Emergengy Item #03 - Construction Manager At Risk for Bluford Avenue Phase II Pre-Construction and Design Services Contract t J
Ocoee
florida
AGENDA ITEM COVER SHEET
Meeting Date: May 2, 2017
Item # EmN �m 3
Reviewed By:
Contact Name: Stephen C. Krug Department Director:
Contact Number: 6002 City Manager:
/il
Subject: RFQ#1702 Construction Manager At Risk for Bluford Avenue P -se II
Pre-construction and Design Services Contract.
Background Summary:
The Commission awarded the Construction Manager At Risk (CMR) contract for the Bluford Avenue
Phase II project from Delaware St. to Silver Star Rd. at the April 4, 2017 meeting to Oelrich
Construction, Inc., (OCI). The next step in the CMR process was to negotiate the pre-construction
services portion of the contract and City Staff has completed this task with OCI. The scope of the pre-
construction services is to provide design and construction document review, value engineering and
recommendations in collaborations with the project design team and utility companies while the design
is finalized. The next step in the CMR process is to negotiate the Guaranteed Maximum Price and
completion date for the various elements of the construction. These elements include the utility,
stormwater and streetscape improvements which will be brought back before the Commission for
approval as the design progresses to the point where construction can begin.
Public Works and Utilities recommend approval of the attached contract with Oelrich Construction, Inc.,
with a construction management fee of 6.75% and Pre-construction and Design Services for $94,149.00
as detailed in the attached proposal.
Issue:
Request City Commission approval of the Pre-construction and Design Services proposal for the Bluford
Avenue Phase II Construction Manager At Risk contract with Oelrich Construction, Inc.
Recommendations:
Recommend approval of the Construction Manager At Risk contract, RFQ #1702, with Oelrich
Construction, Inc., of Jonesville, Florida, and the Pre-construction and Design Services element in the
amount of $94,149.00, authorizing the Mayor, City Clerk and Staff to execute the required contract
documents and for the City Manager to approve additional work up to the limit of his purchasing
authority and up to the allowable budget for unforeseen conditions.
Attachments:
Oelrich Construction, Inc., Porposal for Pre-construction and Design Services.
Contract for RFQ #1702 CMR Bluford Avenue Phase II Reconstruction.
Financial Impact:
The cost for the pre-construction and design services is adequately funded in the Stormwater and
Utilities Divisions Capital Outlay budgets.
Type of Item: (please mark with an "x')
Public Hearing For Clerk's Dept Use:
Ordinance First Reading Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
X Commission Approval
Discussion 8 Direction
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney N/A
Reviewed by Finance Dept. (26 N/A
Review ed by ( ) N/A
2
C
OELRICH
CONSTRUCTION
INC.
April25, 2017
Steve Krug
Public Works Director
City of Ocoee
301 Macguire Road
Ocoee, FL 34761
Re: City of Ocoee•Bluford Ave Phase 2-Utilities and Streetscape
Proposal for Preconstruction and Design Services
Mr. Krug,
Oelrich Construction, Inc. is pleased to present this proposal for the preconstruction services
required for the Bluford Ave Phase 2 project in Ocoee Florida.This proposal is based on the estimated
time required for Oelrich Construction to provide pre-construction services during the design deliverables
and Design phase.
Pre•Construction Services:
Schematic Design Phase:
1. Oelrich will present the Owner with an overall Schematic Budget estimate for the entire project
for the City of Ocoee's review.
2. Prepare a preliminary estimate of the construction cost for Utilities and Streetscape Schematic
Design Documents from which shall be prepared by the Engineers.This estimate may vary as
the project progresses due to changes in the scope of construction and/or changes in the Time
of Construction.
3. Oelrich will conduct a field condition review of the project site and compare our site review to the
Engineers Schematic Design to ensure there is a complete scope of work that includes
assumption that are not clearly stated in the Design.
4. Oelrich will conduct a full constructability review of the current documents and ensure that they
are constructible based of field conditions and scheduling.
5. Oelrich will prepare an initial milestone project schedule for the entire project that will set
milestones for preconstruction/design and for construction.The schedule will set the baseline for
the project and help trach progress throughout the entire project.
Contract Document Phase:
1. Based on the approved Schematic Design we prepare 60%budget estimates on both the
Utilities portion of the work and on the Streetscape portion of the work.
2. Oelrich will include providing and early start GMP estimate for the Utilities portion of work so that
the City of Ocoee can release work that is ready to go into the bidding and construction phase.
3. Oeldch will conduct a field condition review and compare the Engineers 60% Construction
Documents to the actual field conditions to ensure the budget estimates capture a complete
275 NW-37tH 2;se scope of work that includes assumptions that are not cleady stated in the 60%Design.
Su teA 4. Oeldch will conduct a full constructability review of the current documents and ensure that they
_a-cso c.'-eras 323ae are constructible based of field conditions and scheduling.
oelrichconstructioncom 5. It assumed that Oelrich will being reviewing the Utilities work as a standalone item from the
_ storm water utilities and streetscape projects since the design developments are staggered.
"L-775-78 i r 6. Oelrich will begin MOT coordination and create a project schedule for the project team's review.
OELRICH
CONSTRUCTION
INC.
Bidding and Permit Phase:
1. Oelrich will apply for all applicable permits for the project with assistance from the Engineer and
design team. Oelrich will assist the City of Ocoee in applying for FDEP permits,water, and
wastewater.
2. Oelrich will advertise and bid each portion of the project per State of Florida purchasing laws.We
will be advertising in local newspapers and through multiple website vendors.
3. Oelrich will prequality all bidders before the bid submission to ensure all bidders are qualified to
preform work on the project.
4. Oelrich will hold a pre-bid conference during the bidding phase and will ensure document flow
from the Design team to the bidders.
During each design deliverable Oelrich Construction will provide a cost estimate and conduct
value engineering for each section(utilities and streetscape).Oelrich will be present at each Design and
coordination meeting with the City of Ocoee and with the Design Engineers. Oelrich will prepare meeting
agendas for each meeting and then meeting minutes after each meeting. Oelrich will produce the
following cost estimates:
• Conceptual Budget Estimate for the overall Bluford Ave Phase 2 Construction(Utilities and
Streetscape)
• 60%Construction Estimate after the 60%Construction Documents are complete for each
standalone item (Utility and Streetscape)as needed.
• Early Start GMP for Utilities work while the streetscape design is being completed.
• Final GMP for the remaining Utilities and the Streetscape portion after the 90%Construction
Document are complete.
The Total Estimated Cost for Preconstruction Services is:
Ninety-Four Thousand One Forty-Nine Dollars $94,149.00
Mileage,Reimbursable,and Printing are included in this proposal.
We appreciate the opportunity to be a part of this project and we look forward to its successful completion.
Please feel free to contact me at any time if you have any questions.
Sincerely,
Derek Dykes
Senior Project Manager
Su teA
_b-MY O,'lorCa 32.69
or IC hconstru ct ion,corn
3,[-ldb-iri/
— `6 m ' v to < m m t Olt < m O < 'nlm0
o � '3 I m g _ 2W Y -°,- 0 .x'3 - _ a w a n' c - _ ¢ m t O0
r ; 1iurv: vel * � E rt.cc
_ ° ;cm £ o £ w C c £ w
3 £ 3 n F coo n
M o. 0
5R 3 2
v3
F g 5,= - 19 g 0)
in m m m ,N„ in mm i„ mm "
m in in „ _ W
Iaa m ' m a m C
wlm
-o -I,
0
0
>I mLI
N— —
W o o m ao. m a N O,o
oK nm
mml m � � mmfmmm .nmm � � —•m
T
_ _ v 517
h C N
O A
3 -11 - mlm �. - A N2 � yid
£ m Co a " a " [ i " 3 in n x
�.. .,.v. mmmm �,. m m m m m .n in in in �. �. in �. o m2 C ;
Co
01 a w w NI.- w a? m a
m '5 C
w m w L9 1 4T. m w.a m m > to w
•
A a NthnCOMOo V V v w e o o P o o m v m w �n N
m m mv.1 in lobo •nm v. -c v. m 1 m - N 0
m lc m _ _ I - 9 3 fp
" v N n
W m I-.
m mm '^ �m Ima ¢,'; i's
a � mmw. I w I
a o w � mo �e
in in m m m m mmm 'al"- m mm m mm
m _ _ m �.
0 3 ^ in m m .n .n .n ,n �-in mm !Im DO
�-IA VI V. ,n.n.nm .n,l J T
x mco
,L, Dv croeaaIO
" rt w o .• , m , m m I m m v n
in V. V. in ,n m m m m ,n.n m .n m .n.n ,n m m J o p
momw,mm w0Wa
o > m 1,1a' m mW mm 0V >
AGREEMENT
BETWEEN OWNER AND CONSTRUCTION MANAGER AT RISK FOR
BLUFORD AVENUE RECONSTRUCTION PROJECT
THIS AGREEMENT made the day of in the year 20 by and
between OELRICH CONSTRUCTION, INC. ("Construction Manager"), a Florida corporation,
and the CITY OF OCOEE, a Florida municipal corporation, ("City" or"Owner").
ARTICLE I
THE CONSTRUCTION TEAM AND EXTENT OF AGREEMENT
The Construction Manager accepts the relationship of trust and confidence established between it
and the Owner by this Agreement. Construction Manager covenants with the Owner to furnish
its best skill and judgment and to cooperate with the Engineer of Record in furthering the
interests of the Owner. Construction Manager agrees to furnish efficient business administration
and superintendence and use its best efforts to complete the project in the best and soundest way
and in the most expeditious and economical manner consistent with the interest of the Owner.
1.1 The Construction Team
The Construction Manager, the Owner and the Engineer(s) of Record, called the
"Construction Team", shall work jointly during design and through final construction
completion and shall be available thereafter should additional services be required. The
Engineer(s) and the Construction Manager shall communicate through the Owner, except
as may otherwise be provided in this Agreement or when direct communications have
been specifically authorized by the Owner. The Construction Manager shall copy the
Owner on all correspondence sent to or received from the Engineer(s) or any of its
consultants of which the Owner was not copied.
The specific representatives of the Construction Team are shown in Exhibit "A" attached.
1.2 Extent of Agreement
This Agreement for Pre-construction and Construction Management Services for the
Project, between the Owner and the Construction Manager supersedes any prior
negotiations, representations or agreements. When drawings, specifications and other
descriptive documents defining the work to be included in the Guaranteed Maximum
Price (GMP) are complete, an Amendment to the Agreement shall be signed by the
Owner and Construction Manager, acknowledging the GMP amount and the drawings,
specifications and other descriptive documents upon which the GMP is based. To
expedite the preparation of this GMP Amendment by the Owner, the Construction
Page I of 85
Manager shall obtain two (2) sets of dated drawings, specifications and other documents
upon which the GMP is based from the Engineer via the Owner. The Construction
Manager shall acknowledge on the face of each document of each set, that it is the set
upon which it based its GMP and shall send one set of the documents to the Owner along
with its GMP proposal, while keeping one set for itself. See Exhibits`T' and "K".
This Agreement shall not be superseded by any provisions/revisions of the documents for
construction and may be amended only by written instrument signed by both Owner and
Construction Manager.
1.3 Definitions
Project—The Project is the total work to be performed under this Agreement. The Project
consists of design, permitting, and construction for RFQ No. 1702 - Construction
Manager at Risk for Projects Less than $10 Million.
Owner—City of Ocoee, a political subdivision of the State of Florida.
Construction Manager—Oelrich Construction, Inc.
Engineer of Record — Utility Improvements — Barnes, Ferland and Associates, Inc.
(A.K.A. BFA)
Engineer of Record — Roadway Improvements — Barnes, Ferland and Associates, Inc.
(A.K.A. BFA)
Owner's Representatives — The Owner's Representative is the Public Works Director, or
City Manager designees, as designated in writing.
Estimate — The Construction Manager's latest estimate of probable project construction
cost.
Contract Documents — This Agreement, the Plans, Specifications and related
Construction Documents, RFQ#1702 and all addenda, Construction Manager's Response
to RFQ #1702, all written proposals from the Construction Manager, and or any other
documents incorporated by reference herein.
The general intent of the Contract Documents is to include all items necessary for the
proper execution and completion of the scope of the Work by the Construction Manager.
All Work mentioned or indicated in the Contract Documents shall be performed by the
Construction Manager as part of this Agreement unless it is specifically indicated in the
Contract Documents that such Work is to be done by others. In the event the Drawings
or the Specifications disagree in themselves or with each other, the Construction Manager
shall provide the better quality or better quantity of Work unless otherwise directed by a
written addendum to the Agreement. In the event of discrepancies among the Contract
Documents,the documents shall be construed according to the following priorities:
Page 2 of 85
Highest Priority- GMP Amendment
Second Priority - Amendments to drawings and specifications— later date to
take precedence
Third Priority - Construction Management Agreement
Fourth Priority - Specifications
Fifth Priority - Drawings
Sixth Priority - Request for Qualifications Solicitation Document and all
addenda, and all written proposals and responses from
Construction Manager.
Final Completion—The following items have been completed or satisfied:
A. Construction of the Project is totally complete (all work as defined in the Contract
Documents), and certified as such by the Owner and Engineer.
B. The Project is suitable for full use as determined by the Owner and Engineer.
C. All Punch list items have been completed or otherwise disposed of or accounted
for to the Owner's satisfaction and approval.
D. A Final Certificate of Completion and all other permits and approvals required
have been legally and validly issued.
E. Construction Manager's executed Final Releases of Lien have been delivered to
the Owner.
F. Punch List — List of items of work to be completed and deficiencies to be
corrected, which items shall not affect the attainment of Substantial Completion.
Such items shall be complete or otherwise disposed of prior to final
acceptance/completion.
G. Schedule of Values—The schedule to be used as a basis for progress payments to
be made to the Construction Manager by the Owner during performance of the
Work, based on the then current percentage of progress of construction of the
Project, subject to the review of the Engineer.
H. Substantial Completion Date — The date, certified by the Engineer, that the
Project, or designated portion thereof, is sufficiently complete, in accordance with
the Construction Documents and a Certificate of Completion issued, so that the
Owner can reasonably utilize the Project, or designated portion thereof, for its
intended use. Additionally, complete all items referred to as necessary for
Substantial Completion, as defined in Article 2.10 (h) and in the Construction
Documents.
I. Substantial Completion — All work in the Contract Documents including all pay
items are entirely complete; the only remaining work to be performed is the
Page 3 of 85
Punch List.
J. General Conditions — Those items that are not specific to any trade and are
required for the construction of the Project. Examples of General Conditions
items include daily cleanup and safety rails. [Reference 9.2(16)]
K. Project Improvements — Shall mean the improvements comprising the utility,
stormwater, roadway and street scape improvements on Bluford Avenue, as well
as any other substantially similar projects identified in RFQ #1702, to be
constructed and installed by the Construction Manager at Risk pursuant to this
Agreement and the Construction Contract, but shall not include any buildings to
be constructed on the Property and occupied for either residential or commercial
purposes.
L. Underground Facilities= All pipelines, conduits, ducts, cables, wires, manholes,
vaults, tanks, tunnels or other such facilities or attachments, and any encasements
containing such facilities which have been installed underground to furnish any of
the following services or materials: electricity, gases, steam, liquid petroleum
products, telephone or other communications, cable television, sewage and
drainage removal, traffic or other control systems or water.
1.4 Owner's Construction Budget
Owner's funds budgeted and requested for construction of the Project: The Owner's
Construction Budget is estimated at (To Be Determined al GMP) including all
Construction Manager fees, costs of the work and the Owner's and Construction
Manager's construction and interface contingencies as defined in Articles 8 and 9. This
acknowledgment of the Owner's budgeted funds is not to be construed as the
Construction Manager's Guaranteed Maximum Price. A Guaranteed Maximum Price will
be offered by separate documentation as outlined in Article 7.
ARTICLE 2
CONSTRUCTION MANAGER'S SERVICES
The services which the Construction Manager shall provide include, but are not limited to, those
described or specified herein. The services described or specified shall not be deemed to
constitute a comprehensive specification having the effect of excluding services not specifically
mentioned.
2.1 Project Management Information System (PMIS)
General:
I. Commencing immediately after contract award, the Construction Manager
shall implement and shall utilize throughout the life of this Agreement all
subsystems of the Project Management Information System hereinafter
referred to as PMIS.
Page 4 of 85
2. The reports, documents, and data to be provided shall represent an
accurate assessment of the current status of the Project and of the Work
remaining to be accomplished and it shall provide a sound basis for
identifying variances and problems and for making management
decisions. It shall be prepared and furnished to the Owner and the
Engineer monthly.
3. If requested by the Owner, the Construction Manager shall conduct a
comprehensive workshop for participants designated by the Owner and
additional seminars as required, to provide instruction. This workshop and
the seminars shall facilitate each participant's and the Owner's
representatives' use and understanding of PMIS; shall support, in part, thc
function of organizing in concert with the Engineer for the design and
construction of the Project; and shall establish, with the full concurrence
of the Owner and the Engineer, procedures for accomplishing the
management control aspect of the Project.
4. The PMIS shall be described in terms of the following major subsystems:
A. Narrative Reporting, on a monthly basis,
B. Schedule Control, on a monthly basis,
C. Cost Control, and estimating,
D. Project Accounting,
E. Accounting and Payment, and
F. Action Reports.
2.2 Narrative Reporting Subsystem
The Construction Manager shall prepare written reports as described
hereunder. No other PMIS narrative reports shall be required. All reports
shall be in 8.5"X 11" format, unless directed otherwise by thc Owner.
2. The Narrative Reporting Subsystem shall include the following reports:
A. A Monthly Executive Summary which provides an overview of
current issues and pending decisions, future developments and
expected achievements, and any problems or delays, including code
violations found by Permitting Authority.
B. A Monthly Cost Narrative describing the current construction cost
estimate status of the Project.
Page 5 of 85
C. A Monthly Scheduling Narrative summarizing the current status of
the overall project schedule. This report shall include an analysis of
the various project schedules, a description of the critical path, and
other analyses as necessary to compare planned performance with
actual performance.
D. A Monthly Accounting Narrative describing the current cost and
payment status of the entire project. This report shall relate current
encumbrances and expenditures to the budget allocations.
E. A Monthly Construction Progress Report during the construction
phase summarizing the work of the various subcontractors. This
report shall include information from the weekly job site meetings as
applicable such as general conditions, long lead supplies, current
deliveries, safety and labor relations programs permits, construction
problems and recommendations, and plans for the succeeding month.
F. A Daily Construction Diary during the construction phase describing
events and conditions on the site, as well as, identifying the number
of crews, men per crew, and heavy equipment on the project each
day.
3. The reports outlined in subsection 2A through E above shall be bound
with applicable computer reports and submitted monthly during design
and construction phases and shall be current through the end of the
preceding month. Copies shall be transmitted to the Owner and the
Engineer and others as designated by the Owner's Representative with the
monthly pay requisition.
Additional copies of the report outlined in subsection 2A shall be bound
separately and distributed monthly as directed by the Owner's
Representative.
4. The report outlined in subsection 2F above shall be maintained at the site
available to the Owner and Engineer. A copy, bound, of the complete
diary shall be submitted to the Owner at the conclusion of the project.
2.3 Scheduled Control Subsystem:
Master Project Schedule - Within 30 days of award of this Agreement, the
Construction Manager shall submit, to the Owner for approval, a master
project schedule covering the planning and design approvals, construction
and Owner utilization of the Project. This schedule shall serve as the
framework for the subsequent development of all detailed schedules. The
master project schedule shall be produced and updated monthly
throughout the project. No revisions, activity additions, activity deletions,
Page 6 of 85
or logic changes to the Master Project Schedule or any other schedule
previously approved by the Owner, shall be made without the Owner's
approval.
2. Within thirty (30) days after the date of the Owner's issuance of a Notice
to Proceed for construction, the Construction Manager shall prepare and
submit to the Owner's Representative for approval a construction schedule
in quadruplicate in sufficient detail to graphically depict the activities
contemplated to occur as a necessary incident to performance of the work
required to complete the project, showing the sequence in which the
Construction Manager proposes for each such activity to occur and
duration (dates of commencement and completion, respectively) of each
such activity. The schedule shall be based on a "Network Analysis
System" and shall be the latest version of Primavera, or another acceptable
alternative. The Owner shall determine whether the construction schedule
developed and submitted by the Construction Manager meets the
requirements stated above and such determination shall be binding on the
Construction Manager. Failure of the Construction Manager to develop
and submit a construction schedule as aforesaid shall be sufficient grounds
for the Owner to find the Construction Manager in substantial default and
certify that sufficient cause exists to terminate this Agreement or to
withhold any payment.
Following development and submittal of the construction schedule as
aforesaid, the Construction Manager shall, at the end of each calendar
month occurring thereafter, update the construction schedule to show the
actual progress of the work performed and the occurrence of all events
which have affected the progress of performance of the work already
performed or will affect the progress of the performance of the work yet to
be performed in contrast with the planned progress of performance of such
work, as depicted on the original construction schedule and all updates
thereto as reflected in the updated construction schedule last submitted
prior to submittal of each such monthly update. Each such update to the
construction schedule shall be submitted to the Owner in duplicate. Failure
of the Construction Manager to update, revise, and submit the construction
schedule as aforesaid shall be sufficient grounds for the Owner to find the
Construction Manager in substantial default, and certify that sufficient
cause exists to terminate this Agreement or to withhold payment to the
Construction Manager until a schedule or schedule update acceptable to
the Owner is submitted. No revisions, activity additions, activity deletions,
or logic changes shall be made without the Owner's approval, which shall
not be unreasonably withheld.
3. When required by the Owner, the Construction Manager shall prepare and
incorporate into the schedule database, at the required intervals, the
Page 7 of 85
following schedules:
A. Subcontractor Construction Schedules (Sub-networks) - Upon the
award of each sub-contract, the Construction Manager shall jointly,
with the subcontractor, develop a schedule which is more detailed
than the pre-bid schedule included in the specifications, taking into
account the work schedule of the other subcontractors. The
construction schedule shall include as many activities as necessary to
make the schedule an effective tool for construction planning and for
monitoring the performance of the subcontractor. The construction
schedule shall also show pertinent activities for material purchase
orders, shop drawing schedules and material delivery schedules.
B. Completion Schedule - The Construction Manager shall jointly
develop with the Engineer and Owner a detailed plan, inclusive of
punch lists, final inspections, maintenance training and turn-over
procedures, to be used for ensuring accomplishment of a smooth and
phased transition from construction to public use. The Completion
Schedule shall be produced and updated monthly from its inception
through final Owner acceptance.
4. All schedules will be provided to the Owner on electronic Flash Drive
media in a format acceptable to the Owner. The Construction Manager
will provide the Owner with the appropriate software, if necessary, to read
the data. The cost of providing the licenses and software shall be part of
the cost of construction and included as part of Article 9, Cost of the
Work.
2.4 Budget Control Subsystem - The operation of this subsystem shall provide sufficient
timely data and detail to permit the Construction Team to control and adjust the project
requirements, needs, materials, equipment and systems by building and site elements so
that construction will be completed at a cost which, together with all other project costs,
will not exceed the GMP.
Requirements of this subsystem include the following submissions at the
following phases of the project:
Estimates - Prior to the start of pre-construction services, the Owner may
require any of the following estimates:
A. Completion of Schematic Documents
B. Completion of 100% Design Development Documents
C. 100% GMP Estimate - When the Construction Documents are
sufficiently complete enough to establish the GMP.
2.5 Project Accounting Subsystem
1. The operation of this subsystem shall enable the Construction Team to
Page 8 of 85
monitor and control the funds available for the project, cash flow, costs,
change orders, payments, and other major financial factors by comparison
of budget, estimate, total commitment, amounts invoiced, amounts
payable, and to plan effectively, This subsystem will be produced and
updated monthly and includes the following reports, which together will
serve as a basic accounting tool and an audit trail. This report will also
provide for accounting by building and site element.
2. Costs Status Report presenting the budget, estimate, and base commitment
(awarded contracts and purchase orders) for any given contract or budget
line item. It shall show approved change orders for each contract which
when added to the base commitment will become the total commitment.
Pending change orders will also be shown to produce the total estimated
probable cost to complete the work.
3. A Payment Status Report showing the value in place (both current and
cumulative), the amount invoiced (both current and cumulative), the
retainage, the amount payable (both current and cumulative), and the
balance remaining. A summary of this report shall accompany each pay
request.
4. A Detailed Status Report showing the complete activity history of each
item in the project accounting structure. It shall include the budget,
estimate and base commitment figures for each contract. It shall give the
change order history including change order numbers, description,
proposed and approved dates, and the proposed and approved dollar
amounts. It shall also show all pending or rejected change orders.
5. A Cash Flow Diagram showing the projected accumulation of cash
payments against the project. Cash flow projections shall be generated for
anticipated monthly payments as well as cumulative payments.
6. A Job Ledger shall be maintained as necessary to supplement the
preparation of the project accounting subsystem. The job ledger will be
used to provide construction cost accountability for general conditions
Work,on-site reimbursable expenses, and costs.
7. Component Parts for accounting purposes, the Construction Manager will
separate the Project into three components: the Utility Improvements, the
Stormwater, and Streetscape Improvements.
2.6 Project Manual
When directed by the Owner, the Construction Manager shall provide the
following:
1. Upon award of contract the Construction Manager shall develop a draft
comprehensive Project Manual describing the services set forth in this
Agreement for Owner's approval. This shall provide a plan for the control,
Page 9 of 85
direction, coordination and evaluation of work performed throughout the
project, including identification of Key personnel, responsibilities of
Construction Manager, Owner and Engineer; work flow diagrams; and
strategy for bidding the work. The Project Manual shall be updated as
necessary with the Owner's approval throughout the design, construction
and Owner utilization phases. Two copies of the Project Manual and any
updates shall be submitted to the Owner and Engineer. In developing the
Project Manual, the Construction Manager shall coordinate with the
Owner and the Engineer.
2. Contents of Project Manual - The Project Manual shall describe in detail
the procedures for executing the work and the organizations participating.
The Project Manual shall include as a minimum the following sections:
A. Project Definition - The known characteristics of the project or sub-
projects shall be described in general terms which will provide the
participants a basic understanding of the project or sub-projects.
B. Project Goals - The schedule, budget, physical, technical and other
objectives for the project shall be defined.
C. Project Strategy - A narrative description of the project delivery
methods shall be utilized to accomplish the project goals.
D. Project Work Plan - A matrix display of the program of work to be
performed by the Construction Manager, the Engineer and the Owner
during each phase of the project.
E. Project Organization - A summary organization chart showing the
interrelationships between the Owner, the Construction Manager and
the Engineer, and other supporting organizations and permitting
review agencies. Detailed charts, one each for the Construction
Manager, the Engineer, and the Owner showing organizational
elements participating in the project shall be included.
F. Responsibility Performance Chart - A detailed matrix showing the
specific responsibilities and interrelationships of the Owner, the
Engineer, Construction Manager, and subcontractors. The
Responsibility Performance Chart shall indicate major responsibility,
and minor responsibility, for each specific task required to deliver the
project. The Construction Manager shall develop a similar chart for
the personnel within its own organization, as well as for its
subcontractors, who are assigned to the project, and also for the
personnel of the Owner and the Engineer from data supplied by each.
G. Flow Diagrams - These charts shall display the flow of information
and the decision process for the review and approval of shop
drawings and submittals, progress and change orders.
H. Written Procedures - The Construction Manager will provide written
procedures for communications and coordination required between
Page 10 of 85
Construction Team members throughout the project. Procedures shall
cover such items as correspondence, minutes, reports, inspections,
team meetings, technical reviews, design reviews, and other
necessary communications.
2.7 Design and Review and Recommendations
The Construction Manager shall perform the services described in this Article. The
services to be provided under Paragraph 2.7 constitute the Pre-construction Phase
services. The parties acknowledge the Construction Phase may commence before the Pre-
construction Phase is completed, and to a certain extent both phases shall proceed
concurrently. The parties acknowledge that the owner may choose not to proceed with
the Construction Phase or any portion of the construction in its sole discretion, and owner
may terminate the Agreement for its convenience per Paragraph 14.3.
1. Preliminary Evaluation - The Construction Manager shall provide a
preliminary evaluation of the Owners program and Project budget
requirements, each in terms of the other.
2. Consultation -The Construction Manager will jointly schedule and attend
regular meetings with the Owner and Engineer. The Construction Manager
will consult with the Owner regarding site use and improvements, and the
selection of materials, building systems and equipment. The Construction
Manager will provide recommendations on construction feasibility;
actions designated to minimize adverse effects of labor or material
shortages; scheduling and time requirements for procurement, installation,
and construction completion; and factors related to construction cost
including estimates of alternative designs or materials, preliminary
budgets, and possible economies, including providing value engineering
options.
The Construction Manager's fundamental role and responsibility during
and throughout the progress of the design and construction document
phases of the Project shall include examination of the contract documents
with written communication(s) to the Owner, Owner's Representative and
Engineer of any gaps, redundancies and conflicts that have the potential to
adversely affect the cost, schedule and constructability of the Project.
3. Phased Construction - The Construction Manager shall make
recommendations to the Owner regarding the phased issuance of
Drawings and Specifications to facilitate phased construction of the Work,
taking into consideration such factors as economies, time of performance,
availability of labor and materials, and provisions for temporary facilities.
The Owner may choose to terminate this agreement before commencing
any phase.
4. Review Reports - Within 30 days after receiving the Construction
Documents for each phase of the project, the Construction Manager shall
Page 11 of 85
perform a specific review thereof, focused upon factors of a nature
encompassed in Paragraph 2.7(1) and 2.7(2) above and on factors set out
in Paragraph 2.7 Promptly after completion of the review, Construction
Manager shall submit to the Owner, with copies to the Engineer, a written
report covering suggestions or recommendations previously submitted;
additional suggestions or recommendations as Construction Manager may
deem appropriate, and all actions taken by the Engineer with respect to
same; any comments Construction Manager may deem to be appropriate
with respect to separating the work into separate contracts; alternative
materials; and all comments called for under Article 2.7(3) .
THE CONSTRUCTION MANAGER SHALL WARRANT, TO THE
BEST OF CONSTRUCTION MANAGER'S KNOWLEDGE, WITHOUT
ASSUMING ANY ENGINEERING RESPONSIBILITY, THAT THE
PLANS AND SPECIFICATIONS ARE CONSISTENT, PRACTICAL,
FEASIBLE AND CONSTRUCTIBLE. CONSTRUCTION MANAGER
SHALL WARRANT THAT THE WORK DESCRIBED IN THE PLANS
AND SPECIFICATIONS FOR THE VARIOUS SUBCONTRACTOR
BIDDING PACKAGES IS CONSTRUCTIBLE WITHIN THE
SCHEDULED CONSTRUCTION TIME.
The recommendations and advice of the Construction Manager concerning
design alternatives shall be subject to the review and approval of the
Owner and Owner's professional consultants. Construction Manager shall
not assume in any way the responsibilities of the Engineer; in particular,
the responsibility of assuring that the Drawings and Specifications, which
are identified in Exhibit "I", are in accordance with applicable laws,
statutes, ordinances, Building Codes, Rules, and Regulations. However, if
the Construction Manager recognizes that portions of the Drawings and
Specifications are at variance therewith, the Construction Manager shall
promptly notify the Engineer, via the Owner, in writing.
5. Long Lead Procurements - The Construction Manager shall review the
design for the purpose of identifying long lead procurement items
(machinery, equipment, materials and supplies). When each item is
identified, the Construction Manager shall notify the subcontractors, the
Owner and the Engineer of the required procurement and schedule. Such
information shall be included in the bid documents and made a part of all
affected sub-contracts. The Construction Manager shall keep itself
informed of the progress of the respective subcontractors or suppliers
manufacturing or fabricating such items, and advise Owner and Engineer
of any problems or prospective delay in delivery. The Construction
Manager may recommend to the Owner a schedule for procurement of the
long-lead time items, which will constitute part of the Work as required to
meet the Project Schedule. If such long-lead time items are procured by
the Owner, they shall be procured on terms and conditions acceptable to
the Construction Manager. Upon the Owner's acceptance of the
Construction Manager's Guaranteed Maximum Price proposal, all
Page 12 of 85
contracts for such items shall be assigned by the Owner to the
Construction Manager, who shall accept responsibility for such items as if
procured by the Construction Manager. The Construction Manager shall
assist in expediting the delivery of long-lead time items.
6. Separate Contracts Planning - Without assuming any design
responsibilities, the Construction Manager shall review the design with the
Engineer and make recommendations to the Owner with respect to
dividing the work in such manner as will permit the Construction Manager
to take bids and award separate construction sub-contracts on the current
schedule while the design is being completed. It shall take into
consideration such factors as natural and practical lines of severability,
sequencing effectiveness, access and availability constraints, total time for
completion, construction market conditions, availability of labor and
materials, community relations and any other factors pertinent to saving
time and cost by overlapping design and construction that are authorized
by the Owner.
7. Interfacing
A. The Construction Manager shall take such measures as are
appropriate to provide that all construction requirements will be
covered in the separate subcontracts for procurement of long lead
items, the separate construction subcontracts and the general
conditions items performed without duplication or overlap, sequenced
to maintain completion of all work on schedule. Particular attention
shall be given to provide that each bid package clearly identifies the
work included in that particular separate subcontract, its schedule for
start and completion and its relationship to other separate contractors.
B. Without assuming any Design responsibilities of the Engineer, the
Construction Manager shall include in the reports required under
Article 2.7(4) comments on overlap with any other separate
subcontracts, omissions, lack of correlation between drawings, and
any other deficiencies noted, in order that the Owner and Engineer
may arrange for necessary corrections.
8. Job-Site Facilities - The Construction Manager shall arrange for all job-
site facilities necessary to enable the Construction Manager and the
Owner's representatives and the Engineer to perform their respective
duties in the management, inspection, and supervision of construction.
9. Market Analysis and Stimulation of Bidder Interest
A. The Construction Manager shall monitor conditions in the
construction market to identify factors that will or may affect costs
and time for completing the project; it shall make analysis as
necessary to (I) determine and report on availability of labor.
Page 13 of 85
material, equipment, potential bidders, and possible impact of any
shortages or surpluses of labor or material, and (2) in light of such
determinations, make recommendations to the Owner as may be
appropriate with respect to long lead procurement, separation of
construction into bid packages, sequencing of work, use of alternative
materials, equipment or methods, other economics in design or
construction, and other matters that will promote cost savings and
completion within the scheduled time.
B. The Construction Manager shall submit to the Owner a written
"Construction Market Analysis and Prospective Bidders Report"
setting out recommendations and providing information as to
prospective bidders. As various bid packages are prepared for
bidding, the Construction Manager shall submit to the Owner and the
Engineer a list of potential bidders. The Construction Manager shall
be responsible to stimulate bidder interest in the local market place
and identify and encourage bidding competition.
C. The Construction Manager shall carry out an active program of
stimulating interest of qualified contractors in bidding on the work
and of familiarizing those bidders with the requirements of this
project.
2.8 Construction Phase
1. Construction Manager's Staff- The Construction Manager shall maintain
sufficient off-site support staff, and competent full time staff at the Project
site authorized to act on behalf of the Construction Manager to coordinate,
inspect and provide general direction of the work and progress of the
subcontractors and it shall provide no less than those personnel during the
respective phases of construction that are set forth in Exhibit "B" to this
agreement. Construction Manager shall not change any of those persons
named in Exhibit "B" unless mutually agreed to by the Owner and
Construction Manager. In such case, the Owner shall have the right of
approval of the qualifications of replacement personnel. Such approval
will not be unreasonably withheld.
2. Lines of Authority - The Construction Manager shall establish and
maintain lines of authority for this personnel, and shall provide this
definition to the Owner and all other affected parties such as the code
inspectors of the Permitting Authority, the subcontractors, the Engineer
and the Owner's representatives, to provide general direction of the work
and progress of the various phases and subcontractors. The Owner and
Engineer may attend meetings between the Construction Manager and its
subcontractors; however, such attendance shall not diminish either the
Page 14 of 85
authority or responsibility of the Construction Manager to administer the
subcontractor.
3. Schedule and Project Manual Provisions -The Construction Manager shall
provide subcontractors and the Owner, its representatives and the Engineer
with copies of the Project Manual (total number of copies not to exceed
10) developed and updated as required by Article 2.6 expanded for each
Construction Phase, employing their respective milestones, beginning and
finishing dates, their respective responsibilities for performance, and the
relationships of their work with respect to subcontractors and suppliers.
Construction Manager shall also continue to provide current scheduling
information, direction and coordination regarding milestones, and
beginning and finishing dates. Construction Manager is also responsible
for performance and the relationships of the Construction Manager's work
to the work of its subcontractors and suppliers to enable them to perform
their respective tasks so that the development of construction progresses in
a smooth and efficient manner in conformance with the overall project
schedule. The schedule shall include all phases of the construction work,
material supplies, long lease procurement, approval of shop drawings,
change orders in progress, schedules for change orders, and performance
testing requirements. Construction Manager shall advise the Owner, its
representatives and the Engineer of their required participation in any
meeting or inspection giving each at least one week notice unless such
notice is made impossible by conditions beyond its control. Construction
Manager shall hold job-site meetings at least once each month with the
Construction Team or more frequently as required by work progress, to
review progress, discuss problems and their solutions and coordinate
future work with all subcontractors.
4. Solicitation of Bids
A. Without assuming responsibilities of the Engineer, the Construction
Manager shall prepare invitations for bids, or requests for proposal
when applicable, for all procurement of long lead items, materials and
services, for Subcontractor contracts and for site utilities. Such
invitations for bids shall be prepared in accordance with the following
guidelines:
1. Those portions of the Work that the Construction Manager
does not customarily perform with the Construction Manager's
own personnel shall be performed under subcontracts or by
other appropriate agreements with the Construction Manager.
The Construction Manager shall obtain bids from
subcontractors, vendors, consultants and from suppliers of
materials or equipment fabricated to a special design for the
Work. The Construction Manager shall strive to receive at
least three competitive bids per trade package. Should the
nature of the trade package prohibit three competitive bids, the
Page 15 of85
Construction Manager shall notify the Owner in writing as to
the reason and otter suggestions, if any, to create trade
interest.
B. The Construction Manager shall be responsible for coordinating with
the Engineer and preparing all information that is the responsibility of
the Construction Manager for bidding of the separate bid packages.
C. As part of such preparation, the Construction Manager shall review
the specifications and drawings prepared by the Engineer.
Ambiguities, conflicts, lack of clarity of language, use of illegally
restrictive requirements, and any other defects in the specifications or
in the drawings noted by the Construction Manager shall be brought
to the attention of the Owner and Engineer in written form. The
Construction Manager is solely responsible for reviewing and
comparing the Contract Documents with each other and shall
immediately report to the Engineer any and all errors, inconsistencies
or omissions. In the event the Construction Manager performs any
Work with the knowledge that it involves an error, inconsistency or
omission in the Contract Documents, the Construction Manager shall
be responsible for such erroneous, inconsistent, or omitted Work.
The Construction Manager is also responsible for taking such field
measurements as are necessary in order to verify field conditions and
to compare such field measurements and conditions with the Contract
Documents. Any and all errors, inconsistencies or omissions shall be
immediately reported to the Engineer. The Construction Manager and
the Owner's Representative shall mutually agree when and if to
conduct a pre-bid conference with prospective bidders and the
Engineer. In the event questions are raised which require an
interpretation of the bidding documents or otherwise indicate a need
for clarification or correction of the invitation, the Construction
Manager shall transmit these to the Owner and the Engineer, and
upon receiving clarification or correction in writing, the Construction
Manager shall prepare an addendum to the bidding document, and
issue same to all of the prospective bidders. The Construction
Manager shall not enter into contracts without the Owner reviewing
the proposed successful bidder. The Owner shall promptly, within (3)
business days, review all proposals and provide comments so as not
to cause delay in the award of a contract. Owner's failure to respond
within this time frame shall constitute acceptance of the proposed
contract. Owner shall have the right to reject any award of
subcontract providing such rejection is justifiable and with cause.
Should the Owner reject a proposal without cause and should the next
bondable, qualified bidder that is acceptable to the Construction
Manager be greater than the GMP budget for that work item, the
Owner shall issue a change order to the Construction Manager,
increasing the GMP for the amount of the difference between the
proposed award and that which the Owner has requested.
Page 16 of 85
D. The Construction Manager is required to enter into written
agreements with each subcontractor who will perform any portion of
the Work on the Project. 'Phe subcontract agreement shall incorporate
the terms of the Contract Documents, and the terms of this
Agreement, and be assignable to Owner. Further, where appropriate,
the Construction Manager shall require each subcontractor to enter
into similar agreements with sub-subcontractors and material
suppliers. Before entering any agreement with a subcontractor,
Construction Manager shall confirm that the subcontractor is properly
licensed by the State, Seminole County, and any applicable
municipality, for the portion of the Work to be performed on the
Project, and shall supply such information or proof of licensing, in
writing, to Owner.
5. Bonds - In accordance with the provisions of Section 255.05, Florida Statutes, the
Construction Manager shall provide to the Owner, on forms furnished by the
Owner and attached as Exhibit"L", a 100% Performance Bond and a 100% Labor
and Material Payment Bond each in an amount not less than the total construction
cost as defined in Article 9 and inclusive of the construction fee.
To be acceptable to the Owner as Surety for Performance Bonds and Labor and
Material Payment Bonds, a Surety Company shall comply with the following
provisions:
A. The Surety Company shall have a currently valid Certificate of
Authority, issued by the State of Florida, Department of Insurance,
authorizing it to write surety bonds in the State of Florida.
B. The Surety Company shall have currently valid Certificate of
Authority issued by the United States Department of Treasury under
Sections 9304 to 9308 of Title 31 of the United States Code.
C. The Surety Company shall be in full compliance with the provisions
of the Florida Insurance Code.
D. The Surety Company shall have at least twice the minimum surplus
and capital required by the Florida Insurance Code at the time the
bond is issued.
1. The Surety Company shall have at least the following minimum
ratings in the latest issue of Best's Key Rating Guide.
Contract Amount Policy Holder's Rating Required Financial Rating
$500,000 to$1,000,000 A Class IV
$1,000,000 to$2,500,000 A Class V
$2,500,000 to$5,000,000 A Class VI
$5,000,000 to$10,000,000 A Class VII
Page 17 of 85
$10,000,000 to$25,000,000 A Class VIII
$25,000,000 to$50,000.000 A Class IX
$50,000,000 to$75,000,000 A Class X
2. The Surety Company shall not expose itself to any loss on any
one risk in an amount exceeding Ten Percent (10 %) of its
surplus to policyholders, provided:
a. In the case of the surety insurance company, in addition to
the deduction for reinsurance, the amount assumed by any
co-surety, the value of any security deposited, pledged or
held subject to the consent of the surety and for the
protection of the surety shall be deducted.
b. Any risk or portion of any risk being reinsured shall be
deducted in determining the limitation of the risk as
prescribed in this section. These minimum requirements
shall apply to the reinsuring carrier providing authorization
or approval by the State of Florida, Department of
Insurance to do business in this state has been met.
6. Quality Control - The Construction Manager shall develop and maintain a written
program, acceptable to the Owner and Engineer, to assure quality control of the
construction. Construction Manager shall supervise the work of all subcontractors
providing instructions to each when their work does not conform to the
requirements of the plans and specifications and Construction Manager shall
continue to exert its influence and control over each subcontractor to ensure that
corrections are made in a timely manner so as to not affect the efficient progress
of the work. Should disagreement occur between the Construction Manager and
Engineer over acceptability of work and conformance with the requirements of
the specifications and plans, the Owner shall be the final judge of performance
and acceptability, subject to the dispute provisions of this Agreement.
7. Subcontractor Interfacing- The Construction Manager shall be the single point of
interface with all subcontractors for the Owner and all of its agents and
representatives including the Engineer. Construction Manager shall negotiate all
change orders, field orders and request for proposals, with all affected
subcontractors and shall review the costs of those proposals and advise the Owner
and Engineer of their validity and reasonableness, acting in the Owner's best
interest prior to requesting approval of each change order from the Owner. Before
any Work is begun on any change order, a written authorization from the Owner
must be issued. However, when health and safety are threatened, the Construction
Manager shall act immediately to remove the threat to health and safety.
Construction Manager shall also carefully review all shop drawings and then
forward the same to the Engineer for review and actions. The Engineer shall
transmit them back to the Construction Manager who will then issue the shop
Page 18 of 85
drawings to the affected subcontractor for fabrication or revision. "Phe
Construction Manager shall maintain a suspense control system to promote
expeditious handling. Construction Manager shall request the Engineer via the
Owner to make interpretations of the drawings or specifications requested of him
by the subcontractors and shall maintain a suspense control system to promote
timely response. Construction Manager shall advise the Owner and Engineer
when timely response is not occurring on any of the above.
8. Permits - The Construction Manager shall secure all necessary permits from the
Permitting Authority and all necessary utility connection permits, the cost of
which will be considered a direct cost item, but not subject to Construction
Manager profit, as described in section 8.3.
9. Job Site Requirements
A. The Construction Manager shall provide for each of the following
activities as a part of its Construction Phase Cost:
I. Maintain a log of daily activities, including manpower records, heavy
equipment on site, weather, delays, major decisions, etc.
2. Maintain a roster of companies on the project with names and
telephone numbers of key personnel.
3. Establish and enforce job rules governing parking, clean-up, use of
facilities and worker discipline.
4. Provide labor relations management for a harmonious, productive
project.
5. Provide a safety program for the project to meet OSI-IA requirements.
Monitor for subcontractor compliance without relieving them of
responsibilities to perform work in accordance with the best
acceptable practice.
6. Provide a quality control program as developed under Article 2.8(6)
herein above.
7. Miscellaneous office supplies that support the construction efforts,
which are consumed by its own forces.
8. Travel to and from its home office to the project site, as the project
requires.
B. The Construction Manager shall provide personnel and equipment or shall
arrange for separate subcontracts to provide each of the following as a
direct cost item:
I. Schedule the services of independent testing laboratories for the
necessary testing of materials to ensure conformance to contract
requirements, if the Owner does not provide for these services.
Page 19 of 85
2. The printing and distribution of all required bidding documents and
shop drawings, including the sets required by the Permitting
Authority's inspectors.
10. Job Site Administration - The Construction Manager shall provide, as part of its
job site fee,job site administrative functions during construction to assure proper
documentation, including but not limited to such things as the following:
A. Job Meetings - Hold weekly progress and coordination meetings to
provide for an easy flowing project. Implement procedures, assure timely
submittals, expedite processing approvals and return of shop drawings,
samples, etc.; Coordinate and expedite critical ordering and delivery of
materials, work sequences, inspection and testing, labor allocation, etc.;
Review and coordinate each subcontractor's Work; Review and implement
revisions to the Schedule; Monitor and promote safety requirements. In
addition, a regular monthly project status meeting will be held between the
Engineer, Owner and Construction Manager.
Use the job site meeting as a tool for planning of work and enforcing
schedules and for establishing procedures, responsibilities, and
identification of authority for all to clearly understand.
Identify party or parties responsible for follow up on any problems, delay
items or questions and identify a course for solution. Revisit each pending
item at each subsequent meeting until resolution is achieved. Require all
present to make any problems or delaying event known to those present
for appropriate attention and resolution.
B. Shop Drawing Submittals/Approvals - Provide staff to check shop
drawings and to implement procedures to be approved by Owner for
submittal and transmittal to the Engineer and Owner of such drawings for
action, and closely monitor their submittal and approval process.
C. Material and Equipment Expediting - Provide staff to closely monitor
material and equipment deliveries, important checking and follow-up
procedures on supplier commitments of all subcontractors.
D. Payments to Subcontractors - Develop and implement a procedure for
review, processing, and payment of applications by subcontractors for
progress and final payments.
E. Document Interpretation - Refer all questions for interpretation of the
documents prepared by the Engineer to the Engineer via the Owner.
F. Reports and Project Site Documents - Record the progress of the project.
Submit written progress reports to the Owner and the Engineer including
information on the subcontractors' work, and the percentage of
completion. Keep a daily log available to the Owner, the Engineer and the
Permitting Authority inspectors.
Page 20 of 85
a Subcontractors' Progress - Prepare periodic punch lists for the
subcontractors' work, including unsatisfactory or incomplete items and
schedules for their completion.
II. Substantial Completion - Ascertain when the work, or designated portions
thereof, are ready for the Owner's and the Engineer's substantial
completion inspection. Prior to the Owner's and Engineer's pre-substantial
completion inspection, the Construction Manager shall issue a list of
incomplete items. After the Owner's and the Engineer's inspection, the
Construction Manager shall prepare a schedule for the completion of the
list indicating completion dates for the Owner's review. The Owner and
the Engineer will issue a certificate of substantial completion when the
work on the Construction Manager's pre-substantial completion punch list
has been accomplished, to the best of the Construction Manager's ability
(See Exhibit"C").
After the Construction Manager has notified the Engineer that the project
is substantially compete, and the Engineer agrees that all Contract
Documents and each pay item is complete, the Engineer shall notify the
Construction Manager and the Owner, in writing, that the project has
attained substantial completion. The Engineer, Owner and the
Construction Manager will perform the semifinal inspection within seven
(7) day of substantial completion. As part of the semi-final inspection,
representatives of the Owner will perform a joint review of the
project. The Engineer will generate a final project condition report, with
resolutions of discrepancies if any, and provide a copy to the Owner and
Construction Manager. If, at the semifinal inspection, all construction
provided for and contemplated by the Agreement is found complete to the
Engineer's satisfaction, such inspection shall constitute the final
inspection, as prescribed herein. If, however, any work is found
unsatisfactory, in whole or in part, the Engineer shall compile a "punch
list" of work to be completed. A copy of the"punch list"will be furnished
to the Construction Manager, with the indication that the work so noted
must be completed. Time shall continue to be charged on the
project. Any "punch list(s)" furnished to the Construction Manager prior
to final inspection and acceptance shall state that it is not to be construed
as the"final" list. It shall also state that items damaged beyond the control
of the Construction Manager and prior to the final inspection must be
corrected prior to final acceptance. It shall also state that the Construction
Manager is still responsible for maintenance, including mowing, of the
Project(s) until final acceptance.
Final Completion - Monitor the Subcontractors' performance on the
completion of the project and provide notice to the Owner and Engineer
that the work is ready for final inspection. Secure and transmit to the
Owner, through the Engineer, all required guarantees, affidavits, releases,
bonds and waivers, manuals, record drawings, and maintenance books,
including the Final Completion form shown in Exhibit "D".
Page 21 of 85
.I. Start-Up - With the Owner's personnel, direct the checkout of utilities,
operations, systems and equipment for readiness and assist in their initial
start-up and testing by the trade contractors.
K. Record Drawings/As-Built Drawings - The Construction Manager shall
monitor the progress of its own forces or its Subcontractors on marked up
field prints. The Construction Manager shall record all deviations from
original drawings. Final payment will not be made until the requirements
of this paragraph have been met. During the progress of the work, the
Construction Manager shall record on all field sets of drawings the exact
locations, as installed, of all underground and otherwise concealed
conduit, pipe and duct lines which were not installed exactly as shown on
the contract drawings. Upon completion of the work, this data shall be
recorded to scale on electronic files of the contract drawings. Where
changes are to be recorded, the drawing shall be erased before the changes
are made. Where the work was installed exactly as shown on the contract
drawings the drawing shall not be distributed other than being marked
"As-Built." In showing the changes the same legend shall be used to
identify piping, etc., as was used on the contract drawings. Each sheet
shall bear the date and name of the subcontractor submitting the drawings.
The Construction Manager shall review the completed as-built drawings
and ascertain that all dates furnished on the drawings are accurate and
truly represent the work as actually installed. When manholes, boxes,
underground conduits, inverts, etc., are involved as part of the work, the
Construction Manager shall furnish true elevations and locations, all
properly referenced by using the original benchmark used for the
institution or for this project. The drawings including those unchanged
and changed shall be submitted to the Engineering and the Owner when
completed, together with two sets of blue line or black line prints for
certification. Upon completion and prior to final inspection, the following
must be provided to the Engineer and Owner:
I. Test results as required.
2. Maintenance Bond for facilities to be conveyed to the Owner.
3. As-built drawings shall be submitted after final inspection and prior
to acceptance for water, wastewater and drainage systems, both on
and off-site. These drawings shall be based upon field surveys, and
will show all boundary, rights-of-way, easement and lot lines, and
shall he certified by a Registered Professional Land Surveyor in
accordance with Chapter 62-817, F.A.C. Note: Digital format
drawings (ACAD and PDF and/or ArcView).
a. Location of all sanitary manholes and the service end of all
laterals and elevation of all inverts and manhole tops.
b. Location and top invert elevations of all lift stations and
location and elevation of all valves, and point at which
force main crosses any wastewater or drainage lines.
Page 22 of 85
c. Location, size and invert elevation of all drainage pipes.
d. Location of all water mains, valves and joints and elevation
of all fittings.
e. Spot elevation at fifty (50)-foot intervals along the top of
the berm and sufficient bottom elevations to show
conformance to design, of all retention/detention ponds.
f. Spot elevation at fifty (50)-foot intervals along all off-site
drainage ditches and swales.
g. CAD files should be in State Plane Coordinates (SPC) Feet,
East Zone - Florida,North American Datum (NAD) 1983.
h. Objects should be assigned by layer with color by layer. No
cryptic layer names. If cryptic layer names are used (i.e.
DXF tiles from microstation) then a list defining layer
names must be provided.
I I. Administrative Records - The Construction Manager may be required to maintain
at the job site on a current basis, files and records such as, but not limited to the
following:
Contracts or Purchase Orders
Shop Drawing
Submittal/Approval Logs
Equipment Purchase/Delivery Logs
Contract Drawings and Specifications with Addenda
Warranties and Guarantees
Cost Accounting Records
Labor Costs
Material Costs
Equipment Costs
Cost Proposal Requests
Payment Request Records
Meeting Minutes
Cost-Estimates
Bulletin Quotations
Lab Test Reports
Insurance Certificates and Bonds
Contract Changes
Purchase Orders
Material Purchase Delivery Logs
Technical Standards Design Handbooks
"As-Built"/Record Drawing
Operating &Maintenance Instruction
Daily Progress Reports
Monthly Progress Reports
Correspondence Files
Page 23 of 85
Transmittal Records
Inspection Reports
Bid/Award Information
Bid Analysis and Negotiations
Punch Lists
PMIS Schedule and Updates
Suspense (Tickler) Files of Outstanding Requirements
Project Manual
Job Photographs
Schedules (original, updated, and as-built)
The project records shall be available at all times to the Owner and Engineer for
reference or review.
12. Owner Utilization
The Construction Manager shall:
A. Provide services during the design and construction phases, which will
provide a smooth and successful Owner utilization of the project. Provide
consultation and project management to facilitate Owner utilization and
provide transitional services to get the work, as completed by the
contractors, subcontractors, "on line" in such conditions as will satisfy
Owner operational requirements.
B. Conduct the Construction Manager's preliminary punch list inspection and
coordinate the completion of all punch list work to be done with Owner
utilization requirements in mind. Videotape all major equipment startup
procedures and deliver videotapes as part of the closeout documents.
C. Catalog operational and maintenance requirements of equipment to be
operated by maintenance personnel and convey these to the Owner in such
a manner as to promote their usability. Provide operational training, in
equipment use, for building operators.
D. Secure required guarantees and warranties, assemble and deliver same to
the Owner in a manner that will facilitate their maximum enforcement and
assure their meaningful implementation.
The Owner may take control of portions of the project providing the above items
discussed in this paragraph have been completed and the Substantial Completion", "Start-
Up", "Record Drawing, and Warranty requirements specified in paragraphs 2.8(10) and
2.8(13) have been completed to the Owner's satisfaction for the portions to be occupied,
excluding the requirements for a warranty inspection nine months after Owner
Utilization.
13. Warranty
Where any work is performed by the Construction Manager's own forces or by
subcontractors under contract with the Construction Manager, the Construction
Page 24 of 85
Manager shall warrant that all materials and equipment included in such Work
will be new except where indicated otherwise in Contract Documents, and that
such Work will be of good quality, free from improper workmanship and
defective materials and in conformance with the Drawings and specifications.
With respect to the Work, the Construction Manager further agrees to correct all
work found by the Owner to be defective in material and workmanship or not in
conformance with the Drawings and Specifications for a period of one year from
the Date of Substantial Completion or partial utilization of any portion of the
building, whichever comes first, or for such longer periods of time as may be set
forth with respect to specific warranties contained in the trade sections of the
Specifications. The Construction Manager shall collect and deliver to the Owner
any specific written warranties given by others as required by the Contract
Documents. Also, the Construction Manager shall conduct, jointly with the
Owner and the Engineer, a warranty inspection approximately eleven (II) months
after the date of Owner Utilization.
14. Uncovering and Correction of the Work
A. In the event the Construction Manager covers a portion of the Work
contrary to the request of the Engineer or prior to an inspection by the
Engineer, the Construction Manager must if requested in writing uncover
the Work, and then shall be required to replace the work at the
Construction Manager's sole expense, without any change to the contract
time.
B. The Project is subject to and shall be constructed in accordance with the
Florida Building Code, Florida Department of Transportation Standard
Specifications for Road and Bridge Construction, City of Ocoee
Engineering Standards (see Exhibit "M"), and to all applicable codes
referenced therein.
C. The Construction Manager shall promptly correct any and all Work
rejected by the Engineer and any and all Work which fails to comply with
the requirements of the Contract Documents. The Construction Manager
shall bear all of the costs for correcting such Work, including any
compensation for the Engineer's services.
D. If within one (1) year after the date of final completion of the Work or
after the date for commencement of warranties, any of the Work is found
to be not in accordance with the requirements of the Contract Documents,
the Construction Manager shall promptly return to the Project and correct
the deficient Work upon receipt of written notification from the Owner to
do so. The obligation set forth in this subparagraph shall survive
acceptance of the Work under this Agreement and any termination of the
Agreement. The Owner shall give such written notice promptly after
discovery of the deficient Work. This one (1) year Construction Manager
warranty described in this subparagraph does not impact or impair any
manufacturer's warranty or the Owner's ability to make any other claim
against the Construction Manager as allowed under Florida law.
Page 25 of 85
E. The Construction Manager shall immediately remove from the Work Site
any and all portions of the Work which are not in compliance with the
requirements of the Contract Documents. In the event the Construction
Manager fails to correct any non-conforming Work within a reasonable
time, the Owner may correct such non-conforming Work, the cost of
which shall be the Construction Manager's responsibility. In the event the
Owner corrects the non-conforming Work,the Owner in its sole discretion
may remove, store or sell for salvage any salvageable materials or
equipment related to or a part of the non-conforming work at the
Construction Manager's expense. If the Construction Manager fails to
reimburse the Owner for such expenses within 7 days after written notice,
the Owner may take any and all action it deems appropriate in order to
obtain reimbursement of its expenses under this subparagraph. Any action
taken by the Owner under this subparagraph shall not in any respect serve
to limit in law or equity the Owner's ability to place any other claim
against the Construction Manager.
F. The Owner has the discretion to accept work that is not in compliance
with the requirements of the Contract Documents. In this event, the
Owner shall reduce its decision to writing, which shall include any
reduction, if any, to the Contract Sum as a result of the acceptance of non-
conforming Work. Any such adjustment to the Contract Sum shall apply
whether or not final payment has been made under this Agreement.
15. Site Conditions
A. Field Measurements. Before undertaking each part of the construction, Construction
Manager shall carefully study and compare the Contract Documents and check and
verify pertinent figures shown thereon and all applicable field measurements.
Construction Manager shall promptly report in writing to the Owner any conflict,
error or discrepancy which Construction Manager or any of its Subcontractors or
Suppliers may discover and shall obtain a written interpretation or clarification from
Owner before proceeding with any Work affected thereby; provided, however,
Construction Manager shall not be liable to the Owner for failure to report any
conflict, error or discrepancy unless Construction Manager or any of its
Subcontractors or Suppliers had actual knowledge thereof or should reasonably have
known thereof.
B. Physical Conditions (Including Underground Facilities)
I. The Contract Documents may identify reports of explorations and tests of
subsurface conditions at the site, and those drawings of physical conditions in
or relating to existing surface or subsurface structures or Underground
Facilities owned by Owner which are at or contiguous to the site, that have
been utilized by the design professional in preparation of the Contract
Documents. Construction Manager shall have full responsibility for physical
conditions, and Underground Facilities owned by Owner or others, shown or
Page 26 of 85
indicated in the Contract Documents.
2. the information and data shown or indicated in the Contract Documents with
respect to Underground Facilities owned by others or at contiguous to the site
is based on information and data furnished to Owner or the design
professional by the owners of such Underground Facilities or by others. The
Owner shall not be responsible for the accuracy or completeness of any such
information or data, and the Construction Manager shall have full
responsibility for reviewing and checking all such information and data.
3. If the Contract Documents necessitate amending to order changes in the Work
due to Underground Facilities owned by the Owner or others, whether they be
shown or indicated or newly discovered, Owner shall authorize the required
changes in the Work by Change Order. If those Underground Facilities
owned by the Owner or others cause or will cause delays in the performance
or extend completion of all or part of the work, Construction Manager shall
absorb all related delay, extension or acceleration costs, however caused;
except that if Owner and Construction Manager agree that the delays require a
change in Contract 'lime, Owner shall authorize the necessary change in
Contract Time. However, an extension in Contract Time, when and if so
granted shall be Construction Manager's sole and exclusive remedy with
respect to Owner for any delay, disruption, interference, inefficiency,
acceleration, extension or hindrance and associated costs, however caused,
resulting from variance in the location or configuration of Underground
Facilities owned by the Owner or others shown or indicated, or from newly
discovered Underground Facilities owned by the Owner or others.
4. Unless it prejudices Work already excavated and uncovered, Construction
Manager shall schedule layout, excavation and uncovering of Work or
Underground Facilities a sufficient time in advance to allow the Owner's
Engineer of Record's review, and the possible amending or supplementing of
the Contract Documents.
C. Special Requirements for Underground Facilities Construction Manager shall have
full responsibility: a) for field locating any and all Underground Facilities including
utilities shown or indicated as to depth and alignment in advance of excavation; b) for
identifying the owner of any newly discovered Underground Facility and promptly
notifying that owner and Engineer of that discovery; c) for shoring, blocking and
protecting Underground Facilities including utilities shown, indicated or discovered;
d) for coordination, scheduling and sequencing the Work with the owners of all
Underground Facilities shown, indicated or discovered; e) for repairing any damage
to the satisfaction of those owners, to the extent that the damage was due to
Construction Manager's failure to adhere to the requirements of this section, or to the
fault or negligence of Construction Manager; and 0 for the safety and protection of
any affected Work, and for repairing any damage done to the work. Except as
otherwise provided in this section, all costs involved and time required to perform
Page 27 of 85
these responsibilities shall be considered as having been included in the Contract Sum
and in the Construction Manager's schedule for the performance of the Work within
the Contract Time, even if the Contract Documents need amending to authorize minor
deviations or changes in the Work due to those Underground Facilities including
utilities.
D. Engineer and Layout
1. The Engineer will provide centerline control points (Begin Project, End
Project, Pts, PTs, etc.) and benchmarks at appropriate intervals along the line
of the Project to facilitate the proper layout of the Work. Normally, only one
benchmark will be furnished for water crossings. The Construction Manager
shall preserve all reference points and benchmarks furnished by the Owner.
As an exception to the above, for Projects where the Plans do not show a
centerline or other survey control line for construction of the Work (e.g.
resurfacing, safety modifications, etc.) the Engineer will provide only points
marking the beginning and ending of the Project and all exceptions.
2. The Construction Manager shall furnish all stakes, templates and other
materials necessary for establishing and maintaining of the lines and grades
necessary for control and construction of the Work.
3. Utilizing the control points furnished by the Owner,the Construction Manager
shall establish all horizontal and vertical controls necessary to construct the
Work in conformance with the Plan and Specifications. The Work shall
include performing all calculations required and setting all stakes needed as
such as grade stakes, offset stakes, reference point stakes, slope stakes, and
other reference marks or points necessary to provide lines and grades for
construction of all roadway, bridge and miscellaneous items. When the work
includes utility construction to be done by the Construction Manager, it shall
also establish all horizontal and vertical controls necessary to carry out such
Work. The Engineer may assist in coding of input, arrange for processing by
the Owner's computer and furnish computer output; however, Engineer's
assistance shall not release Construction Manager from Construction
Manager's responsibility.
4. On Projects involving construction of new base, stakes to establish lines and
grades for subgrade base, curb and related items shall be set at intervals along
the line of the Work no greater than 50 feet on tangents and 25 feet on curves.
Grade stakes shall be set at locations directed by the Engineer to facilitate
checking of subgrade, base and pavement elevations in crossovers,
intersections and irregular shaped areas. For bridge construction stakes and
other control, references, shall be set at sufficiently frequent intervals to
assure that all components of a structure are constructed in accordance with
the lines and grades shown in the Plans. For Projects where the Plans do not
show a centerline or other survey control line for construction of the Work
Page 28 of 85
(resurfacing, safety modifications, etc.) only such stakes as necessary for
horizontal and vertical control of Work items will be required. For
resurfacing and resurfacing widening type Projects, the Construction Manager
shall establish horizontal controls adequate to assure that the asphalt mix
added coincides with the existing pavement. In tangent sections, horizontal
control points shall be set at 100-foot intervals by an instrument survey. In
curbs, sections, horizontal control points shall be set at 25-foot intervals by
locating and referencing the centerline of the existing pavement. The
Construction Manager shall reference the beginning and ending of each no
passing zone for use during temporary striping operations. The Construction
Manager shall establish by an instrument survey and mark on the surface of
the finished pavement at 25-foot intervals, points necessary for striping of the
finished roadway. As an exception, for resurfacing and resurfacing-widening
Projects, these points shall be established in the same manner as used for
horizontal control of paving operations. Marks shall be made with white
paint. If striping is included in the Work to be done by the Construction
Manager, an alternate method for layout of striping may be approved by the
Engineer provided that the alignment achieved is equal or better than that
which would be achieved using an instrument survey. For Projects with
permanent striping by the Construction Manager, the measurement and
analysis in order to establish the location and length of no-passing zones shall
be accomplished by approved electronic methods consisting of a minimum of
two distance-measuring devices. For all Projects, a station identification stake
shall be set at each right-of-way line at 100-foot intervals and at all locations
where a change in right-of-way width occurs. Each of these stakes shall be
marked with painted numerals, of sufficient size to be readable from the
roadway, corresponding to the Project station at which it is located. As an
exception to the above, for Projects where Plans do not show right-of-way
lines, station identification stakes shall be set at locations and intervals
appropriate to the type of Work being done. For resurfacing and resurfacing-
widening Projects, station identification stakes shall be set at 200-foot
intervals.
16. Maintenance of Traffic
A. Construction Manager shall be responsible for the proper maintenance control and
detour of traffic in the area of construction, during the course of construction. All
traffic control and maintenance procedures shall be in accordance with the
requirements of either the Florida Department of Transportation, City of Ocoee, or
the local municipality, within their respective area of jurisdiction. It shall be the
Construction Manager's responsibility, prior to submitting its GMP Amendment, to
determine the requirements of these agencies so that its Proposal reflects all costs to
be incurred. No claims for any increase to the GMP will be considered for costs
incurred in the proper maintenance, control, detour and protection.
B. Traffic shall be maintained at all times where practical, and as more particularly
Page 29 of 85
specified hereinafter. No traffic shall be detoured without prior knowledge and
approval of the respective traffic control agency having jurisdiction. The
Construction Manager shall notify such agencies 48 hours in advance of such time it
proposes to detour such traffic.
17. Fencing On all Work which included fencing and where the ENGINEER determines
it to be necessary for maintaining the security of adjacent property, or for protection
of pedestrians who are likely to gain access to the Work from adjacent property, the
CONTRACTOR shall erect appropriate temporary security fence as a first order of
business. Temporary fencing shall he installed at temporary construction easement
areas on all commercial and residential properties appropriate to secure the Work area
and protect persons and domestic animals. At all times, the CONTRACTOR shall
conduct the Work under secure temporary fencing. Permanent fencing shall be
addressed as required by the Plans and Specifications.
ARTICLE 3
OWNER'S RESPONSIBILITIES
3.1 Owner's Information
The Owner shall identify its requirements for the project.
3.2 Owner's Representative
The Owner shall designate in writing any additional representatives authorized to act on
the Owner's behalf with respect to the Project, not previously defined in Article 1.3,
together with the scope of his/her respective authority. In no event shall any delegation of
authority be contrary to State or County laws or codes. Such designations as of the date
hereof are set forth on Exhibit "F" hereto. Functions that this Agreement provides will be
performed by the Owner can be delegated by the Owner only by written notice to the
Construction Manager from the Owner. Exhibit "F" may be amended from time to time
by the Owner pursuant to written notice of and acceptance by the Construction Manager
of such amendment. The Construction Manager shall be entitled to rely on directions(and
it shall be required to follow directions) from the Owner's Representative designated on
Exhibit "F" or an amendment to Exhibit "F" within the authority conferred by the Owner
in this Agreement or any Amendment or Change Order to this Agreement. Owner hereby
authorize the Owner's Representative to: (1) act as the Owner's agent and execute
documents associated with this Project. Examples of these documents are Construction
Manager's Contingency Authorizations, Notices of Commencement, Certificates of
Substantial Completion and permits from applicable agencies; (2) administer, coordinate,
interpret and otherwise manage the contractual provisions and requirements of this
Agreement; (3) negotiate a duly authorized Change Order on behalf of the Owner; and
(4) issue a duly authorized purchase order, memorandum, letter or other instrument
Page 30 of 85
covering the services and work to be provided pursuant to this Agreement. Directions and
decisions made by Owner's Representatives shall be binding on the Owner. The Owner's
Representative does not have the authority to authorize work beyond the scope of the
GMP.
The Owner additionally authorizes the City Manager, in conjunction with the Owner's
Representative, to authorize changes in the work up to the limits designated in the City of
Ocoee Purchasing Code. Said work shall be funded from the Owner's Contingency and
shall not cause an increase to the overall project budget. Any changes above the City's
Purchasing Code limits will need City Commission approval.
3.3 Engineer's Agreement
The Owner has retained an Engineer for design and to prepare construction documents
for the Project. The Engineer's services, duties and responsibilities are described in the
Agreement between the Owner and the Engineer, a copy of which will be furnished to the
Construction Manager. The Agreement between the Owner and the Engineer shall not be
modified without written notification to the Construction Manager.
3.4 (Intentionally omitted.)
3.5 Drawings and Specifications
The Construction Manager will be furnished a reproducible set of all copies of Drawings
and Specifications reasonably necessary and ready for printing.
3.6 Cost of Surveys & Reports
The services, information, surveys and reports required by the above paragraphs shall be
furnished with reasonable promptness in accordance with the approved schedule at the
Owner's expense, and the Construction Manager shall be entitled to rely upon the
accuracy and completeness thereof.
3.7 Project Fault Defects
If the Owner becomes aware of any fault or defect in the Project or non-conformance
with the drawings and specifications, Owner shall give prompt written notice thereof to
the Construction Manager and Engineer.
3.8 (Intentionally omitted.)
Page 31 of85
3.9 Lines of Communication
The Owner and the Engineer, through the Owner, shall communicate with the
subcontractors or suppliers only through the Construction Manager so long as such
method of communication is effective in maintaining project schedules and quality.
3.10 Permitting& Code Inspections
The Owner recognizes and coordinates with the appropriate Permitting Authority and
expects the Construction Manager to do the same.
ARTICLE 4
PERMITS, FEES AND NOTICES
4.1 Unless otherwise provided in the Contract Documents, the Construction Manager shall
secure and pay for the permits, which are customarily secured by a General Contractor
in performing site work, utility, and roadway construction.
4.2 The Construction Manager shall comply with and give notices, as required by laws.
ordinances, rules, regulations and lawful orders of public authorities bearing on
performance of the Work.
4.3 It is not the Construction Manager's responsibility to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, Building Codes
and Rules and Regulations. However, if the Construction Manager observes that
portions of the Contract Documents are at variance therewith, the Construction Manager
shall promptly notify the Engineer and Owner in writing, and necessary changes shall be
accomplished by appropriate modification.
4.4 If the Construction Manager performs Work knowing it to be contrary to laws, statutes,
ordinances, Building Codes and Rules and Regulations without such notice to the
Engineer and Owner, the Construction Manager shall assume full responsibility for such
Work and shall bear the attributable costs.
4.5 Cost for all re-inspections of work performed by the Construction Manager found
defective and subsequently repaired, shall be borne by the Construction Manager, unless
such cost is not a result of negligence on the part of the Construction Manager.
Page 32 of 85
ARTICLE 5
SUBCONTRACTS
5.1 Definition
A subcontractor is a person or organization who has a direct contract with the
Construction Manager to perform any of the work at the site. Nothing contained in the
Contract Documents shall create any contractual relation between the Owner or Engineer
and any subcontractor.
5.2 Proposals
Subject to Article 9 and, in accordance with Article 2.8(4), the Construction Manager
shall request and receive proposals from subcontractors and suppliers and will award
those contracts to the qualified low bidders after Construction Manager and the Owner
have reviewed each proposal and are satisfied that the subcontractor/supplier is qualified
to perform the work.
5.2.1 Required Subcontractors' Qualifications and Subcontract Conditions:
I. Subcontractual Relations - The Construction Manager shall require each
Subcontractor to assume all the obligations and responsibilities which the
Construction Manager owes the Owner under the Agreement, to the extent of
the work to be performed by the subcontractor. The subcontracts shall be
made in writing and shall preserve and protect the rights of the Owner and
Engineer under the Contract Documents with respect to the Work to be
performed by the subcontractor so that the subcontracting thereof will not
prejudice such rights. Where appropriate, the Construction Manager shall
require each subcontractor to enter into similar agreements with its sub-
subcontractor.
2. Insurance requirements for subcontractors shall be no more stringent than
those requirements imposed on the Construction Manager by the Owner.
3. The Construction Manager shall make available to each proposed
Subcontractor, prior to the execution of the Subcontract, copies of the
Contract Documents to which the Subcontractor will be bound by this Article
5.
5.2.2 All subcontracts shall provide:
I. LIMITATION OF REMEDY -NO DAMAGES FOR DELAY
The subcontractor's exclusive remedy for delays in the performance of the
subcontract caused by events beyond its control, including delays claimed to
be caused by the Owner or Engineer or attributable to the Owner or Engineer
and including claims based on breach of contract or negligence, shall be an
extension of its contract time and shall in no way involve any monetary claim.
2. In the event of a change in the work, the subcontractor's claim for adjustments
Page 33 of 85
in the contract sum are limited exclusively to its negotiated costs for such
changes plus no more than 15% for overhead, profit and bond costs.
3. The subcontract shall require the subcontractor to expressly agree that the
foregoing constitute its sole and exclusive remedies for delays and changes in
the work and thus eliminate any other remedies for claims for increase in the
contract price, damages, losses or additional compensation.
4. Each subcontract shall require that any claims by the subcontractor for delay
or additional cost must be submitted to the Construction Manager within the
time and in the manner in which the Construction Manager must submit such
claims to the Owner, and that failure to comply with the conditions for giving
notice and submitting claims shall result in the waiver of such claims.
5. Each subcontract shall require the Owner to be added as an additional
insured on the subcontractor's general liability policy for the project.
5.3 Responsibilities for Acts and Omissions
The Construction Manager shall be responsible to the Owner for the acts and omissions
of its employees, agents, subcontractors, their agents and employees, and all other
persons performing any of the work or supplying materials under a contract to the
Construction Manager.
ARTICLE 6
SCHEDULE, TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
6.1 Time is of the essence of the performance of this Agreement. At the time a Guaranteed
Maximum Price (GMP) is established as provided for in Article 7, a project substantial
completion date, a project final completion date and an Owner Utilization date for
completion of the project in accordance with the master project schedule, shall also be
established by the Construction Team. The Construction Manager agrees to complete the
construction in accordance with the agreed upon substantial completion date, final
completion date and Owner Utilization date. 'The Construction Manager acknowledges
that failure to complete the project within the construction time set forth in the approved
schedule will result in substantial damages to the Owner. Construction Manager hereby
expressly waives and relinquishes any right which it may have to seek to characterize the
liquidated damages, set out in this paragraph 6.1 below, as a penalty, which the parties
agree represents a fair and reasonable estimate of the Owner's actual damages at the time
of contracting if Construction Manager fails to achieve Substantial Completion or Final
Inspection within the Contract Time. Further, the parties acknowledge that it would be
extremely difficult, if not impossible, to ascertain Owner's actual damages with any
degree of certainty in the event Construction Manager fails to achieve either Substantial
Completion or Final Inspection within the Contract Time.
In the event the Construction Manager does not achieve Substantial Completion within
the Contract Time, including approved extensions, the Construction Manager shall pay
Page 34 of 85
the Owner, as liquidated damages and not as a penalty, the sum of $2,811 per day for
each calendar day the actual time of performance exceeds the authorized Contract Time
before substantial completion based on }DOT amounts. Liquidated damages shall be
$702 per day from Substantial Completion to final completion based on 1 of the
substantial completion liquidated damages amount.
The most important scheduled event to occur during the period of construction is the
annual Founders' Day Celebration, generally set for the first weekend of November. No
work will be permitted during the week prior to Founder's Day. Any project element
begun before the Founders' Day week must be completed prior to the work stoppage, as
it will not be possible to leave work in progress during the week of work stoppage due to
the large crowds expected. Liquidated damages in the amount of$1,500 per day will be
imposed on any work not conforming to this requirement. No additional mobilization/
demobilization charges will be allowed for the Founders' Day shutdown. Any such costs
must be included in the Base Bid Item for Mobilization/Demobilization. The Celebration
is an annual event and the week long work stoppage must be incorporated into the CMR
schedule for subsequent years.
6.2 The date of Owner Utilization shall occur as described in Article 2.8(12) herein above.
Warranties called for by this Agreement or by the Drawings and Specifications shall
commence on the Date of Substantial Completion, unless otherwise agreed to, in writing,
between the Owner and Construction Manager.
ARTICLE 7
GUARANTEED MAXIMUM PRICE FOR CONSTRUCTION
7.1 When the design documents are sufficiently complete to establish the scope of work for
the project or any portion thereof, as generally defined by a design document listing to be
provided by the Engineer and Construction Manager upon execution of this Agreement,
which is to be used only as a guide in developing for the Owner's approval, the
specifications and plan data necessary to establish a Guaranteed Maximum Price; or at
such time thereafter designated by the Owner; the Construction Manager will establish
and submit in writing to the Owner, for its approval a Guaranteed Maximum Price,
guaranteeing the maximum price to the Owner for the construction cost of the project or
designated part thereof and the Construction Manager's Fee. The Construction Manager
acknowledges multiple GMPs may be required for the portions of the project to support
the project phasing and schedule. Such Guaranteed Maximum Price will be subject to
modification for changes in the project as provided in Article 10. However, the actual
price paid for the work by the Owner shall be the actual cost of all work subcontracts,
supply contracts, direct labor costs, direct supervision costs, and direct job costs as
defined under Article 9, plus the Construction Manager's fees; or the GMP; whichever is
less when the work is complete. Costs which would cause the OMP to be exceeded will
Page 35 of 85
be paid by the Construction Manager without reimbursement by the Owner. All savings
will be returned to Owner.
7.2 Intentionally omitted.
7.3 At the time of submission of a Guaranteed Maximum Price, the Construction Manager
will verify the time schedule for activities and work, which were adopted by the
Construction Team and used to determine the Construction Manager's cost of work.
Included in the GMP will be a Construction Contingency, which is included for the
parties to use, with the Owner's consent. The contingency is intended to cover the costs
associated with project scope that were not adequately detailed at the time of GMP. The
contingency is also intended to protect against price increases between the submission of
the GMP and the completion of the 100% construction documents, as well as for the
purpose of defraying expenses due to unforeseen circumstances relating to construction,
and for price increases attributable to any code compliance reviews. The Construction
Manager will be required to furnish documentation evidencing expenditures charged to
this contingency prior to the release of funds by the Owner. Documentation for use of the
Contingency shall be determined by the Construction Team, shall be included in the
Project Manual, and must be displayed monthly in the PMIS. The Engineer shall verify
the actual costs.
7.4 When the project is bid and 100% of the Trade Contracts have been executed, the
contingency within the GMP may be decreased in proportion to the percent of the work
completed up to a maximum of 50%. In other words, if 10% of the work has been
completed and the Owner requests that the contingency within the GMP be adjusted, then
10%of the contingency within the GMP will be removed from the GMP by change order
up to a maximum of 50%of the initial GMP contingency value.
During the buyout period of Trade Contracts, at a point mutually agreed upon between
the Owner and Construction Manager, the net amount of the buyout will be reviewed. If
the net amount of the total buyout results in excess funds being required, those funds will
be taken from the Construction Contingency.
If the net amount of the buyout results in a savings, the savings will be assigned to the
Owner's Buyout Contingency as defined in Article 7.5
If bids are not received for a portion of the work at or below the applicable line item
amount in the GMP, the Construction Manager reserves the right to perform that portion
of the work or negotiate for its performance for the specified line item lump sum amount
or less.
7.5 The Owner's Buyout Contingency shall be created by savings generated by Subcontractor
buyout (Article 7.4) and also by reductions in scope that otherwise could reduce the
GMP. The intent of this Owner's Buyout Contingency is to allow funds already within the
Page 36 of 85
GMP to remain in the GMP and be used at the Owner's discretion for scope issues that
may be required or desired during the course of the project.
Authorizations to spend down the Owner's Buyout Contingency will be granted the City
Manager up to the limits designated in the City of Ocoee Purchasing Code.
Authorizations to spend down more than the limits designated in the City's Purchasing
Code must be granted the City Commission.
7.6 All items that may be requested by Owner, comprising the Construction Manager's
General Conditions for the project, include:
a) costs, including transportation and storage, installation, maintenance, dismantling
and removal of materials, supplies, temporary facilities, machinery, equipment, and
hand tools not customarily owned by construction workers, that are provided by the
Construction Manager at the site and fully consumed in the performance of the
Work; and cost (less salvage value) of such items if not fully consumed, whether
sold to others or retained by the Construction Manager. Cost for items previously
used by the Construction Manager shall mean fair market value;
b) costs of document reproduction including bid sets, facsimile transmissions and
long-distance telephone calls, postage and parcel delivery charges, telephone
service at the site and reasonable petty cash expenses of the site office;
c) that portion of the reasonable expenses of the Construction Manager's personnel
incurred while in discharge of duties directly connected with the Work; the
Construction Manager's allowed burden percentage multiplied on the personnel's
weekly salary shall be no more than 45%;
d) that portion of insurance and bond premiums that can be directly attributed to this
Agreement for Construction. Premiums shall be net of trade discounts, volume
discounts, dividends and other adjustments;
e) sales, use or similar taxes imposed by a governmental authority and paid by the
Construction Manager, and directly related to the Work;
f) fees and assessments for the building permit and for other permits, licenses and
inspections for which the Construction Manager is required by the Agreement for
Construction to pay;
g) data processing costs directly related to the Work; however, these costs shall not
include any hardware, software, or CADD costs unless approved by the Owner in
writing;
Page 37 of 85
h) expenses incurred in accordance with the Construction Manager's standard
personnel policy for relocation and temporary living allowances of personnel
required for the Work, if approved by the Owner;
i) the cost of obtaining and using all utility services required for the Work;
j) the cost of crossing or protecting any public utility, if required, and as directed by
the Owner;
k) all reasonable costs and expenditures necessary for the operation of the site office,
such as stationary, supplies, blueprinting, furniture, fixtures, office equipment and
field computer services and hardware, provided that quantity and rates are subject to
Owner's prior written approval;
I) the cost of secure off-site storage space or facilities approved in advance by Owner;
m) rental charges for temporary facilities, and for machinery, equipment, and tools not
customarily owned by construction workers; however any rental charge shall not
exceed the purchase price of such facilities, machinery, equipment or tools; and;
n) other expenses or charges properly incurred and paid in the prosecution of the
Work, with the prior written approval of the Owner.
ARTICLE 8
CONSTRUCTION MANAGER'S COMPENSATION
In consideration of the performance of this Agreement, the Owner agrees to pay the
Construction Manager as compensation for its services, costs or fees, as set forth in
Article 8.1(0 and 8.1(2) as follows.
1. Design Phase/Pre-construction - For the performance of the Preconstruction services
set forth under Articles 2.3, 2.4, 2.6, 2.7 and for profit and overhead related to these
services, the Construction Manager shall be paid a not to exceed fixed fee of
$43.063.75 for the Utility Improvements and $51.085.25 for the Stormwater and
Streetscape Improvements. The Design Phase/Pre-construction Costs shall be paid
according to the percent complete of the design phase. (Contractor's Proposal
Attached.)
The Construction Manager's personnel to be assigned during this phase and their
duties and responsibilities to this project and the duration of their assignments are
shown on Exhibit "E".
2. Construction Phase — For the Construction Manager's performance of the
Construction Phase Work, the Owner shall pay Construction Manager the Contract
Page 38 of 85
Sum. The Contract Sum is the Cost of the Work as defined in Article 9 plus the
Construction Manager's Fee. The Construction Manager guarantees that the Contract
Sum shall not exceed the Guaranteed Maximum Price set forth in the Guaranteed
Maximum Price Amendment, as it may be amended by Change Order. To the extent
the Cost of the Work exceeds the Guaranteed Maximum Price, the Construction
Manager shall bear such costs in excess of the Guaranteed Maximum Price without
reimbursement or additional compensation from the Owner.
The Construction Manager's Fee for Construction Phase Work shall be based upon a
percentage of the Cost of the Work. The Construction Manager's Fee shall be
deemed compensation for all of Construction Manager's overhead, profit and general
expenses of any kind, except as may be expressly included as a Cost of the Work as
defined by Article 9, for services provided during and related to the construction
phase. The percentage to be used to determine the Construction Manager's fee
shall be 6.75%.
The fee shall be paid proportionally to the ratio of the cost of the work in place,
including stored materials (see Article 12.5), as it bears on the latest estimate of the
total construction cost or the GMP, whichever is less. The balance of the fee shall be
paid when construction of the project is finally completed and utilization of the
project is accepted by the Owner. If construction is authorized only for a part of the
project, the fee paid shall be proportionate to the amount of work authorized by the
Owner.
ARTICLE 9
COST OF THE WORK FOR CONSTRUCTION PHASE SERVICES
9.1 Costs to Be Reimbursed
9.1.1 The term Cost of the Work shall mean costs necessarily incurred by the Construction
Manager in the proper performance of the Work. Such costs shall be at rates not higher than the
standard paid at the place of the Project except with prior consent of the Owner. The Cost of the
Work shall include only the items set forth in Sections 9.1 through 9.7.
9.1.2 Where any cost is subject to the Owner's prior approval,the Construction Manager shall
obtain this approval prior to incurring the cost. The parties shall endeavor to identify any such
costs prior to executing Guaranteed Maximum Price Amendment.
Page 39 of 85
9.2 Labor Costs
9.2.1 Wages of construction workers directly employed by the Construction Manager to perform
the construction of the Work at the site or,with the Owner's prior approval, at off-site
workshops.
9.2.2 Wages or salaries of the Construction Manager's supervisory and administrative personnel
when stationed at the site with the Owner's prior approval.
9.2.3 Wages and salaries of the Construction Manager's supervisory or administrative personnel
engaged at factories, workshops or on the road, in expediting the production or transportation of
materials or equipment required for the Work, but only for that portion of their time required for
the Work.
9.2.4 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions,
assessments and benefits required by law or collective bargaining agreements and, for personnel
not covered by such agreements, customary benefits such as sick leave, medical and health
benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries
included in the Cost of the Work under Sections 9.2.1 through 9.2.3.
9.2.5 Bonuses, profit sharing, incentive compensation and any other discretionary payments paid
to anyone hired by the Construction Manager or paid to any Subcontractor or vendor,with the
Owner's prior written approval.
9.3 Subcontract Costs
Payments made by the Construction Manager to Subcontractors in accordance with the
requirements of the subcontracts.
9.4 Costs of Materials and Equipment Incorporated in the Completed Construction
9.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to
be incorporated in the completed construction.
9.4.2 Costs of materials described in the preceding Section 9.4.1 in excess of those actually
installed to allow for reasonable waste and spoilage. Unused excess materials, if any, shall
become the Owner's property at the completion of the Work or, at the Owner's option, shall be
sold by the Construction Manager. Any amounts realized from such sales shall be credited to the
Owner as a deduction from the Cost of the Work.
9.5 Costs of Other Materials and Equipment, Temporary Facilities and Related Items
9.5.1 Costs of transportation, storage, installation, maintenance, dismantling and removal of
materials, supplies,temporary facilities, machinery, equipment and hand tools not customarily
owned by construction workers that are provided by the Construction Manager at the site and
fully consumed in the performance of the Work. Costs of materials, supplies,temporary
facilities, machinery, equipment and tools that are not fully consumed shall be based on the cost
or value of the item at the time it is first used on the Project site less the value of the item when it
Page 40 of 85
is no longer used at the Project site. Costs for items not fully consumed by the Construction
Manager shall mean fair market value.
9.5.2 Rental charges for temporary facilities, machinery, equipment and hand tools not
customarily owned by construction workers that are provided by the Construction Manager at the
site and costs of transportation, installation,minor repairs, dismantling and removal. The total
rental cost of any Construction Manager-owned item may not exceed the purchase price of any
comparable item. Rates of Construction Manager-owned equipment and quantities of equipment
shall be subject to the Owner's prior approval.
9.5.3 Costs of removal of debris from the site of the Work and its proper and legal disposal.
9.5.4 Costs of document reproductions, facsimile transmissions and long-distance telephone
calls, postage and parcel delivery charges,telephone service at the site and reasonable petty cash
expenses of the site office.
9.5.5 That portion of the reasonable expenses of the Construction Manager's supervisory or
administrative personnel incurred while traveling in discharge of duties connected with the
Work.
9.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable
location, subject to the Owner's prior written approval.
9.6 Miscellaneous Costs
9.6.1 Premiums for that portion of insurance and bonds required by the Contract Documents that
can be directly attributed to this Contract. Self-insurance for either full or partial amounts of the
coverages required by the Contract Documents, with the Owner's prior approval.
9.6.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work
and for which the Construction Manager is liable.
9.6.3 Fees and assessments for the building permit and for other permits, licenses and inspections
for which the Construction Manager is required by the Contract Documents to pay.
9.6.4 Fees of laboratories for tests required by the Contract Documents, except those related to
defective or nonconforming Work for which reimbursement is excluded, and which do not fall
within the scope of Section 9.7.3.
9.6.5 Royalties and license fees paid for the use of a particular design, process or product
required by the Contract Documents; the cost of defending suits or claims for infringement of
patent rights arising from such requirement of the Contract Documents; and payments made in
accordance with legal judgments against the Construction Manager resulting from such suits or
claims and payments of settlements made with the Owner's consent. However, such costs of
legal defenses,judgments and settlements shall not be included in the calculation of the
Construction Manager's Fee or subject to the Guaranteed Maximum Price.
Page 41 of 85
9.6.6 Costs for electronic equipment and software, directly related to the Work with the Owner's
prior written approval.
9.6.7 Deposits lost for causes other than the Construction Manager's negligence or failure to
fulfill a specific responsibility in the Contract Documents.
9.6.9 Subject to the Owner's prior approval, expenses incurred in accordance with the
Construction Manager's standard written personnel policy for relocation and temporary living
allowances of the Construction Manager's personnel required for the Work.
9.7 Other Costs and Emergencies
9.7.1 Other costs incurred in the performance of the Work if, and to the extent, approved in
advance in writing by the Owner.
9.7.2 Costs incurred in taking action to prevent threatened damage, injury or loss in case of an
emergency affecting the safety of persons and property.
9.7.3 Costs of repairing or correcting damaged or nonconforming Work executed by the
Construction Manager, Subcontractors or suppliers, provided that such damaged or
nonconforming Work was not caused by negligence or failure to fulfill a specific responsibility
of the Construction Manager and only to the extent that the cost of repair or correction is not
recovered by the Construction Manager from insurance, sureties. Subcontractors, suppliers, or
others.
9.8 Costs Not To Be Reimbursed
9.8.1 The Cost of the Work shall not include the items listed below:
.1 Salaries and other compensation of the Construction Manager's personnel stationed
at the Construction Manager's principal office or offices other than the site office,
except as specifically provided in Section 9.2, or as may be provided in Article 11;
.2 Expenses of the Construction Manager's principal office and offices other than the
site office;
.3 Overhead and general expenses, except as may be expressly included in Sections 9.1
to 9.7;
.4 The Construction Manager's capital expenses, including interest on the Construction
Manager's capital employed for the Work;
.5 Except as provided in Section 9.7.3 of this Agreement, costs due to the negligence or
failure of the Construction Manager, Subcontractors and suppliers or anyone directly
or indirectly employed by any of them or for whose acts any of them may be liable
to fulfill a specific responsibility of the Contract;
.6 Any cost not specifically and expressly described in Sections 9.1 to 9.7;
.7 Costs, other than costs included in Change Orders approved by the Owner, that
would cause the Guaranteed Maximum Price to be exceeded; and
.8 Costs for services incurred during the Preconstruction Phase.
Page 42 of 85
9.9 Discounts,Rebates and Refunds
9.9.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to
the Owner if(I) before making the payment, the Construction Manager included them in an
Application for Payment and received payment from the Owner, or(2)the Owner has deposited
funds with the Construction Manager with which to make payments; otherwise, cash discounts
shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts
received from sales of surplus materials and equipment shall accrue to the Owner, and the
Construction Manager shall make provisions so that they can be obtained.
9.9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 9.9.1 shall
be credited to the Owner as a deduction from the Cost of the Work.
9.10 Related Party Transactions
9.10.1 For purposes of Section 9.10,the term "related party" shall mean a parent, subsidiary,
affiliate or other entity having common ownership or management with the Construction
Manager; any entity in which any stockholder in, or management employee of,the Construction
Manager owns any interest in excess of ten percent in the aggregate; or any person or entity
which has the right to control the business or affairs of the Construction Manager. The term
"related party" includes any member of the immediate family of any person identified above.
9.10.2 If any of the costs to be reimbursed arise from a transaction between the Construction
Manager and a related party, the Construction Manager shall notify the Owner of the specific
nature of the contemplated transaction, including the identity of the related party and the
anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If
the Owner, after such notification, authorizes the proposed transaction, then the cost incurred
shall be included as a cost to be reimbursed, and the Construction Manager shall procure the
Work, equipment, goods or service from the related party, as a Subcontractor, according to the
terms of this Agreement. If the Owner fails to authorize the transaction, the Construction
Manager shall procure the Work, equipment, goods or service from some person or entity other
than a related party according to the terms of this Agreement.
9.11 Accounting Records
The Construction Manager shall keep full and detailed records and accounts related to the cost of
the Work and exercise such controls as may be necessary for proper financial management under
this Contract and to substantiate all costs incurred. The accounting and control systems shall be
satisfactory to the Owner. The Owner and the Owner's auditors shall, during regular business
hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and
copy, the Construction Manager's records and accounts, including complete documentation
supporting accounting entries, books, correspondence, instructions, drawings, receipts,
subcontracts, Subcontractor's proposals, purchase orders, vouchers, memoranda and other data
relating to this Contract. The Construction Manager shall preserve these records for a period of
ten (10) years after final payment, or for such longer period as may be required by law.
Page 43 of 85
ARTICLE 10
CHANGE IN THE PROJECT
10.1 Change Orders
The Owner, without invalidating this Agreement, may order Changes in the Project
within the general scope of this Agreement consisting of additions, deletions or other
revisions, with the GMP and the Construction Completion Date being adjusted
accordingly. All changes in the Project, not covered by an authorized contingency, shall
be authorized by a Change Order signed by the Owner before the change is implemented.
Construction Manager's claims for additional time shall be accompanied by detailed
dates, correspondences, notices and other data to prove the claim as required by Article
16.
I. A Change Order is a written order to the Construction Manager signed by the Owner
issued after the execution of this Agreement, authorizing a Change in the Project, the
Construction Manager's fee, or the Construction Completion date. Each adjustment in
the GMP resulting from a change order shall clearly separate the amount attributable
to the Cost of the Work. A change order must be in writing. No course of conduct,
verbal discussions or dealings between the parties can be a basis for any claim to
change the GMP or contract time.
2. The increase or decrease in the Guaranteed Maximum Price resulting from a change
in the Project shall be determined in one or more of the following ways: (Should any
costs be required for design of an Alternative System that would be advantageous to
the project and result in a deductive change order, the Construction Manager shall
include the cost of the redesign services of the Engineer so that the Owner can make
proper assessment of the cost of such change. Payment for additional services shall be
made by the Owner.)
a. by mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating data to permit evaluation by the Engineer and Owner;
b. by unit prices stated in the Agreement or subsequently agreed upon;
c. by cost as defined in Article 9 and a mutually acceptable fixed or percentage fee;
or;
d. by the method provided in Subparagraph 10.3
3. If none of the methods set forth in Clause 10.2 is agreed upon, the Construction
Manager, provided Construction Manager receives a written order signed by the
Owner, shall promptly proceed with the Work involved. The cost of such Work shall
then be determined on the basis of the reasonable expenditures and savings of those
Page 44 of 85
performing the Work attributed to the change. However, in the event a Change Order
is issued under these conditions, the Construction Manager shall establish an
estimated cost of the work and the Construction Manager shall not perform any work
whose cost exceeds that estimate without prior written approval by the Owner. In
such case, and also under Article 10.2 above, the Construction Manager shall keep
and present, in such form as the Owner may prescribe, an itemized accounting
together with appropriate supporting data of the increase in the Cost of the Work as
outlined in Article 9. The amount of decrease in the Guaranteed Maximum Price to be
allowed by the Construction Manager to the Owner for any deletion or change which
results in a net decrease in cost will be the amount of the actual net decrease.
4. Should concealed conditions encountered in the performance of the Work below the
surface of the ground, which are either at material variance with the conditions
indicated by the Drawings, Specifications, or Owner furnished information or at
material variance with those conditions ordinarily found to exist in geographic area in
which the Project is located, then the Guaranteed Maximum Price and the
Construction Completion date shall be equitably adjusted by Change Order upon
Construction Manager's adherence to the claim procedures outlined in Article 16 of
this Agreement . No adjustments in Contract Time or GMP will be allowed to the
extent the concealed or unknown condition should have been reasonably discovered
by Construction Manager during pre-construction or pre-proposal review. The only
exception to the prohibition of adjustments to time or GMP will be where organic
soils on the site when encountered differ significantly, greater or less, than the
quantities estimated in providing the GMP. The Construction Manager will propose
the methodology and assumptions employed to establish the quantity of materials
with the GMP submission; however such methodology and assumptions must be
approved by the Owner. In the event the Construction Manager encounters organic
soil conditions significantly ("significant" to be determined at GMP) different from
its interpretation of the geotechnical reports which is materially at variance with the
quantities derived through the application of Construction Manager's methodology
and assumptions, as approved by the Owner, the Construction Manager must
immediately notify the Owner, and the Owner will consider mitigation strategies,
which may involve adjustments in contract time or GMP.
5. In the event the Construction Manager encounters on the site material reasonably
believed to be asbestos or polychlorinated biphenyl (PCB) which has not been
rendered harmless, petroleum waste, biohazardous substances, radioactive waste or
any other substance falling within the category of hazardous or toxic waste under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) or any other state or federal environmental statute or regulation,
hereinafter collectively referred to as "hazardous waste," the Construction Manager
shall immediately stop Work in the area affected and report the condition to the
Owner in writing. Owner shall thereafter as soon as reasonably possible conduct a
thorough investigation to determine if the suspected material in the affected area is in
fact hazardous waste and shall certify to Construction Manager that such material is
Page 45 of 85
not hazardous waste or if such material is in fact hazardous waste that such hazardous
waste has been abated and that it is safe to return to the affected area and resume
work. The Construction Manager may require the Owner to furnish copies of reports
of tests conducted by a qualified testing laboratory acceptable to Construction
Manager verifying the absence of such hazardous waste before Construction Manager
will be required to resume work. The Contract time and amount shall thereafter be
equitably adjusted to account for the time lost due to the encountering of the
hazardous waste and the reasonable cost associated therewith pursuant to the
procedures for changes orders. The Construction Manager shall, through an analysis
of network schedule, have the burden to prove the need for such time delays and
associated costs.
6. The Construction Manager shall not be required to perform any work relating to
hazardous waste without consent pursuant to the changes clause herein.
7. (Intentionally omitted.)
10.2 Claims for Additional Cost or Time
All claims for additional cost or time shall be made by request for a change order
submitted as provided in Article 16.
As used in this subparagraph, "cost" shall mean the estimated or actual net increase or
decrease in cost to the Construction Manager, subcontractor, or sub-subcontractor for
performing the work covered by the change, including actual payments for materials,
equipment rentals, expendable items, wages and associated benefits to workmen and to
supervisors employed full time at the site, insurance bonds and other provable direct
costs, but not including any administrative, accounting, or other indirect or overhead
costs, or any wages or benefits of supervisory personnel not assigned full time to the site,
or any amount of profit or fee to the Construction Manager, subcontractor or sub-
subcontractor.
If the Construction Manager is delayed at any time in the progress of the work by any act
or neglect of the Owner or the Engineer or of any employee of either or by any separate
Construction Manager employed by the Owner or by any changes ordered in the work by
labor disputes, fire, or unusual delay in transportation, unavoidable casualties or any
causes beyond the Construction Manager's control or by delay authorized by the Owner
pending resolution of disputes, and such delay extends the completion date, then the dates
for completion may be equitably adjusted.
Only delays which are determined to extend the critical path for the schedule for
constructing the project will result in a time extension. Neither the Owner nor the
Construction Manager shall be considered to own the schedule float time.
Page 46 of 85
10.3 Minor Changes in the Project
The Owner will have authority to order minor changes in the Project not involving an
adjustment in the Guaranteed Maximum Price or an extension of the Construction
Completion Date and not inconsistent with the intent of the Drawings and Specifications.
Such changes shall be effected by written order. The Documentation of changes shall be
determined by the Construction Team, included in the Project Manual and displayed
monthly in the PMIS. Changes shall be approved by the Owner and Engineer.
10.4 Emergencies
In any emergency affecting the safety of persons or property, the Construction Manager
shall act at its discretion to prevent threatened damage, injury or loss. Any increase in the
Guaranteed Maximum Price, or extension of time claimed by the Construction Manager
on account of emergency work, shall be determined as provided in Article 10.
ARTICLE 11
DISCOUNTS
11.1 All discounts for prompt payment shall accrue to the Owner to the extent the Cost of the
Work is paid directly by the Owner or from a fund made available by the Owner to the
Construction Manager for such payments. To the extent the Cost of the Work is paid with
funds of the Construction Manager, all cash discounts shall accrue to the Construction
Manager. All trade discounts,rebates and refunds, and all returns from the sale of surplus
materials and equipment, shall be credited to the Cost of the Work.
ARTICLE 12
PAYMENTS TO THE CONSTRUCTION MANAGER
12.1 Monthly Statements
The Construction Manager shall submit to the Owner a sworn statement, along with the
cost reports required under Article 2.5(2) & (3), showing in detail all moneys paid out,
cost accumulated or costs incurred on account of the Cost of the Work during the
previous period and the amount of the Construction Manager's fees due as provided in
Article 8. This data shall be attached to the Partial Pay Request Form shown in Exhibit
"G". Ten percent (10%) retainage shall be held on all payments until the contract is fifty
percent (50%) complete; except, when approved by the Owner, certain suppliers and
subcontractors may be paid the entire amount due when such payment is generally the
practice of the industry. At 50% completion, the Owner may approve a reduction of the
retainage from 10% to 5% at its discretion. Payments by the Owner to the Construction
Manager shall be made as described in Article 12.4 hereinafter. As a condition to the
application for the monthly partial pay requisition, the Construction Manager agrees that
Page 47 of 85
all as-built information will be recorded within 30 days after receipt of information that a
change to the Construction Documents has occurred.
12.2 Final Payment
Final payment constituting the unpaid balance of the Cost of the Work and the
Construction Manager's fee, shall be due and payable as described in Article 12.4 after
Final Completion, provided that the Project be then finally completed, that the
Construction Manager has verified by its signature that it has completed all items
specified on the attached Exhibit "H" and that this Agreement has been finally
performed. However, if there should remain work to be completed, the Construction
Manager, the Owner, and the Engineer shall list those items prior to receiving final
payment and the Owner may retain a sum equal to 200% of the estimated cost of
completing any unfinished work and portion of the Construction Manager's retainage,
provided that said unfinished items are listed separately and the estimated cost of
completing any unfinished items are likewise listed separately. Thereafter, Owner shall
pay to Construction Manager, monthly, the amount retained for each incomplete item
after each of said items is completed.
12.3 Payments to Subcontractors
The Construction Manager shall promptly, within 10 days after receipt of payment from
the Owner, pay all the amount due to subcontractors less a retainage of ten percent
(10%) until the project is fifty percent (50%) complete, and based on Construction
Manager's evaluation of the subcontractor's acceptable performance, the Owner may
approve a reduction in retainage from 10%to 5%thereafter. If there should remain items
to be completed, the Construction Manager, the Owner and Engineer shall list those
items required for completion and the Construction Manager shall require the retainage
of a sum equal to 200% of the estimated cost of completing any unfinished items,
provided that said unfinished items are listed separately and the estimated cost of
completing any unfinished items likewise listed separately. Thereafter, the Construction
Manager shall pay to the subcontractors, monthly, the amount retained for each
incomplete item after each of said items is completed. Before issuance of final payment
without any retainage, the subcontractor shall submit satisfactory evidence that all
payrolls, material bills and other indebtedness connected with the Project have been paid
or otherwise satisfied, warranty information is complete, as-built markups have been
submitted and instruction for the Owner's operating and maintenance personnel is
complete.
Final payment may he made to certain select subcontractors whose work is satisfactorily
completed prior to the total completion of the Project but only upon approval of the
Owner.
12.4 Construction Manager's Payment Rights
Page 48 of 85
Payment for construction services shall be governed and in accordance with Florida
Prompt Payment Act Statute 218.735, Timely Payment for Purchases of Construction
Services.
12.5 Payments for Materials and Equipment
Payments will be made for material and equipment not incorporated in the work but
delivered and suitably stored at the site or another location that is insured to protect the
Owner's assets subject to prior written approval and acceptance by the Owner on each
occasion.
12.6 Withholding Payments To Subcontractors
The Construction Manager shall not withhold payments to subcontractors if such
payments have been made to the Construction Manager. Should this occur, the
Construction Manager shall return such moneys to the Owners, adjusting pay requests
and project bookkeeping as required. However, this provision shall not apply should
payments to Subcontractors be withheld as a result of procuring normal process
paperwork in accordance with the Construction Managers contract with said
Subcontractor. The Construction Manager shall, if requested by the Owner, notify the
Owner in writing as to the reason for withholding payment.
ARTICLE 13
INSURANCE,INDEMNITY AND WAIVER OF SUBROGATION
13.1 Indemnity
The Construction Manager agrees to indemnify and hold the Owner and its agents and
employees harmless from all claims of liability, damages, losses and costs, including but
not limited to reasonable attorney's fees, to the extent that they are caused by the
negligence, recklessness, or intentional wrongful misconduct of the Construction
Manager or persons employed or utilized by the Construction Manager in the
performance of this Agreement.
13.2 Construction Manager's Insurance
1. The Construction Manager shall not commence any construction work in connection
with this Agreement until it has obtained all of the following types of insurance and
such insurance, naming the City of Ocoee as additional insured, and has been
approved by the Owner, nor shall the Construction Manager allow any subcontractor
to commence work on its subcontract until all similar insurance required of the
subcontractor has been so obtained and approved. All insurance policies shall be with
insurers qualified and doing business in Florida with an A.M. Best& Company rating
of no less than A.
Page 49 of 85
2. Worker's Compensation Insurance - The Construction Manager shall take out and
maintain during the life of this Agreement Worker's Compensation Insurance for all
its employees connected with the work of this Project and, in case any work is sublet,
the Construction Manager shall require the subcontractor similarly to provide
Worker's Compensation Insurance for all of the latter's employees unless such
employees are covered by the protection afforded by the Construction Manager. Such
insurance shall comply with the Florida Worker's Compensation Law. In case any
class of employees engaged in hazardous work under this Agreement at the site of the
Project is not protected under the Worker's Compensation statute, the Construction
Manager shall provide adequate insurance, satisfactory to the Owner, for the
protection of employees not otherwise protected. Employers' liability shall be set at
$1,000,000/1,000,000/1,000,000.
3. Construction Manager's Public Liability and Property Damage Insurance - The
Construction Manager shall take out and maintain during the life of this Agreement
Comprehensive General Liability and Comprehensive Automobile Liability Insurance
as shall protect him from claims for damage for personal injury, including accidental
death, as well as claims for property damages which may arise from operating under
this Agreement, whether such operations are by himself or by anyone directly or
indirectly employed by him, and the amount of such insurance shall be minimum
limits as follows:
a. Construction Manager's Comprehensive General, $1,000,000 Each ($2,000,000
aggregate) Liability Coverages, Bodily Injury Occurrence, & Property Damage
Combined Single Limit
b. Automobile Liability Coverages, $1,000,000 Each Bodily Injury & Property
Damage Occurrence, Combined Single Limit
c. Excess Liability, Umbrella Form $2,000,000 Each Occurrence, Combined Single
Limit Insurance clause for both Bodily Injury and Property Damage shall be
amended to provide coverage on an occurrence basis. The Products and
Completed operations portions of the General Liability and Excess Liability
policies shall extend for a period of ten (10) years after the Final Acceptance of
the Project by the Owner.
4. Subcontractor's Public Liability and Property Damage Insurance - the Construction
Manager shall require each of its subcontractors to procure and maintain during the
life of the subcontract, insurance of the type specified above or insure the activities of
its subcontractors in its policy, as specified above.
5. (Intentionally omitted.)
6. "XCU" (Explosion. Collapse, Underground Damage) - The Construction Manager's
Liability Policy shall provide "XCU" coverage for those classifications in which they
are excluded.
7. Broad Form Property Damage Coverage, Products & Completed Operations
Page 50 of 85
Coverages - The Construction Manager's Liability Policy shall include Broad Form
Property Damage Coverage, Products and Completed Operations Coverages.
8. Contractual Liability Work Contracts - The Construction Manager's Liability Policy
shall include Contractual Liability Coverage designed to protect the Construction
Manager for contractual liabilities assumed by the Construction Manager in the
performance of this Agreement.
9. Indemnification Rider
a. In any and all claims against the Owner or the Engineer or any of their agents or
employees by any employee of the Construction Manager, any subcontractor,
anyone directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable, the indemnification obligations under this Paragraph
shall not be limited in any way by any limitation on the amount or type of
damages, compensation or benefits payable by or for the Construction Manager or
any subcontractor under workers' or workmen's compensation acts, disability
benefit acts or other employee benefit acts.
b.The obligations of the Construction Manager under this Article 13.2.9 shall not
extend to the liability of Engineer, its agents or employees, arising out of(1) the
preparation or approval of maps, drawings, opinions, reports, surveys, change
orders, designs or specifications, or (2) the giving of or the failure to give
directions or instruction by Engineer, its agents or employees, providing such
giving or failure to give is the primary cause of the injury or damage.
c. e 13.2(9).
10. Builder's Risk Coverage - The Construction Manager shall take out and maintain
during the life of this Agreement a "Builder's Risk Policy" completed value form,
issued to provide coverages on an "all risk" basis including theft. This coverage
shall not be lapsed or canceled because of partial utilization by the Owner prior to
final acceptance of the Project. The Owner may elect to take out and maintain this
insurance coverage. Should the Owner purchase said insurance, the insurance
policy shall have a deductible for each occurrence of$5,000.00. The Construction
Manager shall be responsible for losses up to the amount of the deductible.
1I.Certificate of Insurance - The Owner shall be furnished proof of coverage of
Insurance as follows:
Certificate of Insurance form and the actual policies (if requested) will be furnished
to the Owner. These shall be completed and signed by an authorized Resident
Agent. This Certificate shall be dated and show:
a. The name of the insured Construction Manager, the specific job by name and
job number, the name of the insurer, the number of the policy, its effective date,
and its termination date.
Page 51 of 85
b. Statement that the Insurer will mail notice to the Owner and a copy to the
Engineer at least fifteen (15)days prior to any material changes in provisions or
cancellation of the policy.
c. Certificate of Insurance shall be in the form as approved by Insurance Standards
Office (ISO) and such Certificate shall clearly state all the coverages required in
this Section commencing at 13.2 and ending with 13.3(4).
12. Owner is to be named as an Additional Insured under all policies except for
Worker's Comp.
13.The insurance evidenced by the certificate shall be primary and non-contributory to
any other insurance of the certificate holder.
13.3 Waiver of Subrogation
I. The Owner and the Construction Manager waive all rights against each other, for
damages caused by perils covered by insurance provided under Article 13.2 to the
extent they are covered by such insurance except such rights as they may have to the
proceeds of such insurance held by the Owner and Construction Manager as trustees.
The Construction Manager shall require similar waivers from all subcontractors and
their sub-subcontractors.
2. The Owner and Construction Manager waive all rights against each other for loss or
damage to any equipment used in connection with the Project and covered by any
property insurance. The Construction Manager shall require similar waivers from all
subcontractors and their sub-subcontractors.
3. The Owner waives subrogation against the Construction Manager on all property
and consequential loss policies carried by the Owner on adjacent properties and
under property and consequential loss policies purchased for the Project after its
completion.
4. If the policies of insurance referred to in this Article require an endorsement to
provide for continued coverage where there is a waiver of subrogation, the Owner of
such policies will cause them to be so endorsed. Failure to obtain proper
endorsement nullifies the waiver of subrogation.
13.4 Insurance as Additional Remedy
Compliance with the insurance requirements of this Agreement shall not limit the liability
of the Construction Manager, its subcontractors, sub-subcontractors, material suppliers,
employees, or agents to the Owner or others. Any remedy provided to the Owner, or the
Owner's officers, employees, agents or assigns, by the insurance shall be in addition to
and not in lieu of any other remedy available under the Agreement or otherwise.
13.5 No Waiver by Approval/Disapproval
Page 52 of 85
Neither approval by the Owner nor failure to disapprove the insurance furnished by the
Construction Manager shall relieve the Construction Manager of its full responsibility to
provide the insurance as required by this Agreement.
ARTICLE 14
TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM
CONSTRUCTION MANAGER'S OBLIGATION
14.1 Suspension by the Construction Manager
If the Project is stopped for a period of thirty (30) days under an order of any court or
other public authority having jurisdiction or as a result of an act of government, such as
a declaration of a national emergency making materials unavailable, through no act or
fault of the Construction Manager, or if the Project should be stopped for a period of
sixty (60) days by the Construction Manager for the Owner's failure to make payments
thereon, then the Construction Manager may submit a Claim pursuant to Article 16 for
an equitable adjustment to the Project Schedule as well as to the GMP for mobilization
and re-mobilization costs.
14.2 Owner's Right to Perform Construction Manager's Obligations and Termination by
Owner for Cause
The Owner may terminate this Agreement for any of the following reasons:
1. If the Construction Manager is adjudged as bankrupt, or if it makes a general
assignment for the benefit of its creditors, or if a receiver is appointed on account
of its insolvency, or if it persistently or repeatedly refuses or fails, except in case
for which extension of time is provided, to supply enough properly skilled
workmen or proper materials and fails to maintain an established schedule (failure
to maintain schedule shall be defined as any activity on the critical path that falls
45 days or more behind schedule) which has been adopted by the Construction
Team, or if it fails to make prompt payment to subcontractors for materials or
labor, or persistently disregards laws, rules, ordinances, regulations, or orders of
any public authority having jurisdiction, or otherwise materially breaches this
Agreement.
2. The Owner may, without prejudice to any right or remedy and after giving the
Construction Manager and its surety, seven (7) days written notice, during which
period Construction Manager fails to cure the violation, terminate the
employment of the Construction Manager and take possession of the site and of
all materials, equipment, tools, construction equipment and machinery thereon
owned by the Construction Manager, accept assignment of the subcontracts, and
may finish the Project by whatever method Owner may deem expedient In such
case, the Construction Manager shall not be entitled to receive any further
Page 53 of 85
payment until the Project is finished nor shall it be relieved from its obligations
assumed under Article 7. Reasonable terminal expenses incurred by the Owner
may be deducted from any payments left owing the Construction Manager. In the
event the costs for completing the Work, including compensation for any
Engineer services and expenses, exceed the unpaid balance of the Contract Sum,
the Construction Manager shall pay the difference to the Owner. This obligation
for payment shall survive termination of this Agreement. However, no such
notice is required of the Owner if the furnishing of such notice would be futile.
14.3 Termination by Owner for its Convenience
1. The Owner may, at any time, terminate or suspend this Agreement in whole or in
part for the Owner's convenience and without cause. Owner will not incur liability
for the issuance of a stop work order.
2. Upon receipt of written notice from the Owner of such termination for the Owner's
convenience, the Construction Manager shall:
a. Cease operations as directed by the Owner in the notice;
b. Take actions necessary, or that the Owner may direct, for the protection and
preservation of the Work; and
c. Terminate all existing subcontracts and purchase orders and not enter into
further subcontracts and purchase orders, except for Work directed to be
performed prior to the effective date of termination stated in the notice.
3. In case of such termination for the Owner's convenience, the Construction Manager
shall be entitled to receive payment for any non-deficient Work executed up to the
date of said termination.
ARTICLE 15
ASSIGNMENT AND GOVERNING LAW
15.1 Neither the Owner nor the Construction Manager shall assign its interest in this
Agreement without the written consent of the other except as to the assignment of
proceeds.
15.2 This Agreement shall be governed by the Laws of the State of Florida. Venue shall lie
exclusively in Orange County, or federal court in Orlando, Florida. The parties waive all
rights to trial by jury.
ARTICLE 16
NOTICE OF CLAIM: WAIVER OF REMEDIES
Page 54 of 85
16.1 The Owner's liability to the Construction Manager for any claims arising out of or related
to the subject matter of this Agreement, whether in contract or tort, including, but not
limited to, claims for extension of construction time; for payment by the Owner of the
costs, damages or losses because of changed conditions under which the work is to be
performed; or for additional work; shall be governed by the following provisions:
I. All claims must be submitted as a Request for Change Order in the manner as
provided herein;
2. The Construction Manager must submit a Notice of Claim to Owner within 20
days of the Construction Manager becoming aware of the occurrence, or the
event, giving rise to the claim; and
3. Within 10 days of submitting its Notice of Claim, the Construction Manager shall
submit to the Owner its Request for Change Order, which shall include a written
statement of all the details of the claim, including a description of the work
affected.
The Construction Manager agrees that the Owner shall not be liable for any claim that
the Construction Manager fails to submit as a Request for Change Order as provided in
this paragraph.
16.2 After receipt of a Request for Change Order, the Owner, in consultation with the
Engineer, shall deliver to the Construction Manager its written determination of the
claim. The City Manager has authority to execute changes orders up to the limits
designated in the City of Ocoee Purchasing Code. Above said limits, the City
Commission must authorize the change order.
16.3 For work the Construction Manager performs with its own forces, and in addition to the
adjustments provided for in Article 8, the Construction Manager's exclusive remedy for
delays in performance of the construction caused by events beyond its control, including
delays claimed to be caused by or attributable to the Owner or the Engineer, including
claims based on breach of contract or negligence, shall be a claim submitted in
compliance with Article 16.1 above, for an extension of the scheduled construction time.
In the event of a change in such work, the Construction Manager's claims for adjustments
in the contract sum are limited exclusively to its actual costs for such changes plus 5%for
overhead and profit. The Construction Manager expressly agrees that the foregoing
constitutes its sole and exclusive remedy for delays and changes in such work, and
eliminates any other remedies for claim, for increase in the contract price, delays,
changes in the work, damages, losses or additional compensation.
16.4 In the event the Construction Manager's work on the Project is delayed, the Construction
Manager's sole and exclusive remedy is an extension of the construction completion date
regardless of whether delay is caused by any act or neglect of the Owner, Engineer, or is
attributable to the Owner or Engineer.
Page 55 of 85
ARTICLE 17
DISPUTES
17.1 Harmony
The Construction Manager is advised and hereby agrees that he will exert every
reasonable and diligent effort to assure that all labor employed by the Construction
Manager and his Subcontractors for work on the project shall work in harmony with and
be compatible with all other labor being used by building and construction contractors
now or hereafter on the site of the project.
The Construction Manager further agrees that this provision will be included in all
subcontracts of the Subcontractors as well as the Construction Manager's own contract;
provided, however, that this provision shall not be interpreted or enforced so as to deny
or abridge, on account of membership or non-membership in any labor union or labor
organization, the right of any person to work as guaranteed by Article I, Section 6 of the
Florida Constitution.
17.2 Dispute Resolution
1. All claims, disputes and other matters in question (hereinafter referred to as a
"Controversy") between the parties to this Agreement arising out of or relating to
this Agreement or the breach thereof shall be initially submitted to mediation by a
mediator mutually acceptable to both parties. Otherwise, if the parties cannot agree
on a mediator, mediation shall be in accordance with the Construction Mediation
Rules of the American Arbitration Association ("AAA"). Construction Manager
shall require pre-suit mediation in all of its subcontracts for this Project.
2. Should either the Owner or the Construction Manager feel it necessary and
appropriate to take any legal action to enforce any of the terms or conditions of this
Agreement between said parties, then each party shall be responsible for its own
attorney's fees and costs associated with such litigation.
ARTICLE 18
(Intentionally omitted.)
ARTICLE 19
PUBLIC RECORDS
19.1 The Construction Manager must comply with public records laws, specifically to:
This paragraph will survive termination of this Agreement.
Page 56 of 85
The City of Ocoee (City) is a public agency subject to Chapter 119, Florida Statutes. The
Contractor agrees to comply with Florida's Public Records Law. Specifically, the Contractor
shall:
1. Keep and maintain public records required by the City to perform the service.
2. Upon request from the City's custodian of public records, provide the City with a copy of the
requested records or allow the records to be inspected or copied within a reasonable time at a
cost that does not exceed the cost provided in chapter 119, Florida Statutes, or as otherwise
provided by law.
3. Ensure that public records that are exempt or confidential and exempt from the public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
contract term and following completion of the contract if the Contractor does not transfer the
records to the City.
4. Upon completion of the contract, Contractor agrees to transfer at no cost to the City all public
records in possession of the Contractor or keep and maintain public records required by the City
to perform the service. If the Contractor transfers all public record to the City upon completion
of the contract, the Contractor shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If the Contractor keeps and
maintains public records upon completion of the contract, the Contractor shall meet all
applicable requirements for retaining public records. All records stored electronically must be
provided to the City, upon request from the City's custodian of public records, in a format that is
compatible with the information technology systems of the City.
5. A Contractor who fails to provide the public records to City within a reasonable time may be
subject to penalties under section 119.10, Florida Statutes.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT 407-905-3100, EXTENSION 1022, CCDL@ci.ocoee.fl.us,
WITH AN OFFICE LOCATED AT 150 NORTH LAKESHORE DRIVE, OCOEE, FLORIDA
34761.
ARTICLE 20
ACCOUNTING RECORDS AND AUDIT
20.1 The Construction Manager shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this Agreement;
the accounting and control systems shall be satisfactory to the Owner. The Owner and
the Owner's accountants or other duly authorized representatives or agents shall be
afforded access to the Construction Manager's records, books, correspondence,
Page 57 of 85
instructions, Drawings, receipts, subcontracts, purchase orders, vouchers, memoranda,
and other data relating to this Project for audit purposes, and the Construction Manager
shall preserve these records, documents and data for a period of ten (10) years after final
payment, or for such longer period as may be required by law. "Phe Construction
Manager shall require all of its subcontractors likewise to retain such records,
documents and data. If the Construction Manager receives notification of a dispute or
the commencement of litigation regarding the Project within this four-year period, the
Construction Manager shall continue to maintain all Project records until final resolution
of the dispute or litigation.
20.2 Upon seven calendar days' written notice, from the date of this Agreement to the last
date described in the preceding Article 20.1, the Construction Manager shall make its
records available during normal business hours to the Owner or its authorized
representative(s). Owner and its authorized representative(s) shall be entitled to inspect,
examine, review and copy the Construction Manager's records at the Owner's
reasonable expense, within adequate work space at the Construction Manager's facilities.
Such rights to inspect, examine, review and copy shall extend to the records and
documentation of subcontractors. Failure by the Construction Manager to supply
substantiating records shall be reason to exclude the related costs from amounts which
might otherwise be payable by the Owner to the Construction Manager pursuant to this
Agreement.
20.3 If at any time, Owner conducts an audit of Construction Manager's records and
documentation and finds that Construction Manager overcharged Owner, Construction
Manager shall pay to Owner the Overcharged Amount which is defined as the total
aggregate overcharged amount together with interest thereon (such interest to be
established at the rate of 12% per annum). If the Overcharged Amount is equal to or
greater than $10,000.00, Construction Manager shall pay to Owner the Overcharged
Amount and the Audit Amount which is defined as the total aggregate of Owner's
reasonable audit costs incurred as a result of its audit of Construction Manager. Owner
may recover the Overcharged Amount and the Audit Amount, as applicable, from any
amount due or owing Construction Manager with regard to the Project or under any
other agreement between Construction Manager and Owner. If such amounts owed
Construction Manager are insufficient to cover the Overcharged Amount and Audit
Amount, as applicable,then Construction Manager hereby acknowledges and agrees that
it shall pay such remaining amounts to Owner within seven (7) business days of its
receipt of Owner's invoice for such remaining amounts. In no event shall the
Overcharged Amount or the Audit Amount be deemed a reimbursable Cost of the Work.
20.4 This Article, "Accounting Records and Audit," including all access, inspection, copying,
auditing, reimbursement and repayment rights shall survive the termination of this
Agreement.
ARTICLE 21
MISCELLANEOUS
Page 58 of 85
21.1 Limitation of Liability. The Owner shall be liable only to the extent of its interest in
the Project, and no officer, director, partner, agent or employee of the Owner shall ever
be personally or individually liable with respect to this Agreement or the Work. Any
subcontract entered into by the Construction Manager shall include the forgoing
limitation, which shall be effective in the event the Owner ever succeeds to the
Construction Manager's rights and obligations under a subcontract.
21.2 Unless the context of this Agreement otherwise clearly requires, references to the plural
include the singular, references to the singular include the plural, the term "including"
is not limiting, and the terms "hereof', "herein", "hereunder", and similar terms in the
Contract Documents refer to the Contract Documents as a whole and not to any
particular provision thereof, unless stated otherwise.
21.3 Gender. Unless the context clearly indicates to the contrary, pronouns having a neuter,
masculine or feminine gender shall be deemed to include the others.
21.4 Entire Agreement. This Agreement and the Construction Documents incorporated
herein by reference constitute the entire Agreement between the parties with respect to
the matters covered by this Agreement. All prior negotiations, representations and
agreements not incorporated in this Agreement are cancelled. This Agreement can be
modified or amended only by a written document duly executed by the parties or their
duly appointed representative.
21.5 Binding Effect. Each and all of the covenants, terms, provisions and agreements
contained in this Agreement shall be binding upon and inure to the benefits of the
parties and their respective assigns, successors, subsidiaries, affiliates, holding
companies and legal representatives, as allowed in this Agreement.
21.6 Notices. All notices shall be in writing, and may be served by (a) depositing the same
in the United States mail addressed to the party to be notified, postpaid, and registered
or certified with return receipt requested, (b) by delivering the same in person to such
party, (i) personal delivery, or (ii) overnight courier, or (c) by facsimile transmission
provided that a copy is sent on the same day, by 5 p.m., by either of the methods
described in (a)or(b). Notice deposited in the mail shall be deemed to have been given
on the third day next following the date postmarked on the envelope containing such
notice, or when actually received, whichever is earlier. Notice given in any manner
shall he 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 delivered at the addresses or facsimile
numbers set forth below:
If to Owner: CITY OF OCOEE
Public Works Director
150 North Lakeshore Drive
Ocoee, FL 34761
Page 59 of 85
Telephone: 407-905-3170
CITY OF OCOEE
Purchasing Agent
150 North Lakeshore Drive
Ocoee, FL 34761
Telephone: 407-905-3100 ext. 1516
Construction Manager: OELRICH CONSTRUCTION, Inc.
Ivan Oelrich, President
275 NW 137th Drive, Suite A
Jonesville, FL 32669
By giving the other party at least 15 days written notice, each party shall have the right
to change its address and specify as its new address any other address in the United
States of America.
21.7 Waiver. No consent or waiver, express or implied, by either party to this Agreement to
or of any breach or default by another in the performance of any obligations shall be
deemed or construed to be consent or waiver to or of any other breach or default by that
party. Except as otherwise provided in this Agreement, failure on the part of any party
to complain of any act or failure to act by another party or to declare the other party in
default, irrespective of how long such failure continues, shall not constitute a waiver of
the rights of that party.
21.8 Captions. The headings used for the various portions of this Agreement and the
Construction Documents are inserted only as a matter of convenience, and for
reference, and in no way define, limit or describe the scope or the intent of this
Agreement, any section of this Agreement, or any section of the Contract Documents.
21.9 Severability. In the event the provisions of this Agreement are determined by a Court
of competent jurisdiction to be illegal or unenforceable, then such unenforceable or
unlawful provision shall be excised from this Agreement, and the remainder of this
Agreement shall continue in full force and effect. Notwithstanding the foregoing, if the
result of the deletion of such provision will materially and adversely affect the rights of
a party, such party may elect, at its option, to terminate this Agreement in its entirety.
21.10 Cumulative Remedies. All rights, powers, remedies, benefits, and privileges are
available under any provision of this Agreement to any party, is in addition to and
cumulative of any and all rights, powers, remedies, benefits and privileges available to
such party under all other provisions of this Agreement. at law or in equity.
21.11 Approval. Whenever any review or approval is required by any party, such party
agrees that such review or approval will be promptly and expeditiously prosecuted to
conclusion.
21.12 Further Assurances. The parties agree to execute any and all further instruments and
Page 60 of 85
documents, and take all such action as may be reasonably required by any party to
effectuate the terms and provisions of this Agreement and the transactions
contemplated in this Agreement.
21.13 No Partnership or Joint Venture. It is understood and agreed that nothing contained in
this Agreement shall be deemed or construed as creating a partnership or joint venture
between the parties or any third party, or cause any party to be responsible in any way
for the debts and obligations of the other party.
21.14 No Construction Against Drafter. Each of the parties have been represented by legal
counsel who have had ample opportunity to, and have, participated in the drafting of
this Agreement. Therefore, this Agreement shall not be construed more favorably or
unfavorably against any party.
21.15 Third Party Beneficiary. This Agreement has been made and entered into for the sole
protection and benefit of the Owner, and its respective successors, and no other person
or entity shall have any right or action under this Agreement.
21.16 Force Majeure. With regard to the performance under this Agreement, a party shall not
be deemed to be in default of this Agreement, or have failed to comply with any term or
conditions if, for reasons beyond the parties reasonable control, including without
limitation acts of God, natural disaster, labor unrest, war, declared or undeclared, the
existence of injunctions or requirements for obtaining licenses, easements, permits or
other compliance with applicable laws, rules and regulations, such performance is not
reasonably possible within such time periods, then the time for such performance shall
be extended until removal of such reasons beyond the parties reasonable control,
provided that the party commences such performance as soon as reasonably possible
and diligently pursues such performance.
21.17 Right to Enter this Agreement. Each party warrants and represents, with respect to
itself, that neither the execution of this Agreement nor the performance of its
obligations under this Agreement shall violate any legal requirement, result in or
constitute a breach or default under any indenture, contract, or other commitment or
restriction to which it is a party or by which it is bound. Each party also warrants and
represents, with respect to itself, that the execution of this Agreement and the
performances and obligations under this Agreement shall not require any consent, vote,
or approval which has not been obtained, or at the appropriate time shall not have been
given or obtained. Each party agrees that it has or will continue to have throughout the
term of this Agreement the full right and authority to enter into this Agreement and to
perform its obligation under this Agreement. Upon written request, each party agrees
to supply the other party with evidence of its full right and authority.
21.18 Public Entity Crime Information Statement and Department.— Section 287.133(2)(a) of
the Florida Statutes states: "A person or affiliate who has been placed on the convicted
vendor list following a conviction for a public entity crime may not submit a bid on a
contract to provide any goods or services to a public entity, may not submit a bid on a
contract with a public entity for the construction or repair of a public building or public
work, may not submit bids on leases of real property to a public entity, may not be
awarded or perform work as a contractor, supplier, subcontractor, or consultant under a
Page 61 of 85
contract with any public entity, and may not transact business with any public entity in
excess of the threshold amount provided in Section 287.017, for CATEGORY TWO
for a period of thirty-six (36) months from the date of being placed on the convicted
vendor list"
By signing this Agreement, Construction Manager certifies, to the best of its knowledge
and belief, that it and its principals:
a) Are not presently debarred, suspended, proposed for debarment, declared
ineligible or voluntarily excluded from covered transactions by a federal
department or agency.
b) Have not, within a five-year period preceding the issuance of RFQ #1702 been
convicted of or had a civil judgment rendered against them for commission of
fraud or a criminal offense in connection with obtaining, attempting to obtain, or
performing a public (federal, state or local) transaction or contract under public
transaction; violation of federal or state antitrust statutes or commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements or receiving stolen property.
c) Are not presently indicted or otherwise criminally charged by a governmental
entity (federal, state or local) with commission of any of the offenses
enumerated in the preceding paragraph (b).
d) Have not within a five-year period preceding the issuance of RFQ #1702 had one
or more public transactions (federal, state or local) terminated for cause or
default.
Construction Manager agrees to notify Owner within 30 days after the occurrence of
any of the events, actions, debarments, proposals, declarations, exclusions, convictions,
judgments, indictments, informations, or terminations as described in paragraphs (a) —
(d) above, with respect to Construction Manager or its principals.
21.19 No Waiver of Sovereign Immunity. Nothing herein is intended to serve as a waiver of
sovereign immunity by any agency or political subdivision to which sovereign
immunity may be applicable.
2120 Non-Discrimination. The parties shall not discriminate against any employee or
participant in the performance of the duties, responsibilities and obligations under this
agreement because of race, color, religion, gender, age, marital status, disability,
political or religious beliefs, national or ethnic origin.
21.21 Harmony. The Construction Manager is advised and hereby agrees that it will exert
every reasonable and diligent effort to assure that all labor employed by the
Construction Manager and its Subcontractors for work on the project shall work in
harmony with and be compatible with all other labor being used by building and
construction contractors now or hereafter on the site of the project.
The Construction Manager further agrees that this provision will be included in all
subcontracts of the Subcontractors as well as the Construction Manager's own contract;
provided, however, that this provision shall not be interpreted or enforced so as to deny
Page 62 of 85
or abridge, on account of membership or non-membership in any labor union or labor
organization, the right of any person to work as guaranteed by Article I, Section 6 of
the Florida Constitution.
21.22 Construction Manager's Project Records. The Construction Manager's Project Records
shall be maintained as prescribed herein above for the minimum period required by
State and Federal Law, and shall be made available to the Owner or its authorized
representative at mutually convenient times.
21.23 Consequential Damages. The parties mutually waive all claims for consequential
damages, except to the extent paid for by insurance maintained for this project or for
liquidated damages otherwise recoverable by the Owner and allowed by this
Agreement.
SIGNATURE PAGE TO FOLLOW
Page 63 of 85
IN WITNESS WHEREOF,the parties hereto have executed this Agreement the day and year
first above written.
CONSTRUCTION MANAGER: OELRICH CONSTRUCTION,INC.
BY:
PRINT NAME:Ivan Oelrich
TITLE: President
WITNESSES:
NAME: NAME:
TITLE: TITLE:
OWNER: CITY OF OCOEE,FLORIDA
ATTEST: APPROVED:
BY: BY:
Melanie Sibbitt, City Clerk Rusty Johnson, Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY CITY OF OCOEE
THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING HELD
APPROVED AS TO FORM AND LEGALITY on ,under Agenda Item
this_day of , 2017
SHUFFIELD, LOWMAN & WILSON,P.A.
BY:
Scott A. Cookson,City Attorney
END OF SECTION
Page 64 of 85
TRUTH-IN-NEGOTIATION CERTIFICATE
"Phe Consultant hereby certifies that all wage rates, and any and all other unit
costs supporting the compensation to be paid to the Consultant pursuant to a Services
Authorization for the Services as set forth therein, will be accurate, complete, and current at the
date of the Services Authorization's execution.
WITNESS: OELRICH CONSTRUCTION, INC.
BY: BY:
Print Name: Print Name: Ivan Oelrich
Title: Title: President
STATE OF FLORIDA
COUNTY OF
PERSONALLY APPEARED before me, the undersigned authori-
ty, , [ ] well known to me or[] who has produced his/her
as identification, and known by me to be the of the corporation named above, and
acknowledged before me that he/she executed the foregoing instrument on behalf of said
corporation as its true act and deed, and that he/she was duly authorized to do so.
WITNESS my hand and official seal this day of ,20 .
NOTARY PUBLIC
Print Name:
My Commission Expires:
Page 65 of 85
EXHIBIT A
To Be Completed Per Project Assignment
Construction Team Representatives
Owner City of Ocoee, City Commission
City Manager Robert D. Frank
Owner's Representative Steve Krug, Public Works Director
Engineer Barnes, Ferland and Associates, Inc. (A.K.A. BFA)
Willie E. Thomas. P.E., Project Managing Principal
Construction Manager Oelrich Construction, Inc.
CM Representative Ivan Oelrich, President
Derek Dykes, Senior Project Manager
Page 66 of 85
EXHIBIT B
SAMPLE: To Be Completed per Project Assignment
Construction Manager's Personnel During Construction Phase
(TO BE COMPLETED AT FINAL GMP)
Duration
Name Title (Months) Percentage
Off-Site Staff
On-Site Staff
Page 67 of 85
EXHIBIT C
SAMPLE: To Be Completed per Project Assignment
CERTIFICATE OF SUBSTANTIAL COMPLETION
Project: Construction Manager at Risk for Bluford Avenue Reconstruction
RFQ No. 1702
CONTRACTOR Oelrich Construction,Inc.
Contract For
Contract Date
This Certificate of Substantial Completion applies to all Work under the Contract Documents or to
the following specified parts thereof:
To
Owner
And To
Contractor
The Work to which this Certificate applies has been inspected by authorized representatives of
OWNER, CONTRACTOR and ENGINEER, and that Work is hereby declared to be substantially
complete in accordance with the Contract Documents on
(Date of Substantial Completion).
A tentative list of items to be completed or corrected is attached hereto. This list may not be all-
inclusive, and the failure to include an item in it does not alter the responsibility of
CONTRACTOR to complete all the Work in accordance with the Contract Documents. When this
Certificate applies to a specified part of the Work the items in the tentative list shall be completed
or corrected by CONTRACTOR within days of the above date of Substantial Completion.
Page 68 of 85
The date of Substantial Completion is the date upon which all guarantees and warranties begin,
except as follows:
The responsibilities between OWNER and CONTRACTOR for security, operation, safety,
maintenance, heat, utilities and insurance shall be as follows:
RESPONSIBILITIES:
OWNER
CONTRACTOR
The following documents are attached to and made a part of this Certificate:
Page 69 of 85
Executed by OWNER on , 20
(OWNER)
By
The CONTRACTOR accepts this Certificate of Substantial Completion on:
,20 .
(Contractor)
By
END OF SECTION
Page 70 of 85
EXHIBIT D
SAMPLE: To Be Completed per Project Assignment
Final Completion Forms
CONSTRUCTION MANAGER'S AFFIDAVIT OF CONTRACT COMPLETION
OWNER: City of Ocoee
PROJECT: Bluford Avenue Reconstruction
CONSTRUCTION MANAGER: Oelrich Construction, Inc.
CONTRACT FOR: Construction Manager at Risk
CONTRACT DATE:
CONTRACT AMOUNT:
CONSTRUCTION MANAGER'S AFFIDAVIT
I solemnly swear and affirm:That the work under the above-named Contract and all amendments
thereto have been completed in accordance with the requirements of said Contract: that except as
noted on the attached sheet, all costs incurred for equipment, materials, labor, and services
against the Project have been paid; that no liens have been attached against the Project; that no
Notices of Non-Payment have been served against the Payment Bond issued for this Project;
that, except as noted on the attached sheet, no suits are pending by reason of work on the Project
under the Contract; that all Workmen's Compensation claims are covered by Workmen's
Compensation insurance as required by law; and that all public liability claims are adequately
covered by insurance.
CONSTRUCTION MANAGER:
(Seal)
Title: Date:
STATE OF:
COUNTY OF:
Personally appeared before me this day of 20 , known (or made
known)to me to be the of , who, being by me duly sworn, subscribed to
the foregoing affidavit in my presence.
Notary Public
Typed
Name:
My Commission Expires:
Page 71 of 85
EXHIBIT E
SAMPLE: To Be Completed per Project Assignment
Construction Manager's Staff Positions to be Assigned to the he-construction/Design Phases
Name Title Duration Percentage
(Months)
Off-Site Staff
On-Site Staff
Page 72 of 85
EXHIBIT F
SAMPLE: To Be Completed per Project Assignment
Owner's Representative(s) and Designee(s)
Owner's Representative(s) Public Works Director or other City Manager designee
Total Dollar Limit per Occurrence, the City Manager in conjunction with the Owner's
Representative(s) is authorized to obligate the Owner: $ (To be determined
at Final GMP)
Page 73 of 85
EXHIBIT G
SAMPLE: To Be Completed per Project Assignment
Partial Payment Request Form
APPLICATION AND CERTIFICATE FOR PAYMENT FORM
Application No. Progress Payment Final Payment P.O. No.:
Contractor: Oelrich Construction, Inc. Contract Date:
Application Date: For Period Ending
City Project Nos.: RFQ #1702
Project Name: Construction Manager at Risk for Bluford Avenue Reconstruction
Construction Start Date: End Date:
Construction Days—Total: Elapsed: Remaining:
1. Original Contract Amount $
2. Sum of Approved Change Orders to Date(from Table) $
3. Current Contract Amount(Sum of Lines 1 and 2) $
4. Total of Prior Pay Applications (including retainage) $
5. Amount of this Pay Application (including retainage;
from Bid Item Quantity Spreadsheet) $
6. Total Earned to Date (Sum of Lines 4 and 5) $
7. Total of Payments Made by City to Date $
8. Retainage Held from Prior Pay Applications $
9. Retainage to Be Held in this Pay Application $
10. Total Retainage Held to Date(Sum of Lines 8 and 9) $
I I. Total Earned to Date less Retainage(Line 6 minus Line 10) $
12. Total Earned less Retainage for this Pay Application
(Line 5 minus Line 9) $
13. Total Amount to Be Paid by City for this Application
(Line 11 minus Line 7) $
Approved Change Orders
Change Date Approved Date Accepted Total Change in
Order No. by City by Contractor Contract Price
Page 74 of 85
Change Date Approved Date Accepted Total Change in
Order No. by City by Contractor Contract Price
Total (Write in Line 2, above)
(Pay Request Continued on Next Page)
Page 75 of 85
Contractor's Certification
The undersigned Contractor hereby swears under penalty of perjury that(I) all previous progress
payments received from the Owner on account of Work performed under the contract referred to
above have been applied by the undersigned to discharge in full all obligations of the
undersigned incurred in connection with Work covered by prior Applications for Payment
numbered I through inclusive (not applicable for first application.); and (2) all materials
and equipment incorporated in said Project or otherwise listed in or covered by this Application
for Payment are free and clear of all liens, claims, security interest and encumbrances; (3) all
Work covered by this Application for Payment is in accordance with the Contract Documents
and not defective as that term is defined in the Contract Documents.
Dated , 20
(Contractor)
By:
(Name)
(Title)
COUNTY OF
STATE OF
Before me on this day of __. , 20 , personally appeared
, known to me, who being duly sworn, deposes and says that
(s)he is the of the Contractor above mentioned; that(s) he
executed the above Application for Payment and statement on behalf of said Contractor; and that
all of the statements contained therein are true, correct and complete.
Notary Public
My Commission Expires
Payment shown on Line 13 is recommended by City's Owner's Representative and authorized
by the Owner:
By: Date:
Representative's Authorized Signature
By: Date:
Owner's Authorized Signature
Title
Page 76 of 85
EXHIBIT H
SAMPLE: To Be Completed per Project Assignment
Final Payment Request Check List
Items to be submitted with General Contractor's Request for Final Payment
1. Pay Request(I copy with original signatures and original seals, noted as FINAL)
2. Final Schedule of Contract Values
3. Consent of Surety to make Final Payment(signed and sealed)
4. Power of Attorney from Surety for Release of Final Payment (signed, sealed and
dated same as Consent of Surety)
5. Affidavit of Contract Completion (Exhibit D)
6. Satisfactory Conclusion or Release of Lien from all Subcontractors or laborers
who have filed Intent to Lien or have indicated non-payment from the General
Contractor
7. Construction Manager's Guarantee of Construction for one (I) year from the date
of Substantial Completion
8. Copy of the approval by the Engineer and the transmittal to the Owner of
Manuals, Shop Drawings, As-Builts (2 sets of digital media (Flash Drives), two
sets of prints), brochures, warranties, and list of Subcontractors with telephone
numbers and addresses
9. Verification that Owner's personnel has been trained in the operation of their new
equipment, attendance lists and videos
10. Other special Warranties are required by Specifications in the name of the Owner
I I. Copy of Certificate of Completion
Page 77 of 85
EXHIBIT I
SAMPLE:To Be Completed per Assignment
Contract Drawings& Specifications
To be completed at Final GMP
Page 78 of 85
EXHIBIT J
SAMPLE: To Be Completed per Assignment
GMP Bid Breakdown
To be completed at Final GMP
Page 79 of 85
EXHIBIT K
SAMPLE: To Be Completed per Assignment
Clarifications, Assumptions,Exclusions and Allowances
To be completed at Final GMP
Page 80 of 85
EXHIBIT L
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS that
, (hereinafter referred to as "Principal"), and
a corporation organized under the laws of the State of
and licensed to do business in the State of , (hereinafter referred to as
"Surety"), and held and firmly bound unto the City of Ocoee, Florida, as Obligee, (hereinafter
referred to as "Obligee"), in the Penal Sum of , for the payment of which
sum well and truly made, Principal and Surety bind themselves, their heirs, personal
representatives, successors and assigns,jointly and severally, firmly by these presents.
WHEREAS, Principal has by written agreement dated ,entered into a
contract, (hereinafter referred to as the "Contract") with Obligee for the construction of RFO
#1702 Construction Manager at Risk for Bluford Avenue Reconstruction (hereinafter
referred to as the "Project") in accordance with the plans and specifications prepared by
, dated ; and
NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION IS SUCH THAT IF
Principal shall well and truly perform all the undertakings, covenants, terms, conditions, and
agreements of said Contract including, but not limited to, the making of payments to persons or
entities providing labor, materials or services to Principal under the Contract, within the time
provided therein, and any extensions thereof that may be granted by the Obligee, and also during
the life of any warranty or guaranty required under said Contract, and shall also well and truly
perform all undertakings, covenants, terms, conditions, and agreements of any and all duly
authorized and modifications of said Contract that may hereafter be made, and shall pay,
compensate, indemnify and save harmless the said Obligee of and from any and all loss, damage
and expense, or from any breach or default by Principal under the Contract, including, but not
limited to, liquidated damages, damages caused by delays in performance of the Principal,
expenses, cost and attorneys' fees, including appellate proceedings, that Obligee sustains
resulting directly or indirectly from failure of the Principal to perform the Work identified by the
Contract, then this obligations shall be null and void; otherwise, it shall remain in full force and
effect and Surety shall be liable to Obligee under this Performance Bond.
The Surety's obligations hereunder shall be direct and immediate and not conditional or
contingent upon Obligee's pursuit of its remedies against Principal, and shall remain in full force
and effect notwithstanding (I) amendments or modifications to the contract or contract entered
into by Obligee and Principal without the Surety's knowledge or consent; (ii) waivers of
compliance with or any default under the Contract granted by Obligee to Principal or by
Principal to Obligee without the Surety's knowledge or consent; (iii) the discharge of Principal
from its obligations under the Contract as a result of any proceeding initiated under The
Bankruptcy Code of 1978, as the same may be amended, or any similar state or federal law, or
any limitation of the liability of Principal or its estate as a result of any such proceedings; or (iv)
any other action taken by Obligee or Principal that would, in the absence of this clause, result in
the release or discharge by operation of law of the Surety from its obligations hereunder.
Page 81 of 85
In the event that the Surety fails to fulfill its obligations under this Performance Bond,
then the Surety shall also indemnify and save the Obligee harmless from any and all loss,
damage, cost and expense, including reasonable attorneys' fees and other legal costs for all trial
and appellate proceedings, resulting directly or indirectly from the Surety's failure to fulfill its
obligations hereunder. This paragraph shall survive the termination or cancellation of this
Performance Bond. The obligations set forth in this paragraph shall not be limited by the Penal
Sum of this Bond.
Any changes in or under the Contract or the Contract and compliance or noncompliance
with any formalities connected with the Contract or the Contract or the changes therein shall not
affect Surety's obligations under this bond, and Surety hereby waives notice of any such changes.
Further, Principal and Surety acknowledge that the Penal Sum of this bond shall increase or
decrease in accordance with approved changes or modifications to the Contract.
The said Principal and the said surety agree that this bond shall inure to the benefit of all
persons supplying labor and material in the prosecution of the work provided for in the said
subcontract, as well as to the Obligee, and that such persons may maintain independent actions
upon this bond in their own names.
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under
their several seals on the day of , 20 , the name and corporate seal
of each corporate party being hereto affixed and these presents fully signed by its undersigned
representative, pursuant to the authority of its governing body.
Signed, sealed and delivered
in the presence of:
Principal
By: (SEAL)
(Official Title)
Surety
By: (SEAL)
(Official Title)
NOTES: If Principal and Surety arc corporations, the respective corporate seal should be affixed and
attached.
Surety shall execute and attach a certified copy of Power of Attorney Appointing Individual
Attorney-In-Fact for execution of Performance Bond on behalf of Surety.
END OF SECTION
Page 82 of 85
EXHIBIT L
Statutory Payment Bond
Pursuant to Florida Statutes,255.05,et seq.
KNOW ALL MEN BY THESE PRESENTS,THAT
(hereinafter called the "Principal"), as Principal, and , a
corporation organized and existing under the laws of the State of , hereinafter
called the "Surety"), as Surety, are held and firmly bound unto the City of Ocoee, Florida,
(hereinafter called the "Obligee"), by bond number in the sum of
Dollars and_Cents ($ ), for
the payment of which sum well and truly to be made, the said Principal and Surety bind
themselves, and their respective heirs, administrators, executors, successors and assigns,jointly
and severally, firmly by these presents.
WHEREAS,the Principal has entered into a written Contract with the Obligee dated
, 20 to perform, as Contractor, in accordance with the Contract and
Contract Documents, which Contract and Contract Documents are hereby incorporated herein by
reference.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the
Principal promptly makes payments to all claimants, as defined in Section 255.05 (1), Florida
Statutes, that provide or furnish the Principal with labor, materials, or supplies, used directly or
indirectly by Principal in the prosecution of the work provided for in the contract, then this
obligation shall be null and void; otherwise it shall remain in full force and effect.
The Principal and the Surety agree that this Bond shall inure to the benefit of all
claimants, as defined in Section 255.05 (I), Florida Statutes, that provide or furnish the Principal
with labor, materials, or supplies, used directly or indirectly by Principal in the prosecution of the
work provided for in said Contract, and that any such claimant may maintain an independent
action upon this Bond in its own name.
The provisions of Florida Statutes, Section 255.05, et seq. are hereby incorporated herein
by reference and made a part of this payment bond including, but not limited to, the notice and
time limitation provisions in subsection (2). Any action instituted by a claimant under this bond
for payment must be in accordance with the notice and time limitation provisions in Section
255.05 (2), Florida Statutes.
IN WITNESS WHEREOF, the above bounden parties have executed this instrument
under their several seals this day of 20 , the name and
corporate seal of each corporate party being hereto affixed and these presents duly signed by its
undersigned representative, pursuant to authority of its governing body.
Page 83 of 85
(Seal)
(Principal)
By
(Name &Title)
(Signature)
Witness or Secretary's Attestation
(Seal)
(Surety)
By
(Name &Title*)
(Signature)
Witness or Secretary's Attestation
*Attach Power-Of-Attorney
END OF SECTION
Page 84 of 85
EXHIBIT M
Ocoee Engineering Standards Manual
Page 85 of 85