HomeMy WebLinkAboutR-2006-073 Coastal Contracting Bid Award (PJ Meli) RESOLUTION NO. 2006-073
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO
EXECUTE AN AGREEMENT WITH COASTAL CONTRACTING AND
DEVELOPMENT, INC. FOR CONSTRUCTION OF THE P.J. MELI PARK
RECREATION CENTER IN AN AMOUNT NOT TO EXCEED $407,324.00;
PROVIDING FOR CONFLICTS; PROVIDING FOR FUNDING, FURTHER,
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City advertised for bids for construction of the P.J. Meli Recreation
Center and one proposal was received by the City on March 23, 2006; and
WHEREAS, the committee representing the City for the project has determined and is
recommending that Coastal Contracting and Development, Inc. be selected, since it can best
provide the project services in an amount not to exceed $407,324.00; and
WHEREAS, the City Commission has previously approved funding for the project in the
amount of$325,000.00 from the General Obligation Bond;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That the proper City officials are authorized to execute an Agreement for
the P.J. Meli Park Project with Coastal Contracting and Development, Inc. in an amount not to
exceed $407,324.00, all as appearing in the documents attached as Exhibit "A".
Section 2. That the City Manager and City Attorney are authorized to make minor
revisions to the terms of such documents as are deemed necessary and proper for the best
interests of the City.
Section 3. That in addition to the funding derived from the applicable General
Obligation Bond, the Director of Finance is authorized to appropriate an additional $82,324.00
from the "Donations to the Park Impact Fees" fund.
Section 4. That all resolutions or parts of resolutions in conflict with this Resolution
•
are repealed to the extent of such conflict.
Section 5. That this Resolution shall be in force and take effect immediately upon its
passage and adoption.
PASSED AND ADOPTED on April 25, 2006.
PATRICIA FLURY
MAYOR—COMMISSIONER
ATTEST:
LOUISE STILSON, CMC
CITY'CLERK
• APPROVED AS TO FORM AND CORRECTNESS:
BY: '
THO AS J. AN BRO
CITY ATTORNEY
2 RESOLUTION #2006-073
• DESIGN BUILD AGREEMENT
THIS DESIGN BUILD AGREEMENT (the "Agreement") is entered into and
effective onA /L : 2006 by and between the CITY OF DANIA BEACH, a Florida
municipal corporation ("City"), having an address at 100 W. Dania Beach Blvd., Dania
Beach, Florida 33004 and Coastal Contracting & Development, Inc. a Florida corporation
("Design/Bui]der").
RECITALS
1. City is the owner of a certain parcel of real property located at 2901 SW
52"d Street, Dania Beach, Florida.
2. On February 13, 2006 and February 27, 2006, the City issued a Request
for Qualifications/Proposals RFP (the "RFP") for the provision of Design/Build services
for P.J. Meli Park Recreation Complex Improvements (the "Project").
3. In response to the RFP, Design/Builder submitted a proposal to design
and construct the proposed Project.
• 4. City desires to engage Design/Builder, and Design/Builder agrees to
design and build the Project, all as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties, intending to be legally bound, covenant and agree as
follows:
1. PROJECT SUMMARY.
The following summary (the "Project Summary") provides the pertinent facts
and certain general terms with regard to the design and construction of the Project,
which is the subject of this Agreement. Capitalized terms not defined in the text shall
have the meanings ascribed to them in Article 2 of this Agreement.
1.1 Project Description. The "Project" consists of the design and
construction of P.J. Meli Recreational Complex Improvements as outlined in
Attachment "A"to the RFP.
1
1.2 Project Representatives. For purposes of this Project, the following
• shall serve as the Project Representative for each party:
City's Project Kristen Jones Phone (954) 924-3730
Re resentative No:
City's Building Official Phil Reeves Phone (954) 924-3650
No:
Design/Builder a y McGeddy Phone (954) 920-7444
,_Project Representative No:
1.3 Services. The Design/Builder shall complete the design and
construction of the Project in accordance with the terms and conditions of the Contract
Documents. The parties acknowledge and agree that nothing in this Agreement shall be
construed so as to provide, grant or confer any rights to Design/Builder and its
Subconsultants and Subcontractors with respect to the provision of any other services not
expressly set forth in the Scope of Work and Contract Documents.
1.4 Schedule for Performance. The Design/Builder shall complete the
design and the construction of the Project pursuant to the schedules for each set forth in
Exhibit A to this Agreement (the "Contract Times"); provided, however, that
Design/Builder shall perform the design phase of the Work in accordance with the
Contract Times as well as the schedule of performance set forth in Section 4.2. The
Contract Times set forth in Exhibit A shall commence to run on the thirtieth (301h) day
• after the effective date of this Agreement or, if a Notice to Proceed is given, on the day
indicated in the Notice to Proceed. A Notice to Proceed may be given at any time
within thirty (30) days after the effective date of this Agreement.
1.5 Compensation. It is the intent and agreement of the parties that the City
shall pay the Design/Builder for Design/Builder's performance of its obligations under
this Agreement a single Contract Sum for both the Design Services and the
Construction Work. It is also the intent and agreement of the parties that the Contract
Sum for the design and construction services of the total Project, which include P.J.
Meli Park Recreation Complex Improvements, shall not exceed Four Hundred Seven
Thousand, Three Hundred Twenty Four ($407,324.00) Dollars.
2. DEFINITIONS.
For the purposes of this Agreement, the following terms are defined:
2.1 "Addendum", "Addenda" and "Amendment" mean a written
modification to this Agreement or the Contract Documents or both executed by the
Design/Builder and City covering changes, additions, or reductions in the terms of this
Agreement.
2.2 "Attachments" means the written documents attached to the RFP by the
City.
2
• 2.3 "Building Division"means the City of Dania Beach Building Division.
2.4 "City means City of Dania Beach.
2.5 "Construction Documents" means a complete set of drawings and
documents that establish and describe the size and character of the Project as to
architectural, structural, mechanical, electrical, plumbing, and fire protection systems,
materials and such other elements as may be appropriate. These documents are
sufficient in nature to accurately construct the project.
2.6 "Contract Documents" means this Agreement, the Design Criteria
Package, the Plans and Specifications and all exhibits and documents related to them
and contemplated by them, as well as all Addenda and Amendments related to each
with respect to the Project and all changes to the documents issued by City after
execution of this Agreement. 0.
2.7 "Construction Work" means the construction of the Project required of
the Design/Builder under the terms of this Agreement and the Contract Documents.
2.8 "Contract Sum" means the total amount to be paid by the City for the
design and construction services of the Project, in accordance with terms and conditions
of this Agreement.
• 2.9 "County"means Broward County.
Y
2.10 "Day"or"Days"means a calendar day or days.
2.11 "Design/Builder" means Coastal Contracting & Development, Inc., a
Florida corporation.
2.12 "Design Development Documents" means the drawings and documents
that establish and describe the size and character of the Project as to architectural,
structural, mechanical, electrical, plumbing, and fire protection systems, materials and
such other elements as may be appropriate.
2.13 "Design Services" are all design services performed by and required of
the Design/Builder pursuant to this Agreement and includes services performed by the
Design/BuiIder's Subconsultants.
2.14 "Field Office" means field offices at the Project Location provided by
the Design/Builder.
2.15 "Final Completion" means that all Work required under the Contract
Documents has been fully and properly completed, including punch list items, issuance
3
of certificates of final occupancy and use, delivery of record drawings, electronic files
• manuals, and performance of all required training.
2.16 "Materials" means materials, supplies, apparatus, appliances, equipment,
fixtures, machinery, tools and all other items furnished or delivered in connection with
the Project.
2.17 "Notice to Proceed" means written notification by City to the
Design/Builder authorizing commencement of any phase of the Work as may be
required by this Agreement in the form attached to this Agreement as Exhibit K.
2.18 "Project" means the design and construction, in accordance with this
Agreement and the Contract Documents, of P.J. Meli Recreation Complex
Improvements.
2.19 "Project Location" or "Project Site" means the property where the
Project is to be constructed.
2.20 "Schedule of Values" means a statement furnished by the Design/Builder
to the City's Project Representative, reflecting the portions of the Contract Sum
allocated to the various portions of the work and used as the basis for reviewing the
Design/Builder's requisition for payment.
• 2.21 "Subconsultant" means any person or entity, other than Design/Bui I der's
own employees, employed or retained by, or under contract with Design/Builder to
perform a portion of the Design Services under this Agreement.
2.22 "Subconsultant Contract" means any contract in writing between the
Design/Builder and a Subconsultant.
2.23 "Subcontractor" means any person or entity, other than the
Design/Bui]der's own employees, employed or retained by, or under contract with the
Design/Builder to perform the non-design portion of the Work.
2.24 "Subcontractor Contract" means any contract in writing between the
Design/Builder and a Subcontractor.
2.25 "Substantial Completion" means and includes all work (exclusive of
minor items of unfinished work that do not preclude beneficial use of the premises)
required to complete the Work set forth in the Contract Documents. Substantial
Completion shall be deemed to have occurred upon the submission of a Certificate of
Substantial Completion (in the standard AIA form)to the City by the architect of record
and the issuance of a Temporary Certificate of Occupancy for the Project.
•
4
2.26 "Work" means the Design Services and Construction Work of the
is
Project required of the Design/Builder under the terms of this Agreement and the
Contract Documents.
3. ADMINISTRATION OF THE CONTRACT
3.1.1 The City's Project Representative will have the authority to act on behalf
of the City to the extent provided in the Contract Documents, unless otherwise modified
by written instrument which will be issued to the Design/Builder. All instructions to the
Design/Builder shall usually be issued through the City's Project Representative, except
under special circumstances when instructions may be issued by the City Building
Official directly.
3.2 City personnel and the City's Project Representative shall at all times
have access to the Work whenever it is in preparation or progress. The Design/Builder
shall provide safe facilities for such access so the City's personnel and the City's
Project Representative may perform their functions under the contract.
3.3 The City's Project Representative will make periodic visits to the site to
familiarize him/herself generally with the progress and quality of the Work and to
determine in general if the Work is proceeding in accordance with the Contract
Documents. On the basis of on-site observations the City's Project Representative will
• keep the City informed of the progress of the Work, and will endeavor to guard the
Owner against defects and deficiencies in the Work of the Design/Builder.
3.4 The City's Project Representative shall take, prepare, and distribute
minutes of all project meetings. Communications by and with any subcontractors and
material suppliers shall be through the Design/Builder. Communications by and with
any separate contractors, the City's Departments, or any City staff should be through
the City's Project Representative.
3.5 Neither the City nor the City's Project Representative will be responsible
for construction means, methods, techniques, sequences, or procedures, or for safety
precautions and programs in connection with the Work, and neither will be responsible
for the Design/Builder's failure to carry out the Work in accordance with the Contract
Documents.
3.6 The City's Project Representative will have the authority to reject Work
which does not conform to the Contract Documents and to require special inspection or
testing, but shall take such action only after consultation with the City. The City's
inspectors will have the authority to reject Work which does not conform to the
Contract Documents. When the City's Project Representative considers it necessary or
advisable to insure the proper implementation of the Contract Documents, the City's
Project Representative will have the authority to require special inspection or testing of
• the Work, whether or not such Work be then fabricated, installed or completed. Neither
5
the City or the City's Project Representative's authority to act under this Subparagraph,
• nor any decision made by them in good faith either to exercise or not to exercise such
authority shall give rise to any duty or responsibility of the City or the City's Project
Representative to the Design/Builder, any Subcontractor, any of their agents or
employees, or any other person performing any of the Work.
3.7 All interpretations and recommendations of the City's Project
Representative shall be consistent with the intent of the Contract Documents. In this
capacity as interpreter, the City's Project Representative will exercise best efforts to
insure faithful performance by both the City and the Design/Builder and will not show
partiality to either.
3.8 The Design/Builder shall forward all communications to the City's
Project Representative.
3.9 The City will assist the City's Project Representative in conducting
inspections to determine the date or dates of Substantial Completion and Final
Acceptance, and will receive and review written guarantees and related documents
required by the Contract. The City's Project Representative will approve Project
Payment Certificates.
3.10 The duties, responsibilities and limitations of authority of the City's
Project Representative during assembly as set forth in these Contract Documents will
not be modified nor extended without written consent of the Design/Builder, the City's
Project Representative, and the City.
3.11 Neither the City's Project Representative nor the City will be responsible
for the acts or omissions of the Design/Builder, any Subcontractors, or any of their
agents or employees, or any other persons performing any of the Work.
3.12 In case of termination of employment or replacement of the City's
Project Representative, the City may appoint a City's Project Representative whose
status under the Contract Documents shall be that of the former City's Project
Representative.
4. GENERAL RESPONSIBILITIES.
4.1 Overall
4.1.1 The Design/Builder agrees that all design documents prepared or
furnished, including, without limitation, the Plans and Specifications, shall comply with
all applicable laws, statutes, codes, rules and regulations including, without limitation,
those adopted by the City, all Environmental Laws as defined in Section 20.4 and all
design requirements established by the Florida Building Code, the Florida Accessibility
• Code and the Americans with Disabilities Act (ADA).
6
• 4.1.2 The Design/Builder agrees that the Design Services under this
Agreement shall be performed in conformance with the standards of care and quality
adopted or accepted by nationally recognized architectural and engineering
organizations, and other applicable professional organizations for similar applications
and in accordance with the Florida Building Code. Any designs, drawings, or
specifications prepared or furnished by the Design/Builder that fail to meet the
requirements of paragraph 4.1 above, or otherwise are defective or contain errors,
conflicts or omissions, will be promptly corrected by the Design/Builder at no cost to
City. The Design/Builder will promptly reimburse City for any and all damages,
including fines and incidental damages, without limitation, resulting from the use of
such defective designs, drawings, or specifications; provided, however, that
Design/Builder's maximum liability for such damages shall be the limits of the
professional liability insurance policy provided by Design/Builder pursuant to Section
11 of this Agreement. City's approval, acceptance, use of, or payment for all or any
part of the Design Services shall in no way alter the Design/Builder's obligations with
respect to the design of the Project or City's rights under this Agreement.
4.1.3 The Design/Builder shall be fully responsible for coordinating all the
Work required under this Agreement regardless of whether performed by its own
employees or a Subconsultant or Subcontractor so as to insure that the services required
are performed in an efficient, timely and economical manner. The Design/Builder shall
be responsible to City for the services furnished to the Design/Builder by a
Subconsultant, or Subcontractor to the same extent as if the Design/Builder had
furnished the service itself. The Design/Builder shall require in such Contracts that the
Subconsultant or Subcontractor be bound to, and to assume toward, the Design/Builder
all the obligations and responsibilities which the Design/Builder, by this Agreement,
assumes toward City. Failure by the Subconsultant or Subcontractor to comply with all
of the Design/Builder's obligations and responsibilities set forth in this Agreement shall
be a material breach of the Subconsultant's or Subcontractor's Contract. The
Design/Builder also agrees to reasonably cooperate and reasonably coordinate with the
City's Project Representative or other consultants retained directly by City.
4.1.4 The Design/Builder shall not specify in the Plans and Specifications a
particular design, process or product that infringes upon any patent. The
Design/Builder shall defend suits or claims for infringement of patent rights and
indemnify and hold City harmless from any loss, cost or expense, including attorneys'
fees incurred, which results if the Design/Builder violates the requirements of this
Section; provided, however, that Design/Builder's maximum liability for such loss, cost
or expense shall be the limits of the professional liability insurance policy provided by
Design/Builder pursuant to Section 11 of this Agreement.
4.1.5 The Design/Builder shall design and construct or cause to be designed
and constructed the Project for City with supporting improvements, facilities and
equipment as described or reasonably inferable from the Contract Documents. The
Design/Builder shall provide, furnish and install all Materials and all Services except to
7
the extent specifically indicated in the Contract Documents to be furnished by or the
responsibility of others, as and when required for, or in connection with the design,
construction, furnishing or equipping of, or for inclusion or incorporation in, the Project
in accordance with the Contract Documents. Without limiting the foregoing, the
Design/Builder's Work shall be in compliance with the Contract Documents. To the
extent practicable, the Design/Builder shall utilize "value engineering" in connection
with the Project.
4.1.6 The Design/Builder agrees and represents that it possesses the requisite
skills to perform the Work and that the Work shall be executed in a good and
workmanlike manner, free from defects, and that all Materials shall be new and
approved by or acceptable to City, except as otherwise expressly provided for in the
Contract Documents. The Design/Builder shall cause all Materials and other parts of
the Work to be readily available as and when required or needed for or in connection
with the construction, furnishing and equipping of the Project.
4.1.7 The Design/Builder shall provide competent supervision of all phases of
the Work. The Design/Builder's Project Representative is identified in Section 1.2.
Any change in the Design/Bui]der's Project Representative must be approved in writing
by City, such approval not to be unreasonably withheld. The Design/BuiIder's Project
Representative shall represent the Design/Builder and communications given to the
Project Representative shall be as binding as if given to the Design/Builder.
• 4.1.8 Neither City nor the City's Project Representative makes any warranties
to the Design/Builder, expressed or implied, that the Contract Documents are free of
errors or omissions. Rather, the Design/Builder shall carefully study and compare
Contract Documents with each other, with information furnished by City, and shall
carefully inspect and verify field conditions, and shall at once report to the City all
errors, inconsistencies or omissions discovered. The Design/Builder shall not be liable
for damages resulting from errors, inconsistencies or omissions in the information
provided by the City unless Design/Builder should have reasonably recognized an error,
inconsistency or omission or knowingly failed to report it to the City. If the
Design/Builder proceeds with the design and performs any construction activity
knowing it involves a recognized error, inconsistency or omission without such notice,
the Design/Builder shall assume appropriate responsibility for such performance and
shall bear an appropriate amount of the attributable costs for correction. The intent of
the Contract Documents is to include all items necessary for the proper performance
and completion of the Work. The Contract Documents are complementary, and what is
required by any one shall be as binding as if required by all. Work not covered in the
Contract Documents shall not be required unless it is reasonably inferable as being
necessary to produce the intended results.
4.1.9 If conditions are encountered at a site, which are (1) subsurface or
otherwise concealed physical conditions which differ materially from those indicated in
the Contract Documents or (2) unknown physical conditions of an unusual nature,
which differ materially from those ordinarily found to exist and generally recognized as
8
inherent in construction activities of the character provided for in the Contract
• Documents, then written notice by the Design/Builder shall be given to City promptly
before such conditions are disturbed. If the conditions differ materially from those
indicated in the Contract Documents and were not known to the Design/Builder at the
time this Agreement was executed, and cause a material increase or decrease in the
Design/Builder's cost of, or time required for, performance of any part of the Work, an
equitable adjustment in the Contract Sum or Contract Time, or both, will be made with
the approval of City.
4.1.10 The Design/Builder shall prepare or cause to be prepared, as part of the
Work, all shop drawings, samples, submittals and detail drawings not made a part of the
Plans and Specifications, and Addenda which are required in the performance of the
Des]gn/BuiIder's obligations under this Agreement. All shop drawings, submittals,
samples, and detail drawings shall be submitted to the City's Project Representative.
Although the City's Project Representative will review all shop drawings, submittals,
detail drawings, and samples, the City's Project Representative shall not be responsible
to the Design/Builder for any failure of the shop drawings, submittals, detail drawings
or samples to comply with the Contract Documents or any governing codes, laws or
ordinances. The Design/Builder shall maintain copies of all shop drawings, submittals
and detail drawings, and maintain all samples at the Project site and shall afford City's
Project Representative access to the documents at all times during regular working
hours.
• 4.1.11 Prior to submitting the first Requisition for Payment, the Design/Builder
shall submit a Schedule of Submittals to the City's Project Representative for approval.
The Schedule of Submittals shall indicate the Desi gn/B ui]der's proposed submittal dates
for all shop drawings, samples, descriptive literature, and other submittals required by
the Contract documents. Submittal dates shall be established so as not to delay any
aspect of the Work and to allow for sufficient review of submittals by the City's Project
Representative.
At the intervals established on the approved submittal schedule, the
Design/Builder shall submit two (2) copies of all shop drawings, brochures, and
schedules required for the work of the various trades to the City's Project
Representative.
These shop drawings shall be carefully checked in every respect and signed by
the Design/Builder before submitting them to the City's Project Representative. The
City and the City's Project Representative shall utilize the shop drawings and other
submittals for their observation and inspection of the Work, the Design/Builder being
responsible for all dimensions, quantities, etc., necessary to make a complete job in
compliance with his plans and specifications.
4.1.12 The Design/Builder shall maintain one record set of Contract Documents
in good order and marked currently to record all changes made during construction and
an accurate location of all portions of the Work sufficient to prepare accurate as-built
Plans and Specifications. All of these, including the as-built Plans and Specifications,
9
shall be delivered to the City's Project Representative upon Final Completion of the
Work for review and incorporation into the record set of documents.
4.1.13 The Design/Builder shall deliver to the City's Project Representative all
equipment data, along with its recommended spare parts list, maintenance manuals,
manufacturers' warranties and operations manuals as may be required for City's
employees, agents or contractors to maintain and operate any equipment delivered as
part of the Work.
4.1.14 Required certificates of inspection, testing or approval shall be obtained
by the Design/Builder and promptly delivered to City's Project Representative. If City
or the City Project Representative desire to observe the inspections, tests or approvals
required by the Contract Documents, City shall notify the Design/Builder of that desire,
and the Design/Builder shall notify the City and Design Consultant of the dates and
times of the inspections, tests or other approvals.
4.1.15 The Design/Builder shall pay all sales, consumer, use and other similar
taxes for the Work or portions of each that are legally required at any time during the
Design/Builder's performance of the Work.
4.1.16 The Design/Builder shall pay all royalties and license fees that are
legally required at any time during the Design/Builder's performance of the Work. The
Design/Builder shall defend all suits or claims for infringement of any patent rights and
• shall indemnify and hold City harmless from any loss, liability or expense on account of
them, including attorneys' fees (at both the trial and appellate levels) except that City
shall be responsible for all such loss when a particular design, process or the product of
a particular manufacturer or manufacturers is specified, but if the Design/Builder has
reason to believe that the design, process or product specified is an infringement of a
patent, the Design/Builder shall be responsible for such loss, liability or expense unless
the Design/Builder promptly gives such information in writing to City and the City's
Project Representative; provided, however, that Design/Builder's maximum liability for
such loss, liability or expense shall be the limits of the professional liability insurance
policy provided by Design/Builder pursuant to Section 11 of this Agreement.
4.1.17 The Design/Builder and any Subconsultants or Subcontractors shall use
their best efforts to cooperate with the City during the period of design and construction
of the Project in order to minimize disruption of services.
4.2 Schedule, Cost Breakdown and Design/Builder's Team List
4.2.1 The Design/Builder, as a part of its proposal is required to develop and
submit, in a digital format, acceptable to the City, a detailed description construction
schedule for the Work, a detailed cost breakdown (schedule of values), and a list of
Design/Builder's team members.
10
4.2.2 The construction schedule shall indicate all of the Design/Builder's
activities (including those necessary for approval of construction documents, and
construction) necessary for the completion within the time limits established by the
Contract Documents.
4.2.3 An updated schedule shall be revised and submitted to the City's Project
Representative on a monthly basis (unless otherwise mutually agreed by the City's
Project Representative and Design/Builder) to reflect actual progress and changing
conditions encountered during the Work.
4.2.4 The construction schedule shall be related to the Project as described
previously in this agreement, and shall be related to the work required by any phases of
work defined by the contract documents, as well as any work completed by the City
using their own forces or separate Design/Builders.
4.2.5 The construction schedule shall coincide with the time limits stipulated
by the Design/Builders proposal and as issued within the Notice to Proceed (NTP)
authorizing the Design/Builders commencement of work. If the Design/Builder's
schedule does not entail the full performance period to complete the Work, the
remaining time or "float" shall be used at the discretion of the City and shall not serve
as the basis for any delay claim.
4.2.6 The Schedule of Values as required as part of the Design/Builder's
• proposal shall serve as the basis for the Design/Bui]der's applications for payment.
4.2.7 The subcontractors list shall be based upon and include names of
subcontractors, persons or entities (including those who or which are to furnish
materials or equipment fabricated to a special design proposed for all portions of the
Work as submitted to the City's Project Representative with the Design/Bui]der's
proposal and shall reflect any additions for those elements of Work further identified
during the Design/Builder's preparation of construction documents. Changes to the list
of subcontractors submitted with the Design/Builder's proposal shall only be made with
the approval of the City's Project Representative and shall not be based upon the
Design/Builder's bidding of principal portions of the Work subsequent to the date of the
Design/Build Contract.
5. DESIGN SERVICES.
5.1 Basic Services.
5.1.1 The Design/Builder shall provide or cause to be provided (a) the Design
Development Documents and (b) those services, including, without limitation,
architectural, structural, mechanical, electrical, plumbing, fire protection and any other
engineering services necessary to produce a complete and accurate set of plans and
specifications for the permitting and construction of the Project (collectively referred to
as the "Plans and Specifications" or "Construction Documents"). The Design/Builder
11
warrants that at the time of completion, the Plans and Specifications will be adequate
. and fit to accomplish the intended purpose of the Project. City's and the City's Project
Representative's review and approval of the Plans and Specifications shall in no way
diminish or release the foregoing warranty of adequacy and fitness for the intended
purpose and the Design/Builder's obligations in this respect.
5.1.2 The Design Services shall be performed in accordance with the schedule
for performance set forth in Exhibit A (the "Contract Times") and Sections 5.2 and 5.3.
Time is of the essence with respect to the performance of the Design Services. The
Design/Builder shall not, except for cause beyond the reasonable control of the
Design/Builder, exceed time limits established by this Agreement. Any adjustments to
the schedule must be approved in writing by City's Project Representative and must be
requested in writing by the Design/Builder within five (5) calendar days after the
Design/Builder knew or should have known of the occurrence upon which the
Design/Builder's request for adjustment is based.
5.1.3 The Design/Builder shall be responsible for preparing and filing the
documents required for approval of governmental and governing authorities having
jurisdiction over the Project to ensure that final approval and permits for the
performance of the Work will be obtainable prior to the Construction Phase. Such
documents shall be submitted to City's Building Official for review and approval prior
to filing with such authorities. The Design/Builder shall coordinate with permitting
agencies and shall participate in meetings with appropriate agencies and respond to and
. incorporate appropriate preliminary and final permit review comments. Any revisions
or changes required to comply with,governmental authorities approval must be done in
a timely manner. If rejections are received to plans submitted for permitting, all
corrections are to be made and submitted to governmental authorities within three (3)
business days.
5.1.4 The Design/Builder shall procure surveys as required describing physical
characteristics, legal limitations and utility locations for the Project Location. The
surveys may include, as applicable, grades and lines of streets, alleys, pavements and
adjoining structures; adjacent drainage; rights-of-way, restrictions, easements,
encroachments, boundaries and contours of the site; locations, dimensions and
necessary data pertaining to existing buildings, other improvements and information
concerning available utility services and lines, both public and private, above and below
grade, including inverts and depths. All the information on the survey shall be
referenced to a Project benchmark.
5.1.5 The Design/Builder shall establish an organization and lines of authority
in order to coordinate, monitor, and report the progress of each phase of the design and
shall furnish a competent staff for the administration, coordination, and supervision of
the Design Services. All services shall be performed by the Design/Builder's own staff
or Subconsultants approved as part of the Design/Builder's team, unless otherwise
authorized in writing by the City's Project Representative. ' The employment of,
Mcontract with, or the use of the services of any Subconsultant shall be subject to City's
12
Project Representative's written approval in accordance with Section 9 below. No such
41 . approval shall be construed as an agreement between City and any Subconsultant.
5.1.6 The Design/Builder shall furnish to City's Project Representative for
review and approval, a description of key personnel to be used on the Project. Such
description shall include a current resume of academic training and professional
experience. Design/Builder represents to the best of its knowledge that the descriptions
and resumes submitted to City pursuant to this Agreement shall be true in all material
respects. The Design/Builder shall not substitute any personnel without City's prior
written consent. Before any such substitution, Design/Builder shall submit to City a
detailed justification supported by the qualifications of any proposed replacement.
5.1.7 The Design/Builder shall prepare and submit to the City a
Design/Production Schedule and Work Plan, including a Proposed List of Drawings, a
Quality Assurance Plan, and a schedule of key interface dates with the City, including
milestone submittal dates. This information shall be defined as the Design Work Plan.
Once approved by City, the Design Work Plan shall be updated as necessary or as
requested by City. The Design Work Plan shall include at a minimum the following:
a. Design Team Organization and Directory identifying all team members
and contact information.
• b. Project Management/Quality Assurance Plan detailing the duties and
responsibilities of the Design Team, and how Project management and coordination will
be organized.
C. Design/Production Schedule including work force projections.
5.1.8 The Design/Builder shall provide or cause to be provided detailed
construction documents including architectural, structural, mechanical, electrical,
plumbing, fire protection and others in accordance with Section 5.2 and 5.3 and the
Contract Documents.
5.1.9 The Design/Builder shall verify existing site conditions and conduct field
investigations, as reasonably necessary to assure all documentation is accurate. The
Design/Builder shall provide logs of field investigations to the City's Project
Representative on a bi-weekly basis for review. Field verification logs shall consist of
names of field investigators, date, time, area, findings, issues and results. The
Design/Builder's responsibilities to field verify include, but are not limited to,
developing as-built drawings from field surveys, site exploratory work, and any other
means and methods necessary to ensure a complete verification of existing conditions.
•
13
5.2 Schedule of Performance.
5.2.1 On or before scheduled du
e dates for each phase, the Design Builder
shall make milestone submittals to the City in accordance with the following table:..
Phase Milestone Due Date
Design Development Documents 100% Submittal 30 days from Notice to Proceed
Construction Documents 65% Submittal 45 days from Notice to Proceed
Construction Documents 100% Submittal 60 days from Notice to Proceed
5.3 Submittals and Review of Design Documents.
5.3.1 Progress Submittals.The Design/Builder shall submit progress sets of
100% Design Development Documents and 65% and 100% Construction Documents
for review and approval by the City. Progress sets of the 100% Design Development
Documents and 65% and 100% Construction Documents shall be submitted a minimum
of two (2) weeks prior to the milestone submittal due dates. Additionally, the
Design/Builder will provide the City with progress plans and prints anytime the City
requests such documents. Progress set submittals shall consist of a minimum of three
(3) full-size drawing sets and three (3) sets of specifications ("Progress Sets"). Upon
written approval by the City of the applicable Progress Set submittal, the
Design/Builder shall transmit a complete package including plans, specifications,
checklists and other requirements, as applicable. Reviews will not commence until the
complete Progress Set submittal has been received.
5.3.2 Review Procedures. The following procedures shall be followed for
review of the 100% Design Development Documents, 65% and 100% Construction
Documents, and any other Design Services submittals by Design/Builder.
a. The Design/Builder shall submit Design Development Documents and
Construction Documents for review in accordance with the schedule
established in Section 5.2
b. The City's Project Representative will provide review comments to the
Design/Builder within fourteen (14) calendar days from receipt of the
milestone submittal.
C. The Design/Builder shall respond to and incorporate milestone review
comments transmitted by the City's Project Representative.
d. Unless otherwise agreed to in writing, the Design/Builder shall respond
in writing, on a form provided by the City's Project Representative,
within seven (7) days of receipt of the review comments. The City or
City Project Representative will log, transmit and facilitate the exchange
14
of review comments. The Design/Builder shall also maintain a similar
log and make it available to the City at all times.
e. Replies to Responses: The City's Project Representative .reviewers will
reply within seven (7) days to any responses requiring confirmation and
will advise the Design/Builder if any further reconciliation is required.
f. Resolution of differences: The City's Project Representative will
schedule a meeting between the Design/Builder team and the City team,
to take place within seven (7) days after review comments are issued to
the Design/Builder, in order to resolve all issues between teams. The
City or Design Consultant will arrange additional meetings or conference
calls if necessary, in order to expedite resolution and avoid impact to the
Project Schedule or the Contract Documents.
g. Backcheck Review: If any comments remain unsatisfied, additional
backcheck submittals shall be required until all comments have been
satisfied. Any costs associated with Design/Builder's preparation of the
backcheck submittals shall be the Design/Builder's responsibility and
shall be taken into consideration for evaluation of Design/Builder's
performance and progress payments.
h. Resolution of all review comments is requisite for completion of any
phase of the Design Services.
5.3.3 Milestones Submittals and Reviews. The Design/Builder shall submit
the Design Development Documents and Construction Documents in accordance with
the dates set forth in Section 5.2.1 and participate in interim reviews for the milestone
submittals as directed by the City in accordance with Section 5.3.2. The Design
Development Documents 100% milestone submittal shall consist of seven (7) full size
sets of drawings; seven (7) 11" x 17" size sets of drawings and shall include such other
information fully explaining and supporting the Design Development Documents. The
City's Project Representative shall review this submittal pursuant to the review
.procedures set forth in Section 5.3.2. This set, with full resolution of review comments,
as determined by the City, shall establish compliance with completion of the Design
Development Documents 100% milestone submittal. Once approved by the City, the
100% Design Development Documents shall become the "Approved 100% Design
Development Documents" and shall not be altered, modified, or revised without the
City's prior written approval. The 65% Construction Documents Progress Set submittal
shall be based upon the Approved 100% Design Development Documents. The
Construction Documents 65% milestone submittal shall consist of seven (7) full size
sets of drawings; five (5) 11" x 17" size sets of drawings and seven (7) sets of Project
manuals, and shall include design narratives for all disciplines, with calculations and
other information fully explaining and supporting the Contract Documents. The City
shall review this submittal pursuant to the review procedures set forth in Section 5.3.2.
This set, with full resolution of review comments, as determined by City, shall establish
15
compliance with completion of the Construction Documents 65% submittal milestone.
Once approved by the City the 65% Construction Documents shall become the
"Approved 65% Construction Documents" and shall not be altered, modified, or revised
without the City's Project Representative's prior written approval.
The 100% Construction Documents Progress Set submittal, which shall be based
upon the Approved 65% Construction Documents, shall serve to monitor progress of
the Work. All recommendations of the City from this review shall be incorporated into
the Construction Documents prior to submission of the Construction Documents 100%
submittal milestone. The Construction Documents 100% submittal milestone shall
consist of seven (7) full size sets of drawings; seven (7) 11" x 17"size sets of drawings
and seven (7) sets of Project manuals for the City to review pursuant to review
procedures set forth in Section 5.3.2. This set with all resolution of comments from this
review incorporated into the documents shall establish completion of the Construction
Documents 100% submittal milestone. The 100% Construction Documents with full
resolution and all comments pending from any previous reviews shall establish
completion of the Construction Documents 100% submittal milestone. Once approved
by the City's Project Representative the 100% Construction Documents shall become
the "Approved 100% Construction Documents" and shall not be altered, modified, or
revised without the City's Project Representative prior written approval. Any material
design modifications to the Approved 100% Construction Documents requested by City
shall be an additional cost to the City and reflected in a Change Order, and shall not be
included in the Cost of Work; provided, however, any changes or revisions to the 100%
Approved Design Development Documents, the Approved 65%. Construction
Documents and the Approved 100% Construction Documents necessary to (a) comply
with applicable governmental requirements, (b) satisfy field conditions and (c) correct
inconsistencies between various documents shall not be considered an additional cost
and will be included in the Cost of Work.
5.4 Construction Phase.
5.4.1 The Design/Builder shall be responsible for coordinating with the City's
Project Representative in order to prepare and file the documents required for the
approval of governmental authorities having jurisdiction over the Project.
5.4.2 Throughout the course of construction, the Design/Builder shall maintain
an up-to-date set of Plans and Specifications and reproducible drawings, which show
and describe all clarifications, addenda, substitutions and approved Change Orders.
Upon Final Completion, the Design/Builder shall provide the City's Project
Representative with a set of record drawings and electronic files, as directed by the
City's Project Representative, showing the complete Project as built (incorporating data
concerning as-built conditions) as well as specifications and other documents as may be
required by the City's Project Representative. This shall include all changes in the
Work during the Construction Phase.
16
5.4.3 During the construction phase, the Design/Builder shall reasonably
cooperate with, and respond to, any reasonable requests or requirements of the City's
Project Representative.
6. PROJECT REPRESENTATIVE'S RESPONSIBILITIES
6.1 The parties acknowledge and agree that the City has appointed a Project
Representative to assist the City in the administration of this Agreement. The Project
Representative shall act as an "owner's representative" and shall have no authority to
bind City or direct Design/Builder except as expressly set forth in this Agreement.
6.2 The Project Representative shall at all times have access to the Project
Location and the Work wherever it is in preparation or progress.
6.3 If requested by City, the Project Representative shall prepare proposed
Change Orders with supporting detailed cost documentation and data for City's
approval and execution in accordance with the Contract Documents. If requested by
City, the Project Representative shall evaluate the detailed cost estimate,and scope of
the Design/Builder's proposals with respect to proposed Change Orders and
substitutions proposed by a Design/Builder and make recommendations to City. The
Project Representative has no authority to authorize changes in the Contract Documents
of any kind or to modify any deadlines for completion of Work specified in the Contract
Documents.
7. TIME FOR PERFORMANCE FOR CONSTRUCTION.
7.1 The Design/Builder shall commence performance of the construction
phase of the Work and shall diligently proceed with the performance of the construction
phase of the Work to completion, and agrees to complete the performance of the entire
Work within the number of calendar days shown on Exhibit A (the "Contract Times")
following Design/Builder's receipt of the applicable Notices to Proceed. If the
Design/Builder is delayed in the performance of the Work by fire or unavoidable
casualties not the fault of the Design/Builder or other causes beyond the
Design/Builder's control, then the "Substantial Completion Date" (defined as the date
occurring within the number of days equal to the Contract Time after Design/Builder's
receipt of the applicable Notice to Proceed), shall be extended for a period equal to the
length of such delay to the extent that such delay impacts an activity of the
Design/Builder that is a critical path activity and only if within ten (10) calendar days
after the Design/Builder knows or should have known of any such delay the
Design/Builder delivers to the City's Project Representative, a written request for
extension for such delay, and such request is approved by the City's Project
Representative, which approval shall not be unreasonably withheld by the City's Project
Representative. In case of a continuing cause of delay of a particular nature, the
Design/Builder shall be required to make only one such request.
17
7.2 The applicable Substantial Completion Date and the applicable Contract
Time take into full consideration the effect of inclement weather during the construction
period and such effect on both cost and time for completing the Work is accounted for
in the Contract Sum, and the Substantial Completion Date (as defined in Section 7.1).
The Substantial-Completion Date incorporates the Design/Builder's expectation that it
will experience a number of working days of weather delay during construction of the
Project. An extension of a Contract Time for weather delays may be claimed only for
delays caused by adverse weather which affects scheduled working hours on scheduled
work days (but excluding any legal holiday unless previously scheduled) and only after
the Design/Builder has previously been delayed by weather for at least the number of
anticipated working days of weather delays and then only to the extent of the actual
number of days' delay in those activities which are critical path activities. The
Design/Builder shall provide City with written notice of all delays claimed due to
weather, and such written notice shall identify the critical path activity(ies) affected and
shall be delivered within five (5) days of the delay. City shall determine whether
extension of the Contract Time is justified. Extension of time shall be the
Design/Builder's sole remedy for any such delay.
7.3 Delays that affect those activities not identified on the Project's critical
path shall not be considered for a Contract Time extension unless the delay shall have
been caused by acts constituting intentional interference by City or the City's Project
Representative, which shall include, but not be limited to, the failure of the City's
Project Representative to timely respond to approval requests of the Design/Builder's
Project Representative about the Design/Builder's performance of the Work, and then,
only to the extent that such acts continue after the Design/Builder has provided written
notice to City of such interference. City's exercise of any of its rights under Section 7,
regardless of the extent or number of such changes, or City's exercise of any of its
remedies of suspension of the Work, or requirement of correction or replacement of any
defective Work, or its strict adherence to the Contract Documents shall not under any
circumstances be construed as intentional interference with the Design/Builder's
performance of the Work.
7.4 Substantial Completion
7.4.1 When the Design/Builder considers that the Work, or portion of it which
the City's Project Representative agrees to accept separately, is substantially complete
the Design/Builder shall prepare and submit to the City's Project Representative a
Certificate of Substantial Completion (in the standard AIA form) along with a
comprehensive list of items to be completed or corrected. The Design/Builder shall
proceed promptly to complete and correct items on the list. Failure to include an item on
such list does not alter the responsibility of the Design/Builder to complete all Work in
accordance with the Contract Documents.
7.4.2 Project Close-out submittals required by the Contract documents for the
Work, or portion of it, shall be submitted by the Design/Builder at the time of the
request for the City's Project Representative inspection. The City's Project
18
Representative will review project closeout submittals with the City for content,
accuracy, and format. If the City's Project Representative disapproves or rejects any
project closeout submittal, it shall be returned to the Design/Builder for correction and
modification. The Design/Builder shall then submit the revised and corrected project
closeout submittals-to the City's Project Representative for review and approval. The
Design/Builder shall continue to revise and resubmit project closeout submittals until all
required submittals have been accepted by the City's Project Representative. The City's
Project Representative will forward approved project closeout submittals to the City
prior to the Fianl Completion. Corrections or modifications of Project closeout
submittals shall not be used as justification for a time extension.
7.4.3 Upon receipt of the Design/Builder's Request for Substantial Completion
Inspection, the City's Project Representative will make a preliminary inspection to
determine whether the Work or designated portion of it is ready for a Substantial
Completion Inspection.
7.4.4 If the City's Project Representative inspection discloses any item,
whether or not included on the Design/Bui]der's list, which is not in accordance with
the requirements of the Contract Documents and which would preclude beneficial
occupancy and would render the Work not Substantially Complete, the Design/Builder
shall correct such item upon receipt of a list provided to it by the City's Project
Representative. The Design/Builder shall then submit another request for inspection by
the City's Project Representative to determine the completion status of the Work or
designated portion of it.
7.5 The City's Project Representative may direct the Design/Builder to
expedite the Work by whatever means the Design/Builder may use, including, without
limitation, increasing manpower or working overtime to bring the Work back within the
then currently submitted and approved Progress Schedule. If the expediting of Work is
required due to reasons within the control or responsibility of the Design/Builder, then
the additional costs incurred shall not result in an increase in the Contract Sum.
7.6 Delays and Damages
7.6.1 If the Design/Builder shall neglect, fail, or refuse to complete the Work
by the Substantial Completion Date, subject to any proper extension granted by City,
then the Design/Builder agrees to pay to City, or to cause the Design/Builder's surety to
pay to City, Five Hundred $500.00 Dollars per day not as a penalty, but as liquidated
damages for the damages ("Liquidated Damages") that would be suffered by City as a
result of delay for each and every calendar day that the Design/Builder shall have failed
to complete the Work by the Substantial Completion Date. The amounts are fixed and
agreed upon by and between the Design/Builder and City because of the difficulty of
fixing and ascertaining the actual damages City would in such event sustain, and the
amount is agreed to be the amount of damages that City would sustain. The amount
may be retained by City from periodic pay estimates or from retainage, but if the
40 amount owing or retained is insufficient to fully pay City Liquidated Damages, the
19
Design/Builder agrees to pay, or cause the Design/Builder's surety to pay, the
insufficiency to City.
7.6.2 The Contract shall not be terminated nor._the. Design/Builder charged
• with liquidated damages because of any delays due to unforeseeable causes beyond the
fault or negligence of the Design/Builder, including, but not restricted to acts of God,
acts of Government, acts of the City, fires, floods, epidemics, strikes with which the
Design/Builder has no direct connections, and unusually severe weather (does not
include normal average number of days of rain which occur within the period of the
Contract time limit). The Design/Builder shall, within ten (10) days from the beginning
of such delay, notify the City's Project Representative in writing the causes of delay.
7.6.3 The Design/Builder shall take into account all contingent work which
has to be done by other parties, arising from any cause whatsoever, and shall not plead
want of knowledge of such contingent work as an excuse for delay in its work, or for its
nonperformance.
7.6.4 No damages, including costs for additional home office expenses and
extended job overhead, shall accrue to the Design/Builder for delay. Provisions of this
Contract concerning delays shall provide solely for extensions of time for the
acceptance of the Project.
8. CHANGE ORDERS.
8.1 From time to time, the City's Project Representative may authorize
changes in the Work, issue additional instructions, require additional Work or direct the
omission of Work previously ordered. Only those changes in the Work that are
approved on a Change Order in the form of Exhibit B and executed by an authorized
representative of City("Change Order"), shall be binding on City.
8.2 The City's Project Representative may order changes in the Work by
initiating a change order request ("Change Order Request"), setting forth in detail the
nature of the requested change. Upon receipt of a Change Order Request, the
Design/Builder shall prepare a statement setting forth in detail, with a suitable detailed
breakdown by trades and work classifications with respect to a change in the scope of
the construction and a detailed breakdown of the time and expenses related to the design
phase, the Design/Builder's estimate (the "Design/Builder's Estimate") of the changes
in the Contract Sum attributable to the changes set forth in such Change Order Request
and proposed adjustments, if any, to the Substantial Completion Date resulting from
such Change Order Request. If the City and the Design/Builder agree on a cost
("Agreed Cost"), a Change Order shall be processed by the City and the City's Project
Representative and delivered to the Design/Builder for signature. Design/Builder shall
not commence changes in the Work until it receives City's written Notice to Proceed
and the Change Order is executed. Agreement on any Change Order shall constitute a
final settlement on all items in it, including without limitation any adjustment in the
20
Contract Sum, the Substantial Completion Date, subject to performance of it and
payment for it pursuant to the terms of this Agreement and such Change Order. Work
provided by unit price may be increased or decreased in quantity as directed by City
approval, provided that the basis for adjustment of the Contract Sum shall be the unit
prices agreed upon by the City upon the date of this Agreement.
8.3 In the event the City's Project Representative and the Design/Builder
cannot agree on any adjustment in the Contract Sum, extensions to the Contract Time,
or adjustment to the Substantial Completion Date, the Design/Builder shall nevertheless
proceed to perform the Work required by City's Change Order Request upon receipt of
City's written Notice to Proceed. The Design/Builder shall keep separate records of all
costs and time required to perform the Work required by the Change Order Request,
and an equitable adjustment will be made upon agreement between the Design/Builder
and the City's Project Representative. The Design/Builder shall submit its time and
material costs that accrue as a result of the Change Order Request on a weekly basis. If
the City's Project Representative does not approve such submittals within seven (7)
days following submission, the Design/Builder may cease the work related to such
Change Order Request until the parties agree upon the terms and conditions of such
Change Order Request.
8.4 In the event that changes in the Work are required on an emergency basis
in order to protect the health and safety of the public, the Design/Builder shall proceed
at the direction of the City's Project Representative without a written Change Order
from City. The Design/Builder shall keep separate records of all costs and time
required to perform the Work. After review and approval by the City's Project
Representative, the Design/Builder shall invoice City based on a time and materials
basis. In the event that the work can be stopped without any further harm to the public
but additional Work is necessary, the Design/Builder shall deliver the Design/Builder's
Estimate to the City's Project Representative as soon as practical and the requirements
of Sections 8.2 or 8.3 as applicable shall be met before the Design/Builder resumes the
changes to the Work.
8.5 It is understood and agreed that refinement and detailing will be
accomplished from time to time with respect to the Plans and Specifications No
adjustment in the Contract Sum or the Substantial Completion Date shall be made
unless (a) such refinement or detailing results in material changes in the scope, quality,
function or intent of the Plans and Specifications, and Addenda not reasonably inferable
or expected by a Design/Builder of the Design/Builder's experience and expertise, (b)
the Design/Builder advises the City's Project Representative in writing within seven (7)
calendar days of the Design/Builder's receipt of the refinements and details that an
adjustment is required, and (c) the City's Project Representative agrees to the
adjustment.
8.6 Should the Design/Builder or any subcontractors commence with work
without making a claim in writing for extra time or compensation, it will be construed
as an acceptance and agreement by the Design/Builder that any such work is required
21
under the contract and no future claim for such extras will be considered or allowed by
the City.
9. PAYMENTS.
9.1 In full consideration of the full and complete performance of the Work
and all other obligations of the Design/Builder, City shall pay to the Design/Builder the
Contract Sum for the Design Services and Construction Work, respectively, subject to
additions and deductions as provided in this Agreement. The provisions of this Section
8 apply to payments for both the Design Services and Construction Work.
9.2 On or before the first day of each month during the performance of the
Work, or such other day of the month agreed to by the parties, the Design/Builder shall
submit to the City's Project Representative for approval an original Request for
Payment in the form attached as Exhibit C Submission of any original certificates,
waivers of liens and claims, or other documents required in this Agreement to be
submitted, is a condition precedent to City's obligation to pay Design/Builder. Fifteen
(15) days prior to the first Request for Payment, the Design/Builder shall prepare, and
submit to the City's Project Representative for its approval a schedule of values
allocating for the various portions of the Work (the "Schedule of Values"). The
Schedule of Values approved by the City's Project Representative shall be used as a
basis for reviewing the Design/B ui]der's Request for Payment. The Request for
Payment shall show a complete breakdown of(a) the Cost of the Work for all requested
costs for planning, design, engineering and construction of the Project components
including all labor and Materials, (b) the actual portion of the Work completed and the
amount due, (c) the share of the Cost of the Work allocated to that portion of the Work
as set forth in Schedule of Values, (d) in the case of Construction Work, the percentage
of the Contract Sum attributable to the actual portion of the Construction Work
completed or, in the case of Design Services, equal monthly installments allocated for
completion of Design Services, (e) an itemization of all disbursements to
Subconsultants and Subcontractors, materialmen, vendors and miscellaneous suppliers
and shall be accompanied by originals of vendors' original invoices, certified payrolls
and payroll registers (when requested by the City's Project Representative), and (f) such
supporting evidence as may be required by the City's Project Representative including,
but not limited to, the documents set forth in Section 9.9 below, all in a form and
substance acceptable to the City's Project Representative. The Request for Payment
shall constitute a representation to the City's Project Representative that (i) the Work
has progressed to the point indicated, (ii) the quality of the Work is in accordance with
the Plans and Specifications, and (iii) all monies previously reimbursed by the City to
the Design/Builder have been disbursed to the appropriate Subconsultants,
Subcontractors, materialmen, vendors and miscellaneous suppliers based upon the prior
Request for Payment. Provided that the Design/Builder submits all required
documentation as required in this Section, City shall tender all payments to the
Design/Builder within thirty (30) calendar days of receipt of the Request for Payment or
sooner if practicable less any retainage required by Section 9.5 below and minus
amounts, if any, for which City has withheld funds pursuant to its rights under any
22
portion of the Contract Documents. Inadequately supported charges are subject to
disallowance, however, City will make payments of the balance of the Request for
Payment when such amounts are approved.
9.3 The City and the City Project Representative shall review each such
Request for Payment and may make such exceptions as the City reasonably deems
necessary or appropriate under the state of circumstances then existing. In no event
shall City be required to make payment for items to which City reasonably takes
exception.
9.4 City shall make payment to the Design/Builder in the amount approved,
subject to the provisions of Section 9.2. The payment of any Request for Payment by
City, including the Final Request, does not constitute approval or acceptance by City of
any item of the Work in such Request for Payment, nor shall it be construed as a waiver
of any of City's rights under this Agreement or at law or in equity.
9.5 The Design/Builder agrees that ten percent (10%) of the amount due for
Work as set forth in each Request for Payment where such Work is performed under a
Subconsultant Contract or Subcontractor Contract that authorizes Design/Builder to hold
retainage shall be retained by City until Final Payment (as defined in Section 9.6). For
portions of the Work where the Design/Builder pays one hundred percent (100%) of
labor and agreed upon burden or an invoice from a Subcontractor, Subconsultant,
vendor, materialmen, or supplier, such retainage shall not be required. The foregoing
shall not apply to self-performed Work and the Contract Sum from which ten percent
(10%) shall be retained by the City until Final Payment. If the Design/Builder has
furnished Bonds in accordance with Section 13.1, and the Design/Builder is performing
satisfactorily when the Design/Builder obtains and delivers to the City the Temporary
Certificate of Occupancy or the Certificate of Occupancy, City may elect to reduce the
amount retained. All requests for retainage reductions must be made in writing prior to
invoicing for same. City may, but shall not be obligated to, request consent of the
Design/Builder's surety to such reduction. The Design/Builder may also apply for a
release of retainage for Subcontractors, vendors, materialmen, and suppliers for portions
of the Work that have been one hundred percent (100%) complete for thirty (30) days or
more. In this case, the City has no obligation to release such retainage but may do so in
its sole and absolute discretion. However, the Design/Builder shall remain liable for
Subcontractor work and for any unpaid laborers, vendors, materialmen, suppliers or
Subcontractors in the event it is later discovered that Work is deficient or that any
laborers, vendors, materialmen, suppliers, or Subcontractors did not receive payments
due them on the Project.
9.6 Within thirty (30) days after Final Completion of the Work and
acceptance by City or as soon thereafter as possible, the Design/Builder shall submit a
final request for payment ("Final Request"), which shall set forth all amounts due and
remaining unpaid to the Design/Builder (including the unpaid portion of the retainage)
and upon approval by the City's Project Representative, City shall pay to the
Design/Builder the amount due under such Final Request ("Final Payment") within
23
thirty (30) days of the satisfaction of requirements for Final Payment as set forth in
Section 9.7 below.
9.7. The Final Request shall not be made until the Design/Builder delivers to
the City complete original releases of all liens and claims signed by all Subcontractors,
materialmen, suppliers, and vendors on the form Certificate of Subcontractor & Final
Waiver of Liens and Claims attached as Exhibit D and an affidavit that so far as the
Design/Builder has knowledge or information, the releases include and cover all
Materials and Work for which a lien or claim could be filed. The Design/Builder may,
if any Subcontractor, materialman, supplier or vendor refuses to furnish the required
Final Waiver of Lien, furnish a bond satisfactory to City's Project Representative to
defend and indemnify City and any other property owner, person or entity City may be
required to indemnify against any lien or claim. In addition, and as a condition
precedent to City's obligations to make Final Payment, the Design/Builder shall execute
and deliver to the City's Project Representative (a) a Certificate of Design/Builder &
Final Waiver of Liens and Claims of the Design/Builder on the form attached as Exhibit
D and (b) the written consent of Design/Builder's surety. Notwithstanding the
foregoing, provided the Design/Builder's surety provides the City with its unqualified
consent to Final Payment, the following method for Final Payment shall be followed.
Within thirty (30) days following the City's approval of the Final Request, City shall
pay the Design/Builder the amount due under such Final Request less (i) the remaining
portion of the Contract Sum, (ii) any retainage of Contract Sum held by City, and (iii)
cost savings, if any. Following delivery by Design/Builder to the City's Project
Representative of the original releases of all liens and claims signed by all
Subcontractors, materialmen, suppliers and vendors, as well as the documents set forth
in subsections (a) and (b) above, the City shall pay the Design/Builder the remaining
amounts in the Final Request for items (i), (ii), and (iii) above.
9.8 Any provision of this Agreement to the contrary notwithstanding, City
shall not be obligated to make full payment to the Design/Builder if any one or more of
the following conditions exists:
a. the Design/Builder is in default of any of its obligations under any of the
Contract Documents or is in default of any other obligation owed by
Design/Builder to City under this Agreement or any other agreement or
transaction between the Design/Builder and City in connection with the
Project; or
b. any part of such payment is attributable to Work which is defective or
not performed in accordance with the Contract Documents; or
C. the Design/Builder has failed to make payments within ten (10) days of
receipt of payment from City to any Subcontractor or for Material or
labor used in the Work for which City has made payment to the
Design/Builder; or
24
d. if City, in its good faith judgment, determines that the portion of the
Contract Sum then remaining unpaid will not be sufficient to complete
the Work in accordance with the Contract Documents whereupon no
additional payments will be due the Design/Builder unless and until the
Design/Builder, at its sole cost, performs a sufficient portion of the Work
so that such portion of the Contract Sum then remaining unpaid is
determined by City to be sufficient to so complete the Work.
The City's Project Representative, using reasonable discretion, shall determine
the value associated with such conditions and shall act to reduce Design/Builder's
payment by the determined amount.
9.9 Design/Builder shall use the sums paid to it pursuant to this Article
solely for the purpose of performance of the Work and the construction, furnishing, and
equipping of the Work in accordance with the Plans, Specifications, and Addenda and
payment of bills incurred by the Design/Builder in performance of the Work. With the
submission of each Request for Payment the Design/Builder shall furnish to the City's
Project Representative a Certificate of Design/Builder & Partial Waiver of Lien on the
form attached as Exhibit F and a certified statement accounting for the disbursement of
funds received from City. Such statement shall itemize all disbursements to
Subconsultants, Subcontractors, materialmen, and vendors, and if required by City,
shall be accompanied by copies of subcontract payment vouchers, vendors' invoices,
payrolls and other data substantiating actual expenditures, as well as a Certificate of
Subcontractor & Partial Waiver of Lien, from each Subcontractor, materialman, or
vendor, on the form attached as Exhibit F. As a condition precedent to the receipt of
Final Payment, all such parties shall submit a full and final waiver and release of
mechanic's lien rights for all sums due under their respective Subcontractor Contracts,
purchase orders or other agreements. However, no provision in this Agreement shall be
construed to require the City's Project Representative to see to the proper disposition or
application of the monies so advanced to the Design/Builder, except to the extent
provided in Section 9.7.
9.10 Design/Builder shall promptly pay all bills for labor and material
performed and furnished by its Subconsultants, Subcontractors, suppliers, vendors, and
materialmen, in connection with the construction, furnishing and equipping of the
Project and the performance of the Work.
9.11 The term "Cost of the Work" shall mean those actual costs necessarily
incurred and paid or payable by the Design/Builder in connection with the proper
performance of all the Work (including the Design Services and the Construction Work)
excluding those items set forth in Section 9.12, and shall include the following items:
9.11.1 Wages paid for labor in the direct employ of the Design/Builder
in the performance of the Work at the Project location including actual effective FICA,
state and federal unemployment taxes, group insurance, Workers' Compensation
insurance, and benefits required by law or collective bargaining agreements, and for
25
personnel not covered by collective bargaining agreements, customary benefits such as
sick leave, medical and health benefits, holidays, vacations, and pensions provided such
costs are based on the actual wages and salaries of such employees. Any overtime
premium or shift differential expense to be incurred by the Design/Builder shall require
the City's advance written approval if the incremental cost of the overtime premium or
shift differential will be considered a part of Cost of the Work. Overtime premium will
not be considered part of the Cost of the Work unless the individual has worked forty
(40) hours during that same pay period (not to exceed one (1) week) on the Project or
the individual worked on the weekend at the City's request. Overtime wages paid to
salaried personnel (if approved in advance in writing by the City's Project
Representative) will be limited to the actual rate of overtime paid to the individual. No
payroll charges or other reimbursements for overtime hours worked on the Project will
be allowed if the individual is not paid for the overtime work. Payroll labor charges
shall list individual employee names, employee numbers (Le. social security numbers),
titles/classifications, actual hourly base rates, and included benefits. Payroll labor
charges shall be compiled on a weekly basis, substantiated by a certified payroll
register. Although the Design/Builder will submit its billings for payroll and benefits
on a percentage basis, prior to final payment the Design/Builder shall adjust its billing
to reflect the lower of actual or effective payroll tax and insurance rates.
9.11.2 Salaries and actual benefits (as described in Section 9.11.1
above) of the Design/Builder's supervisory or administrative personnel stationed at a
field office, or with City's prior written agreement at the Design/Builder's home office,
for the Work and employees engaged, at shops or on the road, in expediting the
inspection, production or transportation of the material or equipment for the Work. The
number of employees in these classifications, and the rates of pay, shall be subject to
prior written approval of the City's Project Representative. All associated labor charges
must be detailed and substantiated by certified payrolls.
9.11.3 If approved in advance in writing by the City's Project
Representative, reasonable transportation, traveling and lodging expenses of
representatives of the Design/Builder incurred in the discharge of duties related to the
Work.
9.11.4 The cost (including transportation, storage, operating and normal
maintenance costs) of all materials, equipment, temporary structures which house
equipment, materials, and supplies purchased or rented for use on the Project. For
qualified tools and equipment to be rented by the Design/Builder from its own stock or
the stock of its affiliates, subsidiaries or related parties (collectively, "Design/Builder's
Stock"), the Design/Builder shall submit to the City's Project Representative a detailed
listing of such tools and equipment, together with the applicable rental rates (on an
hourly, daily, weekly and monthly basis), the estimated total rentals (based on the most
economical rental period), the proposed use of the tools and equipment, the original
purchase price and the date of purchase and the estimated current fair market value;
provided, however, the parties acknowledge and agree that rentals from
Design/Builder's Stock is not expected. No rental costs for tools and equipment rented
26
from Design/Builder's Stock shall be included.in the Cost of the Work unless the City's
Project Representative is provided with the foregoing information and City gives
advance written approval of such rental. For equipment and tools rented from
Design/Builder's Stock, the Design/Builder shall maintain daily equipment usage
reports noting the hours and usage, as well as idle and standby time. Such equipment
usage reports shall be used to determine whether hourly, daily, weekly or monthly rates
shall apply, and Design/Bui]der's billings shall be based upon the most economical
rates to City. Rental rates for vehicles shall include insurance, and shall not exceed
$650 (Six Hundred and Fifty Dollars) per month for vehicles three years or more of age.
Rental rates for equipment shall not exceed the current market rental rates from local
third party equipment rental companies.
The Design/Builder shall maintain and submit to the City's Project
Representative on a monthly basis a detailed inventory of all rented equipment with a
market value of$500 (Five Hundred Dollars) or more used on the Project, including
equipment owned by the Design/Builder, if any. For each piece of such rented
equipment, such inventory shall contain: (a) the rental rate for the piece of equipment,
(b) the anticipated duration of the rental period, and (c) the total anticipated rental to be
paid for the equipment. Based on such inventory, the City's Project Representative
shall have the option to purchase such equipment with any increase between the
anticipated rental rate and the purchase price added to the Contract Sum for
Construction Work by Change Order.
Equipment rented or supplied by the Design/Builder must be initially rented or
supplied in good working condition. Capital improvements and overhauls are not
chargeable to City. Daily, weekly or monthly rental rates are to be billed when they
result in cost savings to City. City reserves the right to dispose of all such materials,
equipment, temporary structures, tools and supplies which shall have been purchased,
when no longer required for the Work.
9.11.5 Amounts due under all Subcontractor Contracts and
Subconsultant Contracts made in accordance with the provisions of the Contract
Documents. All contracts issued to Subcontractors and Subconsultants must be let in
accordance with the Contract Documents. Any deviations must have prior written
approval from the City's Project Representative.
9.11.6 The cost of telephone, postage, photographs, blueprints, office
supplies, first aid supplies and related miscellaneous costs reasonably incurred in direct
support of the Work at the Project location.
9.11.7 Premiums (Net) on bonds and insurance, if any, that the
Design/Builder is obligated to secure and maintain under the terms of the Contract
Documents and such other insurance and bonds as may be required, subject to the
written approval of the City's Project Representative, including bonds for Subcontractor
Contracts in excess of Fifty Thousand ($50,000.00) Dollars. Premiums paid as part of
27
the Cost of Work shall be net of trade discounts, volume discounts, dividends, and other
adjustments.
9.11.8 The cost of obtaining and using all utility services required for
the Work.
9.11.9 The cost of all fees and assessments for any building permit and
for other permits, licenses, and inspections, which the Design/Builder is required by the
Contract Documents to pay.
9.11.10 The cost of prompt removal of all of the Design/Builder's
debris. All Subcontractor Contracts shall require the prompt removal of all debris
created by Subcontractor activities and the Design/Builder shall exercise its best efforts
to enforce such requirements or to effect an appropriate back charge to those
Subcontractors who fail to meet their obligations in this regard.
9.11.11 The cost and expenses, actually sustained by the Design/Bui]der
in connection with the Work, of protecting and repairing adjoining property, if required
(the City's Project Representative prior approval for repairs must be obtained except in
emergencies), and of settlements for same made with the written consent of City, except
to the extent that any such cost or expense is due to the failure of the Design/Builder to
comply with the requirements of the Contract Documents with respect to insurance, or
due to, the failure of any officer of the Design/Builder or of any of its representatives
having supervision or direction of the Work to exercise good faith or the highest
standard of care normally exercised in the conduct of the business of a general
Design/Builder experienced in the performance of work of magnitude, complexity and
type encompassed by the Contract Documents, in any of which events any such
expenses shall not be included in the Cost of the Work.
9.11.12 Federal, state, municipal, sales, use . and other taxes, as
applicable to the Project, all with respect to services performed or materials furnished
for the Work, it being understood that none of the foregoing includes federal, state or
local income or franchise taxes.
9.11.13 All reasonable costs and expenditures necessary for the
operation of a Project job site office, including cost of field computer services (quantity
and rates are subject to the City's Project Representative prior written approval),
including job site terminal (ownership to City), for purposes of field payroll preparation
and control and such progress photos as required by City; copies of all such photos to be
dated, identified and furnished directly to City.
9.11.14 The cost of secured off-site storage space or facilities, which
have been approved by the City's Project Representative. For all materials listed off-
site, City shall be listed as owner with a Bill of Sale issued to City for these items.
28
9.11.15 Any other expenses or charges incurred, with the prior written
approval of the City's Project Representative, in the performance of the Work.
9.11.16 All cash and trade discounts, credits for early payment if funded
by the City, rebates, volume discounts, reduced payments or other benefits accruing to
the Design/Builder in connection with the purchase or rental of materials, equipment,
services or other goods required under this Agreement shall accrue to City.
9.11.17 Legal fees and expenses required for the prosecution of the
Work provided the same are approved in writing by the City prior to being incurred.
The foregoing specifically excludes legal fees and costs incurred in preparing and
negotiating this Agreement and any Change Orders as well as any legal fees and costs
relative to any matters between the Design/Builder and City.
9.11.18 Costs of correction of the Work under Section 28.1 below, if the
costs are not attributable to the fault or negligence of the Design/Builder and its
Subcontractors, but this inclusion shall not imply any responsibility of the
Design/Builder or its Subcontractors to correct any Work after expiration of the
limitation period provided in Section 28.1 below.
9.12 The Cost of the Work shall not include the following:
9.12.1 The services and related expenses, except as otherwise provided
in Section 9.11.1 above, of any officers or general office supervisory personnel of the
Design/Builder and of personnel in the Design/Builder's personnel, legal, advertising,
data processing, scheduling, labor relations, insurance and tax departments and all other
costs of doing business (including, but not limited to, copying, fax and computer
charges), services and related expenses required to maintain and operate the
Design/Bui]der's general offices and any established branch offices, other than a field
office for the Work.
9.12.2 The services and related expenses of the Design/Builder's
purchasing, secretarial, estimating and accounting departments and clerical staff at the
Design/Builder's general offices or any established branch offices. These services shall
include all costs associated with computer equipment and related expenses, copying
equipment, fax charges (either by page or machine costs), CADD equipment (unless
approved in writing by the City's Project Representative prior to invoicing for same),
signage, professional association costs (including, but not limited to, AGC/ABC Fees),
bonding charges (including, but not limited to, Fidelity Bonds on office and job site
personnel), and other related expenses.
9.12.3 The use of capital including interest employed for the Work.
9.12.4 Amounts required to be paid by the Design/Builder for federal,
• state or local income or franchise taxes.
29
9.12.5 Except as set forth in Section 9.11.18 above, costs due to the
negligence of the Design/Builder, any Subconsultant or Subcontractor or supplier
employed by the Design/Builder 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 and equipment wrongfully supplied,
or making good any damage to property.
9.12.6 Costs in excess of the sum of the Contract Sum for the design and
construction of the Work.
9.12.7 Entertainment and meal expenses and charges of a personal
nature.
9.12.8 Travel charges unless approved in advance of trip in writing by
City. If travel is authorized the charges are to be billed as a separate line item listing
employee name, purpose of trip, dates traveled and the daily cost of individual items for
which reimbursement is sought.
9.12.9 Bonuses, profit-sharing or other special labor charges unless
approved in writing by the City's Project Representative prior to being incurred.
9.12.10 Except as set forth in Section 9.11.7, any legal fees and
accounting fees.
9.12.11 All losses resultingfrom lost damaged,
or stolen tools and
equipment.
9.12.12 Any cost not specified in Section 9.11 above.
10. SUBCONTRACTOR AND SUBCONSULTANT CONTRACTS AND
PURCHASE ORDERS.
10.1 Five (5) calendar days after execution of the Agreement, the
Design/Builder shall prepare and submit for the City's Project Representative approval
the names of the persons or entities proposed by the Design/Builder to furnish materials,
equipment, or services for each portion of the Work. The Design/Builder shall contract
solely in its own name and behalf, and not in the name or behalf of City with each
selected Subcontractor or Subconsultant. The Design/Builder's form of Subcontractor
Contract and Subconsultant Contract shall be subject to approval of the City's Project
Representative, and once approved may be utilized by Design/Builder without further
approval by the City's Project Representative provided that no substantial deviations are
made to the approved form of Subcontractor Contract and Subconsultant Contract. At a
minimum, the Subcontractor Contract and Subconsultant Contract shall provide that the
Subcontractor or Subconsultant, as applicable, shall perform its portion of the Work in
accordance with all applicable provisions of this Agreement and the other Contract
Documents, that Subcontractor or Subconsultant is bound to the Design/Builder to the
30
same extent as the Design/Builder is bound to City, shall provide for a ten percent (10%)
retainage for labor and materials, shall provide for termination of the Subcontractor
Contract and Subconsultant Contract by the Design/Builder in the same manner and
method as provided in Section 39 of this Agreement, and shall further provide that, in the
event this Agreement is terminated for any reason, that the Subcontractor or
Subconsultant shall, at City's option, perform its Subcontract Contract or Subconsultant
Contract for City without additional or increased cost, provided the Subcontractor or
Subconsultant is paid in accordance with its Subcontractor Contract or Subconsultant
Contract. The Design/Builder shall sign and cause each Subcontractor and
Subconsultant to sign an Assignment of Rights Agreement in the form attached as
Exhibit H (any cost for execution of such assignment will be borne by the
Design/Builder and included in the Contract Sum). Nothing contained in this Agreement
shall, however, create any obligation on City to assume any Subcontractor Contract or
Subconsultant Contract or make any payment to any Subcontractor or Subconsultant
unless City chooses to request Subcontractor or Subconsultant to perform pursuant to
this Section 10.1 or as otherwise provided in this Agreement, and nothing contained in
this Agreement shall create any contractual relationship between City and any
Subcontractor or Subconsultant.
10.2 The Design/Builder shall not contract with any Subcontractor,
Subconsultant, materialman, vendor, or supplier to whom or to which the City's Project
Representative has made reasonable objection or with whom or with which the City
could not lawfully enter into a contract.
10.3 All Subcontractor Contracts and Subconsultant
b onsultant Contracts shall, so far as
practicable, contain unit prices and any other feasible formula for use in determination
of the cost of changes in the Work.
11. INSURANCE.
11.1 The Contractor shall not commence work under this Agreement until
Contractor has obtained all insurance required under Article ("Coverage") and such
Coverage has been approved by the Risk Manager of the City. The Contractor shall not
allow any subcontractor to commence work on any subcontract until the subcontractor,
as provided in this Agreement and all Coverage required of any subcontractor, have
been approved by City. In addition, Contractor shall be responsible for any policy
deductibles and self-insured retentions.
11.2 Contractor shall file Certificates of Insurance with the City, reflecting
evidence of the Coverage. They shall be filed with the City Risk Manager within ten
(10) days' of the date first above written. These Certificates shall contain a provision
that Coverage afforded under these policies will not be canceled until at least thirty (30)
days prior written notice has been given to the City. Policies for Coverage shall be
issued by companies authorized to do business under the laws of the State of Florida
and any such companies' financial ratings must be no less than "A" in the latest edition
of the "BEST'S KEY RATING GUIDE", published by A.M. Best Guide.
31
11.3 Coverage shall be in force until all work required to be performed
under the terms of this Agreement is satisfactorily completed as evidenced by the
formal acceptance by the City. In the event insurance certificates provided to City
indicate that the insurance shall terminate and lapse during the period of this
Agreement, then in that event, the Contractor shall furnish, at least thirty(30) days prior
to the expiration of the date of such insurance, a renewed certificate of insurance as
proof that equal and like Coverage for the balance of the period of the Agreement and
any extension of it is in effect. THE CONTRACTOR AND ANY
SUBCONTRACTOR SHALL NOT PERFORM OR CONTINUE TO WORK
PURSUANT TO THIS AGREEMENT UNLESS ALL COVERAGE REMAINS IN
FULL FORCE AND EFFECT, SUCH DELAY BEING SUBJECT TO ANY
APPLICABLE PROVISIONS DESCRIBED IN THIS AGREEMENT.
11.4 REQUIRED INSURANCE COVERAGE.
11.4.1 General Liability Insurance includes products, completed
operations and blanket contractual liability with bodily injury limits of not less than
$1,000,000.00 per occurrence combined single limit for bodily injury and property
damage. City shall be named as an "additional named insured" under the general
liability policy including product liability the "additional named insured" clause shall be
a rider or endorsement issued by the insurance home office, not by a local agent.
11.4.2 Workers' Compensation insurance shall be maintained by
Contractor during the life of this Agreement to comply with statutory limits for all
employees, and in the case any work is sublet, as otherwise addressed in this
Agreement, the Contractor shall require any subcontractors similarly to provide
Workers' Compensation Insurance for all of the latter's employees unless such
employees are covered by the protection afforded by the Contractor. The Contractor
and its subcontractors shall maintain during the life of this policy Employers' Liability
Insurance. The following limits must be maintained: $500,000.00 with not less than
$100,000.00 per occurrence.
11.4.3 Comprehensive Auto Liability insurance with limits not less
than $500,000.00 per occurrence for bodily injury and property damage. This coverage
shall include owned, hired and non-owned vehicles.
The Contractor shall hold the City, its agents and employees, harmless on
account of claims for damages to persons, property or premises arising out of the
operations to complete the Project. The City reserves the right to require Contractor to
provide and pay for any other insurance coverage City deems necessary depending upon
the possible exposure to liability.
32
12. INDEMNITY.
•
12.1 Design-Builder shall indemnify and hold harmless City and the City's Project
Representative, its officers and employees, from liabilities, damages, losses, and costs,
including, but not limited to reasonable attorneys' fees, to the extent caused by the negligence,
recklessness or intentional wrongful misconduct of Design/Builder and persons employed or
utilized by Design/Builder in the performance of this Agreement, including any Subconsultant
and Subcontractor. As specified by Section 725.06(3), Florida Statutes, this Agreement does
not require the Design/Builder to indemnify, defend or hold harmless City and the City's
Project Representative, its employees, officers, directors, or agents from "any" liability,
damage, loss, claim, action, or proceeding. The indemnification shall survive the term of this
Agreement.
12.2 To the extent considered necessary by City and the City's Project
Representative, any sums due Design/Builder under this Agreement may be retained by City
or the City's Project Representative until all of City's claims for indemnification pursuant to
this Agreement have been settled or otherwise resolved, and any amount withheld shall not be
subject to payment of interest by City.
12.3 To the extent this indemnification clause does not comply with Chapter 725,
Florida Statutes, this provision and all aspects of the Contract Documents shall be interpreted
as the parties' intention for the indemnification provisions and Contract Documents to
comply with Chapter 725, Florida Statutes, as it may be amended from time to time.
13. BONDS.
13.1 Pursuant to and in accordance with Section 255.05, Florida Statutes, the
Design/Builder shall obtain or cause to be obtained and thereafter at all times during the
performance of the Construction Work maintain a Public Construction Bond (see Exhibit 5,
attached to the RFP for this Project) as specified in the statute mentioned above or a separate
performance bond (see Exhibit I) and labor and material payment bond (see Exhibit J) for the
Construction Work (collectively referred to as the "Bonds") each in an amount equal to one
hundred percent (100%) of the Contract Sum in form satisfactory to the City Attorney. The
surety providing such Bonds must be licensed, authorized and admitted to do business in the
State of Florida and must be listed in the Federal Register (Dept. of Treasury, Circular 570).
The cost of the premiums for such Bonds is included in the Contract Sum. Within ten (10)
days of issuance, Design/Builder shall record all bonds required by the Agreement in the
Public Records of Broward County.
13.2 Prior to performing any portion of the Construction Work, the Design/Builder
shall deliver to City the bonds required to be provided by Design/Builder as set forth in
Section 13.1.
33
14. INDEPENDENT DESIGN/BUILDER. In performing its obligations under this
Agreement, the Design/Builder shall be deemed an independent Design/Builder and not an
agent or employee of City. The Design/Builder shall be solely responsible for and have
control over construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under this Agreement, unless the Contract Documents
give other specific instructions concerning these matters.
15. INSPECTIONS AND AUDIT.
15.1 The Design/Builder represents that it has inspected the Project Location and is
satisfied as to its condition and that the Contract Sum is just and reasonable compensation for
all Work, including all foreseen or foreseeable risks, hazards, and difficulties in connection
with such Work.
15.2 City and the City's Project Representative at all times shall have access to the
Work for inspection, but shall not be obligated to conduct any such inspection other than as
required by law. The Design/Builder shall provide proper and safe facilities for such access
and inspection by City and the City's Project Representative. If any of the Work is required
to be inspected or approved by any public authority, the Design/Builder shall cause such
inspection or approval to be performed.
15.3 No inspection performed or failed to be performed by City, the City's Project
Representative, or both shall be a waiver of any of the Design/Builder's obligations or be
construed as an approval or acceptance by City of the Work or any part of it.
15.4 To ascertain if the Scope of Work as detailed under this Agreement has been
performed, City shall have access to the Work and the right to audit all of the
Design/Builder's major Subcontractors and major Subconsultants' books, records,
correspondence, instructions, drawings, receipts, payment records, vouchers and memoranda
relating to the Work, and the Design/Builder and all major Subcontractors and major
Subconsultants shall preserve all such records and supporting documentation for a period of
six (6) years after the Final Payment. The Design/Builder further grants to City the authority
to enter its premises for the purpose of inspection of such records and supporting
documentation or, at the Design/Builder's option, Design/Builder may make such records and
supporting documentation available to City at a location satisfactory to the City's Project
Representative. For purposes of this Agreement, a major Subcontractor or major
Subconsultant is a Subcontractor or Subconsultant that performs more than ten percent (10%)
of the Design Services or Construction Work, as applicable.
15.5 Although the Design/Builder and the other parties are required to maintain
records, as set forth in Section 15.4, for a period of six (6) years from the date of Final
Payment under this Agreement, City will audit Design/Builder's and the other parties'
records for purpose of adjustment to Design/Builder's payments under this Agreement, if at
all, within three (3) years after Final Payment under this Agreement.
34
• 16. AS-BUILT PLANS AND SPECIFICATIONS. Concurrent with the Final
Request for Payment, the Design/Builder shall furnish final as-built Plans and Specifications
(including surveys) to the City's Project Representative in a format acceptable to the City's
Project Representative, showing the exact locations of all structures and water, sewer, gas,
fuel, telephone, security, and electric lines and mains and of all easements for such utilities
then existing. Such as-built Plans and Specifications and surveys shall be prepared by, as
applicable, a licensed architect or surveyor who shall certify that the Work is installed and
erected entirely upon the Project Location and within the building restriction lines, if any, and
does not overhang or encroach upon any easement or right-of-way of others.
17. NO LIENS.
17.1 Design/Builder acknowledges and agrees that the Location is owned by the
City and is therefore excluded from the definition of"real property" upon which liens may be
placed as set forth in Section 713.01(24), Florida Statutes. Design/Builder further
acknowledges and agrees that the Work to be performed under this Agreement is for the
construction of public buildings or structures and that the Design/Builder shall comply with
the requirements of Section 255.05, Florida Statues, including but not limited to, the
provision of bonds and payment of claims. The Design/Builder waives, releases, and
relinquishes any right to claim or file a mechanic's or materialmen's lien against the Work or
any portion of it and the Project Location including, but not limited to, any rights the
Design/Builder may have under Chapter 713, Florida Statutes. This waiver and
• relinquishment of Design/Bui]der's rights to claim a mechanic's lien is made for good and
valuable consideration and in recognition that City would not enter into this Agreement
without such waiver and relinquishment. The Design/Builder shall include a provision
substantially similar to this Section 17.1 in each of its Subcontractor Contracts and purchase
orders, requiring Subcontractors, materialmen, vendors and suppliers to waive any claim or
entitlement to a mechanic's or materialmen's lien on or against the Project Location and to
look solely to the credit of the Design/Builder or its surety for payment of any sums due on
the Project.
17.2 The Design/Builder shall not voluntarily permit any laborer's, materialmen's,
mechanic's, or other similar lien to be filed or otherwise imposed on any part of the Work or
the City's property. If any laborer's, materialmen's, mechanic's, or other similar lien or
claim is filed and if the Design/Builder does not cause such lien to be released and discharged
forthwith, or file a bond in lieu thereof, City shall have the right to pay all sums necessary to
obtain such release and discharge and deduct all amounts so paid from the next payment due
the Design/Builder under this Agreement. If any such lien is filed or otherwise imposed, at
the request of City, the Design/Builder shall cause such lien to be released and otherwise
discharged. The Design/Builder indemnifies and holds harmless City from all claims, losses,
demands, causes of action, and expenses including attorneys' fees, or suits of whatever nature
arising out of any such lien.
18. TITLE TO WORK. Immediately upon delivery and payment by the City to
Design/Builder or supplier, as applicable, of Materials to the Project Location or the
performance of any part of the Work, as between the Design/Builder and City, title to them
35
shall vest in City; provided, however, the vesting of such title shall not impose any
obligations on City or relieve the Design/Builder from any of its obligations under this
Agreement.
19. WORK IN PROGRESS. The Design/Builder shall protect and prevent damage to
all phases of the Work, and any existing facilities or improvements, including but not limited
to protection from damage by the elements, theft, or vandalism. During the course of the
Construction Work, the Design/Builder shall remain responsible for the risk of loss of the
Work and shall promptly remedy, repair and replace all damage and loss (other than damage
or loss insured under insurance required by the Contract Documents) to the Work caused in
whole or in part by the Design/Builder, a Subcontractor, or anyone directly or indirectly
employed or controlled by any of them, or by anyone for whose acts they may be liable and
for which the Design/Builder is responsible, except to the extent such damage or loss is
attributable to the negligence of the City or anyone directly or indirectly employed by the
City, or by anyone for whose acts the City may be liable, and not attributable to the fault or
negligence of the Design Builder.
20. HAZARDOUS SUBSTANCES.
20.1 The Design/Builder agrees that it shall not transport to, use, generate, store,
dispose of, or install at the Project Location any Hazardous Substance, as defined in Section
20.4, except in accordance with applicable Environmental Laws, as defined below in Section
20.4. Further, in performing the Work, the Design/Builder shall not cause any release of
hazardous substances into, or contamination of, the environment, including the soil, the
atmosphere, any watercourse or ground water, except in accordance with applicable
Environmental Laws. In the event the Design/Builder engages in any of the activities
prohibited in this Section 20.1, to the fullest extent permitted by law, the Design/Builder
indemnifies and holds harmless City and its officers, agents and employees from and against
any and all claims, damages, losses, causes of action, suits and liabilities of every kind,
including but not limited to expenses of litigation, court costs, punitive damages and
attorneys' fees, arising out of, incidental to or resulting from the activities prohibited in this
Section 20.1 (collectively "Environmental Claims"); provided, however, the Design/Builder
shall not be responsible for any Environmental Claims arising .from Hazardous Substances
existing at a Project Location as of the date of this Agreement except to the extent the
Environmental Claims result from the acts or omissions of Design/Builder or
Design/Builder's failure to comply with the requirements of Sections 20.1 and 20.2.
20.2 In the event the Design/Builder encounters on the Project Location any
Hazardous Substance, or what the Design/Builder reasonably believes to be a Hazardous
Substance, and which is being introduced to the Work, or exists on Project Location, in a
manner violative of any applicable Environmental Laws, the Design/Builder shall
immediately stop Work in the area affected and report the condition to the. City's Project
Representative in writing. The Work in the affected area shall not thereafter be resumed
except by written authorization of the City's Project Representative if a Hazardous Substance
has been encountered and has not been rendered harmless. In the event the Design/Builder
fails to stop the Work upon encountering a Hazardous Substance at the Project, to the fullest
36
extent permitted by law, the Design/Builder indemnifies and holds harmless City and its
officers, agents and employees from and against all claims, damages, losses, causes of action,
suits and liabilities of every kind, including, but not limited to, expenses of litigation, court
costs, damages of all kinds allowable bylaw and attorneys' fees, arising out of, incidental to,
or resulting from the Design/Builder's failure to stop the Work.
20.3 An extension of time plus payment of reasonable itemized general conditions
including demobilization costs shall be the Desigr/BuiIder's sole remedy for any delay
arising out of the encountering or rendering harmless of any Hazardous Substance at a Project
Location. City and the Design/Builder may enter into an agreement for the Design/Builder to
remediate or render harmless the Hazardous Substance, but the Design/Builder shall not be
required to remediate or render harmless the Hazardous Substance absent such agreement.
Design/Builder shall not be required to resume work in any area affected by the Hazardous
Substance until such time as the Hazardous Substance has been remediated or rendered
harmless.
20.4 For purposes of this Agreement, the term "Hazardous Substance" shall mean
and include, but shall not be limited to, any element, constituent, chemical, substance,
compound, or mixture, defined in or included under or regulated by any local, state, or federal
law, rule, ordinance, by-law, or regulation pertaining to environmental regulation,
contamination, clean-up or disclosure, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), the
Resource Conservation and Recovery Act ("RCRA"), the Toxic Substances Control Act
("TSCA"), the Clean Water Act ("MA"), the Clean Air Act ("CAA"), and the Marine
Protection Research and Sanctuaries Act ("MPRSA"), the Occupational Safety and Health
Act ("OSHA"), the Superfund Amendments and Reauthorization Act of 1986 ("SARA"),
Chapters 161, 253, 373, 376 and 403, Florida Statutes, the rules and regulations of the Florida
Department of Environmental Protection, or other state superlien or environmental clean-up
or disclosure statutes including all state and local counterparts of such laws (all such laws,
rules and regulations being referred to collectively as "Environmental Laws"). It is the
Design/Builder's responsibility to comply with this Section based on the law in effect at the
time its services are rendered and to comply with any amendments to those laws for all
services rendered after the effective date of any such amendments.
21. COMPLIANCE WITH LAWS.
21.1 The Design/Builder shall notify the City's Project Representative in writing of
all conflicts between the Contract Documents and any laws, ordinances, rules, regulations and
restrictions that come to the attention of the Design/Builder or should have come to the
Design/Builder's attention with the exercise of due care. If the Design/Builder performs any
of the Work knowing, or when with the exercise of due care the Design/Builder should have
known, it to be contrary to any such laws, ordinances, rules, regulations or restrictions and
fails to give the City's Project Representative written notice thereof prior to performance, the
Design/Builder shall bear all related costs, liabilities, and expenses arising from such
noncompliance including reasonable attorney fees and costs.
37
21.2 The Design/Builder, at its sole cost, shall obtain all necessary licenses,
building and other permits, and similar authorizations from governmental authorities required
or necessary to perform its obligations under this Agreement, and shall give all notices
required by, and otherwise comply with, all applicable laws, ordinances, rules, regulations
and restrictions.
21.3 The Design/Builder agrees that all of the Design/Bui]der's Services and the
Work shall comply with all applicable laws, statutes, ordinances, codes, executive orders,
rules and regulations including without limitation, those adopted by the City, all
Environmental Laws as defined in Section 20.4, and the federal and State of Florida "Right to
Know" laws related to Hazardous Substances in the workplace.
22. PERSONNEL.
22.1 All personnel used or employed by the Design/Builder in the performance of
the Work shall to the best of Design/Builder's knowledge be qualified by training and
experience to perform their assigned tasks. At the request of the City's Project
Representative, the Design/Builder shall not use in the performance of the Work any
personnel deemed by the City's Project Representative to be incompetent, careless or
unqualified to perform the Work assigned, or in any way otherwise unsatisfactory to the
City's Project Representative.
22.2 The Design/Builder agrees that in the performance of the Work called for by
this Agreement, it will employ only such labor, and engage Subconsultants and
Subcontractors that employ only such labor, as will not delay or interfere with the speedy and
lawful progress of the Project, and as will be acceptable to and work in harmony with all
other workmen employed on the Project Location or on any other building, structure, or other
improvement which the Design/Builder or any other Design/Builder may then be erecting or
altering on behalf of City. The Design/Builder agrees that it shall not employ any labor that
will interfere with labor harmony at the Project location or with the introduction and storage
of materials and the execution of work by other Subconsultants and Subcontractors. In the
event of a strike or stoppage of work resulting from a dispute involving or affecting the labor
employed by the Design/Builder or any of its Subcontractors, City may, at its option and
without demand, terminate this Agreement for default unless the Design/Builder shall remedy
the strike or work stoppage or other disruption within ten (10) calendar days after the dispute
arises.
22.3 Design/Builder shall furnish the City's Project Representative, on request,
resumes of Design/Builder's key personnel involved in the day-to-day Work on the Project.
23. SAFETY AND PROTECTION.
23.1 Design/Builder shall be solely responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the Work. Design/Builder
shall take all necessary precautions for the safety of, and shall provide the necessary
protection to prevent damage, injury or loss to:
38
23.1.1 all persons on a Project Location who may be affected by the
construction;
23.1.2 all Work and Materials and equipment to be incorporated in the Work,
whether in storage on or off the Project Site; and
23.1.3 other property at a Project Site or adjacent to such a site, including
trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and underground
facilities not designated for removal, relocation or replacement in the course of construction.
23.2 Design/Builder shall comply with applicable laws and regulations of any
public body having jurisdiction for safety of persons or property to protect them from
damage, injury or loss and shall erect and maintain all necessary safeguards for such safety
and protection including, without limitation, compliance with the Florida Trench Safety law.
Design/Builder shall notify owners of adjacent property and of underground facilities and
utility owners when prosecution of the Work may affect them, and shall cooperate with them
in the protection, removal, relocation and replacement of property. All damage, injury or loss
to any property caused, directly or indirectly, in whole or in part, by Design/Builder, any
Subcontractor, Subconsultant, materialman, supplier, vendor, or any other individual or entity
directly or indirectly employed by any of them to perform or furnish any of the Work or
anyone for whose acts any of them may be liable, shall be remedied by Design/Builder.
• Design/Builder's duties and responsibilities for safety and for protection of the construction
shall continue until such time as all the Work is completed and the City's Project
Representative has issued a notice to Design/Builder that the Work is acceptable (except as
otherwise expressly provided in connection with Substantial Completion in Section 7.2).
23.3 Safety Representative. Design/Builder shall designate a qualified and
experienced safety representative at the Project Site whose duties and responsibilities shall be
the prevention of accidents and the maintaining and supervising of safety precautions and
programs.
23.4 Hazard Communication Programs. Design/Builder shall be responsible for
coordinating any exchange of material safety data sheets or other hazard communication
information required to be made available to or exchanged between or among employers at
the Project Site in accordance with laws or regulations.
23.5 Emergencies. In emergencies affecting the safety or protection of
persons or property at a Project Site or adjacent to any such Site, Design/Builder, without
special instruction or authorization from the City or the City's Project Representative, is
obligated to act to prevent threatened damage, injury or loss. Design/Builder shall give the
City's Project Representative prompt written notice if Design/Builder believes that any
significant changes in the construction or variation from the Contract Documents have been
caused thereby. If a change in the Contract Documents is required because of the action
taken by Design/Builder in response to such an emergency, a Change Order will be issued to
document the consequences of such action.
39
24. USE OF SITE AND OTHER AREAS.
24.1 Design/Builder shall confine construction equipment, the storage of materials
and equipment and the operations of construction workers to those lands and areas permitted
by the City and other land and area permitted by laws and regulations, rights-of-way, permits
and easements, and shall not unreasonably encumber any such land or area with construction
equipment or other materials or equipment. Design/Builder shall assume full responsibility
for any damage to any such land or area, or to any owner or occupant thereof or any adjacent
land or areas, resulting from the performance of the construction. Should any claim be made
by any such owner or occupant because of the performance of the Work, Design/Builder shall
promptly settle with such other party by negotiation or otherwise resolve the claim by
arbitration or other dispute resolution proceedings or at law. Design/Builder shall, to the
fullest extent permitted by law and regulations, indemnify and hold harmless the City, City's
consultants and anyone directly or indirectly employed by any of them from and against all
claims, costs, losses and damages (including, but not limited to, fees of engineers, architects,
attorneys and other professionals and court and arbitration or other dispute resolution costs)
arising out of or resulting from any claim or action, legal or equitable, brought by any such
owner or occupant against City, or any other party indemnified under this Agreement to the
extent caused by or based on Design/Builder's, or its Subconsultant's or Subcontractor's
performance of the Work.
24.2 During the performance of the Work, Design/Builder shall keep the Project
Location free from accumulations of waste materials, rubbish and other debris resulting from
the construction. At the completion of the construction Design/Builder shall remove all
waste materials, rubbish and debris from and about the premises as well as all tools,
appliances, construction equipment, temporary construction and machinery and surplus
materials. Design/Builder shall leave the Project Location clean and ready for occupancy by
City at Substantial Completion. Design/Builder shall restore to original condition all property
not designated for alteration by the Contract Documents.
24.3 Design/Builder shall not load nor permit any part of any structure to be loaded
in any manner that will endanger the structure, nor shall Design/Builder subject any part of
the Work or adjacent property to stresses or pressures that will result in endangerment.
25. RELATED CONSTRUCTION AT SITE.
25.1 City may perform other work at the Project Location by City's own forces, or
let other direct contracts therefor or have other work performed by utility owners. If the fact
that such other work is to be performed was not noted in the Contract Documents then (a)
written notice will be given to Design/Builder prior to starting any such other work and (b)
Design/Builder may make a request for a Change Order as provided in Section 8 if
Design/Builder believes that such performance will involve additional time and the parties
are unable to agree as to its amount or extent.
40
25.2 Design/Builder shall afford each other contractor who is a party to such a
direct contract with City and each utility owner (and City, if City is performing the
additional work with its employees) proper and safe access to the Project Site and a
reasonable opportunity for the introduction and storage of materials and equipment and the
execution of such other work and shall properly coordinate the construction with theirs.
Such contractors and utility owners shall be required to comply with Design/Builder's rules
and regulations applicable to the Project Site including without limitation all safety
requirements. Unless otherwise provided in the Contract Documents, Design/Builder shall
do all cutting, fitting, and patching of the Work that may be required to make its several
parts come together properly and integrate with such other work. Design/Builder shall not
endanger any work of others by cutting, excavating or otherwise altering their work and will
only cut or alter their work with the written consent of City and the others whose work will
be affected. The duties and responsibilities of Design/Builder under this Section are for the
benefit of such utility owners and other contractors to the extent that there are comparable
provisions for the benefit of Design/Builder in the direct contracts between City and such
utility owners and other contractors.
25.3 If the proper execution or results of any part of Design/Builder's Work
depends upon work performed or services provided by others under this Section,
Design/Builder shall inspect such other work and promptly report to the City's Project
Representative in writing any delays, defects or deficiencies in such other work or services
that render it unavailable or unsuitable for the proper execution and results of
Design/Builder's Work. Design/Builder's failure so to report will constitute an acceptance of
such other work as fit and proper for integration with Design/Builder's Work except for latent
or nonapparent defects and deficiencies in such other work.
25.4 Coordination. If City contracts with others for the performance of
other work on the Project at the Project Site, the following information will be provided in
writing to Design/Builder prior to the commencement of such work:
25.4.1 the individual who or entity which will have authority and
responsibility for coordination of the activities among the various prime contractors will be
identified;
25.4.2 the specific matters to be covered by such authority and responsibility
will be itemized; and
25.4.3 the extent of such authority and responsibilities will be provided.
26. DESIGN/BUILDER'S WARRANTIES. The Design/Builder represents and
warrants to the City:
26.1 That it is financially solvent, able to pay its debts as they mature, and is
possessed of sufficient working capital to perform this Agreement; that it is able to furnish
the Materials and Services; that it is experienced in and competent to perform the Work
contemplated by this Agreement; and that it is qualified to do the Work and is authorized to
do business in Florida.
41
26.2 That the Design/Builder holds a license, permit or other special license to
perform the services included in this Agreement, as required by law, or employs or works
under the general supervision of the holder of such license, permit or special license if
authorized by law.
26.3 That the Work shall be constructed in a good and workmanlike manner, free
from defects, and in strict compliance with the Contract Documents.
27. DEFECTS.
27.1 The Design/Builder shall at its sole cost (a) replace any parts of the Work that
fail to conform with the requirements of this Agreement that appear during progress of the
Work on the Project; (b) remedy any defects in the Work due to faulty materials or
workmanship which appear within a period of one (1) year from the time of Final Completion
of the Work or within such longer period of time as may be set forth in the Plans,
Specifications, and Addenda or other Contract Documents or as may be required by law; and
(c) replace, repair or restore any parts of the Project or associated furniture, fixtures,
equipment or other items (whether placed at a Project Location by City or any other party)
that are damaged by any such parts of the Work that do not conform to the requirements of
this Agreement or are due to defects in the Work. The provisions of this Section apply to
Work performed by Subcontractors as well as Work performed directly by employees of the
Design/Builder. In addition to the Design/Builder's responsibility to make repairs or redo
Work under this Section, the Design/Builder shall also be responsible to City for any
damages suffered by City as a result of defects. The Design/Builder shall commence any
Work required under this Section promptly after notice from the City's Project
Representative and shall diligently complete such Work in a good and workmanlike manner
in compliance with the terms of this Agreement applicable to the Work generally.
27.2 If the City's Project Representative and the Design/Builder deem it
inexpedient to require the correction of Work damaged or not performed in accordance with
the Contract Documents, an equitable deduction from the Contract Sum shall be made by
agreement between the Design/Builder and the City's Project Representative . If the City's
Project Representative and the Design/Builder fail to reach a settlement or the Design/Builder
fails to perform and is not protected by surety (or the surety fails to perform), City retains the
right to perform the Work after seven (7) days written notice to the Design/Builder or surety.
The City's Project Representative may withhold the cost of such Work as deemed just and
reasonable from monies, if any, due the Design/Builder. If no monies are held by City,
reimbursement shall be made to City within thirty (30) days by the Design/Builder.
27.3 The Design/Builder's express warranty in this Agreement shall be in addition
to, and not in lieu of, any other warranties or remedies City may have under this Agreement, at
law, or in equity for defective Work.
27.4 If City elects to perform the Work described in this Section, this shall not void
or otherwise impair the Bonds required by this Agreement. If City elects to enforce the
42
Bonds, the surety shall cause the Work to be commenced within seven (7) days after notice
from the City's Project Representative and diligently completed thereafter in a good and
workmanlike manner in accordance with the terms of this Agreement applicable to the Work
generally.
28. SIGNAGE. Except for safety signage required by applicable laws, which shall be
installed in compliance with applicable laws, all construction signage, including, but not
limited to that appearing on cranes and other construction equipment located at the Project
Locations, shall be subject to the prior written approval of the City's Project Representative.
The Design/Builder recognizes that all signage (except safety signage required by applicable
laws) may be disallowed, in the City's Project Representative sole discretion, and that
existing signage or advertising on construction equipment, field offices, trailers, construction
fences, etc., may be required to be masked or deleted, all at no. cost or expense to City.
Notwithstanding the foregoing, the parties intend to erect Project signs identifying the City,
Design/Builder and key participants in the Project. Such Project signs shall be installed in
compliance with the City's sign ordinance.
29. PRESS RELEASES. The Design/Builder shall coordinate any public announcement
or publicity releases relating to the Project through the City. The Design/Builder shall also
require Subconsultants, Subcontractors, materialmen, suppliers, and vendors to comply with
this requirement.
30. OWNERSHIP OF CONTRACT DOCUMENTS. All Plans, Specifications, Detail
Drawings and other Drawings prepared in connection with the Project, upon payment by City
to Design/Builder, shall be and remain the property of City and are not to be used by the
Design/Builder on any other project and shall be relinquished to the City's Project
Representative at Final Completion or sooner if otherwise required by this Agreement,
provided, however, that the Design/Builder may maintain one record set of as-built drawings.
Such Plans and Specifications shall be provided to the City's Project Representative with an
authorization in a form and substance acceptable to the City's Project Representative from the
applicable Subconsultants authorizing the City and its architects and engineers to use the
Plans and Specifications and related documents for the Project.
31. REPRESENTATIVES.
31.1 The name of the party who is the City's Project Representative is shown in
Section 1.2, above. City's Project Representative is authorized to recommend approval of
Change Orders and increases in the Contract Sum, but Change Orders and increases in the
Contract Sum shall be binding on City only if executed by City after having been approved in
advance in writing by the City.
31.2 The name of the party who is to be the "Design/Builder's Project
Representative" is shown in Section 1.2, above. Unless another corporate officer of the
Design/Builder advises City and the Design Consultant, in writing, of any limitations on the
authority of Design/Builder's Project Representative, such Representative shall have full
43
authority to execute any and all instruments requiring the Design/Builder's signature and to
act on behalf of the Design/Builder with respect to all matters arising out of this Agreement.
32. ASSIGNMENT. The Design/Builder shall not assign or sublet this Agreement in
part or as a whole without the written consent of City, which consent may be withheld or
conditioned by the City in its sole discretion; nor shall the Design/Builder assign any monies
due or to become due to it, without the previous written consent of City, which consent may
be withheld.or conditioned by the City in its sole discretion. Subject to the foregoing, this
Agreement shall inure to the benefit of and be binding on the parties and their respective
successors and assigns.
33. NONDISCRIMINATION. The Design/Builder agrees that it will not knowingly
violate any applicable laws or regulations prohibiting discrimination in employment in the
performance of its work under this Agreement.
34. WAIVER. No consent or waiver, express or implied, by either party to this
Agreement to or of any breach or default by the other in the performance of any obligations
under this Agreement shall be deemed or construed to be a consent or waiver to or of any
other or future breach or default by such party. Failure on the part of any party to complain
of any act or failure to act of the other party or to declare the other party in default under this
Agreement, irrespective of how long such failure continues, shall not constitute a waiver of
the rights of such party. Inspection by, payment by, or tentative approval or acceptance by
the City's Project Representative, or the failure of the City's Project Representative to
perform any inspection shall not constitute a final acceptance of the Work or any part of it
and shall not release the Design/Builder from any of its obligations under this Agreement.
35. CONSTRUCTION OF TERMS; CONFLICTS.
35.1 Unless the context clearly intends to the contrary, words singular or plural in
number shall be deemed to include the other and pronouns having a masculine or feminine
gender shall be deemed to include the other. The term "person" shall be deemed to include
an individual, corporation, unincorporated organization, partnership, trust, government and
governmental agency, subdivision or other entity as the context shall require.
35.2 The Contract Documents shall be interpreted so as to eliminate inconsistencies
or conflicts, but in the event of any conflict, requirements for greater quantity or more
expensive work shall govern; the terms of this Agreement shall prevail; and anything shown
on the Plans and not mentioned in the Specifications or mentioned in the Specifications and
not shown on the Plans shall have the same effect as if shown or mentioned respectively in
both.
36. CAPTIONS. The captions used for the Sections in this Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit or describe the scope
of the intent of this Agreement or any Section of it.
44
37. ENTIRE AGREEMENT, SEVERABILITY, AMENDMENTS. The written
Contract Documents constitute the only and the entire agreement between the parties with
respect to the matters covered by them. All prior negotiations, representations and
agreements with respect to them and not incorporated in such Contract Documents are
canceled. This Agreement can be modified or amended only by a document duly executed on
behalf of the parties. In the event any provision of the Contract Documents shall be
determined to be illegal, invalid or otherwise unenforceable, the remainder of this Agreement
shall not be affected and each remaining provision, term, covenant or condition of the
Contract Documents shall be enforced to the fullest extent permitted by law.
38. TERMINATION.
38.1 City shall have the right at any time, on not less than seven (7) days prior
written notice to the Design/Builder, to terminate this Agreement without cause or for City's
convenience including, but not. limited to termination in the event that (a) the Project is
abandoned by City; or the City Commission terminates, suspends or modifies the Project.
Upon receipt by the Design/Builder of such notice of termination (the "Date of
Termination"), the Design/Builder shall immediately discontinue the Work and remove its
equipment and employees from the Project location. In the event of termination under this
Section, the Design/Builder shall have the right, as its sole and exclusive remedy, to recover
from City payment of the Contract Sum for Work performed up to the Date of Termination
(less any payment made to the Design/Builder by City). In addition, without terminating this
Agreement as a whole, City may, for convenience, terminate a portion of this Agreement (by
reducing, in such manner as City deems appropriate, the scope of the Work to be performed
by the Design/Builder). In such event such termination of a portion of this Agreement shall
be treated as a reduction in the scope of the Work, to which an equitable reduction shall be
made to the Contract Sum.
38.2 In addition to City's right to terminate this Agreement for default under the
terms of this Contract and elsewhere in this Agreement, if the Design/Builder shall fail to
commence the Work in accordance with the provisions of this Agreement, fail to perform the
Work or portions of it to completion in a diligent, efficient, workmanlike, skillful and careful
manner and in strict accordance with the provisions of the Contract Documents, fail to use an
adequate quantity or quality of personnel, equipment, or material to complete the Work
within the Contract Time, fail to perform any of its obligations under the Contract
Documents, be adjudged a bankrupt, make a general assignment for the benefit of its
creditors, permit a receiver to be appointed on account of its insolvency, become otherwise
insolvent, or fail to make prompt payments to its Subcontractors, materialmen or laborers,
City shall provide the Design/Builder with written notice of such event, stating the nature of
the default complained of. If Design/Builder does not cure such default within seven (7) days
after receipt of such notice (or such longer period agreed to by the parties if the nature of the
default is such that it cannot be cured within seven (7) days and Design/Builder has
commenced and is diligently proceeding to cure within the original seven (7) day period), the
City shall have the right, upon forty-eight (48) hours' written notice to the Design/Builder to
terminate this Agreement.
45
In the event of termination under this Section, City shall notify the Design/Builder's surety,
and the Design/Builder's surety shall take over and perform this Agreement. The
Design/Builder's surety shall continue to perform, on at least an interim basis, until such time
as it makes other satisfactory arrangements for completion of the Work pursuant to the Bond
obligations. If the Design/Builder's surety does not commence performance with adequate
quantity and quality of personnel, equipment, and material to maintain the Contract Time,
within five (5) days from the date of receipt of such notice of termination, City may, without
further notice to the Design/Builder or its surety, take possession of and use, without any
rental obligation to the Design/Builder or any third party, all or any part of the
Design/Builder's Materials and other property of every kind used by the Design/Builder in
the performance of the Work and use such property in the completion of the Work, and
complete the Work with its own forces or by engaging the services of other parties therefor.
Any such act by City shall not be deemed a waiver of any other right or remedy of City under
this Agreement, the Bonds or otherwise. If after exercising any such remedy the cost to City
of the performance of the balance of the Work is in excess of Contract Sum, which has not
previously been paid to the Design/Builder, the Design/Builder and the Design/BuiIder's
surety shall be liable for and shall reimburse City for such excess costs and all delay and
damages suffered by City as a result thereof. If after termination of this Agreement under this
Section, it is determined that the Design/Builder was not in default or that sufficient cause to
terminate under did not exist, the rights and obligations of the parties shall be the same as if
the termination had been issued for the convenience of City under Section 38.1, and that the
Design/Builder agreed to City's use of its materials and other property, in which case the
Design/Builder shall be entitled to be paid a reasonable sum for City's use of the
Design/Builder's Materials and other property of the Design/Builder
38.3 If City fails to perform any of its obligations under this Agreement, the
Design/Builder shall have the right to give City written notice to that effect, stating the nature
of the default complained of. If City does not cure such default within fifteen (15) days after
receipt such notice (or such longer period agreed to by the parties if the nature of the default
is such that it cannot be cured within fifteen (15) days and City has commenced and is
diligently proceeding to cure within the original fifteen (15 day period), the Design/Builder
shall have the right, on forty-eight (48) hours' written notice to City to terminate this
Agreement. The Design/Builder shall have the right to terminate this Agreement upon thirty
(30) days' written notice if the Work is suspended for a period of ninety (90) consecutive
days or more due to causes not the fault of the Design/Builder.
38.4 City may, if the Design/Builder neglects to perform the Work properly or to
perform any provision of the Contract Documents, or does, or omits to do, anything whereby
safety or proper construction may be endangered or whereby damage or injury may result to
person or property, after forty-eight (48) hours' written notice to the Design/Builder, without
prejudice to any other remedy City may have, make good all Work, material, omissions or
deficiencies, and may deduct the cost therefor from the amount included in the Contract Sum
due or which may thereafter become due the Design/Builder, but no action taken by City
under this provision shall affect any of the other rights or remedies of City granted by this
Agreement or by law relieve the Design/Builder or the Design/Builder's surety from any
consequences or liabilities arising from such acts or omissions.
46
• 38.5 The rights and remedies of City under this Section shall be non-exclusive, and
shall be in addition to all the other remedies available to City at law or in equity.
39. DISPUTE RESOLUTION.
39.1 This Agreement shall be governed by the laws of the State of Florida and the
applicable laws of the United States of America. Any proceeding seeking to enforce any
provision of, or based on any rights arising out of, this Agreement may be brought against
any of the parties in the courts of the State of Florida, County of Broward, or if it has or can
acquire jurisdiction in the United States District Court of the Southern District of Florida and
each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate
courts) in any such action. THE PARTIES WAIVE ANY RIGHTS TO A JURY TRIAL OR
PROCEEDING AND WAIVE ANY OBJECTION TO VENUE, PROVIDED, HOWEVER,
THAT SUCH VENUE SHALL BE CONSISTENT WITH THE REQUIREMENTS OF
SECTION 47.025, FLORIDA STATUTES.
39.2 Pending resolution of any dispute arising under this Agreement, other than its
termination, the Design/Builder shall diligently proceed with performance of this Agreement
and City shall continue to make payments in accordance with the Contract Documents,
except for performance and payment related to the disputed matter.
40. NOTICES. All notices to be given under this Agreement shall be in writing, and
shall be given, served, or made by facsimile transmission followed by one of the following
methods: (a) depositing the same in the United States Mail addressed to the party to be
notified, postpaid and first class mail (b) by nationally recognized overnight courier service
such as Federal Express or United Parcel Service, or (c) by delivering the same in person to
such party. Notices of an alleged default or any termination of this Agreement shall be hand-
delivered or sent by certified mail, return receipt requested, postpaid, to the recipient party.
Notice given in any other manner shall be effective only if and when received by the party to
be notified. All notices to be given to the parties shall be sent to or made to the addresses
shown below. By giving the other party at least fifteen (15) days' written notice, the parties
shall have the right to change their respective addresses and specify as its address any other
address in the United States of America.
41. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and
the same instrument.
42 RECORD DRAWINGS AND FINAL SURVEY.
42.1 A marked up set of plans and specifications will be kept up to date by the
Design/Builder on the job site at all times. The Design/ Builder shall record all construction
any and all variances to the plans as the work progresses. These records will be given to the
City's Project Representative at the completion of the work, and properly labeled "Record
Drawings". Final submittals of record documents shall include one set of complete
47
reproducible drawings on 5 Mil Mylar, 7 sets of blueline prints of those drawings and
specifications and an electronic version. Electronic media versions of the record documents
shall include drawings prepared with Autocad 2000 and specifications prepared with word
processing software compatible with Microsoft Word. All electronic media shall be
transmitted to the City on compact disk in a plastic case.
42.2 In addition to the "Record Drawings", the Design/Builder will cause to have
prepared by a Surveyor, registered in the State of Florida, a site survey which shall clearly
represent all work done under this contract. This site survey shall show all fences, walls,
walks, building(s) and appurtenances, fire hydrant(s), manholes, catch basins, meters, valve
boxes, asphalt playing area, parking, drives, curbs, football goal posts, basketball backboards,
tennis courts, ball fields, trees and shrubs. Based upon the mean sea level datum, elevations to
the 0.01 foot will be shown in sufficient number of points to clearly indicate the scope of
parking, sidewalks, floor and other improved areas. A benchmark will be set at the base of the
flagpole. The grate and invert elevation will be shown for all manholes and catch basins.
Elevations to 0.01 foot will be indicated at all changes in ground level, such as ditches, and at
intervals not exceeding 100 feet including all adjacent rights-of-way. Design/Builder shall
replace all permanent corner markers which have been removed. An existing survey shall be
furnished to the Design/Builder by the City and the final survey should update and correct the
existing final survey to illustrate the Work's relationships to the previously existing site and
its improvements and appurtenances.
42.3 At the completion of the Work, the Design/Builder shall furnish six (6)
certified prints and a sepia on 3 Mil Mylar of the survey to the City's Project Representative
and an electronic version of the survey matching the Autocad drawing requirements for
record documents specified above. This is a critical item and final payment will be withheld
from the Design/Builder until "Record Drawings" and final survey are furnished to the City's
Project Representative.
43. OWNERSHIP OF DRAWINGS. In addition to and not as a substitute for Section
31 of this Agreement, all drawings, specifications, and copies thereof furnished by the
Design/Builder become the property of the City.
44. GUARANTEE. In addition to and not as a substitute for Sections 27 and 28 of
this Agreement, the Design/Builder shall guarantee its work for a period of at least one year
(and for additional periods where extended or special warrantees are required by the Contract
Documents) from the date of Substantial Completion. Neither the final certificate of payment
nor any provision in the Contract Documents shall relieve the Design/Builder of the
responsibility for negligence or faulty materials, workmanship, or latent defects within the
extended period provided by law and upon written notice Design/Builder shall remedy any
defects and pay all expenses for any damages to other work resulting therefrom.
45. TEMPORARY UTILITIES.
•
48
45.1 Water. The Design/Builder shall provide a temporary water line sufficient to
supply all water needed for the construction work contemplated under this contract, and shall
pay for all water it uses and its subcontractors use under this Contract.
45.2 Electricity. The Design/Builder shall provide temporary electrical service
sufficient to supply all electrical power needed for the construction work contemplated under
this contract, and shall pay for all electricity it uses and its subcontractors use under this
Contract.
45.3 Sanitary Facilities. The Design/Builder shall provide and maintain in a neat
and sanitary condition such accommodations for the use of its employees as may be
necessary to comply with the regulations of the State Board of Health and the local health
department. No nuisance will be permitted. Upon completion of work, such facilities shall be
removed and the premises left in a sanitary condition.
46. DRAWINGS AND SPECIFICATION ON THE SITE. In addition to and not as a
substitute for Section 43 of this Agreement, the Design/Builder shall keep one copy of the
specifications and one copy of the drawings on the building site in good order available to the
City's Project Representative. The Design/Builder will constantly update the specifications
and drawings to reflect the "as-built" condition of the Work and to properly document and
delineate the products and their relation.
47. CLEANING UP.
47.1 The Design/Builder shall keep the premises free from accumulation of waste
material and rubbish and at the completion of the work, shall remove from the premises all
rubbish, implements, and surplus materials and leave the building(s) broom clean.
47.2 Any salvage resulting from clearing, grubbing, grading, draining, remodeling
or altering any existing facilities on the site shall be the property of the City; and this material
shall be piled or stacked on the site if the City desires this material. If this material is not
desired by the City, it shall be disposed of by the Design/Builder at its expense.
47.3 The Design/Builder is responsible for any permits required for cleanup
activities and shall conform to the municipal and Broward County ordinances governing
removal and disposal of waste material and rubbish.
48. CORRECTION OF WORK. In addition to and not as a substitute for Section
28 of this Agreement, the Design/Builder shall re-execute any work that fails to conform to
the requirements of the Contract and that appears during the progress of the work, and shall
remedy any defects due to faulty materials or workmanship. The provisions of this article
apply to work done by Subcontractors as well as work done by direct employees of the
Design/Builder.
49
• 49. ADDRESSES. All invoices, contracts, copies of notices and other
correspondence should be addressed to City and the Design/Builder as follows:
If to City:
City Manager
City of Dania Beach
100 West Dania Beach Blvd.
Dania Beach, FL 33004
Fax No.: (954) 921-2604
With a copy to:
Thomas J. Ansbro, City Attorney
100 West Dania Beach Blvd.
Dania Beach, FL 33004
Fax No.: (954) 924-3702
If to Design/Builder:
Gary McGeddy, President
Coastal Contracting &Development, Inc.
807 N. Northlake Drive
Hollywood, FL 33019
If to City's Project Representative:
Kristen Jones, Parks and Recreation Director
100 West Dania Beach Blvd.
Dania Beach, FL 33004
Fax No.: (954) 921-2604
50
• IN WITNESS OF THE FOREGOING, this Agreement is executed as of the date first
above set forth.
DESIGNBUILDER
Coastal Contracting & Development,Inc.
a Florida Corporation
By:
—Lc-
Naine:
Title:
Dated: J 8 , 2006
CITY:
CITY OF DANIA BEACH, Z.
a Florida municipal corporation
By: By:
Patricia Flury, Mayor van at , Cit Manager
Dated: i)-M�/ f , 2006
ATTEST:
Louise Stilson, City Clerk
APPROVED AS TO FORM AND CORRECTNESS:
By:
Thomas J. sliro, City Attorney
•
51
EXHIBIT A
CONTRACT TIMES
A. Design Services. Unless otherwise agreed to in writing by the parties, the
Design Services shall be commenced pursuant to a Notice to Proceed from the City' s
Project Representative to Design/Builder's Project Representative and completed within
thirty(30) days from the date set forth in it. Time is of the essence in the performance of the
Design Services.
B. Construction Work. Unless otherwise agreed to in writing by the parties,
the Construction Work shall be commenced pursuant to a Notice to Proceed issued by the
City's Project Representative to Design/Builder's Project Representative with Substantial
Completion to occur within one hundred twenty days (120) days after issuance of such
Notice. Pursuant to Section 7.4 of the Agreement, Final Completion shall occur within
fifteen (15) calendar days following Substantial Completion. Time is of the essence in the
performance of the Construction Work.
C. Liquidated Damages. Pursuant to Section 7.6 of the Agreement, if the
Design/Builder shall neglect, fail, or refuse to complete the Work by the applicable
Substantial Completion Date or the applicable Final Completion Date, subject to any proper
extension granted by City, then the Design/Builder agrees to pay to City, or to cause the
Design/Builder's surety to pay to City, Liquidated Damages in the amount of (a) Five
Hundred and 00/100 Dollars ($500.00) per diem commencing upon the first day following
expiration of the Substantial Completion Date and continuing until the actual date of Substantial
Completion, and (b) Five Hundred and 00/100 Dollars ($500.00) per diem commencing upon
the first day following expiration of the Final Completion Date and continuing until the actual
date of Final Completion as applicable.
EXHIBIT B
CHANGE ORDER
TO: City of Dania Beach
PROJECT: P.J. Meli Recreation Complex
DESIGN/BUILDER:
DATE: , 200
This Change Order will authorize the following change to the Agreement:
The Work as set forth in the Agreement is amended to include the items set
forth on Exhibit "A " attached and by this reference made a part of this
document.
This Change Order constitutes full, final, and complete authorization for compensation to the
Design/Builder for all costs, expenses, overhead, and profit, and any damages of every kind
that the Design/Builder may incur in connection with the above referenced change(s) in the
Work, and any other effect on any of the Work under this Agreement. The Design/Builder
acknowledges and agrees that (a) the Guaranteed Maximum Price of $
under the Agreement will be [unchanged] [changed] by this Change Order, and (b) the
schedule for performance of Work will be [unchanged] [changed] by this Change Order.
Design/Builder expressly waives any claims for any additional compensation, damages or
time extensions in connection with the above-referenced change(s). Except as modified by
this document, all terms of the Agreement shall remain in full force and effect and shall cover
the performance of, and payment for, any work authorized under this document. Any defined
terms not defined in this Change Order shall have the meanings set forth in the Agreement.
By signing below the parties indicate acceptance of this Change Order as set forth in it.
CITY OF DANIA BEACH,
a Florida municipal corporation
a Florida corporation
By:
Ivan Pato, City Manager
By:
Name: Authorized by action of City
Title: Commission of the City of
— Dania Beach on ,
200 .
EXHIBIT C
REQUEST FOR PAYMENT
TO: City of Dania Beach
PROJECT: P.J. Meli Recreation Complex
DESIGN/BUILDER:
DATE: , 200
Invoice #: Date:
Application is made for payment as shown below, in connection with the
Design/Build Agreement (additional sheets are attached to provide a complete
breakdown of the requested payment):
l.Guaranteed Maximum Price $
2. Net Change by Change Orders $
3. Guaranteed Maximum Price to date (Line 1 + 2) $
4. Total Completed and Stored to date $
(see continuation sheet)
5. Retainage to date (see continuation sheet) $
6. Total Earned less Retainage (Line 4 less Line 5 total) $
7. Less Previous Requests for Payment $
(line 6 from previous Request)
8. Current Payment Due $
9. Balance to Finish (Line 1 less Line 4) $
MThe undersigned Design/Builder certifies that to the best of the D esign/Bui I der's
knowledge, information and belief, the Work covered by this Request for Payment has
been completed in strict accordance with the Contract Documents, that all amounts have
been paid by the Design/Builder for Work for which previous Requests for Payment
were issued and payment received from the City and that the current payment requested
represents a just estimate of reimbursements to the contractors, subcontractors,
materialmen, vendors, and suppliers for Work performed and material delivered. The
Design/Builder further certifies that there are no known mechanic's or materialmen's
liens outstanding at the date of this request, that all due and payable bills with respect to
the Work and materials have been paid.to date or are included in the amount requested
and that, except for such bills not paid but so included, there is no known basis for the
filing of any mechanic's or materialmen's liens on the Work, and that waivers from all
contractors, subcontractors, materialmen, vendors and suppliers have been obtained in
such form as required by the Design/Build Agreement.
a Florida corporation
By:
• Name:
Title:
0 EXHIBIT D
CERTIFICATE OF SUBCONTRACTOR &
FINAL WAIVER OF LIEN
TO: City of Dania Beach
PROJECT: P.J. Meli Recreation Complex
DESIGN/BUILDER:
DATE: , 200
The undersigned, being duly sworn, on oath deposes and says under penalty of
perjury:
I am the of the corporation or other entity identified below as
the Subcontractor, which entity has executed the attached Release and Waiver, and I
certify that the Subcontractor has paid all employees, contractors and materialmen in
full for all labor and materials supplied by them to, for or under the Subcontractor in
connection with the above described Project through and including the date of this
instrument, except for such persons listed on the attached sheet in the amount indicated
opposite their names, who shall be paid in full within ten (10) days after the date of this
document.
On behalf of and in the name of the Subcontractor, I further covenant, warrant and
represent that should any claim or lien be filed against the City of Dania Beach, a
Florida municipal corporation (the "City"), or the Project, the real property upon which
the Project is located or against the Design/Builder for material or labor supplied by, to,
for or under the Subcontractor in connection with the Subcontractor's participation in
the construction of the Project, the Subcontractor will immediately pay and satisfy such
claim or lien or furnish a sufficient bond, pursuant to Florida Statutes, for the release of
such lien, and obtain settlement of any such liens and furnish the City and the
Design/Builder a signed instrument fully releasing any such liens. The Subcontractor
further agrees to fully indemnify and hold harmless the City, its agents and employees,
and the Design/Builder, its sureties, agents and employees, for any loss, cost or damage,
including but not limited to attorneys' fees, which they may incur by reason of any such
claim or lien by, through or under the Subcontractor.
I further certify on behalf of and in the name of the Subcontractor that the Subcontractor
has complied with all federal, state and local tax laws, including social security laws,
and unemployment compensation laws and Workers' Compensation laws, insofar as
same are applicable to the performance of the Subcontractor's obligations in connection
with the Project.
THAT the undersigned Subcontractor, in consideration of payment made to the
� p ym
undersigned of all sums due the undersigned for labor and materials supplied prior to,
through and including the date of this release, and in connection with the Project, which
Project is owned by the City, does fully and finally waive and release any and all liens,
claims, actions, and demands, and all rights to same, against the City, the Project, the
real property upon which the Project is located and any and all other property owned by
the City, in connection with labor, supplies, Materials and services supplied by the
undersigned to the Project prior to and through the date of this document; and
THAT the undersigned Subcontractor does acknowledge and represent that:
1. Through the date of this document, the undersigned has received
total payments in the amount of $ for
labor and materials supplied to or for the Project; and
2. The undersigned Subcontractor acknowledges receipt of payment
in full of all sums agreed and required to be paid to the
undersigned in connection with the Project for all labor and
materials supplied by the undersigned to or for the Project prior
to, through and including the date of this document.
This instrument has been executed on , 200_.
SUBCONTRACTOR:
By:
Name:
Title:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me on 200 by
who [ ] is personally know to me
or [ ] produced as identification.
Notary Public:
My Commission Expires:
EXHIBIT E
CERTIFICATE OF DESIGN/BUILDER &
FINAL WAIVER OF LIEN
TO: City of Dania Beach '
PROJECT: P.J. Meli Recreation Complex
DESIGN/BUILDER:
DATE: , 200
The undersigned, being duly sworn, on oath deposes and says under penalty of
perjury:
I am the of the corporation or other entity identified as the
Design/Builder, which entity has executed the attached Release and Waiver, and I
certify that the Design/Builder has paid all employees, subcontractors and materialmen
in full for all labor and materials supplied by them to, for or under the Design/Builder in
connection with the above described Project through and including the date of this
instrument, except for such persons listed on the attached sheet in the amount indicated
opposite their names, who shall be paid in full within ten (10) days after the date of this
document.
On behalf of and in the name of the Design/Builder, I further covenant, warrant and
represent that should any claim or lien be filed against the City of Dania Beach, a
Florida municipal corporation (the "City"), or the Project, the real property upon which
the Project is located or any other property owned by the City of Dania Beach for
material or labor supplied by, to, for or under the Design/Builder in connection with the
Design/Builder's participation in the construction of the Project, the Design/Builder will
immediately pay and satisfy such claim or lien or furnish a sufficient bond, for the
release of such lien, and obtain settlement of any such liens and furnish the City a
signed instrument fully releasing any such liens. The Design/Builder further agrees to
fully indemnify and hold harmless the City, its agents and employees, from any loss,
cost or damage, including but not limited to attorneys' fees, which they may incur by
reason of any such claim or lien by, through or under the Design/Builder.
I further certify on behalf of and in the name of the Design/Builder that the
Design/Builder has complied with all federal, state and local tax laws, including social
security laws, and unemployment compensation laws and Workers' Compensation
laws, insofar as same are applicable to the performance of the Design/Builder's
obligations in connection with the Project.
THAT the undersigned Design/Builder, in consideration of payment made to the
undersigned of all sums due the undersigned for labor and materials supplied prior to,
through and including the date of this release, and in connection with the Project,
which Project is owned by the City, does fully and finally waive and release any and all
liens, claims, actions, and demands, and all rights to same, against the City, the Project,
the real property upon which the Project is located and any and all other property owned
by the City, in connection with labor, supplies, Materials and services supplied by the
undersigned to the Project prior to and through the date of this document; and
THAT the undersigned Design/Builder does acknowledge and represent that:
1, Through the date of this document, the undersigned has received
total payments in the amount of $ for labor and
materials supplied to or for the Project; and
2. The undersigned Design/Builder acknowledges receipt of payment in
full of all sums agreed and required to be paid to the undersigned in
connection with the Project for all labor and materials supplied by
the undersigned to or for the Project prior to, through and including
the date of this document.
This instrument has been executed on , 200 .
DESIGN/BUILDER:
a Florida corporation
By:
Name:
Title:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me on 200_ by
who signed it on behalf of the corporation
identified above and who [ ] is personally know to me or [ ] produced
as identification.
Notary Public:
My Commission Expires:
EXHIBIT F
CERTIFICATE OF DESIGN/BUILDER &
PARTIAL WAIVER OF LIEN
TO: City of Dania Beach
PROJECT: P.J. Meli Recreation Complex
DESIGN/BUILDER:
DATE: , 200
The undersigned, being duly sworn, on oath deposes and says under penalty of
perjury:
I am the of the corporation or other entity identified as the
Design/Builder, which entity has executed the attached Release and Waiver, and I
certify that the Design/Builder has paid all employees, subcontractors and materialmen
in full for all labor and materials supplied by them to, for or under the Design/Builder in
connection with the above described Project through and including the date of this
instrument, except for such persons listed on the attached sheet in the amount indicated
opposite their names, who shall be paid in full within ten (10) days after the date of this
document.
On behalf of and in the name of the Design/Builder, I further covenant, warrant and
represent that should any claim or lien be filed against the City of Dania Beach, a
Florida municipal corporation (the "City"), or the Project, the real property upon which
the Project is located or any other property owned by the City of Dania Beach for
material or labor supplied by, to, for or under the Design/Builder in connection with the
Design/Builder's participation in the construction of the Project, the Design/Builder will
immediately pay and satisfy such claim or lien or furnish a sufficient bond, for the
release of such lien, and obtain settlement of any such liens and furnish the City a
signed instrument fully releasing any such liens. The Design/Builder further agrees to
fully indemnify and hold harmless the City, its agents and employees, from any loss,
cost or damage, including but not limited to attorneys' fees, which they may incur by
reason of any such claim or lien by, through or under the Design/Builder.
I further certify on behalf of and in the name of the Design/Builder that the
Design/Builder has complied with all federal state and local tax laws, including social
security laws, and unemployment compensation laws and Workers' Compensation
laws, insofar as same are applicable to the performance of the Design/Builder's
obligations in connection with the Project.
. THAT the undersigned Design/Builder, in consideration of payment made to the
undersigned of all sums due the undersigned for labor and materials supplied prior to,
through and including the date of this release, and in connection with the Project, which
Project is owned by the City, does fully and finally waive and release any and all liens,
claims, actions, and demands, and all rights to same, against the City, the Project, the
real property upon which the Project is located and any and all other property owned by
the City, in connection with labor, supplies, Materials and services supplied by the
undersigned to the Project prior to and through the date of this document; and
THAT the undersigned Design/Builder does acknowledge and represent that:
3. Through the date of this document, the undersigned has received
total payments in the amount of $ for labor and
materials supplied to or for the Project; and
4. The undersigned Design/Builder acknowledges receipt of payment in
full of all sums agreed and required to be paid to the undersigned in
connection with the Project for all labor and materials supplied by
the undersigned to or for the Project prior to, through and including
the date below, it being understood that retainage in the amount
$ of is being withheld pursuant to the terms of
the Agreement.
This instrument has been executed on , 200 .
DESIGN/BUILDER:
a Florida corporation
By:
Name:
Title:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me on 200_ by
who signed it on behalf of the corporation
identified above and who [ ] is personally know to me or [ ] produced
as identification.
Notary Public:
. My Commission Expires:
• EXHIBIT G
CERTIFICATE OF SUBCONTRACTOR &
PARTIAL WAIVER OF LIEN
TO: City of Dania Beach
PROJECT: P.J. Meli Recreation Complex
DESIGN/BUILDER:
DATE: , 200
The undersigned, being duly sworn, on oath deposes and says under penalty of
perjury:
I am the of the corporation or other entity identified below as
the Subcontractor, which entity has executed the attached Release and Waiver, and I
certify that the Subcontractor has paid all employees, contractors and materialmen in
full for all labor and materials supplied by them to, for or under the Subcontractor in
• connection with the above described Project through and including the date of this
instrument, except for such persons listed on the attached sheet in the amount indicated
opposite their names, who shall be paid in full within ten (10) days after the date of this
document.
On behalf of and in the name of the Subcontractor, I further covenant, warrant and
represent that should any claim or lien be filed against the City of Dania Beach, a
Florida municipal corporation (the "City"), or the Project, the real property upon which
the Project is located or against the Design/Builder for material or labor supplied by, to,
for or under the Subcontractor in connection with the Subcontractor's participation in
the construction of the Project, the Subcontractor will immediately pay and satisfy such
claim or lien or furnish a sufficient bond, pursuant to Florida Statutes, for the release of
such lien, and obtain settlement of any such liens and furnish the City and the
Design/Builder a signed instrument fully releasing any such liens. The Subcontractor
further agrees to fully indemnify and hold harmless the City, its agents and employees,
and the Design/Builder, its sureties, agents and employees, for any loss, cost or damage,
including but not limited to attorneys' fees, which they may incur by reason of any such
claim or lien by, through or under the Subcontractor.
I further certify on behalf of and in the name of the Subcontractor that the Subcontractor
has complied with all federal, state and local tax laws, including social security laws,
and unemployment compensation laws and Workers' Compensation laws, insofar as
same are applicable to the performance of the Subcontractor's obligations in connection
with the Project.
THAT the undersigned Subcontractor, in consideration of payment made to the
undersigned of all sums due the undersigned for labor and materials supplied prior to,
through and including the date of this release, and in connection with the Project, which
Project is owned by the City, does waive and release any and all liens, claims; actions,
and demands, and all rights to same, against the City, the Project, the real property upon
which the Project is located and any and all other property owned by the City, in
connection with labor and services supplied by the undersigned to the Project prior to
and through the date of this document; and
THAT the undersigned Subcontractor does acknowledge and represent that:
1. Through the date of this document, the undersigned has received
total payments in the amount of$ for labor
and materials supplied to or for the Project; and
2. The undersigned Subcontractor acknowledges receipt of payment
in full of all sums agreed and required to be paid to the
undersigned in connection with the Project for all labor and
materials supplied by the undersigned to or for the Project prior
to, through and including the date of this document, it being
understood that retainage in the amount of$ is
being withheld pursuant to the terms of the Agreement.
This instrument has been executed on 1200
SUBCONTRACTOR:
By:
Name:
Title:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me on 200_ by
who [ ] is personally know to me or [ ] produced
as identification.
Notary Public:
My Commission Expires:
EXHIBIT H
ASSIGNMENT
TO: City of Dania Beach
PROJECT: P.J. Meli Recreation Complex
DESIGN/BUILDER:
DATE: , 200
ASSIGNMENT OF RIGHTS UNDER
SUBCONTRACTOR CONTRACT/SUBCONSULTANT CONTRACT
For and in consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, , whose mailing address
is (the "Design/Builder"), does
TRANSFER, ASSIGN and CONVEY to the CITY OF DANIA BEACH, a Florida
municipal corporation, whose mailing address is 100 West Dania Beach Blvd., Dania
Beach, Florida 33004 (the "City"), all of the rights, interests, benefits and privileges of
the Design/Builder under(a) that certain Subcontractor Contract/Subconsultant Contract
(the "Subcontract") dated 200_, by and between the Design/Builder and
("the Subcontractor"), a copy of which
Subcontract is attached as Exhibit "A" and made a part of this document, providing for
a portion of the services, labor and materials that the Design/Builder is obligated to
provide the City under that certain Design Build Agreement (the "Agreement") dated
200_, for the design and construction of a Project and related
improvements in Broward County, Florida (the "Project"), and (b) any and all payment
and performance bonds issued in conjunction with the Subcontract. However, the City
does not assume any of the Design/Builder's liabilities, duties or obligations under the
Subcontract.
The foregoing Assignment constitutes a part of the security given to the City by
the Design/Builder to secure the Design/Builder's performance of the Agreement.
Notwithstanding anything in this instrument to the contrary, the City shall not exercise
any rights under this instrument unless an event of default or other termination shall
have occurred under the provisions of the Agreement. The City shall have the right, but
not the duty, in the event of a default or termination pursuant to the terms of the
Agreement, to exercise all of its rights, interests, benefits and privileges under the
Subcontract.
Subcontractor agrees with the City as follows:
That Subcontractor consents to the foregoing assignment and agrees to notify
the City in writing at the same time Subcontractor notifies the Design/Builder of the
occurrence of any failure of payment under the provisions of the Subcontract or of the
occurrence of any other default by the Design/Builder under the provisions of the
Subcontract.
That if the City notifies the Subcontractor in writing that an event of default by
the Design/Builder, or other termination, has occurred under the Agreement, the
Subcontractor shall, at the City's request, waive the Design/Builder's default and
continue performance on the City's behalf under the Subcontract in accordance with its
terms, provided that the Subcontractor shall be paid in accordance with the Subcontract
for the following as and when they are due under the Subcontract:
(a) all services, work, labor and materials rendered on the Design/Builder's
behalf prior to the City's request;
(b) all services, work, labor and materials rendered on the City's behalf
following the City's request; and
(c) the amount of retainage, if any, withheld by the City from payments to
the Design/Builder made by the City prior to the City's request.
That in the event any Subcontract proceeds are disbursed by the City directly to
the Subcontractor, the Subcontractor will receive any such advances and will hold the
same as a trust and for the purpose of paying the costs of the labor performed and
equipment and supplies used in connection with the Project, and the Subcontractor will
apply the same only to payment of such costs and for no other purpose.
That upon the City's request, the Subcontractor shall furnish to the City a
current list of all persons or firms with whom the Subcontractor has entered into
subcontracts or other agreements relating to the performance of work or furnishing of
materials in connection with the Project which have a value of$1,000 or more, together
with a statement as to the status of each of such subcontract or agreement and the
respective amounts, if any, owed by the Subcontractor. The Design/Builder consents to
the furnishing to the City of such list and statement.
Subcontractor consents to the City assigning the City's rights under this
document to anyone whom the City may choose to complete the Design/Builder's
obligations, including without limitation, the Design/Builder's surety.
That the City has no obligation to exercise its rights under this Assignment and
furthermore has no obligation to pay Subcontractor unless the City exercises its rights
as set forth in this document.
That this Assignment does not create third party beneficiary rights under the
Agreement in favor of anyone, including Subcontractor.
i
IN WITNESS OF THE FOREGOING, this instrument shall be effective as of
the date of the Subcontract.
DESIGNBUILDER:
a Florida corporation
By:
Name:
Title:
Date:
STATE OF FLORIDA )
COUNTY OF BROWARD )
This instrument was acknowledged before me on 200_ by
who signed it on behalf of the corporation
identified above and who [ ] is personally know to me or [ ] produced
as identification.
Notary Public:
My Commission Expires:
By the signature below of an authorized agent of Subconsultant/Subcontractor, the
foregoing Assignment is acceptable.
SUBCONSULTANT (OR)
SUBCONTRACTOR:
By:
Name:
Title:
Date:
EXHIBIT I
PERFORMANCE BOND
TO: City of Dania Beach
PROJECT: P.J. Meli Recreation Complex
DESIGN/BUILDER:
DATE: , 200
STATE OF FLORIDA
COUNTY OF BROWARD )
KNOW ALL MEN BY THESE PRESENTS: That ,
a Florida corporation of the County of Broward, and State of Florida, as Principal, and
authorized, licensed and admitted to do business under
the laws of the State of Florida to act as surety on bonds, as Surety, are held and firmly
0 bound to the City of Dania Beach, a Florida municipal corporation (the "City"), as
obligee, in the penal sum of Dollars ($ ) for
the payment of which, the Principal and Surety bind themselves, and their heirs,
administrators, executors, successors and assigns, jointly and severally, by these
presents:
WHEREAS, the Principal has entered into that certain Design Build Agreement with
the City, dated , 200 , for the construction of certain park
improvements to P.J. Meli Recreation Park Complex (the "Agreement"), which
Agreement is by reference made a part of this document as fully and to the same extent
as if copied at length in it.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH THAT,
if the Principal shall faithfully perform the Agreement and shall in all respects duly and
faithfully observe and perform all and singular the covenants, conditions, warranties
and agreements in and by the Agreement agreed and covenanted by the Principal to be
observed and performed, and according to the true intent and meaning of the
Agreement, then this obligation shall be void; otherwise to remain in full force and
effect.
Whenever Principal shall be, and declared by the City to be in default under the
Agreement, the City having performed the City's obligations thereunder, the Surety
may promptly remedy the default, or shall promptly:
(1) Complete the Agreement in accordance with the terms and conditions; or
(2) Obtain a bid or bids for completion of the Agreement in accordance with its terms
and conditions, and upon determination by Surety of the lowest responsible bidder, or,
if the City elects, upon determination by the City and the Surety jointly of the lowest
responsible bidder, arrange for a contract between such bidder and Surety for
completion of the Agreement in accordance with the terms and conditions, and make
available as work progresses (even though there should be a default or a succession of
defaults under the contract or contracts of completion arranged under this contract or
contracts of completion arranged under this Paragraph) sufficient funds to pay the cost
of completion less the balance of the Agreement price; but not exceeding, including
other costs and damages for which Surety may be liable hereunder, the amounts set
forth in the first paragraph hereof. The term "balance of the Agreement price" as used in
this Paragraph, shall mean the total amount payable by the City to Design/Builder under
the Agreement and amendments to it, less the amount paid by the City to
Design/Builder and less amounts withheld by the City pursuant to its rights under the
Agreement.
Surety, for value received, stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Agreement, or to the work performed
thereunder, or the plans, specifications, or drawings accompanying the same, shall in
. any way affect its obligation on this bond, and it does waive notice of any such change,
extension of time, alteration or addition to the terms of the Agreement, or to the work to
be performed thereunder and further agrees to all of the terms contained in the
Agreement.
IN WITNESS OF THE FOREGOING, the said Principal and Surety have signed and
sealed this instrument on , 200
PRINCIPAL SURETY
By:
Name:
a Florida corporation Title:
Date:
By:
Name:
Title:
Date:
EXHIBIT J
LABOR AND MATERIAL PAYMENT BOND
TO: City of Dania Beach
PROJECT: P.J. Meli Park Recreation Complex
DESIGN/BUILDER:
DATE: , 200
STATE OF FLORIDA )
COUNTY OF BROWARD )
KNOW ALL MEN BY THESE PRESENTS: That ,
a Florida corporation of the County of Broward, and State of Florida, as Principal, and
, authorized, licensed and admitted to do business under
the laws of the State of Florida to act as surety on bonds, as Surety, are held and firmly
bound to the City of Dania Beach, a Florida municipal corporation (the "City"), as
obligee, in the sum of Dollars ($ ) for the payment of
which we bind ourselves, our heirs, personal representatives, successors, and assigns,
jointly and severally:
WHEREAS, the Principal has entered into a certain Design Build Agreement with the
City, dated 200_, for the construction of certain park improvements to P.J.
Meli Park Recreation Complex (the "Agreement"), which Agreement is by reference
made a part of this document as fully and to the same extent as if copied at length in it.
NOW, THEREFORE, THE CONDITION OF THIS BOND IS THAT IF PRINCIPAL:
1. Promptly makes payments to all lienors supplying labor, material, and supplies used
directly or indirectly by Principal in the prosecution of the work provided in the
Agreement; and
2. Pays the City all loss, damage, expenses, costs, and attorneys' fees, including
appellate proceedings, that the City sustains because of default by Principal under the
Agreement;
Then this bond is void; otherwise, it remains in full force.
Any changes, extensions of time, alterations or additions in or under the Agreement,
contract documents, plans, specifications or drawings, or the work to be performed
thereunder, and compliance or noncompliance with formalities connected with the
. Agreement or with the changes do not affect Surety's obligations under this Bond, and
Surety does waive notice of any such changes, extensions of time, alterations or
additions in or under the Agreement, contract documents, plans, specifications and
drawings, or the work to be performed thereunder.
This Bond is filed in accordance with Section 713.23, Florida Statues, or Section
255.05, Florida Statutes, whichever or both as may be applicable.
IN WITNESS OF THE FOREGOING, the Principal and Surety have signed and
sealed this instrument this on 9200
PRINCIPAL SURETY
By:
Name:
a Florida corporation Title:
Date:
By:
Name:
. Title:
Date:
. EXHIBIT K
NOTICE TO PROCEED
TO:
TO: City of Dania Beach
PROJECT: P.J. Meli Park Recreation Complex
DESIGN/BUILDER:
DATE: , 200
You are notified that the Contract Times under the Agreement for the above Project will
commence to run on , 20 . By that date, you are to start performing
your obligations under the Contract Documents. In accordance with Sections 4 and 6 of
the Agreement, the dates of Substantial Completion and completion and readiness for
final payment (Final Completion) are , 200_ and , 200
days respectively).
Before you may start any Work at any Site, Section l l of the Agreement requires you to
deliver to the City, which shall be listed as an additional named insured, Certificates of
Insurance that you are required to purchase and maintain in accordance with the
Contract Documents.
Also before you may start any Work at the site, you must
(if necessary, add other requirements)
(CITY'S PROJECT REPRESENTATIVE)
By:
(AUTHORIZED SIGNATURE)
• (TITLE)
f, CITY OF DANIA BEACH
Agenda Item # 4p,
Agenda Request Item
Date of Commission Meeting: 5/9/2006
Adopt Resolution ❑ Adopt Ordinance (1st Reading) ❑ Adopt Ordinance (2nd Reading) ❑
Award Bid/RFP ® Presentation ❑ Continued from:
R6 ud tedz'ACt1om (Itlenfity appropriate Action orMoUon) :'
�. . _ a. z
Select Coastal Contracting Inc. for the construction of the P.J. Meli Recreation Center project.
INhy Action is Necessary
The bid review committee has determined that Coastal Contracting Inc. can best provide the project services.
-"t,Act�on Accomplishes
v . .
The project will provide for a modest remodeling of the Recreation Center for the residents of Dania Beach.
Purchasing:Requests
. e . .. . . _m ' _.
Dept: 7207 Recreation PJ Meli Park Acct#: 301-7207-572.62-10 Amt:
Fund: General: ❑ water: ❑ Sewer: ❑ Stormwater: ❑ Grants: ❑ Capital:
Summary Exp1 anationlBackground �.;
F actic A Summary
- .
The project was originally approved for$325,000 which was funded from the General Obligation Bond. The project came
in $82,324 above budget and and without any allocation of contingency for change orders. The additional funding will be
erived from the"Donations from the Park Impact Fee"
Exhibits Attached x
Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8
uthor�zed,Signatures
Submitted by
Mark T. Felicetty Date 04/18/06
Department Director
Kristen Jones Date 04/18/06
HR Director
Date
Finance Director
Patricia Varney Date 04/18/06
City Attorney
Thomas J. Ansbro Date 04/18/06
City Manager
Ivan Pato Date 04/19/06
x
Citty Clerk Use
Commission Action:
Approved: ❑ Denied: ❑ Continued to: ❑