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HomeMy WebLinkAboutR-2003-232 for Meli Pool Amend. Swim Central RESOLUTION NO. 2003-232 A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA,APPROVING THE AMENDED EXHIBIT "B" GRANT PROJECT DESCRIPTION OF THE BROWARD COUNTY SWIM CENTRAL GRANT PROGRAM AGREEMENT FOR THE PATRICK J. MELI AQUATIC COMPLEX, TO AMEND THE TOTAL COST OF THE PROJECT FROM $1,172,080.00 TO $1,231,465.00; APPROVING A PROPOSAL BY COASTAL CONTRACTING AND DEVELOPMENT INC. TO CONSTRUCT A 36' BY 18' BY 3' DEEP POOL IN THE AMOUNT OF $59,385.00 WITHOUT COMPETITIVE BIDDING AND WITHOUT ADVERTISEMENT FOR BIDS; PROVIDING FUNDING IN THE AMOUNT OF $59,385.00 FROM CITY RECREATION IMPACT FEES; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Dania Beach and Broward County have identified the need to revise the original Exhibit "B" of the Broward County Swim Central Grant Agreement; and WHEREAS, the City has agreed to build an 18' x 36' x 3' deep swimming pool at Patrick J. Meli Park as part of the Patrick J. Meli Aquatic Complex; and WHEREAS, the Charter of the City of Dania Beach, Part III, Article 3, Section 4, Subsection 0), provides that during unusual conditions or emergencies, the City Commission may, by resolution, authorize the purchase by the City Manager of designated supplies, services, equipment and materials in amounts in excess of fifteen thousand dollars ($15,000.00) without competitive bids and without advertisement for bids; and WHEREAS, the City Manager has determined that it is necessary to purchase services to construct a 36' by 18' by 3' deep pool at the Complex; and WHEREAS, the City Manager has determined that such services can be rendered to the City at the least cost from Coastal Contracting and Development, Inc. in an amount not to exceed $59,385.00; 1 RESOLUTION NO. 2003-232 ® 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 approve the amended Exhibit B of the Broward County Swim Central Grant Agreement- Patrick J. Meli Aquatic Complex as provided by Broward County, a copy of which Exhibit is attached to this Resolution. Section 2. That upon adoption of this resolution, the Finance Director is authorized to appropriate the necessary funds from the City Recreation Impact Fees for the funding of the project Section 3. That the proposal submitted by Coastal Contracting and Development Inc. is approved for the construction of an 18' by 36' by 3' deep pool in the amount of $59,385.00. 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 OCTOBER 1 T", 2 03. OB A TON MAYOR-COMMISSIONER ATTEST: ROLL CALL: COMMISSIONER CHUNNA,a� j COMMISSIONER FLURY - Q COMMISSIONER MIKES -R-� CHARLENE JUUNSON VICE-MAYOR MCEL EA- CITY CLERK MAYOR ANTON - APPROVED AS TO FORM AND CORRECTNESS: BY: r THOMAS J. SBRO CITY ATTORNEY 2 RESOLUTION NO. 2003-232 I \ EXHIBIT "B" GRANT PROJECT DESCRIPTION City of Dania Beach — Patrick J. Meli Aquatic Complex (Amendment) Project Description and Budget Project Description: Construction of a swimming pool complex to include two pools: a 75'x82'x6'sq.ft. Myrtha-like swimming pool and a 18'x36'x3' Gunite-like teaching pool; restroom/changing room bldg., storage/ equipment bldg., filtration/heating systems, concrete decking, deck/security fencing, and landscaping with irrigation system. Project Estimated Expenses Components Grant Funded City Funded Myrtha- like Swimming Pool $606,845 59,385 Gunite Instructional Pool 43,000 Pool Filtration System 62,000 Pool Heating Systems 55,000 Concrete Pool Deck 40,800 Retaining walls & Perimeter walk slab 7,500 ® ADA Pool Access 4,200 Pool Deck Fencing 26,750 Restroom/Changing Room Bldg. 138,000 Storage/Equipment Building 60,000 Landscape & Irrigation 25,000 Architectural & Engineering 73,585 Site Work & Utilities 29,000 Subtotals 1,172,080 59,385 Total $1,231,465 Project Timetable Management Scheduled Actions Completion Project Components Final Definition July- 02 Design/Build Firm Selection November- 02 Architectural and Engineering Designs December- 02 Site Work and Utilities Installation January- 03 Facilities Construction December- 03 Equipment Installation & Testing March- 04 Swimming Pool Dedication Ceremony June- 04 DESIGN BUILD :AGREEMENT HIS-D SIN BUILD AGREEMENT (the "Agreement") is entered into and effective Oil . 2003 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 330.04 and Coastal Contracting and Development, Inc., 807 N. Northlake Drive, Hollywood. Florida 33019, a Florida corporation ("Desi.gn/Builder"). RECITALS 1. City is the owner of certain parcels of real property located at 2901 Southwest 5211d Street, Dania Beach, Florida. 2. On October 14. 20037 the City adopted Resolution 2003-232 authorizing the construction of a 3G x 18" x 3' (deep) pool (the "Project") in conjunction with the construction of the Patrick J. Meli Park Aquatic Complex. 4. City desires to engage Desigin/Builder, and Design/Builder a-rees 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 Sununlary") 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 Section 2 of this Agreement. 1.1 Proiect Description. The "Project" consists of the design and construction of a 36' x 18' x 3' (deep) pool in conjunction with the Patrick J. Meli Park Aquatic Complex as outlined in Attachment "A". 1.2 Project Representath,cs. For purposes of this Project, the following shall serve as the Project Representative for each party: Citv Bonnie Temchuk Phone (954) 924-3613 No: City's Project Bonnie Temchuk Phone (954) 924-3613 Re resentative No: uilder Garv_ J. McGeddy Phone (954) 920-7444 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 schedule 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 th commence to run on the thirtieth () ) 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 shall not exceed $59,385. 00 (Fifty-nine Thousand Three Hundred Eighty Five 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 "Attaclunents" means the written documents attached to this Agreement, if any, by the City. 2.3 "Building Division" means the City of Dania Beach Building Division. 2.4 "City" means City of Dania Beach. 2.5 City's Project Representative —The persons designated in Section 1-2, above. 2.6 "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. • 2.7- "Contract Documents" means this Aureement. the Plans and Specifications and all exhibits and documents related to them and contemplated by theta, 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. 2.8 "Construction Work'' means _the construction of the Project required of the Design/Builder under the terms-of this Agreement and the Contract Documents. 2.9 "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 "Ngreement. 2.10 . "County" means Broward County. 2.1 I "Dav" or "Days' means a calendar day or days. 2.12 "Desi(_)n/Builder" means Coastal Contracting and Development. Inc.. a Florida corporation. 2.13 "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. 2.14 "Design Services" are all design services performed by and required of the Design/Builder pursuant to this Agreement and includes services performed by the Dcsiun/Buildet's Subconsultants. 2.15 "Field Office" means the field office at the Project Location provided by the Desian/Builder. 2.16 "Final Completion" means that all Work required under the Contract Documents has been fully and properly completed, including punch list items. issuance of certificates of final occupancy and use, delivery of record drawings, electronic files manuals, and performance of all required training. 2.17 "Materials' means materials, supplies, apparatus, appliances, equipment, fixtures, machinery, tools and all other items furnished or delivered in connection with the Project. 2.18 "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" 2.19 "Project" means the design and construction. in accordance with this Agreement and the Contract Documents, of the 36' x 18' x 3' (deep) pool in conjunction with the Patrick J. Meli Park Aquatic Complex. i 2.20 "Project Location" or "Project Site" means the property where the Project is to be • constructed. 2.21 "Project Representative" means each of the professional persons selected by City and the Design/Builder to act as the parties' respective representatives and to interact with each other. 2.22 "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 pa}-inent. 2.23 "Subconsultant" means any person or entity, other than Design/Builder's own employees. employed or retained by. or under contract with Design/Builder to perform a portion of the Design Services under this Agreement. 2.24 "Subconsultant Contract" means any contract in .writing between the Design/Builder and a Subconsultant. 2.25 "Subcontractor" means any person or entity, other than the Design/Builder's own employees, employed or retained by, or under contract with the Design/Builder to perform the non-design portion of the Work. 2.26 "Subcontractor Contract" means any contract in writing between the Desi<Ln/Builder and a Subcontractor. 2.27 "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. 2.28 "Work" means the Design Services and Construction Work of the Project required of the Design/Builder under the terms of this Agreement and the Contract Documents. 3. ADMINISTRATION OF THE CONTRACT 3.1 The City's Project Representative will have the authority to act on behalf of the Citv 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 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 4 facilities for such access so the City's personnel and the Citv's Project 'Representative may perform their functions under the contract. • 3.3 he City's Project Representative will make periodic visits to the site.to become familiar 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 City 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 Public Services Department, 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 the City nor 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 Desi2n/Builder and will not show partiality to either. 3.8 The Design/Builder shall forward all communications to the City's Project Representative with copies to the City. 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 Payinent Certificates. • 3.10 The duties. responsibilities and limitations of authority of the Citv's Project Representative during assembly as set forth in these Contract Documents will not be mjdi[ied ® 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 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). 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 3.1 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 DesigiVBuilder 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 10 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 Desigri/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 6 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 indemnify and hold City, its officers and employees harmless tothe extent speci.tied in-Section- 12.1 of this Contract if the Design/Builder violates the requirements of this Section 4.1.4. 4.1.5 The Design/Builder shall design and constructor cause to be designed and constructed the Project for City at the Project Location with supporting improvements. facilities and equipment .as described or reasonablv inferable from the Contract Documents. The Design/Builder shall provide. furnish and install all Materials and all Services except to 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 agood 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 alI 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/Builder's Project Representative must be approved by City, such approval not to be unreasonably withheld. The Design/Builder's Project Representative shall represent the Design/Builder and communications given to the Project Representative shall be as binding as if (liven to the Design/Builder. 4.1.8 Neither City nor the City's Project Representative makes any warranties to the Design/Builder, express 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 Desi-rYBuilder 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 7 such notice. the DeslQ n/Bullder shall assume appropriate responsibility for such performance and shall- bear an appropriate amount of the attributable costs for correction. The int::nt 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 anyone 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 otherxvise. 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 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 inade 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 Design/Builder's obligations under this Agreement. All shop drawings, submittals, sannples, 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 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 Desigmn/Builder shall submit a Schedule of Submittals to the City's Project Representative for approval. The Schedule of Submittals shall indicate the Design/Builder'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 Desion/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 its plans and specifications. 8 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, 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 Nvith 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 Desigri/Builder shall pay all royalties and license fees that are legally required at any time during the Design/Budder'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 Citv harmless from any loss, liabilitv or expense on account thereof. 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 DesignJBuilder, as a part of its proposal is required to develop and submit. in a di�(,ital 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/Builders team members. 9 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 durinL, the Work. 4.2.4 The construction schedule shall be related to each of the two projects 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/Builder's proposal and as issued within the Notice to Proceed (NTP) authorizing the Design/Builder's commencement of Work. If the Design/Builder's schedule does not entail the full performance period, 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/Builder's applications for payment. 4.2.7 The Subcontractor's list shall be based upon and include names of Subcontractors, persons or entities (including those who 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/Builder'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 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 10 Specifications shall in no waydiminish 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 Desiar�/Builder knew or should have known of the occurrence upon which the Design/Builder's request for adjustment is based. 5.1.3 The Desion/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 Citv's Project Representative 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. 5.1.4 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, contract with, or the use of the services of any Subconsultant shall be subject to City's Project Representative's written approval in accordance with Section 10 below. No such approval shall be construed as an agreement between City and any Subconsultant. 5.1.5 The Design/Builder shall furnish to Citys 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 Citv 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. 5.1.6 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 \Mork Plan shall include at a minimum the following: 11 a. Design Team Organization and Directory identifving 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. 5.1.7 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. 5.1.8 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. 5.2 Schedule of Performance 5.2.1 On or before scheduled due dates for each phase, the Design Builder shall make milestone submittals to the City in accordance with the following table: 12 Phase Milestone Due Date Design Development Documents 100% Submittal Thirty (30) days from Notice.to Proceed Construction Documents 65%' .Submittal Sixty(60) days.from Notice to Proceed Construction Documents 100% Submittal Ninety(90)days.from Notice to Proceed 5.3 Submittals and Review of Design Documents 5.3.1 Progress Submittals. The Design/Builder shall submit pro( ress 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 ,v.ith 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 Desigi-Muilder 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 willprovide 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 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 Desigiv Builder if any further reconciliation is required. 13 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 shalt 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 5.32. The Design Development Documents 100% milestone submittal shall consist of five (5) full size sets of drawings; five (5) 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 five (5) full size sets of drawings; five (5) 1 F x 17" size sets of drawings and five (5) 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 5.32. This set, with full resolution of review comments, as determined by City, shall establish 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 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 14 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 five (5) full size sets of drawings; five (5) 11" x 17". size sets of drawings and five (5) 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 Project Representative's 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 Chance 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 Lovernmental 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. 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 engaged 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 Citv or direct DesignYBuilder except as expressly set forth in this Agreement. • 15 6.2 The Project Representative shall at all times have access to the Project Locations 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 Cite. 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. 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. 16 7.3 Delays that affect.those activities not identified on the Project's critical path shall 'not be considered for a Contract Tirne 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/Bui]der's performance of the Work. 7.4 Substantial Completion 7.4.1 When the DesiarYBuilder considers that the Work. or portion thereof' which the City's Project Representative agrees to accept separately, is substantially complete the Desion/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 thereof, shall be submitted by the Design/Builder at the time of the request for the City's Project Representative inspection. The City's Project 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 Final Completion. Corrections or modifications of Project closeout submittals shall not be used as justification for a tiine extension. 7.4.3 Upon receipt of the Design/BuiIder's Request for Substantial Completion Inspection, the Citv's Project Representative will make a preliminary inspection to determine whether the Work or designated portion thereof is appropriately 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/Builder'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 him by the City's Project Representative. The Design/Builder shall then submit 17 another request for inspection by the_ Citv's Project Representative to determine the completion status of the Work or designated portion thereof. 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, S500.00 (Five hundred 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 amount owing or retained is insufficient to fully pay City Liquidated Damaues, the Desi-n/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 of 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 Work, or for the nonperformance of Work. 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 18 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 Citv'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 "DesigivBuilder's Estimate") of they 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_ resulfing 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 Contract Sum, the Substantial Completion Date, subject to performance thereof and payment therefor 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 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 DeSlLn/B Lill der 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 chin<ues to the Work. 19 $.� Tt 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 of its 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 such person that any such Work is required under the contract and no future claim fonsuch 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 9 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 its 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 Desian/Builder shall prepare, and submit to the City's Project Representative for its approval a schedule of values allocating 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/Builder'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 99 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 20 Work is in accordance with the Plans and 'Specifications. and (ill) all monies previously reimbursed by the City to the Design/Builder have been. disbursed to the. appropriate ® Subeonsultants, 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 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 DesigidBuilder 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 21 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.("F inal Payment'') within 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 "E".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 (1) 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 (1), (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 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, in its 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 Desian/Builder shall use the sums paid to it pursuant to this Article 9 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 "G" 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 DesiLnn/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 (includin- 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 locations 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 personnel not covered by collective bamaining 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 23 Desi«n/Builder shall.requlre 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. O•:ertime 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 (i.e. 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, travelin- 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 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/Builder'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 24 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 shalt 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 mv� ntorv. the Citv`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 «ood 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) 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 as may be required, subject to the written approval of the City's Project Representative including bonds for Subcontractor Contracts in excess of$50,000 (Fifty thousand Dollars). Premiums paid as part of the Cost of Work Cost shall be net of trade discounts, volume discounts, dividends, and other adjustments. 9.11.8 The cost of all fees and assessments for any building pert-nit and for other permits. licenses. and inspections, which the Design/Builder is required by the Contract Documents to pay, excepting City building permit fees and inspection costs, which are waived. 9.11.9 The cost of prompt removal of all of the DesigiVBuilder'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 requirements in this re<aard. 25 9.*11.10 The cost and expenses, actually sustained by the Design/Builder in connection with the Work. of protecting and repairing adjoining property, if required (thy City's Project Representative prior approval for repairs must be obtained except in emergencies),.and of settlements for same mad_ e 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. 9.11.11 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. 9.11.12 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. 9.11.13 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. 9.11.14 Any other expenses or charges incurred, with the prior written approval of the Citv's Project Representative, in the performance of the Work. 9.11.15 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. 9.11.16 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 Desigi�/Builder and City. 9.11.17 Costs of correction of the Work under Section 28.1 below, if the costs are not attributable to the fault or negli-ence 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: 26 9.12.1 The services and related expenses. except as otherwise provided in Section 9.1 1.1 above, of any officers or general office supervisory personnel of the Design/Builder and !� of personnel in the DesigiVBuilder'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/Builder'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 DeslgmBullder's purchasing. secretarial. estimating and accounting departments and clerical staff-at the Design/Builders 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 Desigri/Builder for federal, state or local income or franchise taxes. 9.12.5 Except as set forth in Section 9.11.18 above, costs due to the negligence of ® the Desigri/Builder, anv Subconsultant or Subcontractor or supplier employed by the Dcsi(_,n/Builder or anyone directly or indirectly employed by any of them, or for whose acts anv 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 resulting from lost, damaged, or stolen tools and equipment. 9.12.12 Any cost not specified in Section 9.11 above. • 27 1(l. SUBCONTRACTOR AND SU13CONSULTANT CONTRACTS AND PURCHASE ORDERS 10.1 Thirty (30) calendar days after execution of the Agreement, the Design/Builder shall prepare and submit for the City Project Representative's 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 Dcsi�-,n/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 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 Desigr/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 Subcontractor 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 Desian/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 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 Design/Builder shall provide or cause to be provided insurance as specified in ® the agreement which exists between the City and the Design/Builder to build the aquatic 28 complex at Patrick J. Meli Park. all of which insurance provisions are incorporated by this reference into this agreement. The cost of such insurance is included in the Contract Sum. File failure of the Design/Builder to provide and continuously maintain suchinsurance in effect shall be considered a material breach of this Agreement. Insurance purchased by the Design/Builder shall be purchased from a carrier acceptable to City. '11.2 Design/Builder shall maintain the coverages for insurance and thereafter during any.and every period when Design/Builder and any of its Subcontractors are performing any NN7ork or furnishing all,,, services pursuant to the Contract Documents. Upon execution of this Agreement, Design/Builder shall provide or cause to be provided certificates for Workers' Compensation insurance, comprehensive general liability insurance, business automobile insurance,-and the umbrella.liability insurance policies. Immediately following the issuance of the Notice to Proceed for the Construction Work, DesigiVBuilder shall provide the professional liability and builder's risk insurance policies: provided. however. no Construction Work shall be performed unless and until the builder's risk insurance policy is provided to the City in accordance with this Agreement 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 attorney 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 Desi<_,n/Builder to indemnifv, 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 tills Agreement 12.2 To the extent considered necessary by City and the City's Project Representative, an} 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 Citv. 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 Bonds are not required for this Project. 29 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 Desian/Builder represents that it has inspected the Project Locations and is satisfied as to their 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, Desicyn/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. 16. AS-BUILT PLANS AND SPECIFICATIONS 30 Concurrent ith the Finial Request for Pavment. 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 713.0](24), Florida Statutes. Design/Builder further acknowledges and agrees that the Work to be performed under this Agreement is for the construction of public buildin(-Ts 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/Builder'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 Designh/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 anv 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 shall vest in City; provided, however. the 3] vesting of such title shall not impose anyobli(rations 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 toss (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 to the extent specified in Section 12.1, above from and against claims, damages, losses, causes of action, suits and liabilities 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 a 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 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 to the extent specified in Section 12.1 32 above. which arise out of'. are incidental to. or resulting from tl1e 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 Design/Builder'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, compouIId. or mixture. defined in or included under or regulated by any local, state, or federal law, rule. ordinance. by-law, or regulation pertainincy to environmental regulation, contamination, clean-up or disclosure, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of1980 ("CERCLA"), the Resource Conservation and Recovery Act ("RCRA"), the Toxic Substances Control Act ("TSCA"), the Clean Water Act ("CWA"), 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 0 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 20 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 Desion/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. 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 lays, ordinances, rules, regulations and restrictions. 21.3 The Deli«n!Buildel a,_,rces that all of the DesiRn/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 workers employed on the Project Locations 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 Desigi-/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: 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. 34 24.2' 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 wlieri 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, materialinan, 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 DesiL,n/Builder that the' Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion in Section 7). 24.3 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. 24.4 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. 24.5 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. 25. USE OF SITE AND OTHER AREAS 25.1 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. Desion/Builder shall promptly 0 settle with such other party by negotiation or otherwise resolve the claim by arbitration or other 35 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. 25.2 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. 25.3 Desicyn/Builder shall not load nor permit any part of any structure to be loaded in airy 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. 26. RELATED CONSTRUCTION AT SITE 26.1 City may perform other work at a 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 Desigi-/Builder believes that such performance will involve additional time and the parties are unable to agree as to its amount or extent. 26.2 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 perfoniiing 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 26 are for the benefit of such utility owners and other contractors to the extent that 36 there are comparable provisions for the benefit of Design/Builder in the direct contracts between City and such utility owners and other contractors. 26.3. If the proper execution or results of any part of De.sign/Builder's Work depends upon work performed or services provided by others under.this Section 26. Design/Builder shall inspect such other work and promptly.report to the City'sProject 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.. Desigri/Builder's failure so to report will constitute an acceptance of such other vv&k as fit and proper for integration with Design/Builder's Work except for latent or nonapparent defects and deficiencies in such other work. 26.4 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 wr.itiM-1 to Design/Builder prior to the commencement of such work: 26.4.1 the individual who or entity which will have authority and responsibility for coordination of the activities among the various prime contractors will be identified, 26.4.2 the specific matters to be covered by such authority and responsibility will be itemized, and 26.4.3 the extent of such authority and responsibilities will be provided. 27. DESIGN/BUILDER'S WARRANTIES The Design/Builder represents and warrants to the City: 27.1 That it is financially solvent, able to pay its debts as they mature, and is possessed Of sufficient workino, 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. 27.2 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. 27.3 That the Work shall be constructed in a good and workmanlike manner, free from defects, and in strict compliance with the Contract Documents. 28. DEFECTS 28.1 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 37 the Project or associated furniture. fixtures. equipment or other items (whether placed at a Project Location by City or anv 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 28 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 28, the Desigi-/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 28 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. 28.2 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 froin 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. 28.3 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. 28.4 If City elects to perform the Work described in this Section 28, this shall not void or otherwise impair the Bonds required by this Agreement. If City elects to enforce the 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. 29. 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 Location, shall be subject to the prior written approval of the City's Project Representative. The DesignlBuilder 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. 30. PRESS RELEASES 38 ® 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. 31. OWNERSHIP OF CONTRACT DOCUMENTS All Plans, Specifications, Detail Drawings and other Drawings prepared in connection . with the Project._ upon payment by City to Des1 VBuilder, 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. 32. REPRESENTATIVES 32.1 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. 32.2 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 Citv and the Design Consultant, in writing, of any limitations on the authoritv of Desion/Builder's Project Representative, such Representative shall have full authority to execute anv 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. 33 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 Citv 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. 34. 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 Aoreement. 39 35. 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. 36. CONSTRUCTION OF TERMS; CONFLICTS 36.1 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 or subdivision, as the context shall require. 36.2 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. 37. 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. 38. 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. 39. TERMINATION 40 39.1 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 39.1, 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 DesigrvBuilder 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 Sure. 39.2 In addition to City's right to terminate this Agreement for default under the terms of Section 22.2 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. In the event of termination under this Section 39.2, 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 41 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/Builder'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 39.2,.it is determined that the Design/Builder was not in default or that sufficient cause to terminate under Section 39.2 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 39.1, 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. 39.3 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 thereof 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. 39.4 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 or 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. 39.5 The rights and remedies of City under this Section 39 shall be non-exclusive, and shall be in addition to all the other remedies available to City at law or in equity. 40. DISPUTE RESOLUTION 40.1 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 42 VENiiE SI--TALL BE CONSISTENT 'WITH THE REQUIREMENTS OF SECTION 47.025. ® FLORIDA STATUTES. 40.2 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 inake payments in, accordance with.the Contract Documents, except for performance and payment related to the disputed matter. 41. 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, postage pre- paid and by 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 anv termination of this A,_,reement shall be hand-delivered or sent by certified mail, return receipt requested, postage pre-paid, to the recipient party. Notice givcn 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 in Section 50 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. 42. 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. 43. RECORD DRAWINGS 43.1 A marked up set of plans and specifications will be kept up to date by the Design/Builder on the Project site at all times. The Design/Builder shall record all construction and 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 reproducible drawings on 3 Mil Mylar, 5 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. 44. 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. 43 :t; GUARANTEE In addition to and not as a substitute for Sections 27 and .28 of this Agreement, the Design/Builder shall guarantee the Work for a period of at least one year (and for additional periods where extended or special warranties 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, DesiLm/Builder shall remedy any defects due thereto and pay all expenses for any damages to other Work resulting therefrom. 46. TEMPORARY UTILITIES 46.1 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. 46.2 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. 46.3 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. 47. 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. 48. CLEANING UP 48.1 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) or site broom clean. 48.2 Any salvage resulting from clearing, grubbing, grading, draining, remodeling or altering any existing facilities on the Project 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. 44 48.3 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. 49. 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. 50. 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 ® NN'ith a copy to: Thomas J. Ansbro, City Attorney Weiss Scrota Helfinan Pastoriza & Guedes. P.A. 3107 Stirling Road. Suite 300 Fort Lauderdale, Florida 33312 Fax No. (954) 764-7770 If to Design/Builder: Mr. Gary J. McGeddy Coastal Contracting and Development, Inc. 807 N.Northlake Drive Hollywood, Florida 33019 Fax No. (954) 927-4480 If to City's Project Representative: Ms. Boiulie Temchuk City of Dania Beach 100 West Dania Beach Blvd. Dania Beach, Florida 33004 Fax No. (954) 921-2604 45 IN WITNESS OF THE FOREGOING. this Agreement is executed and effectiveas of the date first above set forth. DESIGN/BUILDER COAST CON CTING VELOPMENT, INC., a Flori or do 13y: Print Name, Title Dated: 2003 CITY: CITY OF DANIA BEACH, / a Florianjun'cipall co poration B}-: By: ob Anton, Mayor 'IvanVato, ity Manager Dated:�> r IF 2003 ATTEST: By: Charlene Johnson,0 tv Clerk APPROVED AS TO F AND CORRECTNESS: By: �" i ;`�' Th mas J Ansbro, City Attorney 46 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 eighty (180) days after issuance. Final Completion shall occur within forty-five (45) 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 06/100 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, per Project Site, if applicable and (b) Five Hundred and 00/100 Dollars ($500.00) per diem conunencing upon the first day following expiration of the Final Completion Date and continuing until the actual date of Final Completion as applicable. 47 EXHIBIT B CHANGE ORDER TO: City of Dania Beach PROJECT: 36' x 18' x 3' (Deep) Pool in Conjunction with the Patrick J. Meli Aquatic Complex DESIGN/BUILDER:Coastal Contracting and Development, Inc. 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 $ .00 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. COASTAL CONTRACTING CITY OF DANIA BEACH, AND DEVELOPMENT, INC. 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 48 EXHIBIT C REQUEST FOR PAYMENT TO: City of Dania Beach PROJECT: 36' x 18' x 3' (deep) Pool in conjunction with the Patrick J. Meli Aquatic Complex DESIGN/BUILDER: Coastal Contfacting and.Development, Inc. DATE: , 200 Invoice 9:. Date: Application is made for payment as shown below, in connection with the Desigii/Build Agreement (additional sheets are attached to provide a complete breakdown of the requested payment): I.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) $ 49 The undersigned Design/Builder certifies that to the best .of the Design/Builder's knowledge, information and belief, the Work covered by this Request for Payment nas 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 lczlown 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 aniount requested and that, except fo►- 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. COASTAL CONTRACTING AND DEVELOPMENT, INC. a Florida corporation By: Name: Title: 50 EXI-IMIT 1 ® CERTIFICATE OF SUBCONTRACTOR.& FINAL WAIVER OF LIEN TO: City of Dania Beach PROJECT: 3.6' x 18' x 3' (deep) pool in conjunction with the Patrick J. Meli Aquatic.Complex -DESIGN/BUILDER: Coastal Contracting and-Developnient, Inc. DATE: , 200 The undersigned, being duly sworn, on oath deposes and says under penalty of perjurN 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 an}, 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 damaL,e, 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 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 51 and all other property owned by the City, in connection with labor. supplies. Materials and strwices supplied by the undersigned to the Project prior to and through the &te of this ® document; and THAT the undersigned Subcontractor does acknowledge and represent that: 1. Through the date of this document, the undersigned Iias 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: (name typed) My Commission Expires: 52 EXHIBIT E ® CERTIFICATE OF DESIGN%BUILDE,R & FINAL WAIVER OF LIEN TO: City of Dania Beach PROJECT: 36' x 18' x 3' (deep) pool in conjunction with the Patrick J. Meli Aquatic Complex DESIGN/BUILDER: Coastal Contracting and Development, Inc. 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 Desigi-/Builder in connection with the Design/Builder's participation in the construction of the Project, the DesigiVBuilder will inunediately 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 53 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 n/Builder does acknowledge g g and represent that: 1. Throubh 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 Desigtl/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: COASTAL CONTRACTING AND DEVELOPMENT, INC., 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: (name typed) My Commission Expires: 54 EXHIBIT F ® CERTIFICATE OF DESIGN/BUILDER & PARTIAL WAIVER OF LIEN TO: City of Dania Beach PROJECT: 36' x 18' x 3' (deep) pool in conjunction with the Patrick J. Meli Aquatic Complex . DESIGN/BUILDER: Coastal Contracting and Development, Inc. 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 la,,vs, 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 55 services supplied by the. undersigned to the Project prior to and through the date of this document, and ® THAT the undersigned Design/Builder n/Builder does acknowledge g g knowledge 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/Budder 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 S of is being withheld pursuant to the terms of the Agreement. This instrument has been executed on , 200 DESIGN/BUILDER: COASTAL CONTRACTING AND DEVELOPMENT, INC., 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: (name typed) My Commission Expires: 56 EXHIBIT G .-CERTIFICATE OF SUBCONTRACTOR & PARTIAL WAIVER OF LIEN TO: City of Dania Beach PROJECT:36' x 18' x 3' (deep) pool in conjunction with the Patrick J. Meli Aquatic Complex DESIGN/BUILDER: Coastal Contracting and Development, Inc. 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 DesigrVBuilder 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 damae, 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 57 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 th-e 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 S is being withheld pursuant to the terms of the Agreement. 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 signed it on behalf of the corporation identified above and who [ ] is personally know to me or [ ] produced as identification. Notary Public: (name typed) My Commission Expires: 58 EXHIBIT H ASSIGNMENT TO:. City of Dania Beach PROJECT:36' x 18' x 3' (deep) pool in conjunction with the Patrick J. Meli Aquatic Complex DESIGN%BUILDER: Coastal Contracting and Development, Inc. DATE: , 200 ASSIGNMENT OF RIGHTS UNDER SUBCONTRACTOR CONTRA CTISUBCONSULTANT CONTRACT For and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, Coastal Contracting and Development, Inc., whose mailing address is 807 N. Northlake Drive, Hollywood, Florida 33019 (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 DesignJBuilder 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. 59 That if the City notifies the Subcontractor in writing that an event of defaL:lt 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. IN WITNESS OF THE FOREGOING, this instrument shall be effective as of the date of the Subcontract. 60 DESIGN/BUILDER: ® COASTAL CONTRACTING AND DEVELOPMENT, INC., 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: (name typed) 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: 61 i EXHIBIT K NOTICE TO PROCEED TO: Coastal Contracting and Development, Inc. From: City of Dania Beach, Florida PROJECT: 36' x IS' x Y (deep) pool in conjunction with the Patrick J. Meli Aquatic Complex DESIGN/BUILDER: Coastal Contra n nd Development, Inc. DATE: November 7, 2 ,�. You are notified that the Contract Times under the Agreement for the above Project will commence to run on November 7 that date, you are to start performing your obligations under the Contract Docum nt . In accordance with applicable provisions of the Agreement, the dates of Substantial Completion and completion and readiness for final payment (Final Completion) are April 1, 2004 and April 30, 2004, days respectively. Before you may start any Work at any Site, paragraph 10.2 of the Agreement requires you to deliver to the City, which shall be listed as an additional 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) tBB TY'S PROJECT REPRESENT VE : ORIZED SIGNATURE) Age- (TITLE 66 m r; ip 6- ar FLORIDA December 18, 2003 Gary McGeddy, President Coastal Contracting and Development, Inc. 8807 N. Northlake Drive Hollywood, FL 33022 RE: PATRICK J. MELI AQUATIC COMPLEX. Dear Mr. McGeddy: On October 14, 2003, the Dania Beach City Commission adopted Resolution No. 2003-232 approving the construction by Coastal Contracting and Development Inc. of a 36' x 18' x 3' deep pool at Patrick J. Meli Aquatic Complex. ® We enclose for your records, a copy of the resolution and one (1) original agreement that has been fully executed by the City of Dania Beach and your company. If you have any questions regarding this agreement, please contact Bonnie Temchuk, Assistant to the City Manager, at (954) 924-3613. Sincerely, Miriam Nasser Deputy City Clerk Enclosures `Broward's First Cirv" 100 West Dania Beach Boulevard Dania Beach, Florida 33004 Phone: (954) 924-3600 www.ci.dania-beach.11.Lis Agenda Request Form � r )L abaft ` City of Dania Beach '., B 7 a Agenda Item: Date of Commission meeting: 1 011 4/2 0 0 3 Description of Agenda Item: Approval of amended Exhibit B Broward County Swim Central Grant Commission action being requested: Adopt Resolution or Ordinance © Expenditure ❑ Award BID/ RFP ❑ Presentation ❑ General approval of item ❑ Continued from meeting Other(Phease explain) �� m , mmary explana o an n d background Broward County is requesting we accept the amended Exhibit"B" of the Broward County Swim Central Grant Agreement to include the addition of a 18' x 36'x 3' deep pool. Coastal Contracting and ® Development Inc. has determined the cost of the addition to be $59.385. We request approval of Coastal Contracting and Development to construct this pool to be located directly behind and to the east of the existing pool. Attach6d`exhibits0 and addition al'backup materials (Ple`ase .. �. �... ( �� 9_ Resolution -electronic attachment Exhibit-electronic attachments Project Manager's Report- paper attachment Proposal from Coastal Contracting and Development- paper attachment For purchasing requests ONLY Department: Amount: Fund: General: ❑ Water: ❑ Sewer: ❑ Stormwater: ❑ Grants: ❑ Capital: ❑ Account Name: Account Number: Submitted by: btemchuk Date: 10/8/2003 Department Director. btemchuk Date: 10/8/2003 Admin. Services Director., Date: Finance Director: � � Date: City Manager. �i. ,� Date: BesigHOCORSIMC1100 —4m "An unconventional company in a conventional industry"sM October 9, 2003 Ms. Bonnie Temchuk, Assistant to the City Manager City of Dania Beach 100 W. Dania Beach Blvd. Dania Beach, Florida 33004 Re: Patrick J.Meli Swimming Pool Complex Alternative to 0' Depth Pool Dear Bonnie, As a follow up to our meeting this morning concerning the additional swimming pool to be constructed at Patrick J. Meli Park necessary for the accommodation of instructing small children, I wanted to clarify the issue regarding the 0' depth pool entry, and the alternative we discussed. The attendees of the meeting were: ® Bonnie Temchuk Assistant to the City Manager City of Dania Beach Kristen Jones Parks and Recreational Director City of Dania Beach Alex Lesnett President Aquatic Technologies Gary McGeddy President Coastal Contracting Janet E. Palacino President Design & Construction Solutions, Inc. We discussed a number of issues including the location and orientation of the additional pool, the fencing and gating of the pool, funding issues, and other matters, all of which will be clarified in a set of meeting minutes. The focus of this letter concerns the 0' depth entry of the pool and the concerns that were expressed and the alternative that we mutually agreed was the best option. To summarize, in order to create a 0' depth entry pool and comply with code requirements, the entire 36'floor of the pool would have to be ramped to a final depth of 3'4". This would virtually render the pool unusable for the purpose it is intended. As an alternative, the solution that seems to be best suited for our purposes and will comply with the code issues by which we are bound is to create a pool with a uniform depth of 3'4". The second pool will be located at the Northeast corner of the existing competition pool. The second pool will be oriented such that the 18" sides will be at the east and west ends and the 36" sides will be located at the north and south ends. At each of the east and west sides of the pool (18" sides)we will construct an integral ledge at a depth of approximately 18" deep going the full length of both sides. Additionally there will be steps for entering and exiting the pool at both the Northwest corner and the southeast corner. 318 Indian Trace#335 Weston,Florida 33326 Phone 954-660-0227 E-mail Jpalacino@dcsolutions-inc.com Design(clonsguelion -..�..� solutions } „SM An unconventional company in a conventional industry Ms. Bonnie Temchuk, Assistant to the City Manager Page 2 City of Dania Beach steps Uniform depth of 3 18" ledge '4" with appropriate slope 18" ledge for drainage Z4— Steps We believe that this solution would be the most functional and practical alternative for this pool. Please let me know if you have any questions or wish to discuss this mater further. Sincerely, Janet E. Palacino, President C: Kristen Jones, City of Dania Beach, Parks and Recreation Director Gary McGeddy, President, Coastal Contracting 318 Indian Trace#335 Weston,Florida 33326 Phone 954-660-0227 E-mail Jpalacino@dcsolutions-inc.com OCT-09-2003 02 : 44 PM COASTAL CONTRACTING 9549274480 P, Ol Coastal Contracting & Development, Inc. P. 0. BOX 22-3976 Hollywood, Florida 33022-3976 Ph. 954-920-7444 - Fax: 954-927-4480 CoastalHollywood@aol.com October 9, 2003 Design and Construction Solutions Fax: 954-660-0563 Janet Palacino 10157 NW 213' Street Pembroke Pines, FL 33026 RE: Meli Park Pool Dear Janet, Based on a preliminary pricing without design drawings, 1 submit the following breakdown for an 18' x'36' x 3' training pool. ® Pool —Total package including heater. 43,000 Electric 3,000 Retaining walls & perimeter walk slab 7,500 Fencing 2,000 Architect and Engineering fees (7%) 3,885 Overhead & Profit NO CHARGE TOTAL COST $59,385.00 Please call me if you have any questions. Sinc ely Gary J. McGeddy ® President Cc: Bonnie Temchuck Fax: 954-921-2604 RESOLUTION NO. 2002-174 ® A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA, APPROVING THE DESIGN/BUILD CONTRACT WITH COASTAL CONTRACTING AND DEVELOPMENT, INC. IN CONJUNCTION WITH THE FLORIDA RECREATION DEVELOPMENT ASSISTANCE PROGRAM (FRDAP) GRANT AND THE SWIM CENTRAL AQUATIC COMPLEX GRANT FOR IMPROVEMENTS TO FROST PARK AND CONSTRUCTION OF A POOL AT MELT PARK; AUTHORIZING THE SCOPE OF SERVICES FROM COASTAL CONTRACTING AND DEVELOPMENT, INC.; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Dania Beach, Florida, has received a Florida Recreation Development Assistance Program (FRDAP) Grant for program years 2000-2002 in the amount of$150,000 and is required to provide $150,000 in matching funds; and WHEREAS, the City of Dania Beach, Florida, has received a Swim Central Aquatic ® Complex grant in the amount of$1,172,080 with no match from the City; and WHEREAS, the City of Dania Beach has identified certain areas within Frost Park for improvements and the construction of a pool at Patrick J. Meli Park which was authorized and approved through Resolutions196-99 and 2001-016, Coastal Contracting and Development, Inc., has proposed to design/build these improvements; and, WHEREAS, the city has determined that such purchases can be made at the least cost to the city by purchasing Design/Build Services from Coastal Contracting and Development, Inc., in the amount of $1,472,000.00. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: ® Section 1. That the Scope of Services in the total sum of$1,472,000.00 from R-2002-174 Frost Park-Design-Build Coastal Contracting.doc 1 RESOLUTION NO. 2002-174 Coastal Contracting and Development, Inc., for improvements to Frost Park and construction of a pool at Meli Park, attached as Exhibit "A", is approved. Section 2. That the Finance Department is authorized to amend the budget in the Capital Projects Fund for a total amount of$1,472,000. Of this amount, $1,322,000 is from grant revenues, $150,000 from loan proceeds; and capital improvement projects in the amount of$300,000 for the Frost Park improvement, and $1,172,000 for the construction of the Aquatic Complex. Section 3. That all resolutions or parts of resolutions in conflict with this resolution are repealed to the extent of such conflict. Section 3. That this resolution shall be in force and take effect immediately upon its passage and adoption. ® PASSED AND ADOPTED THIS 2 T AY O EP MB0., 2 ROB RT CHUNN, JR. MAY R-COMMISSIONER ATTEST: ROLL CALL: COMMISSIONER BERTINO-YES COMMISSIONER MCELYEA -YES COMMISSIONER MIKES - ABSENT CHARLENE J H SON VICE-MAYOR FLURY-YES CITY CLERK MAYOR CHUNN-YES APPROVED AS TO ORM AND CORRECTNESS: r BY: r T OMAS'J. ANSBRO CITY ATTORNEY R-2002-174 Frost Park-Design-Build Coastal Contracting.doc 2 RESOLUTION NO. 2002-174 DESIGN BUILD AGREEMENT THIS DK51qN BUILD AGREEMENT (the "Agreement") is entered into and effective on 2002 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 and Development, Inc., 807 N. Northlake Drive, Hollywood, Florida 33019, a Florida corporation("Design/Builder"). RECITALS 1. City is the owner of certain parcels of real property located at 300 Northeast 2"d Street and 2901 Southwest 52"d Street, Dania Beach, Florida. 2. On July 8 & 15 , 2002, the City issued a Request for Qualifications/Proposals RFP No. REC-01-02-R (the "RFP") for the provision of design/build services for Frost Park Improvements and the Patrick J. Meli Park Aquatic Complex (jointly, 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 Section 2 of this Agreement. i 1.1 Project Description. The "Project" consists of the design and construction of Frost Park Improvements and the Patrick J. Meli Park Aquatic Complex as outlined in Attachment"A" to the RFP. F:566001:/Construction Docs:/Frost Park:/Design Build Agreement 1