R01-179RESOLUTION NO. ROI-
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNT'ON BEACH, FLORIDA, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE TASK
ORDER NO. 01-05 BETWEEN THE CITY OF BOYNTON
BEACH AND CAMP DRESSER AND MCKEE IN THE
AMOUNT OF $236,610 FOR ENGINEERING SERVICES
RELATED TO STORMWATER IMPROVEMENTS AND
WATER MAIN REPLACEMENTS IN THE AREA OF NE
7TIt AVE. AND NE 10TM AVENUE BETWEEN US 1 AND NE
7TH STREET, AS WELL AS ENGINEERING SERVICES
ASSOCIATED WITH THE INSTALLATION OF 20
OUTFALLS INTO THE LAKE WORTH
LAGOON/INTRACOASTAL WATERWAY; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Commission has previously assigned a priority to a variety of
stormwater related projects; and
WHEREAS, this project includes those tasks related to the surveying, design,
)ermitting and cost estimating to allow us to get to the bidding stage of two of the prioritized
)rojects;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach, Florida do~s hereby
authorize and direct the Mayor and City Clerk to approve and execute Task Order No. 01-05 with
Camp Dresser and McKee in the amount of $236,610, for engineering services related to stormwater
improvements and water main replacements in the area of NE 7th Ave. and NE l0th Ave., between US
1 and NE 7th Street, as well as the engineering services associated with the installation of 20 outfalls
into the Lake Worth Lagoon/Intracoastal Waterway.
Section 2. This Resolution shall become effective immediately upon passage.
PASSED AND ADOPTED this I day of May, 200'1.
ATTEST:
ca~eso~=s~~r 01-0~M042301
Vice Mayor
COmmissioner
Commissioner
ENGINEERING :SERVICES TASK ORDER
CITY OF BOYNTON BEACH
TASK ORDER NO~ 01-05
CDM PROJECT NO. 6276 -5
I. PROJECT TITLE
StormwaterManagement Improvements and Water Main Replacement
Engineer, Procure and Construction Management at Risk (EPCM) Project
II. BACKGROUND
The City of Boynton Beach: (City) has identified the need to upgrade stormwater
management systems in areas of the City subjected to Periodic flooding, .and to reduce
pollutant loadings to surface waters resulting from stc~rmwater discharges.
A priority area for implementation of stormwater system improvements is the
residential area between NE 7t~ Avenue and NE 10t~ Avenue, from NE 7th Street to US
Highway 1. This area experiences periodic flooding after rainfall events and from
intrusion of salt water during high-tide periods. An evaluation of alternatives for
improved stormwater management in this area was conducted by Camp Dresser &
McKee Inc. (CDM), as summarized in a Technical Memorandum dated September 27,
2000 and updated on December 14, 2000. This evaluation concluded that the provision
of swales, culverts and pump stations for conveyance of stormwater to a new detention
pond, coupled with raising the elevation of NE 7m Street to 5.0 feet, NGVD and
installation of flap gates on existing culverts under this road would reduce the effects of
nuisance flooding in this area for storms of less than the 25-y~ar recurrence interVal. A
natural mangrove wetland at NE 7th Street and NE 7m Avenue will likely have to be
purchased by the City and protected in order to permit the plmmed improvements. The
City will also have to purchase property~for construction of the stormwater detention
pond, and may need to obtain easements for siting of the pump station and other
required facilities.
These improvements will be made in conjunction with planned water main
replacements in the area, as well as north to NE 12t~ Avenue. The design and permitting
of the water main replacement project has already been comEleted by City staff. The
water main replacement and stormwater improvements will ~e cOnstructed in one
combined project to ensure the water main installation and stOrmwater improvements
are coordinated, to save money, and to minimize disruptions to residents in this area
during construction of the work.
The City has also identified 20 existing stormwater outfalls discharging to the Lake
-Worth Lagoon (Intracoastal Waterway) along the City's waterfront which can be
0000-Db-'I-INB -MD.DFHB B 1
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retrofitted with water quality improvement devices. The City has received a matching
grant for design, permitting and construction of these devices, which will remove
floating debris a~d settleable Or Suspended solids prior to discharge during storm
[ to implement the project in a
improvements,
develOp design
to be
oversee the
be
the
day of October
~OPE OF SERVI~S.
public
:echnical reVieWs, cost
on management and
work:
1. Stormwater'management System improvements for the NE 7~ to NE t0th Avenue
Area~
2.
$. existing ouffalls.
The
indudet
shall
; and cost estimating to
detailed cost 'estimating for
areas of' wOrk. The Construction
shall be
at the discretion of the City.
0000-DFHNB-MD.DFHBB 2
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VI.
PROfECT STATUS REVIEW
CDM shall provide the City with written monthly status reports during the duration of
the project.
PROIECT SCI-IEDULE
CDM will commence services upon receipt of written authorization and will complete
the professional engineering services within the schedules provided in Figure No. 1.
COMPENSATION FOR SERVICES
The total amount to be paid to CDMby the City under this Task Order for surveying,
geotechnical investigation, design, permitting and cost estimating shall be a not-to-
exceed amount of $234,610. A breakdown 6~ the labor hOurs and other costs associated
with this Task Order are provided i and C. Once the design and permitting
is completed and a Guaranteed Maximum:i three areas of work has
been determined, the. EPCM contract, as Exhibit D, will be
authorized for construction ~
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first above
written.
CAMP DRESSER & McKee INC.
David F. Holtz, P.E. 6/
Assodate
CITY OF BOYNTON BEACH, FLORIDA
APPROVED AS TO
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0000-DFHNB-MD.DFHBB
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~EXHIB~ A
STORMWATER MANAGEMENT IMPROVEMENTS AND WATER MAIN REPLACEMENT
ENGINEER, PROCURE AND CONSTRUCTION MANAGEMENT AT RISK (EPCM)
SCOPE OF SERVICES
of services for this. task order is develOped in three parts as follows.
SYSTEM IMPROVEMENTS FOR THE N.E. 7'tn
a!
management systerr{ to improve
by the residents in the
z U.S. Highway I to the west, N.E. 7m Street to
~ Avenue to the soUth. The project area is
immediately to the west of the Intracoastal
.'looding during regular storm events.
t area experiences tidal flooding across N.E.
L929. The
tasks comprising the
of
of services shall be as follows:
GEOTECHNICAL INVESTIGAIIONS
registered in the State of
r area. A specific purpose topographic
Spot elevations along the
The survey contours will reflect
culverts and depressed areas. The survey
.will identify right-of-way
roadways, and inverts of stormwater pipes
1. The horizontal' datum
vertical datum will be the
the surveyor will be used to perform a
area and to develop design drawings
format. Surveying services to
required for project
Lot included, but may be provided via
results of the tests will ]
improvements to existing swaleS.
0000~DFI-INB -MD.DFHB B
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design
A-1
locations to assist in the design the
performed
of the proposed detention pond. The
pond and system of new swales or
1600 Feet
~md Wa~mr Mmin Replm::ememLt
TASK 2.0 - HYDROLOGIC & HYDRAULIC ANALYSIS
CDM will use the data collected from Task 1 to delineate the tributary areas for the watershed.
CDM will divide the study area into subbasins and estimate the peak flows from a 2.5 inCh; 5-
year, 24-hoUr; 25-year, 72-hour and 100-year, 72-hour events. Based on the topographic survey
and information gathered on hydraulic structures, a hydraulic routing analyses will be
performed for the recommended stormwater improvements. The results of the hydraulic
analyses will be used to identify the maximum water-surface elevations for the low-lying areas
that are currently being subjected to frequent flooding.
TASK 3.0 -
DESIGN OF THE STORMWATER MANAGEMENT SYSTEM
2VrPROVEM NTS
Based on the survey and geotechnical data and design flows obtained from the hydrologic and
hydraulic analysis, CDM will design the stormwater management system improvements for the
project area. The. design will include new roadside swales, culverts, flap gates, one pump
station, and the proposed detention pond to be located at the northeast comer of the project
area. At many of: the locations within the project area, the existing swales will be improved to
provide enhanced ~ management. CDM will size, locate and design the stormwater
pump station runoff from the project area to the proposed detention
pond. Services associated pump station, detention pond and other
facilities for obtaining task order.
A comer of NE 7m Street and NE 7m Avenue. It is
anticipated that this area to be preserved in its current condition in order to permit the
stormwatef improvements for . The City may have to purchase the property containing
the mangrove wetlands and construct a berm as part of this project to exclude the area from the
stormwater improvements area. An exis~g culvert under NE 7m Street which allows for tidal
hydration of the mangrove wetlands may have to remain unchanged. Stormwater from NE 7th
Avenue will be routed around the bermed wetland area.
CDM will prepare construction drawings and specifications for the project, based on the
topographic s~ey provided under Task 1, anc~ the design activities described above. The
drawings will include the for the proposed detention pond, plan
and profile for the roadside swales within the and details of proposed hydraulic
structures including culverts, inlet structures, ouffall flap gates and pumps. A description and
estimate of the number of drawings required to depict work for the area improvements are
presented in Table A-1.
0000-DFHNB-MD.DFHBB A-3
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Table A-1: Drawings List - Stormwater Management System Improvements
for the NE 7~h Street Area
Sheet Description No. of Sheets
TASK 4.0 -
ti-re
PERMITI'~G ASSISTANCE
District (SFWMD) to submit
permit for the
: management system design
:and NE 7· Avenue.
Wetlands mitigation nor hydrologic
City may need to acquire this property for
; to two
will be
TASK
AWARENESS
CDM will p~cipate in meetings with City staff, as required during the course of. the project.
City and assist in
project
. it is assumed that
handouts/brochures to inform the
project area. CDM will also
t Commission and residents. For
to four (4) meetings.
TASK 6.0 - iCOST ESTIMATING
CDM will prepare the engineer's estimate of probable cost of construction for the
implementation of this project at the 60 percent and 90 percent stages of the design process. At
the final design stage (i.e., 100 percent) CDM will prepare the final engineer's cost estimate for
construction which will be used to establish a Guaranteed Maximum Price for the
implementation of this project as an amendment to this task order (Exhibit D).
0000-DFHNB-MD.DFHBB A4
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II. . WATER MAIN REPLACEMENT
CDM will review the design drawings prepared by the City for the replacement of water main
in the area bounded by NE 7m Avenue to the south, NE 12m Avenue to the north, U.S. Highway
1 to the west, and the Intracoastal Waterway to the east. An estimate of the cost of construction
of the project will be prepared as the basis for development of the Guaranteed Maximum Price
for this work.
The desCription of tasks comprising the scope of services shall be as follows:
TASK 1.0- REVIEW OF WATER MAIN DESIGN
CDM will conduct a technical review of the design of the water main performed by the City of
Boynton Beach. This technical review will only focus on the constructability aspects 0f the
project and will not address the performance of the proposed water main system (i.e., no pipe
network calculations or modeling will be performed to evaluate the hydraulic performance).
TASK 2.0 - COST ESTIMATING
CDM will prepare the engineer's estimate of probable cost of construction for the
implementation of this project. The cost estimate will be the basis for establishment of a
Guaranteed Maximum Price for the implementation of this project as an amendment to this task
order (Exhibit D).
III. TWENTY WATER QUALITY IMPROVEMENT DEVICES AT EXISTING OUTFALLS
CDM will design twenty water quality improvement devices at various outfall locations within
the City of Boynton Beach, as shown, in Figure A-1. The design process will include the
hydrologic and hydraulic analysis for watersheds tributary to the twenty outfall Structures,
preparation of construction drawings and technical specifications for various design elements
that are required for the installation of the 20 deviCes.
A description of the tasks comprising the scope of services shall be as follows:
TASK 1.0- SURVEYING
CDM will employ the services of a licensed professional surveyor, registered in the State of
Florida to assist in surveying tasks. The surveying effort will include the location of known
underground and overhead utilities, buildings, roadways, and other structures within the
easement for the outfall structures and at least 20 feet on either side of the proposed location for
the treatment devices. The survey data will also include the information on pipe sizes, inverts,
material types, inlets, outfalls, road crown elevations, pavement elevations, and other
information pertinent to this project. In addition, a special-purpose topographic survey will be
performed in the vicinity of the outfall (generally to the east of US Highway 1) to assist CDM in
delineating the tributary area to each outfall. Surveying services to map and provide legal
0000-DFHNB-MD.DFHBB A-5
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descriptions of easements which may be required for projeCt implementation are not cUrrently
identified and are not included, but may be provided via amendment of this task order, if needed.
TASK 2.0 -. HYDROLOGIC ~ HYD~ULIC ANALYSIS
twenty
order
however,
TASK 3.0 -
CDM will
improvement ~
quality improvement device
be chosen and designed to ha~c~e
plans,
relevant to-this
Table A-2.
Table A-2: Drawing
Sheet Description
t Location ~
General Notes
Location Devices
Details
Total
TASK 4.0-
CDM will
Management
methodology
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PERMITTING ASSISTANCE
A-6
quality
to identi~ the water
!0 locations. Appropriate-devices will
for the 2.S-inch storm and loading
drawings will include
utility locations based on the
presented in
'Water Quality
No. of Sheets
1
10
3
17
!or submittal to the South Florida Water
The application will include the
and design flows obtained from the
hydrologic analysis and other pertinent information. The design will include the design criteria
and procedures used for sizing the devices for each loCation based on design flows. This
proposal is based on responses to two Request for Additional Information (RAds) from
regulatory agendes. The Cit-y will be responsible for all fees associated with the permit
applications.
TASK 5.0 - COST ESTIMATING
CDM will prepare the engineer's estimate of probable cost of cOnstruction for the
implementation of this project at the 60 percent and 90 percent stages of the design process. At
the final design stage (i.e., 100 percent) CDM will prepare the final engineer's cost estimate for
construction, which wit[be used to establish a Guaranteed Maximum Price for the
implementation of this project as an amendment to this task order.
0000-DFHNB-MD.DFHBB A-7
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EXHIBIT B-1
PROJECT BUDGET
PROJECT:
Stormwater
Part h
Street Area
CONTRACT
REFERENCE:
Agreement between City of Boynton Beach and
Camp Dresser & McKee Inc. dated October 4, 2000
Labor Category.
Hours Hourly Rate (S/hr)
Officer
Technical Specialist
Project Director
Senior Engineer/Scientist
Professional II
Professional I
Senior Support Services
Staff Support Services
Clerical
TOTAL LABOR HOURS
2 $170
112 $144
62 $138
148 $123
280 $78
236 $67
44 $99
138 $61
94 $39
1,116
TOTAL LABOR COST
OTHER DIRECT COSTS
Reproduction and Supplies
Travel
Computer and CAD
Data and Media
2,000
500
1,500
1,000
TOTAL OTHER DIRECT COSTS
OUTSIDE PROFESSIONAL SERVICES (With 10% Mark-Up)
Surveying
Geotechnical Investigations
TOTAL OUTSIDE PROFESSIONALS
E. 7m
Total
$97,320
$5,000
$26210
$1,540
$28,050
TOTAL ESTIMATED COST
UPPER LIMIT AMOUNT
$130,370
$130,370
0000- DFH N B-MS,DFI"IWP B
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- ' EXHIBIT B-2
PROJECT BUDGET
PROJECT:
Stormwater Management Improvements and Water Main Replacement
Engineer, Procure and Construction Management at Risk (EPCM)
Part II: Water Main Replacement
CONTRACT
REFERENCE:
Agreement between City of Boynton Beach and
Camp Dresser & McKee Inc. dated October 4, 2000
Labor Category_
Hours Hourly Rate ($/hr) Total
Of~cer
Technical Specialist
Project Director
Senior Engineer / Scientist
Professional II
Professional I
Senior Support Services
Staff Support Services
Clerical
TOTAL LABOR HOURS
0 $170
0 $144
4 $138
12 $123
16 $78
16 $67
0 $99
0 $61
4 $,39
52
TOTAL LABOR COST
OTHER DIRECT COSTS
Reproduction and Supplies
Travel
Computer and CAD
Data and Media
TOTAL OTHER DIRECT COSTS
TOTAL ESTIMATED COST
UPPER LIMIT AMOUNT
50
50
$100
$4,604
$4,600
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B-2
PROJECT:
EXHIBIT B-3
PROJECT BUDGET
Outfalls (EPCM)
CONTRACT A
REFERENCE: Camp
Labor Category
Hours
Officer
Teclmical Specialist
Project Director
Senior Engineer/Scientist
Professional II
Professional I
Senior Support Services
Staff Support Services
Clerical
TOTAL LABOR HOURS
5
70
58
100
260
128
28
144
106
899
TOTAL LABOR COST
OTHER DIRECT COSTS
Reproduction and Supplies
Travel
Computer and CAD
Data and Media
1~500
500
tS00
1,000
TOTAL OTHER DIRECT COSTS
OUTSIDE PROFESSIONAL SERVICES (With 10% Mark-Up)
Surveying
TOTAL OUTSIDE PROFESSIONALS
TOTAL ESTIMATED COST
UPPER LIMIT AMOUNT
Beach and
2000
Hourly Rate (S/hr)
$170
$144
$138
$123
$78
$67
$99
$61
$39
To~l
$75,780
$4.500
$19,360
$19,360
$99.640
$99.640
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NOTE:
This exhibit is provided as a draftlof the Agreement which may be executed between the City and CDM
once the construction cost of the project (Guaranteed MaximUm Price) has been determined.
EXHIBIT D
AGREEMENT
FOR ENGINEERING, PROCUREMENT,
AND CONSTRUCTION MANAGEMENT PROJECT
ARTICLE 1 -TItE PROJECT TEAM AND EXTENT OF AGREEMENT
CDM agrees to furnish or arrange for the engineering and'construction services set forth herein and agrees to furnish
project management and administration and superintendence~ and to use its best efforts to complete the Project in an
expeditious and economical manner consistent with the interests of the OWNER.
1.1. The __Pr~,,ject Team. CDM, the OWNER and CDM's consultants and subcontractors, collectively Called the '~roject
Team, shall work cooperatively from the beginning of design through Constm6tion completiOn.
1.2.
Extent of Agreement. The Contract Documents represent the entire agreement between the OWNER and CDM
and supersede all prior negotiations, representations or agreements. This Agreement shall not be superseded by
any provisions of the docUments for construction and may be amended only by written instrument signed by bo?
OWNER and CDM. While the OWNER may issue ~eParate purchase ordersI to CDM to satisfy OW~'ER s
purchasing requirements, the terms and conditions 0fi any such purchase orders issued after the date of this
Agreement shall be deemed to be void and the terms and!conditions of this:Agreement shall be deemed substituted
therefor.
1.3. Definitions.
1.3.1. The Project is described in Exhibit 1 and is to performed and located on ]property of the Ci.ty of Boynton
Beach, Florida.
1.3.2. The Work is the engineering, permitting, procurement, construction, start,up, training and demonstration
period (turnkey) services required to complete the Project.
1.3.3.
General conditions costs are defined to include the following items: field office trailers; storage trailers;
temporary parking; roads; laydown areas; temporary construction fence; security; temporary toilets;
temporary electrical service; temporary water and sewer service; drinking water/ice; telephone expenses;
dUmpster; project sign; site communication; copier; facsimile machine; computer(s) with. printer(s);
office furniture; office supplies; Federal Express/mail; plans and specification copies; project
photographs; aerial; video taping; living allowance; relocation; travel expense (mileage);
uuckinghnob'flizafion and demobilization; project vehicles; fuel; small toOls; miscellaneous consumables;
miscellaneous supplies; standby equipment (pumps, air compressor(s), welder; forkiiffflull; health and
safety expense; employment drug/physical testing; surveying; testing; dust control; clean roads; daily
cleanup; final cleanup; starmp/tesfing; training; as-builts; Submittals; and warranty.
1.3.4. Terms. As used in this Agreement the following terms shall have the meanings set forth below:
"Acceptance" means demonstration.by CDIvl that a Phase of the Project has been designed and conslructed in
accordance with all requirements of this Agreement.
"Affiliate" means any person, corporation or other entity directly or indirectly controlling or controlled by
another person, corporation or other entity or under direct or indirect common control with such person, corporation or
Page 1
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(4) any other change mutually agreed to by the parties.
"Close-Out Requirements" means CDM obligations for closing out the Project and completing documentation
of the Project pursuant to this Agreement (including such matters as submittal of record drawings, surveys, and
manuals; cleanup and removal of construction materials and debris from the site; and all other matters which
this Agreement requires CDM to do and perform as part of the completion and winding-up of' CDM
obligations).
"Construction Change Authorization' is a change to the Scope of Work signed by the OWNER Project
Manager that does not alter the total Award Amount or the completion date.
"ConstructiOn Scope of Work" shall mean the activities of CDM commencing after completion of the
WNER-approved design documents, and includes bidding, procurement, construction mobilization,
lanning and permitting, the uPdated deVelopment of the Revised Estimatei and construction of the Project
to Substantial Completion and Final Completion.
"Contract Documents" consists of: (1) this Agreement; (2) Exhibit 1 and the OWNER-approved Design
Documents; and (3) Exhibits 2 and 3.
"Cost of Work" shall mean the actual sum appended or incurred by CDM in implementing a defined or
identified part or portion of a phase of the Project, with such sum verified by bid or award amount and evidence of sum
paid to those performing the work, delivering or installing equipment, providing services or otherwise properly
completing the work.
..... Cost Substantiation" means, with respect to any cost reasonably incurred or to be incurred by CDM which
is directly or indirectly chargeable in whole or in part to the OWNER hereunder, delivery to the OWNER of a certificate
signed by an officer of CDM, setting forth the amount of such cost and the provisions of this Agreement under which
such cost is properly chargeable to the OWNER, stating that such cost is a fair market price for the service or materials
supplied or:to'be supplied and: that such services and materials are reasonably required pursuant to this Agreement, and
accompauiedby copies of such documentation as shall be necessary to reasonably demonstrate that the cost as to which
Cost Substantiation ,is required has been or will be incurred.
"Design DOcuments" or "Owner Approved Design Documents" shall mean the design documents prepared
by CDM pursuant to Task Order No. 01-05 to the CD/vi/OWNER Agreement dated and
approved by OWNER prior to the development of the GMP.
"OWNER Fault" means any breach (including the untruth or breach of any OWNER representation or warranty
herein set forth), failure, nonperformance or noncompliance by the OWNER under this Agreement (whether or not
attributable to any officer, member, agent, employee, subcontractor of any tier, the OWNER Engineer, or any
independent conlxactor of the OWNER) which is not directly attributable to any Uncontrollable Circumstances or CDM
Fault and which materially and adversely affects CDM's rights and obligations or ability to perform under this
Agreement.
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Page 3
other entity.
"Agreement (Contract)" means this CDM Agreement between CDM and the OWNER, including the Schedules,
as the same may be amended or modified from time to time in accordance herewith.
"Agreement Date "means the date set forth .on page one of this Agreement.
"Applicable Law" means any law, rule, code, regulation, requirement, action, determination, guidelines, or
order of, or any legal
permitting, construction, equipping, financing, ownership
transaction or matter c
the
building codes, the payment of 1
"Award Amount" shall mean ~
the GMP negotiated by
, applicable, relating to the design,
or testing, of the Project, or any other
without limitation,, any of
environmental protection,
the OWNER for the Project which shall include
t phase.
"Certificate of Substantial Completion" shall mean the certification issued by the OWNER with
this Agreement.
"Change in Law" means any of the following events or Conditions having a material and adverse effect on the
performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on
the design, construction, equipping, start-up, or testing, of the Facility:
(1) the adoption, promulgation, issuance, modification or written change in administrative or judicial interpretation
on or a~ter the Agreement Date of any Applicable Law, unless suth Applicable Law was; on or prior to the
Agreement Date, duly modified or changed in interpretation,
in each case in any further action by any governmental body; and/or
(2) the order or judgment of any governmental body, on or after the Agreement Date, to the extent such order or
~ or lack of reasOnably diligence of CDM
or of in Law; Pr°rider} ho~evet' that the
contesting in good' faith or the failure of good faith to contest any sUCh order or judgment shall not constitute or
be construed as such a willful or negligent action, error, Or omission or lack of reasonable diligence.
"Change Order" meam a written order issued by the OWNER to CDM, and signed by CDM after execution
of this Agreement, authorizing ~or requiring:
Additional labor, services, material or equipment not required by the OWNER at the time this Agreement was
executed;
(I)
(2)
(3)
an extension to the var/om completion dates;
an increase or reduction in the Guaranteed Maximum Price or the cost of work;
any other change in this Agreement prior to the Substantial Completion; or
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Page 2
"Insurance Requirements" shall mean the OWNER's insurance requirements for CDM under the terms of this
Agreement.
"Legal Entitlement" means any and all permits, licenses, approvals, authorizations, consents and entitlements
of Whatever kind and however described which are required under Applicable Law to be obtained or maintained by any
person with respect to the construction of the Project or the performance of any Other obligation of CDM under this
Agreement.
"Notice to Proceed" those formal written notices from the OWNER to CDM directing CDM to commence the
engineering services and construction improvements.
"OSHA" shall mean the United Stated Department of Labor Occupational Safety and Health Administration.
"Operations and Maintenance ManuaF' shall mean the manual to be provided by CDM at Substantial
Completion.
"OWNER's Contingency Fund" is a fund available exclusively to the OWNER for additional work, changed
site conditions, or other enhancements to the Project beyond the OWNER-approved Design Documents which the
OWNER may elect to undertake.
"Payment Bond" means the bond in the amount of the Guaranteed Maximum Price, which guarantees to the
OWNER CDM's timely payment for all labor, materials, supplies, implements, and machinery and equipment to be
furnished with respect to the Project.
"Performance Bond" means the bond in the amount of the Guaranteed Maximum Price, which guarantees to
the OWNER CDM's timely performance of its obligations under this Agreement for the benefit of the OWNER.
"Project Schedule" shall mean the schedule attached hereto aa Exhibit 2.
"Scheduled Substantial Completion Date" means the date set forth in the Schedule for Substantial Completion
of the Scope of Work. This date may be adjusted dueto delay caused by Uncontrollable Circumstances, OWNER Fault,
or by OWNER-requested Change Orders.
"Subcontractor" means every person .(other than employees of CDM) employed or engaged by CDM or any
person directly or indirectly in privity with CDM (including every sub-contractor of whatever tier), whether for the
furnishing of labor, materials, equipment, supplies, services, or otherwise. It inclfides the term '~l'rade Contractor" or
"Trade Subcontractor".
"Substantial Completion" means construction has been completed in accordance with the Contract Documents,
to the extent that the OWNER can use or occupy the entire Project, or the designated portion of the Project, for the use
intended without any outstanding, concurrent Construction at the site, except as may be required to complete or correct
punch List items. Prerequisites for Substantial Completion, over and above the extent of construction completion
required, include (a) receipt by the OWNER of acceptable, specified O&M documentation, (b) all systems have been
successfully:tested and demonstrated by CDM for their intended use, and (c) completion of all specified OWNER staff
training. Items not included aa prerequisite for Substantial Completion include without limitation (a) painting, (b)
pordons of the building not required for production of consumable water, and (c) landscaPing. This date shall be
confirmed by a Certificate of Substantial Completion signed by the OWNER and CDM. The Certificate of Substantial
Completion shall State the respective responsibilities of the OWNER and CDM for security, maintenance, heat, utilities,
damage to the work, and insurance. The Certificate of Substantial Completion shall also list the items to be completed
or corrected, and establish the time for their completion and correction.
Pag~ 5
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"OWNER Project Manager/Authorized Representative" shall mean the individual identified in this Agreement,
or any successor project manager designated by the OWNER in writing, including such functions as construction
inspections, registered project representative activities including authorization to use OWNER!s Contingency, project
oversight and review of testimony.
,Day" means calendar day unless otherwise expressly stated in this Agreement.
"CDM Construction Manager" shall mean the individual designated by CDM pursuant to this Agreement.
"CDM Fault" means any breach (including the untruth or breach of any CDM representation or warranty herein
set forth), failure, nonperformance or noncompliance by CDM under this Agreement (whether or not attributable to any
officer, member, agent, employee, Subcontractor of any tier, or independent Contractor of CDM or any Affiliate of CDM)
which is not directly attributable to any Uncontrollable Circumstance, or OWNER Fault and which materially and
adversely affects the OWNER's rights and obligations or ability to perform under this Agreement.
"CDM Project Manager" means the individual(s) designated as the individual(s) to Carry out the functions of
CDM under this Agreement.
"Facility" means the water mains, stormwater management system and stormwater ouffalls and all roads,
grounds, additions, repairs, replacements, improvements and appurtenant structures thereto, machinery and equipment
therefor, and facility modifications thereto, to be designed, constructed and installed on the site in accordance with
Exhibit 1.
"Final Completion" means completion of a Phase by CDM in accordance with the Contract Documents,
certified to the OWNER by CDM, and accepted in writing by the OWNER: (a) The Construction; (b) all testing; (c)
demonstration by CDM that the Work functions as required by the Contract Documents and meets all Contract
requirements;-(d) resolution of all outstanding system deficiencies and punch-list items, if any; (e) delivery of all Record
Drawings (with revisions made after Substantial Completion), annotated submittals and design document deliverables;
(f) submittal, acceptance, and delivery of the 100% complete operation and maintenance manual, s; (g) delivery of
warranties, vendor inspection certificates and Bonds; (h) all pre-requisites for final payment; and (i) submittal of CDM's
request for final payment and acceptance.
"Final Completion Date" means the date specified by this Agreement for Final Completion of the
Improvements as applicable in the context of this Agreement.
"Guaranteed Maximum Price (GMP)" the fixed amount agreed to by and between the OWNER and CDM for
CDM to design and construct the Project based on the OWNER-approved Design Documents. The components of the
GMP are set forth as Article 7.
"Hazardous Waste" or "Hazardous Materials" means any substance or material identified now or in the future
as hazardous, toxic or db. ngerous under any federal, state or local law or regulation, or any other substance or material
which may be considered hazardous or otherwise subject to statutory or regulatory requirements governing handling,
disposal and/or clean up.
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Paga4
(h)
Circumstances;
any impact of prevailing wage or similar law, customs or practices on CDM's consamction or operating
costs.
"Utilities" means any and all utility services and installations whatsoever (including gas, water, sewer,
electricity, telephone, and telecommunications), and all piping, wiring, conduit, and other fLxtures of every kind
whatsoever related thereto or used in connection therewith.
"Warranty Period" has the meaning set forth in Section 2.2 of this Agreement.
2.1
ARTICLE 2 - CDM'S RESPONSIBILITIF_~
CDM's Services. CDM shall furnish through its own employees or engage subcontractors or subconsultants to
furnish the following services for execution and completion of the Agreement, which shall constitute the '"*Vork."
2.1.1.
CDM shall proVide the engineering services during construction for the Project in accordance with the
laws of,the state in which the project is located. The engineering services shall be performed with the
skill and care which would be exercised by comparable qualified professional engineers performing
similar services at the timesuch services are performed and under similar conditions.
2.1.2. CDM will secure on behalf of the OWNER and with full and complete cooperation of OWNER any
construction building permits necessary for the construction of the Project.
2.1.3.
CDM will provide the OWNER with a preliminary schedule for the engineering services and construction
of the Project. This Schedule shall indicate the dates for the starting and completion of the various stages
of the engineering services and construction, and shall contain the necessary information to allow the
OWNER to monitor the progress of the Work. It shall be ~vised as required by the conditions of the
Work and for those conditions and events which are beyond CDM's control.
2.1.4.
2.1.3.1. CDM's total liability to the OWNER for any ar
damages whatsoever arising out of or in any wa
services or work, ,or this Agreement, from any ca
CDM's negligence, errors, omissions, breaches ot
not exceed the total mount paid by the OWNER
CDM will provide all materials and equipment, supervision, i
equipment and specialty items necessary to execute and con
Work as described in Exhibit I attached hereto.
d all injuries, claims, losses, expenses or
r relating to the Project, the site, CDM's
me or causes, including but not limited to
warranty or contract or strict liability shall
to CDM under this Agreement.
aspectiol~, testing, labor, tools, construction
tplete construction of the Project Scope of
2.1.5.
CDM shall take necessary precautions for the safety of its employees on the Work, and shall comply with
all applicable provisions of federal, state and municipal safety laws. CDM shall include provisions in
all subcontracts which require its subcontractors to be responsible for the Safety of their employees on
the Work, and to comply with all applicable provisions of fedeml~ state and municipal safety laws. It is
agreed that CDM shall have no responsibility for the abatement of safety'hazards resulting from work
at the job site carried on by the OWNER's separate contractors, orI by the OWNER or persons for whom
the OWNER is responsible. OWNER will comply with, and agree to cause any such separate contractors
or persons to comply fully with all applicable provisions of federal, state and municipal safety laws and
regulations.
Page 7
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"Substantial Completion Date" shall mean the date CDM achieves Substantial Completion of the
Improvements, as applicable in the content of this Agreement.
"Supplier" is a manufacturer, fabricator, distributor, materialman or vendor having a direct contract with CDM
or with a Subcontractor to furnish materials or equipment to be incorporated in the Project:
"Term of this Agreement" means the period commencing on the EffectiVe Date of this Agreement and through
the completion or correction of all Punch List items.
"Testing" means the tests, plans and procedures set forth in Schedule A hereto to be conducted prior to and as
a condition of Substantial Completion to demonstrate Acceptance.
~'Uncontrollable Circumstance" means any act, event or condition (whether affecting the Facility, the Project,
the OWNER, CDM; or any of the OWNER's or CDM's respective Subcomractors or Suppliers), which, and only to the
extent that it materially and adversely affects the ability of either party to perform any obligation hereunder (except for
payment obligations), provided that such act, event or condition, (a) is beyond the reasonable contro! of the party relying
thereon as justification for not performing an obligation or complying with any conditions required of such party under
this Agreement; (b) is not the result of the willful or negligent act, error or omission of such party; and (c) such act, event
or condition could not have been prevented by the exercise of reasonable diligence; (d) has time impact affecting the
critical path of an event or the entire Project.
(1) Inclusions: Subject to the foregoing, such acts or events shall include, but not be limited to, the following:
(2)
(a)
Co)
(c)
(d)
(e)
(0
(g)
an act of God, hurricane, lightning, earthquake, fire, flood, plague, tornadoes, other abnormal weather
conditions not reasonably :anticipated, explosion, sabotage or similar occurrence, acts of a public enemy,
extortion, war, blockade or insurrection, riot or civil disturbance;
a Change in Law;
the preemption of materials or services by a governmental body in connection with a public emergency
or any condemnation or other taking by eminent domain of any portion of the Facility or site;
the presence at the site of (a) subsurface structures, materials or eondifious having archaeological
siguifieance; and CO)any habitat of endangered species;
the presence' of pre-existing Hazardous Waste upon, beneath or migrating to or from the site;
permitting delays impacting the Project to the extent not caused by CDM; and
the City of Boyaton Beach Fault.
Exclusions: It is specifically understood that none of the following acts or conditions shall constitute
Uncontrollable Circumstances:
(a) general economic conditions, interest or inflation rates, or currency fluctuations or exchange rates;
Co) changes in the financial condition of CDM, or its Affiliates affecting the ability to perform their
respective obligations;
(e) the consequences of error, neglect or omissions by CDM, and any of its Affiliates in the design or
construction of the Project or in the performance of any other work hereunder;
(d) any increase for any reasOn in premiums charged by CDM's insurers or the insurance markets generally
for the insurance required under this Agreement;
(e) the failure of CDM to secure patents or licenses in connection with the technology necessary to perform
its obligations hereunder;
(0 the failure of any Subcontractor or supplier to furnish labor, materials, services or equipment for any
reason other than for acts or events which are defined as Uncontrollable Circumstances;
(g) equipment failure except when due to acts or events specifically enumerated herein as Uncontrollable
Page6
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3.1.
3.3.
3.4.
3.5.
3.7,
3.9.
3.10.
3.11.
2.2.3.
CDM will not be responsible for any errors or Omissions contained in or omitted from any certificates
and/or independent analyses of work conducted by and/or information provided by independent
laboratories or other independent contractors retained by CDM in connection with CDM's services
provided to the Owner.
2.2.4. CDM will collect all equipment manuals and deliver them to the OWNER.
ARTICLE 3- OWNER'S RESPONSIBILITIES
The OWNER shall provide full information regarding its requirements for the Project;
The OWNER shall designate a representative who shall be fully acquainted with the Project and have the authority
to promptly apProve changes in the scope of the Project that are subject to the OWNER's contingency, promptly
render approvals and decisions, and furnish information expeditiously and in time to meet the dates set forth in
the Schedule. The OWNER's designated representative is
· To the extent currently available through OWNER and not a part of the Scope of Work, the OWNER shall furnish
for the entire Project area: any and all topographical surveys describi~ng the physical characteristics; soils reports
and subsurface investigations; legal limitations; utility locations; and a legal description, including a property
survey and Project benchmark. CDM shall not be held liable for personal and/or pr°perty damage caused by
CDM s interference vath subterranean structures such as pipes, tanks and utility lines that are not correctly shown
on the documents or that are not contained in written information provided to CDM prior to the commencement
of the Work. However, CDM shall be responsible for CDM negligently Causing damage to pipes correctly
identified and in good working order.
The OWNER shall cooperate fully in CDM's efforts, to secure and pay for necessary approvals, easements,
assessments and charges required for the construction, connection, use, or occupancy of permanent s~xuctures or
for permanent changes in existing facilities.
The OWNER will cooperate fully in CDM's efforts to secure permits necessary for the Project.
If the OWNER becomes aware of any fault or defect in the Work or nonconformance with the OWNER-approved
Design Documents, it shall give prompt written notice thereof to CDM.
OWNER shall bear-the cost of any bonds that it may require CDM to maintain in connection with the Project.
The services, documen~fion and information required bY the above paragraphs shall be furnished with reasonable
promptness'at OWNER s expense. EXcluding the documents and information prepared and provided by CDM,
CDM Shall be entitled to rely upon the accuracY and the completeness of all such information and documentation
provided by the OWNER.
The OWNER shall furnish reasonable evidence satisfactory to CDM, prior to signing this Agreement, or upon
written request of CDM from time to time thereafter, that sufficient funds are available and committed to pay for
CDM's total estimated charges for the Work. Whether or not CDM elects to proceed with work without having
received such evidence, CDM may thereafter stop work upon fifteen (15) days' prior written notice if such
evidence has not been furnished within a reasonable time after any stich request.
The OWNER shall have no contractual obligation to CDM's subcontractors and subconsultants and shall
communicate with such subcontractors and subconsultants only through CDM.
The OWNER shall pay for all utility connection fees'and special facility charges 'rendered by utilities for
connection of permanent utility services to the Project.
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Page9
2.1.6.
CDM shall keep the premises of the Project free from accumulation of excess constmcti6n materials and
litter caused by: CDM's operations. At the completion of the Work, CDM shall remove from the Project
CDM's tools,: surplus materials, construction equipment, and machinery
2.1.7. CDM shall prepare Change Orders for the OWNER,s approval and execution in accordance with this
Agreement.
2.1.8.
CDM shall maintain in good order at the site one record copy of the drawings, specifications, product
data, samples, shop drawings, Change Orders and other Modifications, m~rke.~l currently to record
changes made du~ng construction. These shall be delivered to the OWNER Upon :completion of the
Project and final payment.
2.1.9.
2.1.10.
CDM's scope of services is set forth in Exhibit 1 attached hereto and made a part of this Agreement.
CDM's services shall not include expressly or by implication any analysis, determination or opinion as
to whether the OWNER is in ComPliance with federal, state or local laws, statutes, ordinances or
regulations.
2.1.11. Unless
wast~
CDM's services shall not include directly or indirectly storing,
, treating or monitoring hazardous Substances, hazardous
oils.
2.1.12.
Any reference to liquidated damages contained elsewhere in this Agreement or doc..u~m..ents incorporated
by reference are not applieable m this Agreement2 The sole damages for CDM s idelay in final
completion shall result in a five percent (5%) reduction per month in the share of the savings in costs
described in Article 7.1.3.
2.2. Standards and Completion.
2.2.1.
CDM agrees that all materials and equipment furnished under this Agreement will be new, unless
otherwise specified, and that all construction work will be of good quality, flee from improper
workmanship and defective materials. CDM will not be responsible, however, for defects caused by
OWNER modifications, abuse, and/or improper maintenance or operation. CDM agrees to correct all
work performed by it under this Agreement which proves to be defective in material or workmanship
within.a period of ninety (90) days after completion of the Work as defined in Paragraph 2.2.1.1
provided ~hat oWNER fimfishes written notice of such defect within sUCh ninety (90) day period. CDM
provides no warranty, express or implied, for OWNER-furnished equipment or equipment, accessories
and parts manufactured by others, However, any warranty or'guarantee obtained by CDM from any such
manufacturer shall be deemed to have been obtained for the benefit of OWNER and will. be; assigned to
OWlqER. The foregOing standards and warranties are the sole warranties extended by CDM and are in
lieu of all other warranties express or implied, including but not limited to, the implied warranties of
merchantability and fitness for purpose.
2.2.1.1. Unless otherwise expressly noted, the term completion in this Agreement shall mean substantial
completion, Substantial completion is the stage of progress when the Work or a designated
portion thereof is sUfficiently complete in accordance with this Agreement so that the OWNER
can utilize the Work for its intended use. The contract time is the time within which CDM is
to' achieve substantial completion of the Work, subject to adjustments as set forth in this
Agreement.
2.2.2. CDM will secure required certificates of inspection, testing or approval required for building construction
and deliver them to the OWNER.
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Page. 8
ARTICLE 4 - SUBCONTRACTS
4.1.
CDM shall select competent Subcontractors and shall be responsible for the management of the Subcontractors'
performance of their work. Should an appropriate Subcontractor not be identified for a specific work item, CDM,
with the OWNER's approval, will perform the work with its own forces.
ARTICLE 5 - CONTRACT TIME SCHEDULE AND SUBSTANTIAL COMPLETION
5.1. Contract Time.
5A.1. The Work to be performed under this Agreement shall be performed in accordance with the Schedule
provided pursuant to Paragraph 2.1.3.
5.1.2. The term "day" as used in this Agreement shall mean calendar day, unless otherwise specifically
designated.
5.2 Delays.
5.2.1.
If CDM is delayed at any time in the progress of the Project by any act of the OWNER, or any separate
contractor employed by the OWNER or by the action of any governmental agency or regulatory body
or third party citizens' group, or by unreasonable delays in regulatory permitting, or by change orders
in the Project, or by labor disputes, fire, unusual delay in transportation, unreasonable delay in issuance
of building permits or zoning or utility services, unusual delay or shortages in material supplies, adverse
weather conditions not reasonably anficipatable, unavoidable casualties, acts of God, or any other causes
beyond CDM's reasonable control, then the time within wtfich the scope of work is to be completed shall
be adjusted accordingly.
5.2.2,
If CDM is delayed by any act of OWNER or by any separate contractor employed by OWNER or for
any other cause for which the OWNER is responsible, then in addition to an extension of the contract
time, CDM will be compensated for all costs which it incurs as a result of such delay, and a change order
will be issued therefore.
ARTICLE 6 - CHANGES IN THE PROJECT
6.1. Change Orders.
6.1.1.
Any work not contained in the scope of work set forth in Exhibit 1 and defined under construction
contingency shall be a change and shall be performed by CDM only pursuant to a verbal authorization
followed by a written Change Order to this Agreement signed by OWNER and CDM. Such a Change
may increase or decrease the Work within the general scope of this Agreement. If this Change causes
an increase in the cost of the Work, or of the time required for the performance of the Work, CDM shall
be paid a lump sum acceptable to both parties and/or shall be granted an extension of the contract time.
The lump sum shall be the labor cost, actual subcontractor cost, plus a fifteen percent (15%) fee.
6.1.2.
The proposal document may identify specific items that are not included in the Contract Price. The Work
included in this Agreement shall be limited to that work specifically set forth in Exhibit 1. The
performance or furnishing of any such items by CDM that are not included in the scope of work set forth
in Schedule A shall be pursuant to a Change Order issued in accordance with Paragraph 6.1.1.
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Page 10
6.2.
6.3.
6.1.3.
In the event OWNER requests CDM to develop information necessary for the consideration of a change
in the Project, and such a change is not adopted, OWNER shall reimburse CDM for the costs which it
incurs in connection with such efforts. The total reimbursement shall include the actual cost incUrred plus
a fifteen percent (15%) fee.
affect the Work are
by~
Regulatory Changes. CDM sh~ be compensated forchanges in the Work necessitated b~
', in:Law.
ARTICLE 7 - COMPENSATION AND PAYMENTS TO CDM
7.1. Compensation and Payments
7.1.1. This is an "Open Book" Agreement where CDM agrees to provide OWNER access to its records to
confirm subcontract cost incurred for consUmction and procurement (excluding imnp sum fees);
7.1.2.
CDM shall~ be compensated for the performance of the work. The Guaranteed Maximum Price for CDM
to perform the engineering services during eonstmcfion, procurement, and constructiOn management and
construction as described in Exhibit 1 shall have the following components:
(1)
'Labor and Out-of-Pocket Cost Associated with Engineering Services During Construction - The
engineering services during construction for work done byCDM at the hourly billing rate for
the category of the individual performing the engineering services during construction for all
time directly chargeable to the Project plus actual out-of-pocket costs. The schedule of hourly
billing rates is contained in Exhibit 3.
(2)
Labor Cost of the Construction Management and Construction- The Lump Sum direct labor
cost associated with the management and supervision (office and field) of the work to be
performed, times a 2.5 labor multiplier~
(3)
Project Cost - The Lump Sum costs associated with General Conditions, Bonds, Insurance,
Permits, times a 10% markup.
(4)
Overhead and Profit - The. Lump Sum cost' associated with the actual construction. The
overhead cost is 8% of.the estimated construction cost, and the profit is 15% of the estimated
construction cost.
(5)
Coustmcfion SubcontractOr Cost- The maximum cost for material and construction which the
Owner will incur for the defined scope.
(6)
Construction Contingency - A 5% contingency to be used for unanticipated site conditions
encountered during construction.
7.1.3. The OWNER and CDM have agreed in the interest of controlling costs and providing incentive to share
cost in the following manner:.
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Page 11
(1)
Any savings in construction subcOntractor costs from the original schedule of values of
subcontract work (Article 7.1.Z5)will be shared fifty percent by the OWNER and fifty percent
by CDM.
(2)
Any unused portions in construction contingency (Article 7.1.2.6) will be shared fifty percent
with CDM.
7.1.5.
CDM shall submit to the OWNER monthly invoices covering the period ending on the last day of the
preceding mOnth which shall indicate the total amount due to CDM for w°rk PerfOrmed for the preceding
month. The OWNER shall have the right ,of inspection and verification of CDM's invoice and shall have
five (5) days within which to approve the invoice.
7.1.4.
If the OWNER fails to make any payment due CDM for services and expenses within thirty (30) days
after receipt of CDM's statement therefor, the amount due. CDM shall include an additional charge of
one percent (1%) per month of all amounts due but not paid after said thirtieth day. As an additional
remedy, CDM may, after giving seven (7) days' written notice to the OWNER, suspend services under
this Agreement until CDM has been paid in full for all amounts due for services, expenses and charges.
OWNER agrees to pay CDM all costs of collection including but not limited to reasonable attorneys'
fees; collection fees and court costs incurred by CDM to collec~ properly due payments.
7.2.
Title Free of Liens. CDM agrees that title to all Work, including materials and equipment incorporated in the
Project covered by any invoice will pass to the OWNER upon receipt of payment of the full amount of CDM's
invoice therefor, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to as
Liens. CDM, at its own expense, shall indemnify, defend andsave harmless OWNER against Liens filed on the
property of OWNER by subcontractors, material men or suppliers of CDM for amounts due them from CDM for
Work, the cost of which has been paid by OWNER to CDM.
7.3. Waiver of Claims. The making of final payment shall constitute a waiver of all claims by OWNEReamptlhme
arising from:
7.3.1. ' Unsettled liens.
7.3.2. Defects in materials or workmanship appearing after final inspection.
7.3.3. Any breach of continuing obligations in this Agreement on the part of CDM.
ARTICLE 8 - INDEMNITY AND INSURANCE
8.1. Indemnity.
8.1.1.
In consideration of One Hundred Dollars ($100;00) separately allocated from the consideration paid
hereunder, to the fullest extent permitted by law, the receipt and sufficiency of which is acknowledged
by CDM's execution of this Agreement, CDM shall pay .on behalf of, indemnify and hold harmless and
defend OWNER, its officers, directors, employees, and agents from and against all claims, causes of
action, lawsuits, damages, losses and expenses, including, but not limited to, bodily injury, sickness,
disease or death, personal injury, or injury to .or destruction of tangible property, to the extent such
claims are.caused by CDM's; or any of the subcontractors or any other person or organization employed
by CDM, negligent acts during performance of the Work. This indemnity shall include reasonable
charges of engineers, attorneys, legal assistants, and other professionals, and costs of both defense and
appeal in a court of law, or arbitration, or other tribunal. This indemnification shall also include all
claims, damages, losses and expenses, including reasonable attorneys', experts' and legal assistants' fees
and costs, arising out of any infringement of patents or copyrights incident to providing Work. CDM
Page 12
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8A.2.
or
CDM be
damages of any kind.
under this paragraph
U tort
3WNER's sole
other party. In no event shall
for any indirect~ special or consequential
and
of the facilities,
8.2.
following insurance to cover CDM's performance under
8'.2.1. ws of the states
liability coverage with
minimum limits of liability
8.2.2. Comprehensive automobile liability insurance cOvering all owned, hired and non-owned vehicles with
the following minimum limits of liability:
Combined single limit - $1,000,000.each occurrence and $2,000,000 aggregate
Contractor s cove age with the
8.2.3. Comprehensive general liability insurance including Independent ' r
following minimum limits of liability:
Combined single limit - $1,000,000 each occurrence and $2,000,000 aggregate
CDM's comprehensive general liability policy shall also include blanket contractual liability coverage.
8.3. Professional Liability Insurance. CDM shall' maintain Professional Liability Insurance coverage for errors and
omissions for the engineering portion of the work in the amount of $3,000,000 aggregate.
8.4.
8.5.
Certificates. CDM shah furnish to OWNER promptly following the execution of this Agreement, certificates
evidencing the maintenance of said insurance. The certificates shall prowde that thlrty 00) days written nolac
shall be given to OWNER before the insurance policies noted herein are changed or canceled.
OWNER's Liability Insurance. The OWNER shall be responsible for purchasing liability insurance to protect
the OWNER against claims that may arise from operations under this Project. -
ARTICLE 9 - TERMINATION OF THE AGREEMENT
9.1
Termination by OWNER for Cause. If CDM persistently fails or neglects to carry out the Work in accordance
with this Agreement; the OWNER may give written notice that the OWNER intends to terminate this Agreement.
If CDM fails to correct or to take steps to correct the defaults, failure or neglect cited by the OWNER ia such
notice within seven (7) days after being given Such notice, the OWNER may then give a second written notice
and, after an additional seven (7) days if CDM fails to correct orto take steps to correct as aforesaid, the OWNER
may make good such deficiencies and may deduct the cost thereof from paymants due CDMLor, at the OWNER's
option, may terminate the employment of CDM, take possession of the site and finish the Work by whatever
method the OWNER maydeem expedient.
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Page 13
9.2.
Termination by OWNER Without Cause. In addition to termination under Article 9.1, OWNER shall have the
fight to terminate this Agreement, in whole or in part, without cause, upon thirty (30) days' written notice to the other
party. In the event of any such termination for convenience, CDM's sole and exclusive recovery against OWNER
shall be limited to that portion of CDM's compensation earned to the date of termination, together with any costs
reasonably incurred by CDM that are directly attributable to the termination as described below. CDM shall not be
entitled to any other or further recovery against OWNER, including, but not limited to, anticipated fees or profits on
services and services not required t° be perfOrmed. OWNER .shall pay to CDM fair compensation, either by
purchase or rental atthe election of the OWNER, for any equipment retained. In case of such termination of this
Agreement, the OWNER shall further assume and become liable .for obligations, commitments and unsettled
claims that CDM has previously undertaken or incurred in good faith in connection with said Work, actual
cancellation penalties for outstanding contracts and undelivered materials or equipment on orders, and any other
demobilization costs. CDM shall; as a condition of receiving the payments referred to in this Article, execute: and
legal assignment of its contractual fights, as the
OWNER ~ the OWNER the rights and benefits of CDM under such
obligations or commitments.
event of permanent abandonment of the Project, the OWNER may
(30) days' prior written notice to CDM, In such event, the
work performed or labor, materials
loss or damages sustained by CDM including but not limited
construction equipment and machinery.
9.2.2.
in this
fails to make payment when due, in addition to any other remedies
may give written notice of its intent to terminate this
payment of amounts due: within seven (7) days
a second written notice that the Agreement will
t in full for all amounts due prior to the
the
f0r proven losses sustained, including but not limited to
20% of all such
10.1.
Mediation.
Florida,
mediation
ARTICLE 10 - DISPUTE RESOLUTION
and all disputes and other matters in
breach 'thereof to mediation in
of the American Arbitration Association in Boynton Beach,
in a court of law. Participation in such
t in a writing
10.2.
10.3.
Claims and Disputes. Claims, disputes and other matters in question between the parties:to this Agreemem which
are not resolved by mediation or with respect to which mediation is waived by both parties, which arise out of or
relate to the Agreement or the breach thereof shall be decided by judicial proceeding in a court of law in Palm
Beach County, Florida. The parties agree to waive their rights to a jury trial.
Continuing Obligations. Unless otherwise agreed in writing, CDM shah carry on the Work and maintain its
progress dm~g any'me&ation or legal proceedings, and the OWNER shah continue to make payments to CDM
in accordance with the Contract Documents.
10.4. Survival of Provisions. This Article 10 shall survive the performance or termination of this Agreement.
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11.1.
ARTICLE 11 - MISCELLANEOUS
SuccesSors and Assigns. This Agreement shall be binding
of the OWNER or CDM~ Neither party shall aSsign, sublet or transfer a~
written consent of the other.
the
11.3
11.4
of, legal
~d
~tosuch
sub
to
in
OWNER
the
and
in a
federal
.o the site bY CDM,
11.5. documents to meet official .re or for other
lawc
11.6. Reporting Requirements. To the extent required by law, OWNER shall promptly report regulated conditions,
~ of releases of hazardous substances, at the site to the appropriate public
11.7. Governing Law. This Agreement shall be governed by the law of the State of Florida.
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11.8.
Mutual Waiver of Consequential Damages. Notwithstanding any other provision of this Agreement to the
contrary, neither party shall be liable to the other for lost profits or any special, indirect, incidental, or
consequential damages in any way arising out of this Agreement however caused under a claim of any type or
nature based on any theory of liability (including, but not limited to: contract, tort, or warranty) even if the
possibility of such damages has been communicated.
11.9.
Partial Invalidity. The invalidity of any part or portion of this Agreement shall not affect or impair in any way
the validity, enforceability or effect of the remaining provisions hereof. In the event any provision herein is found
to be invalid, then such provision shall be deemed to be deleted and all other provisions in the Agreement will
remain in full force and effect.
11.10. Entire Agreement. The documents which comprise the entire A4greement between OWNER and CDM concerning
the Work (referred to herein as the Contract Documents) consist of the following:
1. This Agreement (pages 1 to 16, inclusive).
Exhibits:
1. Project Description and Scope of Work
2. Schedule
3. Billing Rates
Them are no documents other than those listed above in this Article l 1.10. This Agreement may only be amended,
modified, or supplemented by written agreement duly executed by OWNER and CDM.
11.11. Notices. Except as written elsewhere in this Agreement, all written communications to OWNER and CDM shall
be sent with distribution to the recipient as set out below.
I. OWNER
2. CDM
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