2004-027
RESOLUTION NO. 2004-27
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, AUTHORIZING THE CITY
MANAGER TO EXECUTE THE ATTACHED
DEVELOPMENT AGREEMENT TO DESIGN AND BUiLD
MIDDLE SCHOOL WING ADDITION TO AVENTURA
CHARTER SCHOOL BETWEEN THE CITY OF AVENTURA
AND CHARTER SCHOOLHOUSE DEVELOPERS, INC.;
AUTHORIZING THE CITY MANAGER TO DO ALL THINGS
NECESSARY TO CARRY OUT THE AIMS OF THIS
RESOLUTION; AND PROVIDING AN EFFECTIVE DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF AVENTURA, FLORIDA, THAT:
Section 1.
The City Manager is hereby authorized to execute the attached
Development Agreement to design and build middle school wing addition to the
Aventura Charter School between the City of Aventura and Charter Schoolhouse
Developers, Inc.
Section 2. The City Manager is authorized to do all things necessary to carry
out the aims of this resolution.
Section 3.
This Resolution shall become effective immediately upon its
adoption.
The foregoing Resolution was offered by Commissioner Cohen, who moved its
adoption. The motion was seconded by Commissioner Holzberg and upon being put to
a vote, the vote was as follows:
Commissioner lev Auerbach
Commissioner Jay R. Beskin
Commissioner Ken Cohen
Commissioner Bob Diamond
Commissioner Manny Grossman
Commissioner Harry Holzberg
Mayor Jeffrey M. Perlow
yes
no
yes
yes
yes
yes
yes
Resolution No. 2004-27
Page 2
PASSED AND ADOPTED this 13th day of April 004.
DEVELOPMENT AGREEMENT
between
CHARTER SCHOOLHOUSE DEVELOPERS, INC
and
THE CITY OF AVENTURA
For
DESIGN AND BUILD MIDDLE SCHOOL WING ADDITION TO CHARTER
SCHOOL
Table of Contents
Articles
ARTICLE 1- DEFINITIONS
ARTICLE 2 - CONTRACT DOCUMENTS
ARTICLE 3 -SCOPE OF WORK
ARTICLE 4 - CONTRACT TIME
ARTICLE 5 -CONTRACT SUM
ARTICLE 6 DEVELOPER'S RESPONSIBILITIES
ARTICLE 7 -CITY'S RESPONSIBILITIES
ARTICLE 8 .CITY MANAGER'S RESPONSIBILITIES
ARTICLE 9 -BONDS AND INSURANCE
ARTICLE 10 - WARRANTIES; TESTS AND INSPECTIONS:
CORRECTION OF DEFECTIVE WORK
ARTICLE 11- CHANGE OF CONTRACT TIME
ARTICLE 12 - COST OF WORK
ARTICLE 13 -PAYMENTS TO DEVELOPER AND COMPLETION OF WORK
ARTICLE 14. TERMINATION OF THE AGREEMENT
ARTICLE 15 - NOTICE, COMPUTATION OF TIME
ARTICLE 16 - MISCELLANEOUS
ARTICLE 17 -ASSIGNMENT
ARTICLE 18- SPECIFIC PERFORMANCE
ARTICLE 19- HAZARDOUS SUBSTANCES
PaQe
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DEVELOPMENT AGREEMENT FOR THE DESIGN AND CONSTRUCTION OF THE
AVENTURA MIDDLE SCHOOL ADDITION TO THE CHARTER SCHOOL
THIS AGREEMENT, made and entered into the 14th day of April 2004 by and
between:
CITY OF AVENTURA,
a Florida municipal corporation
19200 West Country Club Drive
Aventura, Florida 33180
(hereinafter referred to as "CITY")
AND
CHARTER SCHOOLHOUSE DEVELOPERS, INC.
1500 San Remo Avenue
Suite 170
Coral Gables, Florida 33146
(hereinafter referred to as "DEVELOPER")
WHEREAS, there are no Miami-Dade County Public (MDCPS) schools within the
CITY's municipal boundaries, MDCPS has indicated that the MDCPS schools that serve
the CITY have been and continue to be overcrowded, and there is insufficient school
capacity to accommodate the impacts of new residential development; and
WHEREAS, the CITY, in response to the growth in its school age population,
including that growth specifically resulting from the development of new residential
dwellings, created, built and currently operates the Aventura Charter Elementary School
(ACES), thereby providing educational choice to its residents and assisting MDCPS in
alleviating its growing school capacity needs; and
WHEREAS, the CITY wishes to further preserve the quality of life for its residents
by the creation of a middle school component to ACES that will provide additional public
school capacity to mitigate the impact of new residential development; and
WHEREAS, the CITY issued RFP #03-12-12-2 to design and build middle school
wing addition to Charter School for the City of Aventura at the site located at 3333 N. E.
188th Street, Aventura, Florida hereinafter referred to as "Site"; and
WHEREAS, after extensive review of the submittal by City staff, staff
recommended that Charter Schoolhouse Developers, Inc., be selected to design and
build middle school wing addition to Charter School for the City of Aventura; hereinafter
referred to as "Facility"; and
WHEREAS, Charter Schoolhouse Developers, Inc., has developed a team which
includes the firms of Luis Machado Construction and Perez Partners who have a unique
level of expertise in the design and construction of school projects; and
WHEREAS, at the February 3, 2004, City Commission meeting, the Commission
approved a Resolution selecting the firm of Charter Schoolhouse Developers, Inc., to
design and build middle school wing addition to Charter School for the City of Aventura
and authorizing the City Manager to negotiate the terms and fees and finalize
agreements necessary to implement said Resolution.
WHEREAS, it is in the best interests of the CITY to enter into a Development
Agreement (hereinafter referred to as "Agreement") with Charter Schoolhouse
Developers, Inc., to design and construct the Facility; now, therefore,
IN CONSIDERATION of the mutual covenants and undertakings and other good
and valuable consideration the receipt and sufficiency of which is hereby acknowledged,
the parties do mutually covenant and agree as follows:
ARTICLE 1- DEFINITIONS
Wherever used in this Agreement or in the other Contract Documents the
following terms have the meanings indicated which are applicable to both the singular
and plural thereof:
1.1
1.2
1.3
1.4
AQreement - The written agreement between CITY and DEVELOPER covering
the Work to be performed including other Contract Documents that are attached
to the Agreement or made a part thereof.
CITY - The City of Aventura with whom DEVELOPER has entered into the
Agreement and for whom the Work is to be provided.
City ManaQer - The City Manager or his designee (hereinafter referred to as
"Manager") of the City of Aventura, who has the authority on behalf of the CITY
to grant or deny approvals, conduct reviews and inspections, and perform the
CITY's responsibilities required by this Agreement.
Contract Documents - The Contract Documents consist of the Agreement, the
Schedule of Values, the Plans and Specifications, Non-Collusive Affidavit, Public
Entity Crimes Form, Notice to Proceed, Certificate(s) of Insurance, Payment and
Performance Bonds, all applicable provisions of State, Federal or local law
(incorporated herein by reference), the Florida Building Code, including Chapter
423 (the State Requirements for Educational Facilities, hereinafter referred to as
"SREF"), the Florida Fire Prevention Code, including reference documents, the
response to RFP #03-12-12-2, design and build middle school wing addition to
Charter School for the City of Aventura as submitted by DEVELOPER dated
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1.5
1.6
1.7
1.8
1 .9
December 12, 2003 (the "RFP Response"), and any additional documents which
are required to be submitted under the Agreement, and all amendments,
modifications and supplements issued on or after the effective date of the
Agreement.
Defective -An adjective which when modifying- the Work refers to Work that is
unsatisfactory, faulty or deficient, or does not conform to the Contract
Documents, or does not meet the requirements of any inspection, reference
standard, test or approval referred to in the Contract Documents, or has been
damaged prior to final payment.
DEVELOPER - Charter Schoolhouse Developers, Inc., having responsibility for
the design and construction of the facility.
DrawinQs -The drawings which show the character and scope of the Work to be
performed and which are referred to in the Contract Documents.
Effective Date of the AQreement - The date indicated in the Agreement on
which it becomes effective, but if no such date is indicated it means the date on
which the Agreement is signed and delivered by the last of the two parties to sign
and deliver.
Notice to Proceed -A written notice given by CITY to DEVELOPER fixing the
date on which the DEVELOPER shall have access to the Site for the purpose of
completing the construction in accordance with this Agreement.
1..10 Sub-contractor - An individual, firm or corporation having a direct Contract with
DEVELOPER or with any other Sub-contractor for the performance of a part of
the Work at the site.
1.11 Work - Work is the result of performing services, specifically, including but not
limited to, professional design services and construction, furnishing labor,
equipment and materials incorporated, used or incorporated in the design and
construction of the entire project as required by the Contract Documents.
1.12 Written Amendment - A written amendment of the Agreement and/or the
Contract Documents, signed by CITY and DEVELOPER on or after the Effective
Date of the Agreement and normally dealing with the non-engineering, non-
architectural, or non-technical aspects, rather than strictly Work related aspects,
of the Contract Documents.
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ARTICLE 2 - CONTRACT DOCUMENTS
2.1
Enumeration of Contract Documents:
2.1.1 The Contract Documents which comprise the entire agreement between
CITY and DEVELOPER are attached or incorporated by reference and made a
part of this Agreement hereof and consist of the following:
(1 )
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11 )
(12)
(13)
2.2
This Agreement (pages 1 to 35, inclusive).
Schedule of Values, attached hereto and incorporated herein as Exhibit
"A" to this Agreement.
Revised Site Plan, attached hereto and incorporated herein as Exhibit "B"
to this Agreement
Construction performance bond, consisting of _pages.
Construction payment bond, consisting of _pages.
Insurance certificate, consisting of _page.
Notice to Proceed.
All applicable provisions of State, Federal or local law (incorporated herein
by reference), the Florida Building Code, including Chapter 423 (SREF),
and the Florida Fire Prevention Code, including reference documents.
Plans and Specifications.
Non-Collusive Affidavit
Public Entity Crimes Form
The RFP Response
Any modification duly delivered after execution of Agreement.
Entire Agreement:
The Contract Documents comprise the entire Agreement between CITY and
DEVELOPER concerning the Work. The Contract Documents are complementary; what
is called for by one is as binding as if called for by all. The Contract Documents will be
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construed in accordance with the law of the State of Florida.
2.3
Intent:
2.3.1 It is the intent of this Agreement to provide for the requirements of the
DEVELOPER to design and construct the Facility"in accordance with the RFP
Response and plans and specifications approved by CITY, hereby incorporated by
reference as one of the Contract Documents, and to meet the requirements of the First
Amendment to the Charter School Contract (First Amendment) to provide for a middle
school addition to existing charter school to be approved by the School Board of Miami-
Dade County (School Board) and to complete the Facility on or before the
commencement of the 2005 School Year pursuant to the requirements of Paragraph 4.3
of this Agreement.
2.3.2 It is the intent of the Contract Documents to describe a functionally
complete Facility consisting of total design performed by design professional and
construction to be completed in accordance with the Contract Documents. Any Work,
materials or equipment that may reasonably be inferred from the Contract Documents
as being required to produce the intended result will be supplied whether or not
specifically called for. When words which have a well known technical or trade meaning
are used to describe Work, materials or equipment, such words shall be interpreted in
accordance with that meaning. Reference to standard specifications, manuals or codes
of any technical society, organization or association, or to the laws or regulations of any
governmental authority, whether such reference be specific or by implication, shall
mean the latest standard specification, manual, code or laws or regulations in effect at
the time of contract award, except as may be otherwise specifically stated. However, no
provision of any referenced standard specification, manual or code (whether or not
specifically incorporated by reference in the Contract Documents) shall be effective to
change the duties and responsibilities of CITY, DEVELOPER, or any of their
consultants, agents or employees from those set forth in the Contract Documents.
2.3.3 It is the intent of this Agreement and the Contract Documents to provide for
the DEVELOPER and the DEVELOPER's architect to design and construct the Facility
in accordance with the requirements of the Florida Building Code, including Chapter 423
(SREF), and the Florida Fire Prevention Code, including reference documents,
applicable state laws and rules, and federal law and rules, and all life/safety mandates
and mandates resulting from the specified educational program. Certification of
compliance with these requirements shall be demonstrated pursuant to School Board
requirements specified in the Charter School Contract and First Amendment, by the
DEVELOPER providing a signed and sealed statement from the architect of record
stating that '" have designed and inspected the subject facility, and to the best of my
knowledge and ability have determined that: the project is in compliance with applicable
federal laws and rules, applicable statue statutes and rules, the Florida Building Code,
including Chapter 423, and the Florida Fire Prevention Code, including reference
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documents, and that no asbestos containing materials were specified for use in this
building, nor were asbestos containing materials used in the construction of this project."
2.4
Representation of DEVELOPER:
Execution of the Agreement by the DEVELOPER is a representation that
DEVELOPER has visited the Site and become familiar with the local conditions under
which the Work is to be performed. If conditions are encountered at the Site which are
(1) subsurface or otherwise concealed physical conditions which differ materially from
those indicated in the Contract Documents or (2) unknown physical conditions of an
unusual nature, which differ materially from those ordinarily found to exist and generally
recognized as inherent in construction activities of the character provided for in the
Contract Documents, then written notice by the DEVELOPER shall be given to the CITY
promptly before such conditions are disturbed. If the conditions differ materially from
those indicated in the Contract Documents and were not known to the DEVELOPER at
the time this Agreement was executed, and cause a material increase or decrease in
the DEVELOPER's cost of, or time required for, performance of any part of the Work, an
equitable adjustment in the Contract Sum or Contract Time, or both, will be made.
2.5
Before Commencing Operations:
Before undertaking each part of the Work, DEVELOPER shall carefully study and
compare the Contract Documents and check and verify pertinent figures shown thereon.
DEVELOPER shall promptly report in writing to CITY any conflict, error or discrepancy
which DEVELOPER may discover and shall obtain a written interpretation or
clarification from the MANAGER before proceeding with any Work affected thereby. If
the DEVELOPER performs any construction activity knowing it involves a recognized
conflict, error, or discrepancy without such notice, the DEVELOPER shall assume
responsibility for such performance and shall bear the attributable costs for correction.
ARTICLE 3 -SCOPE OF WORK
3.1 DEVELOPER shall provide all labor, services and materials necessary to design,
construct and complete the Facility pursuant to the requirements of this Agreement,
Contract Documents and as generally defined in the RFP Response and as further
defined by the approved site plan contained in Exhibit B and construction documents. In
the event of conflict between the RFP Response and this Agreement, this Agreement
shall prevail.
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ARTICLE 4 - CONTRACT TIME
4.1 TIME IS OF THE ESSENCE OF THIS AGREEMENT. DEVELOPER
acknowledges that time is of the essence in the completion of this project. The
construction to be performed under this Agreement shall be commenced upon
notification from the CITY as specified in the Notice to Proceed. In addition,
DEVELOPER acknowledges and agrees that Facility must be substantially completed
so that it is available for operation for the commencement of the 2005 School Year
pursuant to the requirements of Paragraph 4.3 of this Agreement.
4.2 The DEVELOPER further agrees that all Work under this Agreement shall be
prosecuted regularly, diligently and uninterrupted at such rate of progress as will ensure
full completion thereof within the time specified. Failure to achieve timely, substantial
and/or final completion shall be regarded as a material breach of this Agreement and
subject to the appropriate remedies.
4.3 DEVELOPER acknowledges and agrees that there must be at least a temporary
certificate of occupancy issued for the Facility, pursuant to the requirements of the
Florida .Building Code, as further specified in Paragraph 6.2 of this Agreement, no later
than July 1,2005, to ensure that the Facility is ready for the commencement of the 2005
School Year. Should CITY determine that the Facility will not be available for occupancy
on or before July 1, 2005, DEVELOPER agrees to comply with the provisions of
Section 11.1.2 of this Agreement. Upon the issuance of a temporary certificate of
occupancy for the Facility, DEVELOPER agrees to proceed diligently and with all
deliberate speed, to complete any Work remaining under this Agreement, such that a
permanent certificate of occupancy is issued within the timeframes prescribed by law.
ARTICLE 5 -CONTRACT SUM
5.1 CITY shall pay DEVELOPER in current funds as full compensation for the
performance of all the Work a guaranteed maximum price of Four million and one
hundred thousand and 00/100 dollars ($4,100,000.00). This guaranteed maximum price
shall include but not be limited to the following:
Architect/Engineering;
Contract Administration and Management;
Construction of a 31,423 s.f. Middle School Addition;
Site improvements. & Play area
5.2 CITY and DEVELOPER acknowledge that there is the guaranteed maximum (GMP)
price of Four million and one hundred thousand and 00/100 dollars ($4,100,000.00);
however, should the CITY request a change in the scope of Work in writing which would
cause an increase in the contract sum, the CITY shall be responsible for said increase
in costs. Any and all changes to the scope of Work shall be done to maintain the
integrity of an operational charter school which meets the requirements of the Charter
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School Contract, the CITY's November 2003 submittal to the School Board adding the
middle school component, the First Amendment to be approved by the School Board,
and the applicable state statutes.
ARTICLE 6 DEVELOPER'S RESPONSIBILITIES
6.1
Design Responsibilities:
6.1.1 DEVELOPER shall determine the general scope, extent and character of
the Work, in compliance with the Contract Documents and DEVELOPER shall
submit preliminary design documents to CITY, for review and authorization to
proceed with the final design preparation. DEVELOPER shall incorporate CITY's
comments into the design documents and prepare final construction documents
and diagrams setting forth in detail the requirements for construction of the Work
and submit the same to CITY, for approval prior to commencing construction of
the Work. All final design documents, plans, reports, studies and other data
prepared by DEVELOPER shall bear the endorsement of a person in the full
employ of DEVELOPER or sub-contractor and duly registered in the appropriate
professional category.
6.1.2 After CITY'S acceptance of the final construction documents, the original
set of DEVELOPER'S final construction documents shall be provided to CITY
along with two (2) record sets of full size prints. DEVELOPER or its sub-
contractor shall signify, by affixing an endorsement (seal/signature, as
appropriate) on every sheet of the record set, that the Work shown on the
endorsed sheets was produced by DEVELOPER. Upon approval of the final
construction documents, CITY shall issue a written authorization to commence
construction.
6.1.3 All tracings, plans, drawings, diagrams, specifications, maps, reports and
other design documents prepared or obtained under this Agreement shall be
considered works made for hire and shall become the property of CITY without
restriction or limitation on their use for this project pursuant to the requirements
of this Agreement. However, if the documents are modified in any manner by the
CITY without the approval of DEVELOPER or DEVELOPER's architect, CITY's
use of the documents are at CITY's sole risk.
6.1.4 All services shall be performed by DEVELOPER to the satisfaction of
CITY who, upon making a determination of acceptance or satisfaction shall
utilize approved professional standards. Manager, or his designee, shall decide
all questions, and disputes of any nature whatsoever that may arise by reason of
the execution of this Agreement and the prosecution and fulfillment of the
services hereunder.
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6.1.5 Design shall be performed by qualified architects, engineers and other
professionals duly licensed by the State of Florida and holding current
certificates of registration under the laws of the State of Florida to practice
architectural and/or engineering and who are selected and paid by the
DEVELOPER. "
6.2
Applicable Building Code:
The DEVELOPER and the DEVELOPER's architect will design and construct the
Facility in accordance with the requirements of the Florida Building Code, including
Chapter 423 (SREF), and the Florida Fire Prevention Code, including reference
documents, applicable state laws and rules, and federal law and rules, and all
life/safety mandates and mandates resulting from the specified educational program.
Certification of compliance with these requirements shall be demonstrated pursuant to
School Board requirements specified in the Charter School Contract and First
Amendment, by the DEVELOPER providing a signed and sealed statement from the
architect of record stating that "I have designed and inspected the subject facility, and to
the best of my knowledge and ability have determined that: the project is in compliance
with applicable federal laws and rules, applicable statue statutes and rules, the Florida
Building Code, including Chapter 423, and the Florida Fire Prevention Code, including
reference documents, and that no asbestos containing materials were specified for use
in this building, nor were asbestos containing materials used in the construction of this
project."
6.3
Liability for use of Work for Intended Purpose:
As an inducement for CITY to enter into this Agreement, DEVELOPER has
represented an expertise in designing and constructing charter schools. In reliance
upon those representations, CITY hired DEVELOPER to provide professional design
services and complete construction services. DEVELOPER shall be liable for any
defective or negligent design, whether patent or latent, and/or any negligence, strict
liability or breach of other legal duty as such may be found by a court of competent
jurisdiction.
6.4 Supervision and Superintendence:
DEVELOPER shall supervise and direct the Work competently and efficiently,
devoting such attention thereto and applying DEVELOPER'S best skill, attention and
expertise. DEVELOPER shall be solely responsible for and have control over the
means, methods, techniques, sequences and procedures of construction. DEVELOPER
shall be responsible to see that the finished Work complies accurately with the Contract
Documents, and approved final construction documents. CITY shall have the authority
to reject Work that does not comply with the Contract Documents.
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6.5
Resident Superintendent
DEVELOPER shall keep on the Work at all times during its progress a competent
resident superintendent and any necessary assistants who shall not be replaced without
written notice to CITY unless the superintendent proves to be unsatisfactory to
DEVELOPER and ceases to be in his employ.
6.6 Labor:
6.6.1 Construction services shall be performed by qualified construction
contractor licensed to do business in the State of Florida and suppliers, selected
and paid by the DEVELOPER.
6.6.2 DEVELOPER shall provide and pay for competent, suitably qualified
personnel to perform the Work as required by the Contract Documents.
DEVELOPER shall not permit employment of unfit persons or persons not skilled
in tasks assigned to them. DEVELOPER shall at all times maintain good
discipline and order at the Site. Except in connection with the safety or protection
of persons or the Work or property at the Site or adjacent thereto, and except as
otherwise indicated in the Contract Documents, all Work at the Facility which is
exterior to the Facility, i.e., roofing, HVAC installations, any and all external
structure renovations, shall be performed during the hours of 7:00 am. and 6:00
p.m., unless otherwise approved by CITY.
6.7
Materials:
6.7.1 Unless otherwise specified herein, DEVELOPER shall furnish, pay for and
assume full responsibility for all materials, equipment, transportation, machinery,
tools, appliances, water, heat, utilities and all other facilities and services
necessary for the furnishing, performance, testing, start-up and proper
completion of the Work.
6.7.2 DEVELOPER warrants that all materials and equipment shall be of good
quality and new, unless otherwise provided in the Contract Documents and that
the construction will be free from defects whether patent or latent in nature. All
materials and equipment shall be applied, installed, connected, erected, used,
cleaned and conditioned in accordance with the instructions of the applicable
Supplier except as otherwise provided in the Contract Documents.
6.8
Concerning Sub-contractors, Suppliers and Others:
6.8.1 Prior to the commencement of any specific Work hereunder, and prior to
award of any subcontracts, DEVELOPER shall furnish, in writing to CITY, the
names of persons or entities (including those who are to furnish materials or
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equipment fabricated to a special design) proposed for each principal portion of
the Work. CITY shall advise DEVELOPER, in writing, of any proposed person or
entity to which CITY has a reasonable objection. Failure of CITY to reply
promptly shall constitute notice of no reasonable objection. DEVELOPER shall
not contract with a proposed person or entity to whom CITY has made a
reasonable and timely objection. If CITY has reasonable objection to a person or
entity proposed by DEVELOPER, DEVELOPER shall propose another to whom
CITY has no reasonable objection. DEVELOPER shall not change a sub-
contractor, person or entity previously selected if CITY makes reasonable
objection to such change.
6.8.2 DEVELOPER shall be fully responsible to CITY for all acts and omissions
of the DEVELOPER'S employees, Sub-contractors, Suppliers and other persons
directly or indirectly employed by his Sub-contractors, suppliers and of persons
for whose acts any of them may be liable and any other persons and
organizations performing or furnishing of the Work under a direct or indirect
Contract with DEVELOPER. Nothing in the Contract Documents shall create any
Contractual relationship between CITY and any such Sub-contractor, supplier or
other person or organization, nor shall it create any obligation on the part of CITY
to payor to see to the payment of any moneys due any such Sub-contractor,
supplier or other person or organization except as may otherwise be required by
laws and regulations.
6.8.3 All Work performed for DEVELOPER by a Sub-contractor will be pursuant
to an appropriate agreement between DEVELOPER and the Subcontractor
which specifically binds the Sub-contractor to the applicable terms and conditions
of the Contract Documents for the benefit of CITY.
6.8.4 Developer shall provide the CITY with access to the site and work at
reasonable times for the installation of all furniture and equipment needed to
operate the charter school middle school addition. It is understood that the CITY
will be responsible for ensuring that any and all damage caused by such
installation shall be corrected, without affecting the contract time.
6.9
Patent Fees and Royalties:
DEVELOPER shall pay all license fees and royalties and assume all costs
incident to the use in the performance of the Work or the incorporation in the Work of
any invention, design, process, product or device which is the subject of patent rights or
copyrights held by others.
6.10 Permits:
DEVELOPER shall obtain all necessary approvals and pay for all permits and
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licenses. DEVELOPER shall pay all governmental charges and inspection fees
necessary with the exception that municipal permit and inspection fees related to this
Agreement shall be waived, to the extent allowed.
6.11 Laws and Regulations:
DEVELOPER, including all of DEVELOPER"S services and the Work, shall
comply with and give all notices required by laws, ordinances, rules, regulations and
lawful orders of public authorities applicable to the performance of the Work. CITY shall
not be responsible for monitoring DEVELOPER'S compliance with any laws and
regulations. DEVELOPER shall promptly notify CITY if the Contract Documents are
observed by DEVELOPER to be at variance therewith. In the event of such variance,
DEVELOPER, at its cost and expense shall revise the Contract Documents to comply
with such laws, and correct those portions of the Work, if any, constructed pursuant to
the non-compliant Construction Documents.
6.12 Risk of Loss; Title:
The risk of loss, injury or destruction shall be on DEVELOPER until acceptance
of the Work by CITY. Title to the Work shall pass to CITY upon acceptance of the Work
by CITY.
6.13 Taxes:
DEVELOPER shall pay all sales, consumer, use and all other taxes required to
be paid in connection with the Work in accordance with the laws and regulations of the
State of Florida and its political subdivisions. DEVELOPER is responsible for reviewing
the pertinent state statutes involving such taxes and complying with all requirements.
6.14 Elementary School Operations:
DEVELOPER acknowledges the existing operations of the Charter School
adjacent to the Site, that serves 600 elementary school students, ages 5 to 11
(Elementary School). DEVELOPER shall provide for the safety and protection of the
Elementary School students, staff, and other persons from and during the performance
of the Work and shall ensure that the Work does not unreasonably interfere with the
regular operations of the Elementary School. The regular operations of the Elementary
School shall include, but not be limited to, the regular school day, scheduled before and
after school activities, and parent/bus drop-off and pick-up times. All Work to be
performed on the Elementary School site (e.g., connecting walkways), shall be
performed outside the regular operations of the Elementary School, unless otherwise
. approved by the CITY.
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6.15 Use of Premises:
6.15.1 DEVELOPER shall confine equipment, the storage of materials and
equipment and the operations of workers to the Site and areas identified in and
permitted by the CITY and Contract Documents and shall not unreasonably
encumber the Site with equipment or other materials. DEVELOPER shall
assume full responsibility for any damage to any such land or area, or to the
owner or occupant thereof or of any land or areas contiguous thereto, resulting
from the performance of the Work. Should any claim be made against CITY by
any such owner or occupant because of the performance of the Work,
DEVELOPER shall promptly attempt to settle with such other party by agreement
or otherwise resolve the claim. The general indemnification provided elsewhere
in this Agreemen! specifically applies to the foregoing claims arising out of
DEVELOPER's use of the Site.
6.15.2 During the progress of the Work, DEVELOPER shall keep the Site free
from accumulations of waste materials, rubbish and other debris resulting from
the Work. At the completion of the Work> DEVELOPER shall remove all waste
materials, rubbish and debris from and about the Site, as well as all tools,
appliances, equipment and machinery, and surplus materials, and shall leave the
Site clean and ready for occupancy by CITY. DEVELOPER shall restore to
original condition all property not designated for alteration by the Contract
Documents.
6.15.3 DEVELOPER shall not load nor permit any part of any structure to be
loaded in any manner that will endanger the structure, nor shall DEVELOPER
subject any part of the Work or adjacent property to stresses or pressures that
will endanger it.
6.16 Access to Work:
DEVELOPER shall provide CITY, CITY's consultants, representatives and
personnel, personnel, independent testing laboratories and governmental agencies with
jurisdictional interests with access to the Site and Work at reasonable times for their
observation, inspection and testing. DEVELOPER shall provide them proper and safe
conditions for such access and advise them of DEVELOPER's site safety procedures
and programs so that they may comply therewith.
6.17 Safety and Protection:
6.17.1 DEVELOPER shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the Work to
prevent damage, injury or loss to all employees on the Site and other persons
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and organizations who may be affected thereby; all the Work and materials and
equipment to be incorporated therein, whether in storage on or off the Site; and
other property at the Site or adjacent thereto.
6.17.2 DEVELOPER shall comply with all applicable laws and regulations of
any public body having jurisdiction for the safety of persons or property or to
protect them from damage, injury or loss.
6.18 Indemnification:
6.18.1 GENERAL INDEMNIFICATION: The parties agree that one percent
(1 %) of the total compensation paid to DEVELOPER for the Work of the
Agreement shall constitute specific consideration to DEVELOPER for the
indemnification to be provided under the Agreement To the fullest extent
permitted by laws and regulations, DEVELOPER shall indemnify, defend, save
and hold harmless the CITY, its officers, agents and employees, from or on
account of all claims, damages, losses, liabilities and expenses, direct, indirect or
consequential including but not limited to fees and charges of engineers,
architects, attorneys, consultants and other professionals and court and
arbitration costs arising out of or alleged to have arisen out of or in consequence
of the performance of the Work of this Agreement. Such indemnification shall
specifically include but not be limited to claims, damages, losses, liabilities and
expenses arising out of or from (a) the negligent or defective design of the
project and Work of this Agreement; (b) any act, omission or default of
DEVELOPER and/or his sub-contractors, agents, servants or employees; (c) any
and all bodily injuries, sickness, disease or death; (d) injury to or destruction of
tangible property, including the loss of use resulting therefrom; (e) other such
damages, liabilities, or losses received or sustained by any person or persons
during or on account of any operations connected with the construction of this
project including the warranty period; (f ) the use of any improper materials; (g)
any construction defect including both patent and latent defects; (h) failure to
timely complete the Work in the time specified in this Agreement; (i) the violation
of any federal, state, county or city laws, by-laws, ordinances or regulations by
DEVELOPER, his sub-contractors, agents, servants, independent contractors or
employees; U) the breach or alleged breach by DEVELOPER of any term of the
Agreement, including the breach or alleged breach of any warranty or guarantee.
The CITY shall be responsible for its own gross negligence or willful misconduct
of its agents, servants, or employees.
6.18.2 PATENT AND COPYRIGHT INDEMNIFICATION: DEVELOPER agrees
to indemnify, defend, save and hold harmless the CITY, its officers, agents and
employees, from all damages, liabilities, losses, claims, fines and fees, and from
any and all suits and actions of every name and description that may be brought
against CITY, its officers, agents and employees, on account of any claims, fees,
14
royalties, or costs for any invention or patent and/or for the infringement of any
and all copyrights or patent rights claimed by any person, firm, or corporation
arising from this Agreement.
6.18.3 DEVELOPER shall pay all claims, losses, liens, settlements or
judgments of any nature whatsoever in connection with the foregoing
indemnifications including, but not limited to, reasonable attorney s fees and
costs at both the trial and appellate levels.
6.18.4 DEVELOPER reserves the right to select its own legal counsel, subject
to mutual agreement of the parties, to conduct any defense in any such
proceeding and all costs and fees associated therewith including any costs or
fees of an appeal shall be the responsibility of DEVELOPER under the
indemnification agreement. Nothing contained herein is intended nor shall it be
construed to waive CITY's rights and immunities under the common law or
Florida Statute 768.28 as amended from time to time. This obligation shall not be
construed to negate, abridge, or otherwise reduce any other right or obligation of
indemnity which would otherwise exist as to any party described in this
Paragraph and its subparts.
6.19 Survival of Obligations:
All representations, indemnifications, warranties and guarantees made in,
required by, or given in accordance with this Agreement, as well as all continuing
obligations indicated in the Contract Documents, shall survive final payment, completion
and acceptance of the Work and termination or completion of the Agreement.
6.20 Correction or Removal of Defective Work:
If required by CITY, DEVELOPER shall promptly, as directed, either correct all
defective Work, whether or not fabricated, installed or completed, or, if the Work has
been rejected by CITY, remove it from the site and replace it with non-defective Work.
DEVELOPER shall bear all direct, indirect and consequential costs of such correction or
removal (including but not limited to fees and charges of engineers, architects, attorneys
and other professionals) made necessary thereby.
ARTICLE 7 -CITY'S RESPONSIBILITIES
7.1 CITY shall furnish data required of CITY under the Contract Documents promptly.
7.2 CITY acknowledges that all plan reviews, inspections and required approvals of the
CITY shall be expedited.
7.3 If the Work, or any portion thereof, is defective, or DEVELOPER fails to supply
15
sufficient skilled workers or suitable materials or equipment, or fails to furnish or perform
the Work in such a way that the completed Work will conform to the Contract
Documents, CITY may order DEVELOPER to stop the Work, or any portion thereof,
until the cause for such order has been eliminated; however, this right of CITY to stop
the Work shall not give rise to any duty on the part of CITY to exercise this right for the
benefit of DEVELOPER or any other party.
ARTICLE 8 .CITY MANAGER'S RESPONSIBILITIES
8.1 The Manager will be CITY'S representative during the development and
construction period and until final payment is due to DEVELOPER
8.2
Visits to Site:
The Manager will make visits to the Site at intervals appropriate to the various
stages of construction to observe the progress and quality of the executed Work and to
determine, in general, if the Work is proceeding in accordance with the Contract
Documents. The Manager's efforts will be directed toward providing for CITY a greater
degree of confidence that the completed Work will conform to the Contract Documents.
On the basis of such visits and on-site inspections, the Manager shall keep CITY
informed of the progress of the Work.
8.3
Rejecting Defective Work:
The Manager will have the authority to disapprove or reject Work which Manager
believes to be defective, and will also have authority to require special inspections or
testing of the Work whether or not the Work is fabricated, installed or completed without
causing unreasonable delay.
ARTICLE 9 -BONDS AND INSURANCE
9.1
Payment and Performance Bonds:
9.1.1 Within fifteen (15) calendar days after Notice to Proceed and in any
event prior to commencing Work, the DEVELOPER shall furnish to CITY a
performance bond and a payment bond, each written by a corporate surety,
having a resident agent in the State of Florida and having been in business with
a record of successful continuous operation for at least five (5) years. The surety
shall hold a current certificate of authority from the Secretary of Treasury of the
United States as an acceptable surety on federal bonds in accordance with
United States Department of Treasury Circular No. 570. If the amount of the
Bond exceeds the underwriting limitation set forth in the circular, in order to
qualify, the net retention of the surety .company shall not exceed the underwriting
limitation in the circular and the excess risks must be protected by coinsurance,
16
reinsurance, or other methods, in accordance with Treasury Circular 297, revised
September 1, 1978 (31 DFR, Section 223.10, Section 223.11). Further, the
surety company shall provide CITY with evidence satisfactory to CITY, that such
excess risk has been protected in an acceptable manner. The surety company
shall have at least the following minimum qualification in accordance with the
latest edition of AM. Best's Insurance Guide; published by Alfred M. Best
Company, Inc., Ambest Road, Oldwick, New Jersey 08858: B+ to A+.
9.1.2 Two (2) separate bonds are required and both must be approved by the
CITY. The penal sum stated in each bond shall be the amount equal to the total
amount payable under the terms of the Agreement. The performance bond shall
be conditioned that the DEVELOPER or sub-contractor perform the Agreement
in the time and manner prescribed in the Agreement. The payment bond shall be
conditioned that the DEVELOPER or sub-contractor promptly make payments to
all persons who supply the DEVELOPER or sub-contractor with labor, materials
and supplies used directly or indirectly by the DEVELOPER or sub-contractor in
the prosecution of the Work provided for in the Agreement and shall provide that
the surety shall pay the same in the amount not exceeding the sum provided in
such bonds, together with interest at the maximum rate allowed by law; and that
they shall indemnify and save harmless the CITY to the extent of any and all
payments in connection with the carrying out of said Agreement which the CITY
may be required to make under the law.
9.1.3 Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, it
shall be the duty of the DEVELOPER to record the aforesaid payment and
performance bonds in the public records of Miami-Dade County, with the
DEVELOPER to pay all recording costs.
9.2
Bonds, Reduction After Final Payment:
Such bonds shall continue in effect for one (1) year after final payment becomes
due except as otherwise provided by law or regulation or by the Contract Documents
with the final sum of said bonds reduced after final payment to an amount equal to
twenty five percent (25%) of the Contract Sum, or an additional bond shall be
conditioned that DEVELOPER shall correct any defective or faulty Work or material
which appears within one (1) year after final completion of the Agreement, upon
notification by the CITY.
9.3
Duty to Substitute Surety:
If the surety on any Bond furnished by DEVELOPER is declared bankrupt or
becomes insolvent or its right to do business is terminated in the State of Florida or it
ceases to meet the requirements of other applicable laws or regulations, DEVELOPER
shall within seven (7) days thereafter substitute another bond and surety, both of which
17
must be acceptable to CITY.
9.4
Insurance:
9.4.1 At the time of execution of the Agreement the DEVELOPER shall submit
certificate(s) of insurance evidencing the required coverages and specifically
providing that the City of Aventura is an additional named insured or additional
insured with respect to the required coverage and the operations of the
DEVELOPER under the Agreement. The certificates of insurance shall not only
name the types of policies provided, but shall also specifically refer to this
Agreement and shall state that such insurance is as required by Article 9 and its
subparts of this Agreement. DEVELOPER shall not commence Work under this
Agreement until after DEVELOPER has obtained all of the minimum insurance
herein described and the policies of such insurance detailing the provisions of
coverage have been received and approved by CITY. DEVELOPER shall not
permit any Subcontractor to begin work until after similar minimum insurance to
cover Subcontractor has been obtained and approved. In the event the insurance
certificate provided indicates that the insurance shall terminate and lapse during
the term of this Agreement, then in that event, DEVELOPER shall furnish, at
least thirty (30) calendar days prior to expiration of the date of such insurance, a
renewed certificate of insurance as proof that equal and like coverage and
extension thereunder is in effect. DEVELOPER shall not continue to perform the
services required by this Agreement unless all required insurance remains in full
force and effect.
9.4.2 Insurance Companies selected must be licensed to do business in the
State of Florida and acceptable the CITY. All of the policies of insurance so
required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded shall not be canceled, materially
changed or renewal refused until at least thirty (30) calendar days written notice
has been given to CITY by certified mail.
9.4.3 The DEVELOPER shall procure and maintain at its own expense and
keep in effect during the full term of the Agreement a policy or policies of
insurance which must include the following coverage and minimum limits of
liability:
(a)
Professional Liabilitv (Errors and Omissions) Insurance for architectural
and engineering services and the services of any other professional used
in the performance of the Work of this Agreement in the amount of
$1,000,000.00. The certificate of insurance for professional liability shall
reference any applicable deductible and the Work of this Agreement.
(b)
Worker's Compensation Insurance for statutory obligations imposed by
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(c)
(d)
Worker's Compensation or Occupational Disease Laws, including, where
applicable, the United States Longshoremen's and Harbor Worker's Act,
the Federal Employer's Liability Act and the Homes Act. Employer's
Liability Insurance shall be provided with a minimum of One Hundred
Thousand and xx/100 dollars ($100,000.00) per accident. DEVELOPER
agrees to be responsible for the employment, conduct and control of its
employees and for any injury sustained by such employees in the course
of their employment.
Comprehensive Automobile Liabilitv Insurance for all owned, non-owned
and hired automobiles and other vehicles used by the DEVELOPER in
the performance of the Work with the following minimum limits of liability:
$1,000,000.00
Combined Single Limit, Bodily Injury and
Property Damage Liability, per occurrence
Comprehensive General Liabilitv Insurance (occurrence form) with the
following minimum limits of liability:
$1,000,000.00
Combined Single Limit, Bodily Injury and
Property Damage Liability, per occurrence
Coverage must be offered in a form no more restrictive than the latest
edition of the Comprehensive General Liability Policy without restrictive
endorsements, as filed by the Insurance Services Office and shall
specifically include the following with minimum limits not less than those
required for Bodily Injury Liability and Property Damage
Liability:
1.
2.
3.
4.
5.
Premises and Operations;
Independent Developers;
Product and Completed Operations Liability;
Broad Form Property Damage;
Broad Form Contractual Coverage applicable to the Agreement
and specifically confirming the indemnification and hold harmless
agreement in the Agreement; and
Personal Injury coverage with employment contractual exclusions
removed and deleted.
6.
(e)
Builder's Risk Insurance in an amount not less than THE
REPLACEMENT COST for the construction of the Work. Coverage shall
be "All Risk" coverage for one hundred percent (100%) of the completed
value with a deductible of not more than five thousand and 00/100 dollars
($5,000.00) per claim.
19
9.4.4 DEVELOPER shall maintain the Products/Completed Operations Liability
Insurance for a period of at least two (2) years after final payment for the Work
and furnish CITY with evidence of continuation of such insurance at final
payment and one (1) year thereafter.
9.4.5 The required insurance coverage shall be issued by an insurance
company authorized and licensed to do business in the State of Florida, with the
following minimum rating of B + to A +, in accordance with the latest edition of
AM. Best's Insurance Guide.
9.4.6 All required insurance policies shall preclude any underwriter's rights of
recovery or subrogation against CITY with the express intention of the parties
being that the required insurance coverage protect both parties as the primary
coverage for any and all losses covered by the above described insurance.
9.4.7 The DEVELOPER shall ensure that any company issuing insurance to
cover the requirements contained in this Agreement agrees that they shall have
no recourse against CITY for payment or assessments in any form on any policy
of insurance.
9.4.8 The clauses "Other Insurance Provisions" and "Insurers Duties in the
Event of an Occurrence, Claim or Suit" as it appears in any policy of insurance in
which CITY is named as an additional named insured shall not apply to CITY.
CITY shall provide written notice of occurrence within fifteen (15) working days of
CITY's actual notice of such an event.
9.4.9 The DEVELOPER shall not commence performance of its obligations
under this Agreement until after it has obtained all of the minimum insurance
herein described and the same has been approved.
9.4.10 All required insurance policies shall preclude any underwriter's rights of
recovery or subrogation against CITY with the express intention of the parties
being that the required insurance coverages protect both parties as the primary
coverages for any and all losses covered by the above described insurance.
9.4.11 The DEVELOPER agrees to perform the Work under the Agreement as
an independent DEVELOPER, and not as a sub-contractor, agent or employee
of CITY.
9.4.12 DEVELOPER shall require each of its Sub-contractors of any tier to
maintain the insurance required herein for each category, and DEVELOPER
shall provide verification thereof to CITY upon request of CITY.
20
9.4.13 Violation of the terms of this paragraph and its subparts shall constitute
a material breach of the Agreement and CITY, at its sole discretion, may cancel
the Agreement and all rights, title and interest of the DEVELOPER shall
thereupon cease and terminate.
9.5
CITY'S Liability and Insurance:
CITY shall not be responsible for purchasing and maintaining any insurance to
protect the interests of DEVELOPER, Sub-contractors or others on the Work. CITY
specifically reserves all statutory and common law rights and immunities and nothing
herein is intended to limit or waive same including, but not limited to, the procedural,
monetary limitation and substantive provisions of Section 768.28, Florida Statutes and
Section 95.11, Florida Statutes.
ARTICLE 10 - WARRANTIES; TESTS AND INSPECTIONS: CORRECTION OF
DEFECTIVE WORK
10.1 Warranty of Title:
The DEVELOPER warrants to the CITY that it possesses good, clear and
marketable title to all equipment and materials provided hereunder and there are no
pending liens, claims or encumbrances whatsoever against said equipment and
materials.
10.2 Warranty of Specifications:
The DEVELOPER warrants that all equipment, materials and workmanship
furnished, whether furnished by the DEVELOPER or its Sub-contractors and suppliers,
will comply with the Contract Documents including, without limitations, the
specifications, drawings and other descriptions supplied or adopted and that all services
will be performed in a workmanlike manner.
10.3 Warranty of Merchantability:
DEVELOPER warrants that any and all equipment to be supplied pursuant to the
Agreement is merchantable, free from defects, whether patent or latent in material or
workmanship and fit for the ordinary purposes for which it is intended.
10.4 Correction Period:
DEVELOPER warrants, through the Performance Bond, all material and
construction workmanship for a minimum of one (1) year from date of acceptance by the
CITY. If within one (1) year after the date of final completion or such longer period of
time as may be prescribed by laws or regulations or by the terms of any applicable
21
special guarantee required by the Contract Documents, any Work is found to be
defective, whether observed before or after acceptance by CITY, DEVELOPER shall
promptly, without cost to CITY and in accordance with CITY's written instructions, either
correct such defective Work, or, if it has been rejected by CITY, remove it from the Site
and replace it with Work that is not defective and satisfactorily correct and remove and
replace any damage to other Work or the Work of others resulting therefrom. If
DEVELOPER does not promptly comply with the terms of such instructions, or in an
emergency where delay would cause serious risk of loss or damage, CITY may have
the defective workmanship corrected or the rejected Work removed and replaced, and
all direct, indirect and consequential costs of such removal and replacement (including
but not limited to fees and charges of engineers, architects, attorneys and other
professionals) will be paid by DEVELOPER upon demand.
10.4.1 Where defective Work (and damage to other Work resulting therefrom)
has been corrected, removed or replaced under this paragraph, the correction
period hereunder with respect to such Work will be extended for an additional
period of one (1) year after such correction or removal and replacement has
been satisfactorily completed.
10.4.2 Nothing contained in this Article shall be construed to establish a period
of limitation with respect to other obligations which DEVELOPER might have
under the Contract Documents. Establishment of the time period of one (1) year
as described in Paragraph 10.4.1 relates only to the specific obligation of the
DEVELOPER to correct the Work, and has no relationship to the time within
which the obligation to comply with the Contract Documents may be sought to be
enforced, nor to the time within which proceedings may be commenced to
establish DEVELOPER's liability with respect to the DEVELOPER's obligation
other than specifically to correct the Work.
10.5 DEVELOPER warrants to the CITY that it, at DEVELOPER'S sole cost and
expense, will comply with all applicable federal, state and local laws, regulations and
orders in carrying out its obligations under this Agreement. DEVELOPER warrants to
the CITY that it has obtained all necessary professional licenses necessary to perform
its services under this Agreement
10.6 DEVELOPER warrants to the CITY that it is not insolvent, it is not in bankruptcy
proceedings or receivership, nor is it engaged in or threatened with any litigation,
arbitration or other legal or administrative proceedings or investigations of any kind
which would have an adverse effect on its ability to perform its obligations under the
Agreement.
10.7 DEVELOPER warrants to the CITY that the consummation of the Work provided
for in the Contract Documents will not result in the breach of any term or provision of, or
constitute a default under any indenture, mortgage, contract, or agreement to which the
22
DEVELOPER is a party.
10.8 DEVELOPER warrants that there has been no violation or copyrights of patent
rights either in the United States of America or in foreign countries in connection with
the Work of the Agreement.
10.9 No warranty, either express or implied, may be modified, excluded or disclaimed
in any way by DEVELOPER. All warranties shall remain in full force and effect,
notwithstanding acceptance and payment by CITY.
10.10 Tests and Inspections:
10.10.1 DEVELOPER shall give CITY timely notice of readiness of the Work
for all required inspections, tests or approvals. DEVELOPER shall assume full
responsibility, pay all costs in connection therewith and furnish CITY the required
certificates of inspection, testing or approval for all materials, equipment or the
Work or any part thereof unless otherwise specified herein.
10.10.2 Inspectors shall have no authority to permit deviations from or to relax
any of the provisions of the Contract Documents, or to delay the Agreement by
failure to inspect the materials and Work with reasonable promptness.
10.10.3 The payment of any compensation whatever may be its character or
form, or the giving of any gratuity or the granting of any favor by the
DEVELOPER to any inspectors, directly or indirectly is strictly prohibited and any
such action on the part of the DEVELOPER will constitute a breach of this
Agreement.
ARTICLE 11- CHANGE OF CONTRACT TIME
11.1 Change of Contract Time:
11.1.1 All time limits stated in the Contract Documents are of the essence of the
agreement. No claim for damages or any claim shall be made or asserted
against the CITY by reason of any delays. An extension of time shall be the
DEVELOPER'S sole remedy for any delay claims.
11.1.2 Developer acknowledges and agrees that the middle school addition
must open in time for the 2005 school year. Should the Facility not receive a
temporary certificate of occupancy on or before July 1, 2005, which will provide
for the use of the entire Facility for its intended purpose as a middle school wing,
the DEVELOPER acknowledges and agrees that it shall pay to the CITY
liquidated damages in the amount of $5,000 per day for every day after July 1,
2004 that the Facility has not received a temporary certificate of occupancy.
Such liquidated damages may be offset against any amounts due and owed by
23
the CITY to DEVELOPER.
ARTICLE 12 - COST OF WORK
12.1 The term "Cost of the Work" means the sum of all direct costs necessarily
incurred and paid by DEVELOPER in the proper perførmance of the Work. Except as
otherwise may be agreed to in writing by CITY, such costs shall be in amounts no
higher than those prevailing in the locality of the project, shall include the items outlined
in the Schedule of Values, attached hereto and incorporated herein as Exhibit A.
12.2 Developer's Fee
DEVELOPER'S fee allowed to DEVELOPER for overhead and profit shall be
Three hundred and ten thousand dollars ($310,000) as outlined in the Schedule of
Values, attached hereto as Exhibit A.
12.3 Incentive for Cost Savings
As an incentive to reduce total project costs, the following guidelines shall govern
any reductions in the overall cost of the project:
12.3.1 Subject to additions and deductions which have been mutually agreed
to by the CITY and DEVELOPER, the overall guaranteed maximum price shall
be adjusted accordingly.
12.3.2 If DEVELOPER accounts for and provides an overall savings from the
overall guaranteed maximum price and this savings is determined to be actual
costs which are less than the total allowable Cost of Work, the savings shall be
divided among the DEVELOPER and CITY with the CITY receiving sixty five
percent (65 %) of the savings and the DEVELOPER receiving thirty five percent
(35 %) of the savings.
12.4 Cost Breakdown Required:
Whenever the cost of any Work is to be determined pursuant to Paragraph 12.1,
DEVELOPER will submit in form acceptable to CITY an itemized cost breakdown
together with supporting data. Whenever a change in the Work is to be based upon
mutual acceptance of a lump sum, whether the amount is an addition, credit, or no-
change-in-cost, the DEVELOPER shall submit an estimate substantiated by a complete
itemized breakdown. The breakdown shall list quantities and unit prices for materials,
labor, equipment and other items of cost.
24
ARTICLE 13 -PAYMENTS TO DEVELOPER AND COMPLETION OF WORK
13.1
Progress Payments:
13.1.1 DEVELOPER may requisition payments for Work completed and a
monthly draw of the Developer's Fee prorated based upon the percentage of
Work completed during the preceding month during the project at intervals of not
more than once a month. The DEVELOPER's requisition shall show a complete
breakdown of the project components, the quantities completed and the amount
due, together with a certification by the DEVELOPER that the DEVELOPER has
disbursed to all Sub-contractors and suppliers their pro-rata shares of the
payment out of previous progress payments received by the DEVELOPER for all
Work completed and materials furnished in the previous period and partial
waivers of lien executed by DEVELOPER and properly executed releases of
liens by all Sub-contractors, suppliers and materialmen who were included in the
DEVELOPER'S previous applications for payment, and any other supporting
documentation as may be required by the Contract Documents. Each requisition
shall be submitted in triplicate to the Manager for approval. The CITY shall make
payment to the DEVELOPER within thirty (30) calendar days after approval by
the Manager of the DEVELOPER'S requisition for payment.
13.1.2 Ten percent (10 %) of all monies earned by the DEVELOPER including
the monthly draw of DEVELOPER'S Fee shall be retained by the CITY until the
Work is totally completed as specified, and accepted by the CITY except that
after fifty percent (50 %) of the Work has been completed, the CITY may, but in
no way be obligated to, reduce the retainage to five percent (5%) of all monies
earned.
13.2
Final Inspection:
Upon written notice from DEVELOPER that the entire Work or an agreed portion
thereof is complete as evidenced by the issuance of a permanent certificate of
occupancy or use, as applicable, CITY will make a final inspection and will notify
DEVELOPER in writing of all particulars in which this inspection reveals that the Work
is incomplete or defective. DEVELOPER shall immediately take such measures as are
necessary to remedy such deficiencies.
13.3
Final Application for Payment:
After DEVELOPER has completed all such corrections to the satisfaction of
Manager and delivered all maintenance and operating instructions, schedules,
guarantees, bonds, certificates of inspection, marked up record documents and other
documents required by the Contract Documents, and after Manager has indicated that
the Work is acceptable, DEVELOPER may make application for final payment. The final
25
application for payment shall be accompanied by (1) complete and legally effective
releases or waivers of all liens arising out of or filed in connection with the Work; or (2)
DEVELOPER'S receipts in full covering all labor, materials and equipment for which a
lien could be filed; or (3) a final affidavit stating that all laborers, materialmen, suppliers
and Sub-contractors who worked for DEVELOPER under this Agreement have been
paid in full or if the fact be otherwise, identifying the name of each lien or who has not
been paid in full and the amount due or to become due each for labor, services or
materials furnished. If any Subcontractor or supplier fails to furnish a release or receipt
in full, DEVELOPER may furnish a bond satisfactory to CITY to indemnify CITY against
any lien.
In addition, DEVELOPER shall also submit with the final application for payment,
the completed set of "As-Built" drawings for review and approval. The "As-Built"
drawings shall be prepared, sealed and certified by a design professional licensed by
the State of Florida. Final payment to DEVELOPER shall not be made until said
drawings have been reviewed and approved by CITY. Prior to approval, if necessary,
the drawings may be returned to DEVELOPER for changes or modifications if in the
opinion of CITY they do not represent correct or accurate "As-built" drawings.
13.4 Final Payment and Acceptance:
13.4.1 If, on the basis of Manager's observation of the Work during construction
and final inspection, and CITY'S review of the final Application for Payment and
accompanying documentation, CITY is satisfied that the Work has been
completed and DEVELOPER's other obligations under the Contract Documents
have been fulfilled, CITY will, within ten (10) days after receipt of the final
Application for Payment and accompanying documentation, in appropriate form
and substance, present the Application to CITY for payment. Thereupon, the
Manager will give written notice to DEVELOPER that the Work is acceptable.
Otherwise, CITY will return the Application to DEVELOPER, indicating in writing
the reasons for refusing to recommend final payment, in which case
DEVELOPER shall make the necessary corrections and resubmit the Application
and accompanying documentation, in appropriate form and substance. Thirty
(30) days after the Manager has given written notice to DEVELOPER that the
Work is acceptable, the amount recommended will become due and will be paid
by CITY to DEVELOPER.
13.4.2 If, through no fault of DEVELOPER, final completion of the Work is
significantly delayed and if Manager so confirms, CITY shall, upon receipt of
DEVELOPER'S final Application for Payment and without terminating the
Agreement, make payment of the balance due for that portion of the Work fully
completed and accepted. If the remaining balance to be held by CITY for Work
not fully completed or corrected is less than the retainage stipulated in the
Agreement, and if bonds have been furnished as required, the written consent of
the surety to the payment of the balance due for that portion of the Work fully
26
completed and accepted shall be submitted by DEVELOPER to CITY with the
Application for such payment. Such payment shall be made under the terms and
conditions governing final payment, except that it shall not constitute a waiver of
claims.
13.5 Final payment, constituting the entire unpaid ba1ance of the Contract Sum, shall
be paid by the CITY to the DEVELOPER when the Work has been completed pursuant
to the terms of this Agreement, the Agreement fully performed, and a final certificate for
payment has been issued by the CITY's Chief Building Official. The making of final
payment shall constitute a waiver of claims by CITY except those arising from:
(1 )
(2)
(3)
(4)
(5)
(6)
Liens, claims, security interests or encumbrances arising out of this
Agreement and unsettled.
Faulty or defective Work and latent and patent defects discovered after
acceptance.
Failure of the Work to comply with the requirements of the Contract
Documents.
Terms of special warranties required by the Contract Documents
Any of DEVELOPER'S continuing obligations under, or which survive this
Agreement.
Any warranties and guarantees provided under Florida law.
The acceptance of final payment by DEVELOPER or the sub-contractor for
materials and supplies shall constitute a waiver of claims by that payee except those
previously made in writing and identified by payee as unsettled at the time of final
application for payment.
13.6
CITY'S Right to Withhold Payment:
The CITY may withhold in whole or in part, final payment or any progress
payment to such extent as may be necessary to protect itself from loss for reasons
including, but not limited to, the following:
13.6.1
Defective Work not remedied.
13.6.2 Claims filed or reasonable evidence indicating the probable filing of
claims by other parties against the DEVELOPER.
13.6.3 Failure of the DEVELOPER to make payment to Sub-contractors or
suppliers for materials or labor.
27
13.6.4
Damage to another Party not remedied.
13.6.5 Reasonable evidence that the Work cannot be completed for the unpaid
balance of the Contract Sum.
13.6.6 Failure to carry out the Work in accordance with the Contract
Documents.
When the above reasons are removed or resolved or the DEVELOPER provides a
surety bond or a consent of surety satisfactory to the CITY which will protect the CITY in
the amount withheld, payment may be made in whole or in part.
ARTICLE 14. TERMINATION OF THE AGREEMENT
14.1
CITY'S Right to Terminate:
The CITY has the right to terminate this Agreement upon the occurrence of any
one or more of events which include, but are not limited to, the following:
14.1.1 If DEVELOPER commences a voluntary case under any chapter of the
Bankruptcy Code as now or hereafter in effect, or if DEVELOPER takes any
equivalent or similar action by filing a petition or otherwise under any other
federal or state law in effect at such time relating to the bankruptcy or insolvency.
14.1.2 If a petition is filed against DEVELOPER under any chapter of the
Bankruptcy Code as now or hereafter in effect at the time of filing, or if a petition
is filed seeking any such equivalent or similar relief against DEVELOPER under
any other federal or state law in effect at the time relating to bankruptcy or
insolvency.
14.1.3 If DEVELOPER makes a general assignment for the benefit of creditors.
14.1.4 If DEVELOPER admits in writing an inability to pay its debts generally as
they become due.
14.1.5 If DEVELOPER persistently fails to perform the Work in accordance with
the Contract Documents (including but not limited to, failure to supply sufficient
skilled workers or suitable materials or equipment or failure to adhere to the
progress schedule as same may be revised from time to time).
14.1.6 If DEVELOPER fails to comply with laws or regulations of any public body
having jurisdiction.
14.1.7 If DEVELOPER otherwise fails to comply with any provisions of the
28
Contract Documents.
CITY may, after giving DEVELOPER and the surety seven (7) days written notice,
terminate the services of DEVELOPER, exclude DEVELOPER from the Site and take
possession of the Work and of all DEVELOPER's tools, appliances, construction
equipment and machinery at the Site and use the same to full extent they could be used
by DEVELOPER (without liability to DEVELOPER for trespass or conversion),
incorporate in the Work all materials and equipment stored at the Site or for which CITY
has paid DEVELOPER but which are stored elsewhere, and finish the Work as CITY
may deem expedient. In such case DEVELOPER shall not be entitled to receive any
further payment until the Work is finished. Prior to submitting written notice to surety,
City shall provide DEVELOPER with the opportunity to cure within fifteen (15) calendar
days of written notice. If DEVELOPER fails to cure and CITY terminates this Agreement
pursuant to this Section 14.1, DEVELOPER shall be liable for and immediately pay
CITY upon demand, all cost and expenses, including compensatory and consequential
damages associated with such termination and the completion of the Work.
14.2 Amendment to Charter School Contract:
DEVELOPER acknowledges that the CITY's ability to establish the middle school
component is contingent upon approval of the School Board. The CITY shall use its
best efforts to negotiate with the School Board for a First Amendment to the Charter
School Contract providing for the middle school. Should the CITY not be able to
negotiate and have executed a First Amendment acceptable to the CITY, the CITY shall
have the right to terminate this Agreement. Upon receipt of the notice of termination,
DEVELOPER shall promptly discontinue all Work at the time and to the extent indicated
on the notice of termination, terminate all outstanding Sub-contractors and purchase
orders to the extent that they relate to the terminated portion of the Agreement, and
refrain from placing further orders and subcontracts. DEVELOPER shall not be paid on
account of loss of anticipated profits or revenue or other economic loss arising out of or
resulting from such termination. DEVELOPER shall be compensated only for Work
which it has performed pursuant to this Agreement and for costs incurred by reason of
such termination.
14.3
Termination for Convenience of CITY:
Upon seven (7) days written notice to DEVELOPER, CITY may, without cause
and without prejudice to any other right or remedy, terminate this agreement for CITY'S
convenience whenever CITY determines that such termination is in the best interests of
CITY. Where the agreement is terminated for the convenience of CITY, the notice of
termination to DEVELOPER must state that the Agreement is being terminated for the
convenience CITY under the termination clause, the effective date of the termination
and the extent of termination. Upon receipt of the notice of termination for convenience,
DEVELOPER shall promptly discontinue all Work at the time and to the extent indicated
29
on the notice of termination, terminate all outstanding Sub-contractors and purchase
orders to the extent that they relate to the terminated portion of the Agreement, and
refrain from placing further orders and subcontracts. DEVELOPER shall not be paid on
account of loss of anticipated profits or revenue or other economic loss arising out of or
resulting from such termination. DEVELOPER shall be compensated only for Work
which it has performed pursuant to this Agreement and, for costs incurred by reason of
such termination.
14.4 Termination by DEVELOPER:
If CITY fails to recommend payment for a period of thirty (30) calendar days
through no fault of DEVELOPER or if CITY fails to make payment thereon for a period
of thirty (30) calendar days, DEVELOPER may, upon seven (7) additional days written
notice to CITY, terminate the Agreement and recover from the Agreement payment for
Work executed and for proven loss with respect to materials, equipment, tools and
construction equipment and machinery.
ARTICLE 15 - NOTICE. COMPUTATION OF TIME
15.1 Giving Notice:
All notices required by any of the Contract Documents shall be in writing and
shall be deemed delivered upon mailing by certified mail, return receipt requested to the
following:
As to DEVELOPER:
Joaquin C. Avino, PE. PLS
CHARTER SCHOOLHOUSE DEVELOPERS, INC.
1500 San Remo Avenue
Suite 420
Coral Gables, Florida 33146
As to CITY:
Eric M. Soroka
City Manager
City of Aventura
19200 West Country Club Drive
Aventura, Florida 33180
15.2 Computation of Time:
When any period of time is referred to in the Contract Documents by days, it will
be computed to exclude the first and include the last day of such period. If the last day
of any such period falls on a Saturday or Sunday or on a day made a legal holiday by
30
the law of the applicable jurisdiction, such day will be omitted from the computation. A
calendar day of twenty four (24) hours measured from midnight to the next midnight
shall constitute a day.
ARTICLE 16 - MISCELLANEOUS
16.1 The duties and obligations imposed by this Agreement and Contract Documents
and the rights and remedies available hereunder to the parties hereto, and, in particular
but without limitation, the warranties, guaranties and obligations imposed upon
DEVELOPER and all of the rights and remedies available to CITY thereunder, are in
addition to, and are not to be construed in any way as a limitation of, any rights and
remedies available to any or all of them which are otherwise imposed or available to any
or all of them which are otherwise imposed or available by laws or regulations, by
special warranty or guarantee or by other provisions of the Contract Documents, and
the provisions of this Paragraph will be as effective as if repeated specifically in the
Contract Documents, and the provisions of this Paragraph will survive final payment and
termination or completion of the Agreement.
16.2 DEVELOPER and its employees, volunteers and agents shall be and remain
independent developers and not agents or employees of CITY with respect to all of the
acts and services performed by and under the terms of this Agreement. This Agreement
shall not in any way be construed to create a partnership, association or any other kind
of joint undertaking or venture between the parties hereto.
16.3 CITY reserves the right to audit the records of DEVELOPER relating in anyway
to the Work to be performed pursuant to this Agreement at any time during the
performance and term of the Agreement and for a period of three (3) years after
completion and acceptance by CITY. If required by CITY, DEVELOPER agrees to
submit to an audit by an independent certified public accountant selected by CITY.
DEVELOPER shall allow CITY to inspect, examine and review the records of
DEVELOPER at any and all times during normal business hours during the term of the
Agreement.
16.4 The remedies expressly provided in this Agreement to CITY shall not be
deemed to be exclusive but shall be cumulative and in addition to all other remedies in
favor of CITY now or hereafter existing at law or in equity.
16.5 The validity, construction and effect of this Agreement shall be governed by the
laws of the State of Florida. Any claim, objection or dispute arising out of this Agreement
shall be litigated in the Eighteen Judicial Circuit in and for Miami-Dade County, Florida.
16.6 Should any part, term or provision of this Agreement be by the courts decided to
be invalid, illegal or in conflict with any law of the State, the validity of the remaining
portion or provision shall not be affected thereby.
31
ARTICLE 17 - ASSIGNMENT
17.1 DEVELOPER shall not assign or transfer this Agreement or its rights, title or
interests therein without the prior written consent of C:;I)Y, which consent shall not be
unreasonably withheld. The obligations undertaken by DEVELOPER pursuant to this
Agreement shall not be delegated or assigned to any other person or firm unless CITY
shall first consent in writing to the assignment, which consent may be withheld in CITY's
sole discretion. Violation of the terms of this Paragraph shall constitute a material
breach of this Agreement by DEVELOPER and the CITY may, at its discretion, cancel
this Agreement and all rights, title and interest of DEVELOPER shall thereupon cease
and terminate.
ARTICLE 18- SPECIFIC PERFORMANCE
Each of the parties acknowledges that the parties will be irreparably damaged
(and damages at law would be an inadequate remedy) if this Agreement is not
specifically enforced. Therefore, in the event of a breach or threatened breach by any
party of any provision of this Agreement, the other party shall be entitled, in addition to
all other rights or remedies, to an injunction restraining such breach, without being
required to show any actual damage or to post any bond or other security, and/or to a
decree for specific performance of the provisions of this Agreement.
ARTICLE 19- HAZARDOUS SUBSTANCES
19.1 The DEVELOPER agrees that it shall not transport to, use, generate,
dispose of, or install at the Site any Hazardous Substance, (as defined in Section 19.4),
except in accordance with applicable Environmental Laws. Further, in performing the
Work, the DEVELOPER shall not cause any release of hazardous substances into, or
contamination of, the environment, including the soil, the atmosphere, any water course
or ground water, except in accordance with applicable Environmental Laws. In the
event the DEVELOPER engages in any of the activities prohibited in this Section 19.1,
to the fullest extent permitted by law, the DEVELOPER hereby indemnifies and holds
harmless the CITY from and against any and all claims, damages, losses, causes of
action, suits and liabilities of every kind, including but not limited to expenses of
litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to
or resulting from the activities prohibited in this Section 19.1.
19.2 In the event the DEVELOPER encounters on the Site any Hazardous
Substance, or what the DEVELOPER reasonably believes to be a Hazardous
Substance, and which is being introduced to the Work, or exists on the Site, in a
manner violative of any applicable Environmental Laws, the DEVELOPER shall
immediately stop work in the area affected and report the condition to the Manager in
writing. The Work in the affected area shall not thereafter be resumed except by written
32
authorization of the Manager if in fact a Hazardous Substance has been encountered
and has not been rendered harmless. In the event the DEVELOPER fails to stop the
Work upon encountering a Hazardous Substance at the Site, to the fullest extent
permitted by law, the DEVELOPER hereby indemnifies and holds harmless the CITY
from and against all claims, damages, losses, causes of action, suits and liabilities of
every kind, including, but not limited to, expenses of, litigation, court costs, punitive
damages and attorneys' fees, arising out of, incidental to, or resulting from the
DEVELOPER's failure to stop the Work.
19.3 An extension of time shall be the DEVELOPER's sole remedy for any delay
arising out of the encountering and/or rendering harmless of any Hazardous Substance
at the Site. CITY and the DEVELOPER may enter into an agreement for the
DEVELOPER to remediate and/or render harmless the Hazardous Substance, but the
DEVELOPER shall not be required to remediate and/or render harmless the Hazardous
Substance absent such agreement. DEVELOPER shall not be required to resume
Work in any area affected by the Hazardous Substance until such time as the
Hazardous Substance has been remediated and/or rendered harmless.
19.4 For purposes of this Agreement, the term "Hazardous Substance" shall mean
and include, but shall not be limited to, any element, constituent, chemical, substance,
compound, or mixture, which are defined in or included under or regulated by any local,
state, or federal law, rule, ordinance, by-law, or regulation pertaining to environmental
regulation, contamination, clean-up or disclosure, including, without limitation, The
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), The Resource Conservation and Recovery Act ("RCRA"), The Toxic
Substances Control Act ("TSCA") , The Clean Water Act ("CWA"), The Clean Air Act
("CAA"), and The Marine Protection Research and Sanctuaries Act ("MPRSA"), The
Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), Chapters 161, 253, 373, 376 and 403, Florida
Statutes, the rules and regulations of the Florida Department of Environmental
Protection or other state superlien or environmental clean-up or disclosure statutes
including all state and local counterparts of such laws (all such laws, rules and
regulations being referred to collectively as "Environmental Laws"). It is the
DEVELOPER's responsibility to comply with this Article 21 based on the law in effect at
the time its services are rendered and to comply with any amendments to those laws for
all services rendered after the effective date of any such amendments.
33
IN WITNESS WHEREOF, CITY and DEVELOPER have signed this Agreement
in triplicate. One counterpart each has been delivered to CITY and
DEVELOPER.
ATTEST:
,-
CITY OF AVENTURA, FLORIDA
Teresa M Soroka, CMC
City Clerk
Eric M Soroka, City Manager
APPROVED AS TO FORM:
City Attorney
CHARTER SCHOOLHOUSE DEVELOPERS,
INC.
By:
Joaquin C. Avino, PE, PLS
Title PRESIDENT
WITNESSES:
Print Name
Print Name
ATTEST:
SECRETARY
34
Exhibit "A"
Scheduled of Values
Architectural and Engineering
Subtotal -
Construction Costs
General Conditions
Site Work
Concrete/Masonry
Metals
Woods and Plastics
Thermal Moisture
Doors and Windows
Finishes
Equipment
Specialties
Furnishings
Conveying system
Subtotal -Construction Costs
Total GMP
Development Costs - Charter
Schoolhouse Developers
Mechanical
Electrical
35
400,,000
340,000
960,000
98,000
75,000
180,000
145,000
330,000
125,000
85,000
26,000
45,000
338,000
383,000
$
$
190,000
190,000
3,600,000
$3,790,000
310,000