Consultant shall keep the Construction Manager and the City informed of any proposed changes in requirements or in construction materials, systems or equipment as the Drawings and Specifications are developed. Proposed changes must be reviewed by the Construction Manager and the City and approved in writing by City prior to incorporation into the design or construction documents. The Consultant shall coordinate with the Construction Manager and the City by participating and taking a leadership role in reviewing and commenting on Constructability and Value Engineering


studies performed by Construction Manager, and attending meetings where the content of design and construction Contract Documents will be coordinated and reconciled, scheduled during any phase of the Work. In the event the Consultant and the City accept Construction Manager’s recommendations from Value Engineering and Constructability studies, the Consultant shall implement same, including providing revised drawings and specifications or other documents.

Prior to the City’s acceptance of the GMP, the Construction Manager shall certify that it has completed its constructability reviews and certifies that the Project can be constructed as designed within budget and the Project Schedule.

5. The Construction Manager shall provide the following to the City and the Consultant: IGMP

An IMGP with supporting data along with the Memorandum of Changes, for each IMGP, within fifteen (15) working days of the Construction Manager’s receipt of the Consultant’s 50% Design Development, and the 50% Construction Documents.

Each IMGP should establish internal estimating allowances, consistent with good professional practice, appropriate to the phase of development. Larger allowances may be assumed at early phases but shall gradually diminish to zero at completion of final cost estimate.

The Construction Manager hereby expressly acknowledges that by preparing the Memorandum of Changes, the Construction Manager represents to the best of its knowledge to the City that 100% complete construction documents (as modified by the Memorandums of Changes) and other Contract Documents related to the Project are consistent, feasible and sufficient to construct the entire scope of the Work within the Fixed Construction Budget and with the Project Schedule.

If any Construction Estimate submitted by the Construction Manager exceeds any previously approved IMGP or the City’s Fixed Construction Budget, the Construction Manager shall make appropriate recommendations to the City, including without limitation, recommendations to modify the design, to reduce the scope of Work and to reduce construction costs. In addition, the Construction Manager shall promptly advise the City of any adjustments to any Construction Estimate which would cause the Project cost to exceed the Construction Estimate or the City’s Fixed Construction Budget, and shall promptly make recommendations for corrective action.

Construction Manager shall develop a construction management plan which will be submitted to the City’s Project Manager and Consultant for review and acceptance at least thirty (30) calendar days prior to the commencement of Construction Work.

Plans and Management

Construction Manager shall establish cost management and quality control systems and procedures, which shall be submitted within thirty (30) days of commencement of Pre-Construction Services for review and acceptance by the City’s Project Manager and Consultant.

6. Should the Construction Manager be requested or required by the City to provide services which the Construction Manager believes are outside of and/ or in addition to the scope of this Agreement, the Construction Manager shall, within five days of being requested to perform such services, notify the City in writing of the Construction

Pre-Construction Phase Additional Services


Manager’s opinion that they are extra services to this Agreement, the reason the Construction Manager believes they are outside the scope of this Agreement, and the proposed costs, and time impact, if any, for the performance of same. The City will respond in writing to such requests by denying, granting, or granting with modifications. The City may direct the Construction Manager to proceed with such services pending a final determination as to compensation. In such case, the Construction Manager’s right to consideration shall not be waived by proceeding as directed.

7. The Pre-Construction Fee is the total compensation payable to the Construction Manager for the performance of Pre-Construction Phase Services, except for Additional Pre-Construction Services approved in advance and in writing by the City.

Compensation for Preconstruction Phase Services

For the Pre-Construction Phase Services the Construction Manager’s compensation shall be calculated as a not to exceed fee of $XXX,000.00. Said amount includes a base fee of $XXX to be paid on a monthly basis commencing on the first month after the date established for commencement of the Pre-Construction Phase Services and an allowance for Additional Services, in the amount of $XXX. In no event shall the amount of compensation exceed said total compensation amount unless explicitly approved by action of the City Manager or the City Commission, as may be applicable pursuant to Section 18-87 of the City Code, and put into effect by written amendment to this Agreement.

Except as specifically allowed in this Article, the Construction Manager shall not be entitled to any increase in the Pre-Construction Fee for any costs, expenses, liabilities or other obligations arising from the performance of Pre-Construction Phase Services.

The Pre-Construction Fee includes specifically, without limitation, the following: profit and profit sharing; general overhead; salaries and labor; estimating, scheduling and information management systems and software; contract administration; office expenses; printing and copying; consulting fees; legal or accounting fees; cost of money; taxes; insurance premiums and deductibles; bond costs; purchase or rental of equipment; utilities; travel; per diem; fines or penalties; and damage awards.

If the scope of the Pre-Construction Phase Services is changed materially, the Pre-Construction Fee may be equitably adjusted. There shall be no adjustments in the Pre-Construction Fee following the City’s acceptance of the GMP proposal.

For Additional Pre-Construction Services that are approved in advance and in writing by the City, Construction Manager shall be entitled to additional compensation computed based on any one of the following, at the City’s sole discretion:

• A pre-established lump sum amount; or • The hourly cost of $XX.00 for Construction Manager’s employee’s, which

includes overhead and profit, plus the actual cost of allowable expenses incurred in the performance of the Additional Services; or

• As otherwise agreed to by the parties in advance of performing the Additional Pre-Construction Services.

8. Construction Manager’s performance under this Agreement shall not be delegated or assigned by the Construction Manager without the written consent of the City, and such consent will not be given to any proposed delegation which would relieve the

Pre-Construction Phase Performance and Delegation


Construction Manager for their responsibilities under this Agreement. The Pre-Construction Work to be performed hereunder shall be performed by the Construction Manager's own staff and the accepted Subconsultants unless otherwise approved by the City. The employment of, contract with, or use of services of any other person or firm by the Construction Manager as Subconsultants or otherwise, is subject to authorization by the Director.

9. The Construction Manager shall submit monthly an application for payment to the Consultant for the proportional amount of the Pre-Construction Fee which shall be determined by dividing the Pre-Construction Fee by the number of months from the effective date of this Agreement until the scheduled submittal of the GMP Proposal by the Construction Manager. Delays to the Project Schedule shall result in re-calculation of the monthly application amount by dividing the amount of Pre-Construction Fee remaining by the number of months currently remaining until the submittal of the GMP Proposal.

Pre-Construction Fee Application for Payment Submittal

10. The Consultant shall schedule meetings with the Construction Manager until submission and dry run approval of the 100% construction documents. The frequency of the meetings will be determined by the Consultant. At each of these meetings, the Consultant and Construction Manager shall review the Project's budget, schedule, and scope along with the Consultant's development and progress to date on the respective phases of the Project and any special problems related to the continuing progress of the Project. Consultant shall prepare and distribute all meeting minutes to participants present at the meetings. The City reserves the right to revise the frequency of meetings established by the Consultant.

Pre-Construction Phase Meetings

The Construction Manager shall meet with the City and others at such times and with such frequency, as the City may require. The process of meeting, reviewing design documents, drawings, specifications, and submitting, revising and resubmitting construction estimates is included in the Work under this Agreement.

11. Construction Manager shall provide the City and the Consultant with a GMP Proposal within fifteen (15) working days after the Construction Documents after the 95% complete construction documents, as determined under the Consultant’s agreement with the City, have been provided to the Construction Manager. The GMP shall be the sum of the proposed subcontracts and the Construction Manager’s Construction Manager’s Fee. Further, the GMP Proposal shall be broken down into the categories and level of detail required by the Consultant and the City. At the time Construction Manager submits its GMP Proposal to the Consultant and the City, Construction Manager shall also submit for review a Schedule of Values based upon the GMP Proposal in a format acceptable to the Consultant, listing the major elements of the Construction Work and the dollar value for each element. This Schedule of Values, as further revised to reflect the final negotiated GMP amount, and as approved by City, will be used as the basis for Construction Manager’s monthly Applications for Payment under the GMP. This revised Schedule of Values shall be updated for the current month, including all Change Orders, and Construction Change Directives and submitted each month to the Consultant along with a completed Application for Payment. For each line item in the GMP, Construction Manager shall develop and maintain a written report which identifies and explains all

Guaranteed Maximum Price


variances and deviations from the construction estimates originally submitted for that line item, to the final line item price incorporated into the GMP.

Construction Manager agrees that all of its books, records and files, with respect to its development of the GMP Proposal, shall be open to City and the Consultant for review and copying. The final GMP shall be mutually agreed upon by City and the Construction Manager and shall be set forth in an amendment to this Agreement. Construction Manager shall provide a detailed breakdown acceptable to City of its GMP. By submitting its GMP Proposal, Construction Manager shall be deemed to guarantee that in no event shall the Construction Manager’s Fee, the total cost of the subcontracts, purchase orders, work performed directly by the Construction Manager and the Construction Manager’s Contractor’s Contingency exceed the GMP. In the event Construction Manager and City fail to reach an agreement on the GMP, the City may elect not to proceed with the Construction Phase. The City, in its sole discretion may elect to solicit other firms for the Construction Phase or seek a GMP from the firm ranked 2nd during the solicitation process. In such event, Construction Manager shall only be entitled to receive that portion of the compensation attributable to the Pre-Construction Phase Services earned through the date of termination.

Construction Manager shall include a line item for Construction Manager’s Contingency amount in the Schedule of Values for the Project, which Contingency amount, if accepted by the City, shall be included within the GMP and to the GMP Agreement for the Project, and, subject to the prior agreement of the City. The Contingency shall be used as the source of funds for unforeseen costs that are reasonably and necessarily incurred and paid by the Construction Manager, which costs shall be at rates not higher than the standard paid in Miami-Dade County, as follows: (a) first, in connection with the proper performance of Work required hereunder which Work was unforeseeable by the Construction Manager, the Consultant, and the City at the time of execution of the GMP Agreement, (b) second, to the extent that any portion of the Contingency remains unallocated on the date of Final Completion and after the issuance of final payment for the Project, such remaining portion of the Contingency shall be split between the City and the Construction Manager. The Construction Manger shall receive 40% and the City 60% of the remaining balance of the Construction Manager’s Contingency initially included in the GMP. Any funds remaining in the Construction Manager’s Contingency that exceeded the initially approved Contingency shall accrue 100% to the City. The Construction Manager’s Contingency amount shall be set forth in the GMP Agreement for the Project, and within the Schedule of Values attached thereto. Use of the Construction Manager’s Contingency shall be at the sole discretion of the City and requires the prior written approval of the City’s Project Manager. The Construction Manager’s Contingency shall not be used for rework, cost increase caused by a lack of coordination or communication with the Consultant or Subcontractors, or to correct errors and omissions in the Contract Documents.

The Agreement amount for the Construction Phase is guaranteed by the Construction Manager not to exceed the GMP. If cost of the Construction Phase exceeds the GMP, as may be adjusted by Change Orders, the Construction Manager shall pay the overrun without reimbursement from the City Construction Manager agrees to use all reasonable efforts to maximize cost savings during the Construction Phase.

City’s Project Manager must approve any and all expense of Construction Manager to be billed to and paid from the Construction Manager’s Contingency, and such approval shall be requested and approved in advance of incurring such expense, where practicable.


Construction Manager shall submit to the City a list of names, addresses, licensing information and phone numbers of the Subcontractors Construction Manager intends to use for each portion of the Construction Work, as well as identifying in writing those portions of the Construction Work it intends to perform with its own employees.

12. The Construction Manager is fully responsible for controlling its costs. The City’s final performance evaluation shall include an evaluation of the Construction Manager’s ability to control costs. Price increases will not be permitted for any alleged errors, miscalculations of Agreement pricing or misunderstandings of the basis of payments

Cost Control

13. The Construction Manager shall monitor conditions in the construction market to identify factors that will or may affect costs and time for completing the Project; and shall make analysis as necessary to (1) determine and report on availability of labor, material, equipment, potential bidders, and possible impact of any shortages or surpluses of labor or material, and (2) in light of such determinations, make recommendations as may be appropriate with respect to long lead procurement, separation of construction into bid packages, sequencing of work, use of alternative materials, equipment or methods, other economics in design or construction, and other matters that will promote cost savings and completion within the scheduled time.

Market Analysis and Stimulation of Bidder Interest

Within sixty (60) calendar days of commencement of Pre-Construction Phase Services the Construction Manager shall submit a written "Construction Market Analysis and Prospective Bidders Report" setting out recommendations and providing information as to prospective bidders, including, specifically, compliance with the Small Business Participation Goals. As various bid packages are prepared for bidding, the Construction Manager shall submit to the City and the Consultant a list of potential bidders. The Construction Manager shall use good faith efforts to comply with the Small Business Participation Goals, and shall be responsible to stimulate bidder interest in the local market place and identify and encourage bidding competition by small and local businesses.

The Construction Manager shall carry out an active program of stimulating interest of qualified subcontractors in bidding on the work and of familiarizing those bidders with the requirements of this Project. Said program shall be based on the Construction Manager’s submittal in its Response for the maximizing the participation of CSBEs and the community local workforce.

14. Construction Manager shall not enter into a subcontract with any subcontractor, if the City reasonably objects to that subcontractor. Construction Manager shall not be required to contract with anyone it reasonably objects to.

Bid and Award of Subcontracts

Construction Manager shall review the design and shall determine how it desires to divide the sequence of construction activities. Construction Manager will determine the breakdown and composition of bid packages for award of subcontracts, based on the current Project Schedule. Construction Manager shall take into consideration such factors as natural and practical lines of severability, sequencing effectiveness, access and availability constraints, total time for completion, construction market conditions, availability of labor and materials, compliance with Small Business/Local Workforce Goals, community relations and any other factors pertinent to saving time and costs.


At least thirty (30) days prior to the issuance of bids for the subcontracting any portions of the Construction Work the Construction Manager shall submit a bid and award plan to the City and the Consultant for review and comment. Upon acceptance of the plan by the City and the Consultant, the Construction Manager shall solicit and award all subcontracts in accordance with said plan. Said plan shall include details on how the Construction Manager shall encourage the participation of local small business firms. The Construction Manager shall hold harmless, indemnify, and defend the City, its employees, agents, and representatives in any matter arising out of the City’s acceptance of the Construction Manager’s bid and award plan, except where the sole cause of the matter is a City directed decision.

The form of the Subcontract and the terms and conditions thereof shall be Construction Manager's standard form of subcontract, a copy of which has been provided to the City. Any material variations therefrom must be approved in writing and in advance by the City, said approval not to be unreasonably withheld. Construction Manager shall supply the City with copies of all executed Subcontracts.

Subcontracts are to be awarded to the lowest responsive and responsible bidder. The City’s Local Preference Ordinance, as stipulated in the City’s Procurement Codes shall apply to the award of all Subcontracts. Construction Manager may award a subcontract to someone other than the lowest responsive and responsible bidder provided Construction Manager has first received the City’s written consent to such award. The City’s consent to any such award will be at the City’s sole discretion. Whenever the Construction Manager wishes to award a subcontract to someone who is not the lowest responsive and responsible bidder, Construction Manager must notify the City in writing, setting out in detail the reasons and justifications for the suggested award. The City shall have no responsibility for Subcontractor or multi-tier subcontractor’s performance, which shall be the sole responsibility of the Construction Manager.

As part of its bid preparation, Construction Manager shall review the Specifications and Drawings. . Ambiguities, conflicts or lack of clarity of language, use of illegally restrictive requirements, and any other defects in the specifications or in the drawings noted by Construction Manager shall be brought to the attention of the City and Consultant in written form.

The Construction Manager shall:

• Develop bid package requirements. • Issue bid packages to subcontractors; provide duplication, distribution,

and reproduction as necessary for bidding. • Schedule and conduct pre-bid conference(s) to clarify the Project needs

and assure responsive bids. • Provide maximum feasible competition for bid packages. For most areas

of the Work, obtain at least 4 to 5 bids. In al

(2) Negotiate and award subcontractor contracts

l cases, unless the City approves otherwise in writing, obtain not less than 3 bids.

• Review and analyze bids. • Identify results of bids. • Develop and award contracts to assure minimal contract ambiguities and

resolve discrepancies and scope gaps.

3. Conduct pre-award meetings. 4. Review Schedule of Values.


5. Review contractors’ general conditions. 6. Review scope of work. 7. Review overall bid values and make recommendations to the city prior to awarding. 8. Identify shop drawing requirements. 9. Perform document and specifications review. 10. Assure that all contractors, subcontractors and any other participants fully

understand the Project’s design and requirements at every stage. 11. Establish quality requirements and standards. 12. Review sequence and schedule. 13. Identify accounting requirements. 14. Review insurance requirements. 15. Review safety and security requirements. 16. Award subcontractor contracts.

15. The Construction Manager, as a result of the required reviews of the Design Documents and Specifications shall be fully responsible for the coordination of the drawings and the coordination of those drawings with the written specifications. This includes but is not limited to the Construction Manager’s review of the Construction Documents in coordination with the various Drawings and Specifications themselves, and with the site to ensure proper coordination and constructability and lack of conflict, and to minimize unforeseen conditions. The Construction Manager shall take reasonable steps for the proper identification and location of all utilities, services, and other underground facilities which may impact the Project.

Responsibility

16. Develop a Project schedule (“Project Schedule”) for review and acceptance by the Consultant and the City, that coordinates and integrates all activities on the Project, including the Construction Manager's services, the Consultant services, and the City's activities with the anticipated design and construction schedules. The Schedule must identify all major milestones through Project Final Completion and must be consistent with the Master Project Schedule. The Project Schedule must also be capable of being incorporated into the Master Project Schedule being maintained by the construction manager for Baseball Stadium .

Project Schedule

The Construction Manager shall update the Project Schedule throughout the Pre-Construction Phases and submit to the Consultant and the City an updated Project Schedule with the submission of each Construction Estimate and Memorandum of Changes. Each update will be made against the initial baseline projection.

Within fifteen (15) days of the acceptance by the City of the GMP Proposal the Construction Manager shall provide to the Project Manager a critical path, cost loaded schedule for review. Upon acceptance of the GMP the Project Schedule will be finalized and accepted as the baseline Project schedule. The Project Schedules shall be prepared using Primavera software or similar format compatible with the Master Project Schedule and all Project Schedules will be provided both electronically and in hard copy to the Project Manager unless Construction Manager is otherwise directed in writing by the Consultant or City’s Project Manager.

Construction Manager shall update the Project Schedule on an ongoing basis to reflect any additions of deletions to the Work as well as the impact of any delays. Construction Manager shall at a minimum submit an updated Project Schedule against the baseline


on a monthly basis and at time of submission of a payment application. Failure to submit the required schedules will result in rejection of the payment application. The Project Schedule shall be at all times consistent with, and capable of being incorporated into the Master Project Schedule. The Construction Manager shall be responsible for incorporating the Project Schedule into the Master Project Schedule and for the resolution of all conflicts that may result. The resolution of all conflicts shall be subject to the review and acceptance of the City’s Project Manager.


Section 3 - Construction Phase

1. Construction Manager shall provide all management, supervision, manpower, equipment, tools, and all other necessary goods and services for the construction of the Project.

Construction Phase Services

2. Construction Manager shall be issued a Notice of Award by the City upon approval of the GMP Proposal by the City Commission. Construction Manager shall commence scheduling activities, permit applications within five (5) calendar days after receipt of the Notice of Award. A Notice to Proceed for the Construction Work will not be issued until Construction Manager's submission to City of all required documents (including but not limited to: Payment and Performance Bonds, and Insurance Certificate) and after execution of the GMP Amendment by both parties. The receipt of all necessary permits by the Construction Manager is a condition precedent to the issuance of the Notice to Proceed

Construction Phase Time for Completion

Time is of the essence throughout this Agreement. Construction Work shall be completed and Final Acceptance and Payment made within the timeframe established in the GMP Amendment to this Agreement.

3. Upon failure of Construction Manager to complete the Construction Work within the specified period of time, plus approved time extensions (if applicable), Construction Manager shall pay to City the sum of ten thousand dollars ($30,000.00) for each calendar day after the time specified in the GMP Amendment plus any approved time extensions (if applicable), for Final Completion. These amounts are not penalties but are liquidated damages to City for its inability to obtain beneficial occupancy and/or use of the Project. 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 Construction Manager to complete the Construction Work on time.

Liquidated Damages

City is authorized to deduct liquidated damages from monies due to Construction Manager for Construction Work under this Agreement or as much thereof as City may, in its sole discretion, deem just and reasonable.

Construction Manager shall be responsible for reimbursing City, in addition to liquidated damages, for all costs incurred by Consultant in administering the construction of the Project beyond the completion date less approved time extensions. Consultant construction administration costs shall be pursuant to the contract between City and Consultant, a copy of which is available upon request from the City. All such costs shall be deducted from the monies due Construction Manager for performance of the Construction Work under this Agreement by means of unilateral credit change orders issued by City as costs are incurred by Consultant and agreed to by the City.


4. Construction Manager may perform Work in accordance with City Ordinances relative to the performance of construction work. Any Work outside these hours or days requires the prior written approval of the City’s Project Manager.

Hours Of Operation

5. Construction Manager is responsible for supervising, coordinating and performing the Construction Work with such care and skill as would be provided by a contractor with extensive and special expertise in the type of Work required under the Contract Documents. Construction Manager is responsible for completing the Construction Work so that it complies accurately and completely with the requirements of the Contract Documents. Construction Manager shall keep a Construction Superintendent on the Construction Work at all times during its progress who shall not be replaced without prior written notice to City and Consultant except under extraordinary circumstances. The Construction Manager’s Superintendent shall have authority to act on behalf of Construction Manager. All communications given to the CM’s Project Manager or Construction Superintendent shall be as binding as if given to Construction Manager. All verbal communications given to the CM’s Project Manager or Construction Superintendent will be follow up in writing within 24 hours. The City shall have the right to direct Construction Manager to remove and replace CM’s Project Manager or Construction Superintendent or any other employee of Construction Manager or any employee of any Subcontractor from this Project, with or without cause.

Construction Manager’s Supervision

Construction Manager shall maintain sufficient off-site support staff, and competent full time staff at the Project Site authorized to act on behalf of Construction Manager to coordinate, inspect and provide general direction of the Construction Work and progress of the Subcontractors. Construction Manager shall not change any such personnel unless mutually agreed to in writing by the City and Construction Manager. In such case, the City shall have the right to concur with the replacement of personnel.

Construction Manager shall establish and maintain lines of authority for its personnel, and shall provide this information to City and all other affected parties, such as the code inspectors of any permitting authority, the Subcontractors, and the Consultant. The City and Consultant may attend meetings between Construction Manager and its Subcontractors; however, such attendance is optional and shall not diminish either the authority or responsibility of Construction Manager to administer the subcontracts.

6. Construction Manager acknowledges that Adjacent Development Work will be on going during the Work on this Project and the Adjacent Development Work will have [site priority] will take precedence over the Work where there is a conflict in schedules.

Construction Coordination/Adjacent Development Work

The Construction Manager shall be responsible for coordinating its Work with the construction manager for the Adjacent Development Work and the Separate Contractors to minimize any potential adverse impact. Construction Manager shall not be entitled to any days of delay for failure to properly coordinate the Work. The Consultant and the City’s Project Manager will assist the Construction Manager in coordinating the Work. However, the sole responsibility for coordination rests with the Construction Manager.

Construction Manager shall cooperate with and, as reasonably required by the City, meet with the City, the County, the planners, developers and contractors of the Adjacent Development Work and Separate Contractors in order to facilitate adequate coordination


of the construction and planning of the Work with the construction and planning of the Adjacent Development Work.

If any part of the Work depends upon the proper performance of work of any Separate Contractor, Construction Manager shall, prior to proceeding with that portion of the Work, inspect and measure the work of the Separate Contractor and promptly report to the City’s Project Manager and the Consultant any apparent discrepancy or defects in such other work except for latent or concealed defects. Construction Manager's failure to inspect and make such report shall constitute an acceptance of the Separate Contractor's work as fit and proper for the proper execution of the Work, except for latent, concealed defects. Where Construction Manager causes damage to the Work or the property of the City or Separate Contractors, Construction Manager shall promptly remedy such damage as provided in the Agreement. Where Construction Manager causes damage to the Work or property of any Separate Contractor, then Construction Manager shall promptly, utilizing reasonable diligent efforts, attempt to settle any resulting dispute or claim with such Separate Contractor. If a Separate Contractor or its subcontractor shall assert any claim against the City on account of any damage or loss alleged to have been sustained as a result, and to the extent, of the fault or negligence of Construction Manager, or by anyone for whom Construction Manager is responsible, the City shall notify Construction Manager and Construction Manager shall indemnify, hold harmless and defend the City from and against any and all such claims, damages, losses and expenses, including attorneys' fees, arising from the assertion of any such claims. If such Separate Contractor sues or initiates a court proceeding against the City on account of any delay or damage alleged to have been caused by Construction Manager, the City shall notify Construction Manager who shall defend the City in such proceedings at Construction Manager's expense and with counsel agreeable to the Construction Manager and the City, and if any judgment or award against the City arises therefrom, Construction Manager shall pay or satisfy it. Should it be determined by a court of competent jurisdiction that a Separate Contractor or the developer of the Adjacent Development Work has delayed or caused damage to the Work or property of Construction Manager, the City shall, as between the City and Construction Manager only, be liable to Construction Manager for such damage and, upon due notice, promptly attempt to settle with Construction Manager by agreement, or otherwise to resolve the dispute. Failure of the Construction Manager to properly coordinate the Work with the Adjacent Development Work or a Separate Contractor(s) shall result in the Construction Manager waiving its right to any claim.

7. If, in the reasonable judgment of City’s Project Manager, Construction Manager shall (i) fail, refuse or neglect to supply a sufficient number of workers or to deliver the materials and equipment with such promptness as to prevent the delay in the progress of the Work; (ii) fail in any respect to commence and diligently prosecute the Work and proceed to the point to which Construction Manager shall proceed in accordance with the Project Schedule in order to achieve Substantial Completion in accordance with the Project Schedule; (iii) fail to commence, prosecute, finish, deliver or install the different portions of the Work on time as herein specified in accordance with the Construction Schedule; or (iv) fail in the performance of any of the material covenants of the Contract Documents, then City’s Project Manager shall have the right to direct Construction Manager to accelerate the Work to comply with the Construction Schedule, including providing additional labor or expediting deliveries of Materials, performing overtime,

Acceleration


additional shifts or re sequencing the Work without adjustment to the GMP. The City shall, after having provided Construction Manager written notice and a reasonable opportunity to cure, and without waiving any other rights or remedies, have the right to withhold progress payments to the extent reasonably necessary to protect the City's interests and supplement Construction Manager's forces with separate contractors and/or to seek other redress for Construction Manager's default.

Notwithstanding anything in the Contract Documents to the contrary, if Construction Manager is entitled to an extension of time pursuant to the Contract Documents, but the City nevertheless requires Construction Manager to perform Work without a change in any dates for Substantial Completion set forth in the Project Schedule, with the result that Construction Manager is required to accelerate its performance of the Work, then the GMP shall be adjusted in accordance with this Agreement to the extent of any increase in the reasonable costs (including losses of efficiency and amounts owed to Subcontractors) incurred by Construction Manager as a result of such constructive acceleration, plus a profit and overhead as set forth in the Agreement. In no event shall Construction Manager be entitled to any other compensation or recovery of any damages in connection with constructive acceleration, including consequential damages, lost opportunity costs or similar remuneration. Construction Manager shall accelerate its Work in a reasonably cost efficient manner.

8. Construction Manager shall conduct a pre-construction conference with each Subcontractor after award of the subcontract and prior to the start of its portion of the Work. Construction Manager shall hold progress and coordination meetings bi-weekly, or more frequently if required by Work progress, to provide for the timely completion of the Construction Work.

Construction Work Meetings

In addition, Construction Manager shall arrange and conduct regular monthly Project status meetings with the Consultant and the City. Construction Manager shall use the job site meetings as a tool for the pre-planning of Work and enforcing schedules, and for establishing procedures, responsibilities, and identification of authority for all parties to clearly understand. During these meetings, Construction Manager shall identify the party or parties responsible for following up on any problems, delay items or questions, and Construction Manager shall note the action to be taken by such party or parties. Construction Manager shall revisit each pending item at each subsequent meeting until resolution is achieved. Construction Manager shall attempt to obtain from all present any potential problems or delaying event known to them for appropriate attention and resolution. Construction Manager shall be responsible for keeping minutes of the meeting and distribution of the minutes to all parties in attendance as well as the Director.

9. Construction Manager may make Application for Payment, utilizing forms provided by the City, for Work completed during the Project at intervals of not more than once a month. Construction Manager's Application for Payment shall include an updated Schedule of Values, an updated Project Schedule, Progress Report and a partial release of liens or consent of Surety relative to the Construction Work, which is the subject of the Application for Payment and any other information required by the Consultant and/or the City. Each Application for Payment shall be submitted in triplicate to Consultant for approval.

Progress Payments


Ten percent (10%) of all monies earned by Construction Manager shall be retained by City until Final Completion and acceptance by City except that after fifty percent (50%) of the Construction Work has been completed, the retainage shall be reduced to five percent (5%). After fifty percent (50%) completion of the Construction Work, Construction Manager may present to the City a payment request for up to one-half (1/2) of the retainage held by the City, which request must be granted unless the City has grounds for withholding the payment in accordance with Section 255.078, Florida Statutes. Any interest earned on retainage shall accrue to the benefit of the City. All requests for retainage reduction or payment shall be in writing in a separate stand alone document.

City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from loss on account of:

Defective Work not remedied.

Claims filed or reasonable evidence indicating probable filing of claims by other parties against Construction Manager or City because of Construction Manager's performance.

Failure of Construction Manager to make payments properly to Subcontractors or for material or labor.

Damage to a Separate Contractor not remedied.

Liquidated damages and costs incurred by Consultant for extended construction administration.

Failure of Construction Manager to provide any and all documents required by the Contract Documents.

10. Upon receipt of written notice from Construction Manager that the Construction Work is ready for final inspection and acceptance, Consultant shall, within ten (10) calendar days, make an inspection thereof. If Consultant and City’s Project Manager find the Work acceptable, the requisite documents have been submitted and the requirements of the Contract Documents fully satisfied, and all conditions of the permits and regulatory agencies have been met, a Final Certificate for Payment (Attachment E) shall be issued by Consultant, over its signature, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance under the terms and conditions thereof.

Acceptance and Final Payment

Before issuance of the Final Certificate for Payment, Construction Manager shall deliver to Consultant a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof; an affidavit certifying that all suppliers and Subcontractors have been paid in full and that all other indebtedness connected with the Construction Work has been paid, and a consent of the surety to final payment; the final corrected As-Built Drawings; the Record Set; and the final bill of materials, if required, and Application for Payment. Construction Manager shall deliver the written Construction Manager’s and all Manufacturer’s warranties prior to issuance of the Final Certificate for Payment.

If, after the Construction Work has been substantially completed, full completion thereof is materially delayed through no fault of Construction Manager, and Consultant so certifies, City shall, upon certificate of Consultant, and without terminating the Agreement, make payment of the balance due for that portion of the Construction Work


fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims.

The acceptance of final payment shall constitute a waiver of all claims by Construction Manager, except those previously made in strict accordance with the provisions of the Agreement and identified by Construction Manager as unsettled at the time of the application for final payment.

11. Subcontracts shall be awarded pursuant to the procedures set forth in the Contract Documents. Construction Manager shall make no substitution for any Subcontractor, person or entity previously selected without the prior consent of City’s Project Manager to the proposed substitution, which consent shall not be unreasonably withheld.

Subcontracts:

Construction Manager shall negotiate all Change Orders, Construction Change Directive, Field Directives and other related issues, with all affected Subcontractors and shall review the costs all associated costs and advise City and consultant of their validity and reasonableness, acting in the City’s best interest, prior to requesting approval of each Change Order from the City.

Construction Manager shall continuously update the Subcontractor list, so that it remains current and accurate throughout the entire performance of the Construction Work. As part of the Project document file to be maintained by Construction Manager at the Project Site, Construction Manager shall keep on file a copy of the license for every Subcontractor performing any portion of the Construction Work, as well as maintain a log of all such licenses.

12. The Construction Manager shall take such measures as appropriate to provide that construction requirements will be covered in the separate sub-contracts for procurement of long lead items that the separate construction sub-contracts and the general conditions items are performed without duplication or overlap and are sequenced to maintain completion of all Work on schedule. Particular attention shall be given to provide that each bid package clearly identifies the work included in that particular separate sub-contract, its schedule for start and completion and its relationship to other Separate Contractors.

Interfacing of Subcontracts

13. Within fifteen (15) calendar days of being notified of the acceptance of the GMP by the City Commission, Construction Manager shall furnish a Performance Bond and a Payment Bond containing all the provisions of the Performance Bond and Payment Bond attached hereto.

Performance Bond and Payment Bond

Each Bond shall be in the amount of one hundred percent (100%) of the GMP guaranteeing to City the completion and performance of the Work covered in the amendment as well as full payment of all suppliers, laborers, or subcontractors employed pursuant to this Project. Each Bond shall be with a surety, which is qualified pursuant to Article 14 below.

Each Bond shall continue in effect for one year after Final Completion and acceptance of the Work with liability equal to $25,000,000, or an additional bond shall be conditioned that Construction Manager will, upon notification by City, correct any defective or faulty work or materials which appear within one year after Final Completion of the Agreement.


Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be amended from time to time, Construction Manager shall ensure that the bond(s) referenced above shall be recorded in the public records of Miami-Dade County and provide City with evidence of such recording.

Alternate Form of Security:

In lieu of a Performance Bond and a Payment Bond, Construction Manager may furnish alternate forms of security, which may be in the form of cash, money order, certified check, cashier's check or unconditional letter of credit in the form attached hereto. Such alternate forms of security shall be subject to the prior approval of City and for same purpose and shall be subject to the same conditions as those applicable above and shall be held by City for one year after completion and acceptance of the Work.

14. Bid Bonds, Performance Bonds and Payment Bonds over Five Hundred Thousand Dollars ($500,000.00):

Qualification of Surety:

Each bond must be executed by a surety company of recognized standing, authorized to do business in the State of Florida as 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 as acceptable surety on federal bonds in accordance with United States Department of Treasury Circular 570, Current Revisions. 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 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 223.111). Further, the Surety shall provide City with evidence satisfactory to City, that such excess risk has been protected in an acceptable manner.

The City will accept a surety bond from a company with a rating of B+ or better for bonds up to $2 million, provided, however, that if any surety company appears on the watch list that is published quarterly by Intercom of the Office of the Florida Insurance Commissioner, the City shall review and either accept or reject the surety company based on the financial information available to the City. A surety company that is rejected by the City may be substituted by the Bidder or proposer with a surety company acceptable to the City, only if the bid amount does not increase. The following sets forth, in general, the acceptable parameters for bonds:

Policy- Financial

Amount of Bond

holders Size

Ratings

500,001 to 1,000,000 B+ Class I

Category

1,000,001 to 2,000,000 B+ Class II

2,000,001 to 5,000,000 A Class III

5,000,001 to 10,000,000 A Class IV

10,000,001 to 25,000,000 A Class V


25,000,001 to 50,000,000 A Class VI

50,000,001 or more A Class VII

15. The Construction Manager shall warrant that the Work conforms to the Agreement and is free of any patent and/or latent defect of the workmanship for a minimum period of one year from the date of Final Completion.

Warranty of Construction

The warranty hereunder shall be in addition to whatever rights the City may have under law. The Construction Manager’s obligation under this warranty shall be at its own cost and expense, to promptly repair or replace (including cost of removal and installation), that item (or part or component thereof) which proves defective or fails to comply with the Agreement within the warranty period such that it complies with the Agreement.

In the event the Construction Manager fails to repair or replace defective Construction Work in accordance with the terms of the Agreement, and this warranty, the City shall have the right to collect such costs incurred or withhold the cost of the anticipated repairs by offsetting the amount against any payment due the Construction Manager under any contract between the City and the Construction Manager.

All guarantees and warranties under the Agreement are fully enforceable by the City acting in its own name.

16. If the City’s Project Manager or Consultant reasonably determines that the rate of progress of the Work is not such as to insure its completion within the designated completion time, or if, in the opinion of the Consultant, the Construction Manager is not proceeding with the Work diligently or expeditiously or is not performing all or any part of the Work according to the Project Schedule accepted by or determined by the Consultant, the Consultant shall have the right to order the Construction Manager to do either or both of the following: (1) improve its Work force; and/or (2) improve its performance in accordance with the Project Schedule to insure completion of the Project within the specified time and/or (3) The City at its sole option may also have Work performed by a third party contractor and deduct such cost from any monies due the Construction Manager. The Construction Manager shall immediately comply with such orders at no additional cost to the City.

Methods Of Performing The Work

Where materials are transported in the performance of the Construction Work, vehicles shall not be loaded beyond the capacity recommended by the vehicle manufacturer or permitted by Federal, State or local law(s). When it is necessary to cross curbing or sidewalks, protection against damage shall be provided by the Construction Manager and any damaged curbing, grass areas, sidewalks or other areas shall be repaired at the expense of the Construction Manager to the satisfaction of the City’s Project Manager or Consultant.

The Construction Manager shall furnish to the City’s Project Manager or Consultant and the City’s Project Manager a complete listing of 24-hour telephone numbers at which responsible representatives of the Construction Manager and all of the Construction Manager's Subcontractors can be reached should the need arise at any time.


17. Limitations may be placed on the Construction Manager‘s use of the Project Site and such limitations will be identified by the City. The City will make storage available to the Construction Manager at its sole discretion based on availability of space. The Construction Manager shall also coordinate and schedule deliveries so as to minimize disruptions to the Adjacent Development Work.

Construction Manager’s Use Of Project Site

The Construction Manager’s use of the Project Site may be restricted as needed to facilitate the Adjacent Development Work, which will be under construction during construction of the Work, it being understood and agreed that the Adjacent Development Work shall have site priority of the Work. The Construction Manager shall:

• Confine operations at the Project Site to the areas permitted by the City; not disturb portions of the Project Site beyond the specified areas; conform to Project Site rules and regulations affecting the Construction Work.

• Keep existing driveways and entrances serving surrounding facilities clear and available to the City, its employees and the public at all times; not use areas for parking and/or storage of materials except as authorized by the City’s Project Manager.

• Assume all responsibility for its tools, equipment and materials, including any materials purchased for the Construction Work, and its vehicles while performing Construction Work for the City and/or while parked at a City facility. The City assumes no liability for damage to the items specified in this paragraph.

Access to and egress from the Project Site shall be subject to the approval of the Consultant and the City’s Project Manager. No worker’s personal vehicles shall be permitted to park inside of the Project Site, without the prior written approval of the City.

18. The Construction Work to be performed shall be done in such a manner so as not to interfere with the Adjacent Development Work or the Separate Contractors’ work. The manner in which the Work is performed shall be subject to the approval of the City’s Project Manager or Consultant, whom if necessary, shall have the authority to require changes in the manner in which the Work is performed. There shall be no obstruction of City services without the prior written approval of the City’s Project Manager. All requests for such interruption or obstruction must be given in writing to the City’s Project Manager 24 hours in advance of the interruption of City operations.

Work Staging And Phasing

The Construction Manager shall familiarize itself with normal City operations where the Construction Work is to be performed so that it can conduct the Construction Work in the best possible manner to the complete satisfaction of the Consultant and the City’s Project Manager.

A staging plan must be submitted to and approved by the City’s Project Manager or the Consultant prior to the start of construction and issuance of the Notice to Proceed. Such staging plan shall be revised and resubmitted as necessary during construction.

19. Known utilities, structures, and trees adjacent to or encountered in the Construction Work may be shown on the Drawings. The locations shown are taken from existing records and the best information available from existing plans; however, it is expected that there may be some discrepancies and omissions in the locations and quantities of utilities and structures shown. Those shown are for the convenience of the Construction

Existing Utilities and Trees


Manager only, and no responsibility is assumed by either the City or the Consultant for their accuracy or completeness. No request for additional compensation or Agreement Time resulting from encountering utilities not shown will be considered. The Construction Manager shall explore sufficiently ahead of the Work to allow time for any necessary adjustments. The Construction Manager shall field verify all locations. Construction Manager shall coordinate with any affected companies, including utility companies and take necessary precautions to prevent damage to existing structures whether on the surface, above ground, or underground, including have the owner of the interfering structures place temporary supports. The Construction Manager must coordinate all utility locations through “Sunshine State One Call of Florida, Inc.”

20. Where the Construction Manager’s operations could cause damage or inconvenience to railway, telephone, fiber optic, television, electrical power, oil, gas, water, sewer, or irrigation systems, the Construction Manager shall make all arrangements necessary for the protection of these utilities and services or any other known utilities.

Construction Manager’s Responsibility for Utility Properties and Service

Notify all utility companies that are affected by the construction operation at least 48 hours in advance. Under no circumstance expose any utility without first obtaining permission from the appropriate agency. Once permission has been granted, locate, expose, and provide temporary support for all existing underground utilities and utility poles where necessary.

The Construction Manager and its Subcontractors shall be solely and directly responsible to the owner and operators of such properties for any damage, injury, expense, loss, inconvenience, delay, suits, actions, or claims of any character brought because of any injuries or damage which may result from the construction operations under the Contract Documents.

Neither the City nor its officers or agents shall be responsible to the Construction Manager for damages as a result of the Construction Manager’s failure to protect utilities encountered in the Work.

In the event of interruption to domestic water, sewer, storm drain, or other utility services as a result of accidental breakage due to construction operations, promptly notify the proper authority. Cooperate with said authority in restoration of service as promptly as possible and bear all costs of repair. In no event shall interruption of any utility service be allowed unless granted by the owner of the utility.

In the event water service lines that interfere with trenching are encountered, the Construction Manager may, by obtaining prior approval of the water utility, cut the service, dig through, and restore the service with similar and equal materials at the Construction Manager’s expense and as approved by the City’s Project Manager or Consultant.

Replace, with material approved by the City’s Project Manager or Consultant, at Construction Manager’s expense, any and all other laterals, existing utilities or structures removed or damaged during construction, unless otherwise provided for in the Contract Documents and as approved by the City’s Project Manager or Consultant.

Replace with material approved by the City’s Project Manager or Consultant, at Construction Manager’s expense, any existing utilities damaged during the Work


21. In the event that during the course of the Construction Work Construction Manager encounters subsurface or concealed conditions at the Project Site which differ materially from those shown on the Contract Documents and from those ordinarily encountered and generally recognized as inherent in Construction Work of the character called for in the Contract Documents; or unknown physical conditions of the Project Site, of an unusual nature, which differ materially from that ordinarily encountered and generally recognized as inherent in Construction Work of the character called for in the Contract Documents, Construction Manager, without disturbing the conditions and before performing any Construction Work affected by such conditions, shall, within twenty-four (24) hours of their discovery, notify City and Consultant in writing of the existence of the aforesaid conditions. Consultant and City shall, within two (2) business days after receipt of Construction Manager’s written notice, investigate the site conditions identified by Construction Manager. If, in the sole opinion of Consultant, the conditions do materially so differ and cause an increase or decrease in Construction Manager's cost of, or the time required for, the performance of any part of the Construction Work, whether or not changed as a result of the conditions, Consultant shall recommend an equitable adjustment to the Agreement, in cost and/or time. If City’s Project Manager, the Consultant and Construction Manager cannot agree on an adjustment in the adjustment shall be referred to the Director for determination. Should the Director determine that the conditions of the Project(s) site(s) are not so materially different to justify a change in the terms of the Contract Documents, the Director shall so notify the City’s Project Manager, Consultant, and Construction Manager in writing, stating the reasons, and such determination shall be final and binding upon the parties hereto..

Differing Site Conditions

No request by Construction Manager for an equitable adjustment to the Agreement under this provision shall be allowed unless Construction Manager has given written notice in strict accordance with the provisions of this Article. No request for an equitable adjustment or for differing site conditions shall be allowed if made after the date certified by Consultant as the date of Substantial Completion.

22. The responsibility for all tests and inspection will resides with the Construction Manager, except where otherwise specifically stated in the specifications or drawings.

Product and Material Testing

If the Contract Documents or Applicable Laws require any portion of the Work to be inspected, tested or approved, Construction Manager shall give the City’s Project Manager and Consultant timely notice of its readiness so City’s Project Manager and Consultant may observe such inspection, testing or approval. The cost for tests and inspection shall be included in the GMP Amendment. If City’s Project Manager or Consultant determines that any Work requires additional inspection, testing or approval that is not included in the GMP, the City will, upon written authorization from the City’s Project Manage, instruct Construction Manager to order such additional inspection, testing or approval, and Construction Manager shall give notice as provided in the Agreement. If such additional inspection or testing reveals a failure of the Work to comply with the requirements of the Contract Documents, Construction Manager shall bear all costs thereof, including compensation for Consultant's and City’s Representative's additional services made necessary by such failure; otherwise the City shall bear such costs, and an appropriate Change Order shall be issued.


Required certificates of inspection, testing or approval shall be secured by Construction Manager and Construction Manager shall promptly deliver them to the City’s Project Manager and the Consultant. If Consultant or the City wishes to observe the inspections, tests or approvals required by the Contract Documents, they will do so promptly and, where practicable, at the source of supply.

23. Construction Manager shall arrange, with the City’s Project Manager, for all Project-site facilities as necessary to enable the Construction Manager, City’s Project Manager, and Consultant to perform their respective duties and to accommodate any representatives of the City which the City may choose to have present at the Project. Project-site facilities, include, but are not limited to such things as trailers, toilets, and any other equipment necessary to carry on the Construction Work. The specifics of facilities required for the Consultant or the City shall be provided prior to the establishment of the GMP.

Project Site Facilities

Construction Manager’s, Subcontractor’s, supplier’s, materialmen’s personnel shall not use the City trailer at the Project site. The Construction Manager shall provide and maintain at his own expense, in a sanitary condition, such accommodations for the use of his employees as is necessary to comply with the requirements including Chapter 46 of the Building Code and regulations of the State of Florida Department of Health and Rehabilitative Services or Dade County Health Department. The Construction Manager, his employees or his Subcontractors shall commit no public nuisance or use any facilities that have not been specifically provided for use by the Construction Manager.

The Construction Manager shall furnish an adequate supply of drinking water for his and his Subcontractors’ employees.

There shall be adequate provisions made by the Construction Manager to ensure all disposable materials are properly disposed of and do not create a nuisance to the City or the public. The location of the temporary facilities shall be subject to the approval of the Consultant or City’s Project Manager

The Construction Manager shall be required to obtain all necessary permits required for any Project site facilities. Construction Manager shall also be responsible to maintain such facilities in a safe and working condition.

All such facilities remain the property of the Construction Manager and the Construction Manager shall be responsible for removal and disposal of such facilities prior to Final Acceptance.

24. Construction Manager’s and Subcontractors personnel will be required to attend a pre-job safety orientation meeting before being allowed on the Project Site. This orientation will at a minimum consist of a one hour review of site safety procedures and reporting requirements. Each attendee will be issued a numbered helmet sticker or badge that will serve as a site access pass and qualification as attendance to the safety orientation meeting.

Safety and Security

No employees of the Construction Manager or Subcontractors will be allowed on the Project Site who have not attended the pre-job orientation.


All vendors must be escorted on the Project Site by a qualified Construction Manager representative. Visitors must be escorted at all times by a qualified person or attend the safety orientation meeting.

Construction Manager shall conduct training for all personnel including supervisory personnel, and conduct weekly “tool box” safety meetings for all personnel on the Project Site.

The City’s Project Manager, or designated representative, will have full authority to stop the Work when necessary to enforce mandatory safety requirements.

The City shall have the authority to stop Work when necessary to enforce mandatory safety requirements. The City shall also have the authority to hire outside contractors to perform necessary safety-related corrections should the Construction Manager fail to correct deficiencies and backcharge Construction Manager.

In any emergency affecting the safety of persons or property, Construction Manager shall act immediately, as necessary, and appropriate to prevent or minimize threatened or imminent damage, injury or loss. Construction Manager shall notify the City and Brown & Brown immediately of the situation and all actions taken. If, in the Construction Manager’s judgment, the emergency condition is beyond its control, Construction Manager shall, upon notification to the City and Brown & Brown, proceed in accordance with directions of the City’s Project Manager.

Owner may request, and Contractor agrees to the removal from the Project of any Contractor’s or subcontractor’s personnel, management, or craft for noncompliance with the site specific safety program or non-correction of hazards. The City’s request for removal may also apply to any individual who habitually, in the sole judgment of the City’s Project Manager, exhibits an unsafe behavior or attitude.

Failure to comply with the safety requirements will be considered as noncompliance with the Contract Documents and may result in necessary and appropriate action to Cure the noncompliance.

No part of the time lost due to any stop Work order, issued in accordance with the above, or the removal of any personnel from the Project shall be made the subject of a claim for extension of time or increased costs by the Construction Manager.

Where the City’s Project Manager requires the removal of a person from the Project does not require or imply that the person’s employment should be terminated. The sole responsibility and liability for the employment of such personnel is solely the responsibility of the employer of the person.

As part of its safety program for the Project the Construction Manager shall implement a drug free program, which shall also include notification to its employees, Subcontractors’ and suppliers’ employees that they are subject to search prior to entering or leaving the Project Site.

The Project Site where the Construction Work is to be performed is not a secure area. The Construction Manager shall have sole responsibility for the security of all materials, tools, equipment and Construction Work at the Project Site. The City shall not be liable for any damage or loss to such materials, tools, equipment and Construction Work.

25. The Construction Manager’s employees, who include any Subcontractor, shall wear an identification card provided by the Contractor. The identification card shall bear the

Worker’s Identification


employee’s picture, name, title and name of the employer. Failure by a Construction Manager’s employee to wear such identification may result in his removal from the Work until such time as the identification card is obtained and worn. Such removal shall not act as a basis for the Construction Manager to submit a claim for an extension of time.

26. Construction Manager shall pay all royalties and license fees, shall defend all suits or claims for infringement of any patent rights and shall hold the City, City’s representative, harmless from loss on account thereof, except that City, if applicable, shall be responsible for all such loss when a particular design, process or the product of a particular manufacturer or manufacturers is selected by such person or such person's agent (including Consultant) or is required by the Contract Documents. If Construction Manager, or the City as the case may be, has reason to believe that the design, process or product selected is an infringement of a patent, that party shall be responsible for such loss unless such information is promptly given to the others and also to the consultant.

Royalties and Patents:

27. Unless otherwise provided herein, Construction Manager shall provide and pay for all materials, labor, water, tools, equipment, light, power, transportation and other facilities and services necessary for the proper execution and completion of the Construction Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Construction Work.

Labor and Materials

Construction Manager shall at all times enforce strict discipline and good order among its employees and subcontractors at the Project site and shall not employ on the Project any unfit person or anyone not skilled in the Work to which they are assigned.

28. Whenever materials or equipment are specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular supplier, the naming of the item is intended to establish the type, function and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other suppliers may be accepted by City and Consultant if sufficient information is submitted by Construction Manager to allow City and Consultant to determine that the material or equipment proposed is equivalent or equal to that named. Requests for review of substitute items of material and equipment will not be accepted by City’s Project Manager and/or Consultant from anyone other than Construction Manager.

Substitutions

If Construction Manager wishes to furnish or use a substitute item of material or equipment, Construction Manager shall make application to Consultant for acceptance thereof, certifying that the proposed substitute shall perform adequately the functions and achieve the results called for by the general design, be similar and of equal substance to that specified and be suited to the same use as that specified. The application shall state that the evaluation and acceptance of the proposed substitute will not prejudice Construction Manager’s achievement of Substantial Completion on time, whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents to adapt the design to the proposed substitute and whether or not incorporation or use by the substitute in connection with the Construction Work is subject to payment of any license fee or royalty. All variations of the proposed


substitute from that specified will be identified in the application and available maintenance, repair and replacement service shall be indicated. The application also shall contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs for redesign and claims of other contractors affected by the resulting change, all of which shall be considered by the Consultant in evaluating the proposed substitute. The Consultant may require the Construction Manager to furnish at Construction Manager’s expense additional data about the proposed substitute.

If a specific means, method, technique, sequence or procedure of construction is indicated in or required by Contract Documents, Construction Manager may furnish or utilize a substitute means, method, technique, sequence or procedure of construction acceptable to the Consultant, if the Construction Manager submits sufficient information to allow the Consultant to determine that the substitute proposed is equivalent to that indicated or required by the Contract Documents. The procedures for submission to and review by the Consultant shall be the same as those provided herein for substitute materials and equipment.

The Consultant shall be allowed a reasonable time within which to evaluate each proposed substitute. The Consultant and the City shall be the sole judges of the acceptability of any substitute. No substitute shall be ordered, installed or utilized without the City’s and the Consultant’s prior written acceptance which shall be evidenced by either a Change Order or an approved submittal. The City and the Consultant may require the Construction Manager to furnish at Construction Manager’s expense a special performance guarantee or other surety with respect to any substitute.

29. Maintenance of Traffic and Public Streets

The Construction Manager shall be responsible for the maintenance of public streets and traffic control necessary to perform the Work under the Contract Documents. The cost of traffic control shall be included in the Construction Manager’s GMP.

Scope of Work

As used herein, any reference to Miami-Dade County, its departments, or its published regulations, permits and data, shall be synonymous and interchangeable with other recognized governing bodies over particular areas or streets, or their departments, published regulations (i.e., Manual of Uniform Traffic Control Devices (MUTCD), FDOT Roadway and Bridge Standard Index Drawing Book), permits or data. The Construction Manager shall abide by all applicable laws, regulations, and codes thereof pertaining to Maintenance of Traffic (MOT) on public streets, detour of traffic, traffic control and other provisions as may be required for this Project.

Regulations

The Construction Manager shall be fully responsible for the MOT on public streets, detour of traffic (including furnishing and maintaining regulatory and informative signs along the detour route), traffic control, and other provisions, throughout the Project, as required by the Manual of Uniform Traffic Control Devices (MUTCD), and FDOT Roadway and Bridge Standard Index drawing Book. Traffic shall be maintained according to corresponding typical traffic control details as outlined in the previous noted standards. No street shall be completely blocked, nor blocked more than one-half at any time, keeping the other one-half open for traffic, without specific approval.

Maintenance of Traffic (MOT)


If required by the City’s Project Manager or Consultant, Traffic Division or FDOT or as otherwise authorized by the City’s Project Manager or Consultant, the Construction Manager shall make arrangements for the employment of uniformed off-duty policemen to maintain and regulate the flow of traffic through the work area. The number of men required and the number of hours on duty necessary for the maintenance and regulation of traffic flow shall be provided by the City of Miami Police Department.

The Construction Manager shall provide all barricades with warning lights, necessary arrow boards and signs, to warn motorists of the Work throughout the Project. Adequate approved devices shall be erected and maintained by the Construction Manager to detour traffic.

Excavated or other material stored adjacent to or partially upon a roadway pavement shall be adequately marked for traffic safety at all times. The Construction Manager shall provide necessary access to all adjacent property during construction.

The Construction Manager shall be responsible for the provision, installation and maintenance of all MOT and safety devices, in accordance with the Manual of Uniform Traffic Control Devices (MUTCD) and FDOT Roadway and Bridge Standards index drawing book. In addition, the Construction Manager shall be responsible for providing the Consultant with MOT plans for lane closures and/or detours for approval. These plans (sketches) shall be produced, signed and sealed by a professional Engineer registered in the State of Florida, employed by the Construction Manager and certified under FDOT Procedure NPIL No. 625-010-010.

Where excavations are to be made in the vicinity of signalized intersections, attention is directed to the fact that vehicle loop detectors may have been embedded in the pavement. Verify these locations by inspecting the site of the Work and by contacting the Sunshine State One-Call Center (1-800-432-4770), 48 hours prior to any excavation. Any loop detector which is damaged, whether shown on the Plans or not, shall be repaired or replaced to the satisfaction of the Miami Dade County Signs and Signal Division (Phone No. 305-592-3470).

Where applicable, the Construction Manager shall notify the Traffic Division 24 hours in advance of the construction date or 48 hours in advance of construction within any signalized intersection.

Temporary pavement will be required over all cuts in pavement areas, and also where traffic is to be routed over swale or median areas. When the temporary pavement for routing traffic is no longer necessary, it shall be removed and the swale or median areas restored to their previous condition.

Pavement markings damaged during construction shall be remarked, as required by the Traffic Division.

The Construction Manager shall take appropriate steps to ensure that all temporary pumps, piping and hoses are protected from vehicular traffic and pedestrian traffic.

Maintenance of Traffic for Bypass Pumping

Where construction of the Project shall involve lane closures public streets, the following shall apply:

Lane Closures

Lane closures require a Lane Closure Permit, obtained two weeks prior to planned construction, with a minimum 48-hour prior notice to local police and emergency departments (some police jurisdictions may require considerably more notice). Lane


closures of a one day or less duration will generally not be approved for major collector streets or for arterial streets during the hours of 7am to 9am and 4pm to 6pm weekdays.

30. Construction Manager shall comply with the State of Florida rules and regulations for the National Pollutant Discharge Elimination System (NPDES) including but not limited to all permitting, Notices of Intent, and the Storm Water Pollution Prevention Plan (SWPPP). All costs for NPDES and SWPPP shall be included in the bid prices. For further information on compliance requirements for NPDES and SWPPP contact the City of Miami Public Works Department at (305) 416-1200 or visit the State of Florida website at

NDPES Requirements

http://www.dep.state.fl.us/water/stormwater/npdes/. Construction Manager is responsible for obtaining, completing and paying for any required NPDES application or permits that may be required.

31. The City shall provide the Construction Manager the construction requirements, wording and layout for the signs prior to the submission of the GMP Proposal. The Construction Manager shall be required to furnish two City of Miami signs at the Project Site.

Construction Signage

The Construction Manager shall also post appropriate construction site warning signs at the Project Site. Such signs shall be posted to warn pedestrian and vehicle traffic. Construction Manager shall provide drawings for the signage, which shall be subject to approval by the City’s Project Manager.

The City shall approve the locations for all signage.

32. Consultant and City shall at all times have access to the Construction Work during normal work hours, and Construction Manager shall provide proper facilities for such access and for inspecting, measuring and testing.

Inspection of Work

Should the Contract Documents, Consultant's/City’s Project Manager’s instructions, any laws, ordinances, or any public authority require any of the Construction Work to be specially tested or approved, Construction Manager shall give City’s Project Manager timely notice of readiness of the Construction Work for testing. If the testing or approval is to be made by an authority other than City, timely notice shall be given of the date fixed for such testing. Testing shall be made promptly, and, where practicable, at the source of supply. If any of the Construction Work should be covered up without approval or consent of City’s Project Manager or Consultant, it must, if required by City’s Project Manager, be uncovered for examination and properly restored at Construction Manager's expense.

Re-examination of any of the Construction Work may be ordered by City’s Project Manager, and if so ordered, the Construction Work must be uncovered by Construction Manager. If such Construction Work is found to be in accordance with the Contract Documents, City shall pay the cost of reexamination and replacement by means of a Change Order. If such Construction Work is not in accordance with the Contract Documents, Construction Manager shall pay such cost.

The Construction Manager shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or separate contractors caused by the Construction Manager’s correction or removal of Work which is not in accordance with the requirements of the Contract Documents.

http://www.dep.state.fl.us/water/stormwater/npdes/�


Inspectors shall have no authority to permit deviations from, or to relax any of the provisions of the Contract Documents or to delay the Construction Work by failure to inspect the materials and Construction Work with reasonable promptness without the written permission or instruction of Consultant.

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 Construction Manager to any inspector, directly or indirectly, is strictly prohibited, and any such act on the part of Construction Manager will constitute a breach of this Contract.

33. Where mounting heights are not indicated, the Construction Manager shall mount individual units at industry recognized standard mounting heights for the particular application indicated; and, refer questionable mounting height choices to the Consultant for final decision.

Mounting Heights

34. Construction Manager shall check and approve all shop drawing, samples, product data, schedule of values, and any and all other submittals to make sure they comply with the Contract Documents prior to submission to the City’s Project Manager or Consultant.

Submittals

Construction Manager by approving and submitting any submittals, represents that they have verified the accuracy of the submittals, and they have verified all of the submittal information and documentation with the requirements of the Contract Documents. At time of submission the Construction Manager shall advise the City’s Project Manager and the Consultant in writing of any deviations from the Contract Documents. Failure of the Construction Manager to advise the City’s Project Manager or Consultant of any deviations shall make the Construction Manager solely responsible for any costs incurred to correct, add or modify any portion of the Work to comply with the Contract Documents.

Each shop drawing submittal shall contain a title block containing the following information:

• Number and title of drawing, including Agreement title and Number; • Date of drawing and revisions; • Name of Construction Manager and Subcontractor (if any) submitting drawings; • Name of Project, Building or Facility; • Specification Section title and number; • Construction Manager 's Stamp of approval, signed by the Construction Manager or his

checker; • Space above the title block for Consultant's action stamp; • Submittal or re-submittal number (whether first, second, third, etc.); • Date of submittal.

Construction Manager shall sign, in the proper block, each sheet of shop drawing and data and each sample label to certify compliance with the requirements of the Contract Documents. Shop drawing submitted without the stamp and signature shall be rejected and it will be considered that the Construction Manager has not complied with the requirements of the Contract Documents. Construction Manager shall bear the risk of any delays that may occur as a result of such rejection.


City shall not be liable for any materials, fabrication of products or Construction Work commenced that requires submittals until the Consultant has returned approved submittals to the Construction Manager.

City’s Project Manager and/or Consultant shall make every effort to review submittals within fourteen (14) calendar days from the date of receipt by the Consultant. Consultant’s review shall only be for conformance with design concepts and the information provided in the Contract Documents. The approval of a separate item shall not constitute approval of an assembly in which the item functions. The Consultant shall return the shop drawings to the Construction Manager for their use and distribution.

Acceptance of any submittal shall not relieve the Construction Manager of any responsibility for any deviations from the requirements of the Contract Documents unless the Construction Manager has given written notice to the Consultant of the specific deviations and the Consultant has issued written approval of such deviations.

Construction Manager shall be responsible for the distribution of all shop drawings, copies of product data and samples, which bear the Consultants stamp of approval. Distribution shall include, but not be limited to; job site file, record documents file, subcontractors, suppliers, and other affected contractors or entities that require the information.

The Construction Manager shall also provide copies of all plans approved and permitted by the required governing authorities.

The Construction Manager shall not be relieved of responsibility for errors or omissions in any and all submittals by the Project Manager’s or Consultant’s acceptance thereof. The Construction Manager warrants the adequacy for the purpose intended of any shop drawings or portion of a shop drawing that alters, modifies or adds to the requirements of the Contract Documents.

Nothing in the City’s Project Manager’s or Consultant’s review of Shop Drawings, Submittals and Samples shall be construed as authorizing additional work or increased cost to the City.

During the progress of the Construction Work, the Construction Manager shall submit copies of all reports, permits and inspections required by governing authorities, or necessary for the Project. The Construction Manager shall also prepare a two week look-ahead schedule which must be submitted to the Consultant and the City’s Project Manager on a weekly basis.

The Construction Manager shall also provide copies of all plans approved and permitted by the required governing authorities.

35. Construction Manager shall submit Shop Drawings as required by the Contract Documents. The purpose of the Shop Drawings is to show, in detail, the suitability, efficiency, technique of manufacture, installation requirements, details of the item(s) and evidence of its compliance or noncompliance with the Contract Documents.

Shop Drawings

Within fourteen (14) calendar days after City’s acceptance of the GMP Proposal, Construction Manager shall submit to Consultant a complete list of items for which Shop Drawings are to be submitted and shall identify the critical items. Approval of this list by Consultant shall in no way relieve the Construction Manager from submitting complete Shop Drawings and providing materials, equipment, etc., fully in accordance with the


Contract Documents. This procedure is required in order to expedite final approval of Shop Drawings.

After the approval of the list of items required in Section 34 above, Construction Manager shall promptly request Shop Drawings from the various manufacturers, fabricators, and suppliers.

Construction Manager shall thoroughly review and check the Shop Drawings and each and every copy shall show its approval thereon. Construction Manager shall submit three (3) sets of shop drawings.

If the Shop Drawings show or indicate departures from the Contract Documents’ requirements, Construction Manager shall make specific mention thereof in its letter of transmittal. Failure to point out such departures shall not relieve Construction Manager from its responsibility to comply with the Contract Documents.

City’s Project Manager or Consultant shall review and approve Shop Drawings within fourteen (14) calendar days from the date received, unless said Shop Drawings are rejected by Consultant for material reasons. Consultant's approval of Shop Drawings will be general and shall not relieve Construction Manager of responsibility for the accuracy of such Shop Drawings, nor for the proper fitting and construction of the work, nor for the furnishing of materials or work required by the Contract Documents and not indicated on the Shop Drawings. No work called for by Shop Drawings shall be performed until the said Shop Drawings have been approved by Consultant. Approval shall not relieve Construction Manager from responsibility for errors or omissions of any sort on the Shop Drawings.

No approval will be given to partial submittals of Shop Drawings for items which interconnect and/or are interdependent where necessary to properly evaluate the design. It is Construction Manager's responsibility to assemble the Shop Drawings for all such interconnecting and/or interdependent items, check them and then make one submittal to Consultant along with its comments as to compliance, noncompliance, or features requiring special attention.

If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink.

The minimum size for shop drawings shall be 11” X 17”. Each shop drawing shall be clear, thoroughly detailed and shall have listed on it all Contract Document references, drawing number(s), specification section number(s) and the shop drawing numbers of related work. Shop drawings must be complete in every detail, including location of the work. Materials, gauges, methods of fastening and spacing of fastenings, connections with other work, cutting, fitting, drilling and any and all other necessary information per standard trade practices or as required for any specific purpose shall be shown.

Where professional calculations and/or certification of performance criteria of materials, systems, and or equipment are required, the Consultant is entitled to rely upon the accuracy and completeness of such calculations and certifications submitted by the Construction Manager. Calculations, when required, shall be submitted in a neat clear and easy format to follow.

Construction Manager shall keep one set of Shop Drawings marked with Consultant's approval at the job site at all times.


36. Construction Manager shall submit four copies of product data. Each copy must be marked to identify applicable products, models, options and other data. Construction Manager shall supplement manufacturer’s standard data to provide information unique to the Construction Work.

Product Data

Construction Manager shall only submit pages that are pertinent. Submittals shall be marked to identify pertinent products, with references to the specifications and the Contract Documents. Identify reference standards, performance characteristics and capacities, wiring and piping diagrams and controls, component parts, finishes, dimensions and required clearances.

Construction Manager shall submit a draft of all product data, warranty information and operating and maintenance manuals at 50% completion of construction.

37. Construction Manager shall submit samples to illustrate the functional characteristics of the product(s). Submittals shall be coordinated for different categories of interfacing Work. Construction Manager shall include identification on each sample and provide full information.

Samples

38. Construction Manager shall maintain in a safe place at the Project site one record copy and one permit set of the Contract Documents, including, but not limited to, all Drawings, Specifications, amendments, Change Orders, RFIs, and Field Directives, as well as all written interpretations and clarifications issued by the Consultant, in good order and annotated to show all changes made during construction. The record Contract Documents shall be continuously updated by Construction Manager throughout the prosecution of the Construction Work to accurately reflect all field changes that are made to adapt the Construction Work to field conditions, changes resulting from Change Orders, Construction Change Directives, and Field Directives as well as all written interpretations and clarifications, and all concealed and buried installations of piping, conduit and utility services. Construction Manager shall certify the accuracy of the updated record Contract Documents. As a condition precedent to City’s obligation to pay Construction Manager, the Construction Manager shall provide evidence, satisfactory to the City and the Consultant, that Construction Manager is fulfilling its obligation to continuously update the record Contract Documents. All buried items, outside the Project site, shall be accurately located on the record Contract Documents as to depth and in relationship to not less than two (2) permanent features (e.g. interior or exterior wall faces). The record Contract Documents shall be clean and all changes, corrections and dimensions shall be given in a neat and legible manner in red. The record Contract Documents shall be available to the City and the Consultant for reference. Upon completion of the Construction Work and as a condition precedent to Construction Manager’s entitlement to final payment, the record Contract Documents shall be delivered to the Consultant by the Construction Manager for the City. The Record Set of Drawing shall be submitted in both hard copy and as electronic plot and .dwg files.

Record Set

39. During the Construction Work, Construction Manager shall maintain records of all deviations from the Drawings and Specifications as approved by the Consultant and prepare As-Built Record Drawings showing correctly and accurately all changes and

As-Built Drawings


deviations made during construction to reflect the work as it was actually constructed. It is the responsibility of the Construction Manager to check the As-Built Drawings for errors and omissions prior to submittal to the City and certify in writing that the As-Built Drawings are correct and accurate, including the actual location of all internal piping, electrical/signal conduits in or below the concrete floor. Indicate the size, depth and voltage in each conduit. Legibly mark to record actual construction: On-site structures and site work as follows:

• Depths of various elements of foundation in relation to finish first floor datum.

• All underground piping and ductwork with elevations and dimensions and locations of valves, pull boxes, etc. Changes in location. Horizontal and vertical locations of underground utilities and appurtenances, referenced to permanent surface improvements. Actual installed pipe material, class, etc.

• Location of internal utilities and appurtenances concealed in the construction, referenced to visible and accessible features of the structure. Air conditioning ducts with locations of dampers, access doors, fans and other items needing periodic maintenance.

• Field changes in dimensions and details. • Changes made by Consultant’s written instructions or by

Change Order. • Details not on original Agreement Drawings. • Equipment, conduit, electrical panel locations. • Consultant schedule changes according to Construction

Manager’s records and shop drawings. Specifications and Addenda: Legibly mark each section to record:

• Manufacturer, trade name, catalog number and Supplier of each product and item of equipment actually installed.

• Changes made by Consultant’s written instructions or by Change Order.

• Approved Shop Drawings: Provide record copies for each process equipment, piping, electrical system and instrumentation system.

• As-built documents shall be updated monthly as a condition precedent to payment.

40. The Construction Manager shall submit in writing a Request for Information (RFI) to the Consultant, with a copy to the City’s Project Manager, where the Construction Manager believes that the specifications or drawings are unclear or conflict. All requests must be submitted in a manner that clearly identifies the drawing and/or specification section where clarification or interpretation is being requested.

Requests For Information (RFI)

All RFIs by Construction Manager shall be submitted in good faith and shall contain Construction Manager's proposed answer or solution to the request unless the requesting party, in good faith, has not identified a proposed solution. The foregoing or the submission or preparation by Construction Manager of a proposed answer or proposed solution shall not be deemed to create any liability on Construction Manager for design or adequacy of the proposed answer or solution.


41. The City’s Project Manager or Consultant may at times issue Field Directives to the Construction Manager based on visits to the Project site. Such Field Directives shall be issued in writing and the Construction Manager shall be required to comply with such directive. Where the Construction Manager believes that the directive is outside the scope of the Work, the Construction Manager shall, within 48 hours, notify the Consultant and the City’s Project Manager that the Field Directive is outside the scope of the Work. At that time the Field Directive may be rescinded or the Construction Manager may be required to submit a request for a Change Order proposal. Where the Construction Manager is notified of the City’s position that the Field Directive is within the scope and the Construction Manager disagrees, the Construction Manager shall notify the Consultant and the City’s Project Manager that the Construction Manager reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Construction Manager refuse to comply with the directive. Failure to comply with the directive may result in a determination that the Construction Manager is in default of the Agreement.

Field Directives

42. Construction Manager shall maintain at the Project Site a log of daily activities, including manpower records, deliveries, inspections, testing, major decisions, delays, visitors to the site, etc.

Work Logs

Construction Manager shall maintain a two week look-ahead schedule, which shall be provided to the Consultant, the City, and subcontractors at the progress meetings

43. Changes in the quantity or character of the Construction Work of the Project which are not properly the subject of Field Directives or Supplemental Instructions, including all changes resulting in changes in the GMP, or use of the Construction Manager’s Contingency, or the increasing the value of the GMP by, shall be authorized only by Change Orders approved in advance and issued in accordance with the provisions of the City.

Change Orders

In the event satisfactory adjustment cannot be reached for any item requiring a change in the GMP or increasing the value of the GMP, and a Change Order has not been issued, City reserves the right at its sole option to either terminate the Agreement as it applies to the items in question and make such arrangements as may be deemed necessary to complete the disputed work; or may submit the matter in dispute as set forth in Section 1, Article 57, Resolution of Disputes. During the pendency of the dispute, and upon receipt of a Change Order approved by City, Construction Manager shall promptly proceed with the change in the Work involved and advise the Consultant and City’s Project Manager in writing within seven (7) calendar days of Construction Manager’s agreement or disagreement with the method, if any, provided in the Change Order for determining the proposed adjustment in the GMP or Construction Work Time for Completion.

On approval of any change increasing the GMP, Construction Manager shall ensure that the performance bond and payment bond are increased so that each reflects the total GMP as increased.

Under circumstances determined necessary by City, Change Orders may be issued unilaterally by City.


The City reserves the right to order changes which may result in additions to or reductions from the amount, type or value of the Work shown in the Contract Documents and which are within the general scope of the Contract Documents. Any such changes will be known as Extra Work.

No Extra Work shall be performed except pursuant to written orders of the City’s Project Manager or Consultant expressly and unmistakably indicating his/her intention to treat the Work described therein as Extra Work. In the absence of such an order, the City’s Project Manager or Consultant may direct, order or require the Construction Manager to perform any Work including that which the Construction Manager deems to be Extra Work. The Construction Manager shall nevertheless comply and shall promptly and in no event after, begin the performance thereof or incur cost attributable thereto and give written notice to the City’s Project Manager stating why he deems such Work (hereinafter “Disputed Work”) to be Extra Work. Said notice is for the purposes of (1) affording an opportunity to the City’s Project Manager to cancel such order, direction or requirements promptly; (2) affording an opportunity to the City’s Project Manager to keep an accurate record of materials, labor and other items involved; and (3) affording an opportunity to the City to take such action as it may deem advisable in light of such disputed Work.

44. The value of any Work to be covered by a Change Order, or for any claim for an increase or decrease in the GMP, or use of the Construction Manager’s Contingency shall be determined in one of the following ways:

Value of Change Order Work

Where the work involved is covered by unit prices contained in the Schedule of Values, by application of unit prices to the quantities of items involved.

By mutual acceptance of a lump sum which Construction Manager and City acknowledge contains a component for overhead and profit. As the Construction Manager’s Contingency already includes overhead and profit no additional sum(s) will be added for overhead and profit where the change order is issued against the Construction Manager’s Contingency.

On the basis of the "cost of work," determined as provided in this Article, plus a proportional rate for the Construction Manager’s fee for general conditions, overhead and profit, except that not additional sums will be added for general conditions, overhead, and profit where the change order is issued from the Construction Manager’s Contingency.

The term "cost of work" means the sum of all direct costs necessarily incurred and paid by Construction Manager in the proper performance of the Construction Work described in the Change Order. Except as otherwise may be agreed to in writing by City, such costs shall be in amounts no higher than those prevailing in the locality of the Project, and shall include only the following items, as applicable:

Payroll costs for employees in the direct employ of the Construction Manager, where such employees are performing the work described in the Change Order under schedules of job classifications agreed upon by City and Construction Manager. Payroll costs for employees not employed full time on the work covered by the Change Order shall be apportioned on the basis of their time spent on the work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits which shall include social security contributions, unemployment, excise and payroll taxes, workers' or workmen's compensation, health and retirement benefits, bonuses, sick


leave, vacation and holiday pay application thereto. Such employees shall include superintendents and foremen at the site. The expenses of performing the work after regular working hours, on Sunday or legal holidays, shall be included in the above to the extent authorized by City. The City shall have the right to require certified wage statements from the Construction Manager.

Cost of all materials and equipment furnished and incorporated in the Construction Work, including costs of transportation and storage thereof, and manufacturers' field services required in connection therewith. All cash discounts shall accrue to Construction Manager unless City deposits funds with Construction Manager with which to make payments, in which case the cash discounts shall accrue to City. All trade discounts, rebates and refunds, and all returns from the sale of surplus materials and equipment shall accrue to City and Construction Manager shall make provisions so that they may be obtained. Rentals of all construction equipment and machinery and the parts thereof whether rented from Construction Manager or others in accordance with rental agreements approved by City with the advice of Consultant and the costs of transportation, loading, unloading, installation, dismantling and removal thereof, all in accordance with the terms of said agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the Construction Work.

Payments made by Construction Manager to Subcontractors for Work performed by Subcontractors. If the Subcontract provides that the Subcontractor is to be paid on the basis of cost of the work plus a fee, the Subcontractor's cost of the work shall be determined in the same manner as Construction Manager's cost of the work. All Subcontractors shall be subject to the other provisions of the Contract Documents insofar as applicable.

Cost of special consultants, including, but not limited to, Consultants, architects, testing laboratories, and surveyors employed for services specifically related to the performance of the Construction Work described in the Change Order.

Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the site and hand tools not owned by the workmen, which are consumed in the performance of the work, and less market value of such items used but not consumed which remains the property of Construction Manager.

Sales, use, or similar taxes related to the work, and for which Construction Manager is liable, imposed by any governmental authority.

Deposits lost for causes other than Construction Manager’s negligence; royalty payments and fees for permits and licenses.

The cost of utilities, fuel and sanitary facilities at the site.

Receipted minor expenses such as telegrams, long distance telephone calls, telephone service at the site, and reasonable petty cash items in connection with the Construction Work.

The term "Cost of the Work" includes the Cost of special consultants, including, but not limited to, consultants, architects, testing laboratories, and surveyors employed for services specifically related to the performance of the Work described in the Change Order.

Cost of the Work shall not include any of the following:


Payroll costs and other compensation for Construction Manager’s officers, executives, principals (of partnership and sole proprietorships), general managers, Consultants, architects, estimators, lawyers, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks and other personnel employed by Construction Manager whether at the site or in its principal or a branch office for general administration of the work, all of which are to be considered administrative costs covered by Construction Manager’s Fee.

Expenses of Construction Manager's principal and branch offices other than Construction Manager's office at the site.

Any part of Construction Manager's capital expenses, including interest on Construction Manager's capital employed for the work and charges against Construction Manager for delinquent payments.

Cost of premiums for all Bonds and for all insurance whether or not Construction Manager is required by the Contract Documents to purchase and maintain the same, except for additional bonds and insurance required because of changes in the work.

Costs due to the negligence or neglect of Construction Manager, any Subcontractors, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective work, disposal of materials or equipment wrongly supplied and making good any damage to property.

Other overhead or general expense costs of any kind and/or the cost of any item not specifically and expressly included in Section 44.

The amount of credit to be allowed by Construction Manager to City for any such change which results in a net decrease in cost, will be the amount of the actual net decrease. When both additions and credits are involved in any one change, the Construction Manager’s Fee shall be figured on the basis of the net increase, if any. However, Construction Manager shall not be entitled to claim lost profits for any Construction Work not performed.

Whenever the cost of any Construction Work is to be determined pursuant to this Article the Construction Manager will submit in a form acceptable to Consultant an itemized cost breakdown together with the supporting data.

Whenever a change in the Work is to be based on mutual acceptance of a lump sum, whether the amount is an addition, credit or no change-in-cost, Construction Manager shall submit an initial cost estimate acceptable to Consultant and City’s Project Manager. The cost estimate shall include:

Breakdown shall list the quantities and unit prices for materials, labor, equipment and other items of cost.

Whenever a change involves Construction Manager and one or more Subcontractors and the change is an increase in the Agreement Price, overhead and profit percentage for Construction Manager and each Subcontractor shall be itemized separately.

Each Change Order must state within the body of the Change Proposal Request whether it is based upon unit price, negotiated lump sum, or "cost of the Work."

General Conditions, overhead and profit on change orders will be paid in accordance with the values established in the Agreement, including those paid from the City’s Contingency. However, Construction Manager will not be paid General Conditions, overhead, and profit for change orders issued against the Construction Manager’s Contingency.


45. The Construction Work shall be substantially complete when the City’s Project Manager, in the reasonable exercise of his/her discretion determines that the Construction Work is complete and there are no material and/or substantial variations from the Agreement and the Construction Work is fit for its intended purpose. Upon Substantial Completion, City’s Project Manager and the Construction Manager shall sign the Substantial Completion Inspection Form. The signing of this form shall not relieve the Construction Manager from its obligation to complete the Project.

Substantial Completion, Punch List & Final Completion

When the Construction Manager believes that the Construction Work is substantially complete, the Construction Manager shall request in writing that the Consultant inspect the Construction Work to determine if Substantial Completion has been achieved. No request for Substantial Completion inspection is to be submitted until the Construction Manager has obtained a Certificate(s) of Occupancy, Certificate of Completion or Completion or a Temporary Certificate of Occupancy. The Consultant shall schedule the date and time for any inspection and notify the Construction Manager and any other parties deemed necessary. During this inspection, the Project Substantial Completion Inspection Form, (Attachment B), will be completed as necessary. Any remaining Construction Work shall be identified on this form and shall be known as Punch List work. The Punch List, shall be signed by the Consultant, the City’s Project Manager, and the Construction Manager confirming that the Punch List contains the item(s) necessary to complete the Construction Work. The failure or refusal of the Construction Manager to sign the Project Substantial Completion Inspection Form or Punch List shall not relieve the Construction Manager from complying with the findings of the Project Substantial Completion Inspection and completing the Project to the satisfaction of the City

Where the Punch List is limited to minor omissions and defects, the Consultant shall indicate that the Construction Work is substantially complete subject to completion of the Punch List. Where the Consultant determines, on the appropriate form that the Work is not substantially complete, the Consultant shall provide a list of all open items necessary to achieve Substantial Completion. Upon completion of such Construction Work, the Construction Manager shall request another Substantial Completion inspection.

The Consultant, the City’s Project Manager, and the Construction Manager shall agree on the time reasonably required to complete all remaining Work included in the Punch List.

Upon the receipt of all documentation, resolution of any outstanding issues and issuance of final payment, the Consultant shall notify the Construction Manager in writing of the closeout of the Project.

The City will prepare a Certificate of Substantial Completion in the form attached hereto as Attachment D which shall establish the Date of Substantial Completion. Once substantial completion is achieved the City shall be responsible for security, maintenance, heat, utilities, damage to the Project site, and insurance; and shall list all Construction Work yet to be completed to satisfy the requirements of the Contract Documents for Final Completion. The failure to include any items of corrective work on such list does not alter the responsibility of Construction Manager to complete all of the Work in accordance with the Contract Documents. Warranties required by the Contract Documents shall commence on the date of Substantial completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. Warranties required by the Contract Documents shall commence on the


date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Contract Documents except equipment, or materials, etc. that are contained on the Punch List. Such warranties shall commence upon the City’s Project Manager and/or Consultant approving completion of the Punch List.

46. The Construction Manager shall provide training of all appropriate personnel employed by the City or the City's agents in the installation, maintenance, calibrations, and routine care of all equipment and systems provided and installed as part of the Construction Work

Training

Separate training sessions shall be conducted for equipment/system operation and maintenance except when combining of these two (2) subjects is specifically allowed by the City.`

The Construction Manager shall provide qualified, prepared instructors for all training plus all necessary material and equipment (training aids, audio visual equipment, seating, tables, etc.).

The Construction Manager shall provide factory-level maintenance training in system problem identification and resolution. This training should be aimed at providing the City with means to perform all corrective, scheduled and preventative maintenance.

All training shall be conducted on-site or, if conducted at a remote location, travel and expenses for City's personnel shall be reimbursed to the City by the Construction Manager.

Training shall be conducted prior to final completion of the Project.

For each training session, the Construction Manager shall submit a training plan for review. The plans shall include proposed dates/times/durations of training sessions, suggested class size/attendees, proposed locations, session objectives and an outline of the training topics to be presented. Training plans for all training sessions shall be submitted not later than the date set forth in the Project Schedule. The City shall have the right to modify proposed training dates in conjunction with the Construction Manager to coordinate the schedule with availability of personnel and ongoing operations.

47. Ten (10) months after the date of Substantial Completion, Construction Manager shall, together with the Consultant and the City, attend a final inspection of the Work to assure that it comports with all warranties and guarantees. Construction Manager shall promptly correct any deficiencies noted during such inspection.

Post Occupancy Inspection

48. Excusable Delay is (i) caused by circumstances beyond the control of Construction Manager, its Subcontractors, suppliers and vendors, or (ii) is caused jointly or concurrently by Construction Manager, or its Subcontractors, suppliers or vendors and by the City or Consultant.

Excusable Delay

Construction Manager is entitled to a time extension of the Construction Work Time for Completion for each day the Construction Work is delayed due to Excusable Delay. Construction Manager shall document its claim for any time extension as provided in the Agreement.


Construction Manager shall furnish to the City’s Project Manager all documentation and details supporting its claim resulting from a delay.

Construction Manager is entitled to a time extension of the Agreement Time for each day the Work is delayed due to Excusable Delay. Construction Manager shall document its claim for any time extension as provided in Article 49, Notification and Claim for Change of Construction Work Time for Completion or GMP.

Construction Manager agrees that the above constitutes its sole and exclusive remedies for an excusable delay.

Failure of Construction Manager to comply with this Article and Article 49, below as to any particular event of delay shall be deemed conclusively to constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay.

49.

Any claim for a change in the Construction Work Time for Completion or GMP, shall be made by written notice by Construction Manager to the Consultant and City’s Project Manager within ten (10) calendar days of the commencement of the event giving rise to the claim and stating the general nature and cause of the claim. Thereafter, within twenty (20) calendar days of the termination of the event giving rise to the claim, written notice of the extent of the claim with supporting information and documentation shall be provided unless City’s Project Manager allows an additional period of time to ascertain more accurate data in support of the claim and such notice shall be accompanied by Construction Manager's written notarized statement that the adjustment claimed is the entire adjustment to which the Construction Manager has reason to believe it is entitled as a result of the occurrence of said event. All claims for changes in the Agreement Time or GMP shall be determined by the City’s Project Manager and Consultant in accordance with Section 1, Article 38, Construction Manager’s Damages for Delay hereof, if City and Construction Manager cannot otherwise agree. It is expressly and specifically agreed that any and all claims for changes to the GMP or the time for completion of the Work shall be waived if not submitted in strict accordance with the requirements of this Article.

Notification and Claim for Change of Construction Work Time for Completion or GMP

The Construction Work Time for Completion will be extended in an amount equal to time lost on critical-path Construction Work items due to delays beyond the control of and through no fault or negligence of Construction Manager.

This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with the Agreement. Nothing contained in this Article shall be deemed to preclude the assessment of liquidated damages, when applicable, in accordance with the requirements of the Contract Documents.

50. Within thirty (30) calendar days of GMP submission CM shall submit to the City a Hurricane Preparedness Plan (Plan). The Plan shall include the measure to be taken by the Construction Manager in case of a hurricane or tropical storm.

Hurricane Preparedness

During such periods of time as are designated by the United States Weather Bureau as being a tropical storm/hurricane warning or alert, or at such other time deemed necessary by the City’s Project Manager the Construction Manager, at no cost beyond the GMP to the City, shall implement the Plan to secure the Project site in response to


all threatened storm events, regardless of whether the City or Consultant has given notice of same. Failure of the City to direct the Construction Manager to implement the Plan shall not relieve the Construction Manager for sole responsibility for implementation of the Plan.

Any damage to materials and equipment resulting from Construction Manager’s failure to implement the plan shall be removed and replaced at no cost to the City.

Additional work relating to hurricane warning or alert at the Project site will be addressed by a Change Order.

Suspension of the Construction Work caused by a threatened or actual storm event, regardless of whether the City has directed such suspension, will entitle the Construction Manager to additional time as non-compensable, excusable delay, and shall not give rise to a claim for compensable delay.

51. The City may, at any time, by written order to the Construction Manager, require the Construction Manager to stop all, or any part, of the Construction Work for a period of up to ninety (90) days (or any lesser period), commencing no sooner than the date the order is delivered to the Construction Manager, and for any further period to which the parties may agree. Any such order shall be specifically identified as a “Stop Work Order” issued pursuant to this paragraph. Within the period of ninety (90) days (or the lesser period specified) after a Stop Work Order is delivered to the Construction Manager, or within any extension to which the parties have agreed the City shall either:

Stop Work Order

• Cancel the Stop Work Order; or

• Terminate the Work covered by such order as provided in the Agreement.

If a Stop Work Order issued under this Article is canceled or the period of the order or any extension thereof expires, the Construction Manager shall resume the Work. The Cm may request an extension of time and/or additional time in accordance with the Agreement

In the event the Consultant determines that the suspension of Construction Work was necessary due to Construction Manager’s defective or incorrect Construction Work, unsafe Construction Work conditions caused by the Construction Manager or any other reason caused by Construction Manager’s fault or omission, the Construction Manager shall not be entitled to an extension of time as a result of the issuance of a Stop Work Order.

52. Construction Manager shall at all times keep the premises free from accumulation of waste materials or rubbish caused by its operations. At the completion of the Project, Construction Manager shall remove all its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If Construction Manager fails to clean up during the prosecution of the Work or at the completion of the Construction Work, City may do so and the cost thereof shall be charged to Construction Manager. All combustible waste materials shall be removed from the Project(s) at the end of each day. Cleaning operations should be controlled to limit dust and other particles adhering to existing surfaces.

Cleaning Up; City's Right to Clean Up


53. In case of termination of this Agreement before completion for any cause whatsoever, Construction Manager, if notified to do so by City, shall promptly remove any part or all of Construction Manager 's equipment and supplies from the property of City. If the Construction Manager fails to comply with City’s order, the City shall have the right to remove such equipment and supplies at the expense of Construction Manager.

Removal of Equipment

54. Construction Manager shall conduct, in conjunction with the City, a sixth (6th) month and eleventh (11th) month warranty inspection. The City shall be responsible for setting the dates for said inspections.

Warranty Phase

Construction Manager shall provide a warranty summary report to the City at the end of each inspection period. At a minimum the report shall include:

1. Description of each warranty item during the period

2. Date item reported to Construction Manager for correction

3. Date item corrected. If more than one trip is required, document each instance

4. Description of action taken to cure warranty item

5. Written approval by City accepting warranty work

6. Any other pertinent information


ATTACHMENT A

Construction Manager shall provide the City’s Project Manager and the Consultant with copies of a Policy and Procedure Manual (total number of copies not to exceed three (3) developed and updated in accordance with the following requirements:

POLICY AND PROCEDURES MANUAL

A. Upon execution of the Contract, Construction Manager shall develop a draft of the comprehensive Policy and Procedure Manual describing the services to be provided by Construction Manager per the Contract. This shall provide a plan for the control, direction, coordination and evaluation of the Work performed throughout the Project; the Project organization including identification of key personnel, responsibilities of Construction Manager, including Subconsultants and Subcontractors, City and Consultant; Work flow diagrams; and strategy for bidding and subcontracting the Work. City shall have the right to review the Policy and Procedure Manual and to recommend revisions to its content and format. The Policy and Procedure Manual may be updated as necessary throughout the Design and Construction Phases, but substantive changes will not be made without City’s prior written concurrence. Three (3) copies of the Policy and Procedure Manual and any updates shall be submitted to the City and Consultant. In developing the Policy and Procedure Manual, Construction Manager shall coordinate and consult with the City and the Consultant. The initial manual shall be submitted to City for concurrence.

B. Contents of Policy and Procedure Manual: The Policy and Procedure Manual shall describe in detail the procedures for executing the Work and the organizations participating. The Policy and Procedure Manual shall include, as a minimum, the following sections: • Project Definition:

•

The known characteristics of the Project shall be described in general terms which will provide the participants a basic understanding of the Project and subprojects. Project Goals:

•

The Master Project Schedule, Project Schedule, budget, physical, technical and other objectives for the Project shall be defined. Project Strategy:

•

A narrative description of the Project delivery methods which shall be utilized to accomplish the Project goals. Project Work Plan:

•

A matrix display of the Work to be performed by the Construction Manager, as well as the services and items to be furnished by the Consultant and City during each phase of the Project. Project Organization:

•

A summary organization chart showing the inter-relationships between the City, Construction Manager and Consultant, and other supporting organizations and permitting review agencies. Detailed charts, one each for Construction Contractor and Design Professional, showing organizational elements participating in the Project shall be included. Responsibility Performance Chart: A detailed matrix showing the specific responsibilities and interrelationships of the City, Consultant, and Construction Manager. The Responsibility Performance Chart shall indicate major responsibility, and minor responsibility, for each specific task required to deliver the Project. Construction Manager shall develop a similar chart for


the personnel within its own organization who are assigned to the Project, as well as for Consultant’s and City’s personnel assigned to the Project from data supplied by them.

• Flow Diagrams:

•

These charts shall display the flow of information and the decision process for the review and approval of shop drawings and submittals, progress, and change orders. Written Procedure:

•

The Construction Manager will provide written procedures for communications and coordination required between the Construction Manager, Consultant and the City throughout the Project. Procedures shall cover such items as correspondence, minutes, reports, inspections, team meetings, technical reviews, design reviews, and other necessary communications. Emergency Contact List:

C. This Policy and Procedure Manual shall be completed and submitted to the Consultant and the City for their review and concurrence as a condition precedent to payment by City to Construction Manager for any services provided in the Construction Phase under this Agreement

A complete list of the names, company affiliation and emergency contact phone numbers (both day and night) for all key Project personnel from City, the Construction Manager and the Consultant, as well as from all subcontractors, Subconsultants and suppliers of any of them. This list shall be continuously updated by Construction Manager throughout the Project duration, with Construction Manager distributing a copy of all updates to the City and Consultant.

D. This Policy and Procedure Manual is merely an amplification and clarification of this Agreement. Any conflicts between the Policy and Procedure Manual and this Agreement shall be governed by the latter.

Construction Manager shall provide the following Project Management Information System (“PMIS”), in a format acceptable to the City, which system shall be in place for the Construction Phase services.

1. General:

• Commencing immediately after the Notice to Proceed is issued to Construction Manager by the City, Construction Manager shall implement and shall utilize throughout the life of this Agreement all subsystems of the PMIS.

• The reports, documents, and data to be provided shall represent an accurate assessment of the current status of the Project and of the Work remaining to be accomplished and it shall provide a sound basis for identifying variances and problems and for making management decisions.

• If requested by the City, Construction Manager shall conduct a comprehensive workshop for participants designated by City and additional seminars as required by the City to provide instruction with respect to the PMIS. This workshop and the seminars shall facilitate the City’s representatives’ use and understanding of the PMIS.

• The PMIS shall be described in terms of the following major subsystems: Narrative Reporting; Project Schedule Controls; Cost Control and Estimating; Project Accounting; Accounting and Payment; and


Action Reports. The above reports shall be submitted at least on a monthly basis and

shall accompany each monthly Application for Payment. 2. Narrative Reporting Subsystem.

• Construction Manager shall prepare written reports as described hereunder. All reports shall be in 8 1/2” x 11” format.

• The Narrative Reporting Subsystem shall include the following reports: Monthly Executive Summary which provides an overview of current

issues and pending decisions, future developments and expected achievements, and any problems or delays, including code violations found by any permitting authority.

Monthly Cost Narrative describing the current construction cost estimate status of the Project.

A Monthly Scheduling Narrative summarizing the current status of the Project Schedule and an explanation of all variances from the plan. This report shall include an analysis of the various Project sub-schedules, a description of the critical path, and other analyses as necessary to compare planned performance with actual performance.

Monthly Accounting Narrative describing the current cost and payment status for the entire Project. This report shall relate current encumbrances and expenditures to the budget allocations. An explanation for all variances shall be provided.

A Monthly Construction Progress Report during the Construction Phase summarizing the Work of the various subcontractors. This report shall include information from the weekly job site meetings as applicable such as general conditions, long lead supplies, current deliveries, safety and labor relations, programs, permits, construction problems and recommendations, and plans for the succeeding month.

Daily Construction Diary during the Construction Phase describing events and conditions on the site.

• The Reports outlined in above shall be bound with applicable computer schedule reports and submitted monthly during Design and Construction Phases and shall be current through the end of the preceding month. Copies shall be delivered to the City and Consultant. A bound copy of the complete diary shall be submitted to City at the conclusion of the Project.

3. Schedule Control Subsystem. • Project Schedule: Prior to the submittal of its first application for payment,

Construction Manager shall submit to the City and Consultant for their review and approval a Project Schedule covering the planning and design approvals, construction, and City occupancy of the Project. This schedule shall conform to the format outlined below. This schedule shall serve as the framework for the subsequent development of all detailed schedules and shall be updated with each Application for Payment by Construction Manager throughout the Project. Within fifteen (15) days of acceptance by the City of the Construction Manager’s GMP Proposal the Construction Manager shall submit a critical path, cost loaded schedule to the Project Manager and the Consultant for review. Within fifteen (15) calendar days of Construction Manager’s submittal, the City and Consultant shall review the schedule and provide Construction Manager a written list of corrections needed to accept the Project Schedule. Construction Manager must make all corrections and


resolve all comments within thirty (30) calendar days after its receipt of the City’s and Design Consultant’s comments. If the Project Schedule is not accepted within said thirty (30) calendar days, the City and Consultant will withhold all payments due the Construction Manager until the Project Schedule is accepted. The acceptance of the schedule by City and Consultant in no way attests to the validity of the assumptions, logic constraints, dependency relationships, resource allocations, manpower and equipment, and any other aspect of the proposed Project Schedule. Construction Manager is and shall remain solely responsible for the planning and execution of all Work in order to meet Project milestones or Agreement completion dates.

• Project Schedule:

Following development and approval of the Project Schedule, Construction Manager shall, at the completion of each pre-construction design phase and with each application for payment during each phase of the Work, or at such earlier intervals as circumstances may require, update and/or revise the Project Schedule which shall be submitted to the City and the Consultant in duplicate. No additional compensation will be due Construction Manager for making such updates. Failure of Construction Manager to update, revise, and submit the Project Schedule as aforesaid shall be sufficient grounds for City to find Construction Manager in substantial default hereunder and that sufficient cause exists to terminate the Agreement or to withhold payment to Construction Manager until a Project Schedule or Project Schedule update acceptable to City is submitted.

As stipulated in the Agreement the Construction Manager shall prepare and submit to City and Consultant, for their review and approval, a Project Schedule. This Project Schedule shall conform to with the requirements outlined below. The approved Project Schedule shall be attached and incorporated into the GMP Amendment. The Project Schedule shall be integrated into the Master Project Schedule by the Construction Manager. The Construction Manager shall be responsible for resolving all conflicts between the Master Project Schedule and the Project Schedule. The resolution of all such conflicts shall be submitted to the City’s Project Manager for review and acceptance.

• Construction Manager shall prepare and incorporate into the Project Schedule database, at the required intervals, the following schedules:

Subcontractor Construction Schedules (Sub-networks):

Upon the award of each subcontract, Construction Manager shall jointly with the Subcontractor, develop a schedule which is more detailed than the pre-bid schedule included in the bid packages, taking into account the Work schedule of the other Subcontractors. The Subcontractor’s construction schedule shall include as many activities as necessary to make the schedule an effective tool for construction planning and for monitoring the performance of the Subcontractor. The Subcontractor’s construction schedule also shall show pertinent activities for material purchase orders, manpower supply, shop drawing schedules and material delivery schedules. Occupancy Schedule: Construction Manager shall jointly develop with Consultant and City a detailed plan, inclusive of punch lists, final inspections, maintenance training and turn-over procedures, to be used for ensuring accomplishment of a smooth and phased transition from


construction to City occupancy. The Occupancy Schedule shall be produced and updated monthly from its inception through final City occupancy and shall be integrated into the Master Project Schedule.

• Schedule Format:

No activity shall have a duration greater than fifteen (15) work days or less than one (1) work day. If requested by the City Consultant, Construction Manager shall furnish any information needed to justify the reasonableness of activity duration. Such information shall include, but not be limited to, estimated activity manpower, anticipated quantities, and production rates.

The Project Schedule and the Sub-contractor Construction Schedules shall be planned and recorded with a cost loaded, Critical Path Method (CPM) schedule in the form of an activity-on-node diagram. All activity-on-node diagrams shall include the Activity Identification, Activity Description, and the type of relationship between activities, including any lead or lag time, as well as being cost loaded. Further, the Project Schedule shall incorporate and be based upon any Project milestone dates set forth in the Agreement.

Procurement shall be identified with at least two (2) activities: fabrication and delivery. Construction Manager shall insure that all Work activities that require a submittal are preceded by the appropriate submittal and approval activities.

Only contractual constraints shall be shown in the schedule logic. No other restraints are allowed unless approved in writing by the City or Consultant. This disallowance of constraints includes the use of any mandatory start or finish dates selected by Construction Manager.

Activities shall be identified by codes to reflect the responsible party for the accomplishment of each activity (only one party per activity), the Phase/Stage of the Project for each activity, and the Area/Location of each activity

The construction time for the Work, or any milestone, shall not exceed the specified Agreement Time. Logic or activity durations shall be revised in the event that any milestone or Agreement completion date is exceeded in the schedule.

Float is defined as the amount of time between when an activity “can start” (the early start) and when an activity “must start” (the late start). It is understood by the City and Construction Manager that float is a shared commodity, not for the exclusive use or financial benefit of either party. Either party has the full use of the float until it is depleted.

The CPM schedules must be compatible with Primavera or approved equal. It is Construction Manager’s responsibility to ascertain the software compatibility with the City.

Initial Schedule Submittal Requirements: Predecessor/Successor Sort Total Float/Early Start Sort Responsibility/Early Start Sort AreConsultantarly Start Sort Logic Diagram: Produce diagram with not more than 100 activities

per ANSI D (24-inch x 36-inch) size sheet. Insure each sheet includes title, match data or diagram correlation, and key to identify all components used in the diagram.

Narrative discussing general approach to completion of the Work.


Diskette in Primavera (P3) format. Schedule Update Requirements: Construction Manager shall update the

Project Schedule as required by the Agreement to show actual, current progress. The schedule updates shall be submitted within seven (7) calendar days of the data dates. The updates shall include: Dates of activities’ actual starts and completions. Percent of Work remaining for activities started but not completed

as of the update date. Narrative report including a listing of monthly progress, the

activities that define the critical path and any changes to the path of critical activities from the previous update, sources of delay, any potential problems, requested logic changes, and Work planned for the next month.

Predecessor/Successor Sort Total Float/Early Start Sort Responsibility/Early Start Sort AreConsultantarly Start Sort Diskette in the required Primavera format Fragnet of logic diagram for all requested logic changes. Updated logic diagram as required by the City. At a minimum, the

City shall require a final logic diagram at the end of the Work showing the planned and actual starts and completions.

A bar chart comparison of the updated schedule to the initial schedule. This diagram shall show actual and planned performance dates for all completed activities.

All update information shall be an accurate representation of the actual Work progress.

• Recovery Schedule:

•

If the initial schedule or any current updates fail to reflect the Work’s actual plan or method of operation, or a contractual milestone date is more than fifteen (15) days behind, City may require that a recovery schedule for completion of the remaining Work be submitted. The Recovery Schedule must be submitted within seven (7) calendar days of City’s request. The Recovery Schedule shall describe in detail Construction Manager’s plan to complete the remaining Work by the required Agreement milestone date. The Recovery Schedule submitted shall meet the same requirements as the original Construction Schedule. The narrative submitted with the Recovery Schedule should describe in detail all changes that have been made to meet the Project milestone dates. Change Orders:

4.

When a Change Order is proposed, Construction Manager must identify all logic changes as a result of the Change Order. Construction Manager shall include, as part of each Change Order proposal, a sketch showing all schedule logic revisions, duration changes, and the relationships to other activities in the approved Construction Schedule. This sketch shall be known as the fragnet for the change. Upon acceptance of the fragnet, Construction Manager will revise the Construction Schedule or current update. The logic changes required by the Change Order will be considered incidental to Construction Manager’s Work. No separate payment will be made.

Cost Control Subsystem: The operation of this subsystem shall provide sufficient timely cost data and detail to permit Construction Manager to control and adjust the Project requirements, needs, materials, equipment and systems by building and site


elements so that the Work will be completed at a cost which, together with the Construction Management Fee, will not exceed the GMP. Requirements of this subsystem include submissions at the following phases of the Project:

• 4.1 Pre-Construction Phase Estimates; and • 4.2 At establishment of the GMP.

5. Project Accounting Subsystem:

• Costs Status Report representing the budget, estimate, and base commitment (awarded subcontracts and purchase orders) for any given subcontract or budget line item. It shall show approved Change Orders and Construction Change Directive for each subcontract which when added to the base commitment will become the total commitment. Pending Change Orders also will be shown to produce the total estimated probable cost to complete the Work.

This subsystem shall enable Construction Manager to plan effectively and City to monitor and control the funds available for the Project, cash flow, costs, Change Orders, Construction Change Directives, payments, and other major financial factors by comparison of budget, estimate, total commitment, amounts invoiced, and amounts payable, and also enable City to stay informed as to the overall Project status. This subsystem will be produced and updated monthly and includes the following reports:

• A Payment Status Report showing the value in place (both current and cumulative), the amount invoiced (both current and cumulative), and the balance remaining. A summary of this report shall accompany each pay request.

• A Detailed Status Report showing the complete activity history of each item in the Project accounting structure and includes an earned value graph. It shall include the budget, estimate, and base commitment figures for each subcontract. It shall give the Change Order history, including Change Order numbers, description, proposed and approved dollar amounts. It also shall show all pending or rejected Change Orders.

• A Cash Flow Diagram showing the projected accumulation of cash payments against the Project. Cash flow projections shall be generated for anticipated monthly payments as well as cumulative payments.

• A Job Ledger shall be maintained as necessary to supplement the operation of the Project accounting subsystem. The job ledger will be used to provide construction cost accountability for general conditions work, on-site reimbursable expenses, and costs requiring accounting needs.


ATTACHMENT B

SUBSTANTIAL COMPLETION INSPECTION Date of Inspection: Re-Inspection No.:

Project Information

Project No.: Project Name: Project Location: Construction Manager’s Name:

Representation

City of Miami _________________________________________________ User Agency:

__________________________________________________

Construction Manager:

_________________________________________________

Inspection

Based on the request of the Contractor a substantial completion inspection was conducted, which resulted in the following:

No punch list created. By signing below the City acknowledges that the work has been performed in

accordance with the Agreement and specification requirements. This form shall serve as the Notice of Final Completion. Project Close Out and final payment is subject to the submittal of all required documentation.

The punch list items as stated on the punch list form are of a nature that will allow beneficial

occupancy on the premises and the punch list is issued as a final punch list, subject to re-inspection by the City. By signing below the City acknowledges that the work has been performed in accordance with the Agreement and specification requirements. This form shall serve as a partial acceptance and notification of substantial completion. Final Acceptance shall be issued subsequent to completion and re-inspection of the punch list items. Project Close Out and final payment is subject to the punch list re-inspection and the submittal of all required documentation.

The punch list items listed are of a nature that precludes beneficial occupancy of the premises.

Substantial completion is denied at this time. Items on the punch list must be completed and the Construction Manager must request another Substantial Completion Inspection,

CITY OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS 444 NW 2ND AVENUE

MIAMI, FLORIDA 33130


The failure or refusal of the Construction Manager to sign the Project Substantial Completion Inspection Form or Punch List shall relieve the Construction Manager from complying with the findings of the Project Substantial Completion Inspection and completing the Project to the satisfaction of the City All punch list items must be completed on or before the mutually agreed upon date of __________________. Construction Manager City of Miami

Consultant

Accepted By: Approved By: Approved By: ____________________ _________________ _________________ Name Name Name ____________________ ____________________ ____________________ Signature Signature Signature


ATTACHMENT B

PUNCH LIST

Date of Substantial Completion Inspection: Date of Punch List Inspection: Project No.: Project Name: Project Location: Construction Manager’s Name: City of Miami Representative: ________________________________________________________ Construction Manager’s Representative: _____________________________________________ Consultant’s Representative: __________________________________________________ ________ The following is a list of items, within the scope of work, that require correction prior to; a new substantial completion inspection or, final completion. A detailed description for each item is provided below. Upon completion the City’s Project Manager and the Consultant shall inspect the work performed and initial that each item has been completed and accepted. (Use additional pages as necessary.)

Description of Item City’s Project Manager’s Acceptance

Date of Acceptance

CITY OF MIAMI CAPITAL IMPROVEMENTS PROGRAM 444 NW 2ND AVENUE

MIAMI, FLORIDA 33130


Description of Item City’s Project Manager’s Acceptance

Date of Acceptance

Punch List developed and agreed to by: City’s Project Manager: ________________________________________ Construction Manager: ____________________________________ Consultant: _____________________________________________


ATTACHMENT D

CERTIFICATE OF SUBSTANTIAL COMPLETION

:

PROJECT: CONSULTANT: (name, address)

AGREEMENT NUMBER: TO (City): CONSTRUCTION MANAGER:

AGREEMENT FOR:

NOTICE TO PROCEED DATE: DATE OF ISSUANCE: PROJECT OR DESIGNATED PORTION SHALL INCLUDE: The Work performed under this Agreement has been reviewed and found to be substantially complete and all documents required to be submitted by Construction Manager under the Contract Documents have been received and accepted. The Date of Substantial Completion of the Project or portion thereof designated above is hereby established as ____________________ .

DEFINITION OF DATE OF SUBSTANTIAL COMPLETION

The Date of Substantial Completion of the Construction Work or portion thereof designated by City is the date certified by Consultant and/or Director when all conditions and requirements of permits and regulatory agencies have been satisfied and the Work is sufficiently complete in accordance with the Contract Documents, so the Project is available for beneficial occupancy by City. A Certificate of Occupancy/Completion must be issued for Substantial Completion to be achieved.


A list of items to be completed or corrected, prepared by Consultant and approved by City is attached hereto. The failure to include any items on such list does not alter the responsibility of Construction Manager to complete all work in accordance with the Contract Documents. The date of commencement of warranties for items on the attached list will be the date of final payment unless otherwise agreed in writing. ________________________ ________________________ __________ Consultant BY Date In accordance with Agreement, Construction Manager will complete or correct the work on the list of items attached hereto within ______________________ from the above Date of Substantial Completion. ________________________ __________________________ _________ Consultant BY Date City, through the Director, accepts the Work or portion thereof designated by City as substantially complete and will assume full possession thereof at ___________________ (time) on __________________ (date). City of Miami, Florida _________________________ _________ By Director Date ________________________________________________________________ The responsibilities of City and Construction Manager for security, maintenance, heat, utilities, damage to the work and insurance shall be as follows:


ATTACHMENT E

FINAL CERTIFICATE OF PAYMENT

:

PROJECT: CONSULTANT: (name, address)

BID/AGREEMENT NUMBER: TO (City): CONSTRUCTION MANAGER:

AGREEMENT FOR:

NOTICE TO PROCEED DATE: DATE OF ISSUANCE: All conditions or requirements of any permits or regulatory agencies have been satisfied. The documents required by the Agreement, and the final bill of materials, if required, have been received and accepted. The Work required by the Contract Documents has been reviewed and the undersigned certifies that the Work, including minor corrective work, has been completed in accordance with the provision of the Contract Documents and is accepted under the terms and conditions thereof. _______________________ __________________________ __________ Consultant BY Date City, through the Director, accepts the work as fully complete and Will assume full possession thereof at ___________________________________ (Time) __________________________________

(Date). City of Miami, Florida ____________________________ __________ By Director Date


FORM OF PERFORMANCE BOND

(Page 1of 3)

BY THIS BOND, We _______________________________________, as Principal,

hereinafter called Construction Manager, and _______________________________, as Surety,

are bound to the City of Miami, Florida, as Obligee, hereinafter called City, in the amount of

____________________________ Dollars ($__________) for the payment whereof

Construction Manager and Surety bind themselves, their heirs, executors, administrators,

successors and assigns, jointly and severally.

WHEREAS, Construction Manager has by written agreement entered into this

Agreement, awarded the _______ day of __________________, 20____, with City which

Contract Documents are by reference incorporated herein and made a part hereof, and

specifically include provision for liquidated damages, and other damages identified, and for the

purposes of this Bond are hereafter referred to as the "Agreement";

THE CONDITION OF THIS BOND is that if Construction Manager: 1. Performs the Agreement between Construction Manager and City for construction of

_______________________________________________, the Agreement being made a part of this Bond by reference, at the times and in the manner prescribed in the Agreement; and

2. Pays City all losses, liquidated damages, expenses, costs and attorney's fees including

appellate proceedings, that City sustains as a result of default by Construction Manager under the Agreement; and

3. Performs the guarantee of all Construction Work and materials furnished under the

Agreement for the time specified in the Agreement; then THIS BOND IS VOID, OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT.

4. Whenever Construction Manager shall be, and declared by City to be, in default under the

Agreement, City having performed City obligations thereunder, the Surety may promptly remedy the default, or shall promptly:

4.1. Complete the Project in accordance with the terms and conditions of the

Contract Documents; or


00710. FORM OF PERFORMANCE BOND

(Page 2 of 3)

3.2. Obtain a bid or bids for completing the Project in accordance with the terms and conditions of the Contract Documents, and upon determination by Surety of the lowest responsible Bidder, or, if City elects, upon determination by City and Surety jointly of the lowest responsible Bidder, arrange for a contract between such Bidder and City, and make available as work progresses (even though there should be a default or a succession of defaults under the Agreement or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the GMP; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the GMP," as used in this paragraph, shall mean the total amount payable by City to Construction Manager under the Agreement and any amendments thereto, less the amount properly paid by City to Construction Manager.

No right of action shall accrue on this bond to or for the use of any person or corporation other than City named herein.

The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Agreement or the changes does not affect Surety's obligation under this Bond.

Signed and sealed this ______ day of _____________________, 20_____.


FORM OF PERFORMANCE BOND

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WITNESSES: __________________________

(Name of Corporation) __________________________ Secretary By: _________________________

(Signature) (CORPORATE SEAL)

_________________________ (Print Name and Title)

IN THE PRESENCE OF: INSURANCE COMPANY: _________________________

By: ________________________ _________________________ Agent and Attorney-in-Fact

_________________________ Address: ________________________ (Street)

________________________________ (City/State/Zip Code)

Telephone No.: __________________

FORM OF PAYMENT BOND

(Page 1of 3)

BY THIS BOND, We _______________________________________, as

Principal, hereinafter called Construction Manager, and

_______________________________, as Surety, are bound to the City of Miami,

Florida, as Obligee, hereinafter called City, in the amount of

______________________________ Dollars ($____________) for the payment whereof

Construction Manager and Surety bind themselves, their heirs, executors, administrators,

successors and assigns, jointly and severally.

WHEREAS, Construction Manager has by written agreement entered into this

Agreement, awarded the _______ day of __________________, 20____, with City

which Contract Documents are by reference incorporated herein and made a part hereof,

and specifically include provision for liquidated damages, and other damages identified,

and for the purposes of this Bond are hereafter referred to as the "Agreement";

THE CONDITION OF THIS BOND is that if Construction Manager: 1. Pays City all losses, liquidated damages, expenses, costs and attorney's fees

including appellate proceedings, that City sustains because of default by Construction Manager under the Agreement; and

2. Promptly makes payments to all claimants as defined by Florida Statute 255.05(1)

for all labor, materials and supplies used directly or indirectly by Construction Manager in the performance of the Agreement;

THEN CONSTRUCTION MANAGER 'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING CONDITIONS:

2.1. A claimant, except a laborer, who is not in privity with Construction

Manager and who has not received payment for its labor, materials, or supplies shall, within forty-five (45) days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish to Construction Manager a notice that he intends to look to the bond for protection.

A claimant who is not in privity with Construction Manager and who has not received payment for its labor, materials, or supplies shall, within ninety


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(90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to Construction Manager and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment.

2.3. No action for the labor, materials, or supplies may be instituted against

Construction Manager or the Surety unless the notices stated under the preceding conditions (2.1) and (2.2) have been given.

2.4. Any action under this Bond must be instituted in accordance with the

longer of the applicable Notice and Time Limitations provisions prescribed in Section 255.05(2), or Section 95.11, Florida Statutes.

The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Agreement or the changes does not affect the Surety's obligation under this Bond.

Signed and sealed this ______ day of _______________________, 20____.

Construction Manager

ATTEST: _____________________________ (Name of Corporation)

______________________ By: _____________________________

(Secretary) (Signature) _____________________________

(Corporate Seal) (Print Name and Title)

____ day of _____________, 20____.


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IN THE PRESENCE OF: INSURANCE COMPANY: _________________________

By: ________________________ _________________________ Agent and Attorney-in-Fact

_________________________ Address: ________________________ (Street)

_____________________________ (City/State/Zip Code)

Telephone No.: ________________

PERFORMANCE AND PAYMENT GUARANTY FORM UNCONDITIONAL/IRREVOCABLE LETTER OF CREDIT

: (Page 1 of 2)

Date of Issue

____________________

Issuing Bank's No. ________________ Beneficiary: Applicant

:

City of Miami Amount: _______________________ 444 SW 2nd Avenue in United States Funds Miami, Florida 33130 Expiry: (Date)

Agreement Number _____________

We hereby authorize you to draw on ___________________________________

(Bank, Issuer name) at ___________________________________________________________ by order

(branch address) of and for the account of _________________________________________________

(Construction Manager, applicant, customer) up to an aggregate amount, in United States Funds, of __________________ available by your drafts at sight, accompanied by: 1. A signed statement from the City Manager or his authorized designee, that the

drawing is due to default in performance of certain obligations on the part of__________________ (Construction Manager, applicant, customer) agreed upon by and between the City of Miami, Florida and ________________ (Construction Manager, applicant, customer), pursuant to Bid/Agreement No. _____ for ________________ (name of project) and Section 255.05, Florida Statutes.

Drafts must be drawn and negotiated not later than __________________________.

(expiration date)

PERFORMANCE AND PAYMENT GUARANTY FORM

UNCONDITIONAL/IRREVOCABLE LETTER OF CREDIT

: (Page 2 of 2)

Drafts must bear the clause: "Drawn under Letter of Credit No.__________________ (Number), of _______________________ (Bank name) dated ______________. This Letter of Credit shall be renewed for successive periods of one (1) year each unless we provide the City of Miami with written notice of our intent to terminate the credit herein extended, which notice must be provided at least thirty (30) days prior to the expiration date of the original term hereof or any renewed one (1) year term. Notification to the City that this Letter of Credit will expire prior to performance of the Construction Manager's obligations will be deemed a default. This Letter of Credit sets forth in full the terms of our undertaking, and such undertaking shall not in any way be modified, or amplified by reference to any documents, instrument, or agreement referred to herein or to which this Letter of Credit is referred or this Letter of Credit relates, and any such reference shall not be deemed to incorporate herein by reference any document, instrument, or agreement. We hereby agree with the drawers, endorsers, and bona fide holders of all drafts drawn under and in compliance with the terms of this credit that such drafts will be duly honored upon presentation to the drawee. Obligations under this Letter of Credit shall be released one (1) year after the Final Completion of the Project by the __________________________________________. (Construction Manager, Applicant, Customer) This Credit is subject to the "Uniform Customs and Practice for Documentary Credits," International Chamber of Commerce (1993 revision), Publication No. 500 and to the provisions of Florida law. If a conflict between the Uniform Customs and Practice for Documentary Credits and Florida law should arise, Florida law shall prevail. If a conflict between the law of another state or country and Florida law should arise, Florida law shall prevail.

__________________________

Authorized Signature

IN WITNESS WHEREOF, the parties have set their hands and seals on the day

and year first above written.

“City” City Of Miami, a municipal ATTEST: corporation _______________________________ By:______________________________ Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager

“Construction Manager”

ATTEST: (Name of CM), a XX corporation ______________________________ By:_______________________________ Print Name: Print Name: Title: Title: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: ______________________________ __________________________________ Julie O. Bru Risk Management Administrator City Attorney LeeAnn Brehm THE CITY REQUIRES FOUR (4) FULLY-EXECUTED AGREEMENTS, FOR DISTRIBUTION.

GMP AMENDMENT TO AGREEMENT BETWEEN THE CITY AND CONSTRUCTION MANAGER AT RISK

CONTRACTOR

Pursuant to the Agreement dated ________________________, between the City and (name of firm) (Construction Manager) for the construction of the Stadium Site Parking, the City and Construction Manager hereby agree to amend and modify by this Amendment and establish a Guaranteed Maximum Price (GMP) and time for completion of the Construction Phase as set forth below:

1. Cm’s GMP for the Construction Phase of the Work shall be ___________________ ($____________)

2. The Construction Manager’s Fee for the Construction Phase of the Work is hereby established as a lump sum amount of ______________________ ($____________), and said lump sum amount is included within the above stated GMP.

3. The General Conditions expenses for the Construction Phase of the Work are hereby established as a lump sum amount of ______________________ ($_________), and said lump sum amount is included in the above stated GMP. Construction Manager acknowledges and agrees that the City shall have no liability for any General Condition expenses beyond payment of the above noted lump sum and Construction Manager agrees that it shall not be entitled to receive any additional compensation from the City for the General Conditions beyond the lump sum amount unless expressly adjusted by a Change Order.

4. Monthly installment payments of the GMP shall be based upon the percentage of completion of the portion of Work completed and accepted by the City for the preceding month.

5. Direct reimbursements allowed under the Agreement shall be made upon submission of proof of payment by the Construction Manager.

6. The City has established a contingency fund in the amount of _____________ ($___________) for this project. The Construction Manager has no right or entitlement to the City’s contingency fund and use of such funds are subject to the prior written approval and issuance of a Change Order by the City. Any City contingency funds remaining at the completion of the Project will accrue to the City.

7. If at the time final payment is made to the Construction Manager for the Construction Phase of the Work the total cost has been increased by approved Change Orders in an amount causing the original GMP as set forth in this Amendment to by exceeded by more than ______________ ($__________), then the Construction Manager shall be entitled to an increase in the Construction Manager’s Fee in the amount of ________ (___%) of the amount exceeding the sum of ___________________ ($_____________).

8. Construction Manager acknowledges that this Agreement includes Work for trench excavation and that the requirements set forth in Section 553.63 of the

Florida Statutes titled Trench Safety Act apply. Construction Manager certifies that the required trench safety standards will be in effect during the Work.

9. The amount of _____________________ ($_______________) has been separately identified for the cost of compliance with the required trench safety standards and said amount is included within the GMP.

10. The Construction Phase commencement date (Commencement) for the Work is _____. The total time for performance of the Work from Commencement through the date required for Substantial Completion is _____________ (____) days (Construction Time). The Substantial Completion date is therefore established as ______________.

11. Pursuant to this Agreement, the parties have established a liquidated damages rate for reasons stated therein, which the parties acknowledge and agree apply to this Amendment and Construction Manager responsibility to complete the Work with the Construction Time. Accordingly, the liquidated damages rate established in the Agreement shall be assessed from Construction Manager for each calendar day Construction Manager fails to achieve Substantial Completion for the Construction Phase within the Construction Time.

12. Except as modified herein, the term and conditions of the Agreement remain unchanged. In the event of a conflict between the terms of this Amendment and those of the Agreement, the City and the Construction Manager agree that the terms of this Amendment shall take precedence.

TO: City's Project Manager's Name

MATERIALS PURCHASED AND STORED AT PROJECT SITE

City's Project Manager's Title FROM: Contractor's Project Manager's Name Contractor's Project Manager's Title

Project Number: Payment Application No.: Project Information

Project Title:

Project Address/Location:

This document is submitted in accordance with Agreement (Agreement number) and accompanies payment request/invoice number (number) for the purposes of payment of materials or equipment purchase exclusively for use on the above reference Project and stored at the Project Site.

Material Information

The undersigned stipulates that the following described material(s) has/have been purchased/fabricated for the exclusive use in this Project:

(describe all materials purchased or fabricated)

The material is to be stored at the Project Site and physically identified as City property for use only on the above named Project. The City shall inspect, check, or audit, the materials stored on site. It is expressly understood and agreed that these actions are solely for the purpose of payment for the above materials before payment is approved forth materials and/or equipment. The City shall only pay for the cost of the materials and shall not pay any indirect cost, profit or other direct costs including the installation of the materials or equipment.

All materials shall be stored in accordance with the manufacturer’s instructions. It is further understood that payment made on account of said materials not incorporated in the Work does not relieve the Construction Manager from the responsibility for proper insurance coverage and transportation to the site, or for replacing said materials that may be subsequently damaged, lost, or rejected for non-compliance with the Agreement prior to or during installation, or prior to final acceptance by the City.

Construction Manager Information

Name of Construction Manager: Date: Signature: Title: cc: Date Received: Received By:

Date post:	04-Feb-2022
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