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Agenda 07-01-14 Searchable The City of The City of Boynton Beach Boynton Beach 100 E. Boynton Beach Boulevard ● (561) 742-6000 TUESDAY, JULY 1, 2014 6:30 PM FINAL AGENDA City Commission AGENDA Jerry Taylor Mayor – At Large Joe Casello Vice Mayor – District IV David T. Merker Commissioner – District I Mack McCray Commissioner – District II Michael M. Fitzpatrick Commissioner – District Ill Lori LaVerriere City Manager James Cherof City Attorney Janet M. Prainito City Clerk Visit our Website www.boynton–beach.org America’s Gateway to the Gulfstream WELCOME Thank you for attending the City Commission Meeting GENERAL RULES & PROCEDURES FOR PUBLIC PARTICIPATION AT CITY OF BOYNTON BEACH COMMISSION MEETINGS THE AGENDA: There is an official agenda for every meeting of the City Commissioners, which determines the order of business conducted at the meeting. The City Commission will not take action upon any matter, proposal, or item of business, which is not listed upon the official agenda, unless a majority of the Commission has first consented to the presentation for consideration and action.  Consent Agenda Items: These are items which the Commission does not need to discuss individually and which are voted on as a group.  Regular Agenda Items: These are items which the Commission will discuss individually in the order listed on the agenda.  Voice Vote: A voice vote by the Commission indicates approval of the agenda item. This can be by either a regular voice vote with "Ayes & Nays" or by a roll call vote. SPEAKING AT COMMISSION MEETINGS: The public is encouraged to offer comment to the Commission at their meetings during Public Hearings, Public Audience, and on any regular agenda item, as hereinafter described. City Commission meetings are business meetings and, as such, the Commission retains the right to impose time limits on the discussion on an issue.  Public Hearings: Any citizen may speak on an official agenda item under the section entitled “Public Hearings.”  Public Audience: Any citizen may be heard concerning any matter within the scope of the jurisdiction of the Commission – Time Limit – Three (3) Minutes  Regular Agenda Items: Any citizen may speak on any official agenda item(s) listed on the agenda after a motion has been made and properly seconded, with the exception of Consent Agenda Items that have not been pulled for separate vote, reports, presentations and first reading of Ordinances – Time Limit – Three (3) minutes ADDRESSING THE COMMISSION: When addressing the Commission, please step up to either podium and state, for the record, your name and address. DECORUM: Any person who disputes the meeting while addressing the Commission may be ordered by the presiding officer to cease further comments and/or to step down from the podium. Failure to discontinue comments or step down when so ordered shall be treated as a continuing disruption of the public meeting. An order by the presiding officer issued to control the decorum of the meeting is binding, unless over-ruled by the majority vote of the Commission members present. Please turn off all pagers and cellular phones in the City Commission Chambers while the City Commission Meeting is in session. City Commission meetings are held in the Boynton Beach City Commission Chambers, 100 East Boynton Beach Boulevard, Boynton Beach. All regular meetings are held typically on the first and third Tuesdays of every month, starting at 6:30 p.m. (Please check the Agenda Schedule – some meetings have been moved due to Holidays/Election Day). 2 of 362 1. OPENINGS A. Call to order - Mayor Jerry Taylor B. Invocation by Commissioner David Merker C. Pledge of Allegiance to the Flag led by Commissioner Michael Fitzpatrick D. Agenda Approval: 1. Additions, Deletions, Corrections 2. Adoption 2. OTHER A. Informational Items by Members of the City Commission 3. ANNOUNCEMENTS, COMMUNITY & SPECIAL EVENTS & PRESENTATIONS A. Post-Legislative Update by Florida Senator Maria Sachs, District 34 B. Beginning July 7, 2014, City Hall hours of operation will be Monday through Friday, 8 a.m. to 5 p.m. C. Proclaim July as Parks & Recreation Month. D. The 4th of July Festivities will be held from 6:00 p.m. until 10:00 p.m. at Intracoastal Park. There will be free parking and shuttle service from Boynton Beach High School and the City Hall Parking Lot from 5:30 p.m. until 11:00 p.m. E. Budget Workshop dates/times for FY 14/15 Operating and Capital Budget - Monday – 7/21/14 beginning at 2:00 p.m.; Tuesday – 7/22/14 beginning at 10:00 a.m.; Wednesday – 7/23/14 beginning at 2:00 p.m. (if needed) in City Library Program Room 4. PUBLIC AUDIENCE INDIVIDUAL SPEAKERS WILL BE LIMITED TO 3 MINUTE PRESENTATIONS (at the discretion of the Chair, this 3 minute allowance may need to be adjusted depending on the level of business coming before the City Commission) 5. ADMINISTRATIVE A. Appoint eligible members of the community to serve in vacant positions on City advisory boards. The following openings exist: 3 of 362 Arts Commission: 1 regular and 1 alternate Building Board of Adjustment and Appeals: 2 alternates Cemetery Board: 1 alternate Education & Youth Advisory Board: 1 student N/V Financial Advisory Committee: 2 regulars and 2 alternates Golf Course Advisory Committee: 1 regular and 1 alternate Historic Resource Preservation Board: 2 alternates Library Board: 2 alternates Recreation and Parks Board: 1 alternates Veterans Advisory Commission: 1 alternates B. Approve changing the date of the second meeting in July from Tuesday, July 15th to Wednesday, July 16th to allow Mayor Taylor, City Manager Lori LaVerriere and Finance Director Tim Howard to attend a pension workshop from July 14-15, 2014. C. Appoint Voting Delegate for Florida League of Cities Annual Conference, August 14-16, 2014. D. Authorize City Commissioners to travel to the Florida League of Cities Annual Conference in Hollywood, FL, August 14-16, 2014. 6. CONSENT AGENDA Matters in this section of the Agenda are proposed and recommended by the City Manager for "Consent Agenda" approval of the action indicated in each item, with all of the accompanying material to become a part of the Public Record and subject to staff comments PROPOSED RESOLUTION NO. R14-050 A. - Approve and authorize signing of an Agreement for Water Service outside the City Limits with Griselot Pierre Gilles and Solance Pierre Gilles for the property at 1213 Peak Road, Lantana, FL. PROPOSED RESOLUTION NO. R14-051 B. - Assess the cost of nuisance abatement on properties within the City of Boynton Beach PROPOSED RESOLUTION NO. R14-052 C. - Approve and authorize the City Manager to sign a Subordination Agreement allowing for a subordination of the City's Mortgage for Audra McMillon nee Campbell of 324 N.E. 11th Avenue, Boynton Beach, Florida, 33435. PROPOSED RESOULTION NO. R14-053 D. - Supporting the Children's Services Council of Palm Beach County, Inc. reauthorization that will be on the ballot November 4, 2014 E. Accept the FY 2013-14 Budget Status Report of the General Fund & Utility Fund for the eight (8) month period ended May 31, 2014. 4 of 362 F. Approval of a Commercial Rent Reimbursement Grant in the amount of $12,000 to Leslie F. Coughlan G. Approve the minutes from the Regular City Commission meeting held on June 17, 2014 7. BIDS AND PURCHASES OVER $100,000 PROPOSED RESOLUTION NO. R14-054 A. - Authorize the City Manager to sign a contract with CDM Constructors Inc. for "PROGRESSIVE DESIGN BUILD FOR ION EXCHANGE RESIN PLANT AND EAST WATER TREATMENT PLANT IMPROVEMENTS"; as a result of RFP No. 006-2821-14/DJL in the amount of $1,131,770 for Phase 1 services, and a total project value of $30,000,000. PROPOSED RESOLUTION NO. R14-055 B. - Authorize the City Manager to execute individual contracts with three (3) firms for each of the four (4) scope categories, for a total of twelve (12) contracts as a result of RFQ No.: 017- 2821-14/DJL for General Consulting Services, individual task orders for projects will be issued and submitted to the Commission for approval in accordance with the City's Purchasing policies and procedures. PROPOSED RESOLUTION NO. R14-056 C. - Approve a contract with Man-Con, Incorporated for the Lake Boynton Estates Utility Improvements project, Bid No. 030-2821-14/DJL in the amount of $1,513,874.45 plus a 10% contingency of $151,387.45, if needed, for staff approval of change orders for unforeseen conditions for a total expenditure of $1,665,261.90. 8. CODE COMPLIANCE & LEGAL SETTLEMENTS A. Approve negotiated settlement in the amount of $45,000 in the case of Clifford Henfield vs. City of Boynton Beach 9. PUBLIC HEARING 7 P.M. OR AS SOON THEREAFTER AS THE AGENDA PERMITS The City Commission will conduct these public hearings in its dual capacity as Local Planning Agency and City Commission. PROPOSED ORDINANCE NO. 14-006 - SECOND READING - PUBLIC A. HEARING - Approve request for 500 Ocean rezoning (REZN 14-001) of subject property from Mixed Use-High (MU-H) with expired Master Plan for 378 multi- family residential units plus retail to Mixed Use-High (MU-H) with a new Master Plan for 341 multi-family residential units plus retail and office, located at 101 South Federal Highway. Applicant: Thomas Heyden/Morgan Boynton Beach (TABLED ON 5/20/14) LLC B. Approve request for New Site Plan approval to construct 341 dwelling units within five (5) and six (6) story buildings, retail space and associated 5 of 362 recreational amenities and parking on a 4.69-acre parcel located at 101 South (TABLED ON 5/20/14 Federal Highway. Applicant: John Wohlfarth, IBI Group. AND 6/17/14) 10. CITY MANAGER’S REPORT A. Accept The Links at Boynton Beach Golf Course Five (5) Year Strategic Plan as presented by Ron Tapper, Golf Course Manager and; PROPOSED RESOLUTION NO. R14-057 - Approve rate increases for cart & green fees, annual permits, Links club cards, and fees for other optional services at The Links at Boynton Beach Golf Course. 11. UNFINISHED BUSINESS None 12. NEW BUSINESS None 13. LEGAL PROPOSED ORDINANCE NO. 14-009 - SECOND READING - PUBLIC A. HEARING - Approve amendment to the Land Development Regulations (LDR) modifying minimum floor area ratio (FAR) for projects zoned Mixed Use-High (MU-H). PROPOSED ORDINANCE NO. 14-010 - SECOND READING - PUBLIC B. HEARING - Approve the removal of Garage Sale Permit requirements. 14. FUTURE AGENDA ITEMS A. Emergency Medical Transport Ordinance and Fee Schedule-TBD B. Extend the Little League Field maintenance agreement with the Boynton Beach Athletic Association (BBAA) 7-16-14. C. Receive report from City lobbyist on 2014 Legislative Session and discuss goals for 2015 - July 16, 2014 15. ADJOURNMENT 6 of 362 NOTICE IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THE CITY COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING, HE/SHE WILL NEED A RECORD OF THE PROCEEDINGS AND, FOR SUCH PURPOSE, HE/SHE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDING IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. (F.S. 286.0105) THE CITY SHALL FURNISH APPROPRIATE AUXILIARY AIDS AND SERVICES WHERE NECESSARY TO AFFORD AN INDIVIDUAL WITH A DISABILITY AN EQUAL OPPORTUNITY TO PARTICIPATE IN AND ENJOY THE BENEFITS OF A SERVICE, PROGRAM, OR ACTIVITY CONDUCTED BY THE CITY. PLEASE CONTACT THE CITY CLERK'S OFFICE (561) 742-6060 AT LEAST TWENTY-FOUR HOURS PRIOR TO THE PROGRAM OR ACTIVITY IN ORDER FOR THE CITY TO REASONABLY ACCOMMODATE YOUR REQUEST. ADDITIONAL AGENDA ITEMS MAY BE ADDED SUBSEQUENT TO THE PUBLICATION OF THE AGENDA ON THE CITY'S WEB SITE. INFORMATION REGARDING ITEMS ADDED TO THE AGENDA AFTER IT IS . PUBLISHED ON THE CITY'S WEB SITE CAN BE OBTAINED FROM THE OFFICE OF THE CITY CLERK 7 of 362 3. A ANNOUNCEMENTS, COMMUNITY & SPECIAL EVENTS & PRESENTATIONS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: June 3, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Post-Legislative Update by Florida Senator Maria EQUESTED CTION BY ITY OMMISSION Sachs, District 34 ER: Senator Sachs has requested an opportunity to provide a XPLANATION OF EQUEST post-Legislative update to the City Commissioners and citizens of Boynton Beach. H? A report will be provided on issues OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES that affect the City. FI: N/A ISCAL MPACT A: N/A LTERNATIVES 8 of 362 3. B ANNOUNCEMENTS, COMMUNITY & SPECIAL EVENTS & PRESENTATIONS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Beginning July 7, 2014, City Hall hours of operation EQUESTED CTION BY ITY OMMISSION will be Monday through Friday, 8 a.m. to 5 p.m. ER: Beginning July 7, 2014 the hours of operation for City Hall XPLANATION OF EQUEST will be 8 a.m. to 5 p.m., Monday through Friday, to continue providing high quality customer service to the City’s residents and customers. H? Citizens and customers will have OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES access to municipal services and staff during weekdays, Monday through Friday. FI: ISCAL MPACT A: LTERNATIVES 9 of 362 3. C ANNOUNCEMENTS, COMMUNITY & SPECIAL EVENTS & PRESENTATIONS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Proclaim July as Parks & Recreation Month. EQUESTED CTION BY ITY OMMISSION ER: National Parks & Recreation Month is scheduled for July. It XPLANATION OF EQUEST is a great time to enjoy many of the popular activities that are organized by the Recreation & Parks Department. The U.S. House of Representatives has designated July as Parks and Recreation Month. By making this proclamation in Boynton Beach, all citizens will be encouraged to celebrate by participating in their choice of fun activities and enjoy the benefits derived from quality public recreation. H? The proclamation will help promote OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES Parks and Recreation in our community. FI: N/A ISCAL MPACT A: Do not proclaim July as Parks & Recreation Month. LTERNATIVES 10 of 362 Proclamation WHEREAS, parks and recreation programs enhance our quality of life by contributing to a healthy lifestyle, increasing communications skills, building self-esteem, teaching life skills and providing places for enjoyment; and WHEREAS, parks and recreation programs boost our economy, enhance property values, attract new business, increase tourism, reduce crime, build family unity, strengthen neighborhood involvement, offer opportunities for social interaction, enhance education, develop creativity, and promote cultural diversity; and WHEREAS, our parks and natural recreation areas ensure the ecological beauty; provide a place for children and adults to connect with nature, help maintain clean air and water, and preserve plant and animal wildlife; and WHEREAS, recreation, therapeutic recreation, and leisure education are essential to the rehabilitation of individuals who have been ill or disabled; and WHEREAS, Boynton Beach recognizes the benefits derived from quality public and private recreation and park resources at the local level and local parks contribute to the overall quality of life enjoyed by residents and visitors to Boynton Beach; and WHEREAS, the National Recreation and Park Association and the Florida Recreation and Park Association and the State of Florida designated July as Recreation and Parks Month; NOW, THEREFORE, I, Jerry Taylor, by virtue of the authority vested in me as Mayor of the City of Boynton Beach, Florida, hereby proclaim July 2014 as: Parks and Recreation Month IN WITNESS WHEREOF, I have hereunto set my hand and caused the Seal of the City of st Boynton Beach, Florida, to be affixed at Boynton Beach, Florida the 1 day of July, Two Thousand and Fourteen. ____________________________________ Jerry Taylor, Mayor ATTEST: ____________________________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 11 of 362 3. D ANNOUNCEMENTS, COMMUNITY & SPECIAL EVENTS & PRESENTATIONS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS th RACC: The 4 of July Festivities will be held from 6:00 p.m. EQUESTED CTION BY ITY OMMISSION until 10:00 p.m. at Intracoastal Park. There will be free parking and shuttle service from Boynton Beach High School and the City Hall Parking Lot from 5:30 p.m. until 11:00 p.m. th ER: The City will again be hosting the annual 4 of July XPLANATION OF EQUEST Festivities at the beautiful Intracoastal Park. Along with the fireworks, children’s activities throughout the evening, the Ocoee River Band and JJ & the Connections will again be performing, before and after the fireworks. Shuttles will again be provided due to the limited parking that will be available at the park. Shuttle stops will be made at Boynton Beach High School and the City Hall parking lot beginning at 5pm until 11pm. H? This is a very popular annual OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES event. FI: Funding for the event is included in the City’s General Fund. ISCAL MPACT A: LTERNATIVES 12 of 362 3. E ANNOUNCEMENTS, COMMUNITY & SPECIAL EVENTS & PRESENTATIONS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Budget Workshop dates/times for FY 14/15 EQUESTED CTION BY ITY OMMISSION Operating and Capital Budget - Monday – 7/21/14 beginning at 2:00 p.m.; Tuesday – 7/22/14 beginning at 10:00 a.m.; Wednesday – 7/23/14 beginning at 2:00 p.m. (if needed) in City Library Program Room ER: Staff has scheduled the FY 14/15 Budget Workshops to XPLANATION OF EQUEST take place Monday through Wednesday, July 21 – 23, 2014. They will take place in the City’s Library Program Room : Monday – 7/21/14 Beginning at 2:00 p.m. Tuesday – 7/22/14 Beginning at 10:00 a.m. Wednesday – 7/23/14 Beginning at 2:00 p.m. (if needed) The Workshops will be advertised as Special Meetings per Sunshine Law. This will allow the Commission to adopt a Tentative Millage Rate for FY 2014/15 as well as the Preliminary Fire Assessment Rate Resolution. H? OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: ISCAL MPACT A: LTERNATIVES 13 of 362 5. A ADMINISTRATIVE July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Appoint eligible members of the community to EQUESTED CTION BY ITY OMMISSION serve in vacant positions on City advisory boards. The following openings exist: Arts Commission: 1 regular and 1 alternate Building Board of Adjustment and Appeals: 2 alternates Cemetery Board: 1 alternate Education & Youth Advisory Board: 1 student N/V Financial Advisory Committee: 2 regulars and 2 alternates Golf Course Advisory Committee: 1 regular and 1 alternate Historic Resource Preservation Board: 2 alternates Library Board: 2 alternates Recreation and Parks Board: 1 alternates Veterans Advisory Commission: 1 alternates . ER: The attached list contains the names of those who have XPLANATION OF EQUEST applied for vacancies on the various Advisory Boards. A list of vacancies is provided with the designated Commission member having responsibility for the appointment to fill each vacancy. H? Appointments are necessary to OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES keep our Advisory Boards full and operating as effectively as possible. FI: None ISCAL MPACT A: Allow vacancies to remain unfilled. LTERNATIVES 14 of 362 15 of 362 16 of 362 17 of 362 18 of 362 5. B ADMINISTRATIVE July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Approve changing the date of the second meeting EQUESTED CTION BY ITY OMMISSION thth in July from Tuesday, July 15 to Wednesday, July 16 to allow Mayor Taylor, City Manager Lori LaVerriere and Finance Director Tim Howard to attend a pension workshop from July 14-15, 2014. ER: Staff is requesting the date of the second meeting in July be XPLANATION OF EQUEST thth changed from Tuesday, July 15 to Wednesday, July 16 in order to allow the Mayor, City Manager and Finance Director to attend a pension reform workshop for public officials and decision-makers. The “How to Navigate Local Pension Reform” will be held at the Buena Vista Palace in Orlando, Florida from July 14-15, 2014. H? OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: N/A ISCAL MPACT A: LTERNATIVES 19 of 362 20 of 362 21 of 362 5. C ADMINISTRATIVE July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Appoint Voting Delegate for Florida League of EQUESTED CTION BY ITY OMMISSION Cities Annual Conference, August 14-16, 2014. ER: The annual Florida League of Cities conference will be held XPLANATION OF EQUEST at the Westin Diplomat Hotel in Hollywood, Florida. Each year the City Commission appoints a delegate to vote on behalf of the City of Boynton Beach at the annual meeting. See attached request. H? n/a OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: n/a ISCAL MPACT A: Do not appoint a delegate. LTERNATIVES 22 of 362 23 of 362 24 of 362 5. D ADMINISTRATIVE July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Authorize City Commissioners to travel to the EQUESTED CTION BY ITY OMMISSION Florida League of Cities Annual Conference in Hollywood, FL, August 14-16, 2014. ER: The annual Florida League of Cities conference will be held XPLANATION OF EQUEST at the Westin Diplomat Hotel in Hollywood, Florida, August 14-16, 2014. (Conference Brochure attached) Registration deadline is August 1, 2014. In accordance with R07-150, establishing the travel policy for the City Commission, the City Commission by a majority of its members shall approve travel for each member of the City Commission. (Resolution Attached) H? n/a OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: Registration for the conference is $425 per commissioner ISCAL MPACT (1=$425,2=$850,3=$1,275,4=$1,700,5=$2,125), there are funds budgeted and available under 001-1110-511-4012. A: Do not authorize any Commissioners to travel to Conference LTERNATIVES 25 of 362 26 of 362 27 of 362 28 of 362 29 of 362 30 of 362 31 of 362 32 of 362 33 of 362 34 of 362 35 of 362 36 of 362 37 of 362 38 of 362 39 of 362 40 of 362 41 of 362 42 of 362 43 of 362 44 of 362 45 of 362 6. A CONSENT AGENDA July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED RESOLUTION NO. R14-050 - EQUESTED CTION BY ITY OMMISSION Approve and authorize signing of an Agreement for Water Service outside the City Limits with Griselot Pierre Gilles and Solance Pierre Gilles for the property at 1213 Peak Road, Lantana, FL. ER: Water service areas have been designated between the XPLANATION OF EQUEST County and local utilities. This was accomplished under agreement #85-757 and revised under City Resolution #00-123, Palm Beach County Agreement R2000-1534. The property covered by this Agreement is located in unincorporated Palm Beach County area outside of the City limits in our water service area north of Miner Rd between N. Seacrest Blvd. and N. Federal Hwy. The property historically receives water from a well and the owner now requests that we provide potable water in the future. H? The City is able to provide water to OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES the property resulting from water main improvements constructed by Palm Beach County. The owner agrees to be responsible for all costs to provide service to the owner’s premises. No additional construction is required by the City to serve this property. FI: Customers outside the City limits pay an additional 25% surcharge ISCAL MPACT above the water rates charged to customers within the City. 46 of 362 A: Deny request to provide service. If service is denied the Consumptive LTERNATIVES Use Permit could be subject to modification. The Utility Department is granted water allocation under the South Florida Water Management District Consumptive Use Permit. The current permit has limiting restriction #19 that states “The Permittee shall notify the District within 30 days of any change in service area boundary. If the Permittee will not serve a new demand within the service area for which the annual allocation was calculated, the annual allocation may then be subject to modification and reduction”. 47 of 362 RESOLUTION NO. R14- A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING EXECUTION OF AN AGREEMENT FOR WATER SERVICE OUTSIDE THE CITY LIMITS AND COVENANT FOR ANNEXATION BETWEEN THE CITY OF BOYNTON BEACH AND GRISELOT PIERRE GILLES AND SOLANGE PIERRE GILLES; PROVIDING AN EFFECTIVE DATE. WHEREAS, the subject property is located outside of the City limits, but within our water and sewer service area, at 1213 Peak Road, Lantana, Florida (PCN: 00-43-45-09-09-000- 2520); and WHEREAS , the parcel covered by this agreement includes a single-family home located in unincorporated Palm Beach County portion of the City’s utility service area; and WHEREAS , the property historically receives water from a well and the owner now requests that the City provide potable water in the future; and WHEREAS , no additional construction will be required by the City to serve this property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. Section 2. The City Commission hereby authorizes and directs the City Manager to sign a Water Service Agreement between the City of Boynton Beach, Florida and Griselot Pierre Gilles and Solange Pierre Gilles, a copy of said Agreement is attached hereto as Exhibit "A". Section 3. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this _____ day of July, 2014. 48 of 362 CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor _______________________________ Vice Mayor – Joe Casello _______________________________ Commissioner – David T. Merker ________________________________ Commissioner – Mack McCray _______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: ____________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 49 of 362 50 of 362 51 of 362 52 of 362 53 of 362 54 of 362 55 of 362 56 of 362 57 of 362 58 of 362 6. B CONSENT AGENDA July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED RESOLUTION NO. R14-051 - EQUESTED CTION BY ITY OMMISSION Assess the cost of nuisance abatement on properties within the City of Boynton Beach ER: In accordance with the Municipal Lien Procedure on file in XPLANATION OF EQUEST the City of Boynton Beach, the attached list contains the addresses of properties cited by Code Compliance for nuisances abated by a City-contracted vendor. Finance sent an invoice to each property owner. There was no response within the required 30-day period. Copies of the invoices were then forwarded to the City Clerk’s Office for continuation of the procedure. The property owners were again issued a copy of the invoice and a letter which offered an opportunity to pay the invoice within an additional 30-day period. The attached list contains the names of the property owners who have still not responded to our correspondence. At this point in the procedures, authorization is requested to record liens against these properties in the public records of Palm Beach County within 30 days of adoption of the Resolution. Prior to sending the Resolution to the County for recording, the City Clerk will send another letter to each property owner notifying them they have another 30 days to pay the invoice before the Resolution is sent for recording. An additional administrative fee of $30 will be added to the assessment when the Resolution is sent to the County for recording. Thirty days after the Resolution is recorded, the property owners will receive, by certified mail, a copy of the Resolution and another letter stating the unpaid balance will accrue interest at a rate of 8% per annum. 59 of 362 H? OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: This process allows us to place liens on the properties in order to ISCAL MPACT reimburse the City for the services that were provided when the nuisances were abated. A: The alternative would be to not place liens on the properties and not LTERNATIVES collect for the service provided. 60 of 362 RESOLUTION NO. R14- A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA ASSESSING THE COSTS OF ABATEMENT OF CERTAIN NUISANCES AGAINST THE OWNERS OF THE PROPERTIES INVOLVED; AND PROVIDING AN EFFECTIVE DATE. WHEREAS , a contract vendor was requested by Code Compliance to mow the lots, remove vegetation and board up structures on the properties, described in Exhibit “A”; and WHEREAS , the owners of the parcel(s) of property hereinafter described were invoiced by the Finance Department in an effort to recoup these costs with no response; and WHEREAS, said nuisance was not abated as required; and, WHEREAS , all of the property owners listed in the attached Exhibit “A” were sent letters offering them an opportunity to remit within 30 days in order to avoid incurring a lien on their property; and WHEREAS , the City Manager or her authorized representative has made a report of costs actually incurred by the City and abatement of said nuisance as to the property(s) involved, which is described in Exhibit “A” attached to this Resolution; and WHEREAS, upon passage of this Resolution, the property owners will be furnished with a copy of this Resolution, and given one more opportunity to remit all costs associated with the abatement in full within 30 days of the passage of the Resolution, before transmittal to the County for recordation of Liens; and Now, therefore, be it resolved by the city commission of the city of boynton beach, Florida as follows: Section 1: Each Whereas clause set forth above is true and correct and incorporated herein by this reference. Section 2: The amount of costs incurred by the City and the abatement of the above- described nuisance as to the parcels of land, owned and indicated to wit: SEE ATTACHED EXHIBIT “A” Subject amount is hereby assessed as liens against said parcels of land as indicated, plus an additional administrative charge of $30.00 for each Lien. Liens shall be of equal dignity with the taxes there from for the year 2014, and shall be enforced and collected in like manner pursuant to applicable provisions of law. In 61 of 362 the event collection proceedings are necessary, the property owner shall pay all costs of the proceedings, including reasonable attorneys fees. Section 3. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this _____ day of July, 2014. CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor _______________________________ Vice Mayor – Joe Casello _______________________________ Commissioner – David T. Merker _______________________________ Commissioner – Mack McCray ATTEST: _______________________________ Commissioner – Michael M. Fitzpatrick _____________________________ Janet M. Prainito, MMC City Clerk {Corporate Seal} 62 of 362 63 of 362 6. C CONSENT AGENDA July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED RESOLUTION NO. R14-052 - EQUESTED CTION BY ITY OMMISSION Approve and authorize the City Manager to sign a Subordination Agreement allowing for a th subordination of the City's Mortgage for Audra McMillon nee Campbell of 324 N.E. 11 Avenue, Boynton Beach, Florida, 33435. ER: The City has been asked to subordinate the City’s ten XPLANATION OF EQUEST (10) year Second Mortgage in the amount of $21,200.00 which was granted July, 2004 and will expire July, 2014. Audra Campbell, now McMillon, purchased her home through the City’s First Time Homebuyer Program in 2004; her current mortgage was financed at that time with Branch Banking & Trust for $120,000 at 6.375%, maturing in August of 2034. Mrs. McMillon wants to refinance her home to a current 15 year, conventional mortgage for $106, 250 for 3.5%. Doing so, she will reduce her monthly payment by $69.45 and the remainder of her primary mortgage term by five (5) years. If the Commission approves the request, the City’s Second Mortgage will be subordinate to the new (refinanced) mortgage. H? There is no affect to City OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES programs or services; Mrs. McMillon is merely taking advantage of a provident situation to lower her housing costs. The City is already in Second position to the original mortgage. 64 of 362 FI: There is no fiscal impact. The City’s Second Mortgage is due to be ISCAL MPACT satisfied (fully forgiven) July, 2014. A: Not to subordinate the mortgage. Not recommended as Ms. LTERNATIVES McMillon might lose the favorable refinancing terms currently available. 65 of 362 RESOLUTION NO. R14- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING THE SUBORDINATION OF THE CITY’S MORTGAGE WITH AUDRA CAMPBELL N/K/A MCMILLON IN FAVOR OF NEW PENN FINANCIAL LLS; AUTHORIZING THE CITY MANAGER TO EXECUTE THE SUBORDINATION AGREEMENT BY THE CITY OF BOYNTON BEACH IN FAVOR OF NEW PENN FINANCIAL LLS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, upon recommendation of staff, the City Commission has determined that it is in the best interests of the residents of the City to authorize the City Manager to execute a Subordination Agreement in favor of New Penn Financial LLS., for Audra Campbell. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. Section 2. The City Commission of the City of Boynton Beach, Florida does hereby approve the request for subordination of the City’s Mortgages and authorize the City Manager to execute the Subordination Agreement for Audra Campbell n/k/a McMillon in favor of New Penn Financial LLS., a copy of which is attached hereto as Exhibit “A”. Section 3. This Resolution shall become effective immediately upon passage. 66 of 362 PASSED AND ADOPTED this _____ day of July, 2014. CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor ______________________________ Vice Mayor – Joe Casello ______________________________ Commissioner – David T. Merker _______________________________ Commissioner – Mack McCray _______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: _________________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 67 of 362 This Instrument Prepared by: Stacey R. Weinger, Esquire GOREN, CHEROF, DOODY AND EZROL, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (the “Agreement”) is made this _____ day of ___________, 2014 by the City of Boynton Beach, a Florida municipal corporation, (the "CITY") in favor of New Penn Financial LLS (“NEW PENN”). W I T N E S S E T H: WHEREAS, the CITY is the owner and holder of that certain promissory note and mortgage in the original principal amount of Twenty One Thousand Two Hundred and 00/100 Dollars ($21,200.00), executed on July 19, 2004, which Mortgage was recorded on July 26, 2004 in Official Records Book 17304, Page 0264 of the Public Records of Palm Beach County, Florida (hereinafter referred to as the “Mortgage”) by Audra Campbell, a single woman (“Mortgagor”), and WHEREAS, Mortgagor is the owner in fee simple of the following described real property (the “Property”), which Property is encumbered by the Mortgage: Lot 4, Block 4, MEEKS AND ANDREWS ADDITION, according to the Plat thereof, as recorded in Plat Book 5, Page 84 of the Public Records of Palm Beach County, Florida. Parcel Control No. 08-43-45-21-22-004-0040 WHEREAS, NEW PENN has agreed to refinance the Mortgagor’s loan, and grant a mortgage loan to the Mortgagor in the amount of $106,250.00 to be secured by a first mortgage encumbering the Property (hereinafter the “New Mortgage”), provided that the CITY’s Mortgage, currently in second position, is subordinated to the New Mortgage; THEREFORE, in consideration of the sum of Ten Dollars and 00/100 ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the CITY hereby represents, covenants and agrees as follows: 1. The foregoing recitals are true and correct and incorporated herein as if set forth in full. 2. The Mortgage has not been assigned, pledged or transferred in any manner whatsoever other than as set forth above. 3. The Mortgage is and shall be subject, subordinate, junior and inferior to the New Mortgage in the principal amount of $106,250.00 given by Mortgagor to NEW PENN, of even date and simultaneously recorded herewith in the Public Records of Palm Beach County, Florida. This subordination is only to the extent of the $106,250.00 loan and does not apply to any addition or future advances which may be made under the New Mortgage. 4. This Agreement shall bind and inure to the benefit of the parties hereto, their respective heirs, successors and/or assigns. 68 of 362 IN WITNESS WHEREOF the undersigned has duly executed this Agreement on _________________, 2014. CITY OF BOYNTON BEACH, a Signed, sealed and delivered Florida municipal corporation in the presence of: ____________________________ _______________________________ By: Lori LaVerriere, City Manager ____________________________ STATE OF FLORIDA COUNTY OF PALM BEACH Lori LaVerriere, The foregoing instrument was acknowledged before me on this day of July, 2014 by City Manager of theCity of Boynton Beach , on behalf of the CITY, who is either personally known to me or has produced a Florida Driver’s License as identification. ________________________________ NOTARY PUBLIC 69 of 362 6. D CONSENT AGENDA July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED RESOULTION NO. R14-053 - EQUESTED CTION BY ITY OMMISSION Supporting the Children's Services Council of Palm Beach County, Inc. reauthorization that will be on the ballot November 4, 2014 ER: The Children’s Services Council (CSC) is a special district XPLANATION OF EQUEST approved by 70 percent of Palm Beach County voters in 1986, to provide leadership, funding, services and research to the county’s children. The main focus of the CSC is on prenatal health and early childhood development so that more children are born healthy, are safe from abuse and neglect, are ready to learn when they enter school and have access to quality afterschool and summer programs. The City Commission adopted RESOLUTION NO. R10-044, on April 6, 2010, supporting the continued existence of the Children’s Services Council of Palm Beach County. That same year, a state law was enacted that required that the Children’s Services Council (CSC) go before the voters of Palm Beach County for reauthorization in a general election by 2016. The board of the CSC voted December 5, 2013, to ask the Palm Beach County Commission to place reauthorization of the organization on the November 2014 ballot. Reauthorization will allow the CSC to continue operating as it has since its conception 27 years ago. FI: N/A ISCAL MPACT A: Do not approve the resolution. LTERNATIVES 70 of 362 RESOLUTION NO. R14-_____ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA SUPPORTING THE CHILDREN’S SERVICES COUNCIL OF PALM BEACH COUNTY, INC., REAUTHORIZATION THAT WILL BE ON THE NOVEMBER 4, 2014 BALLOT; PROVIDING AN EFFECTIVE DATE. WHEREAS , the Children’s Services Council of Palm Beach County was established by voters in 1986 as a special district to improve the lives of children and families in Palm Beach County; and WHEREAS , the Children’s Services Council provides leadership, funding, services and research on behalf of the county’s children, so they grow up healthy, safe, and strong; and WHEREAS , the Children’s Services Council provides early learning and reading skills, developmental, treatment, preventative and other children services in Palm Beach County; and WHEREAS , the Children’s Services Council, to make the biggest impact, focuses on prenatal health and early childhood development and afterschool programs so more Palm Beach County children are born healthy, are safe from neglect and abuse, are ready to learn when they enter school, and have access to quality afterschool and summer programing; and WHEREAS , by the Children’s Services Council giving children the fundamental tools for success early in life, they are more likely to reach vital growth and developmental milestones, graduate from high school and become productive members of society; and WHEREAS , the Children’s Services Council accomplishes its goals by funding local nonprofit community agencies to provide proven, high-quality services to the county’s children and families, reaching more than 400,000 children and families in 2012 through more than 50 programs and initiatives. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AS FOLLOWS: Section 1. The foregoing “Whereas” clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. Section 2. The City Commission of the City of Boynton Beach, Florida hereby supports the Children’s Services Council of Palm Beach County, its mission and activities. Section 3. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED by the City of Boynton Beach, this _____ Day of July, 2014. CITY OF BOYNTON BEACH, FLORIDA 71 of 362 ______________________________ Mayor – Jerry Taylor _______________________________ Vice Mayor – Joe Casello _______________________________ Commissioner – David T. Merker ________________________________ Commissioner – Mack McCray _______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: _____________________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 72 of 362 6. E CONSENT AGENDA July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Accept the FY 2013-14 Budget Status Report of EQUESTED CTION BY ITY OMMISSION the General Fund & Utility Fund for the eight (8) month period ended May 31, 2014. Explanation of Request :This report summarizes the estimated funding sources and the adopted expenditure budgets for the City’s General Fund and Utility Fund for the eight (8) month period ended May 31, 2014 (67% of the fiscal year). The analysis compares:  Actual results for the current period to the annual budget and  Actual results for the same period of the prior year annual budget. H? The annual budget is what OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES provides and controls the resources for City programs and services. FI: The annual budget and results to date for the General Fund and Utility ISCAL MPACT Fund. 73 of 362 GENERAL FUND FY 2013-14FY 2012-13FY 2014 vs. 2013 Annual Annual Actual to DateActual to Date BudgetActual BudgetBudget Amount%Amount%%% Revenues & Transfers$ 71,267$ 57,36080%$ 69,643$ 54,82679%2%5% Expenditures$ (71,267)$ (48,961)69%$ (69,643)$ (47,299)68%2%4% Excess (Deficit)$ -$ 8,399$ -$ 7,527 Revenues & Transfers (Exhibit A) – Budgeted Funding Sources: Property taxes and other revenues provide funding sources of $54.3 M or 76% of our total $71.2 M General Fund budget estimate for FY 2013-14. Transfers from other funds (non- revenues) provide $16.9 M or 24% of the total funding sources to balance our $71.2 M General Fund budgeted expenditures. These three major estimated funding sources are summarized as follows: 1. 36% - $ 25.3 M – Property taxes less Tax Increment Financing to the CRA 2. 40% - $ 29.0 M – All other revenues plus General Fund Balance 3._24% - $ 16.9 M – Transfers from other funds 100% - $ 71.2 M – Total funding sources The property tax rate for FY 2013-14 was increased from 7.6000 mills to 7.9000 mills; the net property taxes of $29.7 M in FY 2013-14 represent a 10% increase in property tax revenue or an increase of $2.7 M from FY 2012-13. To balance the budget in FY 2013-14, it required transfers from other funds of $16.9 M representing 24% of all funding sources. Actual Funding Sources Realized: At the end of the eighth month in FY 2013-14, revenues and transfers realized are approximately $57.3 M of the budget estimate compared to $54.8 M realized to date in FY 2012-13. Ad Valorem Taxes, net of discounts and TIF taxes to the CRA , received to date was $24.1 M as compared to $21.9 M for FY 2012-13, as noted on Exhibit A. Other Revenues: The four major revenue sources other than property taxes: Franchise Fees 1. realized was $2.9 M or 67% actual collected compared to $2.8 M or 62% in FY 2012-13. Business Taxes 2. are due at the beginning of the fiscal year. For FY 2013-14, approximately $1.38 M or 99% has been collected compared to the FY 2012-13 amount of $1.3 M or 96%. State Shared revenues 3. of $4.8 M or 69% have been collected in FY2013-14 as compared to $4.5 M or 68% received in FY 2012-13. Public Safety revenues 4. at this point is ahead of the budgeted amount; $3.4 M or 84% was received compared to $3.1 M or 79% for FY 2012-13. 74 of 362 Special Assessment revenues, 5. related to Fire and Rescue, in the amount of $4.68 M or 94% has been collected compared to $4.6 or 94% in FY 2012-13. Transfers from Other Funds: Current practice is to transfer 1/12 of the budgeted transfers from other funds each month. This will result in 100% realization of this funding source for the year. Expenditures (Exhibit B) Budgeted Expenditures: Overall, appropriations increased approximately 2.3% from $69.6 M to $71.2 M. The budget increase was due to the cost of doing business, providing funding for additional landscaping, wage increases and increases for insurance costs. Actual Expenditures – General Fund expenditures for the eighth month period ending May 31 (67% of the fiscal year) are $48.9 M that is 69% of the $71.2 M expenditure appropriation for FY 2013-14. The table at the top of Exhibit B displays actual expenditures of $48.9 M or 69% of the FY 2013-14 budget. At this point in the fiscal year, spending levels are slightly ahead compared to the $47.3 M or 68% actual spending levels in FY 2012-13 for this same period. UTILITY FUND The FY 2013-14 annual expenditure budget of $39.1 M represents a $1.4 M increase from the FY 2012-13 budget of $37.7 M. The operational forecast reflects an increase of an estimated $49K into the fund balance for FY 2013-14. FY 2013-14FY 2012-13FY 2014 vs. 2013 Annual Annual Actual to DateActual to Date BudgetActual BudgetBudget Amount%Amount%%% Revenues & Transfers$ 39,167$ 27,88571%$ 37,719$ 25,43767%4%10% Expenditures$ (39,167)$ (25,664)66%$ (37,719)$ (24,510)65%4%5% Excess (Deficit)$ -$ 2,221$ -$ 927 For the eight month period in FY 2013-14,  Revenues realized are $27.8 M (71%) of the annual budget estimate.  Expenditures incurred are $25.6 M (58%) of the annual appropriated budget. This resulted in revenues in excess of expenditures yielding a surplus of approximately $2.2 M. The following provides brief comments on the Utility Fund revenues and expenditures to date. 75 of 362 Revenues (Exhibit C) - The $27.8 M in FY 2013-14 actual revenues and fund balance have increased over the $25.4 M in FY 2012-13, because of two factors:  Water Sales - $12.9 M equivalent to 72% of the annual estimate, compared to $12.0 M or 67% at this point in FY 2012-13.  Water Service Charge - $710 K equivalent to 158% of the annual estimate, compared to $293 K at this point in FY 2012-13, due to stricter enforcement of fees associated with delinquent accounts and the reconnection of water service.  Sewer Service - $11.6 M equivalent to 69% of the annual estimate, compared to $11.2 M or 67% at this point in FY 2012-13.  In FY 2013-14, $ 49 K is being recognized as an added increase to fund balance, compared to an added increase of $ 1.2 M in FY 2012-13. Expenditures (Exhibit D) – Utility Fund FY 2013-14 expenditures to date are $25.6 M or 66% of the annual appropriation compared to expenditures of $24.5 M or 65% for the prior fiscal year. A: Discuss this Budget Status Report or request clarification at the City LTERNATIVES Commission meeting. 76 of 362 77 of 362 78 of 362 79 of 362 80 of 362 6. F CONSENT AGENDA July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Approval of a Commercial Rent Reimbursement EQUESTED CTION BY ITY OMMISSION Grant in the amount of $12,000 to Leslie F. Coughlan. ER: Leslie F. Coughlan, an independent nurse practioner, submitted an XPLANATION OF EQUEST application for grant funding through the Commercial Rent Reimbursement Grant Program administered by the Division of Econonmic Development. The grant program offers financial assistance up to $12,000 in the form of rent payment reimbursement for up to half of the business’s monthly rent or $1,000.00 per month, whichever is less. Staff is recommending approval of Ms. Coughlan application in the amount of $12,000, the maximum amount allowed under the program guidelines. In addition to Ms. Coughlan’s position, there are two other positions currently filled at the medical office and another 1.5 full time jobs planned to be created in the near future. H? As part of the City’s Economic OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES Development Program, incentives have been set aside to assist business creation and expansion into the City through this grant program. The program has been designed to provide financial assistance to new and existing businesses during the critical first or expansion year of operation. FI: $12,000 from Incentive Fund 122-2418-554.49-68 ISCAL MPACT A: Approve lesser funding or deny award. LTERNATIVES 81 of 362 82 of 362 83 of 362 84 of 362 85 of 362 86 of 362 6. G CONSENT AGENDA July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Approve the minutes from the Regular City EQUESTED CTION BY ITY OMMISSION Commission meeting held on June 17, 2014 The City Commission met on June 17, 2014 and minutes were prepared from the notes taken at the meetings. The Florida Statutes provide that minutes of all Commission meetings be prepared, approved and maintained in the records of the City of Boynton Beach. H? A record of the actions taken by OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES the City Commission will be maintained as a permanent record. FI: N/A ISCAL MPACT A: N/A LTERNATIVES 87 of 362 88 of 362 89 of 362 90 of 362 91 of 362 92 of 362 93 of 362 94 of 362 95 of 362 96 of 362 97 of 362 98 of 362 99 of 362 100 of 362 101 of 362 102 of 362 103 of 362 104 of 362 7. A BIDS AND PURCHASES OVER $100,000 July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED RESOLUTION NO. R14-054 - EQUESTED CTION BY ITY OMMISSION Authorize the City Manager to sign a contract with CDM Constructors Inc. for "PROGRESSIVE DESIGN BUILD FOR ION EXCHANGE RESIN PLANT AND EAST WATER TREATMENT PLANT IMPROVEMENTS"; as a result of RFP No. 006-2821-14/DJL in the amount of $1,131,770 for Phase 1 services, and a total project value of $30,000,000. ER: On May 20 the City Commission approved the list of ranked XPLANATION OF EQUEST proposers as determined by the Evaluation Committee in response to the Request for Proposals for the “Progressive Design Build for Ion Exchange Resin Plant and East Water Treatment Plant Improvements”, 006-2821-14/DJL and authorized staff to commence negotiations with the top ranked qualifier. As a result of these negotiations staff is recommending a contract with CDM Constructors, Inc., to provide Phase I Services which includes value engineering of base design, design services for permitting, site investigation and surveying and limited demolition. The contract also includes a Design-Build fee which is the Design-Builders overhead and profit for the project. As a result of these negotiations this is fixed within this contract at 5.95%, compared to the original submission submitted by this firm of 9.8%. The delivery process chosen for this project will allow the City to review multiple alternatives for each process component to provide the required water, meeting permit constraints, at the lowest cost. All options will be reviewed and those that are feasible will have their cost estimated by the team. The cost estimates will then be used to select the final design and subsequently the Guaranteed Maximum Price (GMP). 105 of 362 Phase I will enable the City and the Design-Builder to develop a GMP for the completion of the project. This price will be presented to the Commission as a change order for approval. If an acceptable GMP cannot be negotiated, the City will have the option to not accept the GMP, accept ownership of all work to date and proceed to completion of the project utilizing separate design and construction contracts utilizing a Design/Bid/Build procurement methodology. The GMP will be developed on an open book basis allowing staff to see all project costs, bids or estimates used to determine price. All portions of the project identified for competitive bidding will include either a bid price or a not to exceed allowance for the project component. The proposed contract includes the current budget for Phase II of the project which will be adjusted with a change order with the approval by Commission of the final GMP. H? The use of Progressive Design OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES Build as a contracting mechanism has significant advantages to the City of Boynton Beach compared to the traditional Design, Bid, Build methodology. This project contains complex technical processes and critical coordination requirements between the two water plants which can be efficiently addressed by retaining a designer and contractor under one contract teamed with City staff to deliver a cost efficient project. This project delivery method removes the adversarial nature that is typical when separate contracts are issued for design and construction with each team managing risks to meet their needs. Instead each team member, the Design Engineer, General Contractor and the City, work together as a team on all aspects of the work developing a quality project at the lowest possible cost. All risks are shared equally amongst the team members so that maximum savings can be achieved within a quick project delivery schedule. Because of these factors Progressive Design Build is becoming a favored method of project delivery. Completion of the project will meet both the long term water supply plan of the Utility and also our obligations under the Consumptive Use Permit (CUP) issued by the South Florida Water Management District. FI: Funding for this project is approved in the Utility CIP under the following ISCAL MPACT funds:- 403-5010-533-65.02 WTR 112 403-5000-533-65.02 WTR 404-5000-533-65.01 WTR 136 404-5000-533-96.01 WTR 136 404-5000-533.65.01 WTR 112 A: This project is required by current consumptive use permits to meet the LTERNATIVES new groundwater withdrawal constraints. The City has completed several studies reviewing other types of projects that could be implemented to meet the permit conditions, and the currently scoped project was determined to be the most cost effective method of meeting the regulatory requirements. The City could also choose to cancel the project and attempt to renegotiate a CUP or fail to meet the current permit requirements. This option may result in an administrative order requiring the City to meet permit requirements. 106 of 362 RESOLUTION NO. R14- A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING A CONTRACT WITH CDM CONSTRUCTORS, INC., FOR “PROGRESSIVE DESIGN BUILD FOR ION EXCHANGE RESIN PLANT AND EAST WATER TREATMENT PLANT IMPROVEMENTS” AS A RESULT OF RFP NO 006-2821-14/DJL IN THE AMOUNT OF $1,131,770 FOR PHASE 1 SERVICES AND A TOTAL PROJECT VALUE OF $30,000,000; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on May 20, 2014, the City Commission approved the list of ranked proposers as determined by the Evaluation Committee in response to the Request for Proposals for the “Progressive Design Build for Ion Exchange Resin Plant and East Water Treatment Plant Improvements” RFP 006-2821-14/DJL and authorized staff to commence negotiations with the top ranked qualifier; and WHEREAS, as a result of the negotiations staff is recommending a contract with CDM Constructors, Inc., to provide Phase I Services which includes value engineering of base design, design services for permitting, site investigation and surveying and limited demolition; and WHEREAS, the City Commission of the City of Boynton Beach upon recommendation of staff, deems it to be in the best interest of the citizens of the City of Boynton Beach to approve a contract with CDM Constructors, Inc., for “Progressive Design Build for Ion Exchange Resin Plant and East Water Treatment Plant Improvements as a result of RFP No. 006-2821-14/DJL in the amount of $1,131,770 for Phase 1 services, and a total project value of $30,000,000. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT : Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. Section 2. The City Commission of the City of Boynton Beach, Florida does hereby 107 of 362 approve a contract with CDM Constructors, Inc., for “Progressive Design Build for Ion Exchange Resin Plant and East Water Treatment Plant Improvements as a result of RFP No. 006- 2821-14/DJL in the amount of $1,131,770 for Phase 1 services, and a total project value of $30,000,000, a copy of which is attached hereto as Exhibit “A”. Section 3. The City Manager is authorized to execute the contract on behalf of the City Commission. Section 4. This Resolution shall become effective immediately upon passage. {REMAINDER OF PAGE INTENTIONALLY LEFT BLANK} 108 of 362 PASSED AND ADOPTED this _____ day of July, 2014. CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor ______________________________ Vice Mayor – Joe Casello ______________________________ Commissioner – David T. Merker _______________________________ Commissioner – Mack McCray _______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: _____________________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 109 of 362 PROGRESSIVE DESIGN/BUILD AGREEMENT FOR WATER AND WASTEWATER PROJECTS AGREEMENT This is made effective as of ________, 2014, by and between the following ___ parties, for services in connection with the Project identified below: OWNER: (Name and address) The City of Boynton Beach, Florida 100 E. Boynton Beach Boulevard PO Box 310 Boynton Beach, FL 33425-0310 DESIGN-BUILDER: (Name and address) CDM Constructors Inc. 1601 Belvedere Road, Suite 400E West Palm Beach, FL 33406 PROJECT: Progressive Design-Build Ion Exchange Resin Plant and East Water Treatment Plant Improvements WHEREAS, the CITY solicited proposals from qualified Design-Build Firms to provide the installation of the Ion Exchange resin plant at the West Water Treatment Plant (WWTP) site for pre- treatment of the water supply to the East Water Treatment Plant (EWTP) from the western well field and the upgrading of the EWTP to a capacity of 24MGD. WHEREAS, pursuant to Section 287.055, Florida Statutes, the City of Boynton Beach solicited proposals for non-exclusive Contracts to perform professional services, and WHEREAS, at its meeting ___________, 2014 by Resolution No.: _______, the CITY Commission authorized the proper CITY officials to execute this Contract hereinafter referred to as Contract No.: 006-2821-14/DJL; and WHEREAS, CITY and DESIGN-BUILDER, in reliance on the proposals set forth in the RFP and as later approved and ratified by the CITY as herein above described, now desire to enter into this Agreement respecting the Project; and WHEREAS, CITY has determined that entering into this Agreement with DESIGN-BUILDER for the design and construction of the Project contemplated by this Agreement is in the best interests of the health, safety, and welfare of the citizens and residents of the CITY of Boynton Beach, Florida; and 110 of 362 WHEREAS, because there will be inherent efficiencies and economies achieved by the CITY which will be in the best interest of the health, safety and welfare of the citizens and residents of and the CITY of Boynton Beach, Florida, the CITY has determined it is appropriate to enter into this Agreement embracing the design and construction of the Project, all as more fully set forth below; In consideration of the mutual covenants and obligations contained herein, Owner and Design- Builder now agree as follows: Article 1.0 Scope of Work 1.1Phased Delivery. Owner and Design-Builder will implement the Project on a phased basis. 1.2Phase 1 Services. Owner has selected Design-Builder on the basis of Design-Builder’s proposal for the performance of design, pricing, and other services for the Project during Phase 1. Design-Builder shall perform such services to the level of completion required for Design-Builder to establish the Contract Price for Phase 2, as set forth in Section 1.3 below. The Contract Price for Phase 2 shall be developed during Phase 1 in conjunction with Attachment B. Design-Builder’s Compensation for Phase 1 Services is set forth in Section 1, Phase 1, of Attachment B, Compensation. The level of completion required for Phase 1 Services is defined in Attachment A, Scope of Work (either as a percentage of design completion or by defined deliverables). 1.3Phase 2 Services. Design-Builder’s Phase 2 services shall consist of the completion of design services for the Project, the procurement of all materials and equipment for the Project, the performance of construction services for the Project, the start-up, testing, and commissioning of the Facility, and the provision of warranty services, all as further described in Attachment A, Scope of Work. Upon receipt of Design-Builder’s proposed Contract Price for Phase 2, Owner may (a) accept the Contract Price and issue a Notice to Proceed with Phase 2 services, or (b) enter into a negotiation with Design-Builder on the scope and Contract Price, and, if required, on the schedule, for Phase 2 services to achieve a mutually acceptable basis on which to proceed, or (c) reject Design-Builder’s proposal for Phase 2 and either (i) cancel the Project, (ii) proceed with another Design- Builder, or (iii) exercise the “off-ramp” final design provisions of Section 1.4, Off-Ramp. The Contract Price for Phase 2 Services will be set forth in Section 2, Phase 2, of Attachment B, Compensation, when mutually agreed between the parties. Once the parties have agreed upon the Contract Price and Owner has issued a Notice to Proceed with Phase 2, Design-Builder shall perform the Phase 2 services, all as further described in Attachment A, Scope of Work, as it may be revised. 1.4Off-Ramp. 1.4.1 The parties acknowledge that Owner’s ability to successfully complete the Project may be significantly impacted if Owner elects to terminate Design-Builder’s services at the end of Phase 1, rather than proceeding to Phase 2 under Section 1.3 (“Phase 2 Services”) and certain design subconsultants are not available to continue working on the Project. Consequently, Design-Builder hereby agrees that if Owner terminates Design-Builder for any reason, Owner shall have the right to contract directly with such design subconsultants for design-related services on this Project, and Design-Builder shall take such steps as are reasonably necessary to enable Owner to implement such relationship. Design-Builder shall provide in any design subconsultancy agreements that Owner shall have the right to negotiate directly with such design subconsultants for the continuation of their services with respect to the Project, and that any provisions with respect to copyright or the ownership of instruments of service confirm such right of Owner. 111 of 362 1.4.2 If the parties are unable to reach an agreement on Design-Builder’s proposed Contract Price for Phase 2 under Section 1.3 within the time limit for acceptance specified in the Proposal, as may be extended by the mutual agreement of the parties, then the proposed Contract Price shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options: .1 Owner may declare Phase 1 Services completed and authorize Design-Builder to continue to advance the final design of the Project as an extension of Phase 1 or as an Additional Service, as applicable; or .2 Owner may terminate the relationship with Design-Builder and proceed to exercise its available options to perform the final design and construction with parties other than Design-Builder. 1.4.3 If Owner fails to exercise either of its options under Section 1.4.2 in a reasonable period of time, Design-Builder may give written notice to Owner that it considers this Agreement completed. If Owner fails to exercise either of the options under Section 1.4.2 within ten (10) days of receipt of Design-Builder’s notice, then this Agreement shall be deemed completed. 1.4.4 If Owner terminates the relationship with Design-Builder under Section 1.4.2.2, or if this Agreement is deemed completed under Section 1.4.3, then Design-Builder shall have no further liability or obligations to Owner under this Agreement 1.5Completion . Once Design-Builder has received a Notice to Proceed with Phase 2, Design-Builder shall perform all design and construction services, and provide all material, equipment, tools, labor, manuals, and start-up and commissioning services for the Project necessary to complete the Work described in and reasonably inferable from the Contract Documents. Following Substantial Completion of the Work, Design-Builder shall conduct performance tests to demonstrate that the Facility Performance Criteria have been met, as a condition for Final Acceptance. Article 2.0 Contract Documents 2.1 Contract Documents. The Contract Documents are comprised of the following: .1 All written modifications, amendments and change orders to this Agreement issued in accordance with Attachment D, General Conditions; .2 Written Supplementary Conditions, if any, to the General Conditions; .3 This Agreement, including all exhibits and the following attachments: Attachment A Scope of Work Section 1 Phase 1 Scope of Work Section 2 Phase 2 Scope of Work Attachment B Compensation Section 1 Phase 1 Services Compensation Section 2 Contract Price for Phase 2 Services Attachment C Schedule Attachment D General Conditions Attachment E Indemnity, Insurance & Bonding Attachment F Owner’s Project Criteria, including Design Criteria, Facility Performance Criteria, performance test, wage rate requirements, and MBE/WBE requirements Attachment G Owner’s Permit List 112 of 362 Attachment H Phase One-Design Development / Guaranteed Maximum Price Development / Scope of Work .4 Construction Documents prepared and reviewed in accordance with GC 2.4; .5 The following other documents, if any, attached hereto: Article 3.0 Interpretation and Intent 3.1Contract Documents. The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Phase 1 Compensation and the agreed Contract Price for Phase 2 Services. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event of any inconsistency, conflict, or ambiguity between or among the Contract Documents, the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof. 3.2Meanings. Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in GC 1.2. 3.3Entire Agreement. The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein in their entirety. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents. Nothing contained in the Contract Documents shall create any contractual relationship between the Owner, and any Sub-Contractor or Sub-Sub Contractor. 3.4Intent: It is the intent of the Contract Documents to describe a functionally complete project consisting of total design performed by the design professional and construction to be completed in accordance with the Contract Documents. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result will be supplied whether or not specifically called for. When words which have a well known technical or trade meaning are used to describe Work, materials or equipment such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of contract award, except as may be otherwise specifically stated. However, no provision of any referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Contract Documents) shall be effective to change the duties and responsibilities of City, Design-Builder, or any of their consultants, agents or employees from those set forth in the Contract Documents. 3.5Amending and Supplementing Contract Documents. The Contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: 3.5.1 A Change Order; 3.5.2 A Written Amendment; or 3.5.3 Work Change Directive. 113 of 362 Article 4.0 Ownership of Work Product Work Product . All reports, drawings, specifications, plans, and all other documents and data developed by Design Builder for Owner under this Agreement and under all Task Orders shall be the property of OWNER upon Owner’s payment in full without restriction or limitation. Reuse of these documents for other projects, later remodeling, or future additions shall be at Owner’s sole risk and without any liability to Design Builder. Article 5.0 Contract Time 5.1Dates of Commencement. 5.1.1 Design-Builder’s Phase 1 Services shall commence within five (5) days of Design- Builder’s receipt of Owner’s Phase 1 Notice to Proceed unless the parties mutually agree otherwise in writing. The parties shall use their best efforts to complete the Phase 1 Services within the time durations detailed in Attachment H. Section Entitled; “TIME OF COMPLETION/SCHEDULE”. 5.1.2 The Phase 2 Services shall commence on the date within five (5) days of Design- Builder’s receipt of Owner’s Phase 2 Notice to Proceed (“Date of Commencement”) unless the parties mutually agree otherwise in writing. 5.2Substantial Completion and Final Completion 5.2.1 Substantial Completion of the entire Work shall be achieved no later than Five Hundred (500) calendar days after the Date of Commencement or as mutually agreed to by the Owner and Design-Builder (“Scheduled Substantial Completion Date”). 5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work shall be achieved in accordance with Attachment C, Schedule. 5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved within Ninety (90) days after Substantial Completion. 5.2.4 All of the dates set forth in this Article 5.0 shall be subject to adjustment in accordance with the General Conditions. 5.3Time is of Great Importance. Owner and Design-Builder mutually agree that time is of great importance with respect to the dates and times set forth in the Contract Documents. Owner agrees to provide all site access, materials, information, data, and approvals required under the Contract Documents in a timely manner, as required for Design-Builder to achieve the interim milestones of the Schedule and the Scheduled Substantial Completion Date. 5.4Liquidated Damages . 5.55.4.1 Design-Builder understands that if Substantial Completion is not achieved by the Scheduled Substantial Completion Date (as it may be extended hereunder), Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not achieved by the Scheduled Substantial Completion Date (the “LD Date”), Design-Builder shall pay Owner _ Two Thousand Five Hundred Dollars ($2,500.00) as liquidated damages for each day that Substantial Completion extends beyond the LD Date, up to a maximum of: Five Hundred Thousand Dollars ($500,000.00). The foregoing liquidated damages (the “Liquidated Damages”) shall be in lieu of all other monetary remedies that the Owner shall have in the event of the Design’s delay in completing the Work and the aggregate of all Liquidated Damages shall be capped at the Design Builder’s fee pursuant to the Schedule of Value for that Purchase Order and /or phase GMP. 114 of 362 . After Substantial Completion of the work set forth in each Notice to Proceed, should Design-Builder neglect, refuse or fail to complete the remaining work in the Notice to Proceed for the work within NINETY (90) calendar days from the Substantial Completion date or any approved extension thereof, Design-Builder shall pay to Owner of sum of ONE THOUSAND DOLLARS, ($1,000.00) for each calendar day after the time above (plus approved extensions) until final completion and readiness for final payment. These amounts are not penalties but liquidated damages to Owner. Liquidated damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by Owner as a consequence of such delay, and both parties desiring to obviate any question of dispute concerning the amount of said damages and the cost and effect of the failure of Design Builder to complete the Contract on time. The foregoing liquidated damages (the “Liquidated Damages”) shall be in lieu of all other monetary remedies that the Owner shall have in the event of the Design’s delay in completing the Work and the aggregate of all Liquidated Damages shall be capped at the Design Builder’s fee pursuant to the Schedule of Value for that Purchase Order and /or phase GMP. 5.4.2 Owner is authorized to deduct accrued liquidated damage amounts from the monies due Design-Builder for work under this Agreement or as much thereof as Owner may, at its own option, deems just and reasonable. 5.6Early Completion Bonus. If Substantial Completion is achieved on or before Twenty (20) days before the Scheduled Substantial Completion Date (the “Bonus Date”), Owner shall pay Design-Builder at the time of Final Payment under Section 7.4 hereof an early completion bonus of Nine Hundred Dollars ($900.00) for each day that Substantial Completion is achieved earlier than the Bonus Date. Such Early Completion bonus shall not exceed Eighteen Thousand Dollars ($18,000.00) in the aggregate.] Article 6.0 Compensation and Contract Price 6.1Phase 1 Compensation. For the Phase 1 Services, Owner shall pay Design-Builder compensation in accordance with Section 1, Phase 1, of Attachment B, Compensation. 6.2Phase 2 Contract Price. For the Phase 2 Services, Owner shall pay Design-Builder in accordance with Section 2, Phase 2, of Attachment B, Compensation, an agreed Contract Price equal to Design-Builder’s Fee (as defined in Attachment B) plus the Cost of the Work (as defined in Attachment B), subject to adjustments made in accordance with the General Conditions. Article 7.0 Procedure for Payment 7.1Payment for Phase 1 Services 7.1.1 Owner shall compensate Design-Builder monthly for Phase 1 Services performed under the Agreement per Attachment B, Section 1. 7.1.2 Owner shall pay Design-Builder for Phase 1 Services within thirty (30) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with the provisions of GC 5.1 (“Payment for Phase 1 Services”) and 5.4 (“Withholding of Payments”). 115 of 362 7.2Progress Payments for Phase 2 Services 7.2.1 An initial payment of Zero dollars ($0) shall be made upon execution of this Agreement and credited to Owner’s account at final payment. 7.2.2 Design-Builder shall submit to Owner on or before the tenth (10th) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with GC 5.3 (“Monthly Progress Payments for Phase 2 Services”). 7.2.3 Owner shall make payment within thirty (30) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with GC 5.3, but in each case less the total of payments previously made, and less any amounts properly withheld under GC 5.4 (“Withholding of Payments”) and Section 7.3 below (“Retainage on Progress Payments”). 7.2.4 If Design-Builder’s Fee is a fixed amount, the amount of Design-Builder’s Fee to be included in Design-Builder’s monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder’s Fee. 7.3Retainage on Progress Payments 7.3.1 Owner will retain Ten percent (10%) of each Application for Payment provided, however, that when fifty percent (50%) of the Work has been completed by Design- Builder, and if the Work is proceeding satisfactorily, then Owner will not retain any additional amounts from Design-Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Subcontractors completing their work early in the Project. 116 of 362 7.4 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to GC 5.7 (“Substantial Completion”), Owner shall release to Design- Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion or other Final Payment withholdings pursuant to GC 5.4.. Design-Builder shall submit its Final Application for Payment to Owner in accordance with GC 5.8 (“Final Payment”). Owner shall make payment on Design-Builder’s properly submitted and accurate Final Application for Payment within thirty (30) days after Owner’s receipt of the Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in GC 5.8.2. 7.5Record Keeping and Financial Controls. Design-Builder acknowledges that this Agreement is to be administered on an “open book” arrangement relative to Costs of the Work, including the development and agreement upon the Contract Price for Phase 2 Services. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles, and in such accounts as may be necessary for Owner’s utility accounting purposes. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded access from time to time, upon reasonable notice, to Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment, provided, however, that such access, review, and audit rights shall not extend to any compensation amounts established on the basis of fixed rates for overhead or fee, or an agreed fixed sum, or unit rates for any element of cost. 117 of 362 Article 8.0 Representatives of the Parties 8.1Owner’s Representatives 8.1.1 Owner designates the individual listed below as its Senior Representative (“Owner’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under GC 8.2.3: Michael Low Special Projects Manager 124 E Woolbright Road, Boynton Beach, FL 33435 561-742-6403 8.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in GC 3.4 (“Owner’s Representative”): Michael Low Special Projects Manager 124 E Woolbright Road, Boynton Beach, FL 33435 561-742-6403 8.2Design-Builder’s Representatives 8.2.1 Design-Builder designates the individual listed below as its Senior Representative (“Design-Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under GC 8.2.3: Robert Gilbert, DBIA Vice President 2301 Maitland Center Parkway Suite 300 Maitland, FL 32751 Cell: 321-594-1726 Project Team Manager 8.2.2 Design-Builder designates the individual listed below as its Design-Builder’s Representative, which individual has the authority and responsibility set forth in GC 2.1.1: Pat Costello, DBIA Project Construction Manager 2301 Maitland Center Parkway Suite 300 Maitland, FL 32751 Cell: 407-468-6837 Article 9.0 Indemnity, Insurance and Bonds Indemnity . Indemnification obligations between the parties shall be as set forth in 9.1 Article 4.0, above, and in Section 1.0, Indemnity, of Attachment E, Indemnity, Insurance & Bonding. Insurance . The parties shall procure the insurance coverages set forth in Attachment 9.2 E, Indemnity, Insurance & Bonding, in accordance with the General Conditions. 118 of 362 Bonds and Other Performance Security. If so required,Design-Builder shall provide 9.3 a performance bond and labor and material payment bond or other performance security in accordance with Section 8.0, Bonds, of Attachment E, Indemnity, Insurance & Bonding. Article 10.0 Other Provisions 10.1 Consequential Damages. The Owner waives consequential damages to the extent consequential damages exceed the Design-Builder’s Fee for the Project. Consequential damages include by way of example, damages incurred by Owner for rental expenses, for loss of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or the services of such persons. Consequential damages do not include any damages claimed due and owing by any Subcontractor in connection with the Project or any third party claim for personal injury or property damage. Design-Builder waives its right to assert a claim for consequential damages against Owner. Nothing contained in this Section shall be deemed to preclude an award of liquidated damages, when applicable. This provision shall survive the termination of this Agreement. This Section is not intended to permit either Party to recover against the other damages that would not otherwise be recoverable under applicable law. 10.2 Limitation of Liability for Consequential Damages. Notwithstanding any provision to the contrary contained in this Agreement, Design-Builder’s total liability to Owner for any and all consequential damages as identified in Section 10.1, shall not exceed the total amount of $50,000 or the fee Design Builder receives under this Agreement whichever is greater. 10.3 Public Records: In order to comply with Florida’s public records laws, the Design-Builder shall: a. Keep and maintain public records that ordinarily and necessarily would be required by Owner in order to perform the services under the Agreement. b. Provide the public with access to public records on the same terms and conditions that Owner would provide the records and at a cost that does not exceed the cost provided in Chapter 119 Florida Statutes or as otherwise provided by law. c. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. d. Meet all requirements for retaining public records and transfer, at no cost, to Owner all public records in possession of Design Builder upon termination of the Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to Owner in a format that is compatible with the information technology systems of Owner. e. The Parties agree that public records under this Contract shall not include records that are (a) protected from disclosure under applicable law, or (b) privileged or confidential information. 10.4 Sovereign Immunity. The parties hereto acknowledge that Owner is a political subdivision of the state of Florida and enjoys sovereign immunity. Nothing in this Agreement shall be construed to require Owner to indemnify Design-Builder or insure Design-Builder for its negligence or to assume any liability for Design-Builder’s negligence. Further, any provision in this Agreement that requires Owner to indemnify, hold harmless or defend Design-Builder from 119 of 362 liability for any reason shall not alter Owner’s sovereign immunity or extend Owner’s liability beyond the limits established in section 768.28, Florida Statutes, as amended. 10.5 Design-Builder. Design-Builder warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Design-Builder to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or Design-Builder, other than a bona fide employee working solely for Design-Builder any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this Agreement. This prohibition is more fully set forth in § 287.055(6), Fla. Stat., as amended. 10.6 Equal Opportunity Employment. Design-Builder agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, age or national origin and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age or national origin. This provision shall include, but not be limited to the following: employment upgrading, demotion, or transfer, recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeships. 10.7 Independent Contractor. It is expressly acknowledged by the parties hereto that the Design-Builder is an independent contractor, and nothing contained in this Agreement will be deemed or construed to create a partnership or joint venture between Owner and Design-Builder or any other relationship between the parties. Additionally, nothing in this Agreement is intended nor shall be construed to create an employer/employee relationship. 10.8 Force Majeure. Neither party shall be liable nor deemed to be in default for any delay or failure in performance under this Agreement or for other interruption of service deemed resulting, directly or indirectly, from acts of God, civil or military authorities, acts of the public enemy, war (whether or not declared), riots, insurrections, acts of government, accidents, fires, explosions, earthquakes, floods, failure of transportation, strikes or any similar or dissimilar cause beyond the reasonable control of either party. 10.9 Tax Exempt Status. Owner is a tax-exempt entity (State Tax Exempt Certificate No. ______________________ and is not obligated to pay sales, use or other similar taxes. If Owner is not exempt for a particular tax, it will reimburse Design-Builder for those taxes. 10.10 Truth-In-Negotiation Certificate. Signature on this Agreement by Design-Builder shall act as the execution of a truth-in negotiation certificate stating that factual unit costs supporting the compensation of the Agreement (and each Task Order) are accurate, complete, and current at the time of contracting. The original Contract price and any additions thereto shall be adjusted to exclude any significant sums by which Owner determines the contract price was increased due to inaccurate, incomplete, or non-current factual unit costs. All such contract adjustments shall be made within one (1) year 10.11 Public Entity Crime Statement. Design-Builder represents that the execution of this Agreement will not violate Section 287.133(2)(a), F.S., ("Public Entity Crimes Act") which provides, in part, that a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide 120 of 362 any goods or services to Owner, may not submit a bid on a contract with Owner for the construction or repair of a public building or public work, may not submit bids on leases of real property to Owner, may not be awarded or perform work as a contractor, supplier, Subcontractor, or consultant under a contract with Owner, and may not transact business with OWNER in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section by Design-Builder shall result in termination of the Agreement by Owner without penalty. In addition to the foregoing, Design-Builder further represents that there has been no determination, based on an audit, that it committed an act defined by Section 287.133 Florida Statutes, as a "public entity crime" and that it has not been formally charged with committing an act defined as a "public entity crime" regardless of the amount of money involved or whether Design-Builder has been placed on the convicted vendor list. 10.12 Codes, Ordinances and Laws. The Design-Builder agrees to abide and be governed by all applicable City, County, State and Federal codes, regulations, building codes, ordinances and laws which may have a bearing on the Services involved on the projects of each Task Order. All plans and drawings shall comply with all such codes in effect as of the date of submittal of such plans and drawings to government officials and agencies for approval. This Agreement shall be governed by the law of the state of Florida. Design-Builder is familiar with and shall comply with all laws, ordinances and regulations applicable to the supplies, products, equipment, software or services furnished under this Agreement. 10.13 Hazardous Substances. Design-Builder shall notify the Owner of hazardous substances or conditions not contemplated in the scope of Services of which Design-Builder actually becomes aware. Upon such notice by Design-Builder, Design-Builder will stop affected portions of its Services. The parties shall decide if Design-Builder is to proceed with testing and evaluation and may enter into further agreements as to the additional scope, fee, and terms for such Services. 10.14 Cause of Action. Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion, or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. 10.15 Attorney’s Fees and Costs. Should it be necessary to bring an action to enforce any of the provisions of this Agreement, reasonable attorney’s fees and costs, including those at the appellate level, shall be awarded to the prevailing party. 10.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 10.17 Prior Agreements. Any prior agreements between the parties that are in conflict with the provisions contained herein are, to the extent of any such conflict, hereby superseded and repealed by this Agreement. 121 of 362 n executing this Agreement, Owner and Design-Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, arid each has the necessary corporate approvals to execute this Agreement, and perform the services described herein. IN WITNESS WHEREOF , the parties hereto have executed this Contract in multiple copies, each of which shall be considered an original on the following dates: DATED this _____ day of ________________________________________, 20____. CITY OF BOYNTON BEACH _________________________________ _________________________________ City Manager Contractor Attest/Authenticated: __________________________________ Title _________________________________ (Corporate Seal) City Clerk Approved as to Form: Attest/Authenticated: __________________________ __________________________________ Office of the City Attorney Secretary ATTACHMENT A SCOPE OF WORK SECTION 1 PHASE 1 1.0 Design-Builder shall exercise reasonable skill and judgment in the furnishing of design services. Architectural and engineering services shall be furnished by licensed employees of 122 of 362 Design-Builder, or by consultants or subcontractors as permitted by the law of the state where the Project is located. Design-Builder is responsible for the following Preliminary Design-Build Services: Preliminary Evaluation. Design-Builder shall provide a preliminary evaluation 1.1 of the Project’s feasibility based on the Owner’s Program and other relevant information. Preliminary Schedule. Design-Builder shall provide a preliminary schedule for 1.2 Owner’s written approval. The schedule shall show the activities of Owner and Design- Builder necessary to meet Owner’s completion requirements. Preliminary Estimate. Design-Builder shall prepare for Owner’s written 1.3 approval a preliminary estimate utilizing area, volume, or similar conceptual estimating techniques. The level of detail for the estimate shall reflect the Owner’s Program and any additional available information. If the preliminary estimate exceeds Owner’s budget, Design-Builder shall make written recommendations to Owner. Preliminary Design Documents. Design-Builder shall submit for Owner’s 1.4 written approval Preliminary Design Documents, based on the Owner’s Program and other relevant information. Preliminary Design Documents shall include drawings, outline specifications and other conceptual documents as further defined herein illustrating the Project's basic elements, scale and their relationship to the site. One set of these Documents shall be furnished to Owner. Design-Builder shall update the preliminary schedule and preliminary estimate based on the Preliminary Design Documents. Division of Responsibility. Design-Builder shall prepare for Owner’s review a 1.5 proposed Division of Responsibility with respect to the Project, showing (a) equipment, materials, labor, and services to be provided by Design-Builder, (b) access, equipment, materials, data, information, and approvals to be provided by Owner, and (c) any items necessary for the Project to be provided by third parties. Contract Price Proposal. Based on the Preliminary Design-Build Services, 1.6 Design-Builder shall prepare for Owner’s consideration a proposed Contract Price for the Phase 2 Services. Additional Services. Design-Builder shall provide the following additional 1.7 services, if any: 1.7.1 See Attachment H – Phase 1 Scope of Work (From RFP) 123 of 362 SECTION 2 PHASE 2 Completion of Design 2.1 Drawings and Specifications 2.1.1 Design-Builder shall submit for Owner’s review and written comment Drawings and Specifications based on the Contract Documents and the Preliminary Design Documents prepared under Phase 1 and any further development of Contract Documents that have been approved in writing by Owner. The Drawings and Specifications shall set forth in detail the requirements for construction of the Work, and shall be based upon codes, laws or regulations enacted at the time of their preparation, provided, however, that if such codes, law, or regulations have changed between the date on which Design-Builder submitted its proposed Contract Price and the date of preparation, then Design-Builder shall be entitled to an equitable adjustment in the compensation and/or the Schedule. Construction shall be in accordance with these approved Drawings and Specifications. One set of these documents shall be furnished to Owner prior to commencement of construction. Manuals 2.1.2 Design-Builder shall provide a Commissioning and Startup Manual and an Operations and Maintenance Manual for the Facility, each in such form and in such numbers as the parties may agree, and such other manuals as the parties may agree. All such manuals shall be provided no later than ninety (90) days prior to the scheduled date for the commissioning and startup of the Facility. Construction Services 2.2 Notice to Proceed Following Owner’s written acceptance of Drawings and 2.2.1 Specifications under Paragraph 2.1.1 above, Design-Builder will commence the performance of Construction Services. Completion In order to complete the Work, Design-Builder shall provide all necessary 2.2.2 construction supervision, inspection, construction equipment, labor, materials, tools, and subcontracted items. Compliance Design-Builder shall give all notices and comply with all laws and 2.2.3 ordinances legally enacted at the date of execution of the Agreement which govern the proper performance of the Work. Schedule Design-Builder shall prepare and submit a Schedule of Work in the form of a 2.2.4 revised Attachment C, Schedule, for Owner’s written approval. This Schedule shall indicate the dates for the start and completion of the various stages of the construction including the dates when information and approvals are required from Owner. It shall be revised as required by the conditions of the Work. The Schedule of Work shall be the basis for Design-Builder’s management and control of the project and its reporting of progress to Owner. Permits Design-Builder shall assist Owner in securing the building permits necessary 2.2.5 for the construction of the Project. Safety and Hazardous Conditions Design-Builder shall take necessary precautions 2.2.6 for the safety of its employees and Subcontractors on the Project, and shall comply with all applicable provisions of federal, state and municipal safety laws to prevent accidents or injury to persons on, about or adjacent to the Site. Design-Builder, directly or through its Subcontractors, shall erect and properly maintain at all times, as required by the conditions and progress of the Work, necessary safeguards for the protection of workers, any other persons on the site, and the public. In addition, Design-Builder shall establish and enforce safety procedures to be followed during the progress of this Work. The Design-Builder shall protect Owner’s property. All damage which occurs as a result of this Contract shall be promptly restored to at least its original precontracted condition. 124 of 362 However, Design-Builder shall not be responsible for the elimination or abatement of any pre-existing Hazardous Materials at the site or any safety hazards created or otherwise resulting from work at the Site carried on by Owner or its employees, agents, separate contractors or tenants. Owner agrees to cause its employees, agents, separate contractors, and tenants to abide by and fully adhere to all applicable provisions of federal, state and municipal safety laws and regulations. The Design-Builder shall give all notices and comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the safety of persons or property or their protection from damage, injury or loss. The Design-Builder shall perform all duties of the Owner that are required under the Florida Building Code with respect to the provision providing for supervision as to safe premises for all employees, Sub Contractors and their employees. The Design-Builder shall erect and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities. The Design-Builder shall also provide both visible and audible warning devices for all hazardous areas of construction. Such areas must be separated from normal pedestrian traffic by suitable barricades placed at an appropriate distance from the hazard. The above provision shall not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with all applicable provisions of relevant laws. Reports As provided in GC 2.1.2,Design-Builder shall provide monthly written 2.2.7 reports to Owner on the progress of the Work including a system of cost reporting for the Work, and also including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes in the Work. Site Maintenance At all times Design-Builder shall maintain the Site of the Work free 2.2.8 from debris and waste materials resulting from the Work. At the completion of the Work, Design-Builder shall remove from the premises all construction equipment, tools, surplus materials, waste materials and debris. Hazardous Material 2.3 A Hazardous Material is any substance or material identified now or in the future as 2.3.1 hazardous 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. Design-Builder shall not be obligated to commence or continue Work until any known or suspected Hazardous Material discovered at the Site has been removed, rendered or determined to be harmless by Owner as certified by an independent testing laboratory and approved by the appropriate government agency. If after the commencement of the Work, known or suspected Hazardous Material or 2.3.2 Hazardous Conditions are discovered at the Site, Owner and Design-Builder shall proceed in accordance with the requirements of GC 4.1 (“Hazardous Conditions & Differing Site Conditions”). Patents & Copyright 2.4 Design-Builder shall pay all royalties and license fees which may be due on the inclusion 2.4.1 of any patented or copyrighted materials, methods or systems selected by Design-Builder and incorporated in the Work. Design-Builder agrees to defend, indemnify and hold Owner harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such selection. 125 of 362 Owner shall pay all royalties and license fees which may be due on the inclusion of any 2.4.2 patented or copyrighted materials, methods or systems selected by Owner or specified in the Performance Criteria or bridging documents to be incorporated in the Work. Owner agrees to defend, indemnify and hold Design-Builder harmless from any suits or claims of infringement of any patent rights or copyrights arising out of any such patented or copyrighted materials, methods or systems specified by Owner. Warranties and Completion 2.5 Design-Builder’s warranty to Owner with respect to construction, including all materials 2.5.1 and equipment furnished as part of the construction, shall be as specified in GC 2.9 (“Design-Builder’s Warranty”). Design-Builder’s warranty to Owner with respect to the performance of the Facility upon 2.5.2 completion shall be as specified in GC 2.11 (“Performance Warranty”). Those products, equipment, systems or materials incorporated in the Work at the 2.5.3 direction of or upon the specific request of Owner shall be covered exclusively by the warranty of the manufacturer. There are no warranties which extend beyond the description on the face thereof. No warranty,either express or implied, may be modified, excluded or disclaimed in 2.5.4 any way by Design Builder. All warranties shall remain in full force and effect, notwithstanding acceptance and payment by City. Design-Builder shall secure required certificates of inspection, testing or approval and deliver them to Owner. Design-Builder shall collect all written warranties and equipment manuals and deliver 2.5.5 them to Owner. With the assistance of Owner’s maintenance personnel, Design-Builder shall direct the 2.5.6 checkout of utilities and operations of systems and equipment for readiness, and assist in their commissioning and initial start-up and testing, all in accordance with the Commissioning and Startup Manual to be provided by Design-Builder. See Attachment G - Special Conditions 1 – 16 (From RFP). 2.5.7 Limitations of Liability 2.6 Limitation of Liability. Design-Builder’s liability for Owner’s damages for any cause 2.6.1 or combination of causes (including any liquidated damages), whether based upon contract, tort, breach of warranty, negligence, strict liability, or otherwise, shall be limited as set forth in Attachment E. Additional Services 2.7 Design-Builder shall provide or procure the following Additional Services upon the request of Owner unless such services are specifically included in the Owner’s Program or in an attachment to this Agreement. A written agreement between Owner and Design- Builder shall define the extent of such Additional Services and compensation therefor. Documentation of the Owner’s Program, establishing the Project budget (beyond 2.7.1 the Cost of the Work), investigating sources of financing, general business planning and other information and documentation as may be required to establish the feasibility of the Project. Consultations, negotiations, and documentation supporting the procurement of 2.7.2 Project financing. Surveys, site evaluations, legal descriptions and aerial photographs. 2.7.3 Appraisals of existing equipment, existing properties, new equipment and 2.7.4 developed properties. 126 of 362 Soils, subsurface and environmental studies, reports and investigations required 2.7.5 for submission to governmental authorities or others having jurisdiction over the Project. Consultations and representations other than normal assistance in securing 2.7.6 building permits, before governmental authorities or others having jurisdiction over the Project. Investigation or making measured drawings of existing conditions or the 2.7.7 verification of drawings or other Owner-provided information. Artistic renderings, models and mockups of the Project or any part of the Project 2.7.8 or the Work. Inventories of existing furniture, fixtures, furnishings and equipment which might 2.7.9 be under consideration for incorporation into the Work. Interior design and related services including procurement and placement of 2.7.10 furniture, furnishings, artwork and decorations. Making revisions to the Preliminary Design, Design Development, or 2.7.11 Construction Documents after they have been reviewed by Owner, and which are due to causes beyond the control of Design-Builder. Design, coordination, management, expediting and other services supporting the 2.7.12 procurement of materials to be obtained, or work to be performed, by Owner, including but not limited to telephone systems, computer wiring networks, sound systems, alarms, security systems and other specialty systems which are not a part of this Agreement. Estimates, proposals, appraisals, consultations, negotiations and services in 2.7.13 connection with the repair or replacement of an insured loss. The premium portion of overtime work ordered by Owner including productivity 2.7.14 impact costs. Document reproduction exceeding the allowances provided for in this Agreement. 2.7.15 Obtaining service contractors and training maintenance personnel, assisting and 2.7.16 consulting in the use of systems and equipment after the initial start up, and adjusting and balancing of systems and equipment. Services for tenant or rental spaces or third-party facilities not a part of this 2.7.17 Agreement. Services requested by Owner or required by the Work which are not specified in 2.7.18 the Contract Documents and which are not normally part of generally accepted design, construction and start-up and commissioning practice. Serving or preparing to serve as an expert witness in connection with any 2.7.19 proceeding, legal or otherwise, regarding the Project. Preparing reproducible record drawings from marked-up prints, drawings or other 2.7.20 documents that incorporate significant changes in the Work made during the Construction Phase. Subcontractors. Work not performed by Design-Builder with its own forces shall be 2.8 performed by Subcontractors. The provisions of this Agreement and the associated Contract Documents shall be incorporated into all major subcontracts as defined in “schedule of sub-consultant/minority business enterprise (MBE/WBE) participation” submitted in Design-Builder’s proposal dated 10/30/13. 127 of 362 Design-Builder shall not retain any Subcontractor to whom Retaining Subcontractors 2.8.1 Owner has a reasonable and timely objection, that Owner agrees to compensate provided Design-Builder for any additional costs incurred by Design-Builder as provided in GC 2.7.3. Design-Builder shall not be required to retain any Subcontractor to whom Design-Builder has a reasonable objection. Design-Builder shall be responsible for the management of Management of Subcontractors 2.8.2 Subcontractors in the performance of their work. Design-Builder shall provide for assignment of Assignment of Subcontract Agreements 2.8.3 subcontract agreements in the event that Owner terminates this Agreement for cause as provided in GC 11.2 (“Owner’s Right to Perform and Terminate for Cause”). Following such termination, Owner shall notify in writing those subcontractors whose assignments will be accepted, subject to the rights of sureties. SECTION 3 OWNER’S RESPONSIBILITIES Information and Services Provided by Owner 3.1 Owner shall provide full information regarding requirements for the Project, including the 3.1.1 Owner’s Program, Performance Criteria, bridging documents, and other relevant information, within the times specified in Attachment C, . Schedule Owner shall provide: 3.1.2 1. all necessary information describing the physical characteristics of the site, including surveys, site evaluations, legal descriptions, existing conditions, subsurface and environmental studies, utilities, reports and investigations; 2. inspection and testing services during construction as required by law or as mutually agreed; and 3. unless otherwise provided in the Contract Documents, necessary approvals, site plan review, rezoning, easements and assessments, necessary permits, fees and charges required for the construction, use, occupancy or renovation of permanent structures, including legal and other require services. Design-Builder shall be entitled to rely on the completeness and accuracy of the information 3.1.3 and services required by this Section 3.1. Owner’s Responsibilities during Phase 1 3.2 If not developed by Owner and Design-Builder under a prior agreement, Owner shall 3.2.1 provide the Owner’s Program at the inception of the Design Phase. Owner shall review and timely approve schedules, estimates, and design documents furnished during the Design Phase as set forth in Section 3.1. Owner shall arrange for access to and make all provisions for Design-Builder to enter upon 3.2.2 public and private property as required for Design-Builder to perform Phase 1 services hereunder. Design-Builder shall be entitled to rely on the completeness and accuracy of the information 3.2.3 and documents to be provided by Owner under this Section 3.2. Owner’s Responsibilities during Phase 2 Design and Construction 3.3 Owner shall review and approve the Schedule as set forth in Attachment C, , as Schedule 3.3.1 revised. If Owner becomes aware of any error, omission or failure to meet the requirements of the 3.3.2 Contract Documents or any fault or defect in the Work, Owner shall give written notice to Design-Builder within five (5) days of so becoming aware. 128 of 362 Unless otherwise agreed by Design-Builder, Owner shall communicate with Design- 3.3.3 Builder’s Subcontractors, Suppliers, and Design Consultants only through Design-Builder. Owner shall have no contractual obligations to Subcontractors or Suppliers or Design Consultants. Owner may provide insurance for the Project as provided in Attachment E, Indemnity, 3.3.4 . Insurance & Bonding Owner shall provide timely, clear and adequate access to the site and any laydown areas. 3.3.5 Owner shall provide all equipment, materials, information, data, and approvals required 3.3.6 for Design-Builder’s performance of the Work in a timely and complete manner. Design-Builder shall be entitled to rely on the completeness and accuracy of the information 3.3.7 and documents to be provided by Owner under this Section 3.3. Owner’s Representative 3.4 Owner’s representative, designated in writing and agreed to by Design-Builder: shall be fully acquainted with the Project; .1 agrees to furnish the information and services required of Owner when required so .2 as not to delay the performance of the Work; and have authority to bind Owner in all matters requiring Owner’s approval, .3 authorization or written notice. If Owner changes its representative or the representative’s authority as listed above, Owner shall notify Design-Builder in advance in writing. Design-Builder shall have the right to approve any successor representative. 3.5City’s Responsibilities 3.5.1 See Attachment G - Special Conditions 17 – 19 (From RFP). ATTACHMENT B COMPENSATION SECTION 1 PHASE 1 SERVICES – IN ACCORDANCE WITH ATTACHMENT H SCOPE OF WORK $1,131,770 SECTION 2 CONTRACT PRICE FOR PHASE 2 SERVICES Choice of Compensation Method for Phase 2 Services 1.0 The parties may elect to use the Guaranteed Maximum Price (“GMP”) form of 1.1 compensation for the Phase 2 Services, or a fixed Contract Price, or cost-reimbursable compensation with a Fixed Fee. If the GMP form of compensation is to be used, it may be agreed upon before the execution of this Agreement or will be developed and agreed upon for Phase 2 services. If the parties do not use a GMP, then the compensation to Design-Builder shall be a fixed Contract Price developed in accordance with Section 3.0, or shall be based on those fees and costs identified in Section 4.0. Guaranteed Maximum Price 2.0 $28,868,230 The GMP will be adjusted following completion of Phase 1. 129 of 362 Use of a GMP Agreed upon Execution of this Agreement 2.1 Design-Builder agrees that upon Owner’s request it will submit its proposal for the 2.1.1 Contract Price on the basis of a Guaranteed Maximum Price for the Phase 2 Services. Design-Builder does not guarantee any specific line item provided as part of the GMP, but agrees that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with the Contract Documents. Documents used as a basis for the GMP shall be identified in an agreed revision to this Attachment. The GMP will include an allowance within each work package or task order as 2.1.2 determined by the Design-Builder and approved by the Owner when a maximum price for the work package or task order has been not been determined at time of GMP. This allowance will be used as the maximum value for the specific line item and all remaining funds within the work package or task order will revert to the Owner after the price is determined through competitive bidding or final pricing by the Design-Builder. If an allowance is not included within the work package or task order line, the agreed upon price is the maximum for that item. Any savings within the fixed price items will be included in the savings sharing formula specified in Section 2.3.1. . If the parties so agree, the Phase 2 Services may be divided into separate work packages 2.1.3 or task orders, and Design-Builder shall propose and Owner shall consider for acceptance a separate GMP for each such work package or task order. GMP Established at the Commencement Date of Phase 2 2.2 GMP Proposal . If requested by Owner, Design-Builder shall submit to Owner a GMP 2.2.1 Proposal for the Contract Price as part of the Phase 1 Services which shall include the following, unless the parties mutually agree otherwise: .1 A proposed GMP, which shall be the sum of: i. Design-Builder’s Fee as defined in Section 2, Phase 2, of Attachment B, Compensation; ii. the estimated Cost of the Work as defined in Section 2, Phase 2, of Attachment B, Compensation, inclusive of any Design-Builder’s allowance as defined in Section 1.1.2 above; and iii. if applicable, any prices established under Section 2, Phase 2, of Attachment B, Compensation. .2 A list of the drawings and specifications, including all addenda, used as the basis for the GMP proposal; .3 A list of the assumptions, exceptions, and clarifications made by Design-Builder in the preparation of the GMP Proposal, which list is intended to supplement the information contained in the drawings and specifications; .4 The Scheduled Substantial Completion Date upon which the proposed GMP is based, to the extent said date has not already been established under Paragraph 5.2.1of the Agreement, and a schedule upon which the Scheduled Substantial Completion Date is based; .5 If applicable, a list of allowances and a statement of their basis; .6 If applicable, a schedule of alternate prices; .7 If applicable, a schedule of unit prices; .8 If applicable, a statement of Additional Services; and .9 The time limit for acceptance of the GMP Proposal. 130 of 362 Review and Adjustment to GMP Proposal. After submission of the GMP Proposal, 2.2.2 Design-Builder and Owner shall meet to discuss and review the GMP Proposal. If Owner has any comments regarding the GMP Proposal, or finds any inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to Design- Builder of such comments or findings. If appropriate, Design-Builder shall, upon receipt of Owner’s notice, make appropriate adjustments to the GMP Proposal. Acceptance of GMP Proposal . If Owner accepts the GMP Proposal, as may it be 2.2.3 amended by Design-Builder, the GMP and its basis shall be set forth in an amendment to this Agreement. Failure to Accept the GMP Proposal. If Owner rejects the GMP Proposal, or fails to 2.2.4 notify Design-Builder in writing on or before the date specified in the GMP Proposal that it accepts the GMP Proposal, the GMP Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options: .1 Owner may suggest modifications to the GMP Proposal, whereupon, if such modifications are accepted in writing by Design-Builder, the GMP Proposal shall be deemed accepted and the parties shall proceed in accordance with Section 2.2.3 above; .2 Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 2, Phase 2, of Attachment B, Compensation, without a GMP, in which care all references in this Agreement to the GMP shall not be applicable; or .3 Owner may terminate this Agreement for convenience in accordance with GC 9.2 (“Termination for Convenience”). If Owner fails to exercise any of the above options, Design-Builder shall have the right to (ii) suspend performance of Work in accordance with GC 9.4 (“Design-Builder’s Right to Stop Work”). Conversion . The parties may agree at any time to convert the agreed GMP to a Fixed 2.2.5 Contract Price for the completion of the Phase 2 Services. Savings 2.3 Savings Sharing . If the sum of the actual Cost of the Work and Design-Builder’s Fee 2.3.1 (and, if applicable, any prices established under Paragraph 6.2 of the Agreement) is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference (“Savings”) shall be shared as follows: (Choose one of the following :) Forty percent (40%) to Design-Builder and Sixty percent (60%) to Owner. The Design Builder shared savings shall not exceed Two Hundred Thousand ($200,000.00). Savings Calculation . Savings shall be calculated and paid as part of Final Payment 2.3.2 under Section 7.4 of the Agreement, with the understanding that to the extent Design- Builder incurs costs after Final Completion which would have been payable to Design- Builder as a Cost of the Work, Design-Builder shall be entitled to payment from Owner for that portion of such costs that were distributed to Owner as Savings. Basis. Documents used as a basis for the GMP shall be identified in a mutually agreed 2.4 revision to this Attachment. Fixed Contract Price 3.0 131 of 362 If the parties initially agree that the Phase 2 Services shall be performed on the basis of a 3.1 Fixed Contract Price, then the Design-Builder shall develop the proposed Contract Price on an “open book” basis and present it to Owner for review and approval. Once the Fixed Contract Price is agreed, then this Agreement shall be amended to 3.2 establish the Fixed Contract Price as the basis for the performance of the Phase 2 Services. Cost Reimbursable plus Design-Builder’s Fee 4.0 If the parties agree that the Phase 2 Services shall be performed on a Cost Reimbursable 4.1 basis plus a Fixed Design-Builder’s Fee, then the Design-Builder shall develop an estimated Contract Price on an “open book” basis and present it to Owner for review and approval. The cost-reimbursable elements of the Work shall be those set forth in Section 4.4 (“Cost 4.2 of the Work”). Design-Builder’s Fee shall be: 4.3 Five and Ninety Five Hundredths percent (5.95%) of the Cost of the Work, as adjusted in accordance with Section 2.1. above. Design-Builder’s Fee will be adjusted as follows for any changes in the Work: Same as 4.3.1 4.3 above. Cost of the Work. 4.4 The term “Cost of the Work” shall mean costs reasonably incurred by Design-Builder in the proper performance of the Work. Such costs shall be at rates not higher than the standard paid at the place of the Project, except with prior consent of the Owner. The Cost of the Work shall include only the following: .1 Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner’s agreement, at locations off the Site, provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable, those rates set forth in an exhibit to this Agreement. .2 Wages or salaries of Design-Builder’s supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working off-Site to assist in the production or transportation of material and equipment necessary for the Work. .3 Wages or salaries of Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices and performing design and Project administration functions. However such costs shall be excluded from fee as listed in Section 4.3 above. .4 Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Paragraphs 2.2.1 through 2.2.3 hereof. 132 of 362 .5 The reasonable portion of the cost of travel, accommodations and meals for Design-Builder’s personnel necessarily and directly incurred in connection with the performance of the Work. .6 Payments properly made by Design-Builder to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants. .7 Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work, provided that such defective, damaged or nonconforming Work resulted from causes other than the fault or neglect of the Design-Builder, or those working by or through Design-Builder. If the costs associated with such defective, damaged or nonconforming Work are recoverable from insurance, Design-Builder shall use its best efforts to obtain recovery from the appropriate source and credit Owner if recovery is obtained. .8 Costs, including transportation, inspection, testing, storage and handling, of materials, equipment and supplies incorporated or reasonably used in completing the Work. .9 Costs less salvage value of materials, supplies, temporary facilities, machinery, vehicles, equipment and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design-Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining, dismantling and removing such items. .10 Costs of removal of debris and waste from the Site. .11 The reasonable costs and expenses incurred in establishing, operating and demobilizing the Site office, including the cost of facsimile transmissions, long- distance telephone calls, postage and express delivery charges, telephone service, photocopying and reasonable petty cash expenses. .12 Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others, and incurred in the performance of the Work. .13 Premiums for insurance and bonds required by this Agreement or the performance of the Work. However such costs shall be excluded from fee as listed in Section 4.3 above. .14 All fuel and utility costs incurred in the performance of the Work. .15 Sales, use or similar taxes, tariffs or duties incurred in the performance of the Work. .16 Legal costs, court costs and costs of mediation and arbitration reasonably arising from Design-Builder’s performance of the Work, provided such costs do not arise from disputesbetween Owner and Design-Builder. .17 Costs for permits, royalties, licenses, tests and inspections incurred by Design- Builder as a requirement of the Contract Documents. .18 The cost of defending suits or claims for infringement of patent rights arising from the use of a particular design, process, or product required by Owner, paying legal judgments against Design-Builder resulting from such suits or claims, and paying settlements made with Owner’s consent. 133 of 362 .19 Deposits which are lost, except to the extent caused by Design-Builder’s negligence. .20 Costs incurred in preventing damage, injury or loss in case of an emergency affecting the safety of persons and property. .21 Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner. Non-Reimbursable Costs 4.5 The following shall be excluded from the Cost of the Work: .1 Compensation for Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices or offices other than the site office, except as provided for in Paragraphs 4.4.1, 4.4.2 and 4.4.3, hereof. .2 Overhead and general expenses, except as provided for in Section 4.4.2 hereof, or which may be recoverable for changes to the Work. .3 The cost of Design-Builder’s capital used in the performance of the Work. .4 Rental costs of machinery and equipment, except as specifically provided in Paragraph 4.4.12, hereof. .5 Costs due to the negligence of the Design-Builder, Subcontractors, or anyone else directly or indirectly employed by any of them, or for whose acts any of them may be liable, including, but not limited to, costs for the correction of damaged, defective or nonconforming Work, disposal and replacement of materials and equipment incorrectly ordered or supplied, and making good damage to property not forming part of the Work, but only to the extent such costs cause the GMP to be exceeded. .6 Costs, if any, which would cause the GMP, as may be amended from time to time in accordance with this Agreement, to be exceeded, except to the extent such costs were due to the sole fault of Owner. .7 Costs for general cleanup of the jobsite will be included as part of the Cost of the Work in the GMP .8 Any other labor related costs not defined under Paragraph 4.4.1 that is not approved in by the Owner at the time of the GMP. .9 Expenses for travel, including Design-Builder-supplied vehicles for personal use, incurred by Design-Builder’s employees while traveling for purposes other than the direct execution of work or training. .10 Any legal fees arising out of a dispute between the Owner and Design-Builder. This includes the negotiation of a Contract between the Owner and Design Builder. Contract Price 4.6 The Contract Price shall be the sum of the Design-Builder’s Fee under Section 4.3 plus the amount agreed between Owner and Design-Builder for the Cost of the Work under Section 4.4. When agreed, the Contract Price is stated to be: _____________ Dollars ($________). Establishment of Guaranteed Maximum Price see Attachment G - Special Conditions 20 4.7 (From RFP). 134 of 362 THIS PAGE INTENTIONALLY LEFT BLANK ATTACHMENT C SCHEDULE SECTION 1 PHASE 1 1.0 Phase 1 Schedule will be developed as part of the early workshops. SECTION 1 PHASE 2 1.0 Phase 2 Schedule will be included with the GMP deliverable package. ATTACHMENT D GENERAL CONDITIONS GC 1.0 General Mutual Obligations 1.1 Owner and Design-Builder agree to cooperate fully with each other at all time, to 1.1.1 permit each party to realize the benefits afforded under the Contract Documents. These General Conditions (“GC”) may be supplemented, varied, or revised through 1.1.2 Supplementary Conditions (“SC”), as attached. Basic Definitions 1.2 Agreement refers to the executed contract between Owner and Design-Builder with 1.2.1 respect to the Project. Bonus Date has the meaning given in Section 5.5 of the Agreement. 1.2.2 Change in Law has the meaning given in GC 8.1.2. 1.2.3 Changed Condition has the meaning given in GC 8.1. 1.2.4 Change Order has the meaning given in GC 7.1. 1.2.5 Construction Warranty has the meaning given in GC 2.9. 1.2.6 Construction Warranty Period is that period specified in GC 2.10.1. 1.2.7 Contract Documents has the meaning given in Section 2.1 of the Agreement. 1.2.8 Contract Price has the meaning given in Section 6.2 of the Agreement and Section 2, 1.2.9 Phase 2, of Attachment B, Compensation. Contract Time(s) shall mean the times for performance of the Work by Design-Builder 1.2.10 and the delivery of items and approvals by Owner set forth in Article 5 (“Contract Time”) of the Agreement and Attachment C, Schedule. Day or Days shall mean calendar days unless otherwise specifically noted in the Contract 1.2.11 Documents. Design Build Fee shall mean the percentage as set forth in Attachment B 4.3 of this 1.2.12 contract. Design Consultant , if any, is a qualified, licensed design professional who is not an 1.2.13 employee of Design-Builder, but is retained by Design-Builder, or employed or retained 135 of 362 by anyone under contract with Design-Builder or Subcontractor, to furnish design services required under the Contract Documents. Design Criteria means those documents which define the Owner’s criteria for the scope, 1.2.14 quality, and function of the proposed facility, and which may be expanded to outline Owner’s project cost limitations and schedule requirements. Differing Site Conditions has the meaning given in GC 4.2.1. 1.2.15 Early Completion Bonus has the meaning given in Section 5.5 of the Agreement. 1.2.16 Electronic Data has the meaning given in GC 11.1.1. 1.2.17 Extended Performance Warranty is Design-Builder’s warranty under GC 2.11.2 that the 1.2.18 completed Facility shall be capable of meeting the Performance Standards in Attachment F throughout the Performance Warranty Period. Facility is the physical facility to be designed and constructed for Owner as part of the 1.2.19 Project. Facility Performance Criteria means the Owner’s criteria for the performance of the 1.2.20 Facility once constructed, and may be divided into two parts, (i) program requirements such as the physical, functional, and quantitative needs of the project, and (ii) performance requirements for the Facility and its component parts, including considerations of the specified quantitative and qualitative limits for inputs, the desired condition of Facility outputs, and the efficiency of the Facility in producing such outputs. Final Acceptance of the Project shall be deemed to have occurred upon final payment 1.2.21 pursuant to GC 5.8. General Conditions refer to this Attachment D, General Conditions. 1.2.22 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be 1.2.23 hazardous under applicable Legal Requirements, or which handling, storage, remediation, or disposal are regulated by applicable Legal Requirements. Hazardous Materials has the meaning given in Section 2.3 of Attachment A, Scope of 1.2.24 Work. Indemnified Parties, with respect to Work Product, has the meaning given in Section 1.2.25 4.3.1 of the Agreement. Legal Requirements are all federal, state and local laws, codes, ordinances, rules, 1.2.26 regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work which are applicable as of the date of Design-Builder’s proposal to Owner, and, subject to the Change in Law provisions of GC 8.1.2, which become applicable during the Contract Time. Liquidated Damages means such damages as may be assessed under Section 5.4 of the 1.2.27 Agreement. Liquidated Damages Date has the meaning given in Section 5.4 of the Agreement. 1.2.28 Manuals means the Commissioning and Startup Manual and the Operations and 1.2.29 Maintenance Manual provided for in Section 2.1.2 of the Agreement, and such other manuals as the parties may agree to be provided. Open Book Pricing - The method in which the design-build firm provides the Owner, at 1.2.30 the Owner’s request, all books, records, documents, contracts, subcontracts, purchase orders, and other data in its possession pertaining to the bidding, pricing, or performance of a contract for design-build services awarded to the design-build firm. 136 of 362 Owner’s Program means the overall definition of Owner’s requirements for the Project, 1.2.31 including Owner’s Project Criteria, all materials, equipment and other items to be provided by Owner, and all items to be provided by third parties. Owner’s Project Criteria are developed by or for Owner to describe Owner’s Program 1.2.32 requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design-Builder’s performance of the Work. Owner’s Project Criteria may include conceptual documents, Design Criteria, Facility Performance Criteria, performance test, wage rate requirements, MBE/WBE requirements, and other Project- specific technical materials and requirements. Owner’s Representative means the individual selected and authorized by Owner to act 1.2.33 upon Owner’s behalf with respect to Design-Builder and the performance of this Agreement, in accordance with GC 3.4, and identified by Owner in writing within ten (10) days of execution of this Agreement. Performance Warranty has the meaning given in GC 2.11. 1.2.34 Project is the design and construction of the Owner’s Facility, including start-up and the 1.2.35 provision of manuals, warranties, as-built drawings and specifications, spare parts, and all other items required to be provided under this Agreement. Schedule means that Schedule for the performance of the Work in accordance with the 1.2.36 Contract Time(s) set forth in Attachment C, Schedule, as revised from time to time. Site is the land or premises on which the Facility is located, including any separate 1.2.37 laydown or storage areas. Subcontractor is any person or entity retained by Design-Builder as an independent 1.2.38 contractor to perform a portion of the Work and shall include materialmen and suppliers. Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent 1.2.39 contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and suppliers. Substantial Completion is the date on which the Work, or an agreed upon portion of the 1.2.40 Work, is sufficiently complete so that Owner can occupy and use the Project or a portion thereof for its intended purposes. Certificate of Substantial Completion is that Certificate issued by Owner to Design- 1.2.41 Builder pursuant to GC 5.7.1. Uncontrollable Circumstances are those acts, omissions, conditions, events, or 1.2.42 circumstances beyond the control of Design-Builder and due to no fault of its own or those for whom Design-Builder is responsible. By way of example (and not limitation), Uncontrollable Circumstances include acts or omissions of Owner or anyone under Owner’s control (including separate contractors), changes in the Work, Differing Site Conditions, Hazardous Conditions, wars, floods, labor disputes, unusual delay in transportation, epidemics, earthquakes, adverse weather conditions not reasonably anticipated, and other circumstances beyond the reasonable control of the party affected. Work is comprised of all Design-Builder’s design, construction, start-up, warranty, and 1.2.43 other services required to by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents, plus manuals and documentation required by the Contract Documents. GC 2.0 Design-Builder’s Services and Responsibilities 137 of 362 General Services 2.1 Design-Builder’s Representative shall be reasonably available to Owner and shall have 2.1.1 the necessary expertise and experience required to supervise the Work. Design-Builder’s Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder’s Representative may be replaced only with the mutual agreement of Owner and Design-Builder. Design-Builder shall provide Owner on a monthly basis a status report detailing the 2.1.2 progress of the Work, including whether (i) the Work is proceeding according to schedule, (ii) discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) health and safety issues exist in connection with the Work, (iv) other items require resolution so as not to jeopardize Design-Builder’s ability to complete the Work for the Contract Price and within the Contract Time(s), and (v) such other items as Owner may reasonably require. Design-Builder shall prepare and submit, at least three (3) days prior to the meeting 2.1.3 contemplated by GC 2.1.4, a preliminary schedule for the execution of the Work for Owner’s review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). When agreed between the parties, such schedule shall be attached hereto as Attachment C, Schedule. The Schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner’s review of and response to the Schedule shall not be construed as relieving Design-Builder of its complete and exclusive control over the means, methods, sequences and techniques for executing the Work. The parties will meet, within seven (7) days after execution of the Agreement, to discuss 2.1.4 issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals, review and approval turn-around times contained in the Schedule, and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. At the completion of Phase 1 Services, the parties may agree upon a revised Schedule to 2.1.5 reflect the intended scope of Phase 2 Services and as the basis for the Contract Price to be agreed for the Phase 2 services. Design Professional Services 2.2 Design-Builder shall, consistent with applicable state licensing laws, provide through 2.2.1 qualified, licensed design professionals employed by Design-Builder, or procured from a qualified, independent licensed Design Consultant, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any independent Design Consultant. Standard of Care for Design Professional Services 2.3 The standard of care for all design professional services performed to execute the Work 2.3.1 shall be the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project. Design-Builder, its Design Consultants, and its Subcontractors may reasonably rely on the accuracy and completeness of Owner’s Project Criteria. 138 of 362 Design Development Services 2.4 Design-Builder and Owner shall, consistent with any applicable provision of the Contract 2.4.1 Documents, agree upon any interim design submissions that Owner may wish to review, which interim design submissions may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. Such agreement may specify the percentage completion of the design documents to be submitted for such review and comment. On or about the time of the scheduled submissions, Design-Builder and Owner shall meet and confer about the submissions, with Design-Builder identifying during such meetings, among other things, the evolution of the design and any significant changes or deviations from the Contract Documents, or, if applicable, previously submitted design submissions. Minutes of the meetings will be maintained by Design- Builder and provided to all attendees for review. Following the design review meeting, Owner shall review and comment on the interim design submissions in a time frame that is consistent with the turnaround times set forth in the Schedule. Design-Builder shall submit to Owner Construction Documents setting forth in detail 2.4.2 drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions, as such submissions may have been modified in a design review meeting. The parties shall have a design review meeting to discuss, and Owner shall review and may comment on the Construction Documents in accordance with the procedures set forth GC 2.4.1. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction. Owner’s review and approval of interim design submissions and the Construction 2.4.3 Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner’s review nor approval of any interim design submissions and Construction Documents shall be deemed to transfer any design liability from Design-Builder to Owner. To the extent not prohibited by the Contract Documents or Legal Requirements, Design- 2.4.4 Builder may prepare interim design submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work. Legal Requirements 2.5 Design-Builder shall perform the Work in accordance with all Legal 2.5.1 Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements. The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design- 2.5.2 Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work. Such effects may include, without limitation, revisions Design-Builder is required to make to the Construction Documents because of changes in Legal Requirements. Government Approvals and Permits 2.6 Except as identified in Attachment G, Owner’s Permit List, Design-Builder shall obtain 2.6.1 and pay for all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi-government entity having jurisdiction over the Project. Design-Builder shall provide reasonable assistance to Owner in obtaining those permits, 2.6.2 approvals and licenses that are Owner’s responsibility. 139 of 362 Design-Builder’s Phase 2 Construction Services 2.7 Unless otherwise provided in the Contract Documents to be the responsibility of Owner 2.7.1 or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents. Design-Builder shall perform all construction activities efficiently and with the requisite 2.7.2 skill and competence to satisfy the requirements of the Contract Documents. Design- Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction. Design-Builder shall employ only Subcontractors who are duly licensed and qualified to 2.7.3 perform the Work consistent with the Contract Documents. Owner may reasonably object to Design-Builder’s selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts Design-Builder’s cost and/or time of performance. Design-Builder assumes responsibility to Owner for the proper performance of the Work 2.7.4 of Subcontractors and any acts, errors or omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party beneficiary rights. Design-Builder shall coordinate the activities of all Subcontractors. 2.7.5 If Owner performs other work on the Project or at the Site with separate contractors 2.7.6 under Owner’s control, Design-Builder agrees to reasonably cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption. Unreasonable disruption or interference by Owner’s separate contractors may result in a request for a Contract Adjustment under GC 8.1.3. Design-Builder shall keep the Site reasonably free from debris, trash and construction 2.7.7 wastes to permit Design-Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, Design-Builder 2.7.8 shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project for its intended use. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. Design-Builder’s Responsibility for Project Safety 2.8 Design-Builder recognizes the importance of performing the Work in a safe manner so as 2.8.1 to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all 140 of 362 safety precautions and programs related to the Work, and shall develop a Project Safety Program which shall be implemented at the Project Site during the performance of the Work. Unless otherwise required by the Contract Documents, Design-Builder’s Safety Representative shall be an individual stationed at the Site who may have responsibilities on the Project other than safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design-Builder’s personnel, Subcontractors and others as applicable. Design-Builder and Subcontractors shall comply with all Legal Requirements relating to 2.8.2 safety, as well as any Owner-specific safety requirements set forth in the Contract Documents and incorporated into the Project Safety Program, provided that such Owner- specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to Owner’s Representative and, to the extent mandated by Legal Requirements, to all government or quasi-government authorities having jurisdiction over safety-related matters involving the Project or the Work. Design-Builder’s responsibility for safety under this GC 2.8 is not intended in any way to 2.8.3 relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injury, losses, damages or accidents resulting from their performance of the Work. Owner shall require that its officers, employees, guests, visitors, and other contractors 2.8.4 entering the Project Site comply with the Project Safety Program then in effect. Construction Warranty 2.9 Design-Builder warrants to Owner that the construction, including all materials and 2.9.1 equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder’s warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work by persons other than Design-Builder or anyone for whose acts Design-Builder may be liable. Nothing in this warranty is intended to limit any manufacturer’s warranty which provides 2.9.2 Owner with greater warranty rights than set forth in this GC 2.9 or the Contract Documents. Design-Builder will provide Owner with all manufacturers’ warranties upon Substantial Completion. Correction of Defective Work 2.10 Construction Warranty Period . Design-Builder agrees to correct any Work that is 2.10.1 found not to be in conformance with the Contract Documents, including that part of the Work subject to GC 2.9, within a period of one (1) year from the date of Substantial Completion of the Work or any portion of the Work, or within such longer period to the extent required by the Contract Documents. Correction of Non-Conforming Work . Design-Builder shall, within seven (7) days 2.10.2 of receipt of written notice from Owner that the Work is not in conformance with the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven (7) day period, Owner may, in addition to any other remedies provided under 141 of 362 the Contract Documents, provide Design-Builder with written notice that Owner will commence correction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, Design-Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response, the seven (7) day periods identified herein shall be deemed inapplicable. The one (1) year period referenced in GC 2.10.1 applies only to Design-Builder’s 2.10.3 obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies Owner may have regarding Design-Builder’s other obligations under the Contract Documents. 142 of 362 Performance Warranty 2.11 Design-Builder warrants to Owner that the Facility will meet the Performance Warranty 2.11.1 set forth in Attachment F, Owner’s Project Criteria, including Design Criteria and Facility Performance Criteria. Such Performance Warranty shall apply when Design- Builder has achieved Substantial Completion and the Facility has been commissioned and started up in accordance with Design-Builder’s Commissioning and Start-up Manual, and is being maintained and operated by Owner’s personnel in accordance with the Operations and Maintenance Manual for the Facility. Such Performance Warranty shall be satisfied upon successful completion of the Performance Tests set forth in Attachment F. Design-Builder shall have no responsibility under the Extended Performance 2.11.2 Warranty to the extent that any failure of the Work is due to: (1) Owner action or non- action, such as (i) provision of inadequate staffing, (ii) failure to operate or maintain the Project in accordance with methods, standards and procedures generally recognized and accepted as good industry practices and with the Operation and Maintenance Information Systems prepared by Design-Builder, (iii) abuse, negligence or willful misconduct, or (iv) alteration of the Work; (2) Uncontrollable Circumstances; (3) Change in Law; (4) noncompliant operating conditions, such as raw [water or wastewater] influent not conforming to the parameters in Attachment F or other conditions exceeding the Project’s design criteria in Attachment F; (5) unavailability of supplies, spare parts, chemicals, power or other consumables or items necessary for operation and maintenance; or (6) impossibility or frustration of purpose. If the Work fails to satisfy the Extended Performance Warranty, Design-Builder 2.11.3 shall, upon written notice from Owner delivered not later than five days after any such failure, promptly begin and continue to take necessary actions (including training or support of Owner’s operation and maintenance staff; revision of operating or maintenance procedures; or modification or correction of equipment or facilities) to satisfy the Extended Performance Warranty. The costs of any such training or support of Owner’s operations staff or revision of operating procedures that are effective in achieving satisfaction of the Extended Performance Warranty shall be paid by Owner. The costs of any such modification or correction of equipment or facilities required to achieve satisfaction of the Extended Performance Warranty shall be paid by the Design- Builder without reimbursement from Owner. Before any necessary correction or modification of equipment or facilities is initiated by the Design-Builder, all reasonable efforts to satisfy the Performance Warranty through operational training, support and revision shall be completed and a plan indicating the scope and schedule for such work shall be prepared by the Design-Builder and approved by Owner. GC 3.0 Owner’s Services and Responsibilities Duty to Cooperate 3.1 Owner shall, throughout the performance of the Work, cooperate with Design-Builder 3.1.1 and perform its responsibilities, obligations and services in a timely manner to facilitate Design-Builder’s timely and efficient performance of the Work and so as not to delay or interfere with Design-Builder’s performance of its obligations under the Contract Documents. Owner shall provide reviews and approvals of interim design submissions and 3.1.2 Construction Documents consistent with the turn-around times set forth in the Schedule. 143 of 362 Owner’s review does not constitute acceptance of design errors or omissions, nor transfer design liability to Owner for the same. 144 of 362 Furnishing of Services and Information 3.2 Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, 3.2.1 at its own cost and expense, for Design-Builder’s information and use the following, all of which Design-Builder is entitled to rely upon in performing the Work: .1 Surveys describing the property boundaries, topography and reference points for use during construction, including existing service and utility lines; .2 Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site; .3 Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project, access to the Site and any off-site storage or lay-down areas, and to enable Design-Builder to perform the Work; .4 A legal description of the Site; .5 To the extent available, as-built and record drawings of any existing structures and utilities at the Site; and .6 To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site. Owner is responsible for securing and executing all necessary agreements with adjacent 3.2.2 land or property owners that are necessary to enable Design-Builder to perform the Work. Owner is further responsible for all costs, including attorneys’ fees, incurred in securing these necessary agreements. Financial Information 3.3 Design-Builder shall cooperate with the reasonable requirements of Owner’s lenders or 3.3.1 other financial sources. Notwithstanding the preceding sentence, after execution of the Agreement Design- 3.3.2 Builder shall have no obligation to execute for Owner or Owner’s lenders or other financial sources any documents or agreements that require Design-Builder to assume obligations or responsibilities greater than those existing obligations Design-Builder has under the Contract Documents. Design-Builder shall not be required as a condition of award or contract to waive or 3.3.3 subordinate its mechanic’s lien rights, if any, to Owner’s construction lender(s). Owner’s Representative 3.4 Owner’s Representative shall be responsible for providing Owner-supplied information 3.4.1 and approvals in a timely manner to permit Design-Builder to fulfill its obligations under the Contract Documents. Owner’s Representative shall also provide Design-Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors, omissions or defects in the performance of the Work. [Optional language: If Owner retains a third party as Owner’s Engineer or Owner’s 3.4.2 Program Manager, separately from Owner’s Representative, then Owner shall designate such third party in writing to Design-Builder, together with a statement of the respective roles, responsibility, and authority of each such party with respect to the administration of the contract, the approval of drawings and specifications, the issuance of instructions and change orders, the resolution of disputes, and the relative priority of the authority of such parties.] 145 of 362 Government Approvals and Permits 3.5 Owner shall obtain and pay for all necessary permits, approvals, licenses, government 3.5.1 charges and inspection fees set forth in the Owner’s Permit List attached as part of Attachment F, Owner’s Project Criteria. Owner shall provide reasonable assistance to Design-Builder in obtaining those permits, 3.5.2 approvals and licenses that are Design-Builder’s responsibility. Owner’s Separate Contractors 3.6 Owner is responsible for all work performed on the Project or at the Site by separate 3.6.1 contractors under separate agreements with Owner. Owner shall contractually require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, Design-Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents. Owner recognizes the importance that all work performed on the Project or at the Site by 3.6.2 separate contractors under separate agreements with Owner is performed in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site, and (iii) all other property at the Site or adjacent thereto. Owner shall require such separate contractors to assume responsibility for implementing and monitoring all safety precautions and programs related to the performance of their work. GC 4.0 Hazardous Conditions and Differing Site Conditions Hazardous Conditions 4.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work, 4.1.1 Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal Requirements, all government or quasi-government entities with jurisdiction over the Project or Site. Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall 4.1.2 take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless. Such necessary measures shall include Owner retaining qualified independent experts to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that Owner must take either to remove the Hazardous Conditions or render the Hazardous Conditions harmless. Design-Builder shall be obligated to resume Work at the affected area of the Project only 4.1.3 after Owner’s expert provides it with written certification that (i) the Hazardous Conditions have been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi-government entities having jurisdiction over the Project or Site. Design-Builder will be entitled, in accordance with these General Conditions, to an 4.1.4 equitable adjustment in its Contract Price and/or Contract Time(s) to the extent Design- Builder’s cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions. To the fullest extent permitted by law, Owner shall defend, indemnify and hold harmless 4.1.5 , Design-Builder, Design Consultants Subcontractors and Subsubcontractors, and the 146 of 362 agents, officers, directors and employees of each of them, from and against any and all claims, damages, losses, costs and expenses, whether direct, indirect or consequential, including but not limited to attorney's fees, costs and expenses incurred in connection with litigation or arbitration, arising out of or relating to the performance of the Work in any area affected by Hazardous Material. To the fullest extent permitted by law, such indemnification shall apply regardless of the fault, negligence, breach of warranty or contract, or strict liability of the indemnitee. Notwithstanding the preceding provisions of this GC 4.1, Owner is not responsible for 4.1.6 Hazardous Conditions introduced to the Site by Design-Builder, Design Consultants, Subcontractors or anyone for whose acts they may be liable. Design-Builder shall indemnify, defend and hold harmless Owner and Owner’s officers, directors, employees and agents from and against all claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses, arising out of or resulting from those Hazardous Conditions introduced to the Site by the parties identified in the first sentence of this GC 4.1.6. The terms of this GC 4.1 shall survive the completion of the Work under this Agreement 4.1.7 and/or any termination of this Agreement. Differing Site Conditions 4.2 Concealed or latent physical conditions or subsurface conditions at the Site that (i) 4.2.1 materially differ from the conditions indicated in the Contract Documents or (ii) are of an unusual nature, or (iii) differing materially from the conditions ordinarily encountered and generally recognized as inherent in the Work, are collectively referred to herein as “Differing Site Conditions.” If Design-Builder encounters a Differing Site Condition, Design-Builder will be entitled to an equitable adjustment in the Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance are adversely impacted by the Differing Site Condition. Upon encountering a Differing Site condition, Design-Builder shall provide prompt 4.2.2 written notice to Owner of such condition, which notice shall not be later than seven (7) days after such condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide such notice before the Differing Site Condition has been substantially disturbed or altered. GC 5.0 Payment Payment for Phase 1 Services 5.1 Design-Builder will submit an Application for Payment to Owner each month covering 5.1.1 Phase 1 services performed to date. Each Application for Payment will be prepared in the standard form agreed to by the parties and supported by required documentation. Schedule of Values for Phase 2 Services 5.2 Within ten (10) days of the Commencement Date, Design-Builder shall submit for 5.2.1 Owner’s review and approval a schedule of values for Phase 2 of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts, (ii) include values for all items comprising the Work and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the Work. Monthly Progress Payments 5.3 On or before the date established in the Agreement, Design-Builder shall submit for 5.3.1 Owner’s review and approval its Application for Payment requesting payment for all Work performed as of the date of the Application for Payment. The Application for 147 of 362 Payment shall be accompanied by all supporting documentation required by the Contract Documents and/or established at the meeting required by GC 2.1.4. The Application for Payment may request payment for equipment and materials not yet 5.3.2 incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials are suitably stored at either the Site or another acceptable location, (ii) the equipment and materials are protected by suitable insurance and (iii) upon payment, Owner will receive the equipment and materials free and clear of all liens and encumbrances. The Application for Payment shall constitute Design-Builder’s representation that the 5.3.3 Work has been performed consistent with the Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project, or upon Design-Builder’s receipt of payment, whichever occurs earlier. Withholding of Payments; Payment of Undisputed Amounts 5.4 On or before the date established in the Agreement, Owner shall pay Design-Builder all 5.4.1 amounts properly due, including the release of retention under Section 7.3.1 of the Agreement. If Owner determines that Design-Builder is not entitled to all or part of an Application for Payment, it will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice shall indicate the specific amounts Owner intends to withhold, the reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectify Owner’s concerns. Design-Builder and Owner will attempt to resolve Owner’s concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract Documents, including those under GC 8.0. Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay 5.4.2 Design-Builder all undisputed amounts in an Application for Payment within the times required by the Agreement. Right to Stop Work and Interest 5.5 If Owner fails to pay Design-Builder any amount that becomes due, Design-Builder, in 5.5.1 addition to all other remedies provided in the Contract Documents, may stop Work pursuant to GC 9.4. All payments due and unpaid shall bear interest at the rate set forth in Section 7.5 of the Agreement. Design-Builder’s Payment Obligations 5.6 Design-Builder will pay any Subcontractors and Design Consultants, in accordance with 5.6.1 applicable law and its contractual obligations to such parties, all the amounts Design- Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Subcontractors and Design Consultants to pay those parties with whom they have contracted. Providing that Owner is not in breach of its contractual obligation to make payments to 5.6.2 Design-Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic’s liens brought against Owner or against the Project as a result of the failure of Design-Builder, or those for whose acts it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within ten (10) days of receiving written notice from Owner that such a claim or mechanic’s lien has been filed, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic’s lien bond. If Design-Builder 148 of 362 fails to do so, Owner will have the right to discharge the claim or lien and charge Design- Builder with any costs and expenses incurred, including attorneys’ fees. Substantial Completion 5.7 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted 5.7.1 in the Contract Documents, a portion of the Work, is substantially complete. Within five (5) days of Owner’s receipt of Design-Builder’s notice, Owner and Design-Builder will jointly inspect such Work to verify that it is substantially complete in accordance with the requirements of the Contract Documents. If such Work is substantially complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or portion thereof, (ii) the remaining items of Work that have to be completed before final payment, (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner’s and Design-Builder’s responsibility for the Project’s security, maintenance, utilities and insurance pending final payment, and (iv) an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. Upon Substantial Completion of the entire Work or, if applicable, any portion of the 5.7.2 Work, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion. Owner, at its option, may use a portion to the Work which has been determined to be 5.7.3 substantially complete, provided that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in GC 5.7.1, (ii) Design- Builder and Owner have obtained the consent of their sureties and insurers, and (iii) Owner and Design-Builder, agree that Owner’s use or occupancy will not interfere with Design-Builder’s completion of the remaining Work. Upon Substantial Completion, Design-Builder shall conduct performance testing of the 5.7.4 Facility using Owner’s operations and maintenance staff to demonstrate that the Performance Criteria set forth in Attachment F, Owner’s Project Criteria, have been satisfied and that the Performance Guarantees have been met. Final Payment 5.8 After receipt of a Final Application for Payment from Design-Builder, Owner shall make 5.8.1 final payment by the time required in the Agreement, provided that Design-Builder has completed all of the Work in conformance with the Contract Documents. At the time of submission of its Final Application for Payment, Design-Builder shall 5.8.2 provide the following information: 1)an affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner’s interests; 2)a general release executed by Design-Builder waiving, upon receipt of final payment by Design-Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment; 3)consent of Design-Builder’s surety, if any, to final payment; 149 of 362 4)a certificate demonstrating that performance testing is complete and that the Performance Guarantees set forth in Attachment F, Owner’s Project Criteria, have been met; 5) all operating manuals, warranties and other deliverables required by the Contract Documents; and 6)certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract Documents. Upon making final payment, Owner waives all claims against Design-Builder except 5.8.3 claims relating to (i) Design-Builder’s failure to satisfy its payment obligations, if such failure affects Owner’s interests, (ii) Design-Builder’s failure to complete the Work consistent with the Contract Documents, including defects appearing after Substantial Completion, (iii) the terms of any special warranties required by the Contract Documents, and (iv) claims which are identified as unsettled at the time of making final payment. Final payment by Owner shall constitute Final Acceptance of the Project for all purposes 5.8.4 hereunder, subject to Design-Builder’s remaining warranty obligations and any remaining indemnity obligations hereunder. Acceptance of final payment by the Design-Builder, a Subcontractor or material supplier 5.8.5 shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. GC 6.0 Time Obligation to Achieve the Contract Times 6.1 Design-Builder agrees that it will commence performance of the Work and achieve the 6.1.1 Contract Time(s) in accordance with Article 5.0 of the Agreement. Delays to the Work 6.2 If Design-Builder is delayed in the performance of the Work due to Uncontrollable 6.2.1 Circumstances, the Contract Time(s) for performance shall be reasonably extended by Change Order, and the Schedule adjusted accordingly. In addition to Design-Builder’s right to a time extension for delays in the Work under GC 6.2.2 6.2.1, Design-Builder shall also be entitled to an equitable adjustment of the Contract Price and equitable commutation of any Liquidated Damages under Section 5.4 of the Agreement. GC 7.0 Changes to the Contract Price and Time Change Orders 7.1 A Change Order is a written instrument issued after execution of the Agreement signed 7.1.1 by Owner and Design-Builder, stating their agreement upon all of the following: .1 The scope of the change in the Work; .2 The amount of the adjustment to the Contract Price; and .3 The extent of the adjustment to the Contract Time(s) and Schedule. All changes in the Work authorized by applicable Change Order shall be performed 7.1.2 under the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes. 150 of 362 If Owner requests a proposal for a change in the Work from Design-Builder and 7.1.3 subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse Design-Builder for reasonable costs incurred for estimating services, design services and services involved in the preparation of proposed revisions to the Contract Documents. Work Change Directives 7.2 A Work Change Directive is a written order prepared and signed by Owner, directing a 7.2.1 change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract Time(s). Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible 7.2.2 the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement. If Owner has requested a proposal for a change in the Work from Design-Builder, Owner 7.2.3 shall notify Design-Builder as expeditiously as possible whether such proposal is accepted. Design-Builder shall not commence changed work until a written Work Change Directive or Change Order has been delivered by Owner. The parties recognize that delay in response to such proposals may increase the impact or cost of the Change. Minor Changes in the Work 7.3 Minor changes in the Work do not involve an adjustment in the Contract Price and/or 7.3.1 Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however, that Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Design-Builder. Contract Price Adjustments 7.4 The increase or decrease in Contract Price resulting from a change in the Work shall be 7.4.1 determined by one or more of the following methods: .1 unit prices set forth in the Agreement or as subsequently agreed between the parties (which may include daily or monthly overhead rates for the extension of services); .2 a mutually-accepted lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner; .3 costs, fees and any other markups set forth in the Agreement; and .4 if an increase or decrease cannot be agreed to as set forth in items .1 through .3 8 above and Owner issues a Work Change Directive, the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change, including a reasonable overhead and profit, as may be set forth in the Agreement. If the net result of both additions and deletions to the Work is an increase or a decrease in the Contract Price, overhead and profit shall be calculated on the basis of the net increase or decrease to the Contract Price. Design-Builder shall maintain a documented, itemized accounting evidencing the expenses and savings associated with such changes. If unit prices are set forth in the Contract Documents or are subsequently agreed to by the 8.1.1 parties, but application of such unit prices will cause substantial inequity to Owner or Design-Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted. 151 of 362 If Owner and Design Builder disagree upon whether Design-Builder is entitled to be paid 8.1.2 for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed changes to the Work, Owner and Design-Builder shall resolve the disagreement pursuant to GC 8.0. As part of the negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner’s interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the services in accordance with Owner’s interpretations, Design-Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design-Builder (i) directing Design- Builder to proceed and (ii) specifying Owner’s interpretation of the services that are to be performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the express understanding that (i) such payment by Owner does not prejudice Owner’s right to argue that it has no responsibility to pay for such services and (ii) receipt of such payment by Design-Builder does not prejudice Design-Builder’s right to seek full payment of the disputed services if Owner’s order is deemed to be a change to the Work. Emergencies 8.2 In any emergency affecting the safety of persons and/or property, Design-Builder shall 8.2.1 act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price and/or Contract Time(s) on account of emergency work shall be determined as provided in this GC 7.0. GC 8.0 Contract Adjustments and Disputes Requests for Contract Adjustments and Relief 8.1 If either Design-Builder or Owner believes that it is entitled to relief against the other for 8.1.1 any Changed Condition arising out of or related to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. A Changed Condition may include a Change in Law following the date of Design- 8.1.2 Builder’s proposal to Owner which has a material impact on the cost of the Work, the Schedule, the Performance Criteria, or other aspects of Design-Builder’s performance hereunder. Changed Conditions may include Uncontrollable Circumstances having an impact on 8.1.3 Design-Builder’s cost of the Work, the Schedule, the Performance Criteria, or other aspects of Design-Builder’s performance hereunder. Such notice shall, if possible, be made prior to incurring any cost or expense and in 8.1.4 accordance with any specific notice requirements contained in applicable sections of these General Conditions. In the absence of any specific notice requirement, written notice shall be given within a reasonable time, not to exceed twenty-one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later. Such notice shall include sufficient information to advise the other party of the 8.1.5 circumstances giving rise to the claim for relief, and, if then available, the specific contractual adjustment or relief requested and the basis of such request. Dispute Avoidance and Resolution 8.2 152 of 362 The parties are fully committed to working with each other throughout the Project and 8.2.1 agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Design-Builder and Owner each agree to resolve such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work. Design-Builder and Owner will first attempt to resolve disputes or disagreements at the 8.2.2 Project level through discussions between Design-Builder’s Representative and Owner’s Representative. If a dispute or disagreement cannot be resolved through Design-Builder’s Representative 8.2.3 and Owner’s Representative, upon the request of either party, then the matter shall be referred to the Senior Representatives of each party for resolution. Design-Builder’s Senior Representative and Owner’s Senior Representative shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute or disagreement. Prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement. If, after meeting, the Senior Representatives determine that the dispute or disagreement 8.2.4 cannot be resolved on terms satisfactory to both parties, then the parties shall submit the dispute or disagreement to non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration Association (“AAA”) pursuant to its Construction Industry Mediation Rules. The mediation will be governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot so agree, by procedures established by the mediator. Any claims, disputes or controversies between the parties arising out of or relating to the Agreement, or the breach thereof, which have not been resolved in accordance with the procedures set forth in GC 8.2, shall be decided by court of competent jurisdiction. In any final, binding dispute proceeding upon which the parties may agree, each party 8.2.5 shall be responsible for its own legal costs, including attorneys’ fees. 8.2Duty to Continue Performance 8.3.1Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to perform the Work and Owner shall continue to satisfy its payment obligations to Design-Builder, pending the final resolution of any dispute or disagreement between Design-Builder and Owner. GC 9.0 Suspension and Termination Owner’s Right to Stop Work 9.1 Owner may, without cause and for its convenience, order Design-Builder in writing to 9.1.1 stop and suspend the Work. Such suspension shall not exceed sixty (60) consecutive days or aggregate more than ninety (90) days during the duration of the Project. Design-Builder is entitled to an equitable adjustment of the Contract Price and/or 9.1.2 Contract Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension of stoppage of work by Owner. Termination for Convenience 9.2 153 of 362 Upon ten (10) days’ written notice to Design-Builder, Owner may, for its convenience 9.2.1 and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following: .1 All Work executed and for proven loss, cost or expense in connection with such Work; .2 The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants; and .3 .1.2 The fair and reasonable sums for overhead and profit on the sum of items and above. If Owner terminates this Agreement pursuant to GC 9.2.1 and proceeds to design and 9.2.2 construct the Project through its employees, agents or third parties, Owner’s rights to use the Work product shall be as set forth in Section 4.3 (“Owner’s Limited License upon Owner’s Termination for Convenience or Design-Builder’s Election to Terminate”). Owner’s Right to Perform and Terminate for Cause 9.3 If Design-Builder persistently falls to (i) provide a sufficient number of skilled workers, 9.3.1 (ii) supply the materials required by the Contract Documents, (iii) comply with applicable Legal Requirements, (iv) timely pay, without cause, Subcontractors, (v) prosecute the Work with promptness and diligence to ensure that the Work is completed by the Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract Documents, then Owner, in addition to any other rights and remedies provided in the Contract Documents or by law, shall have the rights set forth in GC 9.3.2, 9.3.3, and 9.3.4. Upon the occurrence of an event set forth in GC 9.3.1, Owner may provide written notice 9.3.2 to Design-Builder that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Design-Builder’s receipt of such notice. If Design-Builder fails to cure, or reasonably commence to cure, such problem, then Owner may give a second written notice to Design-Builder of its intent to terminate within an additional seven (7) day period. If Design-Builder, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Owner may declare the Agreement terminated for default by providing written notice to Design-Builder of such declaration. Upon declaring the Agreement terminated pursuant to GC 9.3.2, Owner may enter upon 9.3.3 the premises and take possession, for the purpose of completing the Work, of all materials, equipment, scaffolds, tools, appliances and other items thereon, which have been purchased or provided for the performance of the Work, all of which Design- Builder hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to complete the Work and provide all of the required labor, services, materials, equipment and other items. In the event of such termination, Design-Builder shall not be entitled to receive any 9.3.4 further payments under the Contract Documents until the Work shall be finally completed in accordance with the Contract Documents. At such time, if the unpaid balance of the Contract Price exceeds the cost and expense incurred by Owner in completing the Work, such excess shall be paid by Owner to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work performed prior to its default. If Owner’s cost and expense of completing the Work exceeds the unpaid balance of the Contract Price, then Design-Builder shall be obligated to pay the difference to Owner. Such costs and expense shall include not only the cost of completing the Work, but also losses, damages, costs and expense, including attorneys’ fees and expenses, incurred by Owner in 154 of 362 connection with the reprocurement and defense of claims arising from Design-Builder’s default, subject to the waiver of consequential damages set forth in GC 2.12.2. If Owner improperly terminates the Agreement for cause, the termination for cause will 9.3.5 be converted to a termination for convenience in accordance with the provisions of GC 9.2. Design-Builder’s Right to Stop Work 9.4 Design-Builder may, in addition to any other rights afforded under the Contract 9.4.1 Documents or at law, stop work for the following reasons: .1 Owner’s failure to pay amounts properly due under Design-Builder’s Application for Payment. Should an event set forth in GC 9.4.1 occur, Design-Builder may provide Owner with 9.4.2 written notice that Design-Builder will stop work unless such event is cured within seven (7) days from Owner’s receipt of Design-Builder’s notice. If Owner does not cure the problem within such seven (7) day period, Design-Builder may stop work. In such case, Design-Builder may make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been adversely impacted by such stoppage. Design-Builder’s Right to Terminate for Cause 9.5 Design-Builder, in addition to any other rights and remedies provided in the Contract 9.5.1 Documents or by law, may terminate the Agreement for cause for the following reasons: .1 The Work has been stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, because of a court order, any government authority having jurisdiction over the Work, or orders by Owner under GC 9.1.1, provided that such stoppages are not due to the acts or omissions of Design-Builder or anyone for whose acts Design-Builder may be responsible; or .2 Owner’s failure to provide Design-Builder with any information, permits or approvals that are Owner’s responsibility under the Contract Documents which result in the Work being stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, even though Owner has not ordered Design-Builder in writing to stop and suspend the Work pursuant to GC 9.1.1; or .3 Owner’s failure to cure the problems set forth in GC 9.4.1 after Design-Builder has stopped the Work. Upon the occurrence of an event set forth in GC 9.5.1, Design-Builder may provide 9.5.2 written notice to Owner that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Owner’s receipt of such notice. If Owner fails to cure, or reasonably commence to cure, such problem, then Design-Builder may give a second written notice to Owner of its intent to terminate within an additional seven (7) day period. If Owner, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Design-Builder may declare the Agreement terminated for default by providing written notice to Owner of such declaration. In such case, Design-Builder shall be entitled to recover in the same manner as if Owner had terminated the Agreement for its convenience under GC 9.2. Bankruptcy of Owner or Design-Builder 9.6 If either Owner or Design-Builder institutes or has instituted against it a case under the 9.6.1 United States Bankruptcy Code (such party being referred to as the “Bankrupt Party”), such event may impair or frustrate the Bankrupt Party's ability to perform its obligations under the Contract Documents. Accordingly, should such event occur: 155 of 362 .1 The Bankrupt Party, its trustee or other successor, shall furnish, upon request of the non- Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to perform all future material obligations under the Contract Documents, which assurances shall be provided within ten (10) days after receiving notice of the request; and .2 The Bankrupt Party shall file an appropriate action within the bankruptcy court to seek assumption or rejection of the Agreement within sixty (60) days of the institution of the bankruptcy filing and shall diligently prosecute such action. If the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt Party shall be entitled to request the bankruptcy court to reject the Agreement, declare the Agreement terminated and pursue any other recourse available to the non-Bankrupt Party under this GC 9.0. The rights and remedies under GC 9.6.1 shall not be deemed to limit the ability of the 9.6.2 non-Bankrupt Party to seek any other rights and remedies provided by the Contract Documents or by law, including its ability to seek relief from any automatic stays under the United States Bankruptcy Code or the right of Design-Builder to stop Work under any applicable provision of these General Conditions. GC 10.0 Miscellaneous Assignment 10.1 Neither Design-Builder nor Owner shall without the written consent of the other, assign, 10.1.1 transfer or sublet any portion or part of the Work or the obligations required by the Contract Documents. Successorship 10.2 Design-Builder and Owner intend that the provisions of the Contract Documents are 10.2.1 binding upon the parties, their employees, agents, heirs, successors and assigns. Governing Law 10.3 The Agreement and all Contract Documents shall be governed by the laws of the place of 10.3.1 the Project, without giving effect to its conflict of law principles. Severability 10.4 If any provision or any part of a provision of the Contract Documents shall be 10.4.1 finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any applicable Legal Requirements, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of the Contract Documents, which shall remain in full force and effect as if the unenforceable provision or part were deleted. No Waiver 10.5 The failure of either Design-Builder or Owner to insist, in any one or more 10.5.1 instances, on the performance of any of the obligations required by the other under the Contract Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance. Headings 10.6 The headings used in these General Conditions or any other Contract Document, 10.6.1 are for ease of reference only and shall not in any way be construed to limit or alter the meaning of any provision. Notice 10.7 Whenever the Contract Documents require that notice be provided to the other 10.7.1 party, notice will be deemed to have been validly given (i) if delivered in person to the 156 of 362 individual intended to receive such notice, (ii) four (4) days after being sent by registered or certified mail, postage prepaid to the address indicated in the Agreement , (iii) if transmitted by facsimile, by the time stated in a machine-generated confirmation that notice was received at the number of the intended recipient, or (iv) if transmitted by e- mail to the individual to whom such notice is required to be given, by the time stated in a machine-generated confirmation that notice was received at the e-mail address of the intended recipient. Amendments 10.8 The Contract Documents may not be changed, altered, or amended in any way 10.8.1 except in writing signed by a duly authorized representative of both parties. Third Parties 10.9 The services to be performed by Design-Builder are intended solely for the benefit of the 10.9.1 Owner. No person or entity not a signatory to this Agreement shall be entitled to rely on the Design-Builder’s performance of its services hereunder, and no right to assert a claim against the Design-Builder by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of the Design-Builder’s services hereunder. Special Conditions: See Attachment G - Special Conditions 26 – 34 (From RFP) 10.10 GC 11.0 Electronic Data Electronic Data. 11.1 The parties recognize that Contract Documents, including drawings, specifications and 11.1.1 three-dimensional modeling (such as Building Information Models) and other Work Product may be transmitted among Owner, Design-Builder and others in electronic media as an alternative to paper hard copies (collectively “Electronic Data”). Transmission of Electronic Data 11.2 Owner and Design-Builder shall agree upon the software and the format for the 11.2.1 transmission of Electronic Data. Each party shall be responsible for securing the legal rights to access the agreed-upon format, including, if necessary, obtaining appropriately licensed copies of the applicable software or electronic program to display, interpret and/or generate the Electronic Data. Neither party makes any representations or warranties to the other with respect to 11.2.2 the functionality of the software or computer program associated with the electronic transmission of Work Product. Unless specifically set forth in the Agreement, ownership of the Electronic Data does not include ownership of the software or computer program with which it is associated, transmitted, generated or interpreted. By transmitting Work Product in electronic form, the transmitting party does not transfer 11.2.3 or assign its rights in the Work Product. The rights in the Electronic Data shall be as set forth in Article 4.0 of the Agreement (“Ownership of Work Product”). Under no circumstances shall the transfer of ownership of Electronic Data be deemed to be a sale by the transmitting party of tangible goods. Electronic Data Protocol 11.3 The parties acknowledge that Electronic Data may be altered or corrupted, 11.3.1 intentionally or otherwise, due to occurrences beyond their reasonable control or knowledge, including but not limited to compatibility issues with user software, manipulation by the recipient, errors in transcription or transmission, machine error, 157 of 362 environmental factors, and operator error. Consequently, the parties understand that there is some level of increased risk in the use of Electronic Data for the communication of design and construction information and, in consideration of this, agree, and shall require their independent contractors, Subcontractors and Design Consultants to agree, to the following protocols, terms and conditions set forth in this GC 11.3. Electronic Data will be transmitted in the format agreed upon in GC 11.2.1, including file 11.3.2 conventions and document properties, unless prior arrangements are made in advance in writing. The Electronic Data represents the information at a particular point in time and is subject 11.3.3 to change. Therefore, the parties shall agree upon protocols for notification by the author to the recipient of any changes which may thereafter be made to the Electronic Data, which protocol shall also address the duty, if any, to update such information, data or other information contained in the electronic media if such information changes prior to Final Completion of the Project. The transmitting party specifically disclaims all warranties, expressed or implied, 11.3.4 including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, with respect to the media transmitting the Electronic Data. However, transmission of the Electronic Data by electronic means shall not invalidate or negate any duties pursuant to the applicable standard of care with respect to the creation of the Electronic Data, unless such data is materially changed or altered after it is transmitted to the receiving party, and the transmitting party did not participate in such change or alteration. THIS PAGE INTENTIONALLY LEFT BLANK ATTACHMENT E INDEMNITY, INSURANCE & BONDING 1.0 Indemnity The parties agree that one percent (1%) of the total compensation paid to Design-Builder 1.1 for the Work under this Agreement shall constitute specific consideration to Design- Builder for the indemnification to be provided under this Agreement. To the fullest extent permitted by law, Design-Builder shall defend, indemnify and hold Owner, its officers and employees harmless from and against any and all claims, liability, damages, losses, causes of action and/or costs including but not limited to reasonable attorney’s fees to the extent they may arise from any breach of contract or are caused by the negligence, recklessness or intentional wrongful conduct of Design-Builder or persons employed or utilized by Design-Builder, or anyone acting under the authority and control of Design- Builder in the performance of the Work. As provided in Section 725.06, Florida Statutes, the Design-Builder’s indemnification obligation shall not exceed Thirty Million and 00/100 Dollars ($30,000,000.00). Design-Builder shall not be required to defend, indemnify or hold harmless Owner for any acts, omissions or negligence of Owner, Owner’s employees, agents or separate contractors. This provision shall survive expiration and termination of this Agreement. Owner shall cause any other contractor who may have a contract with Owner to perform 1.2 work in the areas where Work will be performed under this Agreement, to agree to indemnify and defend Design-Builder, Subcontractors or anyone employed directly or 158 of 362 indirectly by any of them or anyone for whose acts any of them may be liable and hold them harmless from all claims for bodily injury and property damage, other than property insured under Section 5.0, that may arise from that contractor’s operations. Such provisions shall be in a form satisfactory to Design-Builder. If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed 1.3 directly or indirectly by any of them, or anyone for whose acts any of them may be liable has a claim against Owner, its officers, directors, employees, or agents, then Design- Builder’s indemnity obligation set forth in Section 1.1 above shall not be limited by any limitation on the amount of damages, compensation, or benefits payable by or for Design-Builder, Design Consultants, Subcontractors, or other entity under any employee benefit acts, including workers’ compensation or disability acts. Legal counsel to conduct any defense in any such proceeding shall be mutually agreed to 1.4 by City and Design-Builder, and all costs and fees associated therewith including any costs or fees of an appeal shall be the responsibility of Design-Builder under the indemnification agreement. Nothing contained herein is intended nor shall it be construed to waive City’s rights and immunities under the common law or Florida Statute 768.28 as amended from time to time. This obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party described in this Paragraph and its subparts. 2.0 Design-Builder’s Insurance See Attachment G – Special Conditions 21 (From RFP). Excess Liability Insurance above the required Commercial General, Commercial 2.1 Automobile, and Employer’s Liability insurance to result in overall liability coverage in the amount of $20,000,000 annual aggregate limit. For Contractor’s Pollution Liability Errors and Omissions Insurance see Attachment G – 2.2 Special Conditions 22 (From RFP). The policies shall contain a provision that coverage will not be canceled or not renewed 2.3 until at least thirty (30) days' prior written notice has been given to Owner. Certificates of insurance showing required coverage to be in force shall be filed with Owner prior to commencement of the Work. Products and Completed Operations insurance shall be maintained for a minimum period 2.4 of at least two year(s) after either ninety (90) days following the date of Substantial Completion or final payment, whichever is earlier. The insurance limits stated in this Attachment E may be satisfied through a combination 2.5 of underlying and excess or umbrella coverage. Subcontractors . Design-Builder shall require that all Subcontractors working on the 2.6 Project secure and maintain the same insurance coverages required for Design-Builder for workers’ compensation insurance, employer’s liability insurance, commercial automotive liability insurance and commercial general liability insurance and other financial sureties required by applicable law in connection with their presence and the performance of their duties pursuant to this Agreement; provided that Owner may approve lower limits for specific subcontractors pursuant to a request submitted by Design-Builder to Owner prior to any work being performed by the subcontractor. Design-Builder shall require that all subcontractors performing engineering services and all subcontractors performing work with potential pollution liability risk secure and maintain Professional Liability or Pollution Liability insurance coverage, respectively, 159 of 362 with such coverage limits commensurate with the scope of the subcontract work performed. Owner, Design-Builder and all other parties required of Design-Builder shall be named as additional insured on subcontractor’s required commercial general liability insurance policy. Alternatively, Design-Builder may obtain and maintain said policies and sureties on the subcontractor’s behalf. See Attachment G - Special Conditions see 21d and 23 3.0 Professional Liability Insurance - (From RFP). 4.0 Owner’s Liability Insurance Owner shall be responsible for obtaining and maintaining its own liability insurance. 4.1 Insurance for claims arising out of the performance of this Agreement may be purchased and maintained at Owner’s discretion. If Owner hires separate contractors for with respect to the Project or for any portion of 4.2 the Work, then Owner shall require that such separate contractors waive any insurers’ rights of subrogation against the Design-Builder and its Subcontractors, Design Consultants, and their officers, directors, and employees. See Attachment G- Special Conditions 24 (From RFP). 5.0 Insurance to Protect Project - If Owner occupies or uses a portion of the Project prior to its Substantial Completion, 5.1 such occupancy or use shall not commence prior to a time mutually agreed to by Owner and Design-Builder and to which the insurance company or companies providing the property insurance have consented by endorsing the policy or policies. This insurance shall not be canceled or lapsed on account of partial occupancy. Consent of Design- Builder to such early occupancy or use shall not be unreasonably withheld. Owner shall obtain and maintain boiler and machinery insurance as necessary. The 5.2 interests of Owner, Design-Builder, Subcontractors and Subsubcontractors shall be protected under this coverage. Upon Substantial Completion and during any period of startup, testing, commissioning, 5.3 or initial operation of the Project, Owner shall obtain and maintain insurance with respect thereto consistent with that insurance which Owner obtains and maintains with respect to any damage or loss to its permanent plant during commercial operation. Design-Builder, Subcontractors and Subsubcontractors shall be named as additional insured on such insurance, and Owner hereby waives any rights of subrogation with respect thereto. 6.0 Property Insurance Loss Adjustment Any insured loss shall be adjusted with Owner and Design-Builder and made payable to 6.1 Owner and Design-Builder as trustees for the insureds, as their interests may appear, subject to any applicable mortgagee clause. Upon the occurrence of an insured loss, monies received will be deposited in a separate 6.2 account and the trustees shall make distribution in accordance with the agreement of the parties in interest, or in the absence of such agreement, in accordance with a mediation agreement, or, if not resolved through mediation, then by an arbitration award pursuant to arbitration. If the trustees are unable to agree between themselves on the settlement of the loss, such dispute shall also be submitted for resolution by mediation or arbitration. 7.0 Waiver of Subrogation Owner and Design-Builder waive all rights against each other, and any of their respective 7.1 employees, agents, consultants, subcontractors and subsubcontractors for damages caused by risks covered by insurance provided in Section 5.0 to the extent they are covered by that insurance, except such rights as they may have to the proceeds of such insurance held by Owner and Design-Builder as trustees. Design-Builder shall require similar waivers 160 of 362 from all Subcontractors, and shall require each of them to include similar waivers in their subsubcontracts and consulting agreements. Owner waives subrogation against Design-Builder, Subcontractors and 7.2 Subsubcontractors on all property and consequential loss policies carried by Owner on adjacent properties and under property and consequential loss policies purchased for the Project after its completion. If the policies of insurance referred to in this Section require an endorsement to provide 7.3 for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed. Bonding -See Attachment G - Special Conditions 25 (From RFP). 8.0 ATTACHMENT F OWNER’S PERMIT LIST SECTION 1 1.0Owners Permit List 1.1Phase 1 - Pat & Suzanne develop list 1.2Phase 2 2.0Design Builders Permit List 2.1Phase 1 – Pat & Suzanne develop list 2.2Phase 2 ATTACHMENT G SPECIAL CONDITIONS 1. The DESIGN/BUILD FIRM shall prepare invitation to bids, or request for proposals when applicable, for all procurements of long lead items, materials and services, for subcontractor contracts and for site utilities. 2. The DESIGN/BUILD FIRM may elect to use its own forces for portions of the Work to be performed. However, DESIGN/BUILD FIRM will be limited to 30% of the on-site construction Work if such the decision to self-perform is made. 3. The CITY encourages the utilization of local businesses within the CITY of Boynton Beach city limits therefore DESIGN/BUILD FIRM shall make every effort to engage local contractors to enhance the local economy. 161 of 362 4. Invitation to Bid documents prepared by the DESIGN/BUILD FIRM for such solicitations shall include the non-technical documents consisting of the necessary bidding information; General Conditions of the Contract, Supplementary General Conditions of the Contract and Division One of the specifications, proposal and contract form. Said documents may be provided by the CITY at the DESIGN/BUILD FIRM’s request. Solicitations shall be prepared with the following guidelines: a. Purchases of materials, supplies, rental or leases of equipment amounting to less than $1,200 each may be completed without bids or quotes. However, such purchases must be reasonably necessary to expedite work on the project, and these purchases must be documented with a receipt from the vendor. The DESIGN/BUILD FIRM shall not divide or separate procurements in order to avoid the requirements set forth. b. Contracts over $1,200 but not exceeding $75,000 require that the DESIGN/BUILD FIRM seek three (3) verbal quotations in conformance with the DESIGN/BUILD FIRM’s scope of work and budgeted amount. Design/Build Firm must document these purchases showing the three (3) firms verbally contacted with their respective prices. The DESIGN/BUILD FIRM shall not divide or separate procurements in order to avoid the requirements set forth. c. Contracts over $75,000 require that the DESIGN/BUILD FIRM request three (3) written quotes in conformance with the DESIGN/BUILD FIRM’s scope of work and budgeted amount. d. Contracts exceeding $75,000 shall be conducted under a formal Bid process. The DESIGN/BUILD FIRM may seek sealed bids from qualified firms who submit the lowest responsive, responsible bid. The DESIGN/BUILD FIRM shall advertise these projects at least once in a newspaper or general circulation in Palm Beach County appearing at least twenty-one (21) calendar days prior to the established bid opening and at least five (5) days prior to any scheduled pre-bid conference. These sealed bids/proposals must be delivered at the location, date and time named by the DESIGN/BUILD FIRM stated in bid advertisement and subsequent invitation to bid documents. A tabulation sheet shall be furnished to the CITY and to each firm, if requested. 5. As part of such preparation, the DESIGN/BUILD FIRM shall review the specifications and drawings. Ambiguities, conflicts or lack of clarity in language, use of illegally restrictive requirements, and any other defects in the specifications or in the drawings noted by the DESIGN/BUILD FIRM shall be brought to the attention of the Project Manager and Permitting agency(ies) in written form and simultaneously corrected. 6. For each separate construction contract exceeding $75,000, the DESIGN/BUILD FIRM may conduct a pre-bid conference with bidders and the Project Manager. In the event questions are raised which require an interpretation of the bidding documents or otherwise indicate a need for clarification or correction of the invitation, the DESIGN/BUILD FIRM shall prepare an addendum to the bidding document, issuing same to all the prequalified bidders. 7. Quality Control: The DESIGN/BUILD FIRM shall develop and maintain a program acceptable to the CITY, to assure quality control of the construction. The DESIGN/BUILD FIRM shall supervise the work of all subcontractors providing insurance to each when their work does not conform to the requirements of the plans and specifications and it shall continue to exert its influence and control over each subcontractor to ensure that corrections are made in a timely manner so as to not affect the efficient progress of the work. Should disagreement occur between 162 of 362 the DESIGN/BUILD FIRM over acceptability of work and conformance with the requirements of the specifications and plans, the CITY shall be the final judge of performance and acceptability. 8. Subcontracting Interfacing: The DESIGN/BUILD FIRM shall be the sole point of interface with all subcontractors for the CITY and all of its agents and representatives. It shall negotiate all change orders, field orders, and request for proposals, with all affected subcontractors and shall review the costs of those proposals and advise the CITY of their validity and reasonableness, acting in the CITY’s best interest prior to requesting approval of each change order from the CITY. Before any work is begun on any change order, a written authorization and approval from the CITY must be issued. However, when health and safety are threatened, the DESIGN/BUILD FIRM shall act immediately to remove the threat. It shall also carefully review all shop drawings and then issue the shop drawings to the affected subcontractor for fabrication or revision. The DESIGN/BUILD FIRM shall maintain a suspense control system to promote expeditious handling. It shall make interpretations of the drawings or specifications requested by the subcontractors and shall maintain said suspense control system to promote timely response. The Project Manager must be informed when the timely response is not occurring on any of the above. 9. Permits: The DESIGN/BUILD FIRM shall secure all necessary permits, the cost of which will be considered a direct cost item. 10. Job Site Requirements: The DESIGN/BUILD FIRM shall provide for each of the following activities as a part of its Construction Phase fee: a. Provide a safety program for the project to meet CITY and OSHA requirements. Monitor for subcontractor compliance without relieving them of the responsibilities to perform work in accordance with the best acceptable practice. b. Maintain a log of daily activities, including manpower records, weather, delays, major decisions, etc. c. Maintain a roster of companies on the project with name and telephone numbers of key personnel. d. Establish and enforce job rule governing parking, clean-up, use of facilities and worker discipline. e. Provide labor relations management for a harmonious, productive project. f. Provide a quality control program as per Section 3.2 (F) herein. g. Miscellaneous office supplies that support the construction efforts which are consumed by its own forces. h. Travel to and from its home office to the project site as the project requires shall be reimbursed thru the GMP. The DESIGN/BUILD FIRM shall provide personnel and equipment or shall arrange for separate subcontracts to provide each of the following as a direct cost item: a. Schedule the services of independent testing laboratories and provide the necessary testing of materials to ensure conformance to contract requirements. b. The printing and distribution of all required bidding documents and shop drawings, including the sets required by the Permitting Agency(ies) inspectors. 163 of 362 11. Job Site Job Site Administration: The DESIGN/BUILD FIRM shall provide as part of its job site fee, job site administration functions during construction to assure proper documentation, including but not limited to such things as follows: Job Meetings – Hold weekly progress meetings and coordination meetings to provide for an easy flowing project. Implement procedures and assure timely submittals, expedite processing approvals and return of shop drawings, samples, etc. Coordinate and expedite critical ordering and delivery of materials, work sequences, inspection and testing, labor allocation, etc. Review and coordinate each subcontractor’s work. Review and implement revisions to the Schedule. Monitor and promote safety requirements. In addition, regular project status meetings will be held between the CITY and the DESIGN/BUILD FIRM either biweekly or monthly, whichever is designated by the Project Manager. Job site meetings will be used for preplanning of work, enforcing schedules, and establishing procedures, responsibilities, and identification of authority for all to clearly understand. The Job site meetings should be utilized as a tool for pre-planning of work, enforcing schedules, and for establishing procedures, responsibilities, and identification of authority for all to clearly understand. Identify party or parties responsible to follow up on any problems, delay items or questions and record course of action/solution. Revisit each pending item at each subsequent meeting until resolution is achieved. Require all present to make any problems or delaying event known to those present for appropriate attention and resolution. Shop Drawing Submittals/Approvals: Provide staff to check shop drawings and closely monitor their submittal and approval process. Material and Equipment Expediting: Provide staff to closely monitor material and equipment deliveries; critically important checking and follow-up procedures on supplier commitments of all subcontractors. Payments to Subcontractors: Develop and implement a procedure for review, processing, and payment of applications by subcontractors for progress and final payments. All financial documents and records shall be maintained pursuant to reasonable accounting practices designed to afford the CITY the ability to have the documents audited with the minimum of cost and disruption. Document Interpretation: Refer all questions for interpretation of the technical documents to the CITY for direction. Reports and Project Site Documents: Record the progress of the project. Submit written progress reports to the CITY including information on the subcontractor’s work, and the percentage of completion. Keep a daily log available to the CITY and the Permitting Agency(ies) inspectors for reviewing and copying. 164 of 362 Subcontractor’s Progress: Prepare periodic punch lists for subcontractor’s work including unsatisfactory or incomplete items and schedules for their completion. Substantial Completion: Substantial completion shall be established by way of the following steps: a. DESIGN/BUILD FIRM shall notify the CITY that the project is ready for Substantial Completion inspections. b. The CITY shall conduct such inspections. c. Inspections shall be completed by the CITY’s Representative. d. The CITY shall consolidate a punch list (CITY’s punch list) e. The DESIGN/BUILD FIRM shall issue a Certificate of Substantial Completion for acceptance by the CITY’s with punch list attached. Start-up: With the CITY’s personnel, direct the checkout of utilities, operations, training, systems and equipment for readiness and assist in their initial start-up and testing by the trade contractors. Final Completion: Monitor the Subcontractor’s performance on the completion of the project and provide notice to the CITY that the Work is ready for Final Inspection. Secure and transmit to the CITY all required guarantees, affidavits, warranties, releases, bonds and waivers, manuals, record drawings, and maintenance manuals including the Final Completion Form. Record Drawings: The DESIGN/BUILD FIRM shall monitor the progress of their own forces or their subcontractors on marked up field prints and at project completion will prepare the final record drawings. 12. Administrative Records: The DESIGN/BUILD FIRM will maintain on the Job Site all project files and records. The project records shall be available at all times to the CITY for reference, review or copying. 13. CITY Occupancy: The DESIGN/BUILD FIRM shall provide services during the design and construction phases and will provide a coordinated CITY occupancy of the project. It shall provide consultation and project management to facilitate CITY occupancy and provide transitional services to get the work, as completed by the subcontractors; “on-line” in such conditions as will satisfy CITY operational requirements. It shall conduct the preliminary punch list inspection and coordinate the completion of the punch list work to be done with the CITY occupancy in mind. It shall catalog operational and maintenance requirements of equipment to be operated by maintenance personnel and convey these to the CITY in such a manner as to promote their usability. It shall provide operational training in equipment use for building operators. 165 of 362 It shall secure required guarantees and warranties, assemble and deliver same to the CITY in a manner that will facilitate their maximum enforcement and assure their meaningful implementation. It shall continuously review “Record” Drawings” and mark up progress prints to provide as much accuracy as possible. The CITY may not occupy or take control of the Project until the above items discussed in this paragraph have been completed and the “Substantial Completion”, and “Warranty” requirements specified in paragraphs 3.2J. (8) “Substantial Completion”, 3.2J (10) “Final Completion”, and 3.2J (M) “Warranty” have been completed to the City’s satisfaction excluding the requirements for a warranty inspection. Nothing in this provision shall preclude the CITY from taking partial occupancy if necessary . 14. Warranty: Where any work is performed by the DESIGN/BUILD FIRM’s own personnel or by subcontractors under Contract with the Design/Build Firm, the DESIGN/BUILD FIRM shall warrant that all materials and equipment included in such work will be new except where indicated otherwise in the Contract documents, and that such work will be new and of good quality, free from improper workmanship and defective materials and in conformance with the Drawings and Specifications. With respect to the same work, the DESIGN/BUILD FIRM further agrees to correct all work found by the CITY to be defective in material and workmanship or not in conformance with the Drawings and Specifications for a period of two (2) years from the Date of Final Completion or for such longer period of time as may be set forth with respect to specific warranties contained in the trade sections of the Specifications. The DESIGN/BUILD FIRM shall collect and deliver to the CITY any specific written warranties given by others as required by the Contract Documents. The DESIGN/BUILD FIRM shall warrant to the CITY that it possesses good, clear and marketable title to all equipment and materials provided and that there are no pending liens, claims or encumbrances against the equipment and materials. DESIGN/BUILD FIRM is required to submit form provided by the CITY, herein attached as part of “Appendix C” herein, named “Warranty of Title” to certify this claim. 15. Inspections: Code Inspections: All projects require detailed code compliance inspections during construction in certain disciplines. These disciplines normally include, but are not necessarily limited to structural, mechanical, electrical, plumbing, and general building. All inspections shall be made for conformance with the applicable building codes, compliance with drawings and specifications. The DESIGN/BUILD FIRM is ultimately responsible for all code compliance. Cost for all re-inspections of work found defective and subsequently repaired shall be borne by the DESIGN/BUILD FIRM. 16. Subcontractors: 166 of 362 Proposals: Subject to Section 3.9.2 “Cost of Work” and in accordance with Section 3.2D “Solicitation of Bids,” the DESIGN/BUILD FIRM shall request and receive proposals from subcontractors and suppliers and will award those contracts to the responsive qualified low bidder after it has reviewed each proposal and is satisfied that the subcontractor is qualified to perform the work. Required Subcontractor’s Qualifications and Subcontractors Conditions: a. Subcontractor Relations: The DESIGN/BUILD FIRM shall require each subcontractor to the extent of the work to be performed by the subcontractor to be bound to the DESIGN/BUILD FIRM by the terms of the Contract Documents, and to assume toward the DESIGN/BUILD FIRM all the obligations and responsibilities which the DESIGN/BUILD FIRM by these Documents, assumes toward the City. The DESIGN/BUILD FIRM shall not employ any subcontractor, whether initially or as a substitute against whom the CITY has reasonable objection. The DESIGN/BUILD FIRM shall make available to each proposed subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the subcontractor will be bound by this Section 3.5, and identify to the subcontractor any terms and conditions of the proposed subcontract which may be at variance with the Contract Documents. Each subcontractor shall similarly make copies of such Documents available to its subcontractors. b. Subcontract Requirements: The DESIGN/BUILD FIRM shall be responsible for pre- qualifying subcontractors. Pre-qualification shall include but not limited to evaluation of previous experience staffing resources, financial conditions and overall ability to perform the work. Workforce: The DESIGN/BUILD FIRM shall evaluate subcontractor’s percentage of the project construction work to be performed utilizing its own employees. Subcontractor Experience: The subcontractor must demonstrate related experience of similar size and complexity as determined by the DESIGN/BUILD FIRM. Supervision: The subcontractor must agree to provide field (on-site) supervision through a named superintendent for each trade (general concrete forming and placement, masonry, mechanical, plumbing, electrical and roofing) included in the subcontract. In addition, the subcontractor shall assign and name a qualified employee for scheduling direction for its work. The supervisory employees of the subcontractor (including field superintendent, foreman and schedulers at all levels) must have been employed in a supervisory (leadership) capacity of substantially equivalent level on a similar project for at least two (2) years within the last five years. The subcontractor shall include a resume of experience for each employee identified by him to supervise and schedule the work. c. All Subcontractors shall provide: 167 of 362 LIMITATION OF REMEDY – NO DAMAGES FOR DELAY OR DISRUPTION The subcontractor’s exclusive remedy for delays or disruptions, except for active interference by the CITY in the performance of the contract caused by events beyond its control, including CITY delays claimed to be caused by the CITY or attributable to the CITY and including claims based on breach of contract or negligence, shall be an extension of its contract time. In the event of a change in the Work, the subcontractor’s claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes. Each subcontract shall require the subcontractor to expressly agree that the foregoing constitute its sole and exclusive remedies for delays or disruptions and changes in the Work, and thus eliminate any other remedies for claim for increase in the contract price, damages, losses, or additional compensation. Each subcontract shall require that any claims by subcontractor for delay or additional cost must be submitted to the DESIGN/BUILD FIRM within seven (7) calendar days in the format in which the DESIGN/BUILD FIRM must submit such claims to the CITY. Failure to comply with the conditions for giving notice and submitting claims shall result in the waiver of such claims. Any such claim must include a time impact analysis as a justification for any equitable time or price adjustment, and a subcontractor’s refusal to provide such a timely analysis shall be considered a failure of a condition precedent to advance the claim in any future litigation. The DESIGN/BUILD FIRM shall also: 1. Observe work of each subcontractor to monitor compliance with schedule. 2. Verify that labor and equipment are adequate for the work and the schedule. 3. Verify that the product procurement schedules are adequate. 4. Verify that product deliveries are adequate to maintain schedule. 5. Report non-compliance with recommendation for changes to the CITY. Responsibilities for Acts and Omission: The DESIGN/BUILD FIRM shall be responsible to the CITY for the acts and omission of its employees and agents and its subcontractors, their agents and employees, and other persons performing any of the work of supplying materials under a contract to the DESIGN/BUILD FIRM. Subcontracts to be Provided: Upon request, the DESIGN/BUILD FIRM shall include a copy of each signed subcontract, including the general supplementary conditions, in the project manual. 17. City’s Responsibilities: CITY’s Information: The CITY shall provide information that it possesses regarding the requirements for the project. 168 of 362 Site Survey and Reports: The CITY shall provide any available surveys describing the physical characteristics, soil reports, and subsurface investigations, legal limitations, utility locations, and a legal description relating to this Project. The CITY does not warrant the completeness or the current accuracy of any reports and DESIGN/BUILD FIRM is entitled to rely on said reports in the performance of its work for this Project unless DESIGN/BUILD FIRM knows or reasonably should have known such surveys or reports are inaccurate. Approvals and Easements: The CITY shall pay for necessary approvals, easements, assessments and charges required for the construction, use or occupancy of permanent structures or for permanent changes in existing facilities. Legal Services: The CITY shall furnish such legal services as may be necessary for obtaining any approvals or easements and such auditing services as the CITY deem necessary. Drawings and Specifications: The CITY will attempt to review and act upon the DESIGN/BUILD FIRM’s drawings and Specifications in ten (10) calendar days to avoid delaying the progress of the Project. 18. Tests & Inspections: DESIGN/BUILD FIRM shall give CITY notice of readiness of the Work for all required inspections, tests and approvals. DESIGN/BUILD FIRM shall assume full responsibility, pay all costs and furnish CITY the required certificates of inspection, testing and approval for all materials, equipment or the Work or any part unless other specified. Neither CITY, nor other inspectors shall have authority to permit deviations from nor to relax any of the provisions of the Contract Documents, nor to delay the Agreement by failure to inspect the materials and work with reasonable promptness. The payment of any compensation, the giving of any gratuity or the granting of any favor by the DESIGN/BUILD FIRM to any inspectors, directly or indirectly is strictly prohibited and punishable to the full extent of the law, and any such action on the part of the DESIGN/BUILD FIRM will constitute a termination of the resultant Contract. 19. Miscellaneous - Apprentices: If the DESIGN/BUILD FIRM employs apprentices on the project; the behavior of the DESIGN/BUILD FIRM and CITY shall be governed by the provisions of Florida Statutes, Chapter 446, and by applicable standards and policies governing apprentice programs and agreements established by the Division of Labor of the Florida Department of Labor and Employment Security. The DESIGN/BUILD FIRM will include provisions similar to the foregoing sentence in each subcontract. 20. Establishment of Guaranteed Maximum Price: GMP Established After Execution of this Contract 169 of 362 GMP Proposal: Upon completion of Phase I (Design at Permitting Level), DESIGN/BUILD FIRM shall submit a GMP Proposal to the CITY which shall include the following, unless mutually agreed to otherwise by the parties: A proposed GMP, which shall be the sum of: a) Lump Sum Amount for Phase I of the Project (Design at Permitting Level) b) Cost of Work for Phase II of the Project  Construction Contingency Allowance for Phase II  DESIGN/BUILD FIRM’s Lump Sum General Conditions Amount for Phase II  DESIGN/BUILD FIRM’s Lump Sum Insurance for Phase II  DESIGN/BUILD FIRM’s Bonds for Phase II  DESIGN/BUILD FIRM’s Fee for Phase II  Cost of the Work A list of the drawings and specifications, including all addenda used as the basis for the GMP Proposal; A list of all the assumptions and clarifications made by the DESIGN/BUILD FIRM in the preparation of the GMP Proposal, which list is intended to supplement the information contained in the drawings and specifications; The Guaranteed Completion Date – Substantial and Final Completion - (GCD) upon which the proposed GMP is based, to the extent said date has not already been established and a schedule upon which the GCD is based; A list of allowances and statement of their basis; A statement of additional services; and The time limit for acceptance for the GMP Proposal. All Lump Sum amounts set forth above shall be paid in accordance with a schedule of values on a percent completed basis and shall NOT be subject to audit rights. 21. Insurance: During the performance of the services under this Contract, DESIGN/BUILD FIRM shall maintain the following insurance policies, and provide Certificates of Insurance written by an insurance company authorized to do business in the state of Florida in accordance with Section 3.13.2.1 of the Special Conditions to include: a. Worker’s Compensation Insurance: The DESIGN/BUILD FIRM shall procure and maintain for the life of this Contract, Worker’s Compensation Insurance covering all employees with limits meeting all applicable state and federal laws. This coverage shall include Employer’s Liability with limits meeting all applicable state and federal laws. This coverage must extend to any sub-Contractor that does not have their own Worker’s Compensation and Employer’s Liability Insurance. The policy must contain a waiver of subrogation in favor of the CITY of Boynton Beach, executed by the insurance company. b. Comprehensive General Liability: The DESIGN/BUILD FIRM shall procure and maintain for the life of this Contract, Comprehensive General Liability Insurance. This coverage shall be on an “Occurrence” basis. Coverage shall include Premises and Operations; Independent Contractors, Products Completed Operations and Contractual Liability with specific reference of Article 7, “Indemnification” of this Agreement. This policy shall provide coverage for death, personal injury or property damage that could arise directly or indirectly from the performance of 170 of 362 this Agreement. DESIGN/BUILD FIRM shall maintain a minimum coverage of $1,000,000 per occurrence and $1,000,000 aggregate for personal injury/ and $1,000.000 per occurrence/aggregate for property damage. The general liability insurance shall include the CITY as an additional insured and shall include a provision prohibiting cancellation of the policy upon thirty (30) days prior written notice to the CITY. c. Business Automobile Liability: The DESIGN/BUILD FIRM shall procure and maintain, for the life of this Contract, Business Automobile Liability Insurance. The DESIGN/BUILD FIRM shall maintain a minimum amount of $1,000,000 combined single limit for bodily injury and property damage liability to protect the DESIGN/BUILD FIRM from claims of damage for bodily and personal injury, including death, as well as from claims for property damage, which may arise from the ownership, use of maintenance of owned and non-owned automobile including rented automobiles, whether such operations be by the DESIGN/BUILD FIRM or by anyone directly or indirectly employed by the DESIGN/BUILD FIRM. d. Professional Liability (Errors and Omissions) Insurance: The CONSULTANT shall procure and maintain for the life of this Contract in the minimum amount of $1,000,000 per occurrence. e. Umbrella Liability: The DESIGN/BUILD FIRM shall procure and maintain, for the life of this contract, Umbrella Liability Insurance, over and above the previously noted liability insurance policies. The DESIGN/BUILD FIRM shall maintain a minimum amount at $10,000,000 It shall be the responsibility of the DESIGN/BUILD FIRM to ensure that all sub-contractors comply with the same insurance requirements referenced above. In the judgment of the CITY, prevailing conditions may warrant additional liability insurance coverage or coverage which is different in kind from the original insurance submitted by the DESIGN/BUILD FIRM. The CITY reserves the right to require the provision by the DESIGN/BUILD FIRM of an amount of coverage different from the amounts or kind previously required, and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the DESIGN/BUILD FIRM fail or refuse to satisfy the requirement of changed coverage within the thirty (30) days following the CITY’s written notice, the CITY, at its sole option, may terminate the Contract upon written notice to the DESIGN/BUILD FIRM, said termination taking effect on the date that the required change in policy coverage would otherwise be effective. DESIGN/BUILD FIRM shall, for a period of two (2) years following the termination of the Agreement, maintain a “tail coverage” in an amount equal to that described above for Comprehensive Liability Insurance on a claims-made policy only. The CONTRACTOR agrees to purchase the extended reporting period on cancellation or termination unless a new policy is affected with a retroactive date, including at least the last policy year. Any exceptions to the insurance requirements in this section must be approved in writing by the CITY’s Risk Management. 22. Contractors Pollution Liability: Contractor’s Pollution Liability: The DESIGN/BUILD FIRM shall maintain during the term of this Contract, Contractor’s Pollution Liability in the amount of $2,000,000 Per Loss/$6,000,000 Annual Aggregate. Coverage will be required for 171 of 362 any Environmental/Pollution related services including but not limited to testing, design, consulting, analysis, or other consulting work, whether self-performed or subcontracted. Additionally, such coverage will include bodily injury, sickness, disease, mental anguish or shock sustained by any person, including death; property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, clean up costs, and the loss of use of tangible property including the resulting loss of use thereof, clean up costs, and the loss of use of tangible property that has not been physically injured or destroyed; defense including costs, charges and expenses incurred in the investigation, adjustment or defense of claims for such compensatory damages; coverage for losses caused by pollution conditions that arise from the operations of the DESIGN/BUILD FIRM including transportation. CITY shall be named as additional insured. Coverage will be provided on an Occurrence Form or a Claims Made Form with a retroactive date equal to at least the first date of this Contract and with a three (3) year reporting option beyond the Annual expiration date of the policy. Note: Umbrella or Excess Liability policies may be used to obtain the total limits of liability required to meet the required limits of coverage stated above. Evidence of such coverage should clearly demonstrate the underlying coverages/policies that are included. 23. Professional Liability (Errors and Omissions): The DESIGN/BUILD FIRM shall maintain during the term of this Contract, Professional Liability Insurance in the minimum amount of $1,000,000 per occurrence. Coverage will be broad to include Errors and Omissions specific to DESIGN/BUILD FIRM’s Professional Liability for direct and contingent design- errors and Architect’s/Engineer’s Professional Liability with no exclusions for Design-Build work. Coverage will be provided on an Occurrence Form or a Claims Made Form with a retroactive date equal to at least the first date of this Contract and with a three (3) year reporting option beyond the Annual expiration date of the policy. 24. Builder’s Risk: During the course of Phase 1 of the Contract, the DESIGN/BUILD FIRM shall be responsible to maintain Builder’s Risk Insurance coverage with the limit being equal to 100% of the completed value (Replacement Value) of the Project; including contractor’s labor, materials and equipment used for completion of the Work. The Builder’s Risk policy shall include the SPECIAL FORM/ALL RISK COVERAGES. The deductible for flood, wind, and hail cannot exceed 5% of the insured value. No deductible greater than $50,000 shall be permitted for all other perils. The DESIGN/BUILD FIRM is responsible for payment of deductibles for all losses except for those losses as a direct result of Force Majeure. The CITY and the DESIGN/BUILD FIRM shall be the certificate holder and Additional Named Insured. The DESIGN/BUILD FIRM entity (i.e. Joint Venture, Partnership, etc.) must be a named insured on all required insurance coverages. The CITY shall be named as additional insured under the Commercial General Liability Policy, the Umbrella Policy, and the Contractor’s Pollution Coverage. Depending upon the nature of any aspect of this Project and its accompanying exposures and liabilities, the CITY may, at its sole option, require additional insurance coverages in amounts responsive to those liabilities which may or may not require that the CITY also be named as additional insured. 172 of 362 Said insurance shall be written by an insurer holding a current certificate of authority pursuant to Chapter 624, Florida Statutes. Such insurance shall be endorsed to provide for a waiver of underwriter’s rights and subrogation in favor of the CITY of Boynton Beach. Such insurance shall be written by an insurer with an A.M. Best Rating of A- VII X or better. Prior to commencing any work on the Project, Certificates of Insurance approved by the CITY’s Risk Management Department evidencing the maintenance of said insurance shall be furnished to the CITY. The insurance policies shall be endorsed to provide that no material alteration or cancellation, including expiration and non- renewal shall be effective until thirty (30) days after receipt of written notice to the CITY. Anything to the contrary, notwithstanding liabilities of the DESIGN/BUILD FIRM under this Contract shall survive and not be terminated, reduced or otherwise limited by any expiration or termination of insurance coverages. Neither approval nor failure to disapprove insurance furnished by the DESIGN/BUILD FIRM shall relieve the DESIGN/BUILD FIRM from responsibility to provide insurance as required by the Contract. 173 of 362 25. Bonds: In accordance with the provisions of Florida Statutes §255.05, the DESIGN/BUILD FIRM shall provide to the CITY, on forms furnished by the CITY, a 100% Performance and a 100% Payment Bond, each in the amount of the Guaranteed Maximum Price, less the Design and Engineering Fees. No qualifications, modifications or riders to the bond forms are permitted. The Payment and Performance Bonds must be duly recorded in Palm Beach County Public Records as a condition precedent to the CITY’s issuance of a Notice to Proceed. The performance bond shall be conditioned that the DESIGN/BUILD FIRM performs the Contract in the time and manner prescribed in the Agreement. The payment bond shall be conditioned that the DESIGN/BUILD FIRM makes payments to all persons who supply the DESIGN/BUILD FIRM with labor, materials and supplies used directly and indirectly by the DESIGN/BUILD FIRM in the performance of the Work provided for in resultant Contract, and any change orders shall provide that the surety shall pay the amount not exceeding the sum provided in the bonds, together with interest at the maximum rate allowed by law and that the DESIGN/BUILD FIRM and surety shall indemnify and hold harmless the CITY to the extent of any and all payments in connection with the performance of this Contract which the CITY may be required to make by law. To be acceptable to the CITY as Surety for Performance Bonds and Payment bonds, a Surety company shall comply with the following provisions outlined in the General Conditions herein. The Surety company shall not expose itself to any loss on any one risk in an amount exceeding ten (10) percent of its surplus to policyholders, provided: a. Any risk or portion of any risk being reinsured shall be deducted in determining the limitation of the risk as prescribed in this section. These minimum requirements shall apply to the reinsuring carrier providing authorization, or approval by the State of Florida, Department of Insurance to conduct business in the state has been met. b. In the case of the surety insurance company, in addition to the deduction for reinsurance, the amount assumed by any co-surety, the value of any security deposited, pledged or held subject to the consent of the surety and for the protection of the surety shall be deducted. The performance and payment bonds shall continue in effect for one (1) year after the final payment becomes due except as otherwise provided by law or regulation or by the Contract Documents with the final sum of those bonds reduced after final payment to an amount equal to twenty five percent (25%) of the agreed GMP, less design and engineering fees, or an additional bond shall be conditioned that DESIGN/BUILD FIRM shall correct any deficiencies or faulty Work or material which appears within one (1) year after final completion of the Agreement, upon notification of the CITY. 26. Harmony: DESIGN/BUILD FIRM is advised and agrees that it will exert every reasonable and diligent effort to assure that all labor employed by DESIGN/BUILD FIRM and its Subcontractors for work on the Project shall work in harmony with and be compatible with all other labor being used by building and construction contractors now or hereafter on the Site of the Project. DESIGN/BUILD FIRM further agrees that this provision will be included in all subcontracts of the subcontractors as well as the DESIGN/BUILD FIRM’s own contract; provided however, that this provision shall not be interpreted or enforced so as to deny a bridge on account of 174 of 362 membership or non-membership in any labor union or labor organization, the right of any person to work as guaranteed by Article 1, Section 6 of the Florida Constitution. 27. Apprentices: If the DESIGN/BUILD FIRM employs apprentices on the project; the behavior of the DESIGN/BUILD FIRM and CITY shall be governed by the provisions of Florida Statutes, Chapter 446, and by applicable standards and policies governing apprentice programs and agreements established by the Division of Labor of the Florida Department of Labor and Employment Security. The DESIGN/BUILD FIRM will include provisions similar to the foregoing sentence in each subcontract. 28. Confidentiality and Public Records Law: Any information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”) in connection with this Contract that is marked confidential or that due to its character and nature, a reasonable person under like circumstances would treat as confidential (the “Confidential Information”) will be protected and held in confidence by the Recipient. Confidential Information will be used only for the purposes of this Contract and related internal administrative purposes. Disclosure of the Confidential Information will be restricted to the Recipient’s employees, contractors, or alliance companies on a “need to know” basis in connection with the Work, who are bound by confidentiality obligations no less stringent than these prior to any disclosure. Each party may disclose Confidential Information relating to the Work to providers of goods and services such disclosure is necessary and reasonably anticipated. Confidential Information does not include information which: (i) is already known to Recipient at the time of disclosure; (ii) is or become publicly known through no wrongful act or failure of the Recipient; (iii) is independently developed by Recipient without benefit of Disclosing Party’s Confidential Information; or (iv) is received from a third party which is not under and does not thereby breach an obligation of confidentiality. Each party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. A Recipient may disclose Confidential Information to the extent required by law, but that disclosure does not relieve Recipient of its confidentiality obligations with respect to any other party. Except as to the confidentiality of trade secrets, these confidentiality restrictions and obligations will terminate five (5) years after the expiration or termination of the Contract under which the Confidential Information was disclosed, unless the law requires a longer period. The parties acknowledge that the CITY is a municipal corporation that is subject to Florida Statutes § 119, and related statutes known as the “Public Records Laws.” If a request is made to view such Confidential Information, CITY will notify DESIGN/BUILD FIRM of such request and the date that such records will be released to the requester unless DESIGN/BUILD FIRM obtains a court order enjoining such disclosure. If the DESIGN/BUILD FIRM fails to obtain that court order enjoining disclosure, CITY will release the requested information on the date specified. Such release shall be deemed to be made with the DESIGN/BUILD FIRM’s consent and will not be deemed to be a violation of law, including but not limited to laws concerning trade secrets, copyright or other intellectual property. In the event the DESIGN/BUILD FIRM breaches this Contract, then the DESIGN/BUILD FIRM hereby grants CITY a limited license to use the Confidential Information in any reasonable way in order to mitigate CITY’s damages. 175 of 362 29. Severability: Should any provision of this Contract be deemed or determined to be unenforceable by a court of competent jurisdiction, the remaining contract provisions shall remain in full force and effect. 30. Verification of Employment Status: The CITY shall not intentionally award contracts to any contractor who knowingly employs unauthorized immigrant workers, constituting a violation of the employment provisions of the Immigration and Naturalization Act (“INA”). The CITY shall consider the employment by the DESIGN/BUILD FIRM of authorized immigrants, a violation of Section 274A(e) of the INA. The DESIGN/BUILD FIRM agrees that such violation shall be grounds for the unilateral cancellation of the Contract by the CITY. 31. Payment of Overtime: Any Overtime required for the DESIGN/BUILD FIRM to complete the Work within the Contract Time shall be at the sole cost and expense of the DESIGN/BUILD FIRM. If CITY requires the DESIGN/BUILD FIRM to perform Overtime Work in order to complete the Work prior to the Guaranteed Completion Date, the DESIGN/BUILD FIRM shall invoice the CITY for the Overtime such that only the actual costs incurred by the DESIGN/BUILD FIRM relating to the payment of Overtime premiums, in accordance with the labor policies and applicable laws. Such actual costs include Overtime wage premium, and additional taxes and insurance directly associated with the Overtime wage premium. The DESIGN/BUILD FIRM agrees that it will not charge for personnel paid a salary, or other form of compensation such that the DESIGN/BUILD FIRM incurs no direct costs as a result of the Overtime. The DESIGN/BUILD FIRM shall total the direct Overtime charges, and add the agreed upon overhead rate, but in no case shall such overhead rate exceed ten-percent (10%) of the total Overtime costs. Overtime may only be charged to CITY if the DESIGN/BUILD FIRM was directed in writing by the CITY to incur the Overtime. Such authorization for Overtime shall be accompanied by a Change Order 1. Scheduling of Overtime: The CITY and the DESIGN/BUILD FIRM shall establish and agree upon an overall project baseline schedule that shows all work scheduled in excess of forty (40) hours per week, and work scheduled on Saturdays, Sundays and Holidays (“Scheduled Overtime”). Whenever the DESIGN/BUILD FIRM has Work scheduled beyond the hours per day, days per week, or the Saturdays, Sundays or Holidays shown on the baseline schedule (“Unscheduled Overtime”), then the DESIGN/BUILD FIRM shall arrange in advance for CITY or the CITY’s representative to inspect the Work performed during Unscheduled Overtime. The DESIGN/BUILD FIRM shall not perform Overtime Work, scheduled or unscheduled without the CITY or the CITY’s representative at the Work Location or available to perform the inspection, as directed by the CITY. The DESIGN/BUILD FIRM shall reimburse for any additional costs associated with the CITY or the CITY’s representative’s Overtime pay related to Unscheduled Overtime. 2. Force Majeure: No party shall be liable for any default or delay in the performance of its obligations under this Contract due to an act of God or other event to the extent that: (a) the non- performing party is without fault in causing such default or delay; (b) such default or delay could not have been prevented by reasonable precautions; and (c) such default of delay could not have been reasonably circumvented by the non-performing party through the use of alternative sources, work-around plans or other means. Such causes include but are not limited to: act of 176 of 362 civil or military authority (including but not limited to courts and administrative agencies); acts of God; war, terrorist attacks; riot; insurrection; inability of CITY to secure approval, validation, or sale of bonds; inability of CITY or DESIGN/BUILD FIRM to obtain any required permits, licenses or zoning, blockades; embargoes; sabotage; epidemics; fires; hurricanes; tornados; floods, or strikes. In the event of any delay resulting from such causes, the time for performance of each of the parties hereunder (including the payment of monies if such event actually prevents payment) shall be extended for a period of time reasonably necessary to overcome the effect of such delay, except as provided for elsewhere in the Contract Documents. In the event of any delay or non-performance resulting from such causes, the party affected shall promptly notify the other in writing of the nature, cause, date of commencement and the anticipated impact of such delay or non- performance. Such written notice, including Change Orders, shall indicate the extent, if any, to which it is anticipated that any delivery or completion dates will be thereby affected. 3. Interruptions: In situations whereby DESIGN/BUILD FIRM deems it necessary to interrupt operations, only a twenty-four (24) hour downtime is permissible. 177 of 362 PRICE PROPOSAL Tasks Engineering Task Descriptions Task Cost 1-5 Review of Alternative Design/ Value Engineering and Design Definition 1 Meeting $ 87,768 1.1 Review of Alternative Design and Value Engineering $ 77,818 1.2 Design Definition Meeting $ 9,950 2 Permitting Coordination and Field Work $ 72,879 2.1 Regulatory Agency/ Permit Review, Coordination and Applications $ 25,900 2.2 Topographic Field Survey and Locates $ 28,089 2.3 Geotechnical Investigations $ 18,890 3 Design Development $ 204,900 4 GMP Pricing $ 102,400 5 Meetings and Project Management $ 60,000 5.1 Progress Meetings $ 44,385 5.2 Project Status Reports $ 15,615 Engineering Subtotal $ 527,947 Task Early Construction Task Descriptions Task Cost 6 6.1 Schedule Development $ 24,165 6.2 Risk Register Development $ 23,500 6.3 Trailer Mobilization $ 186,539 6.4 East Water Treatment Plant SCADA Systems Integration and Installation $ 336,054 6.5 Project Quality Control (QC) and Technical Review $ 33,565 Early Construction Subtotal $ 603,823 Price Proposal Total $ 1,131,770 178 of 362 ATTACHMENT H PHASE 1 – DESIGN DEVELOPMENT GUARANTEED MAXIMUM PRICE DEVELOPMENT SCOPE OF WORK WEST WATER TREATMENT PLANT ANIONIC EXCHANGE RESIN FACILITY AND EAST WATER TREATMENT PLANT IMPROVEMENTS This Authorization, when executed, shall be incorporated in and become part of the Agreement for Design-Build Services between the City of Boynton Beach (OWNER), and CDM Constructors Inc. (DESIGN BUILDER), dated "[Insert Date]" hereafter referred to as the Agreement. PROJECT BACKGROUND The DESIGN BUILDER will ultimately perform engineering design, surveying, geotechnical work, permitting, construction, installation and start-up support in the form of a two-phase Guaranteed Maximum Price (GMP) approach. This Phase 1 Scope of Services involves design development and GMP development services for a new anionic exchange resin facility at the West Water Treatment Plant (WWTP) site for pre- treatment of Western Wellfield raw water supply to the East Water Treatment Plant (EWTP) and the upgrading/capacity expansion of the existing lime softening, filtration, and residuals handling systems at the EWTP to a capacity of 24 million gallons per day (mgd). The scope will include the following treatment facilities improvements:  Anionic Exchange Resin Treatment Facility (AERTF) at the WWTP 1.One (1) new AERTF designed for an ultimate treatment rate of 20 mgd with an interim capacity of 16 mgd. System will include four (4) anionic exchange resin contactor cells in a single basin of which three (3) will be fully completed, and a resin regeneration system to be sited outside of the Well Protection Zone 1 area. The proprietary anionic resin process system (MIEX®) components including contactor internal mechanisms, regeneration systems, and other supporting equipment will be supplied on a sole-source basis by ORICA Watercare. 2.A MIEX®-Pretreated Water Clearwell and Pumping Station (Clearwell and Pumping Station) as well as up to four (4) horizontal split case transfer pumps that will transmit treated water through a 6 mile-long, 36-inch diameter transmission main to the EWTP. 3.Architectural treatments for the MIEX® contactor vessel as well as a Clearwell and Pumping Station. 4.Modification of the electrical systems to accommodate the power requirements of the MIEX® system as well as the Clearwell and Pumping Station. 5.Modification to instrumentation and control systems to integrate the new MIEX® system as well as Clearwell and Pumping Station into the existing site redundant Master Programmable Logic Controller (PLC) and SCADA Systems. 179 of 362 6.Miscellaneous connections to the incoming Western Wellfield raw water supply lines and the newly-built MIEX® Pretreated Water transmission main feeding the EWTP. 7.Miscellaneous site restoration, stormwater control, and landscaping modifications/ improvements.  EWTP Upgrade 1.Removal of the existing East EIMCO Softener internal mechanical components and installation of Infilco Accelator internal mechanisms in conjunction with modifications to internal basin geometry to match the other two (2) existing 11-mgd capacity Infilco Accelator softening units. 2.Conversion of existing Recarbonation Basins into Free Chlorine Contact Chamber for primary disinfection purposes. 3.Construction of a new 3.0 Million Gallon (MG) or 4.0 MG Finished Water Ground Storage Tank (GST). 4.Replacement of various filter valves and actuators as well as replacement of clearwell isolation valves. 5.Construction of a new energy-efficient High Service Pumping Station and a new Transfer Pump Station. 6.Replacement of existing damaged gravity sludge thickener (not in use) with one (1) new approximate 45-feet (ft) diameter gravity sludge thickener. 7.Demolition of the existing second floor of the vacuum filter building and construction of a new second floor and installation of a new vacuum filter, vacuum filter accessory skid, and lime sludge pumps. 8.Expand/improve the lime storage/slaking/feed system including lime silos and slakers, as required for an upgrade water treatment capacity of 24 mgd. 9.Miscellaneous chemical system upgrades/ improvements to support the new and/or modified treatment capacity. 10.Upgrades to the electrical systems, including a second generator with auto synchronization with new switchgear and upgrades/ replacement of the Motor Control Centers, to accommodate the plant improvements and expansion. 11.Upgrade of the instrumentation and control systems to accommodate the plant improvements and expansion. 12.Miscellaneous site, stormwater control, and yard piping improvements including accommodation of an up to 4.0MG Finished Water GST. DESIGN BUILDER will execute this work in a two-phase process. The first phase will involve preliminary engineering design, surveying, and geotechnical work for the development of Design Documents to be completed to an environmental permit report level of completion. The primary 180 of 362 submittals or deliverables of Phase 1 will consist of a report and permit application, as well as a GMP development document which will further elaborate on the scope, budget and schedule of the Project. As part of Phase 1 activities the OWNER shall have the opportunity to review and comment on the GMP program, schedule and budget. Phase 2 will include final design, other permitting, procurement, construction, installation, commissioning, and start-up services. Basic Services to be provided by DESIGN BUILDER include the following: SCOPE OF WORK Phase 1 – Design Development/GMP Development The following scope items have been identified for Phase 1: Task 1 –Review of Alternative Design/ Value Engineering and Design Definition Meeting Subtask 1.1 – Review of Alternative Design/ Value Engineering Subtask 1.2 – Design Definition Meeting Task 2 – Permitting Coordination and Field Work Subtask 2.1 – Regulatory Agency / Permit Review, Coordination and Applications Subtask 2.2 – Topographic Field Survey and Locates Subtask 2.3 – Geotechnical Investigations Task 3 – Design Development Task 4 – GMP Pricing Task 5 – Meetings and Project Management Subtask 5.1 – Progress Meetings Subtask 5.2 – Project Status Reports The following scope items have been identified as Early Construction Activities for Phase 2: Task 6 – Early Construction Activities Subtask 6.1 – Schedule Development Subtask 6.2 – Risk Register Development Subtask 6.3 – Trailer Mobilization Subtask 6.4 – EWTP SCADA Systems Integration and Installation Subtask 6.5 – Project Quality Control (QC) Technical Review Phase 2 – GMP Execution/Final Design/Construction and Start-up Task 7 – Final Design Task 8 – Procurement 181 of 362 Task 9 – Construction Task 10 – Start-up Support The detailed scope of services for Phase 1 is included as follows: PHASE 1 – DESIGN DEVELOPMENT/ GMP DEVELOPMENT REVIEW OF ALTERNATIVE DESIGN/ VALUE ENGINEERING AND TASK 1 - DESIGN DEFINITION MEETING This task provides for the initiation of the Project, a Design Stage Review Step that involves the review and evaluation of previous work relating to the Project, a Review of Alternative Design/ Value Engineering Workshop between the OWNER and DESIGN BUILDER personnel to evaluate alternative process and design concepts and consider life cycle and capital cost saving opportunities. Once the viable alternatives are identified and evaluated, a Design Definition Meeting between the OWNER and DESIGN BUILDER personnel will be conducted to select design concepts for both the WWTP and the EWTP. Subtasks are as follows: Review of Alternative Design/ Value Engineering Subtask 1.1 - The DESIGN BUILDER will review previous documents prepared by Others and that have served as guidance for development of the Request for Proposals (RFP) for procurement of the DESIGN BUILDER. This review will be for the purpose of identifying critical water quality/quantity goals, understanding the nature and scope of the preferred process and design concepts, and understanding the rationale of the selected process and design alternative. The DESIGN BUILDER will confer with OWNER on documents and/or data to be reviewed, including applicable raw wand finished water quality data, operational unit costs, and recent Monthly Operations Report (MOR) data. As part of the preparation for the Workshop, the DESIGN BUILDER will review the following reports, that previously provided preliminary design criteria and recommendations for which the Scope of Work as defined in RFP were based on:  West Water Treatment Plant Anion Exchange Treatment System, AECOM, 2012  Water Treatment Plant Lime Sludge Treatment Facilities, ARCADIS, 2012  East Water Treatment Plant Capacity Evaluation and Preliminary Design Report, Globaltech, 2010  Pre-Filtration Pilot Study –Sand Issues Technical Memorandum, AECOM, 2010  Anionic Resin Pilot Study Technical Memorandum, AECOM, 2010 Subsequent to this expedited review, the OWNER desires to hold a Full-Day Review of Alternative Design/ Value Engineering Workshop to identify and evaluate the existing process/design concepts and criteria against other potential options. Water treatment process and technology experts from the DESIGN BUILDER will prepare for and participate in this Workshop, which will use the Design Manager as a Facilitator, with the goal of either validating the existing process/design concepts or determining if there are viable alternatives that (1) may decrease overall Project costs and/or (2) may offer process/design enhancements that improve 182 of 362 the overall value of the Project. If viable alternatives are identified and agreed to, the DESIGN BUILDER will provide comparative planning-level cost estimate to determine if the identified alternatives result in an overall lower Project cost and/or offer significant additional value to the OWNER. The OWNER and DESIGN BUILDER will consider the following options, at a minimum, for inclusion as design alternatives:  MiCo® Process versus MIEX® Process  4-Cell vs. 2-Cell AERTF  Location of AERTF Salt Saturators  Cascade Aerators prior to Lime Softening for Carbon Dioxide Removal  Relocation of the Regeneration Unit Process of the AERTF and height reduction of the MIEX® Units  Impact of MIEX and MiCo® process on EWTP Lime Softening / Sludge Handling Facilities  New EWTP GST Capacity (Dimensions) and Location  New/Relocated Electrical Generators and Bus Gear Location  4-Log Virus Removal/Inactivation Primary Disinfection Process Criteria  Energy Recovery Process at WWTP  Energy Footprint of the EWTP Subsequent to this workshop, DESIGN BUILDER will prepare a draft set of minutes to include comparative planning level cost estimates for the identified viable alternatives. Design Definition Meeting Subtask 1.2 - The goal of the Design Definition Meeting is to review preliminary design criteria and recommendations, discuss incorporation of the viable alternatives developed in Subtask 1.1, set the extent of new equipment and structures, discuss desired architectural concepts, establish lines of communication, and discuss schedule. Subsequent to this meeting, DESIGN BUILDER will prepare a draft set of minutes to include a finalized list of design elements. DESIGN BUILDER will receive comments on the draft minutes, revise said documents, and submit ten (10) copies of the Final Minutes. The design concepts present in the Final Minutes will serve as the basis of design for the Design Development (Phase 1) and the Final Design/ Construction Phase (Phase 2). It would be further agreed that significant deviations from the final concepts identified in Subtask 1.1 and 1.2 would entail additional design services. PERMITTING COORDINATION AND FIELD WORK This task provides for preliminary geotechnical investigations, topographic surveys and utility locates, and coordination with regulatory agencies. It is assumed that no environmental hazards, 183 of 362 such as underground storage tanks, asbestos, and contaminated soil, will need to be identified, located, remediated or disposed of as part of the work. Subtasks related to the work include: Regulatory Agency/ Permit Review, Coordination and Applications Subtask 1.3 - The DESIGN BUILDER will be responsible for reviewing and becoming familiar with all permitting efforts that have been previously conducted by the City and maintain contact with, at a minimum, the regulatory agencies identified below as having review and approval authority over the design of the PROJECT.  Florida Department of Environmental Protection (FDEP) / Palm Beach County Health Department (PBCHD) Potable Water System (PWS) Components Construction Permit  South Florida Water Management District/FDEP Environmental Resource Permit (ERP)  FDEP Generic Permit for Groundwater Discharge  EPA NPDES General Permit for Construction Activities  Palm Beach County Building Permit (WWTP)  City of Boynton Beach Building Permit (EWTP) Where necessary, DESIGN BUILDER will discuss the proposed project with the applicable regulatory agencies to fully define the permit requirements and to identify the major permitting issues that must be resolved. A permitting strategy shall be developed to address the major issues identified and to facilitate the permit acquisition process. This scope assumes that public hearings will be required as part of the permitting process. Submit report and other design information as may be required specifically for environmental permitting. Building permitting is included in Phase Two. Applications for the required permits and approvals shall be prepared for submittal to the respective agencies. Where acceptable, DESIGN BUILDER will make applications directly. Topographic Field Survey and Locates Subtask 1.4 - The DESIGN BUILDER will subcontract with a surveyor to perform a topographic survey of areas identified below. In addition, within the construction areas noted below, surveyor will locate both horizontally and vertically (where appropriate) all exposed structures; land features; property corners (as required); utilities; driveways (w/type identified); stormwater culverts with inverts and any headwalls or inlet/junction boxes (w/size and invert elevations identified); stormwater ditches (w/top and bottom of banks identified); power poles and guy wires (w/connection of overhead power lines to adjacent poles); electric boxes; water valves, meters, and fire hydrants; exposed pipes (w/type, diameter, and material identified); cable boxes; telephone pedestals; fences; tree and brush lines; all trees of sufficient size that require protection according to the OWNER’s and Palm Beach County’s current tree ordinances (with identification of size and type); and any other miscellaneous aboveground structure or feature. The final topographic field survey will be provided to the OWNER. The construction areas for the survey and locates are identified as follows:  WWTP –Proposed Anionic Resin System, Chemical Treatment Facilities, and the Clearwell and Pumping Station. 184 of 362  EWTP –Proposed Ground Storage Tank and High Service Pump Station, Sludge Gravity Thickener, and Lime Feed Silos. Geotechnical Investigations Subtask 1.5 - DESIGN/BUILD FIRM will provide the following services related to geotechnical (soil) investigations through a subcontractor:  Review any previous geotechnical investigations, provided by the OWNER, at the EWTP and WWTP site. Perform additional subsurface explorations necessary for the development of design criteria for the anticipated new structures. For the WWTP, maximum of two (2) borings at depths approximately 25 ft have been assumed. For the EWTP, maximum of four (4) borings at depths approximately 40 ft have been assumed.  Perform standard penetration tests and split-spoon sampling within the borings at regular intervals.  Perform classification tests on selected samplings obtained from the borings.  Visually classify soil samples in general accordance with the United Soil Classification System and prepare Test Boring Records.  Summarize the results of the geotechnical investigations and provide recommendations for surface preparation and design of the proposed structures.  Review site and foundation preparation specifications and revise as appropriate for site- specific requirements.  Prepare and submit four (4) copies of the Geotechnical (Soils) Report to the OWNER. DESIGN DEVELOPMENT The Design Development phase will be structured to develop the Design Package to obtain environmental permits and articulate the engineering and technical concepts culminating in a GMP pricing (Task 4). DESIGN BUILDER will conduct various site visits and meetings with the OWNER in addition to reviewing all applicable existing facility operational and engineering data and drawings to fully understand the existing conditions and the OWNER’s expectations. DESIGN BUILDER will coordinate this effort with the OWNER. The design development effort will be summarized in a preliminary design report. This task provides for the preparation of design documents advanced to the level to support application for the Specific Permit to Construct PWS Components (62-555-.520 FAC) and Environmental Resource Permitting (ERP) stormwater permits. DESIGN BUILDER will provide the following services related to the preparation of the Design Development documents:  Develop process design criteria based on actual raw water quality, existing facility data, and dialogue with appropriate manufacturers. Performance testing or confirmation through bench- and pilot-scale studies has not been assumed or included in this scope of services. 185 of 362  Develop general/civil design drawings including a preliminary site plan and layout showing approximate structure locations, concepts for landscaping, grading, drainage (stormwater control, handling, and mitigation), roadways, and demolition areas.  Perform preliminary structural engineering analyses and develop preliminary structural design as needed to support development of the GMP.  Develop preliminary mechanical/process design as needed to determine material and equipment requirements and support development of the GMP.  Develop preliminary electrical design as needed to determine material and equipment requirements and support development of the GMP.  Develop preliminary process and instrumentation design as required to define monitoring and control requirements for new or modified plant components.  Develop specifications as needed to solicit budgetary level equipment pricing proposals from selected equipment vendors. This DESIGN BUILDER will provide and distribute hard copies and an electronic copy in PDF format on CD of the Design Development documents for review and comment by the OWNER. The OWNER will review the design documents and other deliverables and will provide comments at a project review workshop meeting to be held within fifteen (15) business days of delivery of documents from the DESIGN BUILDER. The DESIGN BUILDER will incorporate OWNER’s comments from the project meeting(s) and resubmit the deliverables in electronic, PDF format, within ten (10) business days from the review meeting(s) for the OWNER’s review and approval. GMP PRICING DESIGN BUILDER will develop a comprehensive GMP package that will clearly define the scope, schedule and anticipated budget to complete the design and construct the ion exchange resin plant at the WWTP site for pre-treatment of the water supply to the EWTP from the western wellfield and the upgrading of the EWTP to a capacity of 24 mgd. The GMP will include a Guaranteed Price for the work as defined by the Task 3 drawings and specifications tied to a critical path schedule and the mutually-agreed terms and conditions based on the OWNER’s contractual language. DESIGN BUILD ENTITY will prepare equipment cut sheets for mechanical and electrical components to support bid packages and GMP development. MEETINGS AND PROJECT MANAGEMENT Activities performed under this task consist of those general functions required to maintain the project on schedule, within budget, and that the quality of the work products defined within this scope is consistent with DESIGN BUILDER’s standards and OWNER’s expectations. Specific activities included are identified below: Progress Meetings Subtask 1.6 - The DESIGN BUILDER will attend monthly progress meetings during the estimated 16-week project duration. Additionally, the DESIGN BUILDER will attend special meetings at the request of the OWNER from time to time. An average of one (1) additional meeting per month 186 of 362 with the OWNER staff is assumed. The DESIGN BUILDER will prepare and distribute meeting minutes of each meeting as appropriate. Project Status Reports Subtask 1.7 - DESIGN BUILDER’s project manager will prepare and submit monthly written status reports for an anticipated project life of 20 weeks. EARLY CONSTRUCTION ACTIVITIES Schedule Development Subtask 1.1 - DESIGN BUILD ENTITY will analyze/create Phase 1 Schedule from the activity lists and work scope descriptions listed in the Contract/Proposal & RFP & Workshop. DESIGN BUILD ENTITY will analyze/create preliminary Phase II Schedule; this schedule will be developed concurrently with the GMP Development. Risk Register Development Subtask 1.2 - A workshop will be held to involve all major stakeholders coming together to complete a list if critical risks, to be properly understand and managed throughout the Project. Costs values are assigned to each risk activity which allows the correct amount of Allowance monies to be allocated. Trailer Mobilization Subtask 1.3 - DESIGN BUILD ENTITY will mobilize a trailer to the site and assess early Phase I Construction activities. EWTP SCADA Systems Integration and Installation Subtask 1.4 - The filters, clearwell, and high service pumps at the EWTP remain on the legacy SCADA system. The OWNER has been experiencing major hardware issues with the legacy system and parts are no longer readily available. DESIGN BUILDER will install necessary hardware to transfer operation of the remaining systems on the legacy control over to the new Siemens PLC and VTS SCADA. DESIGN BUILDER will consider equipment suitable for use when the filter valves and actuators are replaced and other systems upgraded during Phase 2 as part of the design and systems integration. Project Quality Control (QC) Technical Review Subtask 1.5 - An internal project quality management planning session will be conducted at the start of the project. This action is required by DESIGN BUILDER’s quality management system (QMS) guidelines. OWNER’S RESPONSIBILITIES The OWNER will provide the following to DESIGN BUILDER in a timely manner:  Review of DESIGN BUILDER work products  Data related to the EWTP and WWTP sites 187 of 362  Access to the EWTP and WWTP sites PRICE PROPOSAL ASSUMPTIONS Phase 1 design includes the requirements of the RFP, addenda, and the following assumptions: 1.Conduct project kickoff meeting with the City of Boynton Beach staff 2.Request and analyze additional East Water Treatment plant/West Water Treatment Plant technical information from the City 3.Perform survey services 4.Perform geotechnical services 5.Conduct design preferences workshop with the City of Boynton Beach staff 6.Advance design to the level to support application for the specific permit to construct PWS Components (62-555.520 FAC) 7.Complete the permit application for the PWS Components Permit 8.Advance design including any drawings, calculation, etc. necessary to obtain an ERP and any locally required local stormwater permits 9.Complete permit applications for the ERP (and other local) stormwater permits 10.Conduct preliminary technical review committee (TRC) review meeting with the City of Boynton Beach staff 11.Submit package (preliminary design report and permit applications to the City of review) 12.Conduct one review meeting with the City of Boynton Beach staff 13.Finalize documents based upon City review comments 14.Prepare equipment cut sheets for mechanical and electrical components to support bid packages and GMP development 188 of 362 TIME OF COMPLETION/SCHEDULE CONSULTANT will provide the services for Phase 1 based on the durations as outlined in the 20 weeks above scope within of Notice to Proceed. Notice To Proceed TBD Review of Alternative Design/ Value Engineering 4 weeks from TBD* Design Definition Meeting 6 weeks from TBD* Design Development Documents 18 weeks Submit Permitting Applications and Documents 18 weeks Negotiate / Finalize GMP 20 weeks 189 of 362 7. B BIDS AND PURCHASES OVER $100,000 July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED RESOLUTION NO. R14-055 - EQUESTED CTION BY ITY OMMISSION Authorize the City Manager to execute individual contracts with three (3) firms for each of the four (4) scope categories, for a total of twelve (12) contracts as a result of RFQ No.: 017-2821-14/DJL for General Consulting Services, individual task orders for projects will be issued and submitted to the Commission for approval in accordance with the City's Purchasing policies and procedures. T:(3)(2) ERM OF AGREEMENT THREE YEARS FROM EXECUTION OF AGREEMENTS WITH TWO (1). ADDITIONAL ONE YEAR RENEWAL PERIODS ER: On April 1, 2014, the City Commission approved the list of XPLANATION OF EQUEST top ranked proposers identified by the Evaluation Committees from the responses received from RFQ No.: 017-2821-14/DJL for General Consulting Services, who authorized staff to conduct negotiations with the firms as follows: SCOPE CATEGORY A Water Plant Modifications and Capacity Evaluation/Wellfield Development and Hydrogeological Services Globaltech, Inc. MWH Carollo Engineers, Inc. 190 of 362 SCOPE CATEGORY B Infrastructure Improvements Mathews Consulting, Inc. AECOM Technical Services, Inc. Erdman Anthony SCOPE CATEGORY C Ancillary Studies and Services GAI Consultants, Inc. Carollo Engineers, Inc. Mathews Consulting, Inc. SCOPE CATEGORY D Architectural and Engineering Services Stantec Consulting Services, Inc. Kimley-Horn and Associates, Inc. CPH, Inc. and Studio Sprout, Inc. The RFQ was advertised and submittals were realized on January 16, 2014 as the deadline for responses. The City received twenty-three (23) proposals whereby the top three proposers in each Scope Category were submitted to City Commission on April 1, 2014 for approval and authorization to move forward with negotiations to establish contract agreements for ongoing services in accordance with Florida Statute 287.055, Consultants’ Competitive Negotiations Act. Emphasis was placed on the Schedule of Professional Fees to solidify hourly rates for the initial contract period. Based on comparisons of the submittals by each of the firms, negotiation sessions with all the firms were deemed unnecessary. Only firms that showed significantly higher rates were contacted for discussions. Comparisons were done on the basis of averages among all three (3) or four (4) firms (Scope Category D, only) in each Scope Category and the experience of the individuals identified within the qualifications submittal as team members assigned to the eventual contract. As a result, the Schedule of Professional Fees as attached will be fixed and firm for at least the initial three (3) year period. Individual task orders will be generated at the time specific projects are realized utilizing the Schedule of Professional Fees as the basis for the overall cost of the each task. Task orders will be submitted to the Commission for approval in accordance with the City’s Purchasing Policies and Procedures. H? This agreement will provide for the OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES issuance of task orders in connection with projects for on-going capital improvements to enhance City-wide operations. Individual task orders in excess of $25,000 will be brought back to Commission for approval in accordance with the Purchasing Policies and Procedures. FI: The costs of the individual task orders will be paid from approved CIP ISCAL MPACT budgets or other budget sources within the City’s adopted budget. 191 of 362 A: Not approve the contracts and re-issue the RFQ. LTERNATIVES 192 of 362 RESOLUTION NO. R14 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER TO SIGN INDIVIDUAL CONTRACTS WITH THREE (3) FIRMS FOR EACH OF THE FOUR (4) SCOPE CATAEGORIES FOR A TOTAL OF TWELVE CONTRACTS AS A RESULT OF RFQ NO. 017- 2821-14/DJL FOR GENERAL CONSULTING SERVICES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on April 1, 2014, the City Commission approved the list of top ranked proposers identified by the Evaluation Committees from responses received from RFQ No. 017- 2821-14/DJL for General Consulting Services; and WHEREAS , the City Commission of the City of Boynton Beach, upon recommendation of staff, hereby deems it to be in the best interests of the citizens and residents of the City of Boynton Beach, to approve and authorize the City Manager to sign individual contracts with three (3) firms for each of the four (4) scope categories for a total of twelve (12) contracts as a result of RFQ No. 017-2821-14/DJL for General Consulting Services with individual task orders for projects to be issued and submitted to the Commission for approval in accordance with the City’s Purchasing policies and procedures.; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. Section 2. The City Commission of the City of Boynton Beach, Florida does hereby approve the following firms as being qualified to provide General Consulting Services and does authorize the City Manager to sign the individual contracts: SCOPE CATEGORY A Water Plant Modifications and Capacity 193 of 362 Evaluation/Wellfield Development and Hydrogeological Services Globaltech, Inc. MWH Carollo Engineers, Inc. SCOPE CATEGORY B Infrastructure Improvements Mathews Consulting, Inc. AECOM Technical Services, Inc. Erdman Anthony SCOPE CATEGORY C Ancillary Studies and Services GAI Consultants, Inc. Carollo Engineers, Inc. Mathews Consulting, Inc. SCOPE CATEGORY D Architectural and Engineering Services Stantec Consulting Services, Inc. Kimley-Horn and Associates, Inc. CPH, Inc. and Studio Sprout, Inc. Section 3. This Resolution shall become effective immediately upon passage. {Remainder of Page Intentionally left blank} 194 of 362 PASSED AND ADOPTED this _____ day of July, 2014. CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor ______________________________ Vice Mayor – Joe Casello ______________________________ Commissioner – David T. Merker _______________________________ Commissioner – Mack McCray _______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: _________________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 195 of 362 GENERAL CONSULTING SERVICES AGREEMENT THIS AGREEMENT is entered into between the City of Boynton Beach, hereinafter referred to as “the CITY”, and ______TBD____________, hereinafter referred to as “the CONSULTANT”, in consideration of the mutual benefits, terms, and conditions hereinafter specified. WHEREAS, pursuant to Section 287.055, Florida Statutes, the Consultants’ Competitive Negotiations Act, the City’s Procurement Code, the City of Boynton Beach solicited proposals for a non-exclusive AGREEMENT to perform professional services with an engineering firm for required services; and WHEREAS, THE CITY issued a Request for Qualifications for General Consulting Services for the City of Boynton Beach, RFQ No. 017-2821-14/DJL; and WHEREAS, RFQ No. 017-2821-14/DJL outlined design services, permitting, bidding services, construction administration, and all miscellaneous services for the areas of Water Plant Modifications and Capacity Evaluation/Wellfield Development and Hydrogeological Services, Infrastructure Improvements, Ancillary Studies and Services and Architectural and Landscape Design tied to the development, and operational maintenance of the City of Boynton Beach; and WHEREAS, the CITY determined that CONSULTANT was qualified for appointment to perform the scope of services set forth in the Request for Qualifications; and WHEREAS, the CITY Manager through the administrative staff has successfully negotiated an Agreement with CONSULTANT defining terms and conditions, and cost for the performance of consulting and engineering services with the scope for the Request for Qualifications; and WHEREAS, the City Commission on _____________, 2014, accepted the CITY Administration’s recommendation and designated CONSULTANT as one of the qualified consulting firms to provide General Consulting services to the CITY; and NOW, THEREFORE, in consideration of the mutual covenants expressed herein, the parties agree as follows: ARTICLE 1 - SERVICES 1.1 CONSULTANT agrees to perform General Consulting Services for Scope Category A – Water Plant Modifications and Capacity Evaluation/Wellfield Development and Hydrogeological Services; Scope Category B – Infrastructure Improvements; Scope Category C – Ancillary Studies and Services; and Scope Category D – Architectural and Landscape Design Services, by way of individual task orders, at the request of the CITY during the term of this Agreement, including the provision of all labor, materials, equipment and supplies as specified in Exhibit “__” attached hereto. 196 of 362 1.2 The CITY may have multiple CITY representatives or project managers during the performance of this AGREEMENT based on the specific task orders/written work authorizations from each of the Scope Categories. 1.3 SERVICE AND RESPONSIBILITIES 1.3.1 GENERAL: The CONSULTANT upon issuance of a task order/written work authorization from the initiation of a work order shall perform the services in accordance with standard industry practice. The CONSULTANT shall guard against defects in its work of its Consultants’ or Sub-consultants’ work. 1.3.2 PRELIMINARY SERVICES: The CONSULTANT shall prepare preliminary studies and reports, feasibility studies, financial and fiscal studies, and evaluation of existing facilities, preparation of schematic layouts and sketches where required; develop construction budgets, opinions of Probable Construction Cost, and shall consult and confer with the CITY as may be necessary for the CITY to reach decisions concerning the subject matter. The CONSULTANT shall attend meetings with the CITY Commission and CITY staff as may be required. Provide the CITY with a time schedule which shall include but not be limited to submittal of all milestones related to the project up to delivery of 100% construction documents. During this phase, the CONSULTANT shall advise the CITY, based on CONSULTANT’s professional opinion and the current project conditions and reasonably foreseeable conditions of the completeness of existing data and its suitability for the intended purposes of the project; CONSULTANT to obtain data from other sources; identify and analyze requirements of governmental authorities having jurisdiction to approve the design of the project; provide analyses of the CITY’s needs for surveys; site evaluations and comparative studies of prospective site and solutions; and prepare and furnish not more than six (6) copies of a report setting forth the CONSULTANT’s findings and recommendations. 1.3.2.1 Providing any type of property surveys or related engineering services needed for the transfer of interests in real property, and field surveys for design purposes and engineering surveys and staking to enable Contractor to proceed with their work, and providing other special field surveys. 1.3.2.2 Preliminary design services to be performed by the CONSULTANT shall include consultation and advice concerning the extent and scope of proposed work and preparation of preliminary design documents consisting of design criteria, preliminary drawings, and outline specifications as well as preliminary estimates of probable Construction Costs. This phase will also include preparation of a preliminary site plan or schematic drawings when appropriate. Up to six (6) copies of the preliminary design documents shall be furnished to the CITY, the exact number needed shall be determined by the CITY. 1.3.2.3 CONSULTANT shall provide environmental assessment and impact statements as required to determine the suitability of the site and its surrounds for the proposed project; and/or 197 of 362 Upon authorization of the CITY, the CONSULTANT will provide advice and assistance relating to operation and maintenance of project or other systems; evaluate and report on operations; assist the CITY in matters relating to regulatory agency operations review or operating permit non-compliance; assist with startup and operator training for newly installed or modified equipment and processes, and in the preparation of operating, maintenance and staffing manuals for the project. 1.3.3 BASIC SERVICES: The CONSULTANT shall consult and advise the CITY in the following manner: specifying the extent and scope of the work to be performed; prepare detailed construction drawings and specifications; revise and update, where necessary, previously designed construction plans and specifications, whether in whole or in part, to be incorporated into the proposed work and prepare construction documents and final estimate of probable Construction Cost. The final design services shall be provided in an electronic format, and shall also include furnishing up to six (6) copies of plans and specifications to the CITY; the exact number needed shall be determined by the CITY. Final design services shall also include preparation of permit applications as may be required by such agencies as have legal review authority over the project. These applications shall include but not be limited to site plan approvals or other permits and work efforts and shall also consist of meetings at staff level and meetings with the appropriate governing body and the CITY. Unless specifically provided for under the final design phase, permit application services do not include applications requiring environmental impact statements or environmental assessments, consumptive use permits and landfill permits. 1.3.3.1 The CONSULTANT based upon the approved design documents and any adjustments authorized by the CITY in each project, project schedule or construction budget shall prepare for approval by the CITY, design development documents consisting of drawings and other documents to fix and describe the size and character of each project’s civil engineering, environmental, landscape, architectural, structural, mechanical, and electrical systems and any other requirements or systems, materials and such other elements as may be appropriate for a complete project. The CONSULTANT shall also advise the CITY of any adjustments to the preliminary estimate of probable Construction Costs. 1.3.3.2 The CONSULTANT based on CITY approved design development documents and any further adjustments in the scope or quality of the project or in the construction budget shall prepare Construction Documents within the number of calendar days specified within any notice issued by the CITY. The Construction Documents shall consist of drawings and specifications setting forth in detail the requirements for the construction of the project. 1.3.3.3 The CONSULTANT shall assist the CITY in the preparation of the necessary proposal information and forms. 1.3.3.4 The CONSULTANT shall advise the CITY of any adjustments to previous estimates of probable Construction Costs indicated by 198 of 362 changes in codes, administrative and jurisdictional requirements of general market conditions. 1.3.3.5 The CONSULTANT shall submit to the CITY for each project, electronic format and up to six (6) copies of the Construction Documents, and a further revised estimate of total probable Construction Cost. 1.3.3.6 CONSULTANT shall include in the Construction Documents a requirement that the construction contractor shall provide a final as-built survey of the project in Autocad electronic format by a registered Land Surveyor, and provide marked up construction drawings to the CONSULTANT so that the CONSULTANT can prepare and deliver to the CITY the record drawings in the form required by the CITY and as required. 1.3.3.7 Prior to final approval of the Construction Documents by the CITY, the CONSULTANT shall conduct a thorough review and quality control evaluation of it’s entire work product to confirm compliance with requirements of any local, state, or federal agency from which a permit or other approval is required. The CONSULTANT shall confirm that all necessary regulatory approval’s have taken place. 1.3.3.8 Prior to the final submittal, the CONSULTANT shall conduct a thorough quality control review and assessment of the work product to confirm that all work is properly coordinated and that the CITY and agency comments have been addressed and incorporated into the Contract Documents. The CONSULTANT shall provide to the CITY a Quality Assurance and Quality Control plan in a format that will demonstrate to the CITY that all work has been performed as required.. 1.3.3.9 The CONSULTANT shall signify responsibility for the Contract Documents including technical specifications and drawings prepared pursuant to this Agreement by affixing a signature, date and seal as required by Florida Statutes Chapters 471 and 481, if applicable. The CONSULTANT shall comply with all applicable governing laws, rules, regulations, codes, directives and other applicable federal, state and local requirements in preparation of the work. 1.3.3.10 The CONSULTANT shall guarantee the construction documents, technical specifications and drawings are completed to the CITY’s satisfaction in the time frame agreed upon at the onset of the project. If the CONSULTANT does not adhere to the agreed upon time schedule, the CONSULTANT agrees to compensate the CITY for any additional costs incurred by the CITY from a third party or for any loss of funding which may result in delay of the project. 1.3.4 The CONSULTANT following the CITY’s approval of the Construction Documents and the latest estimate of probable Construction Cost shall when so directed and authorized by the CITY, assist the CITY in obtaining proposals or negotiated proposals, and assist in awarding and preparing contracts for construction. The cost estimate shall be prepared using industry standard methodology and historical data for local conditions including data from previous CITY projects. 1.3.4.1 The CONSULTANT shall review and analyze the proposals 199 of 362 received by the CITY and shall make a recommendation for any award based on the CITY’s Procurement Administrative Policy Manual. 1.3.4.2 1.3.4.3 The CONSULTANT shall provide the CITY with a list of recommended prospective bidders. 1.3.4.4 The CONSULTANT shall attend all pre-proposal/per-bid conferences. 1.3.4.5 The CONSULTANT shall recommend any addenda, through the CITY’s representative as appropriate, to clarify, correct, or change proposal documents. 1.3.4.6 If Pre-Qualification of bidders is required as set forth in the Request for Proposals or Invitation to Bid (two-step bid process), CONSULTANT shall assist the CITY, if requested in developing qualifications criteria, review qualifications and recommend acceptance or rejection of the bidders. 1.3.4.7 If requested, CONSULTANT shall evaluate proposals and bidders, and make recommendations regarding any award by the CITY. 1.3.5 The CITY shall make decisions on all claims regarding interpretation of the Construction Documents, and on all other matters relating to the execution and progress of the Work after receiving a recommendation from the CONSULTANT. The CONSULTANT shall check and approve samples, schedules, shop drawings and other submissions for conformance with the concept of the project, and for compliance with the information given by the Construction Documents. The CONSULTANT shall also prepare change orders, assemble written guarantees required for the Contractor, and approve progress payments to the Contractor based on each project schedule of values and the percentage of work completed. 1.3.5.1 The CITY shall maintain a record of all change orders which shall be categorized according to the various types, causes, etc. that may be determined useful and necessary for its purpose. Among those shall be change orders which are identified as architectural/engineering errors or omissions. An error determined to be caused solely by the CONSULTANT and the costs of which would not otherwise have been a necessary expense to the CITY for the project shall be considered for purposes of this Agreement to be an additional cost to the CITY which would not be incurred without the error or omission. If the CONSULTANT is not the Construction Manager for the construction, the CITY shall notify the CONSULTANT within three (3) days of the discovery of any architectural/engineering error or omission so that the CONSULTANT can be part of the negotiations resolving the claim between the CITY and the Contractor. CONSULTANT will remedy any deficiency’s or defects in its performance at the CONSULTANTS own expense, provided that the CONSULTANT is notified by the CITY in writing, of any such deficiency or defect within a reasonable period after discovery thereof, but in no event later than 90 days. 200 of 362 1.3.6 The CONSULTANT shall carefully review and examine the Contractor’s schedule of values, together with any supporting documentation. The purpose of such review and examination will be to protect the CITY from an unbalanced schedule of values which allocates greater value to certain elements of each project than is indicated by industry standards, supporting documentation, or data. If the schedule of values is not found to be appropriate, it shall be returned to the Contractor for revision for supporting documentation. After making such examination, when the schedule of values is found to be appropriate, the CONSULTANT shall sign the schedule of values indicated informed belief that the schedule of values constitute a reasonable, balanced basis for payment of the Contract price to the Contractor. 1.3.7 The CONSULTANT shall perform on-site construction observation of each project based on the Construction Documents in accordance with paragraph 1.3.12 “Resident Project Services” of this Agreement. The CONSULTANT’s observation shall determine the progress and quality of the work, and whether the work is proceeding in accordance with the Construction Documents. The CONSULTANT will provide the CITY with a written report of each site visit in order to inform the CITY of the progress of the Work. The CONSULTANT shall endeavor to guard the CITY against defects and deficiencies in the work of contractors, and make written recommendation to the CITY where the work fails to conform to the Construction Documents. Based on such observation and the Contractor’s Application for Payment, the CONSULTANT shall determine the amount due to the Contractor and shall issue Certificates for Payment in such amount. These Certificates will constitute a representation to the CITY based on such observations and the data comprising the Application for Payment that the work has progressed to the point indicated. By issuing a Certificate of Payment, the CONSULTANT will also represent to the CITY that to the best of its information and belief, based on what its observation have revealed; the Work is in accordance with the Construction Documents. The CONSULTANT shall conduct observations to determine the dates of substantial and final completion and issue a recommendation for final payment. 1.3.8 The CONSULTANT shall revise the Construction drawings and submit record or corrected drawings to the CITY to show those changes made during the construction process based on the marked up prints, drawings and other data furnished by the Contractor. The record drawings shall be provided in electronic format inclusive of conformed PDF files and AutoCad files in a form compatible with the CITY’s version of AutoCad formats for archival purposes. 1.3.9 The CONSULTANT shall attend regularly scheduled progress meetings on site bi-monthly or as otherwise determined based on a specific need established prior to construction by the CITY. 1.3.10 The CONSULTANT shall prepare change orders for the CITY’s approval. CONSULTANT shall not authorize any changes in the work or time, no matter how minor without prior written approval by the CITY. 201 of 362 1.3.11 Each project’s construction or demolition shall be considered complete upon compilation of a punchlist by CONSULTANT, written notification to Contractor by CONSULTANT that all releases of liens are satisfied and written recommendation by CONSULTANT for final payment to the Contractor which shall be at the sole discretion of the CITY. 1.3.12 RESIDENT PROJECT SERVICES: During the Construction progress of any work, the CONSULTANT will if authorized by the CITY, provide resident project observation services to be performed by one or more authorized employees (“Resident Project Representative”) of the CONSULTANT. Resident Project Representatives shall provide extensive observation services at the project site during construction. The Resident Project representative will endeavor to provide protection to the CITY against defects and deficiencies in the work of the Contractor(s). Resident project observation services shall include but is not limited to the following: Conducting all pre-construction conferences;  Conducting all necessary construction progress meetings;  Observation of the work in progress to the extent authorized by the  CITY; Accompany visiting inspectors representing public and regulatory  agencies having jurisdiction over the projects and record in writing the outcome of these inspections and report same to the CITY; Receipt, review coordination and disbursement of shop drawings and  other submittals; Maintenance and preparation of progress reports;  Field observation and verification of quantities of equipment and  materials installed; Verification of contractors’ and subcontractors’ payrolls and records  for compliance with applicable contract requirements; Maintenance at each project site on a current basis of all drawings,  specifications, contracts, samples, permits, and other project related documents, and at the completion of each project, deliver all such records to the CITY; Preparation, update and distribution of a project budget with each  project schedule; Notification to the CITY immediately if it appears that either each  project schedule or each project budget will not be met; Scheduling and conducting monthly progress meetings at which CITY,  CONSULTANT, general contractor, trade contractor, utilities representatives, suppliers can jointly discuss such matters as procedures, progress, problems and scheduling. Provide copies of the Resident Project Representative’s daily  inspection reports and digital photographs to be forwarded to the CITY via email on a weekly basis; Recommending courses of action, and enforcing action selected by  the CITY, if so directed by the CITY, if the general and/or trade contractors are not meeting the requirements of the plans, specifications, and Construction Contract; Development and implementation of a system for the preparation,  review, and processing of change orders; Maintenance of a daily log of each project;  Recording the progress of each project, and submission of written  monthly progress reports to the CITY including information on the 202 of 362 Contractors’ work and the percentage of completion; Determination of substantial and final completion of work and  preparation of a list of incomplete and unsatisfactory items, and a schedule of their completion; Securing and transmitting to the CITY, required guarantees; affidavits;  releases; key manuals; record drawings; and maintenance stocks; and The Resident Project Representative shall also investigate and report on complaints and unusual occurrences that may affect the responsibility of the CONSULTANT or the CITY in connection with the work. The Resident Project Representative shall be a person acceptable to the CITY, and the CITY shall have the right to employ personnel to observe the work in progress, provided however that such personnel as employed by the CITY, and such personnel will be responsible directly to the CITY in the performance of work that would otherwise be assumed and performed by the CONSULTANT. 1.4 ADDITIONAL SERVICES 1.4.1 When authorized pursuant to task order/written work authorization, the CONSULTANT shall furnish the following additional services: Preparation of applications and supporting documents for private or  governmental grants, loans or advances in connection with any particular project. Services to make measured drawings of or to investigate existing  conditions or facilities, or to verify the accuracy of drawings or other information furnished by or to the CITY. Services resulting from significant changes in the general scope,  extent or character of any particular project or its design including but not limited to, changes in size, complexity, the CITY’s schedule, character of construction or method of financing, and revising previously accepted studies, reports, design documents or Construction Contract Documents when such revisions are required by changes to laws, rules, regulations, ordinances, codes or orders enacted subsequent to the preparation of such studies, reports or documents, or are due to any other causes beyond the CONSULTANT’s control. Providing renderings or models for the CITY’s use.  Preparing documents for alternate Proposals requested by the CITY  for work that is not executed for documents for out-of-sequence work. Investigations and studies involving but not limited to, detailed  considerations of operations, maintenance and overhead expenses; providing value engineering during the course of design; the preparation of feasibility studies; cash flow and economic evaluations, rate schedules and appraisals; assistance in obtaining financing for a project; evaluating processes available for licensing and assisting the CITY in obtaining process licensing; detailed quantity surveys of material, equipment and labor, and audits or inventories required in connection with construction performed by the CITY. Assistance in connection with Proposal/proposal protests, re-bidding  or re-negotiating contracts for construction, materials, equipment or services, unless the need for such assistance is reasonably 203 of 362 determined by the CITY to be caused by the CONSULTANT (e.g. defective plans and/or specifications which inhibit contractors from submitting proposals) in which event there shall be no additional cost for the provision of such services. Preparing to serve or serving as a CONSULTANT or witness for the  CITY in any litigation, arbitration or other legal or administrative proceeding. Additional services in connection with a project not otherwise provided  in this Agreement. Services in connection with a project not otherwise provided for in this  Agreement. Services in connection with a field order or change order requested by  the CITY. Providing artwork, models, or renderings as requested by the CITY.  1.4.2 When required by the Construction Contract documents in circumstances beyond the CONSULTANT’s control, and upon the CITY’s authorization, it will furnish the following additional services. Services in connection with work changes necessitated by unforeseen  conditions encountered during construction. Services after the award of each contract in evaluating and  determining the acceptability of an unreasonable or excessive number of claims submitted by Contractor, except to the extent such claims are caused by the errors or omissions of the CONSULTANT. Additional or extended services during construction made necessary  by 1) work damaged by fire or other cause during construction, 2) a significant amount of defective or negligent work of any contractor, 3) acceleration of the progress schedule involving services beyond normal working hours, or 4) default by any contractor; provided however, if a fire occurs as a direct result of errors or omissions in the design by the CONSULTANT or if the CONSULTANT negligently fails to notify the Contractor of the status of their workmanship pursuant to CONSULTANT’s duties as described in the Contract Documents, the CONSULTANT’s additional construction services related to the remedy shall be deemed part of Basic Services and compensated as such. Services in connection with any partial utilization of any part of a  project by the CITY prior to Substantial Completion. Services to evaluate the propriety of substitutions or design alternates  proposed by the Contractor and involving methods of construction, materials, or major project components either during bidding and/or Negotiation services or Construction Contract award. The cost of such services shall be borne by the Contractor, and this requirement shall be included in the construction contract. Services in making revisions to drawings and specifications  occasioned by the acceptance of substitutions proposed by the Contractor, unless such substitutions are due to a design error by the CONSULTANT in which case such services shall be deemed Basic Services. Except when caused by a design error by the CONSULTANT, the cost of such services shall be borne by the Contractor, and this requirement shall be included in the construction contract. 204 of 362 1.5 CITY’S RESPONSIBILITIES The CITY shall do the following in a timely manner so as not to delay the services of the CONSULTANT: 1.5.1 Designate in writing a person or persons to act as the CITY’s Representative with respect to the services to be rendered under this Agreement. Such person(s) shall have complete authority to transmit instructions and receive information with respect to the CONSULTANT’s services for a particular project. 1.5.2 Provide all criteria and full information as to the CITY’s requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations. 1.5.3 Assist the CONSULTANT by providing at the CONSULTANT’s request all available information pertinent to the Project including previous reports and any other data relative to design or construction of the project. 1.5.4 Furnish to the CONSULTANT, if required for the performance of CONSULTANT’s services (except where otherwise furnished by the CONSULTANT as Additional Services), the following: 1.5.4.1 Data prepared by, or services of others, including without limitations borings, probings and subsurface explorations, hydrographic surveys, laboratory tests and inspection of samples, materials and equipment; 1.5.4.2 Appropriate professional interpretations of all of the foregoing; 1.5.4.3 Environmental assessment and impact statements; 1.5.4.4 Property, boundary, easement, right-of-way, topographic and utility surveys; 1.5.4.5 Property descriptions; 1.5.4.6 Zoning, deed and other land use restrictions; 1.5.4.7 Approval and permits required in the CITY’s jurisdiction and those from outside agencies unless such approvals and permits are the responsibility of the CONSULTANT; and 1.5.4.8 Arrange for access to make all provisions for the CONSULTANT to enter upon the CITY’s property as required for the CONSULTANT to perform services under this Agreement. 1.6 SEQUENCE OF EVENTS 1.6.1 Following receipt of any task order/written work authorization, the CONSULTANT shall submit to the CITY, at least five (5) days prior to actual commencement of services, a schedule of services and expenses for approval by the CITY before any services commence. The CITY reserves the right to make changes to the sequence as necessary to facilitate the services or to minimize any conflict with operations. Task Orders/Work authorizations will be issued to the CONSULTANT in the order in which the CITY wishes, and shall be performed and completed in the order they are issued, unless otherwise specifically 205 of 362 permitted by the CITY. Minor adjustments to the timetable for completion approved by the CITY in advance, in writing, shall not constitute non- performance by CONSULTANT pursuant to this Agreement. Proposals received by CONSULTANT as a result of task order/work authorization that exceeds $25,000 in cost will require approval from CITY Commission before execution of services in accordance with the City’s Procurement Administrative Policy. 1.6.2 When the CITY issues work authorizations to the CONSULTANT, each authorization shall contain a stated completion schedule. Failure of the CONSULTANT to meet the stated schedule shall constitute a default for which payment for services may be withheld until default is cured. Time extensions will be reviewed upon request for extenuating circumstances. It is anticipated and intended that the CONSULTANT will be authorized to begin new work authorizations on a “rolling” basis, as some already assigned work authorizations near timely completion. If a subsequent work authorization is issued to the CONSULTANT before it has completed the current work authorization, the completion date for each work authorization will remain independent of each other so that the CONSULTANT will prioritize the uncompleted work authorization from the first work authorization and finish as soon as practical. Failure to complete the “older” work authorizations in a timely manner, may adversely impact upon continued early authorization to start a subsequent work. 1.6.3 When the CONSULTANT has exceeded the stated completion date including any extension for extenuating circumstances which may have been granted, a written notice of Default will be issued within seven (7) days of the date that the default became active with a requirement of seven (7) days to cure said default, to the CONSULTANT and payment for services rendered shall be withheld until such time that the CITY has determined that default has been cured. 1.6.4 Should the CONSULTANT exceed the assigned completion time, the CITY reserves the right not to issue to the CONSULTANT any further work authorizations until such time as it is no longer in default, and the CONSULTANT has demonstrated to the CITY’s satisfaction, the reasons for tardy completion have been addressed and are not likely to be repeated in subsequent work authorizations. This restricted issuance provision may result in the CONSULTANT not being issued all of the planned work the CITY anticipated in this Agreement. The CONSULTANT shall have no right to the balance of any work, or to any compensation associated with these non-issued work authorizations due to the CONSULTANT being rendered in default. 1.6.5 Should the CONSULTANT remain in default for a period of fifteen (15) consecutive calendar days beyond the time frame provided in Paragraph 1.6.3, the CITY may at its sole option retain another CONSULTANT to perform any work arising out of this Agreement and/or terminate this Agreement. 1.7 DEFINITION OF DEFAULT 206 of 362 1.7.1. An event of default shall mean a breach of this Agreement by the CONSULTANT. Without limiting the generality of the foregoing and in addition to those instances referred to as a breach, an event of default shall include the following: CONSULTANT has not performed services on a timely basis;  CONSULTANT has refused or failed to supply enough properly skilled  personnel; CONSULTANT has failed to make prompt payments to  Subconsultants or suppliers for any services after receiving payment from the CITY for such services or supplies; CONSULTANT has failed to obtain the approval of the CITY where  required by this Agreement; CONSULTANT has failed in any representations made in this  Agreement; or CONSULTANT has refused or failed to provide the services as  defined in this Agreement; CONSULTANT has filed bankruptcy or any other such insolvency  proceeding and the same is not discharged within ninety (90) days of such date. 1.7.2 In the event of Default, the CONSULTANT shall be liable for all damages resulting from the Default including: The difference between the amount that has been paid to the  CONSULTANT and the amount required to complete the CONSULTANT’s work, provided the fees by the firm replacing the CONSULTANT are reasonable and the hourly rates do not exceed the CONSULTANT’s rates. This amount shall also include procurement and administrative costs incurred by the CITY. Consequential damages and incidental damages.  1.7.3. The CITY may take advantage of each and every remedy specifically existing at law or in equity. Each and every remedy shall be in addition to every other remedy given or otherwise existing, and may be exercised from time to time and as often and in such order as may be deemed expedient by the CITY. The exercise or the beginning of the exercise of one remedy shall not be deemed to be a waiver of the right to exercise any other remedy. The CITY’s rights and remedies as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to the CITY in law or in equity. ARTICLE 2 - TERM 2.1 The initial AGREEMENT period shall be for an initial three (3) years, commencing at the execution of the AGREEMENT. 2.2 City may elect to extend the CAGREEMENT term for two (2) additional one (1) year periods, under the same terms, conditions. 2.3 In the event that services are scheduled to end either by expiration or by termination by the CITY (at the CITY’s discretion), the CONSULTANT shall continue the services, if requested by the CITY, or until task or tasks is/are completed. At no time shall this transitional period extend more than one-hundred and eighty (180) calendar days 207 of 362 beyond the expiration date of the existing AGREEMENT. The CONSULTANT will be reimbursed for this service at the rate in effect when this transitional period clause was invoked by the CITY. ARTICLE 3 - TIME OF PERFORMANCE Work under this AGREEMENT shall commence upon the giving of written notice by the CITY to the CONSULTANT by way of an executed task order and resultant work authorization. CONSULTANT shall perform all services and provide all work product required pursuant to this AGREEMENT and the specific task order by the agreed schedule unless an extension of time is granted in writing by the CITY. ARTICLE 4 - PAYMENT The CONSULTANT shall be paid by the CITY for completed work and for services rendered under this agreement as set forth in each specific task order as follows: a. Payment for the work provided by CONSULTANT shall be made in accordance with the Schedule of Professional Fees as provided in Exhibit “___” attached hereto. b. Payment as provided in this Section shall be full compensation for work performed, services rendered and for all materials, supplies, equipment and incidentals necessary to complete the work. c. Compensation for sub-consultants will be negotiated based on each task order. Compensation will be through a direct mark-up in accordance with the Schedule of Professional Fees as provide in Exhibit “___” attached hereto. Sub-consulting services shall be approved by the CITY’s representative prior to performance of the sub-consulting work. Consulting time for processing and management of the sub- consultant shall not be included in direct costs as the direct mark-up is applied for management efforts. d. The CONSULTANT may submit vouchers to the CITY once per month during the progress of the Work for partial payment for project completed to date. Such vouchers will be verified by the CITY, and upon approval thereof, payment will be made to the CONSULTANT in the amount approved. e. In certain cases where incremental billing for partially completed Work is permitted by the City’s representative, the total incremental billings shall not exceed the percentage of estimated completion of identifiable deliverables or accepted deliverables as of the billing date. f. Computation of Time Charges/Not-to-Exceed Method of Payment: When a service is to be compensated based on time charge/not-to-exceed method, the CONSULTANT shall submit a not-to-exceed proposal to the CITY’s representative for prior approval based on estimated labor hours and hourly rates which shall not exceed the established hourly rates as per the Schedule of Professional Fees as provided in Exhibit “____” attached hereto, plus sub-consultant services and other related costs supporting the proposed work. The CITY shall not be obligated to reimburse the CONSULTANT for costs incurred in excess of the total not-to-exceed cost amount. g. Final payment of any balance due the CONSULTANT of the total AGREEMENT price earned will be made promptly upon its ascertainment and verification by the 208 of 362 CITY after the completion of the Work under this Agreement and its acceptance by the CITY. h. Final Invoice: In order for both parties herein to close their books and records, the CONSULTANT will clearly state “final invoice” on the CONSULTANT’s final/last billing to the CITY. The final invoice certifies that all services have been properly performed and all charges and costs have been invoiced to the CITY. Since this account will thereupon be closed, and any other further charges if not properly included on this invoice are considered waived by the CONSULTANT. i. The cost of all services as stated herein shall remain fixed and firm for the initial three (3) year period of the AGREEMENT. Costs for subsequent years and any extension terms shall be subject to an adjustment only if increases incur in the industry. However, unless very unusual and significant changes have occurred in the industry, such increases shall not exceed 5% per year, or whichever is less, the latest yearly percentage increase in the All Urban Consumers Price Index (CPI-U) (National) as published by the Bureau of Labor Statistics, U.S. Department Labor. The yearly increase, or decrease in the CPI shall be the latest index published and available ninety (90) days prior to the end of the AGREEMENT year then in effect, compared to the index for the same month one (1) year prior. Any requested cost increase shall be fully documented and submitted to the CITY at least sixty (60) days prior to the AGREEMENT anniversary date. Any approved cost adjustments shall become effective upon the anniversary date of the AGREEMENT. In the event the CPI or industry costs decline, the CITY shall have the right to receive from the CONSULTANT, a reasonable reduction in costs that reflect such changes in the industry. The CITY may after examination, refuse to accept the adjusted costs if they are not properly documented, increases are considered to be excessive, or decreases are considered to be insufficient. In the event the CITY does not wish to accept the adjusted costs and the matter cannot be resolved to the satisfaction of the CITY, the AGREEMENT may be cancelled by the CITY upon giving thirty (30) calendar days written notice to the CONSULTANT. ARTICLE 5 - OWNERSHIP AND USE OF DOCUMENTS All documents, drawings, specifications and other materials produced by the CONSULTANT in connection with the services rendered under this AGREEMENT shall be the property of the CITY whether the Project for which they are made is executed or not. The CONSULTANT shall be permitted to retain copies, including reproducible copies, of drawings and specifications for information, reference and use in connection with CONSULTANT’s endeavors. Any use of the documents for purposes other than as originally intended by this AGREEMENT, without the written consent of CONSULTANT, shall be at the CITY’s sole risk. ARTICLE 6 - FUNDING This AGREEMENT shall remain in full force and effect only as long as the expenditures provided in the AGREEMENT have been appropriated by the City Commission of Boynton Beach in the annual budget for each fiscal year of this AGREEMENT, and is subject to termination based on lack of funding. ARTICLE 7 - WARRANTIES AND REPRESENTATIONS 209 of 362 CONSULTANT represents and warrants to the CITY that it is competent to engage in the scope of services contemplated under this AGREEMENT and that it will retain and assign qualified professionals to all assigned projects during the term of this AGREEMENT. CONSULTANT’s services shall meet a standard of care for professional engineering, architectural, landscaping and related services equal to or exceeding the standard of care for professional’s practicing under similar conditions. In submitting its response to the RFQ, CONSULTANT has represented to CITY that certain individuals employed by CONSULTANT shall provide services to CITY pursuant to this AGREEMENT. CITY has relied upon such representations. Therefore, CONSULTANT shall not change the designated Project Manager for any project without the advance written approval of the CITY, which consent may be withheld in the sole and absolute discretion of the CITY. 210 of 362 ARTICLE 8 - COMPLIANCE WITH LAWS CONSULTANT shall, in performing the services contemplated by this service AGREEMENT, faithfully observe and comply with all federal, state and local laws, ordinances and regulations that are applicable to the services to be rendered under this AGREEMENT. ARTICLE 9 - INDEMNIFICATION 9.01 To the greatest extent permitted pursuant to Section 725.08 (1), Florida Statutes, Consultant (when providing design professional services to the CITY) shall indemnify and hold harmless the CITY, and its officers and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys’ fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the CONSULTANT and other persons employed or utilized by the CONSULTANT in the performance of the AGREEMENT. 9.02 To the greatest extent permitted pursuant to Section 725.06, Florida Statutes, the CONSULTANTS indemnification obligation, (when providing contractor services to the CITY) shall not exceed $__(insert AGREEMENT value)____________. Such obligation shall not be construed to negate, abridge or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Article. 9.03 Neither party to this AGREEMENT shall be liable to any third party claiming directly or through the other respective party, for any special, incidental, indirect or consequential damages of any kind, including but not limited to lost profits or use that my result from this AGREEMENT or out of the services or goods furnished hereunder. ARTICLE 10 - INSURANCE 10.1 During the performance of the services under this AGREEMENT, CONSULTANT shall maintain the following insurance policies, and provide originals or certified copies of all policies, and shall be written by an insurance company authorized to do business in Florida. 10.1.1 Worker’s Compensation Insurance: The CONSULTANT shall procure and maintain for the life of this AGREEMENT, Worker’s Compensation Insurance covering all employees with limits meeting all applicable state and federal laws. This coverage shall include Employer’s Liability with limits meeting all applicable state and federal laws. This coverage must extend to any sub-Consultant that does not have their own Worker’s Compensation and Employer’s Liability Insurance. The policy must contain a waiver of subrogation in favor of the CITY of Boynton Beach, executed by the insurance company. 10.1.2 Comprehensive General Liability: The CONSULTANT shall procure and maintain for the life of this AGREEMENT, Comprehensive General Liability Insurance. This coverage shall be on an “Occurrence” basis. Coverage shall include Premises and Operations; Independent Contractors, Products Completed Operations and Contractual Liability with specific reference of Article 9, “Indemnification” of this AGREEMENT. 211 of 362 This policy shall provide coverage for death, personal injury or property damage that could arise directly or indirectly from the performance of this Agreement. CONTRACTOR shall maintain a minimum coverage of $1,000,000 per occurrence and $1,000,000 aggregate for personal injury/ and $1,000.000 per occurrence/aggregate for property damage. The general liability insurance shall include the CITY as an additional insured and shall include a provision prohibiting cancellation of the policy upon thirty (30) days prior written notice to the CITY. 10.1.3 Business Automobile Liability: The CONSULTANT shall procure and maintain, for the life of this AGREEMENT, Business Automobile Liability Insurance. The CONSULTANT shall maintain a minimum amount of $1,000,000 combined single limit for bodily injury and property damage liability to protect the CONSULTANT from claims for damage for bodily and personal injury, including death, as well as from claims for property damage, which may arise from the ownership, use of maintenance of owned and non-owned automobile, included rented automobiles, whether such operations be by the CONSULTANT or by anyone directly or indirectly employed by the CONSULTANT. 10.1.4 Professional Liability (Errors and Omissions) Insurance: The CONSULTANT shall procure and maintain for the life of this AGREEMENT in the minimum amount of $1,000,000 per occurrence. 10.2 It shall be the responsibility of the CONSULTANT to ensure that all sub- Consultants comply with the same insurance requirements referenced above. 10.3 In the judgment of the CITY, prevailing conditions warrant the provision by the CONSULTANT of additional liability insurance coverage or coverage which is different in kind, the CITY reserves the right to require the provision by CONSULTANT of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the CONSULTANT fail or refuse to satisfy the requirement of changed coverage within the thirty (30) days following the CITY’s written notice, the CITY, at its sole option, may terminate the AGREEMENT upon written notice to the CONSULTANT, said termination taking effect on the date that the required change in policy coverage would otherwise take effect. 10.4 CONSULTANT shall, for a period of two (2) years following the termination of the Agreement, maintain a “tail coverage” in an amount equal to that described above for Comprehensive Liability Insurance on a claims-made policy only. ARTICLE 11 - INDEPENDENT CONTRACTOR 11.1 The CONSULTANT and the CITY agree that the CONSULTANT is an independent consultant with respect to the services provided pursuant to this AGREEMENT. Nothing in this AGREEMENT shall be considered to create the relationship of employer and employee between the parties hereto. Neither CONSULTANT nor any employee of CONSULTANT shall be entitled to any benefits accorded CITY employees by virtue of the services provided under this AGREEMENT. The CITY shall not be responsible for withholding or otherwise deducting federal income tax or social security or for contributing to the state 212 of 362 industrial insurance program, otherwise assuming the duties of an employer with respect to CONSULTANT, or any employee of CONSULTANT. 11.2 CONSULTANT acknowledges and understands that, as an independent consultant pursuant to this Agreement, CONSULTANT shall comply with Chapter 119, Florida Statutes, as amended (Public Records). CONSULTANT’s obligation includes, but is not limited to CONSULTANT’s obligation to preserve public records and make public records available to third parties in addition to the CITY. ARTICLE 12 - COVENANT AGAINST CONTINGENT FEES The CONSULTANT warrants that he has not employed or retained any company or person, other than a bonafide employee working solely for the CONSULTANT, to solicit or secure this AGREEMENT, and that he has not paid or agreed to pay any company or person, other than a bonafide employee working solely for the CONSULTANT, any fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon or resulting from the award or making of this AGREEMENT. For breach or violation of this warranty, the CITY shall have the right to annul this AGREEMENT without liability or, in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. ARTICLE 13 – TRUTH-IN-NEGOTIATION CERTIFICATE 13.1 Execution of this AGREEMENT by the CONSULTANT shall act as the execution of a truth-in-negotiation certificate certifying that the wage rates and costs used to determine the compensation provided for in this AGREEMENT is accurate, complete, and current as of the date of the AGREEMENT and no higher than those charged the CONSULTANT’s most favored customer for the same or substantially similar service. 13.2 The said rates and cost shall be adjusted to exclude any significant sums should the CITY determine that the rates and costs were increased due to inaccurate, incomplete, or non-current wage rates or due to inaccurate representations of fees paid to outside consultants. The City shall exercise its rights under this “Certificate” within one (1) year following payment. ARTICLE 14 - SUBCONTRACTING The CITY reserves the right to accept the use of a subconsultant or to reject the selection of a particular subconsultant and to inspect all facilities of any subconsultants in order to make a determination as to the capability of the subconsultant to perform properly under this AGREEMENT. The CONSULTANT is encouraged to seek local vendors for participation in subcontracting opportunities. If the CONSULTANT uses any sub consultants on this project the following provisions of this Article shall apply: If a subconsultant fails to perform or make progress, as required by this AGREEMENT, and it is necessary to replace the subconsultant to complete the work in a timely fashion, the CONSULTANT shall promptly do so, subject to acceptance of the new subconsultant by the CITY. The substitution of a subcontractor shall not be adequate cause to excuse a delay in the performance any portion of this AGREEMENT as set forth in the Scope of Work. The Consultant, its subconsultants, agents, servants, or employees agree to be bound by the Terms and Conditions of this AGREEMENT and it’s agreement with the subconsultant for work to be performed for the City the Consultant must incorporate the terms of this AGREEMENT. 213 of 362 ARTICLE 15 - DISCRIMINATION PROHIBITED The CONSULTANT, with regard to the work performed by it under this AGREEMENT, will not discriminate on the grounds of race, color, national origin, religion, creed, age, sex or the presence of any physical or sensory handicap in the selection and retention of employees or procurement of materials or supplies. ARTICLE 16 - ASSIGNMENT The CONSULTANT shall not sublet or assign any of the services covered by this AGREEMENT without the express written consent of the CITY. ARTICLE 17 - NON-WAIVER A waiver by either CITY or CONSULTANT of any breach of this AGREEMENT shall not be binding upon the waiving party unless such waiver is in writing. In the event of a written waiver, such a waiver shall not affect the waiving party’s rights with respect to any other or further breach. The making or acceptance of a payment by either party with knowledge of the existence of a default or breach shall not operate or be construed to operate as a waiver of any subsequent default or breach. ARTICLE 18 – TERMINATION 18.1 Termination for Convenience: This AGREEMENT may be terminated by the CITY for convenience, upon ten (10) days of written notice by the terminating party to the other party for such termination in which event the CONSULTANT shall be paid its compensation for services performed to termination date, including services reasonably related to termination. In the event that the CONSULTANT abandons the AGREEMENT or causes it to be terminated, CONSULTANT shall indemnify the CITY against loss pertaining to this termination. 18.2 Termination for Default: In addition to all other remedies available to the CITY, this AGREEMENT shall be subject to cancellation by the CITY for cause, should the CONSULTANT neglect or fail to perform or observe any of the terms, provisions, conditions, or requirements herein contained, if such neglect or failure continue for a period of thirty (30) days after receipt by CONSULTANT of written notice of such neglect or failure. ARTICLE 19 - DISPUTES Any dispute arising out of the terms or conditions of this AGREEMENT shall be adjudicated within the state courts of Florida, Palm Beach County. Further, this AGREEMENT shall be construed under Florida Law. ARTICLE 20 – UNCONTROLLABLE FORCES 20.1 Neither the CITY nor CONSULTANT shall be considered to be in default of this AGREEMENT if delays in or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the exercise of reasonable due diligence, the non- performing party could not avoid. The term “Uncontrollable Forces” shall mean any event which results in the prevention or delay of performance by a party of its obligations under this AGREEMENT and which is beyond the reasonable control 214 of 362 of the non-performing party. It includes, but is not limited to fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, the acts or inactions of the other party and governmental actions. 20.2 Neither party shall, however, be excused from performance if non-performance is due to forces which are preventable, removable, or remediable, and which the non-performing party could have, with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The non-performing party shall, within a reasonable time of being prevented or delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and uncontrollable forces preventing continued performance of the obligations of this AGREEMENT. ARTICLE 21 - NOTICES All notices required in this AGREEMENT shall be sent to the CITY and shall be mailed to: City of Boynton Beach Copy to: Attn: Utilities Director City of Boynton Beach 124 E. Woolbright Road Attn: Procurement Services Division And Boynton Beach, FL 33435 100 E. Boynton Beach Boulevard if Boynton Beach, FL 33435 Notices to CONSULTANT, shall be sent to the following address: FIRM Attn: ADDRESS 1 ADDRESS 2 CITY/STATE/ZIP ARTICLE 22 - INTEGRATED AGREEMENT This AGREEMENT, together with the RFQ/RFP and any addenda and/or attachments, represents the entire and integrated agreement between the CITY and the CONSULTANT and supersedes all prior negotiations, representations, or agreements written or oral. This AGREEMENT may be amended only by written instrument signed by both CITY and CONSULTANT. ARTICLE 23 - SOVEREIGN IMMUNITY 23.1 CITY is a political subdivision of the State of Florida and enjoys sovereign immunity. Nothing in the Agreement is intended, nor shall be construed or interpreted, to waive or modify the immunities and limitations on liability provided for in Section 768.28, Florida Statute, as may be emended from time to time, or any successor statute thereof. To the contrary, all terms and provisions contained in the AGREEMENT, or any disagreement or dispute concerning it, shall be construed or resolved so as to insure CITY of the limitation from liability provided to any successor statute thereof. To the contrary, all terms and provision contained in the AGREEMENT, or any disagreement or dispute concerning it, shall be construed or resolved so as to insure CITY of the limitation from liability provided to the State’s subdivisions by state law. 215 of 362 23.2 In connection with any litigation or other proceeding arising out of the AGREEMENT, the prevailing party shall be entitled to recover its own costs and attorney fees through and including any appeals and any post-judgment proceedings. CITY’s liability for costs and attorney’s fees, however, shall not alter or waive CITY’s entitlement to sovereign immunity, or extend CITY’s liability beyond the limits established in Section 768.28, Florida Statutes, as amended. 1. Claims, disputes or other matters in question between the parties to this AGREEMENT arising out of or relating to this AGREEMENT shall be in a court of law. The CITY does not consent to mediation or arbitration for any matter connected to this AGREEMENT. 2. The parties agree that any action arising out of this AGREEMENT shall take place in Palm Beach County, Florida. ARTICLE 24 – PUBLIC RECORDS 24.1 The City is public agency subject to Chapter 119, Florida Statutes. The CONSULTANT shall comply with Florida’s Public Records Law. Specifically, the CONSULTANT shall: 24.1.1 Keep and maintain public records that ordinarily and necessarily would be required by the City in order to perform the service; 24.1.2 Provide the public with access to such public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed that provided in chapter 119, Fla. Stat., or as otherwise provided by law; 24.1.3 Ensure that public records that are exempt or that are confidential and exempt from public record requirements are not disclosed except as authorized by law; and 24.1.4 Meet all requirements for retaining public records and transfer to the City, at no cost, all public records in possession of the contractor upon termination of the AGREEMENT and destroy any duplicate public records that are exempt or confidential and exempt. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the agency. 24.2 The failure of CONSULTANT to comply with the provisions set forth in this AGREEMENT shall constitute a Default and Breach of this Agreement, for which, the City may terminate the Agreement. THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY 216 of 362 IN WITNESS WHEREOF , the parties hereto have executed this AGREEMENT in multiple copies, each of which shall be considered an original on the following dates: DATED this _____ day of _______________________________________, 20____. CITY OF BOYNTON BEACH _________________________________ _________________________ Mayor CONSULTANT Attest/Authenticated: __________________________________ Title _________________________________ (Corporate Seal) City Clerk Approved as to Form: Attest/Authenticated: ________________________________ ______________________________ City Attorney Secretary 217 of 362 218 of 362 219 of 362 220 of 362 221 of 362 222 of 362 223 of 362 224 of 362 225 of 362 7. C BIDS AND PURCHASES OVER $100,000 July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED RESOLUTION NO. R14-056 - EQUESTED CTION BY ITY OMMISSION Approve a contract with Man-Con, Incorporated for the Lake Boynton Estates Utility Improvements project, Bid No. 030-2821-14/DJL in the amount of $1,513,874.45 plus a 10% contingency of $151,387.45, if needed, for staff approval of change orders for unforeseen conditions for a total expenditure of $1,665,261.90. ER: On April 25, 2014, the City of Boynton Beach advertised an XPLANATION OF EQUEST Invitation to Bid for the Lake Boynton Estates Utility Improvements project, Bid No. 030-2821- 14/DJL. Bid proposals were received and publicly opened on June 4, 2014. Three (3) bids were received, and Man-Con, Incorporated (Man-Con) was identified as the apparent low bidder. The City’s construction management consultant for the project, Mathews Consulting, reviewed the bid proposals and conducted reference checks for the three (3) bidders. Mathews Consulting contacted the references for Man-Con and received satisfactory feedback, and recommends award of the Construction Contract to Man-Con in the amount of $1,513,874.45. Man-Con is the lowest responsive and responsible bidder providing the best value to the City of Boynton Beach. Attached are Mathews Consulting’s recommendation letter and the bid tabulation sheet for all bidders. The scope of work for this project includes approximately 10,000 linear feet of 6” & 8” PVC C-900 and 400 linear feet of ductile iron water main and appurtenances, the removal of approximately 2,000 linear feet of 10” asbestos-cement pipe, and ancillary improvements st within an area bordered by NW 1 Avenue on the north, the CSX Railroad on the east, thst SW 4 Avenue to the south, and the western ends of SW 1 Court, West Ocean and NW st 1 Avenue on the west, to complete the City’s project known as Lake Boynton Estates Utility Improvements. 226 of 362 H? This project will replace existing old OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES and undersized water mains in rear easements and will improve the current and future water service and supply to the residents within the area known as Lake Boynton Estates. Fire hydrants will also be added for adequate fire protection for the neighborhood. FI: The total funding for the project including the 10% contingency is ISCAL MPACT $1,665,261.90. Funding is available in account number 403-5000-533-65-02, project WTR123 and account number 403-5000-538-65-09, project STM029. A: This is an important neighborhood utility improvement project for the LTERNATIVES City, and there are no feasible alternatives at this time. 227 of 362 RESOLUTION NO. R14- A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING THE AWARD OF A CONTRACT TO MAN-CON, INCORPORATED FOR THE LAKE BOYNTON ESTATES UTILITY IMPROVEMENTS PROJECT, BID #030-2821-14/DJL, IN THE AMOUNT OF $1,513,874.45 PLUS A 10% CONTINGENCY IN THE AMOUNT OF $151,387.45, IF NEEDED, FOR A TOTAL BUDGET APPROPRIATION OF $1,665,261.90; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on June 4, 2014, Procurement Services received and opened three (3) bid proposals in response to #030-2821-14/DJL for “Lake Boynton Estates Utility Improvements Project”; and WHEREAS, the City’s Construction Manager for the project, Mathews Consulting, reviewed the bid proposals and conducted reference checks for the three (3) bidders; and WHEREAS, as a result of the bid evaluation-due diligence performed staff is recommending the award of the contract to Man-Con Incorporated who was the lowest, most responsive, responsible bidder who met all qualifications; and WHEREAS, the City Commission of the City of Boynton Beach upon recommendation of staff, deems it to be in the best interest of the citizens of the City of Boynton Beach to award a contract to Man-Con Incorporated for Bid #030-2821-14/DJL “ Lake Boynton Estates Utility Improvements project”, in the amount of $1,513,874.45 with a 10% contingency in the amount of $151,387.45 for a total budget appropriation of $1,665,261.90. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT : Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof. Section 2. The City Commission of the City of Boynton Beach, Florida does hereby 228 of 362 award a contract to Man-Con Incorporated for Bid #030-2821-14/DJL “ Lake Boynton Estates Utility Improvements project”, in the amount of $1,513,874.45 with a 10% contingency in the amount of $151,387.45 for a total budget appropriation of $1,665,261.90, a copy of which is attached hereto as Exhibit “A”. Section 3. The City Manager is authorized to execute the contract on behalf of the City Commission. Section 4. This Resolution shall become effective immediately upon passage. {REMAINDER OF PAGE INTENTIONALLY LEFT BLANK} 229 of 362 PASSED AND ADOPTED this _____ day of July, 2014. CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor ______________________________ Vice Mayor – Joe Casello ______________________________ Commissioner – David T. Merker _______________________________ Commissioner – Mack McCray _______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: _____________________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 230 of 362 CONSTRUCTION CONTRACT LAKE BOYNTON ESTATES UTILITY IMPROVEMENTS THIS AGREEMENT is entered into between the CITY OF BOYNTON BEACH, a municipal corporation, hereinafter referred to as “CITY”, and _MAN-CON, INC._, a corporation authorized to do business in the State of Florida, hereinafter referred to as the “CONTRACTOR”. WHEREAS, the CITY has awarded to the CONTRACTOR the work of performing certain construction services. WHEREAS, at its meeting of July 1, 2014, by Resolution No.: R14-______, the CITY Commission authorized the proper CITY officials to execute this Contract hereinafter referred to as Contract No.: 030- 2821-14/DJL, and; NOW, THEREFORE, CITY and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1. SCOPE OF WORK. CONTRACTOR shall furnish all plant, labor, materials, and equipment and perform all the necessary WORK in the manner and form provided in the Contract Documents entitled: Lake Boynton Estates Utility Improvements, Invitation to Bid #030-2821-14/DJL. Article 2. CONSULTANT. Mathews Consulting Inc. (“CONSULTANT”) has designed the Project and will assume all duties and responsibilities and will have the rights and authority assigned to CONSULTANT in connection with completion of the WORK in accordance with the Contract Documents. Article 3. CONTRACT TIME; LIQUIDATED DAMAGES. 3.1 The WORK will be substantially completed within 330 calendar days from the date when the Contract Time commences to run as provided in paragraph 2.3 of the General Conditions, and completed and ready for final payment in accordance with paragraph 14.9 of the General Conditions within 30 calendar days from the date of Substantial Completion. 3.2 Liquidated Damages. The CITY and CONTRACTOR recognize and acknowledge that time is of the essence of this Contract and that the CITY will suffer financial loss if the WORK is not completed within the times specified in paragraph 3.1 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. Each of the parties acknowledges that it has attempted to quantify the damages which would be suffered by the CITY in the event of the failure of CONTRACTOR to perform in a timely manner, but neither one has been capable of ascertaining such damages with a certainty. CITY and CONTRACTOR also recognize and acknowledge the delays, expense and difficulties involved in proving in a legal proceeding the actual loss suffered by the CITY if the WORK is not completed on time. Accordingly, instead of requiring any such proof, the CITY and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay the CITY, One Thousand Two Hundred Dollars ($_1,200.00_) for each day that expires after the time specified in paragraphs 3.1 for substantial completion until the WORK is substantially complete. After Substantial Completion, if CONTRACTOR shall 231 of 362 neglect, refuse or fail to complete the remaining WORK within the Contract Time or any proper extension thereof granted by the CITY, CONTRACTOR shall pay CITY Three Hundred Dollars ($_300.00__) for each day that expires after the time specified in paragraph 3.1 for completion and readiness for final payment. Article 4. CONTRACT PRICE. CITY shall pay CONTRACTOR, for faithful performance of the Contract, in lawful money of the United States of America, and subject to the additions and deductions as provided in the Contract Documents, a total sum as follows: Based on the Contract prices shown in the Bid Form submitted to the CITY as subsequently revised and as stated herein, a copy of such Bid Form being a part of the Contract Documents, the aggregate amount of this Contract (obtained from either the lump sum price, the application of unit prices to the quantities shown in not to exceed: the Bid Form or the combination of both) One Million Five Hundred Thirteen Thousand, Eight Hundred Seventy Four Dollars and Forty Five Cents $1,513,874.45 (Written) (Numerical) Article 5. PAYMENT PROCEDURES. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. CITY will process Applications for Payment as provided in the General Conditions. 5.1 Progress Payments. CONTRACT may submit an Application for Payment as recommended by CONSULTANT, for WORK completed during the Project at intervals of not more than once a month. All progress payments will be on the basis of the progress of WORK measured by the schedule of values established in Paragraph 2.9.1 of the General Conditions and in the case of Unit Price Work based on the number of units completed or, in the event there is no schedule of values, as provided in the General Requirements. 5.2 Prior to Substantial Completion progress payments will be made in an amount equal to 90% of WORK completed, but, in each case, less the aggregate of payments previously made and less such amounts as CONSULTANT shall determine, or CITY may withhold, in accordance with paragraph 14.5 of the General Conditions. 5.3 CONTRACTOR shall submit with each Application for Payment, and updated progress schedule acceptable to the CITY and a Warranty of Title/release of liens relative to the Work that is the subject of the Application. Each Application for Payment shall be submitted to the CITY for approval. The CITY shall make payment to the CONTRACTOR within thirty (30) days after approval by the CITY of CONTRACTOR’S Application for Payment and submission of an acceptable updated progress schedule. 5.4 Ten percent (10) of all monies earned by the CONTRACTOR shall be retained by CITY until fifty (50) percent completion of the construction services purchased (defined as that point at which fifty (50) percent of the construction of the work as defined in the Contract Schedule of Values has been performed under the contract by the CONTRACTOR) has been reached. 232 of 362 5.5 After fifty (50) percent completion of the construction work purchased under the Contract has been reached, five (5) percent of all monies earned by the CONTRACTOR shall be retained by the CITY until Final Completion and acceptance by CITY. 5.6 The CITY may withhold, in whole or in part, payment to such 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 by other parties against CONTRACTOR. c. Failure of CONTRACTOR to make payments properly to SubCONTRACTORs or for material or labor. d. Damage to another CONTRACTOR not remedied. e. Liquidated damages and costs incurred by the CITY for extended construction administration. When the above grounds are removed or resolved or CONTRACTOR provides a surety bond or consent of Surety, satisfactory to the CITY, which will protect the CITY in the amount withheld, payment may be made in whole or in part. 5.7 Final Payment. Upon final completion and acceptance of the WORK in accordance with paragraph 14.10 of the General Conditions, CITY shall pay the remainder of the Contract Price as recommended by CONSULTANT as provided in paragraph 14.10. Article 6. CONTRACTOR GUARANTEE. CONTRACTOR warrants all work, materials and equipment shall be free from damages and/or defects owing to faulty materials or workmanship for a period of one (1) year after completion of the WORK covered by this Contract. The CONTRACTOR, free of all costs to the CITY, shall replace any part of the equipment, materials, or work included in this Contract, which proves to be defective by reason of faulty materials, damages, and/or workmanship within twelve (12) month period. Article 7. CONTRACT DOCUMENTS. The Documents hereinafter listed shall form the Contract and they are as fully a part of the Contract as if attached hereto: 7.1 Invitation to Bid 7.2 Instructions to Bidders 7.3 Bid Forms (including the Bid, Bid Schedule(s), Information Required of Bidder, Approved Bid Bond, and all required certificates, affidavits and other documentation) 7.4 Contract 7.5 Contractor’s Performance and Payment Bond 7.6 General Conditions 7.7 Supplementary Conditions 7.8 Technical Specifications 7.9 Drawings 7.10 Addendum No. 1 Dated May 14, 2014 Addendum No. 2 Dated May 22, 2014 Addendum No. 3 Dated May 29, 2014 233 of 362 ARTICLE 8. NOTICE: All notices required in this Contract shall be sent by certified mail, return receipt requested and if sent to the CITY shall be mailed to: City of Boynton Beach Copy to: Procurement Services Division Attn: Jose Huertas, Senior Project Manager Attn: Director of Financial Services Attn: City of Boynton Beach 100 E. Boynton Beach Boulevard 100 E. Boynton Beach Boulevard Boynton Beach, FL 33425 Boynton Beach FL 33425 Tel (561) 742-6487 Tel (561) 742-6311 Fax (561) Fax (561) 742-6316 And if sent to the CONTRACTOR shall be mailed to: Man-Con Incorporated 3460 SW 11 th Street Deerfield Beach, FL 33442 Attn: Guy A. Mancini Tel: (954)427-0230 Fax: (954)427-8133 Article 9. INDEMNITY. In consideration of Twenty-Five Dollars ($25.00) in hand paid and other valuable consideration, receipt of which is hereby acknowledged, CONTRACTOR agrees to defend, indemnify and hold harmless the CITY, its agents and employees, in accordance with paragraph 6.17 of the General Conditions which is incorporated herein and made a part hereof as if fully set forth herein. It is the specific intent of the parties hereto that the foregoing indemnification complies with Florida Statutes 725.06. It is further the specific intent and agreement of said parties that all of the Contract Documents on this Project are hereby amended to include the foregoing indemnification and the Specific Consideration. Article 10. REIMBURSEMENT OF CONSULTANT EXPENSES. Should the completion of this Contract be delayed beyond the specified or adjusted time limit, CONTRACTOR shall reimburse the CITY for all expenses of consulting and inspection incurred by the CITY during the period between said specified or adjusted time and the actual date of final completion. All such expenses for consulting and inspection incurred by the CITY will be charged to CONTRACTOR and be deducted from payments due CONTRACTOR as provided by this Contract. Said expenses shall be further defined as CONSULTANT charges associated with the construction contract administration, including resident project representative costs. Article 11. MISCELLANEOUS. 11.1 No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 11.2 CITY and CONTRACTOR each binds itself, their partners, successors, assigns and legal representatives to the other party hereto, their partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day and year set forth below their respective signatures. 234 of 362 IN WITNESS WHEREOF , the parties hereto have executed this Contract in multiple copies, each of which shall be considered an original on the following dates: DATED this _____ day of ________________________________________, 20____. CITY OF BOYNTON BEACH _________________________________ __________________________________ City Manager Contractor Attest/Authenticated: __________________________________ Title _________________________________ (Corporate Seal) City Clerk Approved as to Form: Attest/Authenticated: __________________________ __________________________________ Office of the City Attorney Secretary PERFORMANCE BOND BOND NO.:___________ NOTE:Bonds must be recorded in the Legal Records Department of Palm Beach County, Florida. Proof of recordation must be submitted along with this Form. One (1) set of originals will be required. KNOW ALL MEN BY THESE PRESENTS : that __________________________________ (insert name of Contractor) ________________________________________________________ as Principal, (address or legal title of Contractor) hereinafter called Contractor, and __________________________________________________ (name and address of Surety) 235 of 362 ____________________________________________________________________________ as Surety, hereinafter called Surety, are held and firmly bound unto CITY OF BOYNTON BEACH, P.O. BOX 310, BOYNTON BEACH, FLORIDA 33425-0310 as Obligee, hereinafter called Owner, in the amount of ____________________________________________________ Dollars ($_____________________), for payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS , Contractor has by written agreement dated ______________________________, 20____, entered into a contract with Owner for ______________________________________________ in accordance with drawings and specifications prepared by _____________________________ which contract is by reference made a part of hereof, and is hereinafter referred to as the Contract. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor shall promptly and faithfully perform such Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. The Surety hereby waives notice of any alteration or extension of time made by the Owner. Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner’s obligations thereunder, the Surety may promptly remedy the default, or shall promptly: 1. Complete the Contract in accordance with its terms and conditions, or 2. Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the most responsible bidder, or, if the Owner elects, upon determination by the Owner and the Surety jointly of the most responsible bidder, arrange for a contract between such bidder and Owner, and make available as work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term “balance of the contract price”, as used in this paragraph, shall mean the total amount payable by Owner to Contractor under the contract and any amendments thereto, less the amount properly paid by Owner to Contractor. 236 of 362 Any suit under this bond must be instituted before the expiration of one (1) year from the date on which final payment under the Contract falls due. No right of action shall accrue on this bond to or for the use of any person or corporation other than the Owner named herein or the heirs, executors, administrators or successors of the Owner. This bond is issued in compliance with Section 255.05, Florida Statutes as may be amended. A claimant, except a laborer, who is not in privity with the Contractor and who has not received payment for its labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the Contractor with a notice that he intends to look to the bond for protection. A claimant who is not in privity with the Contractor and who has not received payment for its labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the Contractor and to the Surety written notice of the performance of the labor or delivery of the materials or supplies and the nonpayment. No action for the labor, materials, or supplies may be instituted against the Contractor or the Surety unless both notices have been given. No action shall be instituted against the Contractor or the Surety on the bond after one (1) year from the performance of the labor or completion of delivery of the materials or supplies. 237 of 362 Signed and sealed this __________ day of ____________________, 20____. _______________________________________ Principal (Seal) ________________________________ Witness _______________________________________ Title _______________________________________ Surety ________________________________ Witness _______________________________________ Attorney-in-Fact END OF PERFORMANCE BOND PAYMENT BOND BOND NO.:___________ NOTE:Bonds must be recorded in the Legal Records Department of Palm Beach County, Florida. Proof of recordation must be submitted along with this Form. One (1) set of originals will be required. THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FAVOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS : that ___________________________________ (insert name of Contractor) ________________________________________________________ as Principal, (address or legal title of contractor) hereinafter called Principal, and ___________________________________________________ (name and address of Surety) ____________________________________________________________________________ as Surety, hereinafter called Surety, are held and firmly bound unto CITY OF BOYNTON BEACH, P.O. BOX 310, BOYNTON BEACH, FLORIDA 33425-0310 as Obligee, hereinafter 238 of 362 called Owner, for the use and benefit of claimants as herebelow defined, in the amount of _______________________________________________________________________ Dollars ($_____________), for payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS , Principal has by written agreement dated ______________________________, 20____, entered into a contract with Owner for ______________________________________________ __________________________________________________________________ in accordance with drawings and specifications prepared by _____________________________ which contract is by reference made a part of hereof, and is hereinafter referred to as the Contract. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect, subject, however, to the following conditions: 1. A claimant is defined as one having a direct contract with the Principal or with a subcontractor of the Principal for labor, material or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract. 2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit. 3. No suit or action shall be commenced hereunder by any claimant: a. Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which such claimant is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for when the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the State in which the aforesaid project is located, save that such service need not be made by a public officer. b. After the expiration of one (1) year following the date on which Principal ceased work on such Contract, it being understood, however, that if any limitation embodied in this bond 239 of 362 is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. c. Other than in a State Court of competent jurisdiction in and for the County or other political subdivision of the State in which the Project, or any part thereof, is situated, or in the United States District Court for the district in which the Project, or any part thereof, is situated, and not elsewhere. 4. The amount of this bond shall be reduced by and to the extent of a payment or payments made in good faith hereunder, inclusive of the payment by Surety of mechanics liens which may be filed of record against such improvements, whether or not claim for the amount of such lien be presented under and against this bond. 5. This bond is issued in compliance with Section 255.05, Florida Statutes, as may be amended. A claimant, except a laborer, who is not in privity with the Contractor and who has not received payment for its labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the Contractor with a notice that he intends to look to the bond for protection. A claimant who is not in privity with the Contractor and who has not received payment for its labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the Contractor and to the Surety written notice of the performance of the labor or delivery of the materials or supplies and the nonpayment. No action for the labor, materials, or supplies may be instituted against the Contractor or the Surety unless both notices have been given. No action shall be instituted against the Contractor or the Surety on the bond after one (1) year from the performance of the labor or completion of delivery of the materials or supplies. Signed and sealed this __________ day of ____________________, 20____. _______________________________________ Principal (Seal) __________________________________ Witness _______________________________________ Surety __________________________________ Witness _______________________________________ Attorney-in-Fact END OF PAYMENT BOND 240 of 362 CITY OF BOYNTON BEACH WARRANTY OF TITLE STATE OF FLORIDA COUNTY OF__________________________________, being first duly sworn, deposes and says as follows: He is ____________________ of _____________________________________________, (Title) (Name of Corporation or Firm) a Florida Corporation (______) Check One a Florida General Partnership (______) a Florida Limited Partnership (______) a Sole Proprietor (______) which is named in Construction Contract dated the _______ day of _______________________, 20____, between such corporation as the CONTRACTOR and the City of Boynton Beach, Florida as the OWNER, for the construction of _________________________________________________ and Affiant is authorized to make this Affidavit as, or on behalf of, the Contractor as named above. Title to all work, materials and equipment covered by the attached Final Application for Payment dated ______________________, passes to the Owner at the time of payment free and clear of all liens, and all laborers, materialmen and subcontractors have been paid for performing or furnishing the work, labor or materials upon such Contract work covered by the aforesaid Final Application for Payment. This statement under oath is given in compliance with Section 713.06 Florida Statutes. ____________________________________ Affiant Sworn to and subscribed before me this ________ day of _____________________, 20___ ________________________________________ Notary Public, State of Florida at Large My Commission expires: (SEAL) END OF WARRANTY OF TITLE 241 of 362 242 of 362 243 of 362 244 of 362 245 of 362 246 of 362 247 of 362 248 of 362 249 of 362 250 of 362 251 of 362 252 of 362 253 of 362 254 of 362 255 of 362 256 of 362 257 of 362 258 of 362 259 of 362 260 of 362 261 of 362 262 of 362 263 of 362 264 of 362 265 of 362 266 of 362 267 of 362 268 of 362 269 of 362 270 of 362 271 of 362 272 of 362 273 of 362 274 of 362 8. A CODE COMPLIANCE & LEGAL SETTLEMENTS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: 07/01/2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Approve negotiated settlement in the amount of EQUESTED CTION BY ITY OMMISSION $45,000 in the case of Clifford Henfield vs. City of Boynton Beach ER: XPLANATION OF EQUEST Defense CounselPlaintiff Counsel : Lyman Reynolds : Linnes Finney Incident: On November 1, 2010, police officers initiated a police stop on a vehicle described by a friend’s girlfriend on a report of an alleged kidnapping of her child. Plaintiff alleges that the officers asked him to step out of his vehicle, and questioned him as to the whereabouts of his friend who may have been involved in the alleged kidnapping. The Plaintiff answered that he was unaware of his whereabouts and began becoming hostile toward the officers involved. Two officers were injured during the course of the encounter. Plaintiff was arrested and charged with assault on a law enforcement officer and two (2) counts of resisting arrest with violence. Plaintiff alleges false arrest, battery, negligent retention/supervision and malicious prosecution, as well as physical and mental suffering. The State Attorney “no filed” the case. H? Recommendations for settlements OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES of claims of the nature are part of the ongoing responsibilities of Risk Management. The City does not admit any liability and/or fault and enters into this settlement only because of the expense of continuing litigation. 275 of 362 FI: Settlement will be charged to the Risk Management Budget line item ISCAL MPACT 522-1710-519-49.20, Self Insured Losses for first and third party claims. A: Failure to approve settlement will result in additional discovery, litigation LTERNATIVES and trial costs. Potential jury verdict range is $35,000 to $75,000. Future litigation costs will run approximately $150,000. Total costs would be estimated at $200,000. The Self Insurance Retention is $200,000 due to the plaintiff filing allegations of the U.S. Constitutional violation of 1983 Violation of Civil Rights. 276 of 362 The City of Boynton Beach, Florida RISK MANAGEMENT DEPARTMENT COMMISSION AGENDA MEMORANDUM TO: Lori LaVerierre, City Manager THRU: Julie Oldbury, Human Resources & Risk Management Director FROM: Pam Webb, Risk Administrator DATE: May 27, 2014 SUBJECT: Clifford Henfield v. City of Boynton Beach Date of Loss: November 1, 2010 X Settlement __ Judgment Risk Management recommends the City Commission ratify the: in the above stated manner. RESERVES : Indemnity: $ 200,000 Expenses: $ 50,000 Demand : Original: $ 200,000 Final: $ 50,000 Offer : Original: $ 5,000 Final: $ 45,000 SETTLEMENT$ 45,000 : X NOTE: This settlement is the compromise of a claim for damages. Payment by the City is not to be construed, in any way, as an admission of liability or responsibility for any damages or injuries resulting therefrom. Current Adjustment FeesCurrent Legal Fees: : $ -0- $ 93,932.71 IF NOT SETTLED Projected Legal FeesProjected Jury Verdict : $ 150,000 : $ 35,000+ JUDGEMENT$ - : __ Current Adjustment Fees:Current Legal Fees: $ - $ - CASE NARRATIVE : On November 1, 2010, police officers initiated a police stop on a vehicle described by a friend’s girlfriend on a report of an alleged kidnapping of her child. Plaintiff alleges that the officers asked him to step out of his vehicle, and questioned him as to the whereabouts of his friend who may have been involved in the alleged kidnapping. The Plaintiff answered that he was unaware of his whereabouts and began becoming hostile toward the officers involved. Two officers were injured during the course of the encounter. Plaintiff was arrested and charged with assault on a law enforcement officer and two (2) counts of resisting arrest with violence. Plaintiff alleges false arrest, battery, negligent retention/supervision and malicious prosecution, as well as physical and mental suffering. The State Attorney “no filed” the case. This settlement does not admit any liability and/or fault and enters into this settlement only because of the expense of continuing litigation. 277 of 362 278 of 362 9. A PUBLIC HEARING July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED ORDINANCE NO. 14-006 - EQUESTED CTION BY ITY OMMISSION SECOND READING - PUBLIC HEAING - Approve request for 500 Ocean rezoning (REZN 14- 001) of subject property from Mixed Use-High (MU-H) with expired Master Plan for 378 multi- family residential units plus retail to Mixed Use-High (MU-H) with a new Master Plan for 341 multi-family residential units plus retail and office, located at 101 South Federal Highway. Applicant: Thomas Heyden/Morgan Boynton Beach LLC (TABLED ON 5/20/14) ER: According to the Land Development Regulations, a master XPLANATION OF EQUEST plan is an integral component of the rezoning application for a planned zoning district. Consequently, upon expiration of a master plan, a request for a new Master Plan requires a concurrent application for rezoning, even though the zoning designation currently on the property will remain the same. The property’s future land use classification is Mixed Use-Core (MU-C), allowing for the density and intensity of the proposed Master Plan. The requested zoning district, MU-H, is the only zoning district corresponding to the said MU-C land use category. Moreover, in terms of density and intensity, the new Master Plan represents relatively little change from the former plan that expired. The need for high density projects downtown has recently been amplified as the City continues planning efforts related to the establishment of the Downtown Transit- Oriented Development (TOD) District within a ½ mile radius of the intersection of Ocean Avenue and the Florida East Coast rail corridor. This intersection is the anticipated location of the station for the future Tri-Rail Coastal Link commuter service. The proposed rezoning with its mixed-use, high density Master Plan presents an opportunity 279 of 362 to become a catalyst for development in the Downtown TOD District where there is a need for more residents and more job-creating commercial uses to maximize potential benefits of an access to a regional transit system. The Planning and Development Board recommended this request for approval on May 27, 2014. H? No impact on City programs or OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES services FI: The project will generate approximately $348,000 of annual revenues in ISCAL MPACT ad valorem taxes and fire assessment. The total annual fees for water, sewer, storm water and refuse collection will be approximately $249,000. The necessary services can be provided within the existing capacity of the city departments providing these services: no additional capital outlays or increased staffing will be required. A: None recommended LTERNATIVES 280 of 362 ORDINANCE NO. 14-006 AN ORDINANCE OF THE CITY OF BOYNTON BEACH, FLORIDA, REGARDING THE APPLICATION OF THOMAS HEYDEN OF MORGAN BOYNTON BEACH LLC, AMENDING ORDINANCE 02- 013 TO REZONE A PARCEL OF LAND LOCATED ON THE SOUTHWEST CORNER OF OCEAN AVENUE AND FEDERAL ND HIGHWAY, EXTENDING SOUTH TO SOUTHEAST 2 AVENUE TH AND WEST TO SOUTHEAST 4 STREET, AS MORE FULLY DESCRIBED HEREIN, FROM MIXED USE-HIGH (MU-H), 378 MULTI-FAMILY RESIDENTIAL AND RETAIL TO MIXED USE- HIGH (MU-H) 341 MULTI-FAMILY DWELLING UNITS, RETAIL AND OFFICE; PROVIDING FOR CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE . WHEREAS, the City Commission of the City of Boynton Beach, Florida has adopted Ordinance No. 02-013, in which a Revised Zoning Map was adopted for said City; and WHEREAS, Thomas Heyden of Morgan Boynton Beach LLC, has filed a petition on behalf of the owner, Capstone Resdev LLC., to rezone a parcel of land more particularly described hereinafter; and WHEREAS, the City Commission, following required notice, conducted a public hearing to consider the rezoning and heard testimony and received evidence which the Commission finds supports a rezoning for the property hereinafter described; and WHEREAS , the City Commission finds that the proposed rezoning is consistent with the Land Use described in the City’s Comprehensive Plan; and WHEREAS, the City Commission deems it in the best interests of the inhabitants of said City to amend the aforesaid Revised Zoning Map as hereinafter set forth. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing Whereas clauses are true and correct and incorporated herein by this reference. 281 of 362 Section 2. The following described land located on the Southwest corner of Ocean ndth Avenue and Federal Highway, extending south to Southeast 2 Avenue and west to Southeast 4 Street, as more fully described herein, is hereby rezoned from Mixed Use-High (MU-H), 378 multi-family residential and retail to Mixed Use-High (MU-H), 341 multi-family dwelling units, retail and office: PORTIONS OF BLOCKS 7 AND 12, ORIGNAL TOWN OF BOYNTON, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 1, PAGE 23 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA. THND TOGETHER WITH PORTIONS OF SOUTHEAST 4 STREET, SOUTHEAST 2 AVENUE AND OCEAN AVENUE LYING ADJACENT TO SAID BLOCKS 7 AND 12, ORIGNAL TOWN BOYNTON, ACCORDING TO SAID PLAT. ST TOGETHER WITH PORTIONS OF SOUTHEAST 1 AVENUE LYING BETWEEN SAID BLOCKS 7 AND 12, NOW ST VACATED, AND A PORTION OF SOUTHEAST 1 PLACE LYING IN SAID BLOCK 7, NOW VACATED, ORIGINAL TOWN OF BOYNTON ACCORDING TO SAID PLAT. TOGETHER WITH A PORTION OF BLOCK 12, ORIGINAL TOWN OF BOYNTON (REVISED PLAT), ACCORDING TO THE PLAT THEREIF AS RECORDED IN PLAT BOOK 15, PAGE 18 OF SAID PUBLIC RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMERNCING AT THE INTERSECTION OF THE CENTERLINE OF OCEAN AVENUE WITH CENTERLINE OF FEDERAL HIGHWAY (STATE ROAD NO. 5, US HIGHWAY NO. 1) (100 FOOT RIGHT-OF WAY). THENCE NORTH 88’59’27” WEST ALONG SAID CENTERLINE OF OCEAN AVENUE, 50.01 FEET; THENCE SOUTH 00’02’09” WEST, 26.91 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE SOUTH 00’02’09” WEST, 588.24 FEET TO A POINT ON THE ARC OF A NON-TANGENT CURVE CONCAVE TO THE NORTHWEST (A RADIAL LINE THROUGH SAID POINT BEARS NORTH 44’03’28” WEST TO THE RADIUS POINT OF THE NEXT DESCRIBED CURVE); THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 44’49’08”, AN ARC DISTANCE OF 18.77 FEET TO THE POINT OF TANGENCY; THENCE NORTH 88’31’35” WEST, 313.23 FEET TO A POINT ON THE ARC OF A NON-TANGENT CURVE CONCAVE TO THE NORTHEAST (A RADIAL LINE THROUGH SAID POINT BEARS NORTH 19’05’54” EAST TO THE RADIUS POINT OF THE NEXT DESCRIBED CURVE); THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 16.19 FEET, A CENTRAL ANGLE OF 49’54’09”, AN ARC DISTANCE OF 14.10 FEET; THENCE NORTH 00’02’09” EAST, 588.85 FEET; THENCE SOUTH 88’59’27” WEST, 166.51 FEET; THENCE NORTH 45’33’42” EAST, 4.32 FEET; THENCE SOUTH 88’59’27” EAST, 152.24 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHWEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 24.00 FEET, A CENTRAL ANGLE OF 49’45’36”, AN ARC DISTANCE OF 20.84 FEET TO THE POINT OF BEGINNING. 282 of 362 A location map is attached hereto as Exhibit “A” and made a part of this Ordinance by reference. Section 3. That the Zoning Map of the City is amended to reflect this rezoning. Section 4. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 5. Should any section or provision of this Ordinance or any portion thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the remainder of this Ordinance. Section 6. This ordinance shall become effective immediately upon passage. th FIRST READING this 17 day of June, 2014. 283 of 362 SECOND, FINAL READING and PASSAGE this _____ day of ___________, 2014. CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor ______________________________ Vice Mayor – Joe Casello ______________________________ Commissioner – David T. Merker ______________________________ Commissioner – Mack McCray ______________________________ ATTEST: Commissioner – Michael M. Fitzpatrick _______________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 284 of 362 285 of 362 286 of 362 287 of 362 288 of 362 289 of 362 290 of 362 291 of 362 9. B PUBLIC HEARING July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Approve request for New Site Plan approval to EQUESTED CTION BY ITY OMMISSION construct 341 dwelling units within five (5) and six (6) story buildings, retail space and associated recreational amenities and parking on a 4.69-acre parcel located at 101 South Federal Highway. Applicant: John Wohlfarth, IBI Group. (TABLED ON 5/20/14 AND 6/17/14) ER: Staff recommends that this item be presented along with the XPLANATION OF EQUEST th corresponding requests for rezoning (REZN 14-001) on June 17; however, action should be postponed until July 1, 2014 to be processed concurrent with second reading of the rezoning request. The site plan for the project should not be approved prior to formal action being taken on the rezoning and associated master plan for the site, and this timing will ensure that approval dates, if supported by the Commission, will be the same for the related application items. This item has been advertised and such formal postponement is necessary to maintain the validity of the legal notification process. H? N/A OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: N/A ISCAL MPACT A: None recommended. LTERNATIVES 292 of 362 DEVELOPMENT DEPARTMENT PLANNING AND ZONING DIVISION MEMORANDUM NO. PZ 14-006 STAFF REPORT TO: Chair and Members Planning and Development Board THRU: Michael W. Rumpf Director of Planning and Zoning FROM: Ed Breese Principal Planner DATE: April 13, 2014 PROJECT NAME: 500 Ocean (NWSP 14-002) REQUEST: New Site Plan for multi-family residential (rental apartments) consisting of 341 dwelling units within five (5) and six (6)-story buildings, retail space, and associated recreational amenities and parking on 4.69 acres. PROJECT DESCRIPTION Property Owner: Capstone Resdev LLC Morgan Boynton Beach LLC Applicant: John Wohlfarth, IBI Group Agent: 101 S. Federal Highway - SW corner of Federal Highway and Location: Ocean Avenue (see Exhibit “A” - Site Location Map) MXC (Mixed Use Core) Existing Land Use: Existing Zoning: MU-H (Mixed Use High) No change to land use proposed Proposed Land Use: No change to zoning proposed Proposed Zoning: 341 multi-family residential units (rental apartments) within five Proposed Use: (5) and six (6)-story buildings, retail space, and associated recreational amenities and parking. 4.69 acres (204,208 square feet) Acreage: Adjacent Uses: 293 of 362 North: Right-of-way for Ocean Avenue and farther north are developed properties zoned CBD (Central Business District); nd South: Right-of-way for Southeast 2 Avenue and farther south is a developed commercial plaza zoned C-3 (Community Commercial); East: Right-of-way for Federal Highway and father east is developed commercial properties zoned CBD (Central Business District); and th West: Right-of-way for Southeast 4 Street and farther west is developed commercial properties zoned CBD (Central Business District). PROPERTY OWNER NOTIFICATION Owners of properties within 400 feet of the subject request were mailed a notice of this request and its respective hearing dates. The applicant certifies that they posted signage and mailed notices in accordance with Ordinance No. 04-007. BACKGROUND Proposal: Mr. John Wohlfarth, agent for Morgan Boynton Beach LLC, is requesting to construct 341 multi-family residential units (rental apartments) within five (5) and six (6)-story buildings, retail space, and associated recreational amenities and parking. The two (2) block site in the heart of downtown is currently vacant and has previously been approved for mixed use development. A previous project called The Arches was approved in 2003, and was subsequently awarded two (2) site plan time extensions. In 2005, a Major Site Plan Modification application was approved as filed by new owners of the property. According to the site plan staff report, The Arches was approved to include a total of 378 dwelling units and 40,596 square feet of retail space (consisting of retail, office, and restaurant uses). A height exception request was also approved for certain rooftop elements that concealed mechanical equipment (elevator shafts and stairwells) at a height of 167 feet, or 17 feet above the maximum height threshold of 150 feet. An alley and the sidewalks on three sides of the property were also abandoned as part of the project approval. The project subsequently received Site Plan Time Extensions in 2006 and 2007. A third Site Plan Time Extension was denied in 2008 due to lack of any action on the part of the developer, the absence of a timeline to begin and complete the project, and demonstration of project financing. ANALYSIS Concurrency: 294 of 362 Traffic: A traffic study was sent to the Palm Beach County Traffic Division for their review and information and they have responded that the project is located within the boundaries of the City of Boynton Beach TCEA (Traffic Concurrency Exception Area) and therefore meets the Palm Beach County Traffic Performance Standards. The traffic study indicates the project would generate a total of 196 AM Peak Hour trips and 330 PM Peak Hour trips. School: The School District of Palm Beach County has confirmed that area schools have adequate capacity to accommodate the potential public school students who will reside in the proposed dwelling units with their families. The project is located within Concurrency Service Area 19. Utilities: The City’s water capacity, as increased through the purchase of up to five (5) million gallons of potable water per day from Palm Beach County Utilities, would meet the projected potable water for this project. Sufficient sanitary sewer and wastewater treatment capacity is also currently available to serve the project. The applicant will be making several upgrades to utility lines in the vicinity of the project as part of the site development. Police/Fire: The Police Department has reviewed the site plan and all review comments have been acknowledged by the applicant and will be addressed at the time of permitting. The Fire Department notes that they will be able to provide an adequate level of service for this project with current or expected infrastructure and/or staffing levels. Further plan review by Police and Fire will occur during the building permit process. Drainage: Conceptual drainage information was provided for the City’s review. The Engineering Division has found the conceptual information to be adequate and is recommending that the review of specific drainage solutions be deferred until time of permit review. The developer will provide a drainage easement for conveyance of storm water through the drainage system located on their property and enter into an agreement to ensure future and perpetual maintenance/repair of the proposed relocated drainage system (see Exhibit “C” – Conditions of Approval). Access: Two (2) major points of ingress/egress are proposed for the th project, which are both located on SE 4 Street. The first is located near the northwest corner of the property and provides direct access to the surface parking lot immediately behind the retail buildings fronting Ocean Avenue. This access point also provides access into the parking garage. The second major ingress/egress point provides direct entry into the th parking garage and is located approximately mid-block on SE 4 Street. A minor driveway entrance/exit is provided mid-block on Federal Highway and serves as a drop-off location for the building’s main lobby/leasing center under a porte cochere. Lastly, an emergency egress path is provided at the east terminus of the surface parking lot located immediately behind the retail buildings fronting Ocean Avenue. Sidewalks, ranging in width from 6 to 14 feet, are provided completely around the site, with the vast majority of the sidewalk proposed to be minimum of 8 feet in width. Segments of the sidewalk along Ocean Avenue will be covered by an arcade. There are also three (3) separate 295 of 362 plazas proposed to encourage pedestrian interaction, with the first located at the NE corner of the site. This plaza is also intended to incorporate the art feature for the project. A second plaza is proposed between the retail buildings along Ocean Avenue and designed to be lined with an arcade around the edge and a large specimen tree located in a planter with a seat wall, in the center of the plaza. The third plaza is proposed at the NW corner of the site, along the west edge of the retail space. This plaza is intended to interact with the future rail stop across the street. Parking: Off-street parking for the MU-H zoning district requires 1.33 parking spaces for one-bedroom units and 1.66 parking spaces two (2) or more bedroom units. The project proposes 341 units (a mixture of one, two, and three bedrooms), which would require 515 parking spaces. Additionally, the code requires the provision of guest parking at a rate of 0.15 spaces per unit, which adds another 51 parking spaces to the total. The commercial space, which would allow a mix of retail and restaurant uses, requires one (1) parking space per 200 square feet of gross floor area. The site plan proposes 13,330 square feet of retail, thereby requiring an additional 67 parking spaces. The site plan also depicts the provision of 6,613 square feet of leasable office space, which would require 23 more parking spaces. Under this standard methodology for calculating required off-street parking spaces, a grand total of 656 parking spaces would be required. The site plan proposes 703 parking spaces, or an excess of 47 spaces. Regular parking space dimensions would conform to code requirements for the CRA of 9 feet by 18 feet for 90 degree parking. Handicap spaces would be dimensioned 12 feet by 18 feet. The applicant is proposing a seven (7)-story parking garage that would accommodate up to 664 vehicles, including 14 handicap spaces. The first floor of the structure would accommodate retail, office, and guest parking. The second level would also allow for guest parking up to the point of the security gates, then all other spaces on the second floor and up through the seventh floor would be designated for resident parking. The developer will be required to comply with the City’s residential parking requirements to ensure that the designated resident parking spaces are reserved for, and made available to the residents, so that there is no reason for residents to utilize guest and retail parking spaces. This requirement shall be monitored and enforced by the developer (see Exhibit “C” – Conditions of Approval). A surface parking lot is located immediately behind (south of) the commercial building proposed along Ocean Avenue. This parking area is designed to accommodate 34 parking spaces, including three (3) handicap accessible spaces. There are also five (5) surface parking spaces within the circular drive off of Federal Highway, at the lobby/leasing center entrance, including one (1) handicap accessible space. Lastly, the proposed site plan depicts the provision of four (4) parallel parking spaces along Ocean Avenue and ten (10) parallel spaces along Federal Highway, which are in excess of the total available parking (704 spaces) noted above. Staff notes that the parking and any landscaping proposed in the Federal Highway right-of-way is subject to FDOT approval 296 of 362 (see Exhibit “C” – Conditions of Approval), and that the provision of on- street parking is strongly promoted by staff, which will support the applicant’s efforts with FDOT. Landscaping: The Plant List (Sheet LA-13) indicates that the project would add a total of 185 canopy and palm trees, 4,273 shrubs, and 2,359 groundcover plants. All plant materials to be used in the landscape design are required to be Florida number one grade and must be identified as having “low” or “medium” watering needs in the South Florida Water Management’s “Waterwise” publication. The proposed tree species would include the following: Silver Buttonwood, Tabebuia and Yellow Elder trees. Palm species would include Royal, Foxtail, Alexandra, Bismark, Sabal, and Fishtail palms. Projects proposed in the Mixed Use High (MU-H) zoning district are subject to the “Streetscape Design” portion of the landscape code regulations. These code provisions recognize the desire for reduced building setbacks and encourage building placement abutting the street, thus creating an urban setting. The purpose of the “Streetscape Design” concept is to create a landscape design that encompasses both the private and public domain, to blend the two areas into one unified landscape scheme and pedestrian experience. This is accomplished through hardscape and landscape choices, covered walkways (arcades, awnings, tree canopy), and streetscape amenities (benches/seatwalls, lighting, accent plantings). The landscape design proposed by the applicant depicts the use of street trees and covered arcades to create the streetscape theme, with the lower landscape material placed mostly back, along the building foundation, in an effort to provide maximum clear pedestrian pathways. The applicant has worked with staff to provide the street trees and covered walkways necessary to meet the required 50% shaded sidewalk along all building frontages. The west building elevation is where the parking garage is located. Staff worked with the applicant to design this façade to incorporate as many of the architectural treatments from the remainder of the building to disguise its true purpose and integrate it in to the overall building design to the maximum extent feasible. While the applicant has done a commendable job in the design, staff requested a slightly denser planting scheme along this portion of the west elevation to better screen/buffer the parking structure. The landscape plan proposes 16 trees/palms within this approximately 200 foot segment, utilizing landscape material such as Silver Buttonwood and Tabebuia trees and Alexandra and Bismark palms. The two internal courtyard amenities are heavily planted with a variety of tropical landscape materials such as an assortment of palm trees, bromeliads, peace and crinum lilies, crotons, ti plants, schefflera and xanadu. The proposed building site totals 204,208.48 square feet or 4.69 Building and Site: acres, encompassing two (2) city blocks downtown, with street rights- of-way on each side of the property. The applicant is proposing 341 units, with the majority of the units located within the main six (6)- story building, and the balance of the units on floors three (3) through 297 of 362 five (5) above the retail/office building fronting on Ocean Avenue and the residential bridge over the surface parking, connecting back to the six (6)-story building and parking structure. The retail/office portion of the project totals 19,943 square feet and fronts on Ocean Avenue, with a portion of the retail space wrapping the corner of Ocean Avenue and Federal Highway, bordering the public plaza at the corner. The parking garage, as noted previously, has seven (7) levels of parking, with dedicated resident parking beginning, in part, on the second level, behind gate access and continuing to the top. Of the 341 residential units, 156 are one (1) bedroom, 162 are two (2) bedroom, and 23 are three (3) bedroom units. The units range in size from 747 square feet to 1,306 square feet under air. Each unit also has a balcony that either faces out towards the street or in towards the courtyards, ranging in size from 60 square feet to 235 square feet in size. Relative to the floor area ratio (FAR) regulations within the code, the Mixed Use High (MU-H) zoning district has a maximum FAR of 4.0. Last year, the code was amended (Ordinance 13-013) to also require a minimum FAR within the new Transit Oriented Development (TOD) regulations associated with the proposed passenger rail station location on the FEC Railway. The 500 Ocean project is located adjacent to the proposed train station, placing it within the “Transit Core” (1/4 mile radius of the station), which requires that new development have a minimum 40 dwelling units per acre (72.7 du/ac proposed) and a minumum FAR of 2.5, not including parking garage. The project as proposed has a FAR of 3.25 including the 221,100 square foot garage allocation. Once the garage is subtracted from the total project square footage, the FAR is 2.17. During the drafting of Ordinance 13-013, staff reviewed other mixed use projects constructed within the City to analyze and determine the appropriate minimum floor area ratio (FAR), in an effort to ensure the necessary density and intensity of any new development around the proposed rail station would support the mass transit initiatives and improve the vitality of downtown. Since the adoption of that ordinance, staff, in their continued collaboration with the Treasure Coast Regional Planning Council (TCRPC) and Florida Department of Transportation (FDOT), has reviewed a copy of the “Florida TOD Guidebook”, which establishes a framework for site specific densities and intensities based upon various transit modes. Based upon the different station types outlined within the guidebook, the proposed Boynton Beach train station would be classified as a Community Center, as opposed to a Regional Center or Neighborhood Center. As such, the guidebook indicates establishment of a minimum FAR of 2.0 for development around the commuter rail station. With this additional information, staff is proposing to amend the code (CDRV 14-001) to adopt a new minimum FAR of 2.0 simultaneously with the action on this site plan. The proposed FAR of 2.17 associated with the new site plan would then meet this amended regulation. Staff’s review of this 298 of 362 plan has reinforced it’s belief that the proposed FAR is in keeping with the vision for downtown development, as any project designed with similar density and FAR characteristics as the 500 Ocean project would have sufficient density and intensity to assist with the revitalization of the City core and support mass transit initiatives. Building Height: The maximum building height allowed in the Mixed Use High (MU-H) zoning district is 150 feet. The proposed building elevations depict the typical roof deck height of the residential building fronting on ndth Federal Highway, SE 2 Avenue and SE 4 Street ranging between 59’ and 59’-6”, with typical parapet walls at approximately 65’ and tower elements reaching to approximately 75’. On the Ocean Avenue side of the project, the typical roof deck is proposed at a height of 52’- 4”, with typical parapet walls at approximately 57’ and tower elements th reaching to approximately 66’. The garage structure on the SE 4 street elevation is depicted with staggered and repeating parapet wall heights varying between 62’, 66’ and 69’. Setbacks: The MU-H zoning district requires no building setbacks, but rather a zero (0) build-to line. However, the building setbacks may be increased in areas where the intent is to 1) enhance public spaces such as sidewalks, plazas, fountains, or outdoor seating areas; 2) optimize landscape design; 3) maximize on-site drainage solutions; and/or 4) accommodate architectural features and building enhancements. This requirement would apply to all building facades because the building fronts on four (4) streets. The building setback is measured from the property line to the exterior surface of the building or supporting columns. Along Federal Highway, the proposed building setback varies along the length of the project, with a nine (9) foot setback from the retail building arcade at the NE corner of the site, to a staggered setback for the terraces ranging between 15 and 24 feet, and finally, a 14 foot setback to nd the porte cochere at the building lobby entry. Along SE 2 Avenue, the building and balcony/terraces range in setback from 6 feet to nearly 15 feet, with a few small building pockets without balcony/terraces, extending to a 24 foot setback. On the Ocean Avenue side of the building, the setback varies from nearly one (1) foot at one (1) of the arcades to slightly over 15 feet at certain points along the storefront windows and nearly 42 th feet to the arcade within the center plaza. Along NE 4 Street, the portion of the building containing residential units at the SW corner, ranges in setback from four (4) feet to eight (8) feet in the area of balcony/terraces, to a distance of approximately 18 feet where there are no balcony/terraces, and 24 feet along the length of the westernmost plaza area. Along the garage structure, the setback to the face of the wall is approximately 18 feet, with awnings attached to a majority of the façade, creating the impression of a setback of approximately 13 feet. As previously noted, the MU-H zoning district has zero (0) build-to line. The code provides for an allowance of up to a 15 foot deviation to provide the developer the opportunity to 1) enhance public spaces such as sidewalks, plazas, fountains, or outdoor seating areas; 2) optimize landscape design; 3) maximize on-site drainage solutions; and/or 4) accommodate architectural features and building enhancements. Site plan submittals that exceed the allowed deviation require Community 299 of 362 Design Appeal approval. A thorough review of the setbacks and site design was conducted by staff, who concluded that the vast majority of each building elevation met the requirement and where deviation are proposed, the underlying reason for the small deviations met other urban design criteria promoted by staff. These include 1) providing adequate distance from the street trees planted along the curb on Federal Highway to the face of the building, in order to allow for a full crown/canopy of the trees and to discourage harsh tree trimming to keep the trees off of the building; 2) providing for three (3) plazas along the perimeter of the retail component of the project, rather than one (1) larger plaza at the corner of Federal Highway and Ocean Avenue. The dispersion of plaza space allows for more intimate spaces and allows for a plaza area facing the proposed rail station to the west, and was requested by staff; and 3) providing a wider planting area along the west side of the garage structure to allow for a denser planting scheme against the façade to better screen this operation from off site, as requested by staff. Amenities: As noted above, the site has been designed with three (3) plazas along Ocean Avenue, the first of which is located at the NE corner of the site, at Federal Highway, and consists of 2,418 square feet, a seating wall, benches, trees and the proposed art feature. A second plaza is proposed mid-block on Ocean Avenue, between the two retail buildings and is 1,492 square feet in size. The third plaza is th located at the NW corner of the site, at SE 4 Street, adjacent from the future rail station, and consists of 2,236 square feet and is lined with palm trees. The project has also been designed with two (2) large interior courtyards for resident use. The southerly courtyard contains the community pool, covered pavillion, summer kitchen, hammocks and lush tropical landscaping. The northerly courtyard is designed as a large paver patio area with a covered pavillion, summer kitchen, outdoor seating, fire pit and lush tropical landscaping. The amenities located within the building include a club room, theater, fitness center, business center, cyber café, game room and interior bike storage. The developer will also be working with Palm Tran of Palm Beach County to determine if transit shelter is needed at this property. If it is determined one is needed, the shelter will be designed utilizing some of the architectural characteristics of the mixed use project. Design: The proposed building has a contemporary design with some Mediterrean architectural embellishments, featuring a smooth stucco finish, parapet roof, barrel tile mansard roof and tower features, decorative cornices and banding, modulation of the facades, balconies with decorative aluminum railing, building score lines, some arched windows and openings, decorative medallions, stone veneers and trims, decorative brackets, decorative trellises, canvas awnings, decorative grilles, arcades and an earthtone color palette. Lighting: The photometric plan (Sheet LG-1) includes 54 freestanding pole light fixtures, all of which would be 15 feet in height and designed to match the poles and light fixture design the City has 300 of 362 already adopted along the Casa Costa and Boynton Promenade projects, a block away from this site. The poles and fixtures would be constructed of cast aluminum, black in color and the light fixtures would have a flat lens to ensure the on-site illumination would not “spill over” onto adjacent properties and rights-of-way as required by code. There are spot readings in excess of the maximum 5.9 foot- candles allowed, however these locations are fully contained within the internal courtyards, with no external impact. Signage: Site and building signage has not been finalized and a Sign Program will need to be approved for the site prior to requesting any sign permits for the site (see Exhibit “C” – Conditions of Approval). Public Art: The project is subject to the Art in Public Places requirement, and the applicant has been in discussions with the Public Arts Administrator regarding the art and its placement. The proposed location is depicted in the plaza at the corner of Federal Highway and Ocean Boulevard. According to the proposed construction estimates, the project would have an art budget of approximately $416,000. RECOMMENDATION Staff has reviewed this request for a new site plan and recommends APPROVAL, subject to satisfying all comments indicated in Exhibit “C” – Conditions of Approval. Any additional conditions recommended by the Board or the City Commission shall be documented accordingly in the Conditions of Approval. S:\Planning\SHARED\WP\PROJECTS\500 Ocean\NWSP 14-002\Staff Report.doc 301 of 362 302 of 362 303 of 362 304 of 362 305 of 362 306 of 362 EXHIBIT “C” Conditions of Approval Project Name: 500 Ocean File number: NWSP 14-002 rd Reference: 3 review plans identified as a New Site Plan with a April 15, 2014 Planning and Zoning Department date stamp marking. DEPARTMENTS INCLUDE REJECT ENGINEERING / PUBLIC WORKS / FORESTRY / UTILITIES Comments: 1. Prior to TCO, CO , and/or acceptance of any offsite improvements the required five (5) foot minimum unobstructed sidewalk easement for public access adjacent to NE 4th Street, SE 2nd Avenue, and Ocean Avenue must be recorded and dedicated to the City. Also provide a written acknowledgement that all sidewalks located within the dedicated easements will be maintained by the developer and/or property owner. 2. A Developer’s Agreement will be required to ensure future and perpetual maintenance of street lighting used to illuminate public thnd right of way by developer. (Ocean Avenue, SE 4 Street, SE 2 Avenue, and Federal Highway). 3. Please provide decorative and removable bollards on Fire Department access area to prevent motorists from driving over the curb at entrance to plaza from surface parking. 4. Please provide an updated traffic study with current data from recent submittal. (i.e. – additional square footage of Retail and Office space). 5. Please clarify the proposed and required number of handicap parking spaces associated with commercial/retail on sheet A0.1. 6. Sheet A1.1 indicates a 10 foot high trellis at the leasing center handicap parking. Please increase trellis clearance to allow for van accessible handicap parking. 7. Please clarify location of unobstructed sidewalk easement at Plaza #3; i.e. – at grade landscape planters. 8. Section D-D on sheet C5.0 does not appear to match plans regarding location of property line. Please correct. nd 9. Proposed easement along SE 2 Avenue adjacent to ROW shall be extended to property line to include all improvements up to and including 5 feet of sidewalk. 10. Please depict location of 5’ sidewalk easement on all cross sections on sheet C5.0. 11. On sheet C4.0, the location of proposed fire hydrant is obstructed by text at Plaza #2. Please correct. 307 of 362 DEPARTMENTS INCLUDE REJECT 12. On sheet A1.1, please clarify limits of raised covered terrace in between Retail #2 and Plaza #1. Plans do not clearly depict the clear pedestrian access along Ocean Avenue. 13. Proposed landscape planter would be located within 12 foot utility easement for 12 inch water main east of Retail #3 and Plaza #1. Please correct. 14. Based on the traffic study and peak hour traffic patterns the Developer is responsible for modifying the intersection of Ocean th Avenue and SE 4 Street from a four way stop condition to allow for free flow of traffic along Ocean Avenue to prevent vehicles from stacking at railroad crossing. 15. Please provide narrative with the intentions on how staging and storage will be handled during the construction process. 16. No TCO and/or CO will be issued until 1) at least 50% of the retail space has received a Certificate of Completion as a vanilla shell box or 2) City staff agrees to an alternative to the requirement which insures the retail space will be constructed along with the residential and garage buildings. 17. Please provide typical cross section for retail parking and typical ndth cross sections at property lines located on SE 2 Avenue, NE 4 Street, and Ocean Avenue. 18. Please provide a cross section detailing how drainage adjacent to buildings will be protected and access provided for future maintenance. 19. Please provide drainage easement for conveyance of storm water through drainage system located on private property. Also an agreement in a form acceptable to the City will be required to ensure developer’s future and perpetual maintenance/repair of relocated drainage system located on private property for conveyance of storm water. 20. Please provide written consent from all utility owners from the abandoned rights-of-way if the utility infrastructure is to remain. Please be sure to include language that allows buildings to be located on top of any utility infrastructure. 21. Please provide fire flow calculations demonstrating a minimum fire flow of 1,500 gpm at 20 psi. 22. The fee for water quantity will be calculated by multiplying the total square footage of impervious area for the site by $0.18/sf. Per the Code, this fee must be paid prior to the issuance of the building permit for new construction and/or redevelopment in the Downtown Watershed. 308 of 362 DEPARTMENTS INCLUDE REJECT 23. Capital facilities charge credits will be available for the pipelines that are oversized in accordance with the provisions of Chapter 26 of the City’s Code of Ordinances. The estimates for these additional utility installations are detailed in the attached Exhibit 1, which breaks down the utilities by segment and the responsible parties. Actual cost will be determined by contractor pricing at time of permit issuance. 24. There are a total of 48 existing trees on the site. The Landscape Architect should create a Tree Management Plan sheet depicting existing trees and whether they are to be preserved in place, relocated or removed. 25. The 29 existing Coconut Palm, 4 Royal Palms, 4 Foxtail Palms, 2 Washington Palms, 1 European Fan Palm and 1 Pygmy Date Palm should be relocated to green spaces on the site or coordinated with the City to be relocated offsite to a public property. The 2 existing Ligustrum trees, 2 Pink Tabebuia trees, 1 Black Olive tree, 1 Gumbo Limbo tree, and 1 Tropical Almond tree should be relocated to green spaces on the site or coordinated with the City to be relocated offsite to a public property. 26. Please indicate the total diameter inches of existing trees on the site to be removed and replaced (if applicable) on the site. The replacement trees should be shown by separate symbol on the formal landscape plan sheet. 27. There should be created a “Height and Spread” column showing the sizes of all of the shrubs and shrub areas plantings. Additionally, there should be a landscape notes & details sheet that includes a shrub and shrub areas planting detail indicating where the height and spread of the shrubs and groundcover plants will be measured at time of planting and inspection. 28. As discussed during the previous DART meeting, staff expressed concern over tree roots creating future issues with the sidewalks and pavers. Staff continues to recommend the use of planting cells (i.e. Silva Cells) to allow for the planting of trees in tight spaces, while preserving the longevity of the infrastructure placed above and within close proximity of the trees. This will also assist in the health and longevity of the trees themselves. FIRE Comments: 29. All previous items addressed. POLICE Comments: 30. All previous items addressed. 309 of 362 DEPARTMENTS INCLUDE REJECT BUILDING DIVISION Comments: 31. Please note that changes or revisions to these plans may generate additional comments. Acceptance of these plans during the DART (Development Application Review Team) process does not ensure that additional comments may not be generated by the commission and at permit review. 32. At time of permit review, please submit signed and sealed working drawings of the proposed construction. 33. CBBCPP 3.C.3.4 requires the conservation of potable water. City water may not, therefore, be used for landscape irrigation where other sources are readily available. At time of permit review, submit separate surveys of each lot, 34. parcel, or tract. Pursuant to approval by the City Commission and all other 35. outside agencies, the plans for this project must be submitted to the Building Division for review at the time of permit application submittal. The plans must incorporate all the conditions of approval as listed in the development order and approved by the City Commission. 36. The full address of the project shall be submitted with the construction documents at the time of permit application submittal. The addressing plan shall be approved by the United States Post Office, the City of Boynton Beach Fire Department, the City’s GIS Division, and the Palm Beach County Emergency 911. a. Palm Beach County Planning, Zoning & Building Division, 2300 N. Jog Road, West Palm Beach, Florida 33411- 2741(Sean McDonald – 561-233-5016) b. United States Post Office, Boynton Beach (Michelle Bullard – 561-734-0872) 37. Buildings, structures and parts thereof shall be designed to withstand the minimum wind loads of 170 mph. Wind forces on every building or structure shall be determined by the provisions of ASCE 7 and the provisions of 2010 FBC, Section 1609 (Wind Loads). 38. Buildings three-stories or higher shall be equipped with an automatic sprinkler system per F.S. 553.895. Fire protection plans and hydraulic calculations shall be included with the building plans at the time of permit application and shall comply with Chapter 9 of the FBC. 310 of 362 DEPARTMENTS INCLUDE REJECT 39. A minimum of 2% of the total parking spaces provided for the dwelling units covered under the FFHA shall be accessible and comply with the requirements of the act. Accessible parking spaces shall be equally distributed for each type of parking provided, e.g. surface parking, parking structures, etc. per Title 24 CFR, Part 100.205. 40. Compliance with regulations specified in the FFHA, Design and Construction Requirements, Title 24 CFR, Part 100.205, is required. 41. At the time of permit review, submit details of reinforcement of walls for the future installation of grab bars as required by the FFHA, Title 24 CFR, Part 100.205, Section 3, Requirement #6. All bathrooms within the covered dwelling unit shall comply. 42. This structure meets the definition of a threshold building per F.S. 553.71(7) and shall comply with the requirements of F.S. 553.79 and the CBBA to the 2010 FBC, Sections 110.3.7.1 through 110.3.7.6. The following information must be submitted at the time of permit application: A The structural inspection plan must be submitted to the enforcing agency prior to the issuance of a building permit for the construction of a threshold building. B All shoring and re-shoring procedures, plans and details shall be submitted. C All plans for the building that are required to be signed and sealed by the architect or engineers of record shall contain a statement that, to the best of the architect’s or engineer’s knowledge, the plans and specifications comply with the applicable fire safety standards as determined by the local authority in accordance with this section and F.S. Section 633. 43. All dwelling units in the building shall comply with the requirements of the Federal and Florida Fair Housing Acts. 44. On Sheet A-0.3, Detail #10, Site Plan Enlargement, please show the handicap accessible route from the handicap parking space to the front entrance at the porte cochere. 45. On Sheet A-1.1, the accessible route from the sidewalk on the east side of the main entrance to the residential building appears to contain a set of steps located by the accessible parking space. Please clarify. 46. Sheet A-0.3 and A-1.1, one handicap parking space is required for the retail structured parking, per 2010 FBC, Accessibility, Section 208.2 and Table 208.2. 47. A total of three accessible van parking spaces are required per the 2010 Florida Accessibility Code Section 208.2.4, 502.2. 48. Sheet A-1.1, passenger loading zones shall comply with Section 209 of the 2010 FBC, Accessibility. 49. Storage areas in the garage and the residential building shall be separated from adjacent spaces by fire rated construction, per Table 508.4 of the 2010 FBC. 311 of 362 DEPARTMENTS INCLUDE REJECT 50. Please submit calculations that clearly reflect the percentage of protected and unprotected wall openings permitted per 2010 FBC, Table 705.8. 51. Please show the building setback distances from the leading edge of the buildings to the centerline of each roadway. The required fire rating of all exterior walls shall comply with Table 602 of the 2010 FBC, based on fire separation distance. 52. The building wall on the north side of Plaza #1 shall be of 1 hour fire rated construction due to the setback dimension of 26’-2” and the type of construction, per the 2010 FBC Table 602. 53. Please provide the building setback dimension from the center line of Ocean Avenue to the face of the exterior wall of Retail #2. The exterior wall of Retail #2 may be required to be fire rated construction, in accordance with Table 602 of the 2010 FBC. 54. The exterior wall of the residential building on the southwest corner shall be of 1 hour fire rated construction due to the setback dimension of 29’-4” and the type of construction, per the 2010 FBC Table 602. 55. The exterior wall of the residential building on the south side shall be of 1 hour fire rated construction due to the setback dimension of 25’-8” and the type of construction, per the 2010 FBC Table 602. 56. The corridors in the residential area shall be fire rated per the 2010 FBC, Section 1018.1, Table 1018.1 and Section 709. 57. Sheet HS-6, the cabana and covered pavilion shall comply with the Federal and Florida Fair Housing Act. 58. All exterior amenities (fire pit, summer kitchen, corn hole lawn, pool, etc.) shall comply with the Federal and Florida Fair Housing Act. PARKS AND RECREATION Comments: 59. The Recreation Impact Fee for the project is $202,895, based upon 341 multi-family dwelling units multiplied by $595 per unit, and shall be paid at time of permit application. PLANNING AND ZONING Comments: 60. It is the applicant’s responsibility to ensure that the application requests are publicly advertised in accordance with Ordinance 04-007 and Ordinance 05-004 and an affidavit provided to the City Clerk, including posting signs on the property. 312 of 362 DEPARTMENTS INCLUDE REJECT 61. Please provide Podocarpus hedge landscaping along the FPL nd transformer box on SE 2 Avenue to screen it from the r-o-w, th similar to the planting scheme for the transformer along SE 4 Street. 62. At time of permitting, please provide a design detail of the benches and trash receptacles for staff review and approval. The design should coordinate with building design and materials. 63. A Sign Program will ultimately be required for all building signage prior to issuance of building permits. 64. The subject site is located along Palm Tran Bus Route 1. Staff recommends installation of an upgraded transit shelter, designed to match the architecture of the building, and located in the immediate vicinity of the ingress/egress driveon Federal Highway for the office/amenity portion of the building. Should Palm Tran provide a letter indicating their desire not to have a transit stop at your property, this requirement will be waived. 65. The developer will be required to comply with the City’s residential parking requirements to ensure that the designated resident parking spaces are reserved for, and made available to the residents, so that there is not a need for residents to utilize guest and retail parking spaces. This requirement shall be monitored and enforced by the developer. 66. Please know that on-street parking is supported by this Division, and that parking and any landscaping proposed in the Federal Highway right-of- way is subject to FDOT approval. 67. The proposed landscape planter in the sidewalk along Federal Highway and in front of Retail #3, should not bisect the sidewalk into two (2), four (4) foot wide segments. Please consider moving the trees westerly, close to the end wall caps between each set of stairs leading to the plaza, and placing tree grate around the base of each tree, to maximize the pedestrian pathway. 68. Please eliminate the landscaping proposed along the curb in front of Retail #2 and extending easterly to the plaza, in order to provide a wider pedestrian walk. The landscape plan depicts a second layer of landscape material along a majority of this distance, which makes the plantings along the curb unnecessary. 69. Please eliminate the foundation landscaping proposed along the storefront of Retail #1 and replace it with a large potted plant container on either side of each storefront entry, in order to provide a wider pedestrian walk and to remove any separation between the pedestrian and the storefront windows. 70. At time of permitting, ensure the light fixture detail indicate the use of a flat lens and not a sag lens. 313 of 362 DEPARTMENTS INCLUDE REJECT 71. The Retail #3 building appears disproportionate and slightly out of scale with the balance of the buildings, as well as lacking some of the architectural enhancements. Staff recommends providing further enhancements to the roof of this structure, such as the placement of the aluminum picket railing and columns on the top of the parapet wall on the three (3) outward facing sides. 72. The redesign of the NE corner of the site does not appear to have established a “focal point” for the project, as indicated in the applicant’s responses to previous staff comments submitted with the revised drawings. Consider a more pronounced architectural design beginning at the base and extending along the facades up to the roof, with accentuated (i.e. raised and unique geometric shaped) roof design or features that attract attention and create identity. Staff continues to support the idea of possibly tying together the plaza art feature with the building elements. 73. The color elevations indicate “Accent Color B” as “Copper Wire” and the building elevations themselves appear to portray the color as three (3) different shades. It is unclear whether this is due to shadowing, the color printer, or is intentional and the other colors simply were not listed in the color schedule. As part of the review, staff actually prefers the slightly softer color depicted at the porte cochere. Our color wheel is slightly older, but we would suggest colors in the range of SW6353 “Chivalry Copper”, SW6360 “Folksy Gold”, or SW6361 “Autumnal”, which match up well with the color depicted for the porte cochere. COMMUNITY REDEVELOPMENT AGENCY Comments: 74. Existing overhead utility lines along the rights-of-way should be buried to improve the appearance of the development. 75. On the plan submittal cover sheet and elevation sheet there appears to be two different shades of accent color “B” shown either intentionally or unintentionally. Our preference would be the lighter of these shades as we feel the visual impact would less objectionable to the CRA Board but understand the architect’s intention for accent. PLANNING & DEVELOPMENT BOARD CONDITIONS Comments: To be determined. CITY COMMISSION CONDITIONS Comments: To be determined. S:\Planning\SHARED\WP\PROJECTS\500 Ocean\ NWSP 14-002\COA.doc 314 of 362 315 of 362 DEVELOPMENT ORDER OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA PROJECT NAME: 500 Ocean (NWSP 14-002) APPLICANT: Thomas Hayden, Morgan Boynton Beach LLC APPLICANT’S ADDRESS: 650 S. Northlake, Suite 450, Altamonte Springs, FL 32701 DATE OF HEARING RATIFICATION BEFORE CITY COMMISSION: July 1, 2014 APPROVAL SOUGHT: New site plan approval for a mixed use project consisting of 341 dwelling units within five (5) and six (6)-story buildings, retail space, and associated recreational amenities and parking, zoned MU-H (Mixed Use High). LOCATION OF PROPERTY: 101 S. Federal Highway, SW corner of Federal Highway and Ocean Avenue. DRAWING(S): SEE EXHIBIT “B” ATTACHED HERETO. ________ THIS MATTER was presented to the City Commission of the City of Boynton Beach, Florida on the date of hearing stated above. The City Commission having considered the approval sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: 1. Application for the approval sought was made by the Applicant in a manner consistent with the requirements of the City’s Land Development Regulations. 2. The Applicant ___ HAS ___ HAS NOT established by substantial competent evidence a basis for the approval requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit “C” with notation “Included.” 4. The Applicant’s request is hereby ___ GRANTED subject to the conditions referenced in paragraph 3 above. ___ DENIED 5. This Order shall take effect immediately upon issuance by the City Clerk. 6. All further development on the property shall be made in accordance with the terms and conditions of this order. 7. Other: _______________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ DATED:__________________________ _____________________________________________ 316 of 362 City Clerk S:\Planning\SHARED\WP\PROJECTS\500 Ocean\NWSP 14-002\DO.doc 317 of 362 10. A CITY MANAGER’S REPORT July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Accept The Links at Boynton Beach Golf Course EQUESTED CTION BY ITY OMMISSION Five (5) Year Strategic Plan as presented by Ron Tapper, Golf Course Manager and; PROPOSED RESOLUTION NO. R14-057 - Approve rate increases for cart & green fees, annual permits, Links club cards, and fees for other optional services at The Links at Boynton Beach Golf Course. ER: In order to provide the public with an attractive and well- XPLANATION OF EQUEST maintained golf course and to ensure its long term viability, the Golf Course Manager is requesting across the board rate increases at The Links at Boynton Beach Municipal Golf Course. All staff members at the Links have been diligently working to improve the appearance, services and programming for the past year under the direction of a new Golf Course Manager and Golf Course Maintenance Superintendent. The result has been increased revenues and golfers as well as noticeable improvements in the play and appearance of the course. However, there are many short and long term projects which are identified in The Links’ 5-Year Strategic Plan that will require additional funding. Staff is currently looking for grant opportunities, but a rate increase will allow The Links to continue at the same staffing levels while facilitating many of the planned improvement projects. The increase will bring The Links’ rates up to a comparable level with other golf courses in the area. This proposal was brought before the City of Boynton Beach Golf Advisory Board and was approved unanimously. H? We do not anticipate any negative OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES impact on course activities due to these changes. With the City Manager approval the 318 of 362 Golf Course Manager may offer discounts or various specials to stimulate play and The Links and stay competitive with other area golf courses. FI: These rate changes are necessary in order to properly fund the budget ISCAL MPACT for FY 14/15. A: Not raising fees could adversely affect customer service and golf LTERNATIVES course maintenance operations. 319 of 362 RESOLUTION R14- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING RATE INCREASES FOR CART AND GREEN FEES, ANNUAL PERMITS, LINKS CLUB CARDS AND FEES FOR OTHER OPTIONAL SERVICES AT THE LINKS AT BOYNTON BEACH GOLF COURSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS , in order to provide the public with an attractive and well-maintained golf course and to ensure its long term viability, the Golf Course Manager is requesting across the board rate increases at The Links at Boynton Beach Municipal Golf Course; and WHEREAS , there are many short and long term projects which are identified in The Links’ 5-Year Strategic Plan that will require additional funding; and WHEREAS , the City Commission of the City of Boynton Beach upon the recommendation of staff, deems it to be in the best interest of the citizens and residents of the City of Boynton Beach to approve the rate increases for Cart and Green Fees, Annual Permits, Links Club Cards and fees for other optional services at The Links at Boynton Beach Golf Course. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption. Section 2. The City Commission of the City of Boynton Beach, Florida does hereby approve rate increases for Cart and Green Fees, Annual Permits, Links Club Cards and fees for other optional services at The Links at Boynton Beach Golf Course, a copy of which is attached hereto as Exhibit “A”. Section 3. This Resolution will become effective immediately upon passage. PASSED AND ADOPTED this ___ day of July, 2014. 320 of 362 CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor ______________________________ Vice Mayor – Joe Casello ______________________________ Commissioner – David T. Merker ______________________________ Commissioner – Mack McCray ______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: _____________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 321 of 362 322 of 362 323 of 362 324 of 362 325 of 362 326 of 362 327 of 362 328 of 362 329 of 362 330 of 362 331 of 362 332 of 362 333 of 362 334 of 362 335 of 362 336 of 362 337 of 362 338 of 362 339 of 362 13. A LEGAL July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED ORDINANCE NO. 14-009 - EQUESTED CTION BY ITY OMMISSION SECOND READING - PUBLIC HEARING - Approve amendment to the Land Development Regulations (LDR) modifying minimum floor area ratio (FAR) for projects zoned Mixed Use-High (MU-H). ER: The proposed amendment seeks to reduce the minimum XPLANATION OF EQUEST floor area (FAR) ratio from 2.5 to 2.0 for projects zoned MU-H in the Downtown Transit- Oriented Development (TOD) District. In June of 2013, the City Commission approved amendments to the Land Development Regulations (Ordinance 13-013) to create TOD provisions intended to guide development around the planned downtown train station for the future Tri-Rail Coastal Link commuter service. The amendments included additional standards for the mixed use zoning regulations, including the minimum density and intensity criteria for mixed use zoning districts within the Transit Core and Station Area, defined as a ¼ mile and ½ mile radius around the station, respectively. (The Station Area has been recently designated as the Downtown TOD District in the City Comprehensive Plan.) The current minimum FAR of 2.5 was arrived at by staff through the analysis of existing projects. Subsequently, in the course of work on TOD-related Comprehensive Plan amendments, staff reviewed recommendations provided by the Florida TOD Development Guidebook for three types of transit centers: “Regional,” “Community,” and “Neighborhood.” The subject request would bring the minimum FAR for MU-H district in line with the Guidebook’s recommendations for a Community Center, a model comparable to the intended scale of the Boynton Beach TOD District. 340 of 362 The Planning and Development Board recommended this request for approval on May 27, 2014. H? No impact on programs or services OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: N/A ISCAL MPACT A: None recommended LTERNATIVES 341 of 362 ORDINANCE NO. 14-009 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA AMENDING THE LAND DEVELOPMENT REGULATIONS TO MODIFY THE MINIMUM FLOOR AREA RATIO (FAR) FOR PROJECTS ZONED MIXED USE-HIGH (MU-H); PROVIDING FOR CONFLICTS, SEVERABILITY, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS , staff is proposing amendment to the Land Development Regulations (LDR) to reduce the minimum floor area (FAR) ratio from 2.5 to 2.0 for projects zoned MU-H in the Downtown Transit-Oriented Development (TOD) District; and WHEREAS, the current minimum FAR of 2.5 was arrived at by staff through the analysis of existing projects; and WHEREAS , in the course of work on TOD-related Comprehensive Plan amendments, staff reviewed recommendations provided by the Florida TOD Development Guidebook for three types of transit centers; and WHEREAS, the recommendation would bring the minimum FAR for MU-H district in line with the Guidebook’s recommendations for a Community Center, a model comparable to the intended scale of the Boynton Beach TOD District; and WHEREAS , the City Commission of the City of Boynton Beach deems it to be in the best interest of the citizens and residents of the City to amend the Land Development Regulations to amend provisions in the supplemental regulations for electric vehicles, amending definitions pertaining to electric vehicles and amending provisions for signs commonly associated with electric vehicles. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: . Section 1The foregoing whereas clauses are true and correct and are now ratified and confirmed by the City Commission. 342 of 362 Section 2. The City of Boynton Beach Code of Ordinances, Part III, Land Development Regulations, is hereby amended by adding the words and figures in underlined type and deleting the words struck through in the attached Exhibit “A” Section 3. Should any section or provision of this Ordinance or any portion thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the remainder of this Ordinance. Section 4. Authority is hereby given to codify this Ordinance. Section 5. This Ordinance shall become effective immediately. th FIRST READING this 17 day of June, 2014. SECOND, FINAL READING AND PASSAGE this ______ day of ________, 2014. CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor ______________________________ Vice Mayor – Joe Casello ______________________________ Commissioner – David T. Merker ______________________________ Commissioner – Mack McCray _______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: ___________________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 343 of 362 EXHIBIT A PROPOSED CHANGES C. Building and Site Regulations. 1. Building and Site Regulation (Table 3-21). MIXED USE, URBAN MU-L1 MU-L2 MU-L3 MU-H Lot Area, Minimum (acres): Public park: N/A N/A N/A N/A All other uses: 0.50 0.75 1 1 12 Lot Frontage, Minimum (feet): 100 100 150 200 Structure Height, Minimum 30 30 30 30 (feet): Maximum Building / Structure Height (HT), Density (DU), and Floor-Area-Ratio (FAR): Classification of project frontage on type of roadway: 1453, 14355, 6 HT DU FAR HT DU FAR HT DU FAR HT DU FAR 65 / 75 / 3.0/ 150/ 141415 Arterial: 45 20 1.0 30/40 2.0/2.5 40 80 4.0 333,15 100 100 3.5 125 Collector: 45 20 1.0 65 30/40 2.0/2.5 n/a n/a n/a n/a n/a n/a 4 Local Street: 45 20 1.0 45 30/40 2.0/2.5 n/a n/a n/a n/a n/a n/a 11 Build-to-line (feet): 10101010 Front abutting a public right-of-way 0 0 0 0 10101010 Rear: 0 0 0 0 10101010 Interior side: 0 0 0 0 Building Setbacks, Minimum 11 (feet): 12 Rear abutting: 7 8777 Residential single family: 25/ 0 25 25 25 99 Intracoastal waterway: 25 25 0 0 12 Side abutting: 7 7, 8777 Residential single family: 25/ 0 25 25 25 Usable Open Space, Minimum 13 2% (square feet): 1.May be reduced if frontage extends from right-of-way to right-of-way. 2.Minimum of 50 feet, if frontage is on a collector/local collector roadway. 3.For property abutting the MU-H district located west of US 1, the area of increases in height, density and FAR shall extend a distance of 100 feet from the MU-H zoning district line and shall require conditional use approval. For properties abutting the MU-H district located east of US 1, the area of increase for height shall extend a distance of 100 feet from the MU-H zoning district line and shall require conditional use approval; however, no increases in density and FAR are allowed. Must also have principal frontage on Arterial roadway. 4.Must also have frontage on local collector or higher roadway classification. 5.Max. height on any street frontage is 45 feet. Max. ht. on Intracoastal Waterway is 35 feet. Heights may require reduction where adjacent to a single- family zoning district where necessary to achieve the compatibility requirements of these regulations. 6.Max. height reduced to 125 feet for entire project where property abuts any MU-L or residential zoning district not separated by a right-of-way . 7.Plus one additional foot for each foot of height over 35 feet. 8.Where there is an intervening right-of-way of at least 40 feet. 9.Subject to permitting agency approval. 10.Buildings and structures shall be located no farther than zero (0) feet from the property line, excluding those instances where strict adherence hereto would cause visual obstructions to vehicular traffic, particularly within the triangular-shaped area of property formed by the intersection of two (2) rights-of-way. See Section 5.C.2 below for additional relief provisions from build-to-line requirements. 11.Listed eligible Historic structures are not required to meet these standards. 12.The ultimate setback is also a factor of height and application of the Sky Exposure Plane in accordance with Section 5.C.3 below. 13.Usable open space shall be required for all developments two (2) acres in size or larger. A minimum of two percent (2%) of the site shall be devoted to usable open space, consisting of plazas or public open space, excluding private recreation. See Ch. 4, Art. III, Sect. 8. for additional regulations. 14.Projects within the Transit Core shall have minimum densities as follows: MU-1 – 11; MU-2 – 20; MU-3 – 30 and MU-H – 40 dwellings per acre (except that minimum density for the MU-H District applies to projects located within the entire Station Area). 15.Projects within the Transit Core shall have a minimum F.A.R. as follows: MU-L3 – 1.75 and MU-H – 2.5 2.0 (except that minimum F.A.R. for the MU-H District applies to projects to be located within the entire Station Area). 344 of 362 The above Table 3-21 (attached as Exhibit A) is also replicated in the overview section (E. Mixed Use Urban Building and Site Regulations) as Table 3-4. However, the TOD amendments adopted in June 2013, which included changes to Table3-21 (adjusting parameters of mixed use zoning districts based on classification of project frontage and adding notes 14 and 15 regarding minimum densities and intensities), inadvertently did not add same to Table 3-4, an omission staff proposes to rectify in subject request (see Table 3-4, Exhibit B). 345 of 362 346 of 362 347 of 362 348 of 362 349 of 362 350 of 362 351 of 362 352 of 362 13. B LEGAL July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: PROPOSED ORDINANCE NO. 14-010 - EQUESTED CTION BY ITY OMMISSION SECOND READING - PUBLIC HEARING - Approve the removal of Garage Sale Permit requirements. ER: City Commission granted a one year suspension of XPLANATION OF EQUEST issuance of Garage Sale permits on June 18, 2013. During this one year period, staff has monitored complaints related to Garage Sale activity and noted no change or intensification of activities in violation of the existing restrictions. Therefore, we request to remove the requirement for Garage Sale permits. Restrictions limiting the number of garage sales to two occurrences per residence per year will remain. H? Residents will continue to be able OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES to hold Garage Sales without a permit. FI: N/A ISCAL MPACT A: Do not remove the permit requirement. LTERNATIVES 353 of 362 ORDINANCE NO. 14-010 AN ORDINANCE OF THE CITY OF BOYNTON BEACH, FLORIDA APPROVING THE REMOVAL OF GARAGE SALE PERMIT REQUIREMENT FROM THE CODE OF ORDINANCES, CHAPTER 13, ARTICLE II; PROVIDING FOR CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS , on June 18, 2013 the City Commission granted a one year suspension of issuance of Garage Sale Permits; and WHEREAS, during this one year period, staff has monitored complaints related to Garage Sales activity and noted no change or intensification of activities in violation of the existing restrictions; and WHEREAS , staff is recommending removal of the requirement for a Garage Sale Permit; and WHEREAS, the City Commission has considered the recommendations and has determined and finds that it is in the best interest of the citizens and residents of the City of Boynton Beach, Florida to remove the requirement for a Garage Sale Permit. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The foregoing whereas clauses are true and correct and are now ratified and confirmed by the City Commission. Section 2. The City Commission of the City of Boynton Beach desires to revise Chapter 13, Article II of the City’s Code of Ordinance by removing the requirement for Garage Sale Permits as follows: ARTICLE II. GARAGE SALES Sec. 13-52. Defined. 354 of 362 A “garage sale,” as used in this article, is hereby defined to mean any sale or offering for sale of personal property by a member of a family or other household unit, said personal property having been acquired, possessed and used by the family or household for personal as opposed to business or commercial use, when such sale is to be or is conducted at the present residence of such family or household. “Garage sale” shall include sales commonly referred to as patio sales, driveway sales, yard sales, and other such sales. “Garage sales” shall not include the sale or offering for sale of any goods on consignment. It shall include the sale or offering for sale of goods of more than one family or household. Sec. 13-53. Exception to article provisions. The provisions of this article shall not apply to sales of personal property made pursuant to a valid order of a court of competent jurisdiction. Sec. 13-54. Limitation on number of Garage Sale occurrences. Only two (2) garage sale occurrences shall be allowed to one residence, family or household during any calendar year. Sec. 13-55. Penalties; prima facie evidence. In addition, a person operating a business in violation of this chapter shall be subject to a fine of up to five hundred dollars ($500.00) a day and/or sixty (60) days in jail for each day business is operated in violation of this chapter. In any original prosecution under this section, the fact that such person is open for business shall be prima facie evidence of engaging in such trade, business, profession or occupation, and the burden shall be upon the defendant to rebut the same. Section 3. Each and every other provision of the City of Boynton Beach Code of Ordinances not herein specifically amended, shall remain in full force and effect as originally adopted. 355 of 362 Section 4. All laws and ordinances applying to the City of Boynton Beach in conflict with any provisions of this ordinance are hereby repealed. Section 5. Should any section or provision of this Ordinance or any portion thereof be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the remainder of this Ordinance. Section 6. This Ordinance shall become effective immediately. {remainder intentionally left blank} 356 of 362 th FIRST READING this 17 day of June, 2014. SECOND, FINAL READING AND PASSAGE this _____ day of ________, 2014. CITY OF BOYNTON BEACH, FLORIDA ______________________________ Mayor – Jerry Taylor ______________________________ Vice Mayor – Joe Casello ______________________________ Commissioner – David T. Merker ______________________________ Commissioner – Mack McCray _______________________________ Commissioner – Michael M. Fitzpatrick ATTEST: ___________________________ Janet M. Prainito, MMC City Clerk (Corporate Seal) 357 of 362 358 of 362 359 of 362 14. A FUTURE AGENDA ITEMS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Emergency Medical Transport Ordinance and Fee EQUESTED CTION BY ITY OMMISSION Schedule-TBD ER: Announce the upcoming agenda item to adopt a City XPLANATION OF EQUEST Ordinance regarding Emergency Medical Transports and establishes the fee structure for those services H? This will codify the Boynton Beach OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES Fire Rescue Departments Emergency Medical Transport Services and establish the fee schedule for those services FI: Increase annual revenues generated through Emergency Medical ISCAL MPACT Transport Fees A: Leave fees as they are now. LTERNATIVES 360 of 362 14. B FUTURE AGENDA ITEMS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Extend the Little League Field maintenance EQUESTED CTION BY ITY OMMISSION agreement with the Boynton Beach Athletic Association (BBAA) 7-16-14. ER: The referenced agreement expires on September 30, 2014. XPLANATION OF EQUEST The terms of the existing allow for 3 additional three-year terms. The agreement will be amended slightly and the Commission may be asked to consider a request by the BBAA to increase the annual stipend provided to the BBAA by the City from $20,000 to $30,000. H? OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: ISCAL MPACT A: LTERNATIVES 361 of 362 14. C FUTURE AGENDA ITEMS July 1, 2014 COBB ITY F OYNTON EACH AIRF GENDA TEM EQUEST ORM CMD: July 1, 2014 OMMISSION EETING ATE O PH PENINGSUBLIC EARING O CM’R THERITY ANAGERS EPORT A/P UB NNOUNCEMENTSRESENTATIONSNFINISHED USINESS NO ATURE F A NB DMINISTRATIVEEW USINESS AI GENDA TEM CA L ONSENT GENDAEGAL BP$100,000 FAI IDS AND URCHASES OVER UTURE GENDA TEMS CCL ODE OMPLIANCE AND EGAL S ETTLEMENTS RACC: Receive report from City lobbyist on 2014 EQUESTED CTION BY ITY OMMISSION Legislative Session and discuss goals for 2015 - July 16, 2014 ER: XPLANATION OF EQUEST H? OW WILL THIS AFFECT CITY PROGRAMS OR SERVICES FI: ISCAL MPACT A: LTERNATIVES 362 of 362