Motion-Secondary: Royal Concrete Concepts Inc Plaintiff vs. School Board of Broward Cty Fl Defendant

• 
• 
• 
• 

						
                                
Preview
                                Filing # 12220002 Electronically Filed 04/07/2014 04:50:26 PM

IN THE CIRCUIT COURT OF THE
17" JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. CACE 10-31654 (18)
ROYAL CONCRETE CONCEPTS, INC.,
Plaintiff,
v.
THE SCHOOL BOARD OF BROWARD COUNTY,
FLORIDA, JAMES A. CUMMINGS, INC, &
TRAVELERS CASUALTY AND SURETY COMPANY
OF AMERICA,
Defendants.
JAMES A. CUMMINGS, INC.,
Counter-Plaintiff,
v.
ROYAL CONCRETE CONCEPTS, INC., THE
SCHOOL BOARD OF BROWARD COUNTY,
FLORIDA & STATE OF FLORIDA DEPARTMENT
OF REVENUE,

Counter-Defendants,
/

JAMES A, CUMMINGS, INC.’S MEMORANDUM IN OPPOSITION TO SCHOOL BOARD’S
MOTION TO DISMISS COUNT II FOR BREACH OF CONTRACT IN CUMMINGS’
AMENDED COUNTERCLAIM

Counter-Plaintiff JAMES A. CUMMINGS, INC. (“Cummings”), by and through undersigned
counsel, hereby files this Memorandum in Opposition to Counter-Defendant THE SCHOOL BOARD OF
BROWARD COUNTY, FLORIDA’S (“School Board”) Motion to Dismiss Count II for Breach of
Contract in Cummings’ Amended Counterclaim and states:

Ll. This is a non-payment dispute on construction projects in Broward County, Florida

between the School Board (owner), Cummings (general contractor) and Royal Concrete Concepts, Inc.

(“Royal”) (subcontractor).

KATZ, RON, SQUITERO, FAUST, FRIEDBERG. ENGLISH & ALLEN, PA.

2699 S. BAVSHORE DRIVE. SEVENTH FLOOR. MIAMI. FLORIDA 33133-5408 * 305-856-2444 + 405-285-9297 FAXCASE NO. CACE 10-31654 (18)

2. Among other claims in this lawsuit, Cummings has sued the School Board, in Count Il of
its Amended Counterclaim, for Breach of Contract for: (1) improperly withholding amounts owed to
Cummings based upon its separate contractual dispute with Royal on the Direct Purchase Orders
(“DPOs”) to purchase concrete modular units (“Units”); (2) failing to pay Cummings overhead and profit
on projects which were never built under the Total Program Management Agreement between the School
Board and Cummings (“TPM Agreement”); (3) failing to execute a Change Order and pay the amounts
owed for additional work performed by Cummings pursuant to a Construction Change Directive duly
executed by the School Board and Cummings; (4) failing to make payments for preconstruction work for
projects which were never built at Coconut Creek Elementary School and Flamingo Elementary School
pursuant to the TPM Agreement; and (5) failing to make the final retainage payment on the Harbordale
Elementary School project pursuant to the TPM Agreement.

3. The School Board has filed a Motion to Dismiss alleging that the exhibits attached to the
Amended Counterclaim refute or contradict these claims and/or that such claims are barred by the
doctrine of sovereign immunity (“Motion”).

4. On the contrary, Cummings is seeking payments for work that it performed on the subject
projects pursuant to the TPM Agreement and the School Board is attempting to escape responsibility
by making incorrect and disingenuous interpretations of the subject contract and applicable law. As
specific responses to the School Board’s assertions in the Motion, Cummings states as follows:

5. First, as alleged in paragraphs 13-23 of the Amended Counterclaim, there is no provision
in the TPM Agreement (attached as Exhibit 1 to the Amended Counterclaim) that permits the School
Board to withhold monies otherwise due to Cummings based an alleged sales tax discrepancy, especially

when the School Board paid no tax on these Units to begin with, This includes Section 01295 of the TPM

2
KATZ, BARRON, SQUITERO, FAUST, FRIEDBERG, ENGLISH & ALLEN, P.A.
2699 S. BAVSHORE DRIVE. SEVENTH FLOOR. MIAMI. FLORIDA 33133-5408 * 305-856-2444 ¢ 305-285-9227 FAXCASE NO. CACE 10-31654 (18)
Agreement, the only provision therein that expressly addresses these direct purchase transactions.’ A
copy of Section 01295 of the TPM Agreement is attached hereto as Exhibit A.

6. Second, as alleged in paragraphs 24-28 of the Amended Counterclaim, Sections 2.07 and
Section 1.130 of the TPM Agreement provide that Cummings is entitled to be paid overhead and profit on
cancelled projects, i.e., projects referenced in the TPM Agreement which were designed, priced and bid
but not built. Specifically 2.07 calculates overhead and profit not only for payments related to the
construction phase but, also, the pre-design, design and the bidding/award phases. Moreover, Section
1.130 defines Work (from which overhead and profit is to be calculated pursuant to Section 2.07) as not
just construction but other services. Copies of Section 1.130 and 2.07 are attached hereto, for reference,
as Exhibit B and Exhibit C, respectively. Thus, contrary to the Schoo! Board’s allegation, such
overhead and profit is indeed compensation for work performed.

fe Third, as alleged in paragraphs 29-34 of the Amended Counterclaim, Cummings’ is
entitled to be paid for changes in work related to the sanitary sewer on the Harbordale project pursuant to
Construction Change Directive No. 2 (“CCD”) (attached as Exhibit 7 to the Amended Counterclaim) as
well as Article 27 of the TPM Agreement. The School Board’s argument that the CCD needs to be
signed by the project consultant is incorrect and disingenuous. The School Board and Cummings agreed,
in Article 27 of the TPM Agreement, that changes in the work are authorized by a Construction Change
Directive signed by the Owner, i.e., there is no mention of a signature of a project consultant. Copies of
the CCD and Article 27 are attached hereto as Exhibit D and Exhibit E, respectively.

8. Fourth, as to the amounts for preconstruction work on the Coconut Creek and Flamingo
projects, those claims are supported by paragraphs 35-36 of the Amended Complaint, together with

Exhibits 11 and 12 referenced therein, as well as the TPM Agreement and applicable law. Exhibits 11

' Moreover, the Court has already determined in this case (in response to the School Board’s
motion to dismiss) that Cummings is entitled to a declaration of its rights under the TPM Agreement on
this ground.

3
7 KATZ, BARRON, SQUITERO, FAUST, FRIEDBERG, ENGLISH & ALLEN, P.A.
2699 S. BAVSHORE DRIVE. SEVENTH FLOOR, MIAMI. FLORIDA 33133-5408 * 305-856-2444 + 305-285-9227 FAXCASE NO. CACE 10-31654 (18)
and 12 of the Amended Complaint are attached hereto as Exhibit F and Exhibit G respectively. As to
the items referenced therein, Cummings is entitled to be paid for them because of the following reasons:

a. As to pre-design, design, and bidding/award services, they are all authorized under
the TPM Agreement. See Section 2.07 of the TPM Agreement (Exhibit C).

b. As to permits, pursuant to Section 2.11 of the TPM Agreement, they were required
before the School Board would issue a Notice to Proceed to begin construction. See
Section 2.11 of the TPM Agreement attached hereto as Exhibit H. Since permits
were required to obtain approval to proceed with construction, they are reimbursable
even if construction does not ultimately proceed. Specifically, such costs were
properly provided during the pre-design and design phase pursuant to Section 2.07 of
the TPM Agreement. See Section 2.07 of the TPM Agreement.

c. As to surveys, a reasonable inference of Cummings seeking reimbursement for them,
is that the School Board did not provide them, thereby violating its implied
contractual obligation to not hinder and delay the performance of Cummings’ pre-
design and design scope of work, Sovereign immunity does not prohibit claims
based upon express contractual provisions, which the School Board agrees with, but,
also, implied obligations under an express contract which the School Board fails to
mention. Champagne-Webber, Inc. v. City of Ft. Lauderdale, 519 So. 2d 696 (Fla.
4th DCA 1989), approved in County of Brevard v. Miorelli Engineering, Inc., 703
So. 2d 1049 (Fla. 1997). See Champagne-Webber, Inc. v. City of Ft. Lauderdale, 519
So, 2d 696 (Fla. 4th DCA 1989), approved in County of Brevard v. Miorelli
Engineering, Inc., 703 So.2d 1049 (Fla. 1997). Clearly, no substantive design work,
which was authorized by the School Board, cannot commence without surveys.

9. Finally, as to the retainage on the Harbordale project, Cummings has alleged in paragraph
37 of the Amended Counterclaim that such amount has not been paid by the School Board because of its
4

Katz, BARRON, SQUITERO, FAUST. FRIEDBERG, ENGLISH & ALLEN, P.A.
2699 S. BAVSHORE DRIVE. SEVENTH FLOOR, MIAMI. FLORIDA 33133-5408 * 305-856-2444 + 305-285-9227 FAXCASE NO, CACE 10-31654 (18)
incorrect position that the incorrect sales tax was calculated by Royal on the Unit. Again, as set forth
above, such argument fails because the TPM Agreement does not permit the School Board to withhold
these amounts from Cummings, especially when the School Board did not pay any tax to begin with on
the purchase of the Units. See Section 01295 of the TPM Agreement attached hereto as Exhibit A.
CONCLUSION

Cummings has brought its claim pursuant to express provisions of the TPM Agreement or
implied duties therein. This is more than sufficient to state a cause of action for Breach of Contract.
Based upon the foregoing arguments, Cummings requests that the Court deny the School Board’s motion

to dismiss and order any other and further relief that the Court deems just and proper.

5
KATZ, BARRON, SQUITERO, FAUST, FRIEDBERG, ENGLISH & ALLEN, P.A.
2699 S. BAVSHORE DRIVE. SEVENTH FLOOR. MIAMI. FLORIDA 33133-5408 * 305-856-2444 + 305-285-9227 FAXCASE NO, CACE 10-31654 (18)

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a copy of the foregoing has been served on the 7" day of April,

2014 via E-Mail to:

 

Charles B, Hernicz, Esq.,
chernicz@herniczlegal.com
LRDolnick@herniczlegal.com
Hernicz Legal Services, P.L.
15854 Bent Creek Road
Wellington, FL 33414

F. Malcolm Cunningham, Esgq.,
fmeunni@cunninghamlaw.com
Amy Fischer, Esq.
lwilson@cunninghamlaw.com
The Cunningham Law Firm, P.A,
400 Australian Ave. South, #700
West Palm Beach, FL 33401

 

Thomas C. Cooney, Esq.,
Thomas.cooney@browardschools.com
Office of the School Board Attorney
600 S.E. 3" Avenue, Floor 11

Ft. Lauderdale, FL 33301

 

Albert J. Bowden, IIT

Al.bowden@myfloridalegal.com

Lila.neal@myfloridalegal.com
Office of The Attorney General

The Capitol, Suite PL-01
Tallahassee, Florida 32399-1050

 

 

 

h:Mib\docs\03280128\lit\nS6140.doc

KATZ BARRON SQUITERO FAUST

Counsel for James A. Cummings, Inc. and Travelers
Casualty and Surety Company of America

2699 South Bayshore Drive, Seventh Floor

Miami, Florida 33133-5408

Telephone: 305-856-2444

Facsimile; 305-285-9237

   
    

By:

Florida Bar No. /81145
mj@katzbarron-éom
pag@katzbarron.com

Miaefile@katzbarron.com

6

KATZ, BARRON, SQUITERO, FAUST, FRIEDBERG, ENGLISH & ALLEN, P.A

 

"2699 S. BAVSHORE DRIVE. SEVENTH FLOOR, MIAMI, FLORIDA 33133-5408 + 305-856-2444 + 305-285-9227 FAX‘The Sohool Board of Broward County, Florida
Facilities and Construction Management Divialon

SECTION 01295
DIRECT OWNER PURCHASING PROGRAM

. PART 1 GENERAL

1.01 SECTION INCLUDES

A. Procedures for administration of the Direct Owner Purchasing Program.

B, The Owner shall imelude this project in {ts Direct Owner Purchasing Program
(DOPP) and the Contractor agrees to administer according to the following
terms, The Contractor shall imelude the following terms in all of Its contracts

, Wherein the cost of materials and equipment exceeds Two Hundred Thousand
Dollars ($200,000).

1. The Subcontractor has included Florida State Sales and other applicable
taxes in his bid for material, supplies and equipment. The Qwner, being
exempt from sales tax reserves the right to make direct purchases of
various construction equipment, materials or supplles Included in the

Subcontractor's bid and/or contract, substantially in accordance with
the form of Purchase Order attached herewith.

Any equipment, materials or supplies directly purchased by the Owner
that are Jrighiced in the Subcontractors contract ahall be referred to as
Owner-Purchased Materials and the responsibilities of both OQwmer and
Subcontractor relating to.sach Owner Purchased Materials shall be
governed by the terms and conditions of these procedures.

»

Material suppliers shall be selected by the Subcontractor awarded the
Subcontract,

‘The Subcontractor has included the price for all construction materials
plus applicable taxes in his bid. Owner purchasing of constriction
materials, if selected, will be administered on a deductive Change Order
basis. The Subcontract amount shall be reduced by the met fon-
discounted amount of these Purchase Orders, plus all sales tax.

‘8, Subcontractor shall provide Contractor with a list of all intended.
suppliers, vendors, and materialmen for - consideration as Owner-
Purchased Materials, This ist shall be submitted at the same time ag
the preliminary schedule of values and the Project/CPM schedule. The

Subcontractor shall submit a description of the materials tobe supplied, -
estimated quantities and wit prices.

4

Upon. request from Contractor, Subcontractor shall prepare a standard
Purchase Order Requisition Form in a form acceptable to the Owner and
the Contractor, to specifically identify the materials which Owner has,

Direct Owner Purchasing Program i Bectlon 01298
May 19, 2008

Page 1 of 8The School Board of Broward County, Florida
Facilities and Construction Management Division

o

Direct Owner Purchasing Program

May 19, 2008

Seon

at its sole option, elected to purchase directly, The Purchase Order
Requisition Farm shall include:

. The name, address, telephone number and contact person for the

material supplier

. Manufacturer or brand, model or specification number of the item

Quantity needed as estimated by Subcontractor

. The price quoted by the supplier for the materials identified therein

Any sales tax associated with such quote

. Delivery dates as established by Subcontractor

Subcontractor shall include reference to any terms and conditions which
have been negotiated with the vendor; le. payment terms, warranties,

‘retainage, etc. Such Purchase Order Requisition Form is to be

submitted to Contractor-no less than 15 days prior to the date required
for. ordering such Ovner-Purchased Materials, in order to provide
sufficient time for Owner review and approval and to assure that such
Directly Purchased Materials may be directly purchased by Owner and
delivered to the Project site so as to avold any delay to the Project.

After receipt of the Purchase Order Requisition Form, Owner shall
prepare its Purchase Orders for equipmnent, materials or supples.
Pursuant. to the Purchase Order, the vendor will provide the required
quantities of material at the price established in the vendor's quote to
the Subcontractor léss any gales tax associated with such price,
Promptly upon receipt of each Purchase Order, Subcontractor shall
verify the terms and conditions of the Purchase Order prior to its
issuance to supplier and in a manner to assure proper and timely
delivery of items. Owner's Purchasing Director shall be the approving
authority for the Owner on Purchase Orders In conjunction with Owner-
Purchased materials, The Purchase Order shall require that the supplier
provide the required shipping and handling insurance. The Purchase
Order shal! also requitrethe delivery of the Owner-Purchased Materials
on the delivery date(s) provided by the Subcontractor in the Purchase
order Requisition Form and shall indicate 7.0.5, job site, The Owner's
Purchase Orders shall contain, or be accompanied by, the Owner's
exemption certificate and must include the Owmer's name, address, and
exemption number with issue'and expiration date shown.

. In conjunction with the execution of the Purchase Orders by the

supplier, the Subcontractor shall execute and deliver to Contractor one
or more deductive Change Orders, referencing the ful) value of all
Owner-Purchased Materials plus all sales tax savings associated with
such materials in Subcontractor’s bid te Contractor,

All shop drawings and submittals shall be made by the Subcoritractor in
accordance with, the Contract Documents.

Section 01295

Page 2 of B&

 

i.‘The Schoo! Board of Broward County, Morida
‘Facilities and Construction Management Division

sacow >

om

Dircet Owner Purchasing Program

May 19, 2003

at its sole option, elected to plarchase directly. The Purchase Order

Requisition Form shali include:

. The name, address, telephone number and contact person for the |

material supplier
Manufacturer or brand, model or specification mumber of the item

. Quantity needed as estimated by Subcontractor
. The price quoted by the supplier for the materials identified therein

Any sales tax associated with such quote

. Delivery dates as established by Subcontractor

Subcontractor shall include reference to any terms and conditions which
have been negotiated with the vendor; ie, payment terms, warranties,

‘retainage, é@tc, Such Purchase Ordér Requisition Form is fo be

submitted to Contractor no less than 18 days prior to the date required
for ordering such Owner-Purchased Materials, in order to provide
sufficient time for Owner review and approval and'to assure that such
Directly Purchased Materials may be directly purchased by Owner and
delivered to the Project site so ag to avoid any delay to the Project.

. After receipt of the Purchase Order Requisition Form, Owner shall

Prepare its Purchase Orders for equipment, materials or supplies.
Pursuant-to the Purchase Order, the vendor will provide the required
quantities of material at the price established in the vendor's quote to

-the Subcontractor Jéss any sales tax associated with such price,

Promptly upon receipt of each Purchase Order, Subcontractor shall
verify the temms and conditions of the Purchase Order prior to its
issuance. to supplier and in a manmer to assure proper and timely
delivery of items. Owner's Purchasing Director shall be the approving
authority for the Owner on Purchase Orders in conjunction with Owner-
Purchased materials. The Purchase Order shal] require that the supplier
provide the required shipping and handling insurance. The Purchase
Order shall also requirethe delivery of the Owner-Parchased Materials
on the delivery date(s) provided by the Subcontractor in the Purchase
order Requisition Form and shal) indicate F.O.B. job site. The Owner's
Purchase Orders shall contain, or be accompanied by, the Owner's
exemption certificate and must include the Owner's name, address, and
exemption number with issue and expiration date shown.

. In conjunction with the execution of the Purchase Orders by the

supplier, the Subcontractor shall execute and deliver to Contractor one
or more deductive Change Orders, referencing the full value of all
Owner-Purchased Materials plus all sales tax savings associated with
such materials in Subcontractor's bid to Contractor, :

. All shop drawings and submittals shall be made by the Subcoritractor in

accordance with the Contract Documents,

. Sectlon 01205

Page 2 of 5

 

 

i‘The Schoo! Board of Broward County, Florida
, Facilities and Construction Management Division

8

Subcontractor shall be fully responsible for all matters relating to the :

receipt of materials furnished by Owner in accordance with these

. procedures, including but not limited to, verifyirg correct quantities,

verifying documentation or orders in a timely manner, coordinating
purchases, providing ahd obtaining all: warranties and guarantees
required by the Contract Documents, inspection and acceptance of the
goods at the time of delivery, and loss or damage to equipment and
materials following acceptance of items by the Owner due to the
negligence cf the Subcontractor. The Subcontractor shall coordinate
delivery schedules, sequence of delivery, loading orientation, and other
arrangements normally required by the Subcontractor for the particular
materiale furnished, ‘The Subcontractor shall provide all services
required for the unloading, handling and storage of materials through
installation. The Subcontractor agrees to indemnify and hold harmless
the Owner from any and all claims of whatever mature resulting from

nonpayment of goods to suppliers arising from the actions or directions
of Subcontractor

As Owner-Purchased Materials are delivered to the job site, the
Subcontractor and the Contractor as Owner's Representative, shall
visually inspect all shipments for the suppliers, and approve, the
vendor's invoice * for materials delivered, Thé
Subcontractor shall assure that each delivery is accompanied by
documentation adequate to identify the Purchase Order against which
the purchase ja made. This documentation may consist of a delivery
ticket and an invoice from the supplier confirming the Purchase Order,
together with such additional information as the Owner or Contractor
may require. - The Subcontractor will verify, in writing, the accuracy of
the delivery ticket. The Subcontractor will then forward the invoice to
the Contractor for his forwarding to the Owner. The Owner will process
and pay directly to the vendor in the manner as all other Owner Entity
invoices are processed, The Owner shall have the right to assign Owner

personnel to verify and audit the ‘accuracy of all Direct Purchase
documents.

L0.The Subcontractor shall insure that Owner-Purchased Materials

Direct Owner Purchasing Program

May 18, 2003

conform to the Specifications and determine prior to incorporation into
the Work if such materials are patently defective, and whether such
materlals are identical to the materials ordered and match the
description on the bill of lading. If the Subcontractor discovers defects
or non conformities in the Owner-Purchased Material, upon such visual
inspection, the Subcontractor shall not utilize such, nor-conforming or
defective materials in the Work and instead shall promptly notify the
Vendor of the defective or non conforming condition in order to pursue
repair or replacement of thoge materials without any undue delay or
interruption to the Project. Additionally, the Subcontractor shall notily
the Owner through the Construction Manager of such occurrence. If the
Subcontractor fails to perform such Inspection, and otherwise
incorporates Owner-Purchased Materials, the coridition of which it either
knew about or should have kmown about by performance of an

Scctlon 01295

Page 6 of B

MiThe School Board of Broward County, Florida *
Facilities and Construction Management Division

Inspection, Subcontractor shall promptly take action to remedy the
defect or non conformity so as not to delay the Work.

11.The Subcontractor shall maintain records of all Owner-Purchased
Materlals it incorporates into the Work from the stock of Owner- .
Purchased Materlals in {ts possession, The Subcontractor shall account
monthly to’ the Owner, through the Contractor, for any Owner-
Purchased Materials delivered Into the Subcontractor's, possession,

including portions of’ all such materials which have been Incorporated
inte the Work. .

12.The Subcontractor shall be responsible for obtaining and managing all
warranties and guarantees for all materials and products as required by
the Contract Documents All repairs, maintenance or damage repair calls
shall be forwarded to the Subcontractor for resolution with the
appropriate supplier or Vendor.

13.Notwithstanding the transfer of Owner Purchased Materials by the
Owner to the Subcontractor's possession, the Owner shall retain title to
any and all Owner Purchased Materials.

14, The transfer of the possession of Owner Purchased Materials irom the
Owner to the Subcontractor shall coristitute a ballment for mutual
benefit of the Owner and the Subcontractor. The Owner shall be
considered the bailor and the Subcontractor the bailee of the Owner
Purchased Materials, Owner Purchased Materials shall be considered

returned to the Owner for purposes of its bailment at such time as they

are incorporated into the Project or cansumed in the process of

completing the Project. Ballee shall have the duty to safeguard, store
and protect all Owner Purchased Materials.

15,The Owner shall purchase and maintain insurance pursuant to the
requirements set forth in the Owner and Construction Manager
Agreement which shall be sufficient to protect against any loss or
damage to Owner Purchased equipment, materials or supplies, Such
insurance shall cover the full value of any Owner Purchased Materials

not yet incorporated into the Project from the time a Owner first takes
title. '

16.The Owner shall in no way be liable for interruption or delay in the
Project, for any defects or any other problems with the Project, or for any

extra or cost resulting from delay in the delivery of, or defects in, Owner
Purchased Materials.

17,0n a monthly basis, Subcontractor shall be required to review imvolces
submitted by all suppliers of Owner Purchased Materials delivered to the
Project stte during that raonth and either concur or object to the Owner's
tssuance of payment to the suppliers, based upon Subcontractor's

Direst Ownex Purchasing Program Section 01295
May 29, 2003 .

Page 4 of 5

dhThe School Board of Broward County, Florida
Facilities and Constrotion Management Division

records of materials delivered

to the eite and any defects in such
materials. : ;

181n order to arrange for the prompt payment to the supplier, the

subcontractor shall provide to the Owner, through the Construction
Manager, a list indicating the acceptance of the goods or materials in
aqeordance with the established rnonthly Payment Request Schedule,
The list shall include a copy of the applicable Purchase Orders, invoices,

and delivery receipts of data provided. Checks will be released, delivered"

and remitted directly to the suppliers: The Subcontractor agrees to

assist the Owner to immediately obtain partial or final release of lien
waivers as appropriate,

19,At the end of the Project, any refund for surplus materials retumed to

suppliers plus applicable sales tax savings amount shall be created with
an additive Change Order to the Subcontractor's agreement with the
Construction Manager. Salvage materials shal) be the property of the

Owner and stored or removed from the site by the Subcontractor at the
Owner's discretion, *

20.The Construction Manager has obtained and submitted to the Owner a

Technical Assistance Advisement issued by the State of Florida
Department of Revenue referencing procedures to be followed to provide
for tax exempt purchases, ard attached as part of this Exhibit to this
Addendum, Owner hereby agrees to follow those procedures in
coopération with the Construction Manager, and indemnifies

Construction Manager from liability if the Department of Revenue

determines that any purchases treated as tax exempt by the parties
failed to meet the eriteria for exemption,

PART 2 PRODUCTS

## Not Used ##

PART 3 EXECUTION

AH Not Used #4

Divect Owner Purchasing Program

May 19, 2003

END OF SECTION

Section 01295

Page 5 of &

ViSchool Board of Broward County, Florida

 

 

 

 

 

 

 

 

   

 

 

 

 

 

 

 

     

 

        

 

 

 

 

 

 

 

 

 

 

 

 

ORDER FORM
Direct Purchase Pregram
[BBES Contact intor
Retergnce Purchase Order’ Oae
lcontac: cs Reg :
Name Prone # Kax 9 nel
Coding psa :
7 Fund Fone Obl PH/S0, Tocn” TU Activity,
Vendor Info: Project Into:
Req Oelivery Date
Address School / Dept Name
Address ling 2 Project Name
iCity, Slale, Zip SSBO Project: #
Ship tor
Federal 10 (ran vendors ent (hum be BUOC slio)
Phone .
Fax
tems ordered: Ship via Terns + |Special Notes! FOB Deslinaiion
ITEM MATERIAL ORSCAIPTION —_—" oyantir UNIT PRICE « TOTAL.
nid PR Mas Ge Te a ora $6.00)
. $0.00]
7 $0.00)
$0,00)
+ $0,00)
$0.00!
$0.00
$0,00
$0.00
$0.00
L $0.00
Tota! Purchase Requisition $0.00
TEE Minorlly Vendor
Requestor Info:
Person Requesting Qider Phone
Company Ext

   

 

 

 

 
       

 

 

 

 

 

 

Approval;
ee alta atte . BY ; :
(Company/Sup Naina) Tine daie
oS HAS Ae SEA Agee by, s . auras
{Ganeial ConiraciooM/TPM name) Fie dais
. Or ee
School Board ol Broward Gounty Froeléa rojast Menagar “dale
BY:
Schoo! Board of Stavretd County Florida Directors St Project Manager date
Document 012 ORDER FORM Direct Owner Purchasé Program

fiSCHOOL BOARD OF BROWARD COUNTY, FLORIDA
DIRECT OWNER PURCHASE PROGRAM
VENDOR REQUEST FORM.

 

CONSTRUCTION MANAGER:
ADDRESS:
TELEPHONE/EAX;

 

 

 

DATE:

 

TO. Pam Norwood FROM: CONSTRUCTION.
COMP. : School Board of Broward NAMB:

   
 

ADDI zt ADDRESS:

PR! i CO.

PROVECT q

‘We are sending you attached 7

via fax the following items: ‘These are tratigmitted as checked below:

As Requested
For Your Use

For Review & Comment
For Execution
For Your ion

 

COPIERS | DATE NUMBER. DES (ON,

   

 

 

COMMENTS:

SIGNED BY ; .

CONSTRUCTION MANAGER: stelle DATE: Poe
Daoumeat 012950 Vendor Request Form Ditect Owner Purchas# Program

JSCHOOL BOARD OF BROWARD COUNTY; FLORIDA
DIRECT OWNER PURCHASE PROGRAM,
INVOICE SUMMARY
VENDOR: :
CONTACT PERSON:
ADDRESS:
TELBPHONE/PAX:

 

 

 

 

LETTER AUTHORIZING PAYMENT

FACILITY NAME: .

PROJECT NAME; oe ci ;
PROJECT NUMBER:

MONTH ENDING:

 

 

 

Schoo! Board of Broward County PO Ht

Purchase Order Aroount:
Previous Order Paid:
Amount this Perlod:
Balance to Fivisl:

 

Sales lax savings this period:
Total sales tax Savings accrued to date on this purchase order:

 

Total:

All material for the abave invoices has been delivered la, In good condition, and is for use at,

Vendor Approved for Payment:

 

 

 

Date:
Const. Manager/TPM Approved for Payment: Date: a
Project Manager Approved for Payment; Date:

 

Docvinent 0129S¢ Invoice Summary Dsreet Owner Purchase Program,liquidated damages for each Phase. Occupancy may not be the sole factor in determining whether substantial
completion has been achleved,

12s Subgonsultant A pécson or organization of properly registered professional architects, engineers or other
design professionals who have entered into an agreement with the Total Program Manager to farnish
professional services to the project and/or program,

“14.26 Superintendent or Tolal Progtam Manager's Prolact Manager - The executive representative for the Total
Program Manager present on the project at all Umes during progress, authorized to receive and fulfill
instructions from the Owner, if applioable, and capable of auperintending the work efGviently as designated,

11.27 i g

Superintendent Of Schools « The duly appointed executive officer of the Owner authorized to act by and
ibrough the School Board of Broward County,

141,28 Surety - The firm, comporation, or individual whish is bound by the Cowtract Bond with and for the Total
Program Manager, and which engages to be responsible for the Total Program Manager's acceptable
performance of the work and for hia payment of all debts pertaining thereto.

Wg Building Code Ingnactor (RCD: Employess of The Schoo! Board of Broward County, Florida, and others
designated by the Facilities and Construction Management Department who aré certified as a BCL py the Florida
Building Commission and/or the Florida Department of Rducation (DOB). BCI's may provide plan review,
construction inspection for code compliance and report nox-comupliant work ta the Froject Manager, Any
references to “UBC!” within any documents shall moan BCL.

L130 Program (Work) - The totality of the obligations, incinding constuction and other services, amposed on the
Total Progra Managerby the Agreement and Cantract Documents, whether completed or partially completed,
and including all labor, materials, equipment, and services provided or to be provided by the Total Program.

Manager to i511 the Total Program ae ‘sOblgations, The Work may constitute the whole or a part ofthe
Frojeot(s) and/or Program,

M3 Written Notice - Shall be deemed to have been duly served if delivered in pergon to the individual of to a
member of the firm or to au officer of the cosporation for whom it is intended, if delivered at or sont by
sogistered mail or other traccabls delivery serving to the last business address knowa to him who gives notice,
Electronic, FAX or other telephonic transmission shall not bs considered as writen notice.

13, Chief Building Official. Jaspections and Code Compliance: ("CBO") An employee of The School
Board of Broward County, Florida, who has the responsibility for oversight and management of
the Inspection and Code Compliance Section, and has the authority and responsibility for issuing

Building Permits.
ARTICLE 2, COORDINATION AND CORRELATION OF DRAWINGS AND SPECYBICATIONS,
Intentionally loft blank.

ARTICLE3, INTENT AND INTERPRETATION,

Intontionally left blank, See Artiotes 2.03 und 3.11 of the Standard Agreement,

ARTICLEd OWNERSHIP OF THE CONTRACT DOCUMENTS WHICH MAKE UP THE CONTRACT

4.0) + Subject 1o.nny rights the Total Program Mariager may have, the Contract Documents and each of them, as well
ag any other documents, intellectial property, software, computer-assisted material or disks relating to or

rogarding the Work, shall be and semain the property of the Owner. Thus shall be the case even if prepared,
created or proyided by the Total Progratn Manages, subconanitants, Subcontractor or others,

General Conditions of the TPM Agreement 3
Qetober 16, 2007

 
 
 

EXHIBIT

     

i

tn 000. Memarandum2.05 Approval of Documents: In order to expedite the design process documents for
the proposed building units should be submitted to the SBBC Design Services Department at the
catliest time possible for design and site location review and approval, Complete Phase IIL 100%
Construction Documents for each location must be submitted to the Building Department for
rveview and issuance of a building pexmit,

SBBC's approval of or comments on any of the doewunents submitted to SBBC by Total
Program Manager shall not be deemed the approval of or by an other governmental euthority
having jurisdiction over the Program and Total Program Manager acknowledges that the
aforesaid authorities may require modifications of any of the documents submitted by Total
Program Manager, Such modifications shall be made at no cost to SEBC,

The Total Program Manager shall, with the SBBC's assistance, file the required
documents for approval by governmental enthorities having jurisdiction over the Program
Gngluding Broward County and municipalities and their constituent departments, the South
Plorida Water Management District, and other state, local or'federal agency with jurisdictional
authority over some aspect of the Program) and obtain certifications of "pemit approval" by
reviewing authorities prior to the commencement of construction and early enough ta ensure that
the program is not delayed by permit processing by Broward County, a municipality or other
jurisdictional agency. The Tota) Program Manager shall not be liable for delays in obtaining
permits that ars not directly attributable to the Total Program Manager. The Total Pro gram,
Manager shall provide the original documents or reproducible copies as may-be required for
submittal to any and all governmental authorities. The Total Program Manager shall attend and
provide representation at all review meetings, workshops, hearings and Commission/Counail
meetings conceming the Program as conducted by other jurisdictional ageacies. Total Pro grand
Manager shal] assure the SBBC thet all mandatory requiremeats are complete prior to bidding,
included, byt not limited to, those thal may have a financial impact on the Program,

2.06 S§BBC Responsibilities, The SBBC shall furnish a legel description, as-built
site.drawings and a certified land survey of the site, When possible, the SBBC shall supply the
certified land survey in hardcopy and electronic media formats, The certified land survey shall
provide boundary dimensions, locations of existing structures and/or tees, the grade and line of
street, pavement and adjoining properties, the rights, restrictions, easements, boundaries,
topographic data and information relative to sewer, water, gas and electrical. services. SBBC
shall fumish a Construction Budget which is the portion of the Project Budget allocated for the
construction cost of a project in the program,

The SBBC will assign a team consisting of project management staff and professional
consultants that will serve in the capacity of the District's Prograrn Manager to provide oversight
of the program, logistical support, existing site information, interface with other District
depariments, and facilitate the TPM activities,

- 2.07 Payment For Basic Service and Construction. Payruents for Basia Services
may be requested monthly in proportion to services performed during each Phase of the Work
and provision of all required insurance policies is a condition precedent to becoming due any

Total Program Manegemant Agreement 4
Qotober 16, 2007

   

EXHIBIT

1 Cc

tn N00 Masnsr sdsuch payments to the Total Program Manager. Said payments shall, i in the aggregate, not exceed
the total Basic Compensation indicated below for each Phase.

Preedesign $_302,208
Design $1,988,780"

Bidding and Award 3__ 50124"
Construction Phase Fee $2,624.473*

‘Warranty $__29,040*
Overhead 8.
Profit $1,986,894
General Conditions $2,345,800%*
Total Fee $10,100,000
Fee for Change-Orders’ 11% (Total Program Manager’s Qvarhesd/Profit)
{Applicable to Cost of Work in Article 26 of the General

* Breakout Fees - For application in the event of Reuse of the Design Documents and related
services aa per Article 2.13 of this Agreement,

Fees for professional Architectural/Zngineering Services included in Pre-Design, Design, -
Bidding and Award above S____WA

Pees for professional Acchitectural/Engineering Services included in Construction and
Warranty Phase Fees above 4, WA

In the event of a reuse the terms and conditions in the SBBC Standard Professional Services
Agreement for Architectnval/Engineering Services as amended from time to time and in.
effect at the time of contract will govern,

** General Conditions include items of Labor, Matetiala, and Services set forth in General
Conditions Article 25.02.01(), excluding the cost of Builder's Risk Insurance,

Pre-Design and Design Phase - In the case where pre-lesign and design fee are agreed
upon and the Total Program Manager's GMP is not accepted by the SBBC and the Agreement is
terminated, the Total Prograra Manager shall be entitled to ceceive only that portion of the pre-
design and design fee representing all Work performed to date relating to the project.. The Total
Program Manager may request payment for that part of the Contract Price allocable to Contract
requirements properly provided during the pre-design and design phase

The overhead and profit-and general conditions expenses shall be paid proportionally to
the ratio of the cost of the Work in.place,

During the Pre-Design, Design, anil Bidding and Award Phases the Total Program
Manager shall provide a Schedule of Values indicating the progress payment schedule and
maintain payroll records for any and all staff assigned to the Work including a record of hours

Tolal Program Management Agreement 5
October 16, 2007

Viaworked indicating the date and specific activities performed, Such iaformation shal] be certified
and inchided in a monthly report submitted with the Total Program Manager's invoice.

/ The Bidding and “Award Phase fee shall be payable upon presentation of the Guaranteed
Maximum Price (GMP) to SBBC by the Total Program Manager.

Construction Phase Fee and Payments - The Total Program Manager may request
payment proportional to that of the contract price ellocable to labor, materials and equipment for
the project only after receiving a written Notice to Proosed (NTP) from the SRBC. During
Construction, on or before the 15th day of each month after commencement of performance, but
no more frequently than once monthly, the Total Program Manager may submit an Application
for Payment for the period ending the last day of the previous month or other pay period as
mutually defined and agreed to by the Total Program Manager and SBBC. Said Application for
Payment shall be in the format required in the Document 01290 and include whatever supporting
information as may be required by the SBBC, Ten percent (10%) retainage shall be held on all
payments of that part of the contract price allooable to Contract Requirements properly provided
end labor, material and equipment properly incorporated in the project for that time period until
the contract is fifty percent (50%) complete, exqept when approved by the SBBC certain
suppliers and subcontractors may be paid the entire amount due when such payment is generally
the practice of the industry, Retainage sliall be withheld on all invoices, except fees, (to 100%

‘ completion) and may be released upon 100% completion of the project. At Substantial
Completion of all of Ihe work or an SBBC-Approved Phase of the Work, the SBBC may approve
areduction of the retainage from 10% to 5% at ils discretion. Retainage shall not be withheld on,

fees, Multiple Schedules of Values, payments, and release of retainage shall be acceptable on a
“ver site” basis, also referred to as a “project”,

Final payment constituting the unpaid balance of the Cost of Work and the Total Program
Manager’s fee, shall be due and payable as described in this Article after the SBBC has accepted
occupancy of the project, provided that the Project. te then finally completed, that the Total
Program Manager has verified by his signature that if has completed all items specified, and that
this Agreement has been finally performed, However, if there should remain work to be
completed, the Total Program Manager and the Total Program Manager shall list those items
prior to receiving final payment and the SBBC may retain 2 sum equal to 200% of the estimated
cost of completing any unfinished work and portion of the Tolal Program Managex’s retainage,
provided that said unfinished items are listed separately and the estimated cost of coxnpleting any
unfinished iteros are Ukewise listed separately. Thereafter, SRBC shall pay to Total Program

Manager, mouthly, the amount retained for each incomplete item after each of said items is
completed.

Uf the Owner should fail to pay the Total Program Manager within 30 days after the
receipt of an approvable payment request from the Total Program Manager, then the Total
Program Manager may, upon twenty-one (21) additional days written notice to the Owner siop
the Project uatil payment of the amount owing has bean reesived.

"Total Program Management Agreément 6
Ostober 16, 2007To the extent that any portion of Article 2.07 of this Agreecnent is inconsistent with

Section 218.70, as amended, Florida Statutes, Local Government Prompt Payment Act, Section
218,70 shall govern.

2.08 Contract Bouds, The Contract shal) become effective and in full force only
upon the execution of this agreement, The payment and performance bonds issued by 4 Surety
Company acceptable to SBBC in‘its sols disoretion, such Sutety being qualified and rated in
accordance with the General Conditions of the Contract, and approved by the United States
Treasury Department and licensed to do business in the State of Florida shall be delivered with
the exeoutad GMP Addendum in Exhibit 3, The GMP Addendum must be exeouted and signed
by a resident agent having an office in Florida, representing such Surety Company, for one
hundred per cant (100%) of the Contrast price, sald bond guaranteeing the performance of this
Contract end as security for the payment of all persons performing labor and providing materials
in connection with this Contract. The form of Bonds required is inoluded elsewhere in the

* Contract Documents. This is in addition to any bonds of subcontractors or others as required
herein,

2.09 Solteitation of Bids: The Total Program Manager shall comply fully with SREP,
as amended, including but not limited to preparation and issuance of bid packages, opening and
evaluation of bids from at Jeast two bidders for each trade package, and provide
recommendations to the SBBC. (SREF 1999 4,1(6)(B)(3.c) The Total Program Manager shall
also comply with School Board Policy 7004 euch that an advertisement is placed in at least two

* local newspapers (Sentinel and Elerald) and one of the designated SBBC staff’ in Policy 7004 and
two additional SBBC staff are present at the public bid opening, The requirement for two bids

does not apply in the case of sole source manufactured buildings ae set forth in the Total
Program Manager’s response to the REP,

2.10 ‘Eime for Completion and Liguidated Damages.

Prior 16 commencement of the Construction Phase, the SBBC shall direct and issue to the
Total Program Manager, in writing, a Notive to Proooed into the Construction Phase, A project
substantial completion date, a project final completion date and an SKEBC Occupancy date for
completion of the project in nocordance with the master project schedule, shall be established by
the SBBC. The Total Program Manager agrees to complete the constniction in accordance with
the agreed upon substantial completion date, final completion date and SBBC Occupancy date,
‘The Total Progtact: Manager shall pay the SBHC the sur of Twenty Five dollars ($25) per day,
per classroom for each and every calendar day of unexcused delay in achieving Substantial
Completion beyond 365 consecutive calendar days from ATP for Design Phase.

If the Total Frogram Manager fails to achieve final completion within 30 days of the
date of Substantial Completion, Total Program Manager shall pay SBBC the sum of Twenty Five

dollars ($25) per day, per classroom for each and every calendar day of unexcused delay in
achieving final completion,

Any sums due and payable hereunder by the Total Program Manager shall be payable,
not as a pedalty, but as liquidated damages representing a reasonable estimate of delay damages,
inconvenience, additional overhead and costs likely to be sustained by the SBBC, estimated at or

Total Program Maaegemnent Agroement 2
October 16, 2007EXHIBIT

4

(754) 321-1500
Document 01250e (00 63 46)-Construction Change Directive

‘tabbies"

The School Board of Broward County, Florida
Facilities and Construction Management Division
1700 SW 14th Court
Fort Lauderdale, FL 33312

 

 

 

 

 

 

 

 

To: James A. Cummings, Inc
3575 NW 53 St.
Fort Lauderdale, FL 33309 Directive No.: 2 Date: _ 12/9/10
(Contractor)

Project No: 0491-24-01

Project Title: Phase Il, Parent Drop Off (One Directive per form)

Facility Name: Harbordale Elementary School

Description of Directed Change:

You are hereby directed to make the following change(s) in this Contract:

Install 6” sewer and related activities according to instructions set forth in ASI-3, 10/27/2010, Plan

modifications have been approved by the School Board of Broward County Building Department and the
work can proceed immediately.

Proposed Adjustments

1, The Proposed basis of adjustment of the Contract Sum or Guaranteed Maximum price is:
Cy} Lump Sum (J Increase [] Decrease of $___.
(J Unit Price of $s per_.
Bd As provided in Specification Section 01250, Contract Modifications,
As follows: COST PLUS CHANGE ORDER AS THE WORK PROGRESSES

2, The Contract Time is proposed to [] be adjusted [] remain unchanged. The proposed adjustment,

ifany, is an
{1 increase of days. TO BE DETERMINED
{X] decrease of days.

 

 

 

When signed by the Project Consultant and the Owner and received by the
Contractor, this document becomes effective Immediately as a Construction Change
Directive and the Contractor shall proceed with the We described above.

afr?

‘Signature by the Contractor indicates the
Contractors Agreement with the
Proposed Adjustments in Contract Sum
and Contract Time as set forth In this
Construction Change Directive,

 

 

 

 

 

 

TPM SBBC James A. Cummings, Inc.
Project Consultant Own Contractor
Baws, MPT

By: Fe By:

Date Ye Date Date
(1 Contractor: Return Signed Copy to: [1 Project Consultant J Owner Oo
“The Schoo! Board of Broward Gounty, Florida.
{Speolfler replace this line with SBBC project number and name)
[Specifier replace this line with Project Consultant's name} [Specifier replax

(Spootfor leave this line)) SBC Design & Material Stancards, January 01, 2010 Edltlon)

  

 

fo Ona. Nodarandain26,038.05

26.03.06

26.03.07

26.03.08

will bo incurred by partonntl at the job tite aust receive advance vritten approval from the Owser 49 be
considered a veleiburaable cost, otherwise the associated soat will not bs paid,

Costs of all reproductions used for bidding or information purposes required by the project to directly benefit
the project will only be reimbursed with orlor written appr ‘oval of the project manger,

‘Wages shall not be paid for holidays and shall exohide bonuses and other shutlar extraordinary bensfits,
Deduelibles paid by Total Program Manager on any insurance claim will not be reimbursed unless the loss
could not have been, reasonably avoided by Total Program Manager and/or all subcontractors had it reasonably
performed all contractual safeguards, Deduotibles will otherwise be reimbursed to Total Program Manager.

Meme listed in Section 25,02 of the Genera) Conditions.

ARTICLE 27, CHANGE ORDERS AND CONSTRUCTION CHANGE DIRECTIVES

27.02

27.011

27.012

2701.3

27,014

POLS

‘The Owner, without invalidatiog this Agreement, may order changes in the Project within the general scope of
this Agreement consisting of additions, deletions or other revisioas, the GMP, and the Construction Completion
Date, being adjusted accordingly. AU changes in the Project shal be authorized by Change Order (CO) or
Construction Change Dirsctlve (CCD) signed by the Owner before the change is Implemented,

A Change Order or Construction Change Direative isa written order to the Total Program Manager signed by
the Owner isoued! alter the execution of this Agreement, aythorizing a change in the cost of warkk, the

‘Total Program Manager's fe