HomeMy WebLinkAboutWharton-Smith, Inc. Master Services Agreement: Construction Manager at Risk (CMAR) Services for Wastewater Treatment Plant Projects - 2025 06 23IFIVAL EXECI:T,IBLE VERSII)Y,
MASTER SERVICES AGREEMENT
Construction Manager at Risk (CMAR) Services for
Wastewater Treatment Plant Projects
THIS AGREEMENT is made and entered into as of the Effective Date (as defined below)
by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation ("City"),
located at 1126 E. State Road 434, Winter Springs, Florida 32708, and WHARTON-SMITH,
INC., a Florida corporation ("Construction Manager"), whose principal address is 750 Monroe
Road, Sanford, Florida 32771.
WITNESSETH:
WHEREAS, the City desires to obtain construction manager at -risk (CMAR) services to
include pre -construction and construction phase services for the construction of two new sewer
treatment plants and related appurtenances; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes specifically
for the projects that are identified in RFQ # 08-24-04 PH Wastewater Treatment Facilities and set
forth herein; and
WHEREAS, Construction Manager participated in the selection and negotiation process
under RFQ # 08-24-04 PH Wastewater Treatment Facilities and desires to provide CMAR services
to construct the wastewater treatment plants subject to assignment of the work by the City under
the terms and conditions stated herein; and
WHEREAS, Construction Manager is willing to provide such CMAR services to the City
under the terms and conditions stated herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 DEr1NIT1ONS. The following words and phrases used in this Agreement shall have the
following meaning ascribed to them unless the context clearly indicates otherwise:
1.1 "Agreement" or "Contract" shall refer to this Master Services Agreement, as may
be amended from time to time, which shall constitute authorization for Construction Manager to
provide CMAR services approved on an individual basis by the City.
1.2 "Assigned Project" means a Project, as defined by Section 1.22, for which the City
assigns Services to the Construction Manager pursuant to the pre -construction and construction
phase process described in this Agreement. The East and West Wastewater Treatment Plant
Projects will be separate Assigned Projects hereunder.
1.3 "Buyout Savings" refers to the cost savings that occur when the Construction
Manager is able to secure subcontractor bids or procurement packages for less than the estimated
or budgeted amount which was originally included in the GMP.
1A "Change Order" shall mean a written order signed by the City and the CMAR
authorizing an addition, deletion, or revision in the Work or adjustment in the contract price or
time for an Assigned Project.
1.5 "Construction Manager" shall mean Wharton -Smith, Inc., a Florida
corporation, and its principals, employees, and resident project representatives (and assistants).
1.6 "Contract Documents" represents the entire and integrated agreement between
the Parties hereto and supersedes prior negotiations, representations, or agreements, either written
or oral. It consists of this Agreement, as modified by the Parties in writing, and the exhibits and
attachments made a part of this Agreement upon its execution, as subsequently modified by the
following documents to be agreed to and executed by the Parties: General Conditions and
Supplemental Conditions; GMP Amendment; Technical Specifications; Performance/Payment
Bond; Drawings; Change Orders; and the punch list prepared by the Parties following Substantial
Completion.
1.7 "Contractor's Fee" is the Construction Manager's profit for the construction
phase work for each Assigned Project, expressed as a percentage of the cost of the construction
Work or a fixed dollar amount based on the cost of the Construction phase work for an Assigned
Project, in each case agreed upon by the City and the Construction Manager at the the GMP
Amendment is approved. Without limiting the foregoing statement, and for purposes of clarity,
there shall not be a Contractor's Fee applied to: (i) Construction Manager's premiums for
Performance and Payment Bonds, Builder's Risk Insurance or Construction Manager's
subcontractor default insurance; (ii) Contractor's Contingency; (iii) any allowances; and (iv) any
other items or Work identified in this Agreement as having no Contractor Fee. Fee for
Contingency or Allowances will be incorporated at the time of contingency or allowance usage.
1.8 "Construction Phase" or "Construction Work" means the Work of the
Construction Manager undertaken during the construction phase of the Assigned Project pursuant
to the applicable Drawings and Specifications approved by the City under this Agreement and
other applicable terms and provisions of this Agreement and the other Contract Documents.
1.9 "Defective Work" is any portion of the Work that does not conform to the Contract
Documents.
1.10 "Design Engineer" means the engineering team retained by the City to create the
design and specifications for the Project. The Design Engineer is the Engineer of Record for the
Project.
1.11 "Differing Site Conditions" means conditions at the Assigned Project site that are:
(a) subsurface or other physical conditions materially different from those indicated in the Contract
Documents, or (b) unusual or unknown physical conditions materially different from conditions
ordinarily encountered and generally recognized as inherent in the Work provided for in the
Contract Documents.
1.12 "Drawings" means the documents prepared by the Design Engineer or other
consultants of City showing the design, location, and dimensions of the Work, generally including
plans, elevations, sections, details, schedules, and diagrams.
1.13 "Effective Date" shall be the date on which the last signatory hereto shall execute
this Agreement, and it shall be the date on which this Agreement shall go into effect. The
Agreement shall not go into effect until said date.
1.14 "Final Completion" occurs on the date when the Construction Manager's
obligations under this Agreement are complete and accepted by the City and final payment
becomes due and payable in accordance with this Agreement. This date shall be confirmed by a
Certificate of Final Completion signed by the City and the Construction Manager.
1.15 "General Conditions" are the standardized rules and procedures that govern the
overall administration of the Work under this Agreement that may be agreed to by the City and
Construction Manager and attached to and incorporated into this Agreement.
1.16 "GMP Amendment" is a document that outlines the scope of the Work, the
technical documents, assumptions, clarifications, technical exclusions, the project schedule, and
the GMP Proposal for the Project. The executed GMP Amendment shall automatically become
part of the Contract Documents and shall establish the GMP, key supervisory personnel for the
Project, the contract duration for the Project, liquidated damages dollar amount per calendar day,
and all required bond and insurance documents.
1.17 "GMP Proposal" is a price proposal that includes the Construction Manager's
General Conditions Fee, cost of the Construction Work, payment and performance bond costs,
building permit allowance, insurance costs, project construction contingency, construction
schedule, and Contractor's Fee. The GMP Proposal shall be based on the drawings and
specifications and the Contract Documents.
1.18 "Guaranteed Maximum Price" or "GMP" is the construction price agreed to
between the Construction Manager and the City (as set forth in the GMP Amendment) and is the
maximum total Project price that the Construction Manager guarantees not to exceed for the
Construction Phase of the Assigned Project. It shall not include the services rendered during the
Pre -Construction Phase.
1.19 "General Conditions Fee" is the overhead for services for the Construction Phase,
exclusive of physical construction, expressed as a percentage of the cost of the Construction Work.
1.20 "Open -Book Process" is the process used for establishing costs and subsequent
GMP. The process requires the cost to be developed in a completely transparent manner, with no
hidden costs or inflated amounts. Transparency means full, confidential disclosure of all the
details and can include third party verification, if required. Construction estimates should be based
on the actual cost of the Work. This can mean actual labor, expenses, materials, equipment, and
production rates for the self -performed scope, combined with stand-alone subcontractor quotes
obtained via best -value, competitive bidding approach.
1.21 "Pre -Construction Phase" means the preconstruction services performed by
Construction Manager in connection with the Project and described in Section 5.2(a) of this
Agreement.
1.22 "Project(s)" means only those projects that were identified in RFQ #08-24-04 PH
Wastewater Treatment Facilities, as listed in Paragraph 3.1 of this Agreement.
1.23 "Project Manager" is the person designated by the City to provide direct interface
with the Construction Manager with respect to the City's responsibilities, as identified on the
specifications for each Assigned Project.
1.24 "Project Site" is the location of the Project, as identified on the specifications for
each Assigned Project.
1.25 "Project Team" is comprised of the Construction Manager, the City, and the
Design Engineer.
1.26 "Public Record" shall have the meaning given in Section 119.011(12)1 Florida
Statutes, as may be amended.
1.27 "Specifications" or "Technical Specifications" means the documents prepared
by City, Design Engineer, or other consultant of City consisting of written requirements for
materials, equipment, construction systems, standards, and workmanship for the Work and
performance of related services.
1.25 "Subcontractor" includes only those having a direct contract with the
Construction Manager and includes one who furnished material worked to a special design
according to the plans or specifications of this Work, but does not include one who merely
furnishes material not so worked.
1.29 "Substantial Completion" or "Substantially Complete" or a designated portion,
occurs on the date when the Work is sufficiently complete in accordance with the Contract
Documents so that the City may occupy or utilize the Work, or a designated portion, for the
beneficial use for which it is intended. This date shall be confirmed by a certificate of Substantial
Completion signed by the Design Engineer and Construction Manager with City's consent. The
issuance of a certificate of occupancy is not a prerequisite for Substantial Completion if the
certificate of occupancy cannot be obtained due to factors beyond the Construction Manager's
control. In addition to and without limiting the generality of the foregoing, Substantial Completion
of the Work or a portion of the Work shall not be deemed to have occurred unless and until the
Assigned Project or a portion thereof is available for beneficial use and satisfies any other
requirements set forth in the Contract Documents.
1.30 "Supplemental Conditions" are modifications, additions to the General
Conditions.
1.31 "Value Engineering" is a project evaluation technique used during the Pre -
Construction Phase that seeks to reduce costs and/or increase value by analyzing the functional
requirements of a Project's materials, methods, components, and subsystems consistent with
specified performance, reliability, maintainability, aesthetic, safety, and security criteria to ensure
that it provides the best use of available Project funds.
1.32 "Work" or "Services" shall be used interchangeably and shall include the
performance of the Preconstructionand Construction Phased work agreed to by the parties for each
Assigned Project, consistent with the projects described in Paragraph 3.1 of this Agreement. Work
includes labor or materials or both, equipment, transportation, or other facilities necessary to
complete the contract.
2A TERM OF AGREEMENT
2.1 The term of this Agreement shall commence on the Effective Date and shall
continue until the completion of the Assigned Projects described in Section 3.1 below, unless
earlier terminated pursuant to the terms of this Agreement. Unless otherwise specified in a notice
of termination, any Assigned Project in effect at the termination of this Agreement shall remain in
effect until Final Completion of said Assigned Project, and all of the terms and conditions of this
Agreement shall survive until Final Completion of all Assigned Projects,
3.0 GENERAL DESCRIPTION OF SERVICES
3.1 Projects. The Projects for which Construction Manager may be assigned by the
City to provide services under this Agreement are limited to the following:
Wastewater Projects
Construction management at -risk services for preconstruction and construction management
services for the design and construction of two new wastewater treatment facilities to replace
existing wastewater treatment facilities.
The East WWTF is an existing 2.012 MGD annual average daily flow (AADF) permitted capacity
contact stabilization domestic wastewater treatment plant consisting of flow equalization, influent
screening, contact and re -aeration, secondary clarification, filtration, chlorination, aerobic
digestion and dewatering of residuals. Effluent is disposed of through public access reuse.
The West WWTF is an existing 2.07 MGD annual average daily flow (AADF) permitted capacity
dual -train contact stabilization domestic wastewater treatment plant consisting of influent
screening, aeration, secondary clarification, filtration, chlorination, and aerobic digestion and
dewatering of biosolids. Effluent is disposed through public access reuse.
This project will replace the existing treatment facilities and upgrade their treatment quality to
meet current disposal requirements, while planning for future expansions. The projects will need
to be constructed while the existing facilities are on-line, 24/7, operating under normal conditions
and meeting permit requirements for treatment, storage, and disposal.
Ancillary vertical facilities or buildings may also be constructed, such as additional office space,
a lab, and/or storage facilities.
The Conceptual Design Report (CDR) was completed previously for both the East and West
WWTF. As defined in the CDR, major elements of the Project include:
• Influent lift station
• New headworks
• New secondary treatment System, including:
o Biological nutrient removal basins
o Secondary clarifiers
o Return activated sludge pumping system
• Waste activated sludge pumping system (and tie into existing portable solids handling
system)
• Process aeration blowers and building
• New tertiary filtration system
• New chlorine disinfection system, including:
o Contact chamber
o Sodium hypochlorite storage and feed facilities
• Effluent transfer pumps
• Reclaimed water pump station
• Plant utility water pumping system
• New electrical feed, distribution, and buildings
• New standby generation system
• Operations building (East WWTF only)
• Admin and operations building (West WWTF only)
• Site work, HVAC, plumbing, electrical, SCADA/I&C, and other ancillary
improvements to support the major Project elements.
• The project will also require the demolition of some of the existing facilities, utilities,
and on -site infrastructures.
To the greatest extent possible, the East and West WWTF will be designed with cone -plant, two -
site concept. The design approach will be to standardize the facilities noted above to make each
plant as similar as possible to improve consistency with construction, operation, and maintenance.
This Scope is based upon developing one set of Specifications that will be used for the East and
West WWTF and one Computer Aided Design Drafting (CADD) model that will be site adapted
for each WWTF.
3.2 Definition of Services. The Construction Manager agrees to furnish its best skill
and judgment and to cooperate with the Design Engineer, where applicable, in furthering the
interests of the City. The Construction Manager agrees to furnish efficient business administration
and superintendence and to use its best efforts to complete each Assigned Project in an expeditious
and economical manner consistent with the interests of the City. The Construction Manager agrees
Yo furnish constriction services as set forth herein and required for completion of each Assigned
Project on a guaranteed maximum price basis. The Construction Manager represents that it is
thoroughly familiar with and understands the requirements of the referenced Projects and that it is
experienced in the administration and construction of building projects of the types and scopes
referenced above. The Construction Manager represents to the City that it has all necessary
construction education, skill, knowledge, and experience required for these Projects and will
maintain, at all times during the term of this Agreement, such personnel on its staff to provide the
Services contemplated hereby within the time periods required for each Assigned Project. In
addition, Construction Manager represents that it has, and all of the Subcontractors performing
Services under this Agreement will have, all applicable licenses required by the State of Florida to
perform such Services. The Construction Manager acknowledges that it is not guaranteed nor
entitled to provide services to the City in connection with any particular Project by virtue of
entering into this Agreement with the City and that the City may, in its sole discretion, decline to
assign any Project to Construction Manager.
3.3 Project Team. The Construction Manager, the City, and the Design Engineer will
work as a team through construction completion of each Assigned Project. The Construction
Manager shall provide leadership to the Project Team on all matters relating to construction. The
Design Engineer will provide leadership to the Project Team on all matters relating to design.
When performing any Services under this Agreement, the Construction Manager shall utilize the
key personnel described in the Preconstruction Phase scope of services in Section 5.2(a) of this
Agreement and the GMP Amendment. In the event any such personnel discontinue employment
with Construction Manager, Construction Manager shall promptly replace such personnel with
individuals approved by the City, in writing, which approval will not be unreasonably withheld.
3.4 Project Schedule/Time of the Essence. For each Assigned Project, the
Construction Manager will provide the City with a preliminary schedule covering the Pre -
Construction and Construction Phases. The Construction Manager will include ten (10) days of
weather -related delays within the Assigned Project schedule if the number of weather -related
delays exceeds ten (10) days, the Construction Manager may be entitled to a commensurate
extension of time and reimbursement of costs associated with the delay as may be agreed upon by
the City and Construction Manager. This preliminary schedule shall serve as the framework for
the subsequent development of all detailed construction schedules described in this Agreement or
the Contract Documents. The Construction Manager shall at all times carry out its duties and
responsibilities as expeditiously as possible and in accordance with the Assigned Project schedule,
subject to delays in the schedule not the fault of the Construction Manager or its Subcontractors.
In the event delays to the Work are encountered for any reason, the Construction Manager shall
provide prompt written notice to the City stating the cause of such delays after the Construction
Manager first recognizes the delay and the demonstrated impact of delay via a time impact
analysis. Excusable delays may be adjusted pursuant to Section 7.15 of this Agreement provided
the Construction Manager has mitigated the effects of such delay (such as by way of example and
not of limitation, through rescheduling, resequencing, or other measures). Time is of the essence
in the performance of this Agreement.
3.5 Preparation/Sufficiency of Site. The Construction Manager shall, among other
things, (i) visit and thoroughly inspect Lite Project Site and any structures) or other man-made
features to be modified and become familiar with local conditions under which the Assigned
Project will be constructed and operated; (ii) if applicable, familiarize itself with the survey,
including the location of all existing buildings, utilities, conditions, streets, equipment,
components; and other attributes having or likely to have an impact on the Assigned Project; (iii)
familiarize itself with the City's layout and design requirements, conceptual design objectives, and
budget for the Assigned Project; (iv) familiarize itself with pertinent Assigned Project dates,
including the Assigned Project schedule; (v) review and analyze all Assigned Project geotechnical,
hazardous substances, structural, chemical, electrical, mechanical, and construction materials tests,
investigations, and recommendations; and (vi) gather any other information necessary for a
thorough understanding of the Assigned Project. If the Assigned Project involves modifications
to any existing structure(s) or other man-made feature(s) on the Project Site, the Construction
Manager shall also review all as -built and record drawings, plans, and specifications of which the
Construction Manager has been informed by the City, and shall thoroughly inspect the existing
structure(s) and man-made feature(s) to identify existing deficiencies and ascertain the specific
locations of pertinent structural components. Claims by the Construction Manager resulting from
its failure to familiarize itself with the Project Site or pertinent documents shall be deemed waived.
3.6 Contract Documents. The Contract Documents are complementary, and what is
called for by any one shall be as binding as if called for by all. The intent of the Contract
Documents is to include all labor, materials, equipment, transportation, and incidentals necessary
for the proper and complete execution of the Work for each Assigned Project. Materials or Work
described in words which so applied have a well-known technical or trade meaning shall be held
to refer to such recognized standards. Any discrepancies or omissions found in the Contract
Documents shall be reported to the City's Project Manager immediately, The City's Project
Manager will clarify discrepancies or omissions, in writing, within a reasonable time.
3.7 Priority of Documents. In the event of discrepancies among the Contract
Documents, priority shall be given in the following order;
First Change Orders (Approved and Executed by Parties)
Second GMP Amendment
Third This Agreement, including all Exhibits and Attachments
Fourth General Conditions and Supplemental Conditions
Fifth Technical Provisions
Sixth Drawings
Seventh Performance and Payment Bonds
Eighth Punch list
Ninth Other Contract Documents
4.0 CITY'S DUTIES nBLIGATIONS & RESPONSTB)(LITIES
4.1 City's Budget, The City shall establish and update a budget for each Assigned
Project, including the amount allocated for construction, the City's other costs, and reasonable
contingencies related to these costs as appropriate.
4.2 City's Representative. The City shall designate a Project Manager as its
representative authorized to act on its behalf with respect to each Assigned Project.
4.3 Reservation of Rights; No Guarantee. The City reserves the right, at its
discretion, to perform any services related to this Agreement or to retain the services of other
construction management companies to provide professional services. The City does not
guarantee that any Work will be assigned to Construction Manager under this Agreement. The
City reserves the right to assign or contract for professional services with any party in its sole
discretion. No provision of this Agreement shall be construed to require the City to assign any
Work or Project to Construction Manager under this Agreement.
4.4 Time for Performance. The City shall review and approve or take other
appropriate action on all design submittals within the timeframes set forth in the Assigned Project
schedule.
4.5 Purpose of City's Review. City's review, inspection, or approval of any Work,
applications for payment, or other submittals shall be solely for the purpose of determining whether
the same are generally consistent with the City's scope and requirements for each Assigned
Project. No review, inspection, or approval by the City of such Work or documents shall relieve
the Construction Manager of its responsibility for the performance of its obligations under the
Contract Documents or the accuracy, adequacy, fitness, suitability, or coordination of the Work.
Approval by any governmental or other regulatory agency or other governing body of any Work,
design document, or construction document shall not relieve Construction Manager of
responsibility for the performance of its obligations under the Contract Documents. Payment by
the City pursuant to the Contract Documents shall not constitute a waiver of any of the City's
rights under the Contract Documents or at law, and Construction Manager expressly accepts the
risk that defects in its performance, if any, may not be discovered until after payment, including
final payment, is made by the City. Notwithstanding the foregoing, prompt written notice shall be
given by the City or Design Engineer to the Construction Manager if the City becomes aware of
any fault or defect in the Assigned Project or non-conformance with the Contract Documents.
4.6 Status of City. The City shall not have control or charge of construction means,
methods, techniques, sequences, or procedures, or for safety precautions and programs in
connection with the Work, nor shall the Construction Manager, for any of the foregoing purposes,
be deemed the agent of the City.
4.7 City's Utilities. The Construction Manager shall be responsible to provide and pay
for consumption of, and connections to, utilities required for temporary service and construction
unless otherwise directed by the City.
5.0 CONSTRUCTION MANAGER'S SERVICES. The Construction Manager's Services
to be provided hereunder shall 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.
5.1 General Project Services. For each Assigned Project, the Construction Manager
agrees to:
a. Identify a representative authorized to act as the project manager on behalf of the
Construction Manager. This person shall be designated at the beginning of the Pre -
Construction Phase and shall be the project manager through completion of the
Construction Phase. The designee will need to be approved by the City and no substitutions
will be allowed without prior written approval by the City.
b. Provide all services required to professionally complete the Work in an expeditious
aIt d economical manner consistent with the Contract Documents and the best interests of
the City.
c. Endeavor to develop, implement, and maintain, in consultation with the City,
Design Engineer, and subcontractors, aspirit of cooperation, collegiality, and open
communication among the parties so that the goals and objectives of each are clearly
understood, potential problems are resolved promptly, and, upon completion, the Assigned
Project is deemed a success by all parties.
d. Perform the Services in accordance with schedule requirements.
e. Participate in, and cooperate with, design phase, construction phase, and post -
occupancy commissioning, validation, and other quality assurance and quality control
processes.
f. Complete all Work by the required date of Substantial Completion. The
Construction Manager shall submit an initial construction schedule within the timeframe
set by the City; a final construction schedule with the GMP Proposal; and revised
construction schedules in accordance with the Contract Documents. The construction shall
complement, and shall not conflict with, the design schedule.
g. Comply with City's policies, project management guides, and all requirements of
the Contract Documents.
h. Expedite and coordinate the ordering and delivery of materials that must be ordered
well in advance of construction. If the City agrees to procure any items prior to the
establishment of the GMP pursuant to Section 5.5 below, the City shall procure the items
on terms and conditions acceptable to the Construction Manager. Upon the establishment
of the GMP, the City shall assign all contracts for these items to the Construction Manager,
and the Construction Manager shall thereafter accept responsibility for them.
5.2 Pre -Construction Phase Services.
a, '�coinc ��f Serysrc,�. The Construction Manager's Pre-Consittiiction Phase Services
for the East Wastewater Treatment Plant, key personnel, and the fee for such services are
described in Exhibit "A" hereto. Upon receipt of written notice to proceed from the City
for the West Plant, the Construction Manager shall prepare and submit to the City a
proposed written scope of pre -construction services and fee for the West Plant in a form
similar to the scope of services and fee for the East Plant, which shall be subject to the
City's review and approval.
b. Commencement VC 0 . Construction Manager shall commence performance
of Pre -Construction Phase Work within ten (10) days after receipt from the City of both
the executed purchase order and the Notice to Proceed. The Pre -Construction Phase shall
be deemed complete once the GMP Proposal has been submitted by the Construction
Manager, approved by the City, and made a part of the Contract Documents. The GMP
Proposal shall be submitted at the ninety percent (90%) design phase, which shall be
dictated by the design schedule. If the City and Construction Manager cannot reach a
written agreement on a GMP Proposal, the City may terminate this Agreement for
convenience on Five (5) business days written notice to the Construction Manager in
accordance with Section 6.2 b. of this Agreement.
c. Project Kick -Off Meeting. Within ten (10) calendar days following receipt of the
Notice to Proceed/original purchase order, a mandatory project kick-off meeting will be
held with the City and Design Engineer to discuss the Pre -Construction Phase Work and
support of the City's Design Engineer in developing the design.
5.3 Guaranteed Maximum Price Proposal.
aI At ninety percent (90%) completion, the Construction Manager shall prepare a
GMP Proposal for the City's review and acceptance. The GMP Proposal shall include the
Construction Manager's General Conditions fee, cost of the Construction Work, payment
and performance bond costs, building permit allowance, insurance costs, project
construction contingency, schedule, and Contractor's Fee. The GMP Proposal shall be
based upon the Drawings and Specifications and the Contract Documents.
b. The Construction Manager shall include with the GMP Proposal a written statement
of its basis, which shall include the following:
(i) A list of the Drawings and Specifications, including all addenda thereto, and
the conditions of the contract;
list of the clarifications and assumptions approved by the City which were
made by the Construction Manager in preparation of the GMP Proposal,
including assumptions, permits, bonds, insurance, and all items required to
complete the Project, to supplement the information provided by the City and
contained in the Drawings and Specifications;
(iii) A statement of the proposed GMP, including a statement of the estimated cost
of the Work organized by trade categories or systems, allowances,
contingency, and the Construction Manager's fee;
(iv) The construction schedule and date of Substantial Completion upon which
the proposed GMP is based; and
(v) Schedule of values;
(vi) List of subcontractors;
(vii) Allowances;
(viii) Cash flow;
(ix) Commitment Letters of sureties;
(x) Specimen of Builder's Risk Insurance; and
(xi) A mutually agreeable date by which the City must accept the GMP.
c. The Construction Manager shall meet with the City to review the GMP Proposal.
In the event that the City discovers any inconsistencies or inaccuracies in the information
presented, it shall promptly notify the Construction Manager, who shall make appropriate
adjustments to the GMP Proposal, its basis, or both,
d. if the City notifies the Construction Manager that the City has accepted the GMP
Proposal in writing by the date specified in the GMP Proposal, the GMP Proposal shall be
deemed effective without further acceptance from the Construction Manager. Following
acceptance of the GMP, the City and the Construction Manager shall execute the GMP
Amendment. The GMP Amendment shall outline the scope of Work, the technical
documents, any assumptions, clarifications, or technical exclusions, the Assigned Project
schedule, liquidated damages dollar amount per day, and the GMP Proposal for the
Assigned Project.
e. The Construction Manager shall not incur any cost to be reimbursed associated with
the Construction Phase of the Work prior to the commencement of the Construction Phase,
unless the City provides prior written authorization for such costs.
f. The City shall authorize the Design Engineer to provide revisions to the Drawings
and Specifications to incorporate any agreed -upon assumptions and clarifications
contained in the GMP Amendment. The City shall promptly furnish those revised
Drawings and Specifications to the Construction Manager as they are revised. The
Construction Manager shall notify the City of any inconsistencies between the GMP
Amendment and the revised Drawings and Specifications.
5.4 Construction Phase Services.
a. Scope of Services. The Construction Manager's Construction Phase Services for
each Assigned Project will be set forth in the "Scope of Services" section of the GMP
Amendment for the Assigned Project.
b. Commencement of Services. Construction Manager shall commence performance
of Construction Phase Work upon the City's acceptance of the Construction Manager's
GMP Proposal and the execution of the GMP Amendment. The commencement and
completion time of the Construction Phase of the Work and the liquidated damages dollar
amount per calendar day shall be included in the GMP Amendment.
c. Construction Phase Cc�nfcrenee. Within twenty (20) days after the effective date
of the GMP Amendment, but before the Constriction Manager starts the Construction
Phase, a mandatory pre -construction conference will be held at the Project Site for review
and acceptance of the schedules, to establish procedures for handling shop drawings and
other submittals and for processing applications for payment, and to establish a working
understanding among the parties as to the Work
5.5 Direct Purchase Program. The City may elect to implement a direct purchase
program whereby it may purchase materials and equipment included in any subcontractor's bid
for a portion of the Work directly from the supplier of such materials or equipment in order to
achieve sales tax savings. Such materials and equipment are referred to as "Direct Purchase
Materials." If City elects to implement a direct purchase program, it shall so notify Construction
Manager in writing, and the terms of this paragraph shall govern, along with City's policies on the
subject in effect at the time Construction Manager commences construction of the Assigned
Project. The minimum value for a direct purchase shall be $100,000, The Construction Manager
shall obtain Builder's Risk insurance on the Direct Purchase Materials naming the City as the
insured or an additional insured, provided City shall reimburse Construction Manager for the cost
of such insurance as provided by this Agreement. Construction Manager shall be responsible for
safeguarding all Direct Purchase Materials on the Project Site on City's behalf.
5.6 Construction Manager's Self -Performance of Work. As part of the
Construction Phase Services, the Construction Manager may be entitled to self -perform work on
a negotiated basis or competitively bid against the market in accordance with applicable law and
City approval, provided the City determines, in its sole discretion, that the Construction Manager's
bid provides the best value, based on cost and relevant experience for the Construction Manager.
In addition, if a selected Subcontractor defaults in the performance of its Work or fails to execute
a subcontract after being selected in accordance with this Agreement, the Construction Manager
may, without advertising, fulfill the contract requirements through selection of an alternate
Subcontractor or self -performance, in each case with the City's prior written approval. City shall
be notified in the event of a Subcontractor default or failure to execute the subcontract. For any
Work that will be performed by the Construction Manager, bids or request for proposal shall be
submitted to and reviewed by the City's Project Manager and Design Engineer or any other neutral
party as determined by the City to avoid a conflict of interest.
6.0 CONTRACT SUM.
6.1 Payments to Construction Manager. The City will pay the Construction
Manager as follows, with the specific amounts and/or percentages to be set forth on each Assigned
Project -specific proposal as agreed to and accepted by the City.
a. Pre -Construction Services Fee. The fixed fee for the Construction Manager's Pre -
Construction Services, which fee includes all direct and indirect costs incurred by the
Construction Manager in the proper performance of the Pre -Construction Services.
b. General Conditions Fee. The General Conditions Fee for the Construction Phase,
exclusive of physical construction, expressed as a percentage of the cost of the
Construction Phase Work for the Project.
c. Contractor's Fee. The Construction Manager's profit for the Construction Phase
Work, expressed as a percentage of the cost of Construction Work for the Assigned Project.
d. Bonds. The Construction Manager's performance and payment bonds as required
by the Contract Documents, expressed as a percentage of the cost of Construction Work
for the Assigned Project.
e. Insurance. The Construction Manager's insurance costs for the Project as required
by the Contract Documents, expressed as a percentage of the cost of Construction Work
for the Assigned Project,
6.2 Guaranteed Maximum Price, The GMP is the construction price agreed to
between the Construction Manager and the City kas set forth in the GMP Amendment) and is the
maximum total price that the Construction Manager guarantees not to exceed for the Construction
Phase of the Assigned Project. The GMP does not include the services rendered during the Pre -
Construction Phase.
a. The GMP Amendment is a document that outlines the scope of the Work, the
technical documents, assumptions, clarifications, technical exclusions, Project schedule,
and GMP Proposal for the Assigned Project. The executed GMP Amendment shall
automatically become a part of the Contract Documents and shall establish the GMP, the
key supervisory personnel for the Assigned Project, the contract duration for the Assigned
Project, liquidated damages dollar amount per day, and all required bond and insurance
documents.
b. If the City and the Construction Manager are unable to agree on a GMP for the
Construction Phase, the City shall terminate this Agreement as to that Assigned Project
and direct the Design Engineer to complete the design and prepare construction Drawings
and Specifications for public bidding of the Construction Phase of the Project. The
Construction Manager shall not be permitted to submit a bid for the public bidding of the
Construction Phase of the Project.
c. The Construction Manager guarantees that the contract sum (exclusive of the Pre -
Construction Services Fee and the City's contingency allowance) shall not exceed the GMP
set forth in the GMP Amendment, as it may be modified from time to time. To the extent
the cost of the Work exceeds the GMP, the Construction Manager shall bear such costs in
excess of the GMP without reimbursement or additional compensation from the City.
d. The GMP is subject to additions and deductions by Change Order as provided in
the Contract Documents, and the dates of Substantial and Final Completion shall be subject
to adjustment as provided in the Contract Documents.
6.3 Construction Manager's Contingency.
a. The Construction Manager's contingency, established in the GMP, may be utilized,
with the City's concurrence, for the following reasons:
(i) errors and omissions in the Construction Manager's bidding and scoping
processes;
(ii) reasonable schedule recovery;
(iii) means, methods, and materials reasonably inferred from the Contract
Documents;
(iv) subcontractor non-performance or default; or
(v) Work not included in the Contract Documents that is necessary to cause the
Assigned Project to conform to applicable building codes but was not
identified as missing during the review of Contract Documents (through no
fault of the Construction Manager), but expressly excluding any legal costs
and expenses, including, without limitation, attorneys' fees and costs,
associated with the Assigned Project.
b. If upon completion of seventy-five percent (75%) of the Work, the remaining
amount of contingency exceeds one-half of the amount of the initial post -buyout
contingency, such excess shall be transferred via Change Order to the City.
6.4 Buyout Savings.
a. If Construction Manager receives bids for portions of the Work that are less than
the amounts budgeted in the GMP proposal approved by City for such portions of the
Work, such buyout savings shall first be utilized to offset shortfalls on other bid packages.
b. If, after offsetting any shortfalls, buyout savings remain, at the time provided in the
Project schedule for the award of subcontracts, all buyout savings shall be returned to the
City via "no cost" Change Order,
c. Use of Buyout Savings/Sales Fax Savings. The net amount of buyout savings and
savings from City's purchase of Direct Purchase Materials may be utilized by the City for
the following or other reasons:
(i) City's requested changes;
(ii) additive bid alternates and deductive credits;
design errors or omissions in the Contract Documents that were not detected
by the Construction Manager through no fault of Construction Manager,
including Work necessary to cause the Assigned Project to conform to
applicable building codes;
{iv) Differing Site Conditions, as permitted by the Contract Documents.
6.5 Changes to the Guaranteed Maximum Price.
a. If the GMP has been established and when a specific bidder (i) is recommended to
the City by the Construction Manager, (ii) is qualified to perform that portion of the Work,
and (iii) has submitted a bid that conforms with the requirements of the Contract
Documents without reservations or exceptions, but the City requires that another bid be
accepted, then the Construction Manager may require that a Change Order be issued to
adjust the construction schedule and the GMP by the difference between the bid of the
person or entity recommended to the City by the Construction Manager and the amount
and time requirement of the person or entity designated by the City.
b. Any changes to the scope ofwork that occur after the approval of the GMP Proposal
will be addressed via the Change Order process.
6.6 Progress Payments. Partial payments calculated from completed Work in place
and acceptable to the City at the unit bid prices or agree "upon schedule of values will be ALL on
or about the fifteenth (151") of each month on pay estimates based on the previous month's
progress. The Construction Manager shall, after the first of each month, submit an invoice for
materials used and Work performed for the previous month. Invoices shall include all supporting
documentation required by the City. Invoices shall be submitted to
A form of pay estimate, stating that the bill is fair and equitable and in exact accord with contract
prices, will be utilized for pay purposes. Once the Construction Phase of the Work commences,
five percent (5%) of the amount due and payable to the Construction Manager will be retained by
the City from each month's partial payment. The retainage will be held and administratively
accounted for by the City. Final payment will be accomplished as prescribed in the Contract
Documents and will be based on complete Work in place. The Construction Manager shall (i)
provide satisfactory evidence that it has acquired title to the materials, that materials have been
paid for, and that the material will be used to perform Work for the Assigned Project, and (ii)
provide written consent from the surety for the final payment. Following fifty percent (50%)
completion of the work the City may, at their discretion further reduce retainage.
6,7 Florida Prompt Payment Act. All payments to be made hereunder shall be due
and payable as provided by the Florida Prompt Payment Act, Section 218.70 et, seq., Florida
Statutes. Additionally, the following shall apply to construction phased services under this
Agreement:
a. No more than 10 calendar days following Substantial Completion, the Construction
Manager shall provide to the City a draft Punchlist detailing the remaining items and
estimated cost of each required to render the Work complete, satisfactory, and acceptable.
b. The City shall review the draft Punchlist and provide any comments to the
Construction Manager, The City and Construction Manager shall cooperate in the
development of the Punchlist regarding both the items to be included and the estimated
cost of each. The City shall approve a final Punchlist within 30 calendar days for Assigned
Projects costing less than or equal to $10 million or 45 calendar days for Assigned Projects
costing over $10 million of Substantial Completion. The City shall deliver a final approved
Punchlist to the Construction Manager no more than five (5) calendar days following final
approval of the Punchlist. If the Construction Manager fails to coordinate with the City to
create a Punchlist and the City has given the Construction Manager written notice of the
failure, then the City may withhold 150 percent of the estimated costs required to complete
the items the City intended to include on the Punchlist, without input from the Construction
Manager, and shall deliver the Punchlist within the time period in this subsection. The
failure to include any corrective work or pending items not yet completed on the Punchlist
does not alter the responsibility of the Contract Manager to complete all the Work
purchased under this Agreement.
c. The Work shall be finally completed, ready for Final Payment within thirty (30)
calendar days after the date of delivery of the final, approved Punchlist.
d. The parties acknowledge that the contract time provided in this subsection includes
consideration of adverse weather conditions common to Central Florida including the
possibility of hurricanes and tropical storms.
e. Substantial completion shall be established separately and independently for the
Work on each Assigned Project. Further, if the Work requires phased construction for an
Assigned Project, then multiple points of Substantial Completion may be established by
the Parties by mutual written agreement in the Supplementary Conditions. If the Work
requires phased construction, a Punchlist shall be created for each phase of construction,
and the timeline established herein for Punchlist compliance shall be followed for each
phase.
7.0 GENCRAL TLRNIS AND CONDITIONS
71 Detail Drawings and Instructions. The City's Project Manager will furnish, with
reasonable promptness, additional instructions by means of drawings or otherwise, necessary for
the proper execution of the Work. All such drawings and instructions will be consistent with the
Contract Documents, true developments thereof, and reasonably inferable therefrom.
7.2 Copies of Drawings Furnished. Unless otherwise provided in the Contract
Documents, the City will furnish to Construction Manager, free of charge, all copies of Drawings
and Specifications reasonably necessary for the execution of the Work.
7.3 Order of Completion. Prior to the start of the Work, Construction Manager shall
submit schedules that show the order in which the Construction Manager proposes to carry on the
Work with dates at which the Construction Manager will start the several parts of the Work and
estimated dates of completion of the several parts. The City's Project Manager may order the
schedule to be supplemented or amended as necessary to afford proper continuity of the Work.
7.4 Drawings and Specifications on the Work. The Construction Manager shall keep
one copy of all Drawings and Specifications of the Work in good condition available to the City
and its representatives.
7.5 Ownership of Drawings. All Drawings, Specifications, and copies thereof
furnished by the City are its property. They are not to be used on other work and, with the
exception of the signed contract set, are to be returned to the City on request, at the completion of
the Work.
7.6 Construction Manager's Understanding. It is understood and agreed that at such
time as Construction Manager is authorized to proceed with an Assigned Project by the City, the
Construction Manager shall carefully examine the Contract Documents and Project Site, satisfy
itself as to the nature and location of the Work, the conformation of the ground, the character,
quality, and quantity of the materials to be encountered, the character of the equipment and
facilities needed preliminary to and during the prosecution of the Work, the general and local
conditions, and all other matters which can in any way affect the Work under the Contract
Documents. No verbal agreement or conversation with any officer, agent, or employee of the City,
either before or after the execution of this Agreement or the assignment of any Project, shall affect
or modify any of the terms or obligations contained in the Contract Documents,
7.7 Materials; Appliances; Employees. Unless otherwise stipulated, the Construction
Manager shall provide and pay for all materials, fuel, labor, water, tools, sanitary facilities, power,
transportation, and other facilities necessary for the execution and completion of the Work. Unless
otherwise specified, all materials shall be new, and both workmanship and materials shall be of
good quality. The Construction Manager shall, if required, furnish satisfactory evidence as to the
kind and quality of materials.
The City of Winter Springs proudly supports and encourages buying USA domestic
materials. Products incorporated into the Work shall be produced or manufactured in the United
States of America as defined by the American Recovery and Reinvestment Act of 2009 (ARRA)
to the extent required by law.
Subject to City approval, the City agrees to pay Construction Manager for materials
delivered to the Assigned Project Site and/or stored, either onsite or offsite, prior to incorporation
into the Work.
The Construction Manager shall at all times enforce strict discipline and good order among
its employees and shall not employ on the Work any unfit person or anyone not skilled in the work
assigned to him.
7.8 Royalties and Patents. The Construction Manager shall pay all royalties and
license fees. The Construction Manager shall defend all suits or claims for infringement of any
patent rights and shall save the City harmless from loss on account thereof except that the City
shall be responsible for all such loss when a particular process or the product of a particular
manufacturer or manufacturers is specified, unless the City has notified the Construction Manager
prior to the signing of this Agreement or included in the Specifications a proviso that there may be
a patented process or product included in the Assigned Project.
7.9 Surveys, Permits, and Regulations. The Construction Manager will furnish all
surveys unless otherwise specified. Permits and licenses necessary for the prosecution of the Work
shall be secured and paid for by the Construction Manager. The Construction Manager shall give
all notices and comply with all laws, ordinances, rules, and regulations bearing on the conduct of
the Work as drawn and specified. If the Construction Manager observes that the Drawings and
Specifications are at variance therewith, it shall promptly notify the City in writing and any
necessary changes shall be adjusted as provided in the contract for changes in the Work. If the
Construction Manager performs any work knowing it to be contrary to such laws, ordinances,
rules, and regulations and without such notice to the City, the Construction Manager shall bear all
costs arising therefrom.
The Construction Manager shall continuously maintain adequate protection foz all of its
Work from damage and shall protect the City's property from injury or loss. The Construction
Manager shall make good any such damage, injury, or loss. The Construction Manager shall
adequately protect adjacent property as provided by law and the Contract Documents and shall
provide and maintain all guard fences, lights, and other facilities for protection required by public
authority or local conditions.
7.10 Inspection of Work. The City and its representatives shall at all times have access
to the Work. The Work will be conducted under the general direction of the City and is subject to
inspection by its appointed inspectors to ensure compliance with the terms of the Contract
Documents. No inspector is authorized to change any provision of the Specifications without
written authorization of the City's Project Manager, nor shall the presence or absence of an
inspector relieve the Construction Manager from any requirements of the Contract Documents.
If the Specifications, the City's instructions, laws, ordinances, or any public authority,
require any work to be specially tested or approved, the Construction Manager shall give the City
timely notice of its readiness for inspection, and of the date fixed for such inspection. Inspections
by the City's Project Manager will be promptly made.
Re-examination of requested work may be ordered by the City. If such work is found in
accordance with the Contract Documents, the City will pay the cost of re-examination and
replacement provided the Construction Manager makes a claim therefor. If such work is found
not in accordance with the Contract Documents, the Construction Manager shall pay such cost,
including compensation for professional services, and an appropriate deductive Change Order
shall be issued.
7.11 Superintendent Supervision. The Construction Manager shall keep on the Project
Site during its progress a competent superintendent satisfactory to the City. The superintendent
shall not be changed except with the written consent of the City, unless the superintendent proves
to be unsatisfactory to the Construction Manager and ceases to be in its employ. The
superintendent shall represent the Construction Manager and all directions given to him shall be
binding. Important directions will be confirmed in writing to the Construction Manager. Other
directions will be so confirmed on written request in each case.
If the Construction Manager, in the course of the Work, finds any discrepancy between the
drawings and the physical conditions of the locality, or any errors or omission in the drawings or
in layout as given by points and instruction, it shall be the Construction Manager's duty to
immediately inform the City, in writing, and the City will promptly verify the same. Any work
done after such discovery, until authorized, will be done at the Construction Manager's risk.
Neither party shall employ or hire any employees of the other party without the other
party's consent.
7.12 Changes in the Work. The City, without invalidating the contract, may order extra
Work or make changes by altering, adding to, or deducting from the Work, the contract sum being
adjusted accordingly. Additional time required for any change in Work must be included with the
requested Change Order if applicable.
In giving instructions, the City's Project Manager wilt have authority to make minor
changes in the Work, not involving extra cost or time, and not inconsistent with the purpose of the
Work, but otherwise, except in an emergency endangering life or property, no extra work or change
will be made unless it goes through the City's written Change Order process and is approved by
the City, and no claim for an addition to the contract sum or time will be valid unless so ordered
in writing.
The value of any such extra Work or change will be determined in one or more of the
following ways:
A. By mutual acceptance of a lump sum.
B. By unit prices named in the contract or subsequently agreed upon.
C. By cost and percentage or by cost and a fixed fee.
If none of the above methods is agreed upon, Al Construction Manager, provided it
receives an order as above, shall proceed with the work. In such case and also under case (C), the
Construction Manager shall keep and present in such form as the City's Project Manager may
direct, a correct account of the net cost of labor and materials, together with vouchers. In any case,
the City's Project Manager will certify to the amount, including reasonable allowances for
overhead and profit, due to the Construction Manager. Pending final determination of value,
payments on account of changes will be made on the City's Project Manager's estimate.
7.13 Claims for Extra Cost. If the Construction Manager claims that any instructions
by drawings or otherwise involve extra cost under the Contract Documents, it shall give the City
written notice thereof within ten (10) days after the receipt of such instructions, and in any event
before proceeding to execute the work, except in emergency endangering life or property, and the
procedure shall then be as provided in Section 7.12 (Changes in the Work). Claims will not be
processed unless filed in writing before any work has commenced.
7.14 Deductions for Uncorrected Work. If the City's Project Manager deems it
inexpedient to correct work injured or done not in accordance with the Contract Documents, an
equitable deduction from the contract price will be made therefor by Change Order.
7.15 Delays and Extensions of Time. If the Construction Manager is delayed at any
time in the progress of the Work by any act, omission, condition, event, or circumstance beyond
the Construction Manager's reasonable control and due to no fault of the Construction Manager
including, but not limited to, an act of neglect of the City or of its employees, or by any other
contractor employed by the City, or by changes ordered in the Work or by strikes, lockouts, fire,
unusual delay in transportation, unusual delay in deliveries caused by tariff -induced cost increases,
unavoidable casualties or any causes beyond the Construction Manager's control, including force
majeure events as defined in Section 18.1, or by delay authorized by the City's Project Manager
pending arbitration, or by any cause which the City's Project Manager may decide to justify the
delay, then the time of completion will be extended for such reasonable time as the City's Project
Manager may decide.
No such extension will be made for delay occurring more than seven (7) days before the
claim is made in writing to the City's Project Manager. In the case of a continuing cause or delay,
only one claim is necessary.
If no schedule or agreement stating the dates upon which drawings shall be furnished is
made, then no claim for delay will be allowed on account of failure to furnish drawings until two
(2) weeks after demand for such drawings and not then unless such claim be reasonable.
In addition to an extension of time, the Construction Manager shall be entitled to
compensation for any direct costs incurred due to such delays, including but not limited to,
Assigned Project general condition costs (e.g., not direct project costs, but costs associated with
executing the Assigned Project such as bonds, insurance, trailers, electric power, the Assigned
Project superintendent), labor, and material costs.
716 Correction of Work before Final Payments. The Construction Alf shall
promptly correct all work condemned by the City's Project Manager as failing to conform to the
Contract Documents, shall promptly replace and re -execute its own Work in accordance with the
Contract Documents and without expense to the City, and shall bear the expense of making good
all Work.
If the Construction Manager does not correct such condemned Work and material within
ten (10) working days' time as fixed by written notice (punch list), the City may correct it at the
expense of the Construction Manager. If the Construction Manager does not pay the expense of
such correction within ten (10) days thereafter, the City may, upon ten (10) days written notice,
deduct all the cost and expenses that should have been borne by the Construction Manager.
7.17 Suspension of Work. The City may at any time suspend the Work or any part
thereof, by giving five (5) days' notice to the Construction Manager in writing. The Work shall
be resumed by the Construction Manager within ten (10) days after the date fixed in a written
notice to resume the Work from the City to the Construction Manager. The City will reimburse
the Construction Manager for direct costs and expenses incurred in connection with the Work
including but not limited to costs associated with demobilization and remobilization, labor,
equipment, storage, Assigned Project general condition costs (e.g., not direct project costs, but
costs associated with executing the Assigned Project such as bonds, insurance, trailers, electric
power, the Assigned Project superintendent) and material escalation under the Contract
Documents as a result of such suspension unless the suspension was ordered by the City's Project
Manager to enforce the terms of the Contract Documents or for any violation of the Contract
Documents.
7.18 City's Right to Reassign Work. If the Construction Manager should neglect to
prosecute the Work properly or fail to perform any provision of the Contract Documents, the City,
after three (3) days written notice to the Construction Manager, may, without prejudice to any
other remedy it may have, make good such deficiencies at the Construction Manager's expense.
7.19 Removal of Equipment, h, the case of annulment of this Agreement as to any
Assigned Project before completion, from any cause whatever, the Construction Manager, if
notified to do so by the City, shall promptly remove any part or all of its equipment and supplies
from the property of the City, failing which the City will have the right to remove such equipment
and supplies at the expense of the Construction Manager, and the City shall have the right to store
such equipment and supplies at the Construction Manager's expense. The City shall incur no
liability to the Construction Manager for loss or damage to the supplies and equipment so removed
and/or stored.
7.20 Use of Completed Portions. The City will have the right to take possession of and
use any substantially completed portion of the Work, notwithstanding the fact that the time for
completing the entire Work or such portions may not have expired, but such taking possession and
use will not be deemed an acceptance of any Work not completed in accordance with the Contract
Documents. If such prior use increases the cost of or delays the Work, the Construction Manager
will be entitled to such extra compensation, or extension of time, or both, as the City's Project
Manager may determine. Upon the City's taking possession of and using any substantially
completed portion of the Work, the City shall assume all responsibilities for warranty,
maintenance, and any other related obligations for that portion of the Work. The Construction
Manager shall not be liable for any warranty or maintenance issues arising after the City has taken
possession and use of the substantially completed portion of the Work, except for latent defects or
issues directly resulting from the Construction Manager's negligence or failure to comply with the
Contract Documents.
7.21 Payments Withheld. The City may withhold or, on account of subsequently
discovered evidence, nullify the whole or a part of any payment request to such an extent as may
be necessary to protect itself from loss on account of:
A. Defective Work not remedied.
B. Claims filed or reasonable evidence indicating probable filing of claims.
C. Failure of the Construction Manager to make payment properly to
Subcontractors or for materials or labor.
D. The City's Project Manager's opinion that the contract cannot be completed
for the balance then unpaid.
E. Failure to maintain adequate progress.
When the above grounds are removed, payment will be made for amounts withheld because
of them.
7.22 Safety and Protection. The Construction Manager shall be responsible for
initiating, maintaining, and supervising all safety precautions and programs in connection with the
Work. The Construction Manager shall take all necessary precautions for the safety of, and shall
provide the necessary protection to prevent damage, injury, or loss to:
A. All employees on the Project Site and other persons who may be affected
thereby.
B. All the Work and all materials or equipment to be incorporated therein,
whether in storage on or off the Project Site.
C. Other property at the Project Site or adjacent thereto.
Construction Manager shall comply with all applicable Federal Occupational Safety and
Health Administration (OSHA) and Florida Department of Transportation safety standards and
shall assure and monitor the compliance of its Subcontractors with those same standards.
Further, Construction Manager shall work in compliance with the OSHA Hazardous
Communication Standard and Florida Department of Environmental Protection guidelines, and
shall supply all information about hazardous chemical being brought onto City property as required
by the City's Safety and Loss Control Program,
7.23 Damages. Any claim for damage arising under the Contract Documents shall be
made in writing to the party liable within ten (10) days after the first observance of such damage
and not later than the time of final payment, except as expressly stipulated otherwise in the case of
faulty work or materials.
7.24 Liens. Anything contained in any of the Contract Documents notwithstanding, all
progress payments and the final payment shall be paid by the City to the Construction Manager in
compliance with the provisions of the Laws of Florida. The City shall withhold five percent (S%)
of the amount of each progress payment. The last payment due under the Contract Documents
shall be paid by the City to the Construction Manager only after the Construction Manager has
furnished the City with an affidavit stating that all persons, firms, or corporations who have
furnished labor or materials, employed directly or indirectly in the Work, have been paid in full,
and in addition, before the Construction Manager shall have the right to receive the final payment
due under the contract, the Construction Manager shall furnish the City with releases of lien
executed by all persons, firms, or corporations who have performed or furnished labor, services,
or materials, directly or indirectly, used in the Work. The City shall have the right to demand and
receive from the Construction Manger before it shall receive any progress payment, receipt bills
showing payment in full for all labor, services, and materials incorporated into the Work, for the
period of time for which the progress payment is due. Likewise, as a condition to receiving any
progress payment, the City may require the Construction Manager to furnish any partial releases
of lien executed by all persons, firms, and corporations who have furnished labor, services, or
materials incorporated into the Work during the period of time for which the progress payment is
due, releasing such lien rights as these persons, firms, or corporations may have for that period.
The Construction Manager does hereby release, remise, and quit claim any and all rights it would
have otherwise enjoyed to perfect a mechanic's lien or any other type of statutory common law or
equitable lien against the Work.
7.25 Subcontracts. The Construction Manager shall, as soon as practicable after
signing the GMP Amendment, notify the City in writing of the names of subcontractors proposed
for the Work and the description of work to be performed by each subcontractor. The Construction
Manager shall not employ subcontractors unless they are approved in writing by the City.
The Construction Manager agrees that it is as fully responsible to the City for the acts and
omissions of its Subcontractors and of persons either directly or indirectly employed by them as it
is for the acts and omissions of persons directly employed by the Construction Manager. IN
contained in the Contract Documents shall create any contractual relation between any
Subcontractor and the City.
7.26 Points and Instructions. The Construction Manager shall provide reasonable and
necessary opportunities and facilities for setting points and making measurements. It shall not
proceed until he has made timely demand upon the City's Project Manager for, and has received
from him such points and instructions as may be necessary as the Work progresses. The Work
shall be done in strict conformity with such points and instructions.
7.27 City's Project Manager's Status. The City's Project Manager will have general
supervision and direction of the Work, and has the authority on behalf of the City to stop the Work
whenever such stoppage may be necessary to ensure the proper execution of the contract. The
City's Project Manager will also have authority to reject all work and materials that do not conform
to the Contract Documents, to direct the application of forces to any portion of the Work, as in his
judgment is required, to order the force increased or diminished, and to decide questions that arise
in the execution of the Work.
7.28 City's Project Manager's Decisions. The City's Project Manager will, within
reasonable time after their presentation to him or her, make decisions in writing on all claims of
the Construction Manager and on all other matters relating to the execution and progress of the
Work or the interpretation of the Contract Documents. All such decisions of the City's Project
Manager shall be final.
7.29 One Year Correction Period. If within one (1) year after the date of Substantial
Completion of an Assigned Project or such longer period of time as may be prescribed by law or
by the terms of any applicable special guarantee required by the Contract Documents or by any
specific provision of the Contract Documents, any Work is found to be defective, the Construction
Manager shall promptly, without cost to the City and in accordance with the City's written
instruction, either correct such defective work, or, if it has been rejected by the City, remove it
from the Project Site and replace it with non -defective work. If the Construction Manager does
not promptly comply with the terms of such instructions, or in an emergency where delay would
cause serious risk of loss or damage, the City may have the defective Work corrected or the rejected
Work removed and replaced, and all direct and indirect costs of such removal and replacement,
including compensation for additional professional services, shall be paid by the Construction
Manager.
8.0 LIQUIDATED DAMAGES FOR DELAY
8.1 Inasmuch as failure to substantially complete the Work according to the Assigned
Project schedule will result in injury to the City, and as damages arising from such failure cannot
be calculated with any degree of certainty, it is agreed that if the Work is not substantially
completed within the time provided by the Assigned Project schedule, or within such further time,
if any, as shall be allowed for time extensions in accordance with the provisions of the Contract
Documents, the Construction Manager shall pay to the City as liquidated damages for such delay,
and not as a penalty, the amount set forth in the GMP Amendment for each calendar day elapsing
between the date fixed for substantial completion and the date such Substantial Completion is
fully accomplished. The Parties agree that said liquidated damages are reasonable given existing
circumstances, including, without limitation, the range of harm that is foreseeable and the
anticipation that proof of damages would be costly and impractical.
8.2 The liquidated damages shall be payable by the Construction Manager to the City
under the Contract Documents, and shall not preclude the recovery of damages by the City under
other provisions of the Contract Documents, except claims related to Construction Manager's
delays in Substantial Completion . The City's right to receive liquidated damages shall in no
manner affect the City's right to terminate the Contract Documents, as provided in this Agreement
or elsewhere in the Contract Documents, The City's exercise of the right to terminate shall not
release the Construction Manager from the obligation to pay said liquidated damages. Liquidated
damages shall be the City's sole and exclusive remedy for delay.
8.3 When the City reasonably believes (i) that Substantial Completion will be
inexcusably delayed; or (ii) that the Construction Manager will fail to achieve Final Completion
by the date of Final Completion, the City shall be entitled, but not required, to withhold from any
amounts otherwise due the Construction Manager the daily amount specified for liquidated
damages for each calendar day of the unexcused delay. If and when the Construction Manager
overcomes the delay by timely achieving Substantial Completion or Final Completion, or any part
thereof, for which the City has withheld payment, the City shall promptly release to the
Construction Manager those funds withheld, but no longer applicable, as liquidated damages.
8.4 Liquidated damages apply to each Assigned Project separately and shall be payable
independently and separately for each Assigned Project based on the completion schedule for the
Assigned Project. Delays in one Assigned Project shall not affect the calculation of liquidated
damages for other projects.
9.0 AUDIT RIGHTS
9.1 The City may, upon reasonable notice, audit the records of the Construction
Manager and its Subcontractors and suppliers during regular business hours, during the term of
this Agreement and for a period of three (3) years after final payment is made by the City to
Construction Manager for an Assigned Project or longer, if required by law. Such audits may be
performed by a representative of the City or an outside representative engaged by City.
9.2 For purposes hereof, Construction Manager's "records" means any and all
information, materials, and data of every kind and character, whether hard copy or in electronic
form, which may, in City's judgment, have any bearing on or pertain to the Contract Documents,
including, without limitation, books, subscriptions, recordings, agreements, purchase orders,
leases, contracts, commitments, arrangements, notes, daily diaries, written policies and
procedures, time sheets, payroll registers, payroll records, cancelled payroll checks, subcontract
files (e.g., including proposals of successful and unsuccessful bidders, bid recap), original
estimates, estimating work sheets, correspondence, Change Order files (including documentation
covering negotiated settlements), back -charge logs and supporting documentation, invoices and
related payment documentation, general ledgers, records detailing cash and trade discounts earned,
insurance rebates and dividends, superintendent reports, drawings, receipts, vouchers, and
memoranda.
9.3 City's authorized representative shall have reasonable access to the Construction
Manager's facilities, shall be allowed to interview all current or former employees to discuss
matters pertinent to the Contract Documents, shall be provided adequate and appropriate work
space at Construction Manager's facilities, may count employees at the Site, may be present for
the distribution of payroll and shall have such other rights of access as may be reasonably necessary
to carry out an audit.
9.4 If an audit discloses overpricing or overcharges of one percent (1%) of the total
amount paid hereunder, but in any event more than $200,000, whichever is less, Construction
Manager shall refund the overpayment and the reasonable actual cost of the City's audit. Any
adjustments and/or payments that must be made as a result of any such audit or inspection of the
Construction Manager's invoices and/or records shall be made within ninety (90) calendar days
from presentation of City's findings to Construction Manager. The parties acknowledge and agree
that any audit conducted pursuant to this Agreement shall be solely for the purposes of verifying
compliance with the terms herein including, but not limited to accuracy of charges. The parties
further agree that the audit process shall not be used as a revenue -generating activity for the
auditing party or its representatives.
9.5 Construction Manager shall ensure notice of City's audit rights is provided to its
Subcontractors, suppliers, and any other vendor providing services or materials for each Assigned
Project and shall ensure that each agreement it enters into pursuant hereto includes the provisions
of this Article 9.0.
10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, Construction Manager
shall be responsible for providing the types of insurance and limits of liability as set forth below.
Insurance limits for General Liability, Automobile Liability and Employer's Liability can be met
through Umbrella and/or Excess Liability policies.
a. Professional Liability. Proof of professional liability insurance shall be provided
to the City for the minimum amount of $1,000,000 per occurrence and in the aggregate.
b. General Liability. The Construction Manager shall maintain comprehensive
general liability insurance in the minimum amount of $530007000 as the combined single
limit for each occurrence, with a deductible no greater than $10,000, unless a higher
deductible is pre -approved by the City Manager, to protect Construction Manager from
claims of property damages and personal injury which may arise from any Services
performed under the Contract Documents, whether such Services are performed by
Construction Manager or by anyone directly employed by or contracting with Construction
Manager.
c. Automobile Liability. The Construction Manager shall maintain comprehensive
automobile liability insurance in the minimum amount of $2,000,000 per occurrence
combined single limit for bodily injury, including wrongful death, and property damage,
which may arise from the ownership, use, or maintenance of owned and non -owned
automobiles, including rented automobiles, whether such operations be by Construction
Manager or by anyone directly or indirectly employed by Construction Manager.
d. Workers' Compensation. The Construction Manager shall maintain, during the life
of this Agreement, adequate Workers' Compensation Insurance and Employers' Liability
Insurance in at least such amounts as are required by law for all of its employees performing
Work for the City pursuant to this Agreement.
e. Environmental Impairment insurance Minimum Requirements. If the Construction
Manager will be locating portable fuel or lubricant storage tanks at the job site or will be
storing or using hazardous chemicals on the job site, it shall maintain Environmental
Impairment Insurance or "Pollution Insurance" with a limit of not less than $1,000,000 per
occurrence and submit proof of same in the form of a certificate of insurance or an
endorsement to its General Liability policy showing a pollution exclusion exception for
each specific work product or storage container before work is begun.
f. Builder's Risk insurance. If City and Construction Manager agree to proceed to
construction on an Assigned Project under a GMP Amendment, then the Construction
Manager shall, before any construction, acquire and maintain throughout the course of
construction, Builder's Risk Insurance in a dollar amount equal to the full insurable value
of the Work under the contract, which shall include "All Risk" coverage. The City shall
be named as a "Loss Payee". The Construction Manager shall be responsible for
equipment, materials, and supplies, to include the City's Direct Purchase equipment, until
Final Completion of the Assigned Project and acceptance by the City.
10.2 Special Regnirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30)
day advance written notification to the City in the event of cancellation or modification of any
stipulated insurance coverage. The City shall be an additional named insured on stipulated
insurance policies included in Sections 10. l.b, 10.1.c, and 10.1.e herein, as its interest may appear,
from time to time.
10.3 Cancellation, Change, or Non -Renewal. The insurance required by this
Agreement shall include the liability and coverage provided herein, or as required by law,
whichever requirements afford greater coverage. All of the policies of insurance so required to be
purchased and maintained shall contain a provision or endorsement that the coverage afforded will
not be canceled, materially changed, or renewal refused until at least thirty (30) days' prior written
notice has been given to the City and Construction Manager by certified mail, return receipt
requested. All such insurance shall remain in effect until final payment. In the event that
Construction Manager shall fail to comply with the foregoing requirement, the City is authorized,
but in no event shall be obligated, to purchase such insurance, and the City may bill Construction
Manager. The Construction Manager shall immediately forward funds to the City in full payment
for said insurance. It is expressly agreed that neither the provision of the insurance referred to in
this Agreement nor the City's acceptance of the terms, conditions, or amounts of any insurance
policy shall be deemed a warranty or representation as to adequacy of such coverage. All insurance
coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or equivalent rating and
rating service as reasonably determined by the City Manager) and licensed by the State of Florida
to engage in the business of writing of insurance or provided through the London Market for
Professional Liability Insurance. The Construction Manager shall cause its insurance carriers,
prior to the effective date of this agreement to furnish insurance certificates specifying the types
and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a
statement that no insurance under such policies will be canceled without thirty (30) days' prior
written notice to the City in compliance with other provisions of this Agreement. Further copies
of all relevant policies will be provided to the City within thirty (30) days of the effective date of
this agreement. If the City has any objection to the coverage afforded by or other provision of the
insurance required to be purchased and maintained by Construction Manager in accordance with
this Article 10.0 on the basis of its not complying with the Agreement, the City shall notify
Construction Manager in writing thereof within thirty (30) days of the date of delivery of such
certificates to the City. For all Work performed pursuant to this Agreement, Construction Manager
shall continuously maintain such insurance in the amounts, type, and quality as required by the
Agreement.
11.0 REPRCSENTA'TIONS
11.1 The Construction Manager represents that the Services provided hereunder shall
conform to all requirements of the Contract Documents; shall be consistent with recognized and
sound CMAR practices and procedures; and shall conform to the customary standards of care,
skill, and diligence appropriate to the nature of the Services rendered. The Construction Manager
shall perform as expeditiously as is consistent with professional skill and care and the orderly
progress of the Services to be performed hereunder. The Construction Manager's Services shall
be consistent with the time periods established under Contract Documents. The Construction
Manager shall provide the City with a written schedule for Services performed for each Assigned
Project and such schedule shall provide for ample time for the City to review, for the performance
of consultants (if any), and for the approval of submissions by authorities having jurisdiction over
the Services. The Construction Manager's designated representative shall have the authority to
act on Construction Manager's behalf with respect to the Services. In addition, Construction
Manager's representative shall render decisions in a timely manner in order to avoid unreasonable
delay in the orderly and sequential progress of the Services. Except with the City's knowledge
and consent, Construction Manager shall not engage in any activity, or accept any employment,
interest, or contribution that would reasonably appear to compromise Construction Manager's
professional judgment with respect to the Services. The Construction Manager shall review laws,
codes, and regulations applicable to Construction Manager's Services. The Construction
Manager's Services and construction shall comply with all applicable requirements imposed by all
public authorities. The Construction Manager represents and warrants that it is familiar with, and
accepts that it will perform the Services hereunder in a manner that complies with, all applicable
requirements of law, codes, and regulations. The Construction Manager shall be responsible for
the professional quality, technical accuracy, and the coordination of all plans, studies, reports, and
other services furnished to the City under this Agreement. Unless this Agreement is terminated
by the City, or terminated by Construction Manager for nonpayment of any proper invoices, or the
City exercises its rights to perform the Services pursuant to Section 4.4 herein, Construction
Manager shall be responsible for the satisfactory and complete execution of the Services described
in the Contract Documents. The Construction Manager represents that it will carefully examine
the scope of services required by the City in the Contract Documents, that it will investigate the
essential requirements of the Services required by the Contract Documents, and that it will have
sufficient personnel, equipment, and material at its disposal to complete the services set forth in
the Contract Documents in a good professional and workmanlike manner in conformance with the
requirements of the Contract Documents.
11.2 The Construction Manager represents that all principals, employees, and other
personnel furnishing such Services shall be qualified and competent to perform the Services
assigned to them and that such guidance given by and the recommendations and performance of
such personnel shall reflect their best professional knowledge and judgment.
LOU GUARANTEE AG11I1N5 I' CNFRINCEMENT
12.1 The Construction Manager guarantees that all Services performed under the
Contract Documents for each Assigned Project shall be free from claims of patent, copyright, and
trademark infringement. Subject to the limitation as to patents as stated in Section 7.8,
Construction Manager shall indemnify, hold harmless, and defend the City, its officers, directors,
employees, agents, assigns, and servants from and against any and all liability, including expenses,
legal or otherwise, for actual or alleged infringement of any patent, copyright, or trademark
resulting from the use of any goods, services, or other item provided under this Agreement.
Notwithstanding the foregoing, Construction Manager may elect to provide non -infringing
services.
13.0 DOCUMENTS
13.1 Public Records. Pursuant to Section 119.0701, Florida Statutes, and other
applicable public records laws, Construction Manager agrees that any records, documents,
transactions, writings, papers, letters, computerized information and programs, maps, books, audio
or video tapes, films, photographs, data processing software, writings or other material(s),
regardless of the physical form, characteristics, or means of transmission, of Construction Manager
related, directly or indirectly, to the services provided to the City under this Agreement and made
or received pursuant to law or ordinance or in connection with the transaction of official business
by the City, may be deemed to be a public record, whether in the possession or control of the City
or Construction Manager. Said records, documents, transactions, writings, papers, letters,
computerized information and programs, maps, books, audio or video tapes, films, photographs,
data processing software, writings or other material(s), regardless of the physical form,
characteristics, or means of transmission of Construction Manager are subject to the provisions of
Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of
the City's designated custodian of public records.
IF THE CONSTRUCTION MANAGER HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONSTRUCTION
MANAGER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS
AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, THE CITY CLERK,
AT (407) 327-6560, egowan@winterspringsfl.org, City Cleric's Office, 1126 East State Road 434,
Winter springs, Florida 32708.
Construction Manager is required to and agrees to comply with public records laws.
Construction Manager shall keep and maintain all public records required by the City to perform
the services as agreed to herein. Construction Manager shall provide the City, upon request from
the City Clerk, copies 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 by law. Construction Manager
shall ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
Agreement term. Upon completion of the Agreement, Construction Manager shall transfer to the
City, at no cost, all public records in possession of Construction Manager, provided the transfer is
requested in writing by the City Clerk. Upon such transfer, Construction Manager shall destroy
any duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. However, if the City Clerk does not request that the public records be
transferred, Construction Manager shall continue to keep and maintain the public records upon
completion of the Agreement and shall meet all applicable requirements for retaining public
records. All records stored electronically must be provided to the City, upon request from the City
Clerk, in a format that is compatible with the information technology systems of the City. Should
the City not possess public records relating to this Agreement which are requested to be inspected
or copied by the City or any other person, the City shall immediately notify Construction Manager
of the request and Construction Manager shall then provide such records to the City or allow the
records to be inspected or copied within a reasonable time. If Construction Manager does not
comply with a public records request, the City may enforce this Section to the extent permitted by
law. Construction Manager acknowledges that if Construction Manager does not provide the
public records to the City within a reasonable time, Construction Manager may be subject to
penalties under Section 119.10, Florida Statutes. The Construction Manager acknowledges that if
a civil action is filed against Construction Manager to compel production of public records relating
to this Agreement, the court may assess and award against Construction Manager the reasonable
costs of enforcement, including reasonable attorney fees. All public records in connection with
this Agreement shall, at any and all reasonable times during the normal business hours of
Construction Manager, be open and freely exhibited to the City for the purpose of examination,
audit, or otherwise. Failure by Construction Manager to grant such public access and comply with
public records laws and/or requests shall be grounds for immediate unilateral cancellation of this
Agreement by the City upon delivery of a written notice of cancellation. If Construction Manager
fails to comply with this Section, and the City must enforce this Section, or the City suffers a third
party award of attorneys fees and/or damages for violating Chapter 119, Florida Statutes, due to
Construction Manager's failure to comply with this Section, the City shall collect from
Construction Manager prevailing party attorney's fees and costs, and any damages incurred by the
City, for enforcing this Section against Construction Manager. And, if applicable, the City shall
also be entitled to reimbursement of all attorneys' fees and damages which the City had to pay a
third party because of Construction Manager's failure to comply with this Section. The terms and
conditions set forth in this Section shall survive the termination of this Agreement.
a. Reuse of Documents. All documents, including but not limited to, Drawings,
Specifications, and data or programs stored electronically or otherwise, prepared by
Construction Manager and its independent contractors and associates pursuant to this
Agreement or related exclusively to the Services described herein shall be owned by the
City and may be reused by the City for any reason or purpose at any time. However, the
City agrees that the aforesaid documents are not intended or represented to be suitable for
reuse by the City or others on any undertaking other than the Work outlined in this
Agreement. Any reuse for an undertaking other than for the Work without verification or
adaptation by Construction Manager, or its independent contractors and associates if
necessary, to specific purposes intended will be at the City's sole risk and without liability
or legal exposure to Construction Manager.
b. Ownership of Documents. The City and Construction Manager agree that upon
payment of fees due to Construction Manager by the City for a particular design, report,
inventory list, compilation, Drawing, Specification, model, recommendation, schedule, or
otherwise, said design, report, inventory list, compilation, Drawing, Specification,
technical data, recommendation, model, schedule, and other instrument produced by
Construction Manager in the performance of this Agreement, or any Work hereunder, shall
be the sole property of the City, and the City is vested with all rights therein. The
Construction Manager waives all rights of copyright in said design, report, inventory list,
compilation, Drawing, Specification, technical data, recommendation, model, schedule,
and other instrument produced by Construction Manager in the performance of this
Agreement, and hereby assigns and conveys the same to the City whether in the possession
or control of Construction Manager or not.
c. Preexisting 04vnershi9 Rights to Documents. Notwithstanding any provisions to
the contrary contained in this Agreement, Construction Manager shall retain sole
ownership to its preexisting information not produced and paid for by the City under this
Agreement including, but not limited to, computer programs, software, standard details,
figures, templates and Specifications.
14.0 ASSIGNMENT
14.1 The Construction Manager shall not assign or subcontract this Agreement, any
Contract Documents hereunder, or any rights or any monies due or to become due hereunder
without the prior, written consent of the City. Any Subcontractors employed by Construction
Manager for any Work required under this Agreement shall require prior written approval from
the City, unless previously approved in the Contract Documents. Any attempt to assign or
subcontract the responsibilities and payments under this Agreement without the express prior
written consent of the City shall be grounds for termination of the Agreement.
14.2 If upon receiving written approval from the City, any part of this Agreement is
subcontracted by Construction Manager, Construction Manager shall be fully responsible to the
City for all acts and/or omissions performed by the subcontractor as if no subcontract had been
made.
14.3 If the City determines that any Subcontractor is not performing in accordance with
this Agreement, the City shall so notify Construction Manager who shall take immediate steps to
remedy the situation.
14.4 The Construction Manager, prior to the commencement of any Work by any
Subcontractor, Construction Manager shall require the Subcontractor to provide the City and its
affiliates with insurance coverage as set forth by the City.
15.0 INDEPENDENT CONTRACTOR
15.1 At all times during the term of this Agreement, the Construction Manager and any
approved Subcontractors shall be considered an independent contractors) and not an employees)
of the City.
16.0 DEFAULT BY CONSTRUCTION MANAGER, CITY'S RCMCDIES
16.1 In addition to the City's right to terminate this Agreement for convenience under
Section 17.3 of this Agreement, the City may terminate this Agreement for cause upon written
notice to the Construction Manager if any of the following events occur (each, a "Default"), and
the Construction Manager fails to cure such Default within thirty (30) days of receiving written
notice from the City (or, if the Default cannot be reasonably cured within thirty (30) days, fails to
commence such cure within thirty (30) days and thereafter diligently pursue it to completion):
a. Failure to perform or breach of any material term, covenant, or condition of this
Agreement;
b. Insolvency, inability, or unwillingness to pay debts when due, appointment of a
receiver, filing for bankruptcy, or assignment for the benefit of creditors;
c, Any garnishment, lien, or legal action that seeks to attach funds payable to the
Construction Manager by the City;
d. Persistent or repeated failure to supply qualified labor or sufficient materials, except as
otherwise permitted by the City;
e. Failure to promptly pay subcontractors, suppliers, or laborers;
f. Violation of applicable laws, codes, ordinances, or City directives;
g. Gross negligence, willful misconduct, fraud, or material misrepresentation in
connection with the performance of the Work;
h. Unauthorized assignment of this Agreement or any interest therein.
16.2 In the event of any Default, the City may, without limitation and without further notice
or demand, exercise any and all rights and remedies available at law or in equity, including the
right to:
a. Terminate this Agreement immediately;
b. Take possession of the Work, the Project Site, and all materials, equipment, tools, and
documents on -site;
c. Complete the Work using other contractors or City forces;
d. Recover all costs, expenses, and damages incurred due to Construction Manager's
breach;
e. Withhold any payments due as setoff against the City's damages.
16.3 Upon termination for Default, the City may elect to accept any portion of the Work
completed to its satisfaction, and the Construction Manager shall be entitled only to compensation
for such accepted Work, less the City's damages. The Construction Manager shall remain liable
to the City for all damages caused by or arising from its Default.
17.0 TERMINATION
17.1 Termination for Cause by City. The City may terminate this Agreement, in whole or in
part, for cause and without penalty, upon written notice to the Construction Manager if any
Default described in Article 16.0 occurs, or if the Construction Manager:
a. Commits an act of bankruptcy or general assignment for creditors;
b. Fails to comply with any material provision of this Agreement;
c. Engages in a labor dispute or other action that materially interferes with performance
of the Work;
d. Fails to make satisfactory progress toward completion, as determined in the City's sole
discretion.
17.2 Termination by Construction Manager, The Construction Manager may terminate this
Agreement only if:
a. Work is stopped for more than one hundred twenty (120) consecutive days by court
order or public authority through no fault of the Construction Manager; or
b. The City fails to make payment within forty-five (45) days after proper and undisputed
invoice is due, and such failure continues for at least seven (7) days after written notice
from the Construction Manager.
In such case, the Construction Manager's remedies shall be limited to compensation for Work
properly performed and documented losses for materials and equipment reasonably committed to
the Project, plus reasonable overhead and profit on Work performed to date. The City shall not be
liable for consequential or anticipatory damages.
17.3 Termination for Convenience by City. The City may terminate this Agreement for
convenience and without cause upon thirty (30) calendar days' prior written notice to the
Construction Manager. In such event, the Construction Manager shall be entitled to payment for
all Work properly performed through the date of termination, as determined by the City, and any
reasonable, direct costs incurred in winding down the Work, but shall not be entitled to lost profits,
anticipatory damages, or other consequential damages.
17.4 Effect of Termination. Upon any termination:
a. Construction Manager shall immediately cease performance;
b. Deliver all work -in -progress, materials, documents, and City property;
c. Cooperate fully with the City to ensure orderly transition or completion.
18.0 FORCE MAJEURE
18.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes (with the exception of Construction Manager's labor force);
extraordinary breakdown of or damage to the City's affiliates' generating plants, their equipment,
or facilities; court injunction or order; federal and/or state law or regulation; order by any
regulatory agency; or cause or causes beyond the reasonable control of the party affected; provided
that prompt notice of such delay is given by such party to the other and each of the parties hereunto
shall be diligent in attempting to remove such cause or causes. If any circumstance of Force
Majeure remains in effect for sixty (60) days, either party may terminate this Agreement.
19.0 GOVERNING LAW 3i VENUE; DISPUTE RESOLUTION; WAIVER OF TRIAD
BY JURY.
19.1 This Agreement is made and shall be interpreted, construed, governed, and
enforced in accordance with the laws of the State of Florida. Venue for any state action or litigation
shall exclusively be in Seminole County, Florida. Venue for any federal action or litigation shall
be exclusively in Orlando, Florida.
19.2 The Parties agree to cooperate in good faith to resolve any dispute, claim, or
controversy arising out of or relating to this Agreement. In the event a dispute cannot be resolved
through informal discussions, the Parties shall submit the dispute to non -binding mediation, which
shall be conducted in Seminole County, before a mutually agreed -upon mediator. The Parties shall
share equally in the cost of the mediator and each party shall bear their own attorney's fees and
costs in participating in mediation. If the Parties cannot agree on a mediator within ten (10) days,
either Party may petition the local circuit court to appoint a certified mediator. If the dispute is not
resolved through mediation within thirty (30) days after initiation, either Party may pursue relief
in a court of competent jurisdiction in the State of Florida as provided in Section 19.1.
19.3 The Parties hereby knowingly, voluntarily, and intentionally waive any right either
may have to a trial by jury in any legal proceeding arising out of or relating to this Agreement or
the transactions it contemplates. This waiver applies to any action, proceeding, or counterclaim,
whether sounding in contract, tort, or otherwise, in any court with respect to any matter arising out
of or connected with this Agreement.
20.0 HEADINGS
20.1 Article, section, and paragraph headings are for the convenience of the parties only
and are not to be construed as part of this Agreement.
21.0 SEVERABILITY
21.1 In the event any portion or part of this Agreement is deemed invalid, against public
policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an equitable
adjustment in the affected provision of this Agreement. The validity and enforceability of the
remaining parts of this Agreement shall otherwise remain fully intact.
22.0 WAIVER AND ELECTION OF REMEDIES
22.1 Waiver by either party of any terms, conditions, or provisions of this Agreement
shall not be considered a waiver of that term, condition, or provision in the future.
22.2 No waiver, consent, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by a duly authorized representative of each party
hereto.
23.0 TI-III2D PARTY RIGHTS
23.1 Nothing in this Agreement shall be construed to give any rights or benefits to
anyone other than the City and Construction Manager.
24.0 PROHIBITION AGAINST CONTINGENT FEES
24.1 The Construction Manager warrants that it has not employed or retained any
company or person, other than a bona fide employee working solely for Construction Manager, to
solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company,
corporation, individual, or firm, other than a bona fide employee working solely for Construction
Manager, any fee, commissi
Mon, percentage, gift, or other consideration contingent upon or
resulting from the award or making of this Agreement. For the breach or violation of this
provision, the City shall have the right to terminate the Agreement without liability and, at its
discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee,
commission, percentage, gift, or consideration.
25.0 ENTIRE AGREEMENT
25.1 The Contract Documents, including this Agreement and any schedules,
attachments, appendices, and exhibits attached hereto, constitutes the entire agreement between
the City and Construction Manager with respect to the Services specified and all previous
representations relative thereto, either written or oral, are hereby annulled and superseded. Any
Project -specific modifications to this Agreement will be set forth in the Contract Documents for
the Assigned Project.
26.0 NO JOINT VENTURE
26.1 Nothing herein shall be deemed to create a joint venture or principal -agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the
other.
27.0 ATTORNEY'S FEES
27.1 Should any litigation arise concerning this Agreement between the parties, the
parties agree to bear their own costs and attorney's fees, whether at settlement, trial, or on appeal.
28.0 COUNTERPARTS
28.1 This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be considered an original agreement; but such counterparts
shall together constitute but one and the same instrument.
29.0 DRAFTING
29.1 The City and Construction Manager each represent that they have both shared
equally in drafting this Agreement and no party shall be favored or disfavored regarding the
interpretation of this Agreement in the event of a dispute between the parties.
30.0 NOTICE
30.1 Any notices required to be given by the terms of this Agreement shall be delivered
by hand or mailed, postage prepaid, or electronically to:
For Construction Manager:
Wharton -Smith, Inc.
Attention: Michael Alexakis
750 Monroe Road
Sanford, FL 32771
(407) 321-8410 Phone
City of Winter Springs
Attention: City Manager
1126 E. State Road 434
Winter Springs, Florida 32708
(407) 327-5957
30.2 Either party may change the notice address by providing the other party written
notice of the change pursuant to this Article 30.0.
30.3 Any Notice given as provided herein shall be deemed received as follows: if
delivered by personal service, on the date so delivered; if delivered to an overnight courier service,
on the business day immediately following delivery to such service; and if mailed, on the third
business day after mailing.
31.0 SOVEREIGN IMMUNITY
31.1 The City intends to avail itself of the benefits of Section 768.28, Florida Statutes
and any other statutes and common law governing sovereign immunity to the fullest extent
possible. Neither this provision nor any other provision of this Agreement shall be construed as a
waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other
limitations imposed on the City's potential liability under state or federal law, and the cap on the
amount and liability of the City for damages, regardless of the number or nature of claims in tort,
equity, or contract, may not exceed the dollar amount set by the legislature for tort.. Construction
Manager also agrees that City shall not be liable under this Agreement for punitive damages or
interest for the period before judgment. Further, City shall not be liable for any claim or judgment,
or portion thereof, to any one person for over two hundred thousand dollars ($200,000.00), or any
claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid
by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds
three hundred thousand dollars ($300,000.00). Nothing in this Agreement is intended to inure to
the benefit of any third party for the purpose of allowing any claim which would otherwise be
barred under the doctrine of sovereign immunity or by operation of law. This Section shall survive
termination of this Agreement.
32.0 CORPORATE REPRESENTATIONS BY CONSTRUCTION MANAGER
32.1 The Construction Manager hereby represents and warrants to the City the
following:
a. The Construction Manager is duly registered and licensed to do business in the
State of Florida and is in good standing under the laws of Florida, and is duly qualified and
authorized to carry on the functions and operations set forth in the Contract Documents.
b. The undersigned representative of CorlStrlrctlon Manager has the power, authority,
and legal right to execute and deliver this Agreement on behalf of Construction Manager,
33.0 INDCMNIFICATION AND LIMI'TAT'ION OF LIABILITY
331 The Construction Manager shall, to the fullest extent permitted by law, indemnify,
and hold harmless the City, its officers and employees from and against any and all liabilities,
fines, civil penalties, damages, judgements, losses, and costs, including, but not limited to,
reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally
wrongful conduct of Construction Manager and other persons employed or utilized by
Construction Manager in the performance of this Agreement and all Contract Documents. This
indemnification obligation shall not extend to liability caused by the sole negligence of the City.
This provision is intended to comply with the requirements of Section 725,06, Florida Statutes,
and shall be interpreted and enforced accordingly.
The Construction Manager specifically assumes potential liability for actions brought by
Construction Manager's own employees against the City and, solely for the purpose of this
indemnification and defense, Construction Manager specifically waives its entitlement, if any, to
immunity under Section 440.11, Florida Statutes. This waiver has been specifically and mutually
negotiated by the parties.
The indemnity provisions set forth in this Section shall survive termination of this
Agreement.
33.2 For other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Construction Manager expresses its willingness to enter into this
Agreement with the knowledge that Construction Manager's recovery from the City to any action
or claim arising from the Agreement shall exceed the amount provided in Section 31.1 herein.
Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended either
to be a waiver of the limitation placed upon the City's liability as set forth in Section 768.28 Florida
Statutes, or to extend the City's liability beyond the limits established in said Section 768.28
Florida Statutes; and no claim or award against the City shall include attorney's fees, investigative
costs, expert fees, suit costs, or pre judgment interest.
33.3 PURSUANT TO SECTION 558.0035, FLORIDA STATUTES, AN
INDIVIDUAL EMPLOYEE OR AGENT OF THE CONSTRUCTION MANAGER MAY NOT
BE HELD INDIVIDUALLY LIABLE FOR ECONOMIC DAMAGES RESULTING FROM
NEGLIGENCE UNDER THIS AGREEMENT IF THE CONDITIONS OF SECTION 558.0035
ARE SATISFIED.
34.0 BONDS
34.1 To the extent deemed necessary and required by the City, Construction Manager
shall supply a materials, performance, and payment bonds) in an amount specified in the Contract
Documents for any Assigned Project, in a form approved by the City Attorney and in accordance
with Florida law.
34.2 The City will have the right, prior to commencement of any Assigned Project, to
require the Construction Manager to furnish bond(s) covering its faithful performance of the Work
and the payment of all obligations arising thereunder, in such forms as the City may prescribe and
with such sureties as it may approve. Performance and payment bonds in compliance with Section
255.05 Florida Statutes will be required for the Assigned Projects. The premium for such bond
shall be paid by the Construction Manager as part of the GMP Amendment.
35.0 ADDITIONAL ASSURANCES
35.1 The Construction Manager for itself and its Subcontractors, if any, certifies that:
a. No principal (which includes officers, directors, or executives) or individual
holding a professional license and performing work under this Agreement is presently
debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded
from participation in any architecture, landscape architecture, engineering, or surveying
activity by any Federal, State, or local governmental commission, department, corporation,
subdivision, or agency;
b. No principal (which includes officers, directors, or executives) or individual
holding a professional license and performing work under this Agreement, employee, or
agent has employed or otherwise provided compensation to, any employee or officer of the
City; and;
c. No principal (which includes officers, directors, or executives) or individual
holding a professional license and performing work under this Agreement, employee, or
agent has willfully offered an employee or officer of the City any pecuniary or other benefit
with the intent to influence the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of Construction
Manager and said signature shall bind Construction Manager to this Agreement. No further
action is required by Construction Manager to enter into this Agreement other than
Construction Manager's undersigned representative's execution of the Agreement.
36.0 -VERIFY COMPLIANCE.
36.1 In accordance with Section 448.095, Florida Statutes, the Construction Manager
represents and warrants that it is registered with, and uses, the E-Verify system to verify the work
authorization status of all newly hired employees during the term of this Agreement. The
Construction Manager shall require all subcontractors to comply with the same requirements and
maintain records of such compliance.
The Construction Manager shall provide evidence of its E-Verify registration and compliance upon
request by the City. Failure to comply with this section shall be deemed a material breach of this
Agreement and may result in immediate termination of the Agreement by the City without penalty,
and the City may pursue any remedies available under law or equity.
For purposes of this section, "ENerify system" means the Intemet-based system operated by the
U.S. Department of Homeland Security in partnership with the Social Security Administration to
verify the employment eligibility of employees.
3 / WU FDEP STATE REVOLVING FUND PROGRAM
37.1 The City intends to fund the design and construction of the Assigned Projects in
whole or in part with funding obtained from the Florida Department of Environmental Protection
State Revolving Fund Program ("SRF Funding"). SRF Funding will require, to the extent
applicable, the City and Construction Manager to abide by the supplemental conditions related to
Construction Procurement and Equipment/Materials Procurement. The supplemental conditions
are incorporated herein by this reference. A copy of the SRF supplemental conditions are found
at:
https•//floridade�,tov/sites/default/tiles/SupplementaryGonditions EM Contract"i620'%,2
BAw,7ust`%o2O2O220/029.pdf
hops•//floriclade��oy/sites/de:l'ault/tiles(SuP3�lc:mentacyConditions C' Conh'act°io2(1%2RA
uoust"/�202022"/�Z9.nd f
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
CTTY:
CIT
sy:
Print Name: Kevin Sweet, City Manager
ATTEST:
Christian Gowan, City Clerk
WHA
sy:
Name:
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-SMITH, INC.
Title: CEO
Date: �- leas
13
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EXHIBIT
Preconstruction Scope of Services
for
Wastewater Treatment Facilities —East Plant
Wharton -Smith, Inc.
CONSTRUCTION GROUP
CITY OF WINTER SPRINGS
WASTEWATER TREATMENT FACILITIES — EAST PLANT
PRECONSTRUCTION SCOPE OF SERVICES
The following narrative is to provide detail to the Preconstruction Services Scope for City of Winter Springs
Wastewater Treatment Facility — East Plant.
The duration of preconstruction is assumed to be approximately 11 months for design coordination and
GMP development which is inclusive of preconstruction services provided by Wharton -Smith, and 2 months
for production and negotiation of the final Guaranteed Maximum Price (GMP). This time is based on
receiving GMP design documents from Carollo by December 111, 2025. Please note that the 2 months
allotted for the GMP does not include the time required for City of Winter Springs Council approval and
contract amendment.
Generally:
Attend general progress review and coordination meetings with Owner and the project team.
Attend periodic design meetings to provide consultation on aspects of the design and construction that will
impact the budget, schedule, and quality of the completed Work.
1. CMAR will work with Owner to develop the optimum scope and quality of Work to meet Owner's
budget. Such work will consist of considering options and alternates with scope and quality
adjustments as determined by Owner. CMAR will assess cost and schedule impact of these options
and alternates.
2. Consult with Owner regarding site use and improvements, and the selection of materials, building
systems, and equipment.
3. Provide recommendations on construction feasibility; actions designed to minimize adverse effects
of labor or material shortages; 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 opportunities for savings.
4. Provide recommendations on the construction schedule for possible opportunities for time savings.
Provide input to the Owner regarding current construction market, bidding climate, status of key
Subcontractor and Supplier markets, and other local economic conditions. Develop Subcontractor and
Supplier interest in the Work, consistent with Legal Requirements. Furnish the Owner with a list of possible
Subcontractors and Suppliers, from whom bids will be requested for each principal portion of the Work.
Submission of this list is for information and discussion purposes only and not for prequalification.
WHARTON-SMITH, INC. - -
Wharton -Smith, Inc.
CONSTRUCTION GROUP
In conjunction with the Owner, identify the appropriate early work packages including procurement of
long -lead time items and equipment and other Work required to meet the schedule for the Owner,
In conjunction with the Owner, identify the appropriate Work packages from the Contract Documents for
distribution to prospective bidders for providing all elements of Work not included in the General
Conditions. Appropriate Work packages shall generally mean scopes of work that will maximize the
competition for those Work packages. Work packages will also be identified with appropriate scopes of
work should the Owner have any goals for involvement of the local and/or small contracting communities.
The following breakdown lists the anticipated tasks and expectations considered when producing the
preconstruction proposal. Any work outside of this scope of work that is requested of Wharton -Smith by
the Owner, shall be submitted in the form of a `Request for Quotation' for review and approval prior to
such work taking place.
This list of tasks may differ from the original task list in the RFQ solicitation, this scope was generated jointly
with the City, Carollo, and Wharton -Smith based on the most effective use of resources to achieve the goals
Athe project.
Task 1 Proiect Coordination
1.1 Project Kickoff Meeting —Wharton-Smith staff will attend one (1) project kickoff workshops with
City of Winter Springs and Carollo. These meetings will be workshop style meetings to review
drawings and specifications for the PDR design submittal and understand the overall project
constraints and goals.
1.2 Milestone Design Workshops— Wharton -Smith staff will attend (3) milestone design review
workshops. The purpose of these workshops are to review constructability, design comments,
potential MOPO, value engineering, and other design related items.
1.3 Monthly Progress Meetings— Wharton -Smith staff will attend (15) progress meetings with City of
Winter Springs and Carollo to review design progress, cost updates, action items, and other
outstanding items. These meetings will be combined with subject specific design discipline
meetings and may be held in -person or remotely (via Teams, Zoom, Webex, etc.). It is anticipated
that there will be 4 months with 2 meetings for a total of 15 meetings. Cost estimate deliverables &
Value Engineering meetings will be incorporated into these meetings.
1.4 Commission Meetings — Wharton -Smith staff will attend & prepare for (4) commission meetings to
support project update presentations from City of Winter Springs and Carollo.
1.5 Design Team Meetings — Wharton -Smith staff will attend (22) virtual bi-monthly meetings with
Carollo. These meetings are to review design progress, cost updates, action items, and any
outstanding items between Wharton -Smith and the design team to keep the project on -schedule.
These meetings will be held remotely as needed (via Teams, Zoom, Webex, etc.). These meetings
WHARTON-SMITH INC.
f
Wharton -Smith, Inc.
CONSTRUCTION GROUP
aI e also intended to be used to prepare for meetings with the City to ensure that the Cities time is
used most effectively,
1.6 Site Specific Quality Plan —Wharton-Smith will develop asite-specific QA/QC plan for the
construction Work of the Project that meets the Agreement requirements and the Cities
expectations. Wharton -Smith policies for quality control as well as appropriate portions of the
Wharton -Smith quality manual will be incorporated into the QA/QC Plan. Manage quality assurance
and quality control on the Work to ensure that the design and construction complies with the
Construction Documents. CMAR shall work with Owner to develop this Plan and Owner shall have
right to review and comment on this Plan as it is being developed and finalized. Support the
activities of the Owner with regards to its construction materials engineering, testing and
inspection services.
1,7 Project Specific Site Utilization Plan -Wharton-Smith shall develop a Site Access and Logistics Plan
that the CMAR will implement to coordinate and manage the site constraints and challenges
including but not limited to traffic and pedestrian control, access to Site, material and supplies
delivery, laydown areas, safety and security considerations, protection of existing infrastructure,
etc, Wharton -Smith shall work with the City to develop this Plan and the City shall have right to
review and comment on this Plan as it is being developed and finalized.
1.8 Site Specific Health &Safety Plan —Wharton-Smith will develop asite-specific plan that covers all
policies related to safety including MSDS chemical sheets, trench safety, confined spaces, fall
protection, drug free policy, hurricane preparedness, emergency medical care plans, etc.
1.9 GMP Review Workshop —Wharton-Smith will provide the bid results and award recommendations
to City of Winter Springs and Carollo. Final vendor and subcontractor selection will be part of this
meeting.
1410 Funding Coordination Workshops —Wharton-Smith staff will attend two (2) workshops with
City of Winter Springs and Carollo. These workshops will review all requirements set forth by the
funding agencies to ensure compliance during the construction and billing process.
1.11 Project Management, Scheduling, &Administration— This includes all work associated with
the project not specifically tied to a project deliverable. Including monthly preconstruction schedule
updates, preconstruction progress reports, billing, contracts, miscellaneous correspondence and
meetings.
1,1Z Site Visits —Wharton-Smith will perform (4) site visits to investigate existing conditions,
review spatial constraints, evaluate structure placement, develop site utilization plans for
construction, develop MOPO's and analyze site conditions for development of site -specific safety
and quality plans.
WHARTON-SMITH. INC,
Wharton -Smith, Inc.
CONSTRUCTION GROUP
1.13 Community Outreach Assistance —Wharton-Smith will provide assistance to the City's
public outreach coordinator including schedule updates, photos, quotes, etc. for the City to utilize
to communicate with the community. Website, social media, email, or phone setup, maintenance,
or monitoring is not included as a part of this task, these are assumed to be handled by the city.
Task 2 Preliminary Cost Estimates
2.1 PDR Cost Estimate —Wharton-Smith preconstruction staff will perform takeoffs on all construction
trades such as site work, concrete, process equipment, utilities, mechanical, building, finishes, etc.
A full cost estimate book will be provided showing all material, labor, and equipment take -offs
along with subcontractor cost estimates. This estimate will be commensurate with the level of
detail in the PDR and will serve to provide the City with a general understanding of the cost to
facilitate necessary value engineering efforts.
2.2 SRF Cost Estimate —Wharton-Smith preconstruction staff will perform a detailed takeoff on the
updated SRF submittal drawings. The takeoffs will be on all construction trades. A full cost estimate
book will be provided showing all material, labor, and equipment take -offs along with
subcontractor cost estimates.
2.3 Preliminary GMP Cost Estimate —Wharton-Smith preconstruction staff will perform a detailed
takeoff of the post SRF deliverable design. This estimate is intended as an update to the overall
project cost, ahead of the full GMP, based on all final design VE decisions. This estimate is expected
to coincide with the early GMP tasks so that the City has a high confidence in the overall project
cost when approving the early GMP.
Task 3 Design and Constructability Reviews
3.1 PDR Submittal Constructability Review &Value Engineering (VE) —Wharton-Smith will perform
detailed design and constructability review to identify changes, conflicts, constructability concerns,
spatial concerns, general questions, and overall consistency of the design disciplines (structural,
civil, process, etc.). Value engineering options are also provided during this phase and throughout
the life cycle of the project. For each constructability review a detailed log of all comments is
provided to the City and Carollo who then have the opportunity to respond and agree upon a final
resolution to each.
3.2 Drone Deploys Flights &Processing —Perform drone flights over the site to capture site profiles.
Utilize this information to support estimating and bid quantities and to support value engineering
design reviews. Point clouds and CAD deliverables will be provided to the City and Carollo.
3.3 Initial Risk Register Development —Wharton-Smith will create a Risk Register to identify design
phase risks so that the team can address allocate any allowances or contingencies needed in the
project for any risks associated with the project. The risk register will be updated with each design
deliverable.
WHARTON-SMITH, INC.
:E
Wharton -Smith, Inc.
CONSTRUCTLON GROUP
3.4 MOPO &Preliminay Commissioning Plan Development &Review —Wharton-Smith staff will work
with Carollo and the City to develop & review MOPO's (Maintenance of Plant Operations). Plans
will be generated to assist Carollo with finalizing the design to account for temporary bypassing or
facilities, startup accommodations, plant MOT, or other operational concerns. These items will be
used to generate the GMP bid documents and the risk register.
3.5 SRF Submittal Constructability Review &Value Engineering (VE) —These costs are for the same
items outlined in Task 3.1.
3.6 GMP Submittal Constructability Review &Value Engineering (VE) —These costs are for the same
items outlined in Task 3.1 but include a review of all documents to ensure that they are ready for
bidding.
3,7 IFC Submittal Constructability Review —These costs are For the same items outlined in Task �,1 but
include final review of all documents to ensure that they are conformed and ready for construction.
Generally, CMAR shall review in -progress design documents, including at a minimum the documents
generally described above in 3.1 through 3.6 and provide input and advice to the Owner on constructability,
materials and equipment selections, and availability. Provide timely suggestions for modifications to
improve:
Constructability, including sequencing or coordination issues, to enable Work to be completed with
a minimum of RFI's and change orders.
• Recommend potential vendors and manufacturers for incorporation into the design.
• Adequacy of details for construction.
• Potential conflicts during construction.
• Ability to coordinate among Subcontractors and Suppliers.
• Coordination between Contract Documents.
• Operability.
• Ability to minimize disruptions to existing operations.
• Ability to complete construction connections to existing facilities or utilities.
• Modifications to facilitative commissioning and start-up and/or performance testing.
• Ability of Owner to operate/maintain the Work in a safe, time and cost-efficient manner when
completed.
Task 4 CPM Master Schedule
4.1 Schedule Development and Phasing — At the SRF design phase, Wharton -Smith will develop a
baseline Critical Path Method (CPM) schedule using Primavera P6 software based on available
information (and providing reasonable allowances for Owner review time and time for permits and
approvals from governmental agencies). The schedule will be broken down by phase
(design/permitting, procurement, construction, and closeout) as by structure. A detailed schedule
sequence will be provided for each structure. All portions of the project will be interrelated by
WHARTON
Wharton -Smith, Inc.
CONSTRUCTION GROUP
schedule logic so that a true "critical path" is easily identifiable. This schedule will be managed and
updated as the project progresses.
4.2 Schedule Update at Preliminary GMP Submittal —The schedule developed in Task 4.1 will be
updated prior to GMP procurement. This schedule will have up to date information and lead times
based on the information received by the preconstruction team during the estimate phase.
4.3 Final GMP Schedule —The schedule developed in Task 4.1 is modified based on the GMP design
documents and final construction sequencing is determined. This schedule shall serve as the basis
for General Condition's costs in the GMP as well as the contract time required for the duration of
construction.
Task 5 Biddina, Procurement, and GMP
5.1 Owner Direct Purchase Plan — In conjunction with the Owner, Wharton -Smith staff will identify and
assist the City in direct purchase of major equipment and materials for savings on sales tax.
5.2 Develop Procurement Plan— Wharton -Smith staff will generate an anticipated bid package
breakdown, starting at the PDR design milestone estimate. This will allow comparison of budget
changes from the PDR to SRF to Preliminary GMP estimates. This breakdown will be generated to
algin with supplier and subcontractor efficiencies to maximize bid participation and provide the
best value for City of Winter Springs. Wharton -Smith will present the City of Winter Springs with a
list of prequalified subcontractors and suppliers for review prior to GMP bidding, This will also be
used to identify the early GMP bid packages, we will use the schedule developed in task 4 along
with the vendor lead times collected in task 3. This plan will be reviewed during a monthly project
progress meeting.
5.3 Early GMP Procurement —Wharton -Smith will identify and break-out long lead equipment and early
work packages for these scopes to be procured and executed as early as practical so that the
overall construction schedule is minimized. Requirements for short-term and long-term storage will
be evaluated and implemented as necessary. Wharton -Smith preconstruction staff will also review
proposals from the membrane system suppliers along with proposals received from other selected
major equipment suppliers for incorporation into final design.
5.4 GMP Development —Wharton-Smith will identify and assemble appropriate work packages from
GMP design documents to solicit prospective subcontractor and supplier proposals for providing all
elements of Work not included in the General Conditions. Work packages will be assembled with
appropriate detailed scopes of work. Should the City Owner have any goals for involvement of the
local and/or small contracting community, those will be incorporated. A selected bidders list will be
developed and evaluated with City of Winter Springs prior to the bidding phase.
5.5 Pre -Bid Site Visits —Wharton-Smith will host, coordinate, and manage apre-bid site visit for all
potential bidders for the subcontract and purchase order work packages. Wharton -Smith will take
notes and answer questions. Bid questions are required to be formally submitted to Wharton -Smith
in writing for coordination with City of Winter Springs and Engineer to provide responses.
WHARTON-SMITH, INC.
Wharton -Smith, Inc.
CONSTRUCTION GROUP
Clarifications/addenda will be issued to bidding parties as needed based on the formal bid
questions that are received.
5.6 Receive Bids —Wharton-Smith staff will receive bids throughout the course of an entire day. The bid
times may be staggered to ensure our ability to answer questions or provide directions up to the
last minute.
5.7 Review Bids and Recommend Award —All of the subcontractor and purchase order work package
bids are reviewed for completeness, responsiveness, exceptions, clarifications, and deviations from
the contract documents. Value engineering ideas and schedule commitments will also be
evaluated. Any bid exceptions, exclusions, or clarifications will be reviewed with the Engineer ahead
of recommendation of award. Wharton -Smith will provide a bid tabulation worksheet and make a
recommendation for package award based on the best interest of City of Winter Springs. Final
decision is made by Owner.
5.8 GMP Risk Register —The Risk Register developed on Task 3.3 will be updated to ensure all potential
risk is captured and all the allowances/contingencies assigned are correct. The GMP risk register
will have allocations that are agreed upon by all parties. All disbursements are reviewed and
approved by the City.
5.9 Final GMP Assembly —All documents that comprise the GMP are assembled into a single tabbed
and searchable binder/pdf document. This includes all schedules, bid documents, subcontractor
and supplier bids, Wharton -Smith self -perform cost estimates, other backup quotes, general
conditions breakdowns, value engineering logs, risk register, contingencies and allowances, and
other GMP relevant documents that were considered in creation of the GMP.
Task 6 Allowances
All allowances included are funds to be used at the discretion of the City. Wharton-Smtih will present any
costs to be billed against these allowances to the City for approval prior to usage. Unspent funds will be
returned to the City at the end of the preconstruction phase. There is no contingency for overage of these
allowances and thus any overage would need to be amended via change order.
6.1 Electrical Estimates and Power Co Assistance —An electrical subcontractor will be brought to the
team at an early design stage to provide constructability feedback to help the Engineer finalize the
electrical design of the plant and to provide detailed cost estimating.
6,2 Early Duke Energy Design —This task includes time for Wharton -Smith to coordinate with Duke
energy and to solicit early design costs so that the preliminary design work for Duke energy can
occur before construction start. A $10,000 allowance for the Duke engineering fees has been
included, however, the cost will not be known until we receive a quote from Duke so this amount
may go up or down.
6,3 Emergency Work —Any emergency work needed by City of Winter Springs when Wharton -Smith is
under contract.
WHARTON-SMITH, INC.
An
Wharton -Smith, Inc.
CONSTRUCTION GROUP
6.4 Lead and Asbestos Testing —Wharton-Smith will contract out this testing, ahead of the GMP, so
that bidders are aware of the requirements. This testing is a requirement for any demolition
activities.
6.5 Grant Funding —This allowance would allow the City to use the services of Hale Innovations to put
together an evaluation and sequencing plan to submit (1) AWT permit. Hale will put together the
grant submittal and follow the submission through to final grant allocation decisions. Grant
management during construction is not included in this scope and would be handled with the GMP
should the grant be awarded.
Fee Summary: Please reference the breakdown, on the next page, by task.
Fee, Bond and Insurance rates: The following applies to the construction phase of the project. Fee is
established at 8.5%, Bond will be at the actual bond cost which is estimated at approximately 0.7% of total
project cost. GL insurance will be 1.05% of total project cost, and builders risk insurance will be calculated
based on the current rates and the projected project schedule. The general conditions costs will be
presented to City of Winter Springs at the PDR design cost estimate and will be refined based on the GMP
schedule at the time the GMP is presented. General conditions costs will be presented in an open -book
manner for each item.
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