CONSTRUCTION MANAGER @ RISK SERVICES FOR CONTINUING CONTRACTS (7)CONTRACT
Construction Manager @ Risk Services for Continuing Contracts
This CONTRACT is signed this 1 day of , 2013 by and between the City
of Clearwater, Florida, a municipal corporation, hereinafter designated as the "City" or "Owner", and
Honeywell Building Solutions , of the City of Orlando , County of Orange and State of
Florida, hereinafter designated as the "Construction Manager". The contracting entities shall
collectively be known as the "Parties."
WITNESSETH:
WHEREAS, the Clearwater City Council has approved using the Construction Manager at Risk approach
on appropriate projects as determined by the City's Engineering Department; and
WHEREAS, the City desires that the Construction Manager perform the management of the necessary
construction, design, and preconstruction services (collectively referred to as the Services) on an as-
needed basis subject to the terms and conditions set forth in this agreement and any agreement
incorporated into this agreement by reference.
NOW, THEREFORE, IT IS AGREED BY THE PARTIES:
ARTICLE 1: SCOPE OF WORK AND CONTRACT DOCUMENTS
1.1 The Construction Manager and its successors, assigns, executors or administrators, in consideration
of the sums of money, as herein after set forth to be paid by the City to the Construction Manager,
shall and will at its own cost and expense perform all labor, furnish all materials, tools and
equipment for all individual projects assigned as a result of this contract.
1.2 For each individual project assigned, in accordance with such proposal and technical supplemental
specifications and such other special provisions and drawings, if any, which will be submitted by the
City, together with any advertisement, instructions to bidders, general conditions, proposal and bond,
which may be hereto attached, and any drawings, if any, which may be herein referred to, are hereby
made a part of this contract, and all of said work to be performed and completed by the contractor
and its successors and assigns shall be fully completed in a good and workmanlike manner to the
satisfaction of the City.
1.3 Unless otherwise specified in this contract, all work shall be completed in accordance with Section III
and Section IV of the City of Clearwater Contract Specifications (the Specifications). For the
purposes of this contract, the term Contractor in Section III shall include the Construction Manager.
The Specifications, as may be supplemented and changed, along with this Contract constitute the
"Contract Documents." In the event there is any conflict between this Contract and the Specifications,
this Contract shall take precedence except that the GMP PROPOSAL dated TBD is expressly
incorporated and made part of this Agreement. Further, the GMP Proposal shall be determinative
and control in the event of any conflict, discrepancy, absence of information and / or term or condition
to the contrary.
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ARTICLE 2: CONSTRUCTION MANAGER'S DUTIES AND STATUS
2.1 The Construction Manager recognizes the relationship of trust and confidence established between it
and the City by this Agreement, and agrees with the City to furnish its best skill and judgment and the
overall supervision of its executives; to furnish efficient business administration and superintendence;
and to use every effort to keep upon the project site at all times an adequate supply of workforce and
materials to secure its execution and completion in the most expeditious and economical manner.
2.2 The Construction Manager represents that it has made a thorough examination of the premises and
is thoroughly familiar with the conditions under which it is to work.
2.3 The Construction Manager agrees to perform and complete the Services in accordance with laws,
rules, and regulations of all governmental authorities and departments thereof.
2.4 The Construction Manager agrees to cooperate with the City, Architect- Engineer, or any other Design
Professional in all respects, including, but not limited to, providing necessary preconstruction
services, such as evaluation of methods, availability and costs of the various components of the
Services while under design consideration; supervising the Services and the progress thereof; the
coordination of the Services and suggesting changes in the Services; and supplying information as to
costs and availability of materials and methods of construction in order, amongst other things, to
reduce costs wherever the same may be practicably consistent with the quality of the Services
presented in the Contract Documents.
2.5 The Construction Manager agrees to the following:
a) In connection with the performance of work under this Contract, the Construction Manager
agrees not to discriminate against any employee or applicant for employment because of
race, sex, religion, color, or national origin. The aforesaid provision shall include, but not be
limited to, the following employment:
upgrading
demotion or transfer
recruitment or recruitment advertising
- lay -off or termination
- rates of pay or other forms of compensation; and
- selection for training, including apprenticeship
b) The Construction Manager agrees to post hereafter in conspicuous places, available for
employees or applicants for employment, notices to be provided by the contracting officer
setting forth the provisions of the non - discrimination clause.
c) The Construction Manager further agrees to insert the foregoing provisions in all contracts
hereunder, including contracts or agreements with labor unions and /or worker's
representatives, except sub - contractors for standard commercial supplies or raw materials.
ARTICLE 3: SCOPE OF THE SERVICES
3.1The services that the Construction Manager shall provide include, but are not limited to those
described in the following sections.
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3.2 Reporting - Written reports shall be provided with the monthly pay requests as follows:
a) Monthly Executive Summary which provides an overview of current
decisions, future developments and expected achievements, and any
including code violations found by any permitting agency.
b) A Monthly Construction Progress Report that includes a cost narrative, a
and that summarizes the work of the various subcontractors. This
information from the weekly job site meetings as applicable such as:
general conditions
long lead supplies
current deliveries
safety and labor relations programs permits
construction problems and recommendations; and
plans for the succeeding month
issues and pending
problems or delays,
scheduling narrative
report shall include
3.3 Scheduling
a) Upon award of this Contract, the Construction Manager shall submit a master project
schedule covering the planning and design approvals, construction and Owner occupancy of
the Project. This schedule will serve as the framework for the subsequent development of all
detailed schedules. The master project schedule shall be produced and updated monthly
throughout the project.
b) Within thirty (30) days after the date of the Owner's issuance of a Notice to Proceed, the
Construction Manager shall prepare and submit to the Owner two copies of a Critical Path
Method (CPM) construction schedule graphically depicting the activities contemplated to
occur as a necessary incident to performance of the work required to complete the project,
showing the sequence in which the Construction Manager proposes for each such activity to
occur and duration (dates of commencement and completion, respectively) of each activity.
c) Following development and submittal of the construction schedule the Construction Manager
shall, at the end of each calendar month during the project, or at such earlier intervals as
circumstances may require, update and /or revise the construction schedule to show the
actual progress of the work performed and the occurrences of all events which have affected
the progress of performance of work already performed or will affect the progress of the
performance of the work yet to be performed in contrast with the planned progress of
performance of such work, as depicted on the original construction schedule and all updates
and /or revisions thereto as reflected in the updated and/or revised construction schedule last
submitted prior to submittal of each such monthly update and revision. Each such update
and /or revision to the construction schedule shall be submitted to the Owner in duplicate.
d) The Construction Manager shall provide current scheduling information and provide direction
and coordination regarding milestones, beginning and finishing dates, responsibilities for
performance and the relationships of the Construction Manager's work to the work of his
subcontractors and suppliers to enable them to perform their respective tasks so that the
development of construction progresses in a smooth and efficient manner in conformance
with the overall project schedule. The schedule shall include all phases of the construction
work, material supplies, long lease procurement, approval of shop drawings, change orders in
progress, schedules for change orders, and performance testing requirements. The
Construction Manager shall advise the Owner, its representatives and the Architect- Engineer
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of their required participation in any meeting or inspection giving each at least one week
notice unless such notice is made impossible by conditions beyond his control. The
Construction Manager shall hold job -site meetings at least once each month with the
Construction Team and at least once each week with the subcontractors and the Architect -
Engineer's Field Representative, or more frequently as required by work progress, to review
progress, discuss problems and their solutions and coordinate future work with all
subcontractors.
e) Twice per month corresponding as closely as possible with progress review meetings, a "two
week" look ahead report shall be prepared and submitted to Owner and Architect / Engineer.
3.4 Design Review and Recommendations
a) The Construction Manager shall familiarize himself thoroughly with the evolving architectural,
civil, mechanical, plumbing, electrical and structural plans and specifications and shall follow
the development of design through Contract Documents. The Construction Manager shall
make recommendations with respect to the selection of systems and materials, and cost
reducing alternatives including assistance to the Architect- Engineer and Owner in
evaluating alternative comparisons versus long term cost effect. The evaluation shall speak
to the benefits of the speed of erection and early completion of the project. The
Construction Manager shall furnish pertinent information as to the availability of materials
and labor that will be required. The Construction Manager shall submit to the Owner and
Architect- Engineer such comments as may be appropriate concerning construction,
feasibility, and practicality. The Construction Manager shall bring to the Owner and the
Architect- Engineer's attention any apparent defects in the design, drawing and
specifications, or other documents. The Construction Manager shall prepare an estimate of
the construction cost at appropriate milestones during the design and shall evaluate such
estimate with the project budget. The Construction Manager shall recommend cost saving
alternatives, as appropriate, at each design milestone. At each design milestone the Owner,
Architect Engineer and Construction Manager shall conduct a value engineering review.
b) After receiving the Construction Documents for each phase of the project, the Construction
Manager shall perform a specific review thereof. Promptly after completion of the review,
the Construction Manager shall submit to the Owner, with a duplicate to the Architect-
Engineer, a written report covering suggestions or recommendations previously submitted,
additional suggestions or recommendations as the Construction Manager may deem
appropriate, and all actions taken by the Architect- Engineer with respect to same, any
comments he may deem to be appropriate with respect to separating the work into separate
contracts and /or altemative materials.
c) At completion of the Construction Manager's review of the plans and specifications, except
only as to specific matters as may be identified by appropriate comments pursuant to this
section, the Construction Manager shall warrant, without assuming any architectural or
engineering responsibility, that the plans and specifications are consistent, practical,
feasible and constructible. The Construction Manager shall warrant that the work described
in the plans and specifications for the various bidding packages is constructible within the
scheduled construction time.
d) The Construction Manager shall review the design for the purpose of identifying long lead
procurement items (i.e. machinery, equipment, materials and supplies). When each item is
identified, the Construction Manager shall notify the subcontractors, the Owner, and the
Architect- Engineer of the required procurement and schedule. Such information shall be
included in the bid documents and made a part of all affected sub - contracts. As soon as
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the Architect- Engineer has completed drawings and technical specifications and the
Construction Manager has obtained permitting approval, the Construction Manager shall
prepare invitations for bids. The Construction Manager shall keep informed of the progress
of the respective subcontractors or suppliers, manufacturing or fabricating such items and
advise Project Director, Owner and Architect- Engineer of any problems or prospective delay
in delivery.
3.5 Staffing - Key personnel assigned to City projects by the Construction Manager shall not be
removed from the project until alternate personnel acceptable to the City are approved in writing by
the City.
3.6 Soliciting Bids
a) Without assuming responsibilities of the Architect- Engineer, and unless waived in writing by
the Owner, the Construction Manager shall prepare invitations for bids, or requests for
proposal when applicable, for all procurements of long lead items, materials and services, and
for Subcontractor contracts. Such invitations for bids shall be prepared in accordance with the
following guidelines:
i) Contracts totaling $1,000 but not exceeding $10,000 may be entered into by the
Construction Manager with the firm which is qualified and submits the lowest verbal
quotation. The Construction Manager shall obtain a minimum of two (2) verbal
quotations. These quotations shall be entered on a bid tabulation sheet and a copy of
such tabulation sent to the Owner, Architect- Engineer and to each firm. The
successful quotation shall be confirmed by written contract or purchase order to the
low bid firm defining the scope and quality of work to be provided.
ii) Contracts totaling $10,000 but not exceeding $200,000 may be entered into by the
Construction Manager with the firm who is qualified and submits the lowest responsive
proposal. The Construction Manager shall request at least three (3) firms to submit
sealed written proposals based on written drawings and/or specifications. The written
proposals shall all be opened publicly at the location, date and time named by the
Construction Manager in his request for proposal. A tabulation of the results shall be
furnished to the Owner, Architect- Engineer and to each firm.
iii) Contracts totaling $200,000 but not exceeding $500,000 may be entered into by the
Construction Manager with the firm who is pre - qualified and submits the lowest
responsive proposal. The Construction Manager shall advertise these projects at least
once with the last advertisement appearing at least 21 calendar days prior to the
established bid opening date. These proposals shall be based on approved plans and
specifications. Bids shall be received and opened publicly at the location, date and
time established in the bid advertisement.
iv) Contracts totaling $500,000 or greater shall be treated the same as described under iii
above except that the advertisement shall be run for at least 30 days prior to the
established bid opening and at least 5 days prior to any scheduled pre -bid conference.
v) Individual purchases of materials or rentals or leases of equipment of up to $999.99
each may be made without bids or quotes when reasonably necessary to expedite
work on the project; however, the Construction Manager shall not divide or separate a
procurement in order to avoid the requirements set forth above.
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vi) Site utilities may be acquired at market rates from the entity(ies) providing such in the
franchise area.
b) For each separate construction contract exceeding $35,000, the Construction Manager shall,
unless waived by Owner, conduct a pre -bid conference with prospective bidders, the
Architect- Engineer and the Owner. In the event questions are raised which require an
interpretation of the bidding documents or otherwise indicate a need for clarification or
correction of the invitation, the Construction Manager shall transmit these to the Architect -
Engineer and upon receiving clarification or correction in writing shall prepare an addendum
to the bidding document, and issue same to all of the prospective bidders.
3.7 Quality Control - The Construction Manager shall develop and maintain a program, acceptable to
the Owner and Architect - Engineer that assures quality control of the construction. The Construction
Manager shall supervise the work of all subcontractors providing instruction to each when their work
does not conform to the requirements of the plans and specifications and shall continue to assert
influence and control over each subcontractor to ensure that corrections are made in a timely manner
so as to not affect the efficient progress of the work. Should disagreement occur between the
Construction Manager, the Owner or the Architect- Engineer over acceptability of work and
conformance with the requirements of the specifications and plans, the Owner shall be the final judge
of performance and acceptability.
3.8 Subcontractor Interfacing - The Construction Manager shall be the single point of interface with all
subcontractors for any work done under this Contract. The Construction Manager shall negotiate all
change orders, field orders and request for proposals, with all affected subcontractors and shall
review the costs of those proposals and advise the Owner and Architect- engineer of their validity and
reasonableness, acting in the Owner's best interest prior to requesting approval of each change
order from the Owner. Before any work is begun on any change order, a written authorization from
the Owner must be issued. When health and safety are threatened, however, the Construction
Manager shall act immediately to remove such threat to health and safety. The Construction
Manager shall also carefully review all shop drawings and then forward the same to the Architect -
Engineer for review and actions. The Architect - Engineer will transmit them back to the Construction
Manager who will then issue the shop drawings to the affected subcontractor for fabrication or
revision. The Construction Manager shall maintain a record to promote expeditious handling. The
Construction Manager shall request the Architect- Engineer to make interpretations of the drawings or
specifications requested of him by the subcontractors and shall maintain a record to promote timely
response. The Construction Manager shall advise the Owner and Architect - Engineer when timely
response is not occurring on any of the above. The Construction Manager shall collect, review and
submit to the Owner, all project closeout documentation including operation, maintenance and
training manuals.
ARTICLE 4: MAXIMUM PROJECT COST AND FEES FOR SERVICES
4.1 Guaranteed Maximum Price for Construction
a) When the Construction Documents are sufficiently complete to establish the scope of work for the
project or any portion thereof, the Construction Manager will establish and submit in writing to the
Owner for his approval a Guaranteed Maximum Price (GMP) guaranteeing the maximum pace to
the Owner, for the construction cost of the project or designated part thereof. Such Guaranteed
Maximum Price will be subject to modification for changes in the project as provided in article
4.1(e) below. Actual price paid for the work by the Owner, however, shall be the actual cost of all
work subcontracts, supply contracts, direct labor costs, direct supervision costs and direct job
costs, plus the Construction Manager's fees or the GMP, whichever is less when the work is
complete. Invoicing shall occur monthly for completed work with 5% retainage withheld until final
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completion and acceptance of all work covered in the contract documents in accordance to the
City's General Conditions.
b) At the time of submission of a Guaranteed Maximum Price, the Construction Manager will verify
the time schedule for activities and work which were adopted and used to determine the
Construction Manager's cost of work. In addition to the cost of work, a GMP will include an
agreed upon sum as the construction contingency which is included for the purpose of defraying
the expenses due to unforeseen circumstances relating to construction. The Construction
Manager will be required to furnish documentation evidencing expenditures charged to the
contingency prior to the release of funds by the Owner. If bids are received below the applicable
line items in the GMP, the surplus will be added to the contingency.
c) If bids are received above the applicable line item in the GMP, the deficiency will be taken from
the contingency; however, such occurrence shall not be cause to increase the GMP.
d) If bids are not received for a portion of the work at or below the applicable line item amount in the
GMP, the Construction Manager reserves the right to perform that portion of the work as
acknowledged by the Owner or negotiate for its performance for the specified line item lump sum
amount or less.
e) The increase or decrease in the Guaranteed Maximum Price resulting from a change in the
Project shall be determined in one or more of the following ways:
i. By mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation by the Architect Engineer and owner;
ii. By unit prices stated in the Agreement or subsequently agreed upon;
iii. If none of the methods is agreed upon, the Construction Manager, provided it has
received a signed written order by the Owner, shall promptly proceed with the work
involved. The cost of such work shall then be determined on the basis of the
reasonable expenditures and savings of those performing the work attributed to
the change. In the event a Change Order is issued under these conditions,
however, the Architect - Engineer will establish an estimated cost of the work and
the Construction Manager shall not perform any work whose cost exceeds that
estimate without prior written approval by the Owner. In such case, the
Construction Manager shall keep and present, in such form as the Owner may
prescribe, an itemized accounting together with appropriate supporting data of the
increase in the Cost of the Project. The amount of decrease in the Guaranteed
Maximum Price to be allowed by the Construction Manager to the Owner for any
deletion or change which results in a net decrease in cost will be the amount of the
actual net decrease;
iv. The Architect- Engineer will have authority to order minor changes in the Project
not involving an adjustment in the Guaranteed Maximum Price or an extension of
the Construction Completion Date and not inconsistent with the intent of the
Drawings and Specifications. Such changes shall be effected by written order.
Documentation of changes shall be determined by the Architect- Engineer..
Changes shall be approved by the Architect- Engineer
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4.2 Construction Manager's Fee - In consideration of the performance of the contract, the Owner
agrees to pay the Construction Manager as compensation for his services, fees as set forth below:
4.3 Preconstruction Phase Fee - shall be based on design costs if applicable, constructability review,
value engineering and fee determination of Guaranteed Maximum Price. The fee for this phase in the
amount of $ waived by the City /Owner shall be paid at the negotiated price upon receipt of the
Guaranteed Maximum Price.
a) Construction Phase Fee - Prior to commencement of the Construction Phase, the Owner will
direct the Construction Manager in writing to proceed into the Construction Phase. The
Construction Manager's compensation for work or service performed during the Construction
Phase shall be a fee of TBD . The Construction Phase Fee shall be invoiced and paid in TBD
months. Payments will be remitted monthly at the cost of TBD each and one final monthly
payment of TBD . The first monthly payment shall become due thirty days following the
issuance of the first Construction Authorization and the final monthly payment shall be paid only
when construction of the project is completed and occupancy of the project accepted by the
Owner. If construction is authorized only for a part of the project, the fee paid shall be
proportionate to the amount of work authorized by the Owner.
ARTICLE 5: TERMINATION AND TIME OF THE ESSENCE
5.1 If the Construction Manager is adjudged bankrupt or makes a general assignment for the benefit of
creditors, or if a receiver is appointed on account of its insolvency, or if refuses or fails, except in
cases for which an extension of time is provided, to supply enough properly skilled workmen or
proper materials for the Services, or otherwise be guilty of a substantial violation of any provision of
this Agreement as determined by the certificate of the Architect, the Owner may, without prejudice
and reserving any other right or remedy the Owner may have, after giving the Construction Manager
seven (7) days' written notice, terminate the employment of the Construction Manager and take
possession of the premises and all materials, tools, and appliances thereon and finish the Project in
whatever manner the Owner may deem expedient.
5.2 It is mutually agreed between the parties hereby that time is of the essence of this contract, and in
the event that the Substantial Completion Date is not achieved within the time stipulated herein, it is
then further agreed that the City may deduct from such sums or compensation as may be due to the
Construction Manager, the sum of $1,000.00 per day for each day that the work to be performed by
the Construction Manager remains incomplete beyond the time limit specified herein, which sum of
$ 1,000.00 per day shall only and solely represent damages which the City has sustained by reason
of the failure of the Construction Manager to complete the work within the time stipulated, it being
further agreed that the sum is not to be construed as a penalty but is only to be construed as
liquidated damages for failure of the Construction Manager to complete and perform all work within
the time period as specified in this contract.
ARTICLE 6: INDEMNIFICATION
6.1The Construction Manager and his or its successors and assigns does hereby agree to assume the
defense of any legal action which may be brought against the City as a result of the Construction
Manager's activities arising out of this contract and furthermore, in consideration of the terms,
stipulations and conditions as contained herein, agrees to hold the city free and harmless from any
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and all claims for damages, costs of suits, judgments or decrees resulting from any claims made
under this contract against the city or the contractor or the contractor's sub - contractors, agents,
servants or employees resulting from activities by the aforementioned contractor, sub - contractor,
agent servants or employees.
6.2 Nothing contained herein shall be construed as a waiver of any immunity from or limitation of liability
the City (Owner) may be entitled to under the doctrine of sovereign immunity or section 768.28,
Florida Statutes.
ARTICLE 7: TITLE TO THE PROJECT
7.1 The title of all work, completed portions of the Project and in the course of construction, and of all
materials on account of which payment has been made shall be in the Owner.
ARTICLE 8: ASSIGNMENT
8.1 This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns, except that this Agreement may not be assigned by either party
without the prior written consent of the other party. Any assignment made without such prior written
consent shall not vest rights in the assignee.
ARTICLE 9: ADDITIONAL PROVISIONS
9.1 This Agreement shall be govemed by and construed in accordance with the laws of the State of
Florida, and the venue for any dispute under this Agreement shall be an appropriate court of
competent jurisdiction in Pinellas County, Florida.
9.2 Any notice required to be given by the terms and provisions of this Agreement or by any law or
govemmental regulation, either by the Owner or Construction Manager, shall be in writing unless
otherwise required by such law or regulation and shall be deemed to have been served and given
when deposited in either Registered or Certified Mail in United States Branch Post Office, addressed
to the party hereto to whom directed, at the address specified in the Specifications,.
9.3 The language in this Agreement shall be construed according to its customary meaning within the
Florida building industry. Whenever used, the singular shall include the plural, the plural the singular,
and the use of any gender shall be applicable to all genders.
9.4 If any provision of the Contract Documents is invalid or unenforceable as against any person or party,
the remainder of the Contract Documents and the applicability of such provision to other persons or
parties shall not be affected thereby.
9.5 Nothing contained in this Agreement shall be construed to mean that the Construction Manager and
Owner are joint venturers or partners.
9.6 This Contract will be effective as of the date that Construction Manager meets all the requirements of
Fla. Stat. § 255.32 "State construction management contracting."
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IN WITNESS WHEREOF, the parties to the agreement have hereunto set their hands and seals and
have executed this Agreement, in duplicate, the day and year first above written.
CITY OF CLEARWATER
IN PINELLAS COUNTY, FLORIDA
By: A! L & L
William B. Horne II City Manager
Countersigned:
By: 't e'IC (\Cruets
George Cretekos, Mayor - Councilmember
(Contractor must indicate whether
Corporation, Partnership, company
or Individual)
(The person signing shall, in his own handwriting
sign the Principal's name, his own name and his
title; where the person is signing for a Corporation
he must, by Affidavit, show his authority to bind the
Corporation).
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Attest:
or Rosemarie Call,
(Contractor)
By: il i44/�'Ai ril
:
Y (Seal)
CERTIFICATE OF SECRETARY
I, Samuel Rosenstein, do hereby certify as a duly elected and qualified Assistant
Secretary of Honeywell International Inc., a corporation organized and existing under and
by virtue of the laws of the State of Delaware, that Buenaventura F. Prades, Account
Executive for the Building Solutions business unit of Honeywell International Inc., has
the authority to sign the City of Clearwater contract titled "Construction Management @
Risk Services for Continuing Contracts" on behalf of Honeywell International Inc.
IN WITNESS WHEREOF, I have affixed my name as Assistant Secretary and
have caused the corporate seal of this corporation to be hereunto affixed this 10th day of
June, 2013.
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Samuel Rosenstein
Assistant Secretary