R22-160 1 RESOLUTION R22-160
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, ISSUING A
4 MOTION TO PROCEED PURSUANT TO RESOLUTION NO. R15-020 AND
5 APPROVING AND AUTHORIZING THE MAYOR TO SIGN A COMPREHENSIVE
6 AGREEMENT FOR GROUND LEASE AND TRAINING FACILITY
7 ("COMPREHENSIVE AGREEMENT") WITH PRIMETIME SPORTS GROUP, LLC TO
8 DESIGN, CONSTRUCT, OPERATE, LEASE, MAINTAIN, AND FUND AN INDOOR
9 TRAINING FACILITY TO PROVIDE SPORTS TRAINING SPECIALIZING IN
10 BASEBALL AND COMPLETION OF ANCILLARY IMPROVEMENT PROJECTS
11 LISTED IN THE AGREEMENT AT EAST BOYNTON BEACH LITTLE LEAGUE PARK;
12 AND PROVIDING AN EFFECTIVE DATE.
13
14 WHEREAS, on September 17, 2021, Primetime Sports Group, LLC submitted an
15 unsolicited proposal to the City for a public private partnership agreement ("P3")to develop a
16 training facility on a portion of East Boynton Little League complex, as more fully described in
17 the Comprehensive Agreement; and
18
19 WHEREAS, as required by Florida Statutes and Resolution No. R15-020, prior to
20 executing an agreement,the City subsequently placed advertisements in The Palm Beach Post
21 and Florida Administrative Register on December 5, 2021 and December 12, 2021, notifying
22 the public of the opportunity to submit proposals for the same Project; and
23
24 WHEREAS, the City did not receive any other proposals for the development of a
25 Training Facility, and has determined that Primetime Sports Group, LLC is a responsible
26 private entity and that the unsolicited proposal from Primetime Sports Group, LLC for the
27 development, operation, lease, and maintenance of a Training Facility is in the public's best
28 interest, and that ownership of the facility will be conveyed to the City upon expiration of
29 this Agreement; and
30
31 WHEREAS, after discussions and negotiations, the City and Primetime Sports Group,
32 LLC agreed, in principle, to move forward with the Project for the development of a Training
33 Facility at the Property; and
34
35 WHEREAS, the City Commission deems it to be in the best interest of the citizens and
36 residents to issue a motion to proceed, and approve and authorize the Mayor to sign the
37 Comprehensive Agreement with Primetime Sports Group, LLC.
38
39 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
40 BOYNTON BEACH, FLORIDA, THAT:
{00540715 1 30G-9001821 1 S:1CA\RESO1Training Facility(00540715xC4B6A)-Reso.DOCX
1
41 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
42 being true and correct and are hereby made a specific part of this Resolution upon adoption
43 hereof.
44
45 Section 2. The City Commission of the City of Boynton Beach, Florida does hereby
46 issue a motion to proceed pursuant to Resolution No. R15-020,and approve and authorize the
47 Mayor to sign the Comprehensive Agreement with Primetime Sports Group, LLC, a copy of the
48 Agreement is attached hereto as Exhibit "A".
49
50 Section 3. The City Commission of the City of Boynton Beach, Florida does hereby
51 acknowledge receipt of the $20,000.00 application fee from Primetime Sports Group, LLC and
52 does hereby authorize the City Manager or his designee to release the $20,000.00 application
53 fee back to Primetime Sports Group, LLC upon completion of the Project in accordance with
54 the Comprehensive Agreement attached hereto.
55
56 Section 4. This Resolution will become effective immediately upon passage.
57
58 PASSED AND ADOPTED this 1st day of November, 2022.
59
60 CITY OF BOYNTON BEACH, FLORIDA
61 YES NO
62 Mayor—Ty Penserga (//
63 Vice Mayor—Angela Cruz
64 Commissioner—Woodrow L. Hay
65 Commissioner—Thomas Turkin
66 Commissioner—Aimee Kelley
67 VOTE C- U
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72 City I: k =p`1 NTON•%% May.
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• Michael D. Cirullo,Jr.
78 FL_OR10P. City Attorney
100540715.1 306-9001821 1 S:\CA\RESO\Training Facility(00540715xC4B6A)-Reso.DOCX
2
COMPREHENSIVE AGREEMENT FOR
GROUND LEASE
AND
TRAINING FACILITY
)421/4til'Aber,
THIS AGREEMENT is made and entered into this I S*"day of 2022
(the "effective date") by and between the City of Boynton Beach, a Florida municipal
corporation (hereinafter referred to as the "City"), and Primetime Sports Group, LLC
(hereinafter referred to as "Developer").
WHEREAS, on September 17, 2021, Developer submitted an unsolicited proposal to
the City for a public private partnership agreement ("P3") to develop a training facility on a
portion of East Boynton Little League complex, as more fully depicted attached hereto and
incorporated herein as Exhibit "A l" (the "Property"); and
WHEREAS, after discussions and negotiations, the City and Developer agreed, in
principle, to move forward with the Project for the development of a Training Facility at the
Property; and
WHEREAS,as required by Florida Statutes, prior to executing an agreement,the City
subsequently placed advertisements in The Palm Beach Post and Florida Administrative
Register on December 5,2021 and December 12,2021, notifying the public of the opportunity
to submit proposals for the same Project; and
WHEREAS, the City did not receive any other proposals for the development of a
Training Facility, and has determined that Developer is a responsible private entity and
that the unsolicited proposal from Developer for the development, operation, and
maintenance of a Training Facility is in the public's best interest, and that ownership will
be conveyed to the City upon expiration of this Agreement; and
WHEREAS, to facilitate the development, operation, and maintenance of the
Training Facility, the City agrees to lease a portion of, and grant certain easements, rights,
and privileges with respect to, the Property ("Facility Property") as more fully depicted
attached hereto and incorporated herein as Exhibit"A2" to Developer upon and subject to
the conditions and limitations hereinafter expressed (such lease being referred to herein as
the "Ground Lease").
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereafter set forth, the City and Developer agree as follows:
ARTICLE 1. DEFINITIONS.
For the purposes of this Agreement and the various covenants, conditions, terms, and
provisions that follow, the Definitions set forth below are assumed to be true and correct
and are agreed upon by the parties:
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1.1 ANCILLARY PROJECTS: The additional projects required to be developed and
installed by the Developer simultaneously with the Facility in accordance with
Article 6 as follows: construction of a parking area nearest to the Facility with the
exact location to be determined in writing by the City's Designated Representative;
the addition and construction of one small artificial turf field with 2 dugouts, and
perimeter fencing, which shall be in compliance with tee ball and miracle league
dimensions; purchase and installation of new scoreboards for all four fields at the
Property; installation and construction of a digital marquee and park sign to be
visible from Woolbright Road; and relocation of the monument behind field 2 to a
location to be determined by the City's Designated Representative.
1.2 CHANGE ORDER: A written document ordering a change in the contract
price or time or a material change in the work issued subsequent to this
Agreement, as determined by the Project Manager.
1.3 CITY: The City of Boynton Beach, a Florida municipal corporation.
1.4 CITY'S DESIGNATED REPRESENTATIVE: Director of Recreation and Parks
Department.
1.5 CONSULTANT: A registered architect, professional engineer, professional
land surveyor, civil engineer, and/or registered landscape architect who has
contracted with or who is employed by the City or Developer to provide
professional services for the design or construction of the Project and who is
licensed by the State of Florida to provide said services.
1.6 CONTRACT: This Agreement between the City and Developer for this Project,
all as defined herein. As used herein,the term Contract shall mean the same as
Agreement.
1.7 CONTRACTOR: A general contractor hired by Developer for the construction
of the Project and who is licensed by the State of Florida to provide said
services.
1.8 CONTRACT DOCUMENTS: Developer' unsolicited proposal, including plans,
specifications, drawings, and/or other written or graphic materials that are to be
developed by the Consultant as part of the record of this Agreement; this
Agreement, the performance and payment bond, the design documents, the
construction documents, the Purchase Order, and any additional documents
relevant to the Project and are required by this Agreement.
1.9 COMMISSION: The City Commission, which is the governing body of the City
of Boynton Beach, Florida.
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1.10 DEVELOPER: Primetime Sports Group, LLC
1.11 DEVELOPER'S DESIGNATED REPRESENTATIVE: Phil Terrano.
1.12 FACILITY or TRAINING FACILITY: An approximately seven thousand five
hundred square feet (7,500 sq. ft.) training facility to be constructed at the East
Boynton Little League complex.
1.13 FIELD ORDER: A written order issued by the Project Manager that orders minor
changes in the Project but that does not involve a change in the total cost or time for
performance.
1.14 FINAL COMPLETION: The date certified by the City that all construction work
on the Facility and Ancillary Projects is fully and finally complete under this
Agreement.
1.15 FORCE MAJEURE: Acts of God; hurricane; war; acts of terrorism; civil
commotion; fire or other casualty; labor difficulties; shortages of labor, materials
or equipment; government regulations; or other causes beyond such party's
reasonable control.
1.16 INSPECTOR: An authorized representative of the City assigned to make necessary
inspections of materials furnished by Developer and of the work performed by
Developer.
1.17 MATERIAL: Materials incorporated in this Project that are used or consumed
in the performance ofthe work.
1.18 NOTICE OF COMPLETION: The date certified by the Consultant that all
conditions of the permits and regulatory agencies have been met, all construction,
reconstruction, or rehabilitation, including corrective work, has been performed,
and all administrative requirements of the Contract Documents have been
completed, and the City has received from Developer a release of all liens, release
of surety, certificate of indemnification by Developer, release of claims by
Developer, and corrected as-built drawings.
1.19 NOTICE TO PROCEED: A written Notice to Proceed(or a Purchase Order)issued
by the Project Manager.
1.20 PLANS AND/OR DRAWINGS: The official graphic representations of this
Project that,upon written approval of the Project Manager, shall become a part of
the Contract Documents, as well as the preliminary plans and drawings and
renderings of the Project and the preliminary outline specifications and plans for
the design-build services for the Project that shall be prepared by Developer, and
shall be made a part of the Contract Documents upon approval by the Project
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Manager. The plans and specifications shall include the design development
documents and construction documents to be approved by the Project Manager as
provided in this Agreement.
1.21 PROJECT: The Project is the design,construction, operation,and maintenance of
the Facility and the Ancillary Projects, as described herein and in accordance with
the Contract Documents, complete with all appurtenances required to perform the
work, including without limitation,construction services and labor, materials, and
equipment necessary or used or incorporated in the construction, in accordance
with the Contract Documents and as is required or reasonably inferred from them.
The Project includes the work, services, and labor, and the goods,materials,tools,
supervision,and equipment to be provided,and the cleanup, removal, and disposal
of all debris, trash, and other material so as to leave the facilities in a clean and
ready-to-use condition; and the operation and maintenance thereof by Developer.
The defmition of the Project shall also include the Ancillary Projects.
1.22 PROJECT INFRASTRUCTURE: The electrical utility, water, and sewer lines
running to within six (6) feet of the Facility's slab that are to be constructed by
Developer.
1.23 PROJECT MANAGER: Unless otherwise explicitly stated, all contract duties,
contract responsibilities, and contract communications of the City shall be made
through the City's Engineer as Project Manager. The foregoing sentence shall not
apply to the City construction inspections made to assure compliance with
applicable regulatory law and which the City conducts in a governmental
regulatory capacity.
1.24 SUBCONTRACTOR: The person or corporation having a direct contract with the
Contractor, including one who furnishes material worked to a special design
according to the Contract Documents for this Project,but does not include one who
merely furnishes material not so worked.
1.25 SUBSTANTIAL COMPLETION: The date certified by the City that all conditions
of the permits and regulatory agencies have been met, and all construction,
reconstruction,or rehabilitation(except minor corrective work)has been performed
in accordance with the Contract Documents,and the Facility and Ancillary Projects
are able to be used for their intended use.
1.26 SURETY: The surety company or individual that is bound by a contract bond with
and for the Contractor who is primarily liable, and which surety company or
individual is responsible for the Contractor's acceptable performance of the work
under the contract and for the payment of all debts pertaining thereto per Chapter
255.05,Florida Statutes.
ARTICLE 2. GENERAL INTENTION AND UNDERSTANDING.
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2.1 It is the intent of the Contract Documents to describe a functionally complete Project
to be designed,constructed, operated,and maintained by Developer 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, shall be supplied whether or not specifically called for. When
words that 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 laws or regulations of any governmental
authority, whether such reference is specific or by implication, shall mean the
standard specification, manual, code, laws, or regulations in effect at the time of
the date of the execution of this Agreement.
2.2 This is a public-private partnership project. As such, the parties agree and
understand that after the expiration of the Term of the Ground Lease, except as
otherwise provided herein, the Facility and Ancillary Projects that will be
constructed will revert in ownership to the City, free and clear of all claims by
Developer or any other entity.
2.3 The City shall not provide any financial assistance or monetary support for the
development of this Project. The City shall not be liable for any financial costs
related to the design, construction, operation, or maintenance of the Facility or the
Ancillary Projects during the term of this Agreement,except as specifically set out
herein.
2.4 Developer shall design,construct,operate, and maintain the Facility and Ancillary
Projects to the satisfaction and standards of the City.
2.5 The public shall have access and use of the Facility as set forth herein. Developer
shall develop a non-discrimination policy and applicable processes and procedures
to allow the public to access and use the Facility. The policy and procedures require
the review and approval of the City, and such approval will not be unreasonably
withheld.
2.6 The individual and group programming that is offered by Developer shall be
available and open to the public. The training for adults and youth shall be
conducted according to policies,procedures, and costs developed by Developer;
provided such policies and procedures are not in conflict with the City's policies and
procedures. The City shall not be responsible for providing staff, additional
facilities(outside ofthis Agreement),additional permitting,or the collection of fees
for Developer.
2.7 The Facility shall be used for athletic programs in the areas of semi-private group
training, strength camps, personal training, performance consulting, manual and
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physical therapy, nutrition consulting, elite sport training, apparel sales, and
symposiums related to the uses referenced is this section(the "Intended Use"). The
City shall have no right to modify or change the Intended Use, except as provided
by law or ordinance.
The fees associated with this Agreement are specifically related to the Intended
Use. Developer shall retain all revenues collected as part of its business operations.
2.8 After the construction phase of the Project is completed and Developer has begun
operating in full within the Facility, the City's Recreation and Parks Director or
designee shall perform the functions of Contract/Project Manager during the
remaining term of the Agreement. All issues related to the operation and
maintenance of the Facility shall be handled through the Recreation and Parks
Department.
ARTICLE 3. CONTRACT DOCUMENTS.
3.1 The Contract Documents shall be followed in strict accordance as to work,material,
and dimensions, except when the Project Manager may authorize an exception in
writing.
3.2 Dimensions given in figures are to hold preference over scaled measurements
from the drawings; however, all discrepancies shall be decided upon by the
Project Manager. The Contractor shall not proceed when in doubt as to any
dimension or measurement but shall seek clarification from the Project
Manager.
3.3 Developer shall maintain four(4)copies of the Contract Documents,two(2) of
which shall be preserved and always kept accessible to the Project Manager or
his/her authorized representative.
3.4 This Contract incorporates by reference Developer's unsolicited proposal,
including any addenda or revisions. In the event of any conflict between such
proposal and this Contract, this Contract shall prevail.
ARTICLE 4. OWNERSHIP OF DESIGN MATERIALS AND DOCUMENTS.
All design materials and documents shall remain the property of Developer. However,
Developer shall provide to the City copies of all such design materials and documents,
including any updates or changes during the term of this Agreement.
ARTICLE 5. PROJECT DEVELOPMENT SCOPE.
5.1 Developer hereby agrees to engage the Consultants and the Contractor
necessary for the design and construction of a seven thousand five hundred
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square feet(7,500 sq. ft.) Training Facility on City-owned land located at 300
W Woolbright Rd., Boynton Beach, Florida, inclusive of furnishing land
surveying,labor,materials,equipment,and other services necessary to perform
all of the work to develop and operate the Facility including completion of the
Ancillary Projects. The Facility shall be located in the general area identified
on the Proposed Site Plan that is attached hereto and incorporated herein as
Exhibit "B", including any additional drawings and addenda thereto, to be
constructed in accordance with the requirements and provisions of the Contract
Documents.
5.2 The Facility shall be designed to reflect or complement the general architectural
language of the surrounding buildings at the Property, and shall conform to all
applicable building codes and construction requirements for public buildings
in the State of Florida.
5.3 Developer agrees to meet with the City at reasonable times and with reasonable
notice during the term of this Agreement,and specifically during the design and
construction phase of the Facility.
5.4 Prior to the Final Completion of construction services under this Agreement, there
shall be established a record set of plans and specifications, that shall bear the
approval of Developer and the Project Manager.
In addition, prior to the commencement of construction services under this
Agreement, Developer shall submit to the Project Manager a Construction
Schedule for the planning and execution of the Construction Phase of the Project.
The Construction Schedule shall be updated regularly and submitted to the Project
Manager.
ARTICLE 6. COMPLETION DATE- CONSTRUCTION PHASE.
6.1 Upon execution of this Agreement by both parties, the Developer shall have one
hundred eighty (180) calendar days to submit all required documents and receive
any and all permits for the Project. Prior to receipt of any permits for the Project
from the City, the Developer shall be required to receive final site plan approval
from the City Commission of the City of Boynton Beach. Upon approval of the
fmal site plan by the City Commission and once the permits are received by the
Developer, the Project Manager shall instruct Developer to commence the
Construction Phase of the Project by written instructions in the form of a Notice to
Proceed issued by the City. Construction of the Project shall commence within
seven (7) calendar days of the Project initiation date specified in the Notice to
Proceed (the "Construction Commencement Date"). The Notice to Proceed will
not be issued until after execution of this Agreement by both parties and receipt and
approval by the City of all required documents, including a task and delivery-
oriented project timeline.
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6.2 The Facility and the Ancillary Projects shall be substantially constructed no later
than one hundred eighty (180) calendar days after the Construction
Commencement Date, and final completion shall be no later than two hundred ten
(210) calendar days after the Construction Commencement Date, subject to
approved extensions and Force Majeure. Upon failure of Developer to substantially
complete the Facility and the Ancillary Projects within the specified period of time
(plus approved extensions and Force Majeure, if any), Developer shall reimburse
the City for any monetary losses,including fines,that the City experiences for each
calendar day(plus any approved extensions)after the time specified for substantial
completion.
6.3 No extension of time shall be granted for delays resulting from normal weather
conditions prevailing in the area as defined by the average of the last five(5)years
of weather recorded for the City of Boynton Beach.
ARTICLE 7. DEVELOPER'S RESPONSIBILITIES.
7.1 The parties acknowledge and agree that the City is entering into a public private
partnership with Developer, and that Developer is bound to coordinate and
administer the design and construction of the Facility and the Ancillary Projects,
including,without limitation,the obligations to coordinate,administer,and assume
certain rights and obligations with respect to:(a) the Consultants under Consultant
contracts, and (b) the Contractor under the construction contract for the Facility
and the Ancillary Projects that shall be constructed in accordance with the Contract
Documents and comply with all applicable laws and technical codes.
7.2 The City acknowledges that Developer is providing the services described herein
as a development consultant and not as a licensed general contractor, architect, or
other licensed professional. However, Developer will engage and contractually
require licensed professionals to complete the construction work in accordance
with the requirements of this Agreement, and will enforce such contracts and
administer any claims process associated with such contracts as set forth herein.
Developer shall require each Contractor and each design Consultant to provide
customary warranties, enforce said warranties, and name the City as a third-party
beneficiary of all such warranties.The foregoing notwithstanding, Developer shall
be obligated to enforce the provisions of each Consultant Contract and each
Construction Contract as set forth herein.
7.3 All fees payable to the City pursuant to the operation of the Facility shall be paid
by Developer. Local Business Tax Receipts (formerly Occupational Licenses) are
required pursuant to Chapter 205,Florida Statutes.
7.4 Nothing in this Agreement shall create any contractual relationship between any
consultant or subcontractor and the City or any obligation on the part of the City to
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pay or to see to the payment of any monies due to any consultant or subcontractor of
Developer.
7.5 Developer agrees to bind specifically the Contractor and Consultants to the
applicable terms and conditions of this Agreement for the benefit of the City and
shall ensure the Contractor or Consultants prohibit any liens on the City's Property.
7.6 Unless otherwise provided herein, Developer shall provide and pay for all land
surveying services, materials, labor, water, tools, equipment, light, power,
transportation, and other facilities and services necessary for the proper execution
and completion of the Project, whether temporary or permanent, and whether or
not incorporated or to be incorporated in the Project.
7.7 Developer shall cause all its agents, employees, Contractor, subcontractors, and
Consultants to observe and comply with all such existing and future laws,
ordinances,regulations, orders, and decrees, at no additional cost to the City.
7.8 Developer shall pay all applicable sales, consumer, use, and other taxes required
by law. Developer is responsible for reviewing the pertinent state,federal,and local
statutes, laws, rules, regulations, guidelines, and directions involving such taxes
and complying with all requirements.
ARTICLE 8. FINANCIAL SUPPORT.
8.1 The City shall have no obligation whatsoever to provide any type of monetary or
financial support for the design, construction, operation, and maintenance of the
Facility or the Ancillary Projects. The City shall not be obligated to provide any
kind of bonding support, credit guarantees, or any type of financial commitments
for the development of this Project.
8.2 Prior to the execution of this Agreement, Developer shall provide acceptable
written evidence to the City that it has the necessary financial means to design,
construct, operate, and maintain the Facility and the Ancillary Projects. Such
evidence shall meet the City's standard of financial adequacy, and the City shall
conduct due diligence to verify the nature and source of such funding. The City shall
have the right to reject such evidence as inadequate or unacceptable as the City
deems in its best interest. During the term of this Agreement, the City shall have
the right to demand and receive information from Developer on any additional form
of financial support or commitments and the sources of such support/commitments.
ARTICLE 9. USE OF FACILITY.
9.1 The intent of the parties to this Agreement is that the Facility will be used for the
Intended Use, and primarily to provide high-performance training to elite
professional and amateur athletes.The parties envision a public private partnership
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that helps to position the City as a premier sports destination, while providing
tangible economic and community benefits. The Facility shall be operated subject
to the City's applicable codes and its rules regarding recreation and park activities.
9.2 The programmatic operation of the Facility shall be governed by programs and
schedules outlined in the Programming Schedule,attached hereto and incorporated
herein as Exhibit "C". The City and Developer may mutually make changes to the
Programming Schedule during the term of this Agreement,without invalidating the
Agreement and without the need for a formal amendment. Except as provided on
the Programming Schedule, Developer shall have full discretion as to the hours of
operation and programs offered at the Facility.
9.3 The parties agree that the intent is for the public to have access to the services
offered at the Facility, subject to the Programming Schedule. Developer shall have
the right to establish fees reasonably within industry norms for services and
programs provided to the public.
ARTICLE 10. THE CITY'S RESPONSIBILITIES.
10.1 The City shall assist Developer by placing at its disposal any available information
pertinent to the Project,including previous reports,laboratory tests,and inspections
of samples, materials, and equipment; property, boundary, easement, rights-of-
way, topographic and utility surveys; property descriptions; and known zoning,
deed, and other land-use restrictions.
10.2 The City shall arrange for access to and make all provisions for Developer to enter
upon the public property as required for Developer to perform its services.
10.3 Without invalidating this Agreement and without notice to any surety, the City
reserves and shall have the right to make such changes from time to time as may
be reasonably considered necessary to complete fully and acceptably the proposed
construction in accordance with applicable law. Any other changes (that are not
required for compliance with applicable law)proposed by the City shall be paid for
by the City at its sole cost and expense. Any extra or additional work during the
construction of the Facility or Ancillary Projects may be accomplished by means
of appropriate field orders and supplemental instructions or change orders subject
to the provisions herein.
ARTICLE 11. RESOLUTION OF DISPUTES.
In order to prevent all disputes and litigation,it is agreed by the parties hereto that during the
construction phase of the Project,the City Engineer shall decide all questions,difficulties,and
disputes of whatever nature that may arise relative to the technical interpretation of the
Contract Documents and fulfillment of this Agreement as to the character, quality,
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amount, and value of any work done and materials furnished under or by reason of this
Agreement,and the City Engineer's estimates and decisions upon all claims, questions,and
disputes shall be final and conclusive upon the parties hereto. This Article does not
preclude either or both parties from seeking any and all remedies available at law or in
equity. The parties hereto may also, if mutually agreed, seek mediation to resolve any
dispute related to this Contract.
ARTICLE 12. ASSIGNMENT.
Except as provided herein with respect to subleasing, neither party to this Agreement shall
assign this Agreement without the prior written consent of the other party, nor shall
Developer assign any monies due or to become due to the City hereunder without the prior
written consent of the City.
ARTICLE 13. CONSTRUCTION PROGRESS PROJECT MEETINGS.
Developer shall schedule periodic work progress meetings and specially called meetings
as needed with the City's Designated Representative relating to the construction services
under this Agreement. Developer shall record the minutes of such meetings, include
significant proceedings and decision(s) within the minutes, and reproduce and distribute
copies of minutes within five (5) business days after each meeting, plus incorporate
comments received or exceptions taken by those present who have reviewed and
commented on the minutes.
ARTICLE 14. SECURITY.
Developer or its Contractor shall provide a project security program to protect work,stored
products, and construction equipment from theft and vandalism, and to protect premises
from entry by unauthorized persons. In the event any such materials, equipment, and
supplies are lost, stolen, damaged, or destroyed prior to final completion, Developer shall
replace same without cost to the City.
ARTICLE 15. INSPECTION OF CONSTRUCTION.
15.1 During the construction phase, the City Engineer or designee shall, at all times,
have access to the Facility and any Ancillary Projects, and Developer shall
provide proper facilities for such access.
15.1.1 Should the Contract Documents, instructions, any laws, ordinances, or any
public authority require any work for the Facility or the Ancillary Projects to be
specially tested or approved,Developer shall give to the City timely notice of
readiness of the work for inspection. If the testing or approval is to be made by
an authority other than the City, timely notice shall be given of the date fixed
for such testing. Inspections shall be made promptly, and where practicable, at
the source of supply. If any work on the Facility or the Ancillary Projects are
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covered up without approval or consent of the Project Manager, it shall, if
required by the City, be uncovered for examination and properly restored at
Developer's expense.
15.1.2 Re-examination and re-testing of any work on the construction of the Facility
or the Ancillary Projects may be ordered by the Project Manager, and if so
ordered,such work shall be uncovered by Developer. If work is found defective,
Developer shall bear all direct, indirect, and consequential expenses of such
removal or correction. If such work is found to be in accordance with the
Contract Documents, the City shall pay the cost of re-examination, re-testing,
and replacement.
15.2 The payment of any compensation,regardless of its character or form,or the giving
of any gratuity or the granting of any valuable favor by Developer to any inspector
other than its consultant, is forbidden, and any such act on the part of Developer
shall constitute a breach of this Agreement.
ARTICLE 16. SUPERINTENDENCE AND SUPERVISION.
16.1 The orders of the City shall be given through the Project Manager, whose
instructions are to be strictly and promptly followed in every case. Developer shall
maintain a competent resident supervisor, who shall serve as the Designated
Representative,and any necessary assistants on the construction site throughout the
duration of the construction phase of the Project. The Designated Representative
shall serve as the Superintendent on site and shall be responsible for continuous
field supervision, coordination, and completion of the work. The Designated
Representative shall not be changed except with the consent of the Project Manager,
unless the Designated Representative proves to be unsatisfactory to Developer and
ceases to be in its employ. The Project Representative shall represent Developer,
and all direction given to the Designated Representative shall be as binding as if
given to Developer. Directions shall be confirmed in writing to Developer. Other
directions will be so confirmed on written request in each case.
16.2 Developer's Designated Representative shall prepare, on a daily basis and keep on
the construction site, a bound log setting forth, at a minimum for each day: the
weather conditions and how any weather conditions affected progress of the work;
work performed; equipment utilized for the work;any idle equipment and reasons
for idleness; visitors to the site; labor utilized for the work; and any materials
delivered to the construction site. The daily log shall be available for inspection by
the Project Manager at all times during the construction phase of the Project.
16.3 If Developer, in the course of constructing the Facility or the Ancillary Projects,
fmds any discrepancy between the Contract Documents and the physical conditions
of the locality, or any errors or omissions in the Contract Documents, including
drawings (plans) and specifications, it shall be Developer's duty to immediately
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inform the Project Manager in writing, and the Project Manager shall promptly
verify the same. Any work done prior to or after such discovery shall be done at
Developer's sole risk.
ARTICLE 17. THE CITY'S RIGHT TO TERMINATE AGREEMENT
DURING DEVELOPMENT AND CONSTRUCTION.
17.1 The following shall give the City the right to terminate this Agreement by written
notice to the Developer prior to completion of construction of the Facility and the
Ancillary Projects("Notice of Termination"):
17.1.1 Construction of the Facility and the Ancillary Projects does not commence
within the time specified,or is not performed to ensure the prompt completion
of the Facility and the Ancillary Projects or the construction work is performed
unsuitably,or the construction work is defective and/or unsuitable.
17.1.2 If Developer becomes insolvent, is declared bankrupt, commits any act of
bankruptcy or insolvency, makes an assignment for the benefit of creditors, or
as a result of any other cause whatsoever resulting in Developer not carrying
on the construction of the Facility or the Ancillary Projects in an acceptable
manner, the Project Manager may give notice in writing to Developer and its
Surety of such delay, neglect, or default, specifying the same. If Developer,
within a period of ten(10)calendar days after such notice, does not proceed in
accordance therewith, then the City may, upon written certificate from the
Project Manager of the fact of such delay, neglect or default and Developer's
failure to comply with such notice, terminate the Agreement, exclude
Developer from the site and take the construction of the Facility and the
Ancillary Projects out of the hands of Developer,and appropriate or use any or
all materials and equipment on the site as may be suitable and acceptable.
17.2 In the event of an occurrence under Section 17.1 above,the City may enter into
a separate agreement for the completion of the Facility and Ancillary Projects
according to the terms and provisions of the Contract Documents or use such
other methods as in the City's opinion is required for the completion of the
construction in an acceptable manner.
17.3 In the event of an occurrence under Section 17.1 above, all damages, costs, and
charges incurred by the City shall be deducted from any monies due or that may
become due to Developer. Actions may be instituted to recover on the posted
bonds. In case of damages and expenses incurred by the City, Developer shall
be liable and shall pay to the City the amount of such costs.
17.4 Upon receipt of the Notice of Termination pursuant to Article 17.1,Developer
shall promptly discontinue all affected work, unless the Notice of Termination
directs otherwise, and deliver or otherwise make available to the Project
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Manager all data, drawings, specifications, reports, estimates, summaries, and
such other information as may have been required by the Contract Documents,
whether completed or in process.
ARTICLE 18. DEVELOPER'S RIGHT TO STOP WORK OR TERMINATE
AGREEMENT.
18.1 If the construction of the Facility or Ancillary Projects should be stopped under an
order of any court or other public authority for a period of more than ninety(90)
calendar days, through no act or fault of Developer or of anyone employed by
Developer,then Developer may,upon seven(7)calendar days'written notice to the
City and the Project Manager, stop work on the construction of the Facility or
Ancillary Projects,without any penalties hereunder, until such time Developer is
legally allowed to commence performance under this Agreement.
18.2 If the City fails to perform its obligations under this Agreement, Developer must
provide twenty (20) calendar days' written notice of such failure, after which the
City shall have thirty(30)days to cure. If the City fails to cure the subject default,
Developer may terminate the Agreement.
18.3 In the event the City Commission denies the final site plan for the Project in
accordance with Article 6, the Developer shall have the right to immediately
terminate this Agreement.
ARTICLE 19. PLANS AND WORKING DRAWINGS.
The City and Developer will review and revise construction plans prior to submittal for
permitting. All approved plans,general and detail,are to be deemed a part of this Agreement,
and the plans and specifications and Agreement are to be considered together and are intended
to be mutually complementary so that any work shown on the plans, though not specified in
the specifications,and any work specified in the specifications,though not shown on the plans,
is to be executed by Developer as part of this Agreement. All things that in the opinion of the
Project Manager may reasonably be inferred from this Agreement and plans, as developed by
Developer and approved by the Project Manager, are to be executed by Developer under the
terms of this Agreement; and the Project Manager shall determine whether the detail plans
conform to the Contract Documents, except as may be otherwise determined by the Project
Manager. All plans,specifications,and related technical documentation should be in the form
of an electronic CADD drawing file and paper copy.
ARTICLE 20. SUBCONTRACTS.
Developer shall cause the Contractor, prior to the start of construction, to notify the Project
Manager in writing of the names of the subcontractors who will be used to construct the Facility
and Ancillary Projects, and identify the portion of the work that each will perform. The
Contractor shall have a continuing obligation to notify the Project Manager of any change in
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the subcontractors.
ARTICLE 21. SEPARATE CONTRACTS.
21.1 The City reserves the right to let other contracts that may impact work in the general
area of the construction site. Developer shall afford other contractors reasonable
opportunity for the introduction and storage of their materials and the execution of
their work and shall properly connect and coordinate this work with theirs.
21.2 Developer shall use commercially reasonably efforts to require the Contractor to
perform the obligations described on Exhibit"D" attached hereto and incorporated
herein.
21.3 To ensure the proper execution of its subsequent work, Developer shall inspect the
work already in place and shall at once report to the Project Manager any
discrepancy between the executed work and the requirements of the Contract
Documents.
21.4 No claim for damages or any claim other than for an extension of time shall be made
or asserted against the City by reason of any delays due to work of other contractors,
unless such delays result in the de-mobilization of Developer's work crew and there
is an attendant cost to re-mobilize.
ARTICLE 22. USE OF COMPLETED PORTIONS.
22.1 The City may inform Developer if any portion of the Facility or the Ancillary
Projects may be utilized by Developer prior to normal construction completion.
Such possession and use shall not be deemed an acceptance of any work not
completed in accordance with the Contract Documents. If such possession and use
delay the construction of the Facility or the Ancillary Projects, Developer shall be
liable for any costs incurred by the City.
22.2 In the event Developer takes possession of a completed portion,the following shall
occur:
22.2.1 Developer shall give notice to the City at least fifteen (15) calendar days in
advance of intent to occupy a designated area.
22.2.2 Developer shall bring the designated area to the point of Substantial
Completion. When the City considers that the designated area of the Facility
or the Ancillary Projects are substantially complete, the City shall notify
Developer, in writing, and shall prepare a list of items to be completed or
corrected. The failure to include any items on such list does not alter the
responsibility of Developer to complete work on the designated area in
accordance with the Contract Documents. The Project Manager shall conduct
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an inspection to determine that the designated portion of the Facility or the
Ancillary Projects are substantially complete. The Project Manager and
Developer shall agree on the time within which Developer shall complete the
items listed.
22.2.3 Upon issuance and acceptance of the Certificate of Substantial Completion,
Developer shall assume full responsibility for the operation, maintenance,
utilities, and all related expenses. Developer shall remain responsible for all
items listed to be completed or corrected as submitted to the Project Manager
as required in the substantial completion process.
22.2.4 If Developer finds it necessary to use a portion or portions of the Facility or
Ancillary Projects prior to Substantial Completion thereof, such use shall not
commence prior to a time mutually agreed upon by the Project Manager and
Developer. Any insurance in effect shall not be canceled or lapsed on account
of such partial use.
ARTICLE 23. LANDS FOR WORK.
The City shall provide, as indicated in the Contract Documents, the lands upon which the
Facility and the Ancillary Projects are to be constructed, rights-of-way, and easements for
access thereto, and such other lands as are designated for the use of Developer. No claim for
damages or other claim other than for an extension of time shall be made or asserted against the
City by reason of any delay arising as a result of any failure of the City to provide such lands
on the date needed by Developer.
ARTICLE 24. FIELD ORDERS AND SUPPLEMENTAL INSTRUCTIONS.
24.1 The Project Manager shall have the right to approve and issue field orders
setting forth written interpretations of the intent of the Contract Documents and
ordering minor changes in contract execution,provided the field order involves
no change in the total cost of the construction of the Facility or the Ancillary
Projects or the time of performance.
24.2 The Project Manager shall have the right to approve and issue supplemental
instructions setting forth written orders, instructions, or interpretations
concerning this Agreement or its performance, provided they make no major
changes in contract execution and involve no change in the total cost of the
construction of the Facility or the Ancillary Projects or the time of performance.
ARTICLE 25. CHANGE ORDERS(CHANGES IN QUANTITIES OF WORK OR
CONTRACT PRICE).
25.1 Changes in the quantity or character of work within the scope of the
construction of the Facility or the Ancillary Projects that are not properly the
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subject of field orders or supplemental instructions, to include all changes
resulting in changes in the total cost of the work or the time of performance,
shall be authorized only by Change Orders approved and issued by the City.
25.2 Developer shall not authorize the start of work on any alteration requiring an
increase in price or extension of time for completion until a Change Order
setting forth the adjustments is approved by the City.
25.3 All changes to construction contracts shall be approved in advance in
accordance with the value ofthe Change Order or the calculated value of the time
extension. All contract Change Orders shall be approved by the City Engineer
and shall be accomplished at no cost to the City. All Change Orders where the
time for completion is extended by more than sixty (60) calendar days, in any
one change or cumulatively for the same project, beyond the most recent
contract completion time shall be approved by the City Manager or designee.
25.4 In the event satisfactory adjustment cannot be reached for any item requiring a
Change Order, the City reserves the right, at its own option, to either terminate
this Agreement as it applies to the items in question and make such
arrangements as may be deemed necessary to complete the construction of the
Facility or the Ancillary Projects, or submit the matter in dispute to the Project
Manager as set forth herein. During the pendency of the dispute resolution,
Developer shall proceed with the work set forth within the Change Order if the
estimated dollar amount of the Change Order is less than Ten Thousand Dollars
($10,000.00).
25.5 On approval of any Change Order increasing the price,Developer shall ensure that
the applicable Performance and Payment Bonds and Guarantees are each increased
so that it reflects the total amount of the construction of the Facility or the Ancillary
Projects as increased.
25.6 Change Orders may not be issued unilaterally by either party to this Agreement.
ARTICLE 26. VALUE OF CHANGE ORDER WORK.
26.1 The value of any work covered by a Change Order shall be determined in one of
the following ways:
26.1.1 Where the work involved is covered by unit prices contained in the Contract
Documents, by application of unit prices to the quantities of items involved,
subject to the provisions herein.
26.1.2 By mutual acceptance of a lump sum that includes any subcontractor fees.
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26.1.3 On the basis of the "cost of the work" determined as provided, plus the
contractor's fee for overhead and profit that is determined as provided in the
applicable provisions of this Agreement.
26.2 The term"cost of the work"means the sum of all costs necessarily incurred and paid
by Developer in the proper construction of the Facility or the Ancillary Projects.
Except as otherwise may be agreed to in writing by the City, such costs shall be in
amounts no higher than those prevailing in the locality of Boynton Beach, shall
include only the following items,and shall not include any other costs whatsoever:
26.2.1 Payroll costs for employees in the direct employ of the Contractor in the
construction of the Facility or the Ancillary Projects under schedules of job
classifications agreed upon by the City and Developer. Payroll costs for
employees not employed full-time in the construction work shall be
apportioned on the basis of their time spent on the job. Payroll costs shall
include,but not be limited to,salaries and wages,plus the cost of fringe benefits
that shall include social security contributions, unemployment, excise and
payroll taxes, workers' compensation, health and retirement benefits,bonuses,
sick leave,vacation and holiday pay applicable thereto. Such employees shall
include superintendents and foremen at the construction site. The expenses of
performing the work after regular working hours,on Sunday,or legal holidays
shall be included in the above to the extent authorized by the City. Insurance
and benefits shall be based on single time.
26.2.2 Cost of all materials and equipment furnished and incorporated in the
construction of the Facility and the Ancillary Projects, including costs of
transportation and storage thereof,and manufacturers'field services required in
connection therewith. All cash discounts shall accrue to Developer. All trade
discounts,rebates and refunds,and all returns from the sale of surplus materials
and equipment shall accrue to Developer.
26.2.3 Payments made by Developer to subcontractors for work performed by
subcontractors. The term subcontractors shall include architects and engineers
employed for services specifically related to the construction of the Facility and
the Ancillary Projects. If required by the Project Manager, Developer shall
obtain competitive bids from subcontractors acceptable to Developer,and shall
deliver such bids to the City who will then determine which bids will be
accepted. If the subcontract provides that the subcontractor is to be paid on the
basis of the cost of the work plus a fee, the subcontractor's cost of the work
shall be determined in the same manner as the main contractor's cost of the
work. Whenever a subcontractor is involved, a complete and separate
breakdown shall be submitted by the subcontractor for its portion of the work.
26.2.4 Costs of special consultants, including, but not limited to, testing laboratories,
surveyors, lawyers, and accountants employed for services specifically related
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to the construction of the Facility and the Ancillary Projects.
26.2.5 Supplemental costs,including the following:
26.2.5.1 The proportion of necessary transportation, travel, and subsistence
expenses of Developer's employees incurred in the discharge of duties
connected with the construction of the Facility and the Ancillary
Projects.
26.2.5.2 Cost, including transportation and maintenance, of all materials,
supplies, equipment, machinery, appliances, office and temporary
facilities at the site, and hand tools not owned by the workers that are
consumed in the performance of the construction of the Facility and the
Ancillary Projects,and cost, less market value,of such items used but
not consumed that remain the property of Developer.
26.2.5.3 Rentals of all construction equipment and machinery and the parts
thereof, and the costs of transportation, loading, unloading,
installation, dismantling, and removal thereof, all in accordance
with the terms of said agreements. The rental of any such
equipment,machinery,or parts shall cease when the use thereof is no
longer necessary for the construction of the Facility and the Ancillary
Projects. Late charges, penalties, restocking charges, and similar
assessments in said agreements shall not be recognized by the City
as a supplemental cost.
26.2.5.4 Sales, use, or similar taxes related to the construction of the Facility
and the Ancillary Projects,and for which Developer is liable,imposed
by any governmental authority.
26.2.5.5 Deposits lost for causes other than Developer's negligence, royalty
payments,and fees for permits and licenses.
26.2.5.6 The cost of utilities, fuel, and sanitary facilities at the site.
26.2.5.7 Minor expenses such as telegrams, long-distance telephone calls,
telephone service at the site, expressage, and similar petty cash items
in connection with the construction of the Facility and the Ancillary
Projects.
26.2.5.8 Cost of premiums for additional bonds and insurance required because
of changes in the scope of work.
26.3 The term "cost of the work" shall not include any of the following:
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26.3.1 Payroll costs and other compensation of Developer's officers, executives,
principals (of partnership and sole proprietorships), general managers,
estimators, lawyers, auditors, accountants, purchasing and contracting agents,
expediters, timekeepers, clerks, and other personnel employed by Developer,
whether at the construction site or in Developer's principal or branch office for
general administration of the Project and not specifically included in the agreed-
upon schedule of job classifications referred to herein, all of which are to be
considered administrative costs covered by Developer.
26.3.2 Expenses of Developer's principal and branch offices other than Developer's
office at the construction site.
26.3.3 Any part of Developer's capital expenses, including interest on Developer's
capital employed for the construction of the Facility and the Ancillary Projects,
and charged against Developer for delinquent payments.
26.3.4 Cost of premiums for all bonds and for all insurance whether or not Developer
is required by the Contract Documents to purchase and maintain the same,
except for additional bonds and insurance required because of changes in the
scope of work.
26.3.5 Costs due to the negligence of Developer or any subcontractors, any
consultants, or anyone directly or indirectly employed by any of them or for
whose acts any of them may be liable, including, but not limited to, the
correction of defective or nonconforming work, disposal of materials or
equipment wrongly supplied,and making good on any damage to property.
26.3.6 Other overhead or general expense costs of any kind and the cost of any item
not specifically and expressly included herein.
26.4 The Contractor's fee allowed for overhead and profit shall be determined as follows:
26.4.1 A mutually acceptable fixed fee that shall not exceed percentages, as set forth
below, or if none can be agreed upon.
26.4.2 A fee based on the following percentages of the various portions of the cost of
the work:
26.4.2.1 For costs incurred under Articles 26.2.1, and 26.2.2, contractor's fees
shall not exceed ten percent(10%);
26.4.2.2 For costs incurred under Articles 26.2.3 or 26.2.4, contractor's fee
shall not exceed ten percent(10%);and if a subcontract is on the basis
of the cost of the work plus a fee, the maximum allowable to the
subcontractor as a fee for overhead and profit shall not exceed ten
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percent(10%);and
26.4.2.3 No fee shall be payable on the basis of cost itemized under Articles
26.2.5 and 26.3.
26.5 The amount of credit to be allowed for any such change that results in a net decrease
in cost shall be the amount of the actual net decrease. When both additions and
credits are involved in any one change, the combined overhead and profit shall be
figured on the basis of the net increase, if any.
26.6 Whenever the cost of any work is to be determined pursuant to Articles 26.1 through
26.2.4, Developer shall submit, in a form acceptable to the Project Manager, an
itemized cost breakdown with the supporting data.
26.7 Where the quantity of work with respect to any item that is covered by a unit price
is increased or decreased by more than twenty percent(20%) from the quantity of
such work indicated in the Contract Documents,an appropriate Change Order may
be issued to adjust the unit price, if warranted.
26.8 Whenever a change in the work is to be based on mutual acceptance of a lump sum,
whether the amount is an addition, credit, or no-change-in-cost, Developer shall
promptly submit to the Project Manager an estimate substantiated by a complete
itemized breakdown.
26.8.1 Breakdown shall list quantities and unit prices for materials, labor, equipment,
and other items of cost.
26.8.2 Whenever a change involves one or more subcontractors or consultants and the
change is an increase in the contract price,overhead and profit percentages for
the subcontractor or consultant shall be itemized separately.
26.9 Each Change Order shall state within the body of the Change Order whether it is
based upon unit price,negotiated lump sum, or "cost of the work."
ARTICLE 27. CHANGE OF CONTRACT TIME.
27.1 Any claim for an extension of the contract time shall be based on written notice
delivered by the party making the claim to the Project Manager promptly (but in
no event later than seven(7)calendar days after the occurrence of the event giving
rise to the claim and stating the general nature of the claim). Notice of the extent
of the claim with supporting data shall be delivered within sixty(60)calendar days
after such occurrence (unless the Project Manager allows, in writing, an additional
period of time to ascertain more accurate data in support of the claim) and shall be
accompanied by the claimant's written statement that the adjustment claimed is the
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entire adjustment to which the claimant has reason to believe it is entitled as a result
of the occurrence of said event. All claims for adjustment in the contract time shall
be determined by the Project Manager in accordance with the terms herein. No
claim for an adjustment in the contract time shall be valid if not submitted in strict
accordance with the requirements of this Article.
27.2 The contract time will be extended in an amount equal to time lost due to delays
beyond the control of and through no fault or negligence of Developer if a claim is
made therefor as provided herein. Such delays shall include, but not be limited to,
acts of neglect by the City, or by any employee of the City, or any separate
contractor employed by the City; Force Majeure.
ARTICLE 28. NO DAMAGES FOR DELAY.
Developer shall not be entitled to any payment or compensation of any kind from the City for
direct,indirect,consequential,impact,or other costs,expenses,or damages,including,but not
limited to, costs of acceleration or inefficiency arising because of delay, disruption,
interference, or hindrance from any cause whatsoever, whether such delay, disruption,
interference, or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or
avoidable or unavoidable. Developer shall be entitled to terminate this Agreement as the sole
and exclusive remedy for such resulting in delays in accordance with and to the extent
specifically provided above.
ARTICLE 29. SUBSTANTIAL COMPLETION.
29.1 When Developer considers that the construction of the Facility and the Ancillary
Projects, or a designated portion thereof which is acceptable to the City, is
substantially complete, Developer shall notify the Project Manager in writing and
shall instruct the Contractor to prepare for submission to the Project Manager a
thorough list of items to be completed or corrected, together with a schedule for
completion of all items.
29.2 The Project Manager shall conduct an inspection to determine that the Facility and
the Ancillary Projects or designated portion thereof is substantially complete. The
Project Manager will then instruct Developer to prepare and deliver to the Project
Manager a Certificate of Substantial Completion that shall establish the date of
Substantial Completion. After review of the Certificate by the Project Manager,
the City will either accept or reject the Certificate. The Project Manager,with the
concurrence of Developer,shall fix the time within which Developer shall complete
the items listed therein. Warranties required by the Contract Documents shall
commence on the date of Substantial Completion. The Certificate of Substantial
Completion shall be submitted to the City through the Project Manager and
Developer for its written acceptance of the responsibilities assigned to them in such
Certificate.
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ARTICLE 30. FIELD ENGINEERING.
30.1 Developer shall provide and pay for field engineering services required for the
construction of the Facility and the Ancillary Projects. This work shall include the
survey work required in execution of the construction of the Facility and
the Ancillary Projects.
ARTICLE 31. FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS.
31.1 Developer shall maintain in a safe place at the site one (1) record copy of all
drawings (plans), specifications, addenda, written amendments, Change
Orders, and written interpretations and clarifications in good order, annotated
to show all changes made during construction, and in a format compatible with
GADD equipment. These record documents, together with all approved
samples and a counterpart of all approved Shop Drawings, shall be available to
the Project Manager for reference. Upon completion of the construction, these
record documents,samples,and Shop Drawings shall be delivered to the Project
Manager.
31.2 At the completion of the construction of the Facility and the Ancillary Projects,
Developer shall turn over to the City a set of reproducible drawings that
accurately reflect the "as-built" conditions of the new Facility and the Ancillary
Projects and in a format compatible with the City's GADD equipment. All
changes made to the construction documents, either as clarifications or as
changes, shall be reflected in the plans. The changes shall be submitted on
Mylar at least monthly to the Project Manager. These "as-built" drawings shall
be signed and sealed by a registered Florida engineer or architect and shall be
delivered and found to be acceptable.
ARTICLE 32. PAYMENT FOR TESTS.
Except when otherwise specified in the Contract Documents, the expense of all tests and
test reports ordered by Developer shall be borne by Developer.
ARTICLE 33. PROJECT SIGNAGE.
33.1 Developer and/or the Contractor shall furnish and erect signs, subject to the
approval by the City, at the construction site, as directed by the Project
Manager. Developer and/or the Contractor may install additional signage at the
site, subject to approval by the Project Manager.
33.2 Developer shall supply and install wayfinding and building signs for the Facility.
These signs shall be developed with the review and approval of the City and
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subject to the City's Land Development Code requirements for signage.
ARTICLE 34. CLEANING UP AND REMOVAL OF EQUIPMENT.
34.1 The City's Right to Clean Up.If a dispute arises between Developer and separate
contractors as to the responsibility for cleaning up, the City may clean up and
charge the cost thereof to contractors, including Developer, responsible
therefor, as the Project Manager shall determine to be just.
34.2 Removal of Equipment. In case of termination of this Agreement before
completion for any cause whatever, Developer, if notified to do so by the City,
shall promptly remove any part or all of Developer's equipment and supplies
from the property of the City, failing which the City shall have the right to
remove such equipment and supplies at the expense of Developer.
RTICLE 35. MISCELLANEOUS.
35.1 Rights of Various Interests. Whenever work being done by the City or by City
contractors is contiguous to work covered by this Agreement, the respective
rights of the various interests involved shall be established by the Project
Manager to secure the completion of the various portions of the work in general
harmony.
35.2 Records. Developer shall keep such records and accounts and require any and
all architects, consultants, Contractor and subcontractors to keep records and
accounts as may be necessary in order to record complete and correct entries as
to personnel hours charged to this engagement. Such books and records shall be
available at all reasonable times for examination and audit by the City and for
the required retention period of the Florida Public Records Act (Chapter 119,
Florida Statutes), if applicable, or if the Florida Public Records Act is not
applicable, for a minimum period of three (3) years after termination of this
Agreement. If any audit has been initiated and audit findings have not been
resolved at the end of the retention period or three (3) years, whichever is
longer,the books,records, and accounts shall be retained until resolution of the
audit findings. If the Florida Public Records Act is determined by the City to
be applicable to Developer's records, Developer shall comply with all
requirements thereof; however, no confidentiality or nondisclosure
requirement of either federal or state law shall be violated by Developer.
35.3 No Contingent Fee. Developer warrants that it has not employed or retained any
company or person,other than a bona fide employee working solely for Developer,
to solicit or secure this Agreement and that it has not paid or agreed to pay any
person,company, corporation, individual,or firm,other than a bona fide employee
working solely for Developer, any fee, commission, percentage, gift, or other
consideration contingent upon or resulting from the award or making of this
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Agreement. For the breach or violation of this provision, the City shall have the
right to terminate this Agreement without liability, at its discretion,and to recover
the full amount of such fee,commission,percentage,gift,or consideration.
35.4 Representative of the City and Developer.
35.4.1 It is recognized that questions in the day-to-day course of the
construction of the Facility and the Ancillary Projects will arise. All
communications pertaining to the day-to-day conduct of the work shall
be addressed to the Project Manager.
35.4.2 Developer shall inform the Project Manager in writing of the
representative of Developer to whom matters involving the day-to-day
conduct of the construction shall be addressed.
35.5 All Prior Agreements Superseded; Amendments. The Contract Documents
incorporate and include all prior negotiations, correspondence, conversations,
agreements,or understandings applicable to the matters contained herein, and the
parties agree that there are no commitments, agreements, or understandings
concerning the subject matter of this Agreement that are not contained in the
Contract Documents. Accordingly, it is agreed that no deviation from the terms
hereof shall be predicated upon any prior representations or agreements, whether
oral or written.
It is further agreed that no modification, amendment, or alteration in the terms or
conditions contained herein shall be effective unless contained in a written
document executed with the same formality and of equal dignity herewith.
35.6 Notices. Whenever either party desires to give notice unto the other, it shall be
given by written notice, sent by certified United States mail,with return receipt
requested, addressed to the party for whom it is intended, at the place last
specified; and the place for giving of notice shall remain such until it shall have
been changed by written notice in compliance with the provisions of this
paragraph.
For the present,the parties designate the following as the respective places for
giving of notice, to-wit:
As to the City: Attn: City Manager
City of Boynton Beach
100 East Ocean Avenue
Boynton Beach,FL 33435
With a copy to: Michael D. Cirullo, Jr.,Esq.
Goren,Cherof,Doody&Ezrol,P.A.
3099 East Commercial Boulevard,Suite 200
Fort Lauderdale,Florida 33308
{00519664 4 306-9905631} Page 25 of 54
Telephone: (954) 771-4500
Facsimile: (954) 771-4923
Email: mcirullo@gorencherof.com
As to Developer:
35.7 Truth-In-Negotiation Certificate
Signature of this Agreement by Developer shall act as the execution of a truth-
in-negotiation certificate stating that wage rates and other factual unit costs
supporting the costs for the design and construction of the Facility and the
Ancillary Projects are accurate, complete,and current at the time of contracting.
The original pricing and any additions thereto shall be adjusted to exclude any
significant sums, by which the City determines the prices were increased due
to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs.
All such pricing adjustments shall be made within one (1) year following the
end of this Agreement.
35.8 Interpretation.The parties hereto acknowledge and agree that the language used
in this Agreement expresses their mutual intent, and no rule of strict
construction shall apply to either party hereto. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All personal pronouns used
in this Agreement shall include the other gender, and the singular shall include
the plural, and vice versa, unless the context otherwise requires. Terms such as
"herein, "hereof," "hereunder," and "hereinafter" refer to this Agreement as a
whole and not to the particular sentence, paragraph, Section, or Article where
they appear,unless the context requires otherwise. Whenever reference is made
to a Section or Article of this Agreement, such reference is to the Section or
Article as a whole, including all of the subsections and subparagraphs of such
Section or Article, unless the reference is expressly made to a particular
subsection or subparagraph of such Section or Article.
35.9 Environmental Regulations. The City reserves the right to consider the history
of citations and/or violations of environmental regulations in investigating a
contractor's responsibility, and further reserves the right to declare Developer
not responsible if the history of violations warrants such determination in the
opinion of the City. Developer shall notify the City immediately of notice of
any citation or violation that Developer may receive during the time of
performance of this Agreement.
35.10 Applicable Law and Venue. This Agreement shall be interpreted and construed
in accordance with and governed by the laws of the State of Florida. Venue for
litigation concerning this Agreement shall be in Palm Beach County, Florida.
{00519664.4 306-9905631} Page 26 of 54
35.11 Public Entity Crime Statement. Developer acknowledges the existence of
Chapter 287.133(2)(a), Florida Statutes ("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 any goods or services to the City; may not submit
a bid on a contract with the City for the construction or repair of a public
building or public work; may not submit bids on leases of real property to the
City; may not be awarded or perform work as a contractor, supplier,
subcontractor, or consultant under a contract with the City; and may not
transact business with the City in excess of the threshold amount provided in
Chapter 287.017,Florida Statutes, for Category Two for a period of thirty- six
(36) months from the date of being placed on the Convicted Vendor List.
Violation of this Section by Developer shall result in termination of this
Agreement by the City without penalty.
35.12 Joint Preparation. The preparation of this Agreement has been a joint effort of
the parties, and the resulting document shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than the
other by virtue of the fact that it may have been physically prepared by one party
or its attorneys.
35.13 Severance. In the event this Agreement or a portion of this Agreement is found
by a court of competent jurisdiction to be invalid,the remaining provisions shall
continue to be effective unless the City or Developer elects to terminate this
Agreement. The election to terminate this Agreement based upon this provision
shall be made within seven (7) calendar days after the finding by the court
becomes final.
35.14 Waiver.No waiver of any provision of this Agreement shall be effective unless
it is in writing, signed by the party against whom it is asserted, and any such
written waiver shall only be applicable to the specific instance to which it
relates and shall not be deemed to be a continuing or future waiver.
35.15 Drug-Free Workplace.Execution of this Agreement by Developer shall serve as
Developer's certification that it either has or that it will establish a drug-free
workplace consistent with Chapter 112.0455,Florida Statutes.
35.16 Conflicts.Neither Developer nor its employees shall have or hold any continuing
or frequently recurring employment or contractual relationship that is
substantially antagonistic or incompatible with Developer's loyal and
conscientious exercise of judgment related to its performance under this
Agreement.
Developer agrees that none of its employees shall, during the term of this
Agreement, serve as an adverse or hostile expert witness against the City in any
{00519664.4 306-9905631} Page 27 of 54
legal or administrative proceeding in which he or she is not a party, unless
compelled by court process,nor shall such persons give sworn testimony or issue
a report or writing, as an expression of his or her opinion, that is adverse or
prejudicial to the interests of the City in any such pending or threatened legal or
administrative proceeding. The limitations of this Article shall not preclude
such persons from representing themselves in any action or in any
administrative or legal proceeding regarding this Agreement.
In the event Developer is permitted to utilize subcontractors to perform any services
required by this Agreement,Developer agrees to prohibit such subcontractors,by
written contract,from having any conflicts as within the meaning of this Article.
35.17 Background Checks. Prior to hiring any employee, subcontractor, or consultant to
provide services at the Facility, the Developer shall conduct a comprehensive
criminal background check by accessing any Federal, State, or local law
enforcement database available. The individual shall sign an authorization for the
Developer to access criminal background information as provided in Exhibit "E"
attached hereto and incorporated herein. The costs for the background checks shall
be borne by the Developer.
ARTICLE 36. SALES TAX INFORMATION.
The Owner-Direct Special Conditions (Sales Tax Information) are incorporated herein by
reference.
ARTICLE 37. PUBLIC RECORDS.
The City is public agency subject to Chapter 119,Florida Statutes. Developer shall comply
with Florida's Public Records Law,as applicable. Specifically,Developer shall:
a. Keep and maintain public records required by the City to perform the service.
b. Upon request from the City's custodian of public records,provide the City with
a copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119,Florida Statutes, or as otherwise provided by law.
c. Ensure that public records that are exempt or that are confidential and exempt
from public record disclosure requirements are not disclosed except as
authorized by law for the duration of the contract term and,following completion
of the Agreement if the Developer does not transfer the records to the City.
d. Upon completion of the contract,transfer,at no cost,to the City all public records
in possession of the Developer or keep and maintain public records required by
the City to perform the service. If the Developer transfers all public records to
the City upon completion of the contract, Developer shall destroy any duplicate
(00519664.4 306-9905631) Page 28 of 54
public records that are exempt or confidential and exempt from public records
disclosure requirements.
e. If the Developer keeps and maintains public records upon completion of the
contract, the Developer shall meet all applicable requirements for retaining
public records. All records stored electronically by Developer must be provided
to the City,upon request from the City's custodian of public records, in a format
that is compatible with the information technology systems of the City.
The failure of Developer to comply with the provisions set forth in the Agreement shall
constitute a Default and Breach of the Agreement, for which, the City may terminate the
Agreement.
IF DEVELOPER HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
DEVELOPER'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THE AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT:
CITY CLERK
PO BOX 310
BOYNTON BEACH, FLORIDA,33425
561-742-6061
CITYCLERK@BBFL.US
ARTICLE 38. GROUND LEASE.
Once the Facility has been completed in accordance with the terms herein,the City hereby
demises and leases to Developer, and Developer hereby hires and takes from the City,
subject to and with the benefit of the terms, covenants, conditions, and provisions of this
Agreement, the property located at the Facility ("Facility Property").
The initial term of this Agreement (the "Term") shall be from the Effective Date for thirty
(30) years until , unless terminated sooner pursuant to the terms
herein.
At least one (1)year prior to the expiration date of the Agreement or any extension period,
the City and Developer shall have the option,to renew the Agreement for two(2)additional
ten (10) year periods; provided the terms and conditions of the new Agreement are
mutually agreeable to Developer and the City.
Developer shall be responsible for performing all maintenance,repair and replacement for
the Facility during the Term, at its sole cost and expense. Developer shall maintain the
Facility to the same or higher standard as the City maintains the surrounding East Boynton
Beach Little League complex including landscaping, painting of the Facility, parking
{00519664 4 306-9905631) Page 29 of 54
overlay, cleanliness, A/C, and plumbing.
ARTICLE 39. TERMINATION BY THE CITY POST-CONSTRUCTION.
Following Final Completion, the City shall have the right to terminate this Agreement if
any of the following shall occur.
39.1 If Developer at any time is in default of its material obligations, including
payment or maintenance obligations, under this Agreement, and such default
persists for thirty (30) days after written notice thereof is given by the City, or
if such default cannot be cured within thirty (30) days, or such time as may be
reasonably necessary to cure so long as Developer is diligently prosecuting to
cure but not to exceed an additional thirty (30) days;
39.2 If Developer fails to pay to the City any amounts due or any other undisputed
amounts required to be paid hereunder when due and such failure to pay persists
for ten(10)business days after written notice thereof;
39.3 The filing by or against Developer of a bankruptcy, insolvency, receivership,
reorganization or arrangement proceeding, or the initiation of any similar type
of proceeding (if involuntary, the same not having been dismissed after sixty
(60) days from the date of filing), or if Developer shall be unable or unwilling
to pay its debts when due; or
39.4 Any breach in any representation or warranty made by Developer.
Subject to the provisions of this Section and the terms of this Agreement, any
termination by City shall result in the ownership of the Facility and the Ancillary
Projects being forfeited to the City, and the City shall have the right to finish any
incomplete construction of the Facility and the Ancillary Projects, demolish the
building, or operate the Facility and the Ancillary Projects as the City deems in its
best interest. Regardless of the foregoing, the City shall not be subject to any
financial obligations or any debts owed by Developer related to the design,
construction, operation, or maintenance of the Facility and the Ancillary Projects.
ARTICLE 40. TERMINATION BY DEVELOPER.
Following Final Completion, Developer shall have the right to terminate this Agreement
if any of the following shall occur:
40.1 If the City at any time is in default of its material obligations under this
Agreement, and such default persists for thirty (30) days after written notice
thereof is given by Developer, or if such default cannot be cured within thirty
(30) days, or such time as may be reasonably necessary to cure so long as City
is diligently prosecuting to cure but not to exceed an additional thirty(30) days;
{00519664.4 306-9905631} Page 30 of 54
40.2 If the City fails to pay to Developer any undisputed amounts required to be paid
hereunder when due and such failure to pay persists for ten(10) business days
after written notice thereof;
40.3 Any breach in any material respect of any representation or warranty made by
the City herein.
ARTICLE 41. WINDING-UP AND COOPERATION.
If this Agreement expires or is otherwise terminated, the Parties shall promptly and
cooperatively work together in the process of winding-up of Developer's operations under this
Agreement, including (i)notification of staff, subcontractors, vendors, suppliers, and others
having contractual or other arrangements with respect to the operation of the Facility and the
Ancillary Projects, pursuant to the terms of the Agreement; (ii)completion of all calculations
and schedules for reconciliations, inventory, accounting, claims,and payments arising under
this Agreement; and (iii)transition, as applicable, to any third Person that will take over the
operation of the Facility. The City and Developer shall use best reasonable commercial efforts
to complete and constructively cooperate in the winding-up process as expeditiously as
possible.
ARTICLE 42. DUTIES UPON TERMINATION.
Upon termination, Developer shall be required to:
42.1 Vacate the premises and leave the Facility in good repair and operating condition.
Developer shall not have the right to remove any capital improvements,equipment,
fixtures, or other assets or property belonging to City, or any of their respective
agents or representatives;and
42.2 Remove all trash, stacks of material, supplies,tools, equipment, etc.,belonging to
Developer or its agents. Costs of such removals and restoration shall be borne by
Developer.If such trash,stacks of materials,supplies,tools,equipment,etc.,placed
in the Facility by Developer or its agents have not been removed by Developer by
the date of termination, it will be the option of the City to remove the same at
Developer's cost, risk, and expense or to retain or dispose of the same or any part
thereof, without payment or reimbursement to Developer, unless other
arrangements have been made in writing between the City and Developer with
regards to the removal thereof.
ARTICLE 43. SURRENDER AND DELIVERY.
Upon the expiration or termination date of this Agreement, whichever is earlier, Developer
shall surrender the Facility and promptly deliver to the City all keys Developer and any of its
officers, agents,and subcontractors have to the Facility.
{00519664.4 306-9905631} Page 31 of 54
•
ARTICLE 44. REMEDIES.
44.1 Opportunity to Cure. Notwithstanding any other provisions in this Agreement, the
City shall allow Developer at least thirty(30)calendar days to cure any deficiency
in the operation and maintenance of the Facility other than the payment by the
Developer of any fees required under the terms of this Agreement, subsequent to
the provision of written notice to Developer regarding the deficiency. Except in an
event of Termination for Cause, Developer shall be allowed to use the thirty (30)
days'period as an Opportunityto Cure the deficiency.
44.2 Remedies Upon Default. Upon the occurrence of any of the events of default, and
following any applicable cure period, then in addition to any other rights and
remedies that either Party may have hereunder, at law, in equity, or otherwise,the
non-defaulting Party may declare this Agreement terminated and recover Damages
permitted by Applicable Law and/or seek specific performance or other injunctive
or equitable relief.
ARTICLE 45. GROUND LEASE FEE.
45.1 During the construction phase of the Facility and the Ancillary Projects,Developer
shall not be required to make any payments towards the Ground Lease Fee or
Permit Fee.
45.2 No later than thirty (30) days after substantial completion of the Facility and the
Ancillary Projects, or on a date determined by the City, Developer shall pay an
annual Ground Lease Fee of Ten Dollars($10.00)per year for each and every year
this Agreement remains in effect, payable in advance, to the City of Boynton
Beach,Florida.
All payments are due payable by the 10th day of January at the start of each calendar
year.
ARTICLE 46. MONTHLY PERMIT FEE.
Developer shall pay a Monthly Permit Fee that shall cover such things as common-area
maintenance costs and other costs associated with the maintenance and upkeep of the East
Boynton Little League Complex. The Monthly Permit Fee payments shall be based on the
following graduated scale:
Years 1 and 2: $400.00 per month
Year 3: $800.00 per month
Year 4: $1,200.00 per month
{00519664 4 306-9905631} Page 32 of 54
Year 5 through Expiration: $1,3 00.00 per month ghg a bi-annual
(every other year) increase based on the most recent 12-month change
in the following U.S. Government Index from the Bureau of Labor
Statistics:
Consumer Price Index,All Goods and Services,All Items,Miami-Ft.Lauderdale Area.
All payments are due payable by the 10th day of the month that the payment becomes
due.
ARTICLE 47. TRANSFER OF OWNERSHIP OF FACILITY AND THE
ANCILLARY PROJECTS.
This is a public-private partnership Project, subject to the provisions of Chapter 255.065,
Florida Statutes. Upon the expiration of the Term,the Facility and the Ancillary Projects shall
revert in ownership to the City,free and clear of all claims by Developer or any other entity.
At that time,Developer, its successors,and assignees, as may be applicable, shall transfer full
legal ownership of the Facility and the Ancillary Projects to the City of Boynton Beach,
Florida.
ARTICLE 48. TAXES AND FINES.
Developer shall pay all taxes that may be assessed on its design,construction,operation,lease,
and maintenance of the Facility and the Ancillary Projects. The City shall not be liable for any
taxes, fines, or penalties that may be levied against the Facility and the Ancillary Projects
during the time of Developer's occupancy of the building.
ARTICLE 49. SUBLEASING.
Developer may sublease areas of the Facility, provided that any subleasing must be pre-
approved by the City in writing, and the subtenants shall be subject to and bound by all
applicable terms of this Agreement, provided the activities being proposed by Developer's
subtenant(s) are related to or complement the Intended Use. Developer shall provide a copy
of the sublease agreement to the City.
ARTICLE 50. ECONOMIC IMPACT REPORT.
Each calendar year Developer shall provide the City with a general analysis and report detailing
the economic impact to the City and local area of the operations of the Facility and its related
programs. The report shall include the estimated number and the length of stay for clients who
travel to the Facility for any purpose, including, but not limited to, training, seminars,
collegiate summer leagues, special clinics,and showcases. The report shall contain a short
paragraph with projections for the next year. The City and Developer shall determine the due
{00519664 4 306-9905631} Page 33 of 54
date for the first report.
ARTICLE 51. UTILITIES.
It shall be the responsibility of Developer to apply for and connect all temporary utility service
for the Facility required during the construction phase of the Facility. Upon completion of
construction and during the operation of the Facility,Developer shall be responsible for the
connection and payment of all permanent utility service to the building,excluding the public
bathroom accessible from outside.
ARTICLE 52. INDEMNIFICATION OF THE CITY AND INSURANCE.
52.1 Developer shall indemnify and hold harmless the City,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 Developer and other persons employed or utilized by
Developer in the operation and maintenance of the Facility and the Ancillary
Projects.
52.2 Required Insurance.
52.2.1 Comprehensive General Liability with minimum limits of One
Million Dollars ($1,000,000.00) per occurrence combined
single limit for Bodily Injury Liability and Property Damage
Liability shall include:
a. Premises and/or Operations on an occurrence basis.
b. Independent Contractors.
c. Products and/or Completed Operations Liability on an occurrence basis.
d. Explosion,Collapse,and Underground Coverages.
e. Broad Form Property Damage.
f. Broad Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and/or indemnification agreement.
g. Personal Injury Coverage with Employees and Contractual Exclusions
removed with minimum limits of coverage equal to those required for
Bodily Injury Liability and Property Damage Liability.
52.2.2 Business Automobile Liability with minimum limits of One
Million Dollars ($1,000,000.00) per occurrence combined
single limit for Bodily Injury Liability and Property Damage
Liability. Coverage shall be afforded on a form no more
restrictive than the latest edition of the Business Automobile
Liability Policy, without restrictive endorsements, as filed by
the Insurance Services Office and shall include:
{00519664.4306-9905631} Page 34 of 54
•
Owned vehicles.
Non-owned and hired vehicles.
52.3 Notice of Cancellation, Expiration, and/or Restriction: The policy(ies) shall be
endorsed to provide the City with thirty(30)calendar days'advanced written notice
of cancellation, expiration, and/or restriction to the attention of the Project
Manager, do Risk Management, City of Boynton Beach, 100 East Ocean Avenue,
Boynton Beach, FL 33435.
52.4 Developer shall furnish to the Project Manager Certificate(s) of Insurance
evidencing the insurance coverages required herein prior to commencement of any
work on this Project. Such certificate(s) shall reference this Agreement. The City
reserves the right to require a certified copy of such policies upon request. All
certificates shall state that the City shall be given thirty (30) calendar days' prior
written notice of cancellation and/or expiration.
52.5 The official title of the City is "City of Boynton Beach." This official title shall be
used in all insurance or other legal documentation. The City shall be included as
"Additional Insured" with respect to liability arising out of operations performed
for the City by or on behalf of Developer or acts or omissions of Developer in
connection with such operation.
ARTICLE 53. ENVIRONMENTAL MATTERS.
City represents and warrants to Developer that, to the best of the City's knowledge, (i) the
Property is in full compliance with all Environmental Laws; (ii)there has been no discharge of
Hazardous Materials at the Property; (iii)there are no underground storage tanks, septic tanks,
potable water well or septic fields in, on, at, under, or about the Property; and (iv) no claim,
action, suit, or proceeding is pending or threatened against the City or any third party arising
directly or indirectly out of the discharge of Hazardous Materials at the Property, or the
presence of underground storage tanks beneath the Property. Simultaneously with the
execution of this Lease, City shall deliver to Developer all environmental reports concerning
the Property in City's possession. Further, the City agrees to indemnify, defend, and hold
Developer harmless from any claims, judgments, damages (including, without limitation,
natural resource damages), fines, penalties, costs, liabilities, and/or losses, including,
without limitation, reasonable attorney's fees, reasonable consultants fees, and reasonable
expert fees that arise during or after the term of this Lease by reason of the presence of
Hazardous Materials in the soil,groundwater,soil vapor,or other environmental media at,on,
under, to or from the Property based on or in connection with events occurring or conditions
arising or accruing (a) prior to the Commencement Date or(b) during the term of this Lease
that are not caused or introduced by Developer, its assignees, subtenants or licensees, clients,
or the employees or agents of any of them.
"Environmental Laws"means any and all federal,state,local,and foreign statutes,laws,codes,
rules,regulations,ordinances,environmental permits,guidelines,standards,and directives and
all applicable agreements and judicial and administrative orders and decrees pertaining to
{00519664.4306-9905631} Page 35 of 54
health,safety,or the environment,and all common law providing for any right or remedy with
respect to environmental matters, each as currently in effect or hereinafter amended, adopted,
promulgated,or enacted.
"Hazardous Materials" means any and all materials, pollutants, contaminants, wastes,
chemicals, or substances listed, defined, designated, classified, or considered or regulated as
dangerous, special,hazardous,toxic,or radioactive, or any terms of similar import,under any
applicable Environmental Laws, including petroleum and any derivation or by-product
thereof, asbestos and asbestos- containing materials, lead-based paint, PCBs, and
perchlorethylene or related or similar dry cleaning.
ARTICLE 54. REPRESENTATION AND WARRANTIES OF THE CITY.
The City hereby represents and warrants to Developer that (i) the City has full power and
authority to enter into this Agreement; (ii)the City is the sole fee owner of the Property; (iii)
to the City's knowledge, the Property complies with all environmental laws and regulations,
and all other federal, state,and local rules,regulations, laws, statutes,and ordinances; (iv)the
City has obtained all required consents and approvals in order to enter into this Lease
(including from all Major Title Document Holders, as hereinafter defined); (v) there are no
restrictions (including, without limitation, declarations, covenants, easements, ground leases,
and/or mortgages)that would prohibit,interfere with,restrict,or otherwise impair Developer's
ability to use the Property for the uses permitted hereunder, and the City shall not permit or
suffer any such restrictions that would prohibit, interfere with, restrict, or otherwise impair
Developer's ability to use the Property for such uses;(vi)the City has not received any notice
of any actual or threatened action, litigation, or proceeding by any organization, person,
individual, or governmental agency against the Property or the City with respect to the
Property; (vii) the Property is free and clear of any leases, tenancies, or claims of parties in
possession; and (vii) this Agreement and the rights granted to Developer hereunder shall not
violate and are not inconsistent with any other agreement relating to the Property.
The City shall have an affirmative obligation to immediately provide Developer with written
notice in the event of any change with regard to the representations set forth above.
ARTICLE 55. CASUALTY.
55.1 In case any improvement(s) or any part thereof shall be damaged or destroyed by
fire or other casualty, or ordered to be demolished by the action of any public
authority in consequence of a fire or other casualty, Developer may terminate this
Ground Lease and shall have no obligation to repair or rebuild the improvements
but shall be obligated to remove any debris and properly secure the Property.
55.2 In case of any damage or destruction occurring in the last three(3)years of the Term,
or during any Renewal Period,to the extent of fifty percent(50%) or more of the
insurable value of the improvement(s), Developer may, at its option, to be
evidenced by notice in writing given to the City within ninety (90) days after the
{00519664.4306-9905631} Page 36 of 54
occurrence of such damage or destruction, elect to terminate this Ground Lease as
of the date of said damage or destruction.
ARTICLE 56. QUIET ENJOYMENT.
The City agrees that Developer shall and may peaceably and quietly have, hold, and enjoy the
Facility during the Term, subject to the covenants and conditions of this Ground Lease.
[This Space is Intentionally Blank]
{00519664 4 306-9905631) Page 37 of 54
IN WITNESS WHEREOF, the parties hereto certify that they have read and
understand this Agreement and all Contract Documents and attachments hereto and have
caused this Agreement to be executed by their duly authorized officers on the date
hereinabove first written.
CITY OF BOYNTON BEACH,a Florida
municipal corporation
Z"'. 7:7,
igr��� ►�'�e� SERGA
Signed, sealed and delivered /
in the presence of:
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(Witness signature 1 "•���OP.:"
(-A rl ie (J2e rr FLOR
(Print name of Witness)
APPR ED S TO F to :
CITY ATTORNEY'S OFF CE
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBY CERTIFY,that on,— pry'( c before me by means of online
notarization, or physical presence, an officer duly authorized in the State and County
aforesaid to take acknowledgments, personally appeared as Ty
Penserga,Mayor, of the City of Boynton Beach on behalf of the City, and said person(s)either
( ) produced the following as identification , or
( .)are personally known to me.
WITNESS my hand and official seal in the County and State as listed above, this''-
day of'~ v‘kG-ty 3 , 20 ' 3
't rtutan ••ne
Notary Pu
Print Name of Notary Public
My Commission Expires:31a5/42,3
[Seal]
OS/RY Pt*, TAMMY L STANZIONE
r ' `' Commission#GG 306158
,7 Expires March 25,2023
{00519664.4306-9905631} Page 38 of 54 �'to,in, 9«awThu 6uapetNotary Stinks'
DEVELOPER:
BY:
Print ame: •1 • , r. ,
Title: Picsidcnt
STATE OF FLORIDA
COUNTY OF PALM BEACH
I HEREBYXERTIFY, that on ( t 12I2-2_ , before me by means of online
notarization,or V physical presen a, officer duly authorized in the State and County aforesaid to
take acknowledgments, f I - r Ail •-rsonally appeared' as
,and said person(s)either(1 produced the
following as identification Vt 0 - , ,or( )are personally known to
me. ,�/
++ 11 PC(Cl�J
WITNESS my hand and official seal in the County and State as listed above,this 22-day of
,2022.
o u► to Signatur- —.
' • g, /
Prin •.ame of Notary Public.,.?
My Commission Expires: u 0
2,0
[Se.I
s.<J"'°� SERGE_.NE VIC70R.,EaN 3APTISTE
votary?uoiic•State of Florida
Afi Commission;riH 230468
My Comm.Expires Mar 4,2026
Bonded throu;h Nalan�i roomy Assn.
(00519664.4 306-9905631) Page 39 of 54
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(00519664.4306-9905631) Page 40 of 54
EXHIBIT
FACILITY PROPERTY
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{00519664 4 306-9905631} Page 41 of 54
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EXHIBIT
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PROGRAMMING SCHEDULE
1) Hours of Operation:
• Monday—Friday: 6:00am—5:00pm
• Saturday: 6:00am—2:00pm
• Sunday: By appointment only
2) Parking Needs:
• Shall be determined by the City and shall be adhered to by the Developer
3) Programming and Activities Partnership
• No underprivileged children will be turned away. Developer shall offer camps,
coaching instruction, scholarship programs and whatever else the Developer can do in
its best efforts to help the athletes within the community.
• During the summer months and holiday season Developer shall also hold camps
instructed by current and former professional athletes, coaches' clinics and miracle
league games.
• Facility shall include batting cages, bullpens, strength & conditioning training, speed
& agility training, nutrition assistance, conference rooms, offices and an analytic
software equipment area for all guest to utilize.
{00519664 4 306-9905631} Page 43 of 54
EXHIBIT
CONTRACTOR REQUIREMENTS
1. GENERAL QUALITY OF WORK.
a. Articles,materials,and equipment specified or shown on drawings shall be new
and shall be applied, installed, connected, erected, used, cleaned, and
conditioned for proper forming, as per the manufacturer's directions, and as
approved by the Project Manager. The Contractor shall, if required, furnish
satisfactory evidence as to kind and quality of the materials.
b. The Contractor shall apply, install, connect, and erect manufactured items or
materials according to the recommendations of the manufacturer when such
recommendations are not in conflict with the Contract Documents. The
Contractor shall furnish copies of the manufacturer's recommendations to the
Project Manager before proceeding with the work.
c. The Contractor shall at all times enforce strict discipline and good order among
its employees, consultants,and subcontractors at the Project site and shall not
employ on the Project any unfit person or anyone not skilled in the work
assigned to him or her.
d. The Contractor shall maintain suitable and sufficient guards and barriers, and
at night suitable and sufficient lighting for the prevention of accidents and
thefts.
2. CHECK DRAWINGS AND DATA
a. The Contractor shall take measurements and verify all dimensions,conditions,
quantities and details shown on the drawings,schedules,or other data,and shall
notify the Project Manager of all errors,omissions,conflicts,and discrepancies
found therein. Failure to discover or correct errors,conflicts, or discrepancies
shall not relieve the Contractor of full responsibility for unsatisfactory work,
faulty construction, or improper operation resulting therefrom nor from
rectifying such condition at the Contractor's own expense. The Contractor will
not be allowed to take advantage of any error or omission.
3. WARRANTY
The Contractor shall warrant to the City and Developer that all materials and
equipment furnished for the Facility and the Ancillary Projects shall be new,unless
otherwise specified,and that all work for the construction of the Facility shall be of
good quality, free from faults and defects, and in conformance with the Contract
Documents. All work for the Facility and the Ancillary Projects not conforming to
{00519664.4 306-9905631} Page 44 of 54
these requirements, including substitutions not properly approved and authorized,
may be considered defective. If required by the Project Manager, the Contractor
shall furnish satisfactory evidence as to the kind and quality of materials and
equipment.
4. DELIVERY AND STORAGE OF MATERIALS.
a. Material stored on the job site shall be verified as to quantity and condition by
the Contractor, prior to acceptance. Safeguarding the material shall be the
responsibility of the Contractor. Any materials that are lost, stolen,damaged,
or otherwise deemed unacceptable by the Project Manager shall be replaced at
no cost to the City.
b. Materials stored off the job site shall be stored in a bonded warehouse.
Safeguarding the material shall be the responsibility of the Contractor.
5. DEFECTIVE WORK.
a. The Project Manager shall have the authority to reject or disapprove work for
the Facility and the Ancillary Projects that the Project Manager fmds to be
defective. If required by the Project Manager, the Contractor shall promptly,
as directed, correct all defective work or remove it from the construction site
and replace it with nondefective work.
6. CONSTRUCTION AREA
a. The Contractor shall use areas approved by the City for deliveries and
personnel. Contract limits of construction area shall be indicated on the
drawings. Equipment, material, and personnel shall be in conformance with
this Contract.
b. To provide for maximum safety and security,the Contractor shall erect and
maintain all necessary barricades and any other temporary walls and
structures, and boarding, as required, to protect life and property during the
period of construction.
7. LEGAL RESTRICTIONS AND TRAFFIC PROVISIONS.
a. The Contractor shall conform to all applicable laws,regulations,or ordinances
with regard to labor employed, hours of work, and its contractor's general
operations. The Contractor shall also conduct its operations so as not to close
any thoroughfare nor interfere in any way with traffic on highways without the
written consent of the proper authorities.
8. DAMAGE TO EXISTING FACILITIES,EQUIPMENT,OR UTILITIES.
(00519664.4 306-9905631) Page 45 of 54
a. Existing utilities have been identified insofar as information is reasonably
available; however, it will be the Contractor's responsibility to verify such
information and to preserve all existing utilities whether shown on the
drawings or not. If utility conflicts are encountered by the Contractor during
construction, the Contractor shall give sufficient notice to the owners of the
utilities so that they may make the necessary adjustments.
b. The Contractor shall exercise care and take all precautions during construction
operations to prevent damage to any existing facilities,equipment,or utilities.
Any damage caused by the Contractor shall be reported immediately to the
Project Manager, and such work shall be repaired and/or replaced by the
Contractor in a manner approved by the City. All costs to repair and/or replace
any damage to existing facilities, equipment, or utilities shall be the sole
responsibility of the Contractor, and such repair or replacement shall be
performed expeditiously without cost to the City.
c. The Contractor shall provide the type of required protection for fmished work
at all times and protect adjacent work during cleaning operations and make
good any damage resulting from neglect of this precaution.
d. Protection of work shall include protecting work that is factory fmished during
transportation, storage, and during and after installation. Where applicable
and as required, the Contractor shall close off areas where certain work has
been completed to protect it from any damages caused by others during their
operations.
e. The Contractor shall store materials and shall be responsible for and shall
maintain partly or wholly fmished work during the construction of the Facility
and the Ancillary Projects until the final acceptance of the structure. If any
materials or part of the work should be lost, damaged, or destroyed by any
cause or means whatsoever, the Contractor shall satisfactorily repair and
replace the same at its own cost. The Contractor shall maintain suitable and
sufficient guards and barriers, and at night, suitable and sufficient lighting for
the prevention of accidents.
f. To all applicable Sections where preparatory work is part of work thereon,the
Contractor shall carefully examine surfaces over which its finished work is to
be installed, laid, or applied before commencing with the work. The
Contractor shall not proceed with said work until defective surfaces on which
work is to be applied are corrected satisfactorily to the Project Manager's
satisfaction. Commencement of work shall be considered acceptance of
surfaces and conditions.
9. CONTINUATION OF WORK.
{00519664.4306-9905631} Page 46 of 54
The Contractor shall carry on construction and adhere to the progress schedule
during all disputes or disagreements between Developer and the City. No work shall
be delayed or postponed pending resolution of any disputes or disagreements.
10. SHOP DRAWINGS.
a. The Contractor shall submit Shop Drawings for all equipment, apparatus,
machinery, piping, wiring, fabricated structures, and manufactured articles.
The purpose of the Shop Drawings is to show the suitability, efficiency,
technique of manufacture, installation requirements, details of the item, and
evidence of its compliance or noncompliance with the Contract Documents.
b. The Contractor shall submit to the Project Manager a complete list of
preliminary data on items for which the Shop Drawings are to be submitted.
Approval of this list by the Project Manager shall in no way relieve the
Contractor from submitting complete Shop Drawings and providing materials,
equipment, etc., fully in accordance with the Contract Documents. This
procedure is required in order to expedite fmal approval of the Shop Drawings.
c. After the approval of the list of items required in 5(b) above, the Contractor
shall promptly request the Shop Drawings from the various manufacturers and
suppliers.
d. The Contractor shall thoroughly review and check the Shop Drawings,and each
and every copy shall show its approval thereon.
e. If the Shop Drawings show or indicate departures from the Contract
requirements,the Contractor shall make specific mention thereof in its letter of
transmittal. Failure to point out such departures shall not relieve the Contractor
from its responsibility to comply with the Contract Documents.
f. No work called for by the Shop Drawings shall be done until the Drawings have
been approved by the Project Manager. Approval shall not relieve the
Contractor from responsibility for errors or omissions of any sort on the Shop
Drawings.
g. No approval will be given to partial submittal of the Shop Drawings for items
that interconnect and/or are interdependent. It is the Contractor's responsibility
to assemble the Shop Drawings for all such interconnecting and/or
interdependent items, check them, and then make one (1) submittal to the
Project Manager along with the Contractor's comments as to compliance,
noncompliance,or features requiring special attention.
h. If catalog sheets or prints of the manufacturers'standard drawings are submitted
{00519664 4 306-9905631} Page 47 of 54
as Shop Drawings, any additional information or changes on such drawings
shall be typewritten or lettered in ink.
i. The Contractor shall submit to the Project Manager the number of copies
required by the Project Manager. Resubmissions of Shop Drawings shall be
made in the same quantity until final approval is obtained.
j. The Project Manager's approval of the Shop Drawings will be general and
shall not relieve the Contractor of responsibility for the accuracy of such
Drawings, nor for the proper fittings and construction of the work, nor for
the furnishing of the materials or work required by the Contract and not
indicated on the Drawings. No work called for by the Shop Drawings shall
be done until the Drawings have been approved by the Project Manager.
Approval shall not relieve the Contractor from responsibility for errors or
omissions of any sort on the Shop Drawings.
k. The Contractor shall keep one(1)set of the Shop Drawings marked with the
Project Manager's approval at the construction site at all times.
11. FIELD LAYOUT OF THE WORK AND RECORD DRAWINGS.
a. The entire responsibility for establishing and maintaining a line and grade in
the field lies with the Contractor. The Contractor shall maintain an accurate
and precise record of the location and elevation of all pipelines, conduits,
structures,manholes,handholds,fittings,and the like and shall deliver these
records in good order to the Project Manager as the work is completed.
These records shall serve as a basis for record drawings. The cost of all such
field layout and recording work shall be paid by Developer.
12. SAFETY AND PROTECTION.
a. The Contractor shall be responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection with the
construction of the Facility and the Ancillary Projects. The Contractor shall
take all necessary precautions for the safety of, and shall provide the
necessary protection to prevent damage, injury, or loss to:
i. All employees on the construction site and other persons who may be
affected thereby;
(1) All the work and all materials or equipment to be incorporated
therein, whether in storage on or off the construction site; and
(2) Other property at the site or adjacent thereto, including trees,
shrubs, lawns, walks, pavements, roadways, structures, and
(00519664.4 306-9905631) Page 48 of 54
•
utilities not designated for removal, relocation, or replacement
in the course of construction.
ii. The Contractor shall comply with all applicable laws, ordinances,
rules, regulations, and orders of any public body having jurisdiction
for the safety of persons or property or to protect them from damage,
injury, or loss, and shall erect and maintain all necessary safeguards
for such safety and protection.The Contractor shall notify owners of
adjacent property and utilities when prosecution of the work may
affect them. All damage, injury, or loss to any property referred to in
Section 6(i)above,caused directly or indirectly,in whole or in part,by
the Contractor, any subcontractors or consultant, or anyone directly or
indirectly employed by any of them or anyone for whose acts any of them
may be liable, shall be remedied by the Contractor. The Contractor's
duties and responsibilities for the safety and protection of the
construction site shall continue until the construction of the Facility and
the Ancillary Projects atecompleted,and the Project Manager has issued
a notice to the Contractor that the Facility and the Ancillary Projects are
acceptable, except as otherwise provided in Article 27, Use of
Completed Portions.
iii. The Contractor shall designate a responsible member of its
organization at the Project site whose duty shall be the prevention of
accidents. Thisrson shall be the Contractor's Designated
� l�
Representative unless otherwise designated in writing by Contractor to
the City.
13. CLEANING UP AND REMOVAL OF EQUIPMENT.
a. The Contractor shall at all times keep the construction site free from
accumulation of waste materials or rubbish caused by the Contractor's
operations. At the completion of the construction,the Contractor shall remove
all its waste materials and rubbish from and about the site, as well as its tools,
construction equipment, machinery, and surplus materials. If the Contractor
fails to clean up at the completion of the construction,the City may do so,and
the cost thereof shall be charged to the Contractor.
14. BONDS,INDEMNIFICATION,AND INSURANCE.
Prior to commencement of any work on the construction of the Facility and the
Ancillary Projects,the Contractor shall furnish a Performance and Payment
Guaranty consisting of either:
a. Performance and Payment Bond(Surety)
{00519664 4 306-9905631} Page 49 of 54
i. A Performance and Payment Bond (separate Performance Bond and
separate Payment Bond) of the form and containing allthe provisions of
the Performance and Payment Bond (Performance Bond and Payment
Bond forms), attached hereto and made a part hereof.
ii. The Bonds shall be in the amount of one hundred ten percent (110%) of
the Contract amount guaranteeing to the City the completion and
performance of the Project covered in this Agreement, as well as full
payment of all suppliers, materialmen, laborers, or subcontractors
employed pursuant to the construction of the Facility and the Ancillary
Projects. Such Bonds shall be with a surety company that is qualified
pursuant to Section c. Oualifications of Surety below.
iii. Such Bonds shall be in effect for one (1) year after completion and
acceptance of the Facility and the Ancillary Projects with liability equal
to one hundred ten percent (110%) of the Contract price, or an
additional Bond shall be conditioned that the Contractor shall, upon
notification by the City, correct any defective or faulty work or
materials that appear within one (1) year after completion of the
construction.
iv. The Payment and Performance Bond required herein shall be in
conformance with Chapter 255.051, Florida Statutes, and shall be on
such forms provided by the City.
v. The City- shall not be responsible for the cost to secure the
Performance and Payment Bonds required for the construction of the
Facility and the Ancillary Projects.
b. Performance and Payment Guaranty. In lieu of a Performance and Payment Bond,
the Contractor may furnish an alternate form of security that may be in the form of
cash, money order, certified check, cashier's check, or irrevocable letter of credit.
Such alternate forms of security shall be for the same purpose and shall be subject
to the same conditions as those applicable above and shall be held by the City for
one (1) year after completion and acceptance of the Facility and the Ancillary
Projects.
c. Oualifications of Surety
i. A Performance Bond and separate Payment Bond shall be executed by a
surety company shown on the United States Treasury approved list of
companies and also authorized to do business in the State of Florida. Both
Bonds shall show the City as obligee.
ii. The surety company shall have at least the following minimum ratings in the
{00519664.4 306-9905631} Page 50 of 54
latest version of AM. Best's Insurance Report:
Amount of Bond Policyholder's Best's Financial
Ratings Size Category
500,00110 1,000,000 B+ Class I
1,000,001 to 2,000,000 B+ Class II
2,000,001 to 5,000,000 A Class Ill
5,000,001 to 10,000,000 A Class IV
10,000,001 to A Class V
25,000,000
25,000,001 to A Class VI
50,000,000
50,000,001 or more A Class VII
iii. Indemnification of the City
(1) The Contractor shall indemnify and hold harmless the City,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
Contractor and other persons employed or utilized by the Contractor in the
design and construction of the Facility and the Ancillary Projects. The
indemnification herein is limited to the greater of the Insurance of the
Contractor for such claim or Five Million Dollars ($5,000,000.00),
whichever is greater. Regardless of the foregoing, this provision shall be
limited by Chapter 725.06,Florida Statutes.
(2) The indemnification provided above shall obligate the Contractor to defend
at its own expense to and through appellate, supplemental, or bankruptcy
proceeding, or to provide for such defense, at the City Attorney's option,
any and all claims of liability and all suits and actions of every name and
description that may be brought against the City that may result from the
operations and activities under this Agreement, whether performed by the
Contractor, its subcontractors, its consultants, or by anyone directly or
indirectly employed by any of the above.
(3) The execution of this Agreement by the Contractor shall obligate the
Contractor to comply with the foregoing indemnification provision;
however, the collateral obligation of insuring this indemnity shall be
complied with as set forth in Section 8.
d. Insurance
The Contractor shall provide,pay for,and maintain in force at all times such insurance,
including Workers' Compensation Insurance, Employer's Liability Insurance,
(00519664 4 306-9905631) Page 51 of 54
•
Comprehensive General Liability Insurance, and shall provide,pay for, and maintain
in force at all times during the construction,operation,and maintenance of the Facility
and the Ancillary Projects, Professional Liability Insurance to assure to the City the
protection contained in the foregoing indemnification and save harmless clauses
undertaken by the Contractor. The Comprehensive General Liability Policy shall
clearly identify the foregoing indemnification and save harmless clauses by the
additional named insured endorsement under this Article.
Such policy or policies shall be issued by companies authorized to do business in the
State of Florida and have a resident agent licensed in Florida. The Contractor shall
specifically protect the City by naming the City as an additional named insured under
the Comprehensive General Liability Insurance Policy hereinafter described.
i. Professional Liability {Errors and Omissions), Intentionally Omitted.
ii. Workers'Compensation Insurance to apply for all employees in compliance with
the "Workers' Compensation Law" of the State of Florida and all applicable
federal laws. In addition,the policy(ies) shall include Employer's Liability with
limits of One Million Dollars($1,000,000.00)each accident,One Million Dollars
($1,000,000.00) each disease, and One Million Dollars ($1,000,000.00)
aggregate by disease.
iii. Comprehensive General Liability with minimum limits of One Million Dollars
($1,000,000.00)per occurrence combined single limit for Bodily Injury Liability
and Property Damage Liability shall include:
(1) Premises and/or Operations on an occurrence basis.
(2) Independent Contractors.
(3) Products and/or Completed Operations Liability on an occurrence basis.
(4) Explosion,Collapse,and Underground Coverages.
(5) Broad Form Property Damage.
(6) Broad Form Contractual Coverage applicable to this specific Agreement,
including any hold harmless and/or indemnification agreement.
(7) Personal Injury Coverage with Employees and Contractual Exclusions
removed with minimum limits of coverage equal to those required for
Bodily Injury Liability and Property Damage Liability.
iv. Business Automobile Liability with minimum limits of One Million Dollars
($1,000,000.00)per occurrence combined single limit for Bodily Injury Liability and
Property Damage Liability. Coverage shall be afforded on a form no more restrictive
than the latest edition of the Business Automobile Liability Policy,without restrictive
endorsements,as filed by the Insurance Services Office and shall include:
Owned vehicles.
Non-owned and hired vehicles.
{00519664.4306-9905631} Page 52 of 54
v. Puilder's Risk Insurance - Coverage shall be "All Risk" coverage for one hundred
percent (100%)of the completed value of the structure(s), building(s)or addition(s).
Where contract calls for install of machinery or equipment, the policy must be
endorsed to provide coverage on "All Risk" basis during transit and installation. The
policy must be issued with a deductible of not more than$50,000 per claim.
Builders Risk/ Installation Floater - The Contractor shall take out and maintain, as
applicable,during the construction of the Facility and any Ancillary Projects,"all risk"
type builders risk insurance satisfactory to the City for the completed value of the
Facility and any Ancillary Projects that shall protect the Contractor and the City as
their interests may appear, for the following hazards to the work, encompassing
structures in the course of construction, including foundations,additions,attachments
and all permanent fixtures belonging to and constituting a part of said structures, as
well as materials and equipment suitably stored at the site and the Contractor's
construction equipment,materials,and temporary structures:
(1) Fire and lightning,vandalism, and malicious mischief;
(2) Extended coverage including windstorm, hail, flood, explosion, riot, civil
commotion,aircraft,vehicle, and smoke damage.
e. Notice of Cancellation, Expiration, and/or Restriction: The policy(ies) shall be
endorsed to provide the City with thirty(30)calendar days'advanced written notice of
cancellation,expiration,and/or restriction to the attention of the Project Manager, do
Risk Management Coordinator, City of Boynton Beach, 100 East Ocean Avenue,
Boynton Beach,FL 33435.
f. The Contractor shall furnish to the Project Manager Certificate(s) of Insurance
evidencing the insurance coverages required herein prior to commencement of any
work on this Project. Such certificate(s) shall reference this Agreement. The City
reserves the right to require a certified copy of such policies upon request. All -
certificates shall state that the City shall be given thirty (30) calendar days' prior
written notice of cancellation and/or expiration.
g. The official title of the City is "City of Boynton Beach" This official title shall be
used in all insurance or other legal documentation. The City shall be included as
"Additional Insured" with respect to liability arising out of operations performed for
the City by or on behalf of the Contractor or acts or omissions of the Contractor in
connection with such operation.
{00519664 4 306-9905631} Page 53 of 54
Y Y(.., ,,,,,:O F
_ CITY OF BOYNTON BEACH RECREATION416 Lamalii"
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&PARKS DEPARTMENT
ry �' Boyr,o Beach
EXHIBIT E
Background Screening Acknowledgement
This Exhibit "E" is attached to and shall be considered as part of the Agreement between the
CITY and Developer. The Developer through the undersigned named below, hereby attests that
Developer understands and agrees to comply with the Level II background screening requirements
more particularly described in Section 435.04, Florida Statutes. Developer acknowledges and agrees
no person other than those whom have successfully passed all aspects of the Florida Department of
Law Enforcement Level II background screening process within the previous five(5)years shall be
permitted to act on behalf of or in any official capacity with Developer for Programming at the Little
League Park and/or any City Owned Facility during the term of Agreement. Developer acknowledges
and agrees that it is responsible for ensuring all instructors,teachers, staff, volunteers and agents of
Developer successfully complete and pass the Level H background screening in advance of all
authorized activities. CITY shall not be responsible for the costs associated with the Level II
background screening required herein. Developer agrees to indemnify CITY against any claims or
cause of action arising from or related to Developer's failure to ensure all individuals acting on behalf
of or in any official c ity with Developer have completed and passed the required Level II
background screenipg as equired herein.
Primetime Sports Group,
LLC:
Signature • �.— // Zl-2L Date
Name(Print) -Pla&(i nT/ra It.o
Phone Number SG I- 5 2 3-(.133
Email ceorts5rov f-LSM
STATE OF FLO IDA J
COUNTY OF FL;
(t ' Q
The foregoing ins me t w ac owledge fo my b!ream of Vysical presence or L] online
no i ion his d 2( t l l .f f A 11(� as
tu.�►ki
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for Primetime Sports Group,LLC.
♦- - --
j ':' SERGEL.NE VICTOR JEAN BonsTE ,%��
Nota 190.1
`�allIP //%�
`. ',a. Notary ubiic•State of Florida
y StArt4sion;HH 230468 (Sign. of Notary Public-State of Florida)
\,°!!..n.,.."' My Comm.Expires Mar 4,2026 (Name of Notary Typed,Printed,or Stamped)
g Bonded through National Notary Assn.
•------- - or - 4.—
Personally, Known OR Produced Identification f (_-1)L._.Type of Identification Produced
{00519664.4 306-9905631} Page 54 of 54