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Raymond Jungles, Inc. Agreement
hoof-~~8~'~3 7~ - ~/~~ AGREEMENT BETWEEN CITY OF MIAMI BEACH AND RAYMOND JUNGLES INC. FOR PROFESSIONAL LANDSCAPE ARCHITECTURE, ARCHITECTURE AND ENGINEERING SERVICES FOR THE MIAMI BEACH BOTANICAL GARDEN PROJECT Resolution No. 2008-26873 'h+ 4 l `7"s ~ ~ ~; ~ c~ ~ ~. G'T _,_r .. , S-'Q~a~~cu1,-~p31~_1ZI(oLO© MIAMI BEACH BOTANICAL GARDEN December 16, 2008 TABLE OF CONTENTS DESCRIPTION December 16, 2008 ARTICLE 1 DEFINITIONS 2 1.1 City 2 1.2 City Commission 2 1.3 City Manager 2 1.4 Proposal Documents 2 1.5 Consultant 2 1.6 City Project Coordinator 2 1.8 Basic Services 2 1.9 The Project 3 1.9.1 The Project Cost 3 1.9.2 The Project Scope 3 1.10 Construction Cost 3 1.10.1 Construction Cost Budget 3 1.10.2 Statement of Probable Construction Cost 3 1.11 Force Majeure 3 1.12 Contractor 4 1.13 Contract Documents 4 1.14 Contract for Construction 4 1.15 Construction Documents 4 1.16 Contract Amendment 4 1.17 Additional Services 4 1.18 Work 4 1.19 Services 4 1.20 Base Bid 5 1.21 Schedules 5 1.22 Scope of Services 5 ARTICLE 2. BASIC SERVICES 2.1 Design Services 5 2.2 Bidding and Award Services g 2.3 Construction Phase Services g 2.4 Additional Services 7 2.5 Responsibility for Claims and Liabilities g 2.6 Time g ARTICLE 3. THE CITY'S RESPONSIBILITIES 11 ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 14 ARTICLE 5. ADDITIONAL SERVICES 15 ARTICLE 6. REIMBURSABLE EXPENSES 16 ii MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 ARTICLE 7. COMPENSATION FOR SERVICES 16 ARTICLE 8. CONSULTANT'S ACCOUNTING RECORDS 18 ARTICLE 9. OWNERSHIP AND USE OF DOCUMENTS 18 ARTICLE 10. TERMINATION OF AGREEMENT 19 10.1 Termination for lack of Funds 1 g 10.2 Termination for Cause 1 g 10.3 Termination for Convenience 20 10.4 Termination by Consultant 20 10.5 Implementation of Termination 20 10.6 Non-Solicitation 21 ARTICLE 11. INSURANCE 21 ARTICLE 12. INDEMNIFICATION 22 ARTICLE 13. VENUE 22 ARTICLE 14. LIMITATION OF LIABILITY 23 ARTICLE 15. MISCELLANEOUS PROVISIONS 23 ARTICLE 16. NOTICE 25 SCHEDULES: SCHEDULE A SCOPE OF SERVICES 27 SCHEDULE B CONSULTANT COMPENSATION 28 SCHEDULE C HOURLY BILLING RATE 29 SCHEDULED PROJECT SCHEDULE 30 SCHEDULE E GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT 32 SCHEDULE F INSURANCE AND SWORN AFFIDAVITS 33 SCHEDULE G BEST VALUE AMENDMENT 34 iii MIAMI BEACH BOTANICAL GARDEN December 16, 2008 TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT RAYMOND JUNGLES INC. FOR PROFESSIONAL December 16, 2008 LANSCAPE ARCHITECTURE, ARCHITECTURE, AND ENGINEERING (A/E) SERVICES FOR THE MIAMI BEACH BOTANICAL GARDEN PROJECT This Agreement made and entered into this 16 day of December, 2008, by and between the CITY OF MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida (hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and Raymond Jungles Inc., a Florida corporation having its principal office at 242 S.W. 51h Street, Miami, Florida 33130 (hereinafter referred to as Consultant). WITNESSETH: WHEREAS, the City intends to undertake a project within the City of Miami Beach, which is more particularly described in this Agreement and the attached Schedule "A", and wishes to engage the Consultant to provide architecture, landscape architecture, and engineering services for the Project at the agreed fees as set forth in this Agreement; and WHEREAS, the Consultant desires to contract with the City for performance of architectural, engineering, urban design, and landscape architectural, and related professional services relative to the Project, as hereinafter set forth; and NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and agreement herein contained, agree as follows: ARTICLE 1. DEFINITIONS 1.1 CITY: The "City" shall mean the City of Miami Beach, a Florida municipal corporation having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139. 1 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 1.2 CITY COMMISSION: "City Commission" shall mean the governing and legislative body of the City. 1.3 CITY MANAGER: The "City Manager" shall mean the chief administrative officer of the City. The City Manager shall be construed to include any duly authorized designees, including the Project Coordinator and shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. 1.4 PROPOSAL DOCUMENTS: "Proposal Documents" shall mean Request for Qualifications No. 15- 06/07 entitled "Architectural, Engineering, Planning, and Landscape Architecture Services for the Planning, Design, Bid and Award, and Construction Administration Services for the Miami Beach Botanical Gardens Project" (the RFQ) issued by the City in contemplation of this Agreement, together with all amendments thereto, if any, and the Consultant's proposal in response thereto. 1.5 CONSULTANT: The "Consultant" is herein defined as Raymond Jungles Inc., a Florida corporation having its principal offices at 242 S.W. 5th Street, Miami, Florida 33130. When the term "Consultant" is used in this Agreement it shall be deemed to include any sub-consultants and any other person or entity acting under the direction or control of Consultant. Any subconsultants retained by Consultant pursuant to this Agreement and the Project shall be subject to prior written approval of the City. The following subconsultants are hereby approved by the City for the Project: Structural Engineer: Cankat= Essman, Inc. Electrical, Civil, Traffic Engineering, and Environmental Permitting: Corso Castella Carballo Thompson Salman PA (C3TS) Irrigation Consultant: Masuen Consulting, LLC Hydraulic/VUater Feature Consultant: Edgewater Exhibits, LLC 1.6 PROJECT COORDINATOR: The "Project Coordinator" shall mean the individual appointed by the City Manager who shall be the City's authorized representative to coordinate, direct, and review on behalf of the City, all matters related to the Project, except as otherwise provided herein. 1.8 BASIC SERVICES: "Basic Services" shall include the architectural and interior design, landscape architectural, and/or engineering and related professional services relative to the Project, as hereinafter set forth, including: planning, design, bidding/award, and construction administration for the Project, as 2 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 described in Article 2 herein and in Schedule "A" entitled "Scope of Services" attached hereto. 1.9 PROJECT: The "Project" shall mean the City Capital Project that has been approved by the City Commission and as described in Schedule "A" attached hereto. 1.9.1 PROJECT COST: The "Project Cost", as established by the City, shall mean the total cost of the Project to the City including: Construction Cost, professional compensation, land cost, if any, financing cost, materials testing services, surveys, contingencies and other miscellaneous costs. 1.9.2 PROJECT SCOPE: The "Project Scope" shall mean the description of the Project contained in Schedule "A" attached hereto. 1.10 CONSTRUCTION COST: The "Construction Cost" for the Project shall mean the sum which is the total cost or estimated cost to the City of all elements of the Project designed or specified by the Consultant and approved by the City, including, at current market rates (with a reasonable allowance for overhead and profit), the cost of labor and materials and any equipment which has been designed, specified, selected or specifically provided for by the Consultant and approved by the City, and including a contingency allowance for unforeseen conditions, not to exceed ten percent (10%) of the construction cost for new construction, or twenty percent (20%) of construction cost for rehabilitation of historic buildings, and not including the compensation of the Consultant and any subconsultants, the cost of land, rights-of-way, surveys, testing, or other reimbursable expenses. For Work not constructed, the Construction Cost shall be the same as the lowest bona fide bid or competitive bid received and accepted from a responsible bidder or proposer for any and all of such Work. 1.10.1 CONSTRUCTION COST BUDGET: The "Construction Cost Budget" shall mean an amount budgeted by the City for Construction Cost, as specified in the Project Scope in Schedule "A" attached hereto. 1.10.2 STATEMENT OF PROBABLE CONSTRUCTION COST: The "Statement of Probable Construction Cost" shall mean a forecast of Construction Cost prepared by the Consultant, as defined in attached Schedule "A", entitled "Scope of Services", for the guidance of the City. For Work which bids or proposals have not been let, the Construction Cost shall be the same as the latest Statement of Probable Construction Cost. The City shall have the right to verify the Statement of Probable Construction Cost or detailed cost estimate by the Consultant. 3 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 1.11 FORCE MAJEURE: "Force Majeure" shall mean any delay occasioned by superior or irresistible force occasioned by violence in nature without the interference of human agency such as hurricanes, tornadoes, floods, loss caused by fire and other similar unavoidable casualties; or by changes in Federal, State or local laws, ordinances, codes or regulations, enacted after the date of this Agreement and having a substantial impact on the Project; other causes beyond the parties' control; or by any other such causes which the Consultant and the City decide in writing justify the delay; provided, however, that market conditions, labor conditions, construction industry price trends and similar matters which normally impact on the bidding process shall not be considered a Force Majeure. 1.12 CONTRACTOR /CONTRACTORS: "Contractor" or "Contractors" shall mean those persons or entities responsible for performing the Work or providing the materials, supplies and equipment identified in the Bid and Construction Documents for the Project. 1.13 CONTRACT DOCUMENTS: "Contract Documents" shall mean this Agreement; the Agreement between the City and Contractor ;Contract for Construction; Conditions of the Contract for Construction (General, Supplementary, and other Conditions); Construction Documents; and addenda issued prior to execution of the Contract for Construction. A modification is one of the following: (1) written amendment to this Agreement or the Contract for Construction signed by both parties; (2) an approved Change Order; (3) a Construction Change Directive; or (4) a written order for a minor change in the Work issued by the Consultant. 1.14 CONTRACT FOR CONSTRUCTION: "Contract for Construction" shall mean a legally binding agreement with Contractors. 1.15 CONSTRUCTION DOCUMENTS: "Construction Documents" shall mean the final plans, specifications, drawings, documents and diagrams submitted by the Consultant pursuant to Article 2.2 and Schedule "A" attached hereto. . 1.16 CONTRACT AMENDMENT: "Contract Amendment" shall mean the written order to the Consultant approved by the City, as specified in this Agreement, and signed by the City's duly authorized representative, authorizing a change in the Project or the method and manner of performance thereof, or an adjustment in the fees and/or completion dates, as applicable. Contract Amendments shall be approved by the City Commission, if they exceed twenty-five thousand dollars ($25,000.00) or the City Manager if they are twenty-five thousand dollars ($25,000.00) or less in 4 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 amount (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). Even for Contract Amendments for less than twenty-five thousand ($25,000.00), the City Manager shall retain the right to seek and obtain concurrence of the City Commission for the approval of any such Contract Amendment. 1.17 ADDITIONAL SERVICES: "Additional Services" shall mean those services described in Article 5 herein, which have been duly authorized in writing by the City Manager prior to commencement of same. 1.18 WORK: "Work" shall mean the work to be performed on the Project by the Contractor, pursuant to the applicable Documents, whether completed or partially completed, and includes labor and materials, equipment, and services provided, or to be provided, by the Contractor to fulfill its obligations. 1.19 SERVICES: "Services" shall mean the services to be performed on the Project by the Consultant pursuant to this Agreement, whether completed or partially completed, and includes other labor and materials, equipment and services provided, or to be provided, by Consultant to fulfill its obligations herein. 1.20 BASE BID: "Base Bid" shall mean the elements contained in the Construction Documents recommended by the Consultant and approved by the City as being within the Construction Cost Budget pursuant to the Statement of Probable Construction Cost provided by Consultant. "Base Bid" shall not include "Additive Alternates" or "Deductive Alternates". 1.21 SCHEDULES: "Schedules" shall mean the various schedules attached to this Agreement and referred to as follows: Schedule A -Scope of Services. Schedule B- Consultant Compensation: The schedule of compensation to the Consultant for Basic Services, and for Reimbursable Expenses, as defined, plus any Additional Services, as submitted by the Consultant and approved by the City. Schedule C -Hourly Billing Rate Schedule: The schedule of Hourly Compensation Rates to the Consultant as submitted by the Consultant and approved by the City. Schedule D -Project Schedule. Schedule E -General Conditions of the Construction Contract s MIAMI BEACH BOTANICAL GARDEN December 16, 2008 Schedule F -Insurance and Sworn Affidavidts Schedule G -Best Value Amendment December 16, 2008 1.22 SCOPE OF SERVICES: "Scope of Services" shall mean the Project Scope as described in Schedule "A", together with the Basic Services and any Additional Services approved by the City, as described in Articles 2 and 5, respectively herein. ARTICLE 2. BASIC SERVICES The Consultant shall provide Basic Services for the Project as set forth hereafter. The Services for this Project will be performed by the Consultant upon receipt of a written Notice to Proceed issued by the City Manager, or his designee, and Consultant shall countersign the Notice to Proceed. A separate Notice to Proceed shall be reauired for commencement of each Task as defined in attached Schedule "A" entitled "Scope of Services". The Consultant's Basic Services shall consist of five (5) Tasks (inclusive of planning, design, bidding/award, construction administration and additional services) as described in attached Schedule "A ", Scope of Services, and including, without limitation, any and all of CONSULTANT's responsibilities and obligations, as set forth in the General Conditions of the Construction Contract (Schedule "E"). The Consultant shall coordinate with subconsultants and other consultants, and conform to all applicable building codes and regulations. Consultant, as it relates to its Services, represents and warrants to the City that it is knowledgeable of codes, rules and regulations applicable in the jurisdictions in which the Project is located, including, local ordinances and codes (City of Miami Beach and Miami-Dade County), Florida Statutes, Administrative rules and regulations including, Federal laws, rules and regulations. The Consultant agrees to comply with all such laws, codes, rules, and regulations now in effect, and as may be amended or adopted at any time, and shall further take into account all known pending changes to the foregoing, of which it should reasonably be aware. The Consultant shall insert the provisions of all required laws, codes rules and regulations into the Contract Documents. The Consultant expressly agrees that all of its duties, services and responsibilities under this Agreement shall be performed in accordance with the standard of care normally exercised in the design of projects of this nature in South Florida. In addition, Consultant represents that it is experienced and fully qualified to perform the Services contemplated by this Agreement, and that it is properly licensed pursuant to the applicable laws, rules and regulations to perform such Services. 6 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 Consultant warrants that it shall be responsible for the technical accuracy of its work, including without limitation the Design Documents contemplated in Section 2.1 below and the attached Schedule "A". 2.1 PLANNING SERVICES: Consultant shall prepare Planning services, as noted in attached Schedule "A" (Task 1) entitled "Scope of Services". 2.2 DESIGN SERVICES: Based on the approved Planning documents developed under Section 2.1, Consultant shall prepare Design Documents, as noted in attached Schedule "A", (Task 2) entitled "Scope of Services" 2.3 BIDDING AND AWARD SERVICES: Consultant shall provide bidding and award services as noted in attached Schedule "A", (Task 3) entitled "Scope of Services". 2.4 CONSTRUCTION ADMINISTRATION SERVICES: Consultant shall furnish construction administration services as noted in attached Schedule "A" (Task 4) entitled "Scope of Services". 2.5 ADDITIONAL SERVICES: If required and so approved by the City, Consultant shall provide Additional Services as noted in attached Schedule "A", (Task 5) entitled "Scope of Services". 2.6 RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant, its employees, subcontractors, agents and consultants for the accuracy and competency of their designs, working drawings, specifications or other documents and services; nor shall such approval be deemed to be an assumption of such responsibility by the City for a defect, error or omission in designs, working drawings, specifications or other documents prepared by the Consultant, its employees, subcontractors, agents and consultants. However, the Consultant shall be entitled to reasonably rely upon the accuracy and validity of written decisions and approvals furnished by the City and its employees. 2.7 TIME: It is understood that time is of the essence in the completion of this Project, and in this respect the parties agree as follows: 7 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 2.7.1 The Consultant shall perform the Services as expeditiously as is consistent with the standard of professional skill and care required by this Agreement and the orderly progress of the Work. 2.7.2 The parties agree that the Consultant's Services during all phases of this Project will be performed in a manner that shall conform with the approved Project Schedule, which is attached to this Agreement as Schedule "D". The Consultant may submit requests for an adjustment to the Project Schedule, made necessary by undue time taken by the City to approve the Consultant's submissions, and/or excessive time taken by the City to approve the Services or parts of the Services. The City shall not unreasonably refuse to approve such adjustment(s) to the Project Schedule if the request is made in a timely manner and is fully justified. 2.7.3 In providing the Services described in this Agreement, the Consultant shall use its best efforts to maintain, on behalf of the City, a constructive, professional, cooperative working relationship with the Contractor(s), and others that have been contracted to perform Services and / or Work pertaining to the Project. While the Services to be provided by Consultant under this Agreement will be provided under the general direction of the City's Program Coordinator, it is the intent of this Agreement to allow the Consultant to coordinate the performance of all design and construction administration to the extent such coordination by the Consultant is permitted by the contracts for the design and construction administration. 2.7.4 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be responsible to the City for any failure in its performance except to the extent that acts or omissions by the City or others make such performance impossible. 2.7.5 Whenever during the term of this Agreement, others are required to verify, review, or consider any work performed by Consultant, including but not limited to the design professionals, Contractors, and other consultants retained by the City, the intent of such requirement is to enable the Consultant to receive input from others' professional expertise to identify any discrepancies, errors or omissions that are inconsistent with industry standards for design or construction of comparable public projects; or which are inconsistent with applicable laws, codes, ordinances, and regulations; or which are inconsistent with standards or decisions provided in writing by the City's Project Coordinator. Consultant will use reasonable care and skill in accordance with and consistent with customary professional standards in responding to items identified as discrepancies, errors and omissions by others. Consultant shall receive comments from reviewers 8 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 via a set of marked-up drawings and specifications. Consultant shall address comments forwarded to it in a timely manner. The term "timely" shall be construed to mean as soon as possible under the circumstances, taking into account the requirements of the Project Schedule. 2.7.6 The City shall have the right at any time, and in its sole and absolute discretion, to submit for review to consulting engineers or consulting architects or other consultants, engaged by the City at its own expense for that purpose, any or all parts of the services performed by the Consultant, and the Consultant shall cooperate fully in such review at the City's request. 2.7.7 Consultant agrees to certify and warrant all estimates of Construction Cost prepared by Consultant. Said certifications shall be in a form and manner as approved by the City's Project Coordinator. 2.7.8 Consultant represents to City that all evaluations of the City's Project Budget, Consultant generated Statement of Probable Construction Cost, and detailed estimates represent Consultant's best judgment as a design professional familiar with the construction industry. Consultant cannot and does not guarantee that bids or negotiated prices will not vary from any estimate of Construction Cost or evaluation prepared or agreed to by Consultant. 2.7.9 Consultant agrees that, when the Services to be provided hereunder relate to a professional service which, under Florida Statutes, requires a license, certification of authorization, or other form of legal entitlement to practice such services, it shall employ and/or retain only qualified personnel to provide such services. 2.7.10 Consultant agrees to employ and designate in writing, within five (5) calendar days after receiving its initial Notice to Proceed, a qualified licensed professional to serve as the Consultant's project manager (herein after referred to as "Project Manager"). The Project Manager shall be authorized and responsible to act on behalf of Consultant with respect to directing, coordinating and administrating all aspects of Services to be provided and performed under this Agreement. The person selected by Consultant to serve as Project Manager shall be subject to approval and acceptance by City. Replacement (including reassignment) of said Project Manager shall not be made without the prior written approval of the City. 9 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 2.7.11 Consultant agrees, within fourteen (14) calendar days of receipt of written notice to do such from City, to promptly remove and replace Project Manager, or any other personnel employed or retained by Consultant, or any subconsultant or subcontractors engaged by Consultant, which request may be made by City with or without stating its cause. 2.7.12 Consultant herein represents to City that it has expertise in the type of professional services that will be performed and pursuant to this Agreement. Consultant agrees that all Services to be provided by Consultant pursuant to this Agreement shall be subject to City's review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with applicable published laws, statutes, ordinances, codes, rules, regulations and requirements of any governmental agencies having jurisdiction over the Project or the Services to be performed by Consultant hereunder. In the event of any conflicts in these requirements, Consultant shall notify City of such conflict and utilize its best professional judgment to advise City regarding resolution of each such conflict. 2.7.13 Consultant agrees not to divulge, furnish or make available to any third person, firm or organization, without City's prior written consent, or unless incident to the proper performance of Consultant's obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning Services to be rendered by Consultant hereunder, and Consultant shall require its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. 2.7.14 The City and Consultant acknowledge that the Scope of Services does not delineate every detail and minor work task required to be performed by Consultant to complete the Project. If, during the course of the performance of the Services contemplated in this Agreement, Consultant determines that work should be performed to complete the Project which is, in the Consultant's opinion, outside the level of effort originally anticipated, whether or not the Scope of Services identifies the work items, Consultant shall notify the Project Coordinator, in writing, in a timely manner, and obtain said Project Coordinator's written consent, before proceeding with the work. The Project Coordinator must comply with Contract Amendment processing requirements as outlined in Article 1.16, prior to issuance of any written authorization to proceed with Additional Services to Consultant. If Consultant proceeds with additional Services without notifying and obtaining the consent of the Project 10 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 Coordinator, said work shall be deemed to be within the original level of effort, and deemed included as a Basic Service herein, whether or not specifically addressed in the Scope of Services. Notice to the Project Coordinator does not constitute authorization or approval by the City to perform the work. Performance of work by Consultant outside the originally anticipated level of effort without the prior written consent of the City shall be at Consultant's sole risk. 2.7.15 Consultant shall establish and maintain files of documents, letters, reports, plans, etc. pertinent to the Project. Consultant shall provide City with a copy of applicable Project correspondence for City to file in its filing system. In addition, Consultant shall provide electronic Project document files to the City, at the completion of the Project. 2.7.16 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be responsible to the City for any failure in its performance except to the extent that acts or omissions by the City or others make such performance impossible. 2.7.17 In the event Consultant is unable to timely complete the Project because of delays resulting from untimely review by City or other governmental authorities having jurisdiction over the Project, or such delays which are caused by factors outside the control of Consultant, Consultant shall provide City with immediate written notice stating the reason for such delay and a revised anticipated schedule of completion. City, upon review of Consultant's submittal and such other documentation as the City may require, may grant a reasonable extension of time for completion of the Project and may provide reasonable compensation, if appropriate. 2.7.18 The Consultant covenants with the City to furnish its Services hereunder properly, in accordance with the standards of its profession and in conformance with applicable construction, building and health codes and other applicable Federal, State and local rules, regulations and laws, of which it should reasonably be aware, throughout the term of this Agreement. The City's participation in the design and construction of the Project in no way relieves the Consultant of its professional duties and responsibilities under applicable law and under the Contract Documents ARTICLE 3. THE CITY'S RESPONSIBILITIES 3.1 The City shall designate in writing a Project Coordinator to act as the City's representative with respect to the services to be rendered under this Agreement (herein after referred to as Project 11 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 Coordinator). The Project Coordinator shall have authority to transmit instructions, receive information, interpret and define City policies and decisions with respect to Consultant's Services on this Project. However, the Project Coordinator is not authorized to issue any verbal or written orders or instructions to Consultant that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatsoever, unless approved by the City Manager and/or City Commission in compliance with Article 1.16 requirements, including but not limited to the following: a) The Scope of Services to be provided and performed by Consultant hereunder; b) The time the Consultant is obligated to commence and complete all such Services; or c) The amount of compensation the City is obligated or committed to pay Consultant. 3.2 The City shall assist Consultant by placing at Consultant's disposal all information that the City has available pertinent to the Project, including previous reports and any other data relative to design or construction of the Project. It shall be fully understood that City, in making such reports, site information, and documents available to the Consultant is in no way certifying representing and/or warranting as to the accuracy or completeness of such data. Any conclusions or assumptions drawn through examination thereof shall be the sole responsibility of the Consultant and subject to whatever measure it deems necessary to final verification essential to its performance under this Agreement. Additional Services required due to inaccurate, incomplete or incorrect information supplied by the City may be undertaken by the Consultant as an Additional Service to this Agreement. Consultant shall notify the Project Coordinator, in writing, in a timely manner and obtain said Project Coordinator's written consent, before proceeding with the work. If Consultant proceeds with the Additional Services without notifying and obtaining the consent of the Project Coordinator, said work shall be deemed to be within the original level of effort and deemed included as a Basic Service herein. 3.3 The City has established a Construction Cost Budget for the Project, as stated in Schedule A. 3.4 In the City's sole discretion, the City may furnish legal, accounting and insurance counseling services as may be required at any time for the Project, including such auditing services as the City may require to verify the Consultant's applications for payment or to ascertain that Consultant has properly remitted payment due to sub consultants or vendors working on this Project for which Consultant has received payment from the City. 3.5 If the City observes or otherwise becomes aware of any fault or defect in the Project or non- conformance with the Contract Documents, the City shall give prompt. written notice thereof to the Consultant. 12 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 3.6 The City shall furnish required information and services and render approvals and decisions in writing as reasonably expeditious as necessary for the orderly progress of the Consultant's Services and of the Work. No approvals required by the City during the various phases of the Project shall be unreasonably delayed or withheld; provided that the City shall at all times have the right to approve or reject any proposed submissions of Consultant for any reasonable basis. 3.7 The City Commission shall be the final authority to do or to approve the following actions or conduct by passage of an enabling resolution or amendment to this Agreement. 3.7.1 The City Commission shall be the body to consider, comment upon, or approve any amendments or modifications to this Agreement, except when noted otherwise (i.e., where delegated to the City Manager or his designee) .in this Agreement. 3.7.2 The City Commission shall be the body to consider, comment upon, or approve any assignment, sale, transfer or subletting of this Agreement or any interest therein and any subcontracts made pursuant to this Agreement. Assignment and transfer shall be defined to include sale of the majority of the stock of a corporate Consultant. 3.7.3 All required City Commission approvals and authorizations shall be expressed by passage of an appropriate enabling resolution and, if an amendment, by the execution of an appropriate amendment to this Agreement. 3.7.4 The City Commission shall hear appeals from the administrative decision of the City Manager's appointed designee(s), upon the Consultant's written request, in which case the Commission's decision shall be final. 3.7.5 The City Commission shall approve or consider all Contract Amendments that exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). 3.8 The City Manager or his designee(s) shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. These authorizations shall include, without limitation: reviewing, approving, or otherwise commenting upon the schedules, plans, reports, estimates, contracts and other documents submitted to the City by the Consultant. 13 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 3.8.1 The City Manager shall decide, in his professional discretion, matters arising pursuant to this Agreement which are not otherwise expressly provided for in this Agreement, and shall attempt to render administrative decisions promptly to avoid unreasonable delay in the progress of the Consultant's Services. The City Manager, in his administrative discretion, may consult with the City Commission concerning disputes or matters arising under this Agreement regardless of whether such matters or disputes are enumerated herein. 3.8.2 The City Manager shall be authorized, but not required, at the request of the Consultant, to reallocate monies already budgeted toward payment of the Consultant, provided, however, that the Consultant's compensation or other budgets established by this Agreement cannot be increased. 3.8.3 The City Manager, or his designee, shall be the sole representative of the City authorized to issue a Notice to Proceed, as referenced in Article 2 and the attached Schedule "A" entitled "Scope of Services". 3.8.4 The City Manager may approve Contract Amendments which do not exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Purchasing Ordinance, as amended) and which do not increase any of the budgets established herein. 3.8.5 The City Manager may, in his sole discretion, form a committee or committees, or inquire of or consult with persons for the purpose of receiving advice and recommendations relating to the exercise of his powers, duties and responsibilities under this Agreement. ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 4.1 The Construction Cost Budget, as established by the City and stated in Schedule "A", shall not be exceeded without fully justifiable, extraordinary and unforeseen circumstances, such as Force Majeure, which is beyond the control of the parties. Any expenditure above this amount shall be subject to prior City Commission approval by passage of an enabling resolution and amendments to the appropriate agreements relative to the Project, prior to any modification of the Construction Cost. Provided further, however, that even in the event of a Force Majeure, as defined in Article 1.11, the City shall have no obligation to approve an increase in the Construction Cost Budget limitations established herein, and, if such budget is exceeded, the City Commission may, at its sole option and 14 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 discretion, terminate this Agreement without any further liability to the City. 4.2 If the lowest bona fide base bid exceeds the Construction Cost Budget by more than five percent (5%), the City Commission shall, at its sole discretion, have any of the following options: (1) give written approval of an increase in the Construction Cost Budget; (2) reject all bids or proposals, authorize rebidding, or (if permissible) authorize a renegotiation of the Project within a reasonable time; (3) abandon the Project and terminate the Consultant's Services for the Project covered by this Agreement without further liability to the City; (4) select as many Deductive Alternatives as may be necessary to bring the award within the Construction Cost Budget; or (5) cooperate with the Consultant in reducing the Project scope, construction schedule, and sequence of Work, as may be required to reduce the Construction Cost Budget. In the event the City elects to reduce the Project Scope, the Consultant shall provide such revisions to the Construction Documents, and provide rebidding services, as many times as reasonably requested by the City, as a Basic Service, with no additional cost to the City, in order to bring the bids within five percent (5%) of the Construction Cost Budget. ARTICLE 5. ADDITIONAL SERVICES 5.1 Additional Services for this Project will only be performed by the Consultant following receipt of a written authorization by the Project Coordinator prior to commencement of same. Such authorization shall contain a description of the Additional Services required; an hourly fee, as provided in Schedule "C" with an "Not to Exceed" amount on additional Reimbursable Expenses (if any); the amended Construction Cost Budget (if applicable); and an amended completion date for the Project (if any). "Not to Exceed" shall mean the maximum cumulative hourly fees allowable, which the Consultant shall not exceed without specific written authorization from the City. The "Not to Exceed" amount is not a guaranteed maximum cost for the services requested by the City and all costs applied to such shall be verifiable through time sheet and reimbursable expense reviews. 5.2 The term "Additional Services" includes services involving the Consultant or any subconsultants whether previously retained for the Services or not or whether participating as members with Consultant or not, subject to the City's right to previously approve any change in Consultants as set forth in this Agreement. 5.3 Additional Services may consist of the following: 5.3.1 Serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding unless such preparation has arisen from the failure of the 15 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 Consultant to meet the Standard of Care set forth in Article 2. December 16, 2008 5.3.2 Preparing documents for Change Orders, or supplemental Work, initiated at the City's request and outside the scope of the Work specified in the Construction Documents, after commencement of the construction phase. 5.3.3 Providing such other professional services to the City relative to the Project which arises from subsequent circumstances and causes (excluding circumstances and causes resulting from error, inadvertence or omission of the Consultant) which do not currently exist or which are not contemplated by the parties at the time of execution of this Agreement. 5.3.4 Assistance in connection with bid protests, rebidding or renegotiating contracts for construction, materials, equipment or services, except as otherwise expressly provided for herein. ARTICLE 6. REIMBURSABLE EXPENSES 6.1 Reimbursable Expenses are an allowance set aside by the City and are not in addition to the compensation for Basic and Additional Services but include actual expenditures made by the Consultant in the interest of the Project. The Reimbursable Expenses allowance as specified in Schedule "B", belongs to the City and must be approved in advance by the City's Project Coordinator. Unused portions will not be paid to the Consultant. All Reimbursable Expenses pursuant to this Article, in excess of $500, must be authorized in advance in writing by the Project Coordinator. Invoices or vouchers for Reimbursable Expenses shall be submitted by the Consultant to the City, along with supporting receipts, and other back-up material reasonably requested by the City, and Consultant shall certify as to each such invoice that the amounts and items claimed as reimbursable are "true and correct and in accordance with the Agreement". 6.2 Expenses subject to reimbursement in accordance with the above procedures may include the following: 6.2.1 Expense of reproduction, postage and handling of drawings, specifications and other documents, excluding reproductions for the office use of the Consultant and sub- 16 MIAMI BEACH BOTANICAL GARDEN December I6, 2008 December 16, 2008 consultants. Courier and postage between the Consultant and its sub-consultants are not reimbursable. 6.2.2 Expenses for reproduction and the preparation of graphics for community workshops 6.2.3 Expenses for fees for all necessary permits. ARTICLE 7. COMPENSATION FOR SERVICES 7.1 The Consultant shall be compensated the not to exceed, cost reimbursable fee listed in Schedule "B" for Basic Services, based on the "Hourly Rate Schedule" presented in Schedule "C". Payments for Basic Services shall be made within thirty (30) working days of receipt and approval of an acceptable invoice by the City Project Coordinator. Payments shall be made in proportion to the Services satisfactorily performed in each Phase so that the payments for Basic Services for each Phase shall not exceed the progress percentage noted in the Consultant's Progress Schedule, submitted with each invoice. No markup shall be allowed on subcontracted Basic Services. The City and the Consultant agree that the Consultant's fee will be $125,000, for the provision of Basic Services as described in the Agreement and Schedule "A" attached hereto, with a reimbursable expense allowance of $5,000, as detailed in Schedule "B. 7.2 Additional Services authorized in accordance with Article 5 will be compensated using the hourly rates forth in Schedule "C". Request for payment of Additional Services shall be included with the monthly Basic Services payment request noted in Article 7.1 above. All Additional Services must be approved by the Project Coordinator, in writing, prior to commencement of same, as noted in Article 5. Under no circumstances shall the "Not to Exceed" amount noted in Schedule "B be exceeded without prior written approval from the City Project Coordinator. No markup shall be allowed on subcontracted Additional Services. 7.3 Reimbursable Expenses, as defined in Article 6, shall be paid up to the "Not to Exceed" amount noted in Schedule "B" " (approved at $5,000). Request for payment of Reimbursable Expenses shall be included with the monthly Basic Services payment request noted in Article 7. Proper backup must be submitted with all reimbursable requests. No markup or administrative charges shall be allowed on Reimbursable Expenses. 17 MIAMI BEACH BOTANICAL GARDEN December 16,.2008 7.4 The City and the Consultant agree that: December 16, 2008 7.4.1 If the scope of the Project or the Consultant's Services is changed substantially and materially, the amount of compensation may be equitably adjusted by mutual agreement of the parties. 7.4.2 Commencing on February 20, 2007, the Hourly Billing Rate Schedule shown in Exhibit "C" may be adjusted annually based upon the Miami -Fort Lauderdale Consumer Price Index issued by the U.S. Department of Labor, Bureau of Labor Statistics. Such adjustment shall be calculated by multiplying the ratio of the April index divided by the previous year's index by the Hourly Rate Schedule to define the new Hourly Rate Schedule. The maximum increase will be limited to three percent (3%). 7.5 No retainage shall be made from the Consultant's compensation on account of sums withheld from payments to Contractors. 7.6 Method of Billing and Payment. With respect to all Services, Consultant shall submit billings on a monthly basis in a timely manner. These billings shall identify the nature of the work performed; the total hours of work performed by employee category and the respective hourly billing rate associated with the employee category from the Hourly Rate Schedule. In the event subconsultant work is accomplished utilizing the lump sum method, the percentage of completion shall be identified. Billings shall also itemize and summarize Reimbursable Expenses by category. Where written approval of the City is required for Reimbursable Expenses, a copy of said approval shall accompany the billing for such Reimbursable. When requested, Consultant shall provide backup for past and current invoices that records hours for all Services by employee category and reimbursable by category. 7.7 The City shall pay Consultant within thirty (30) working days from receipt of Consultant's proper statement. 7.8 Final payment of the Consultant upon Project completion must be approved by the Mayor and City Commission. ARTICLE 8. CONSULTANT'S ACCOUNTING RECORDS 8.1 Consultant shall keep such records and accounts and require any and all Consultant and subconsultants to keep such records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to the Project, and any expenses for which 18 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 Consultant expects to be reimbursed. All books and records relative to the Project will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for City's disallowance of any fees or expenses based upon such entries. All books and records which are considered public records shall, pursuant to Chapter 119, Florida Statutes, be kept by Consultant in accordance with such statutes. ARTICLE 9. OWNERSHIP AND USE OF DOCUMENTS 9.1 Electronic files of all documents, including, but not limited to, tracings, drawings, estimates, specifications, investigations and studies completed or partially completed, shall become the property of the City upon completion, termination, or abandonment of the Project. Consultant shall deliver the above documents to the City within thirty (30) days of completion of the Project, or termination of this Agreement, or termination or abandonment of the Project. (Reference attached Schedule "A", entitled "Scope of Services" for additional requirements). 9.2 Any re-use of documents by City without written verification or adaptation by Consultant for the specific purpose intended will be without liability to Consultant. ARTICLE 10. TERMINATION OF AGREEMENT 10.1 Termination For Lack Of Funds. The City is a governmental entity and is subject to the appropriation of funds by its legislative body in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this Agreement. In the event there is a lack of adequate funding for the Project, the Project may be abandoned or terminated, and the City may cancel this Agreement as provided for herein without further liability to the City. 10.2 Termination For Cause. The City may terminate this Agreement for cause in the event that the Consultant (1) violates any provisions of this Agreement or performs same in bad faith or (2) unreasonably delays the performance of the Services or does not perform the Services in a timely and satisfactory manner, upon written notice to the Consultant. In the case of termination by the City for cause, the Consultant shall be first granted a thirty (30) day cure period after receipt of written notice from the City. 10.2.1 In the event this Agreement is terminated by the City for cause, the City, at its sole option and discretion, may take over the Services and complete them by contracting with 19 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 another consultant(s) or otherwise. In such event, the Consultant shall be liable to the City for any additional cost incurred by the City due to such termination. "Additional Cost" is defined as the difference between the actual cost of completion of such incomplete Services, and the cost of completion of such Services which would have resulted from payments to the Consultant hereunder had the Agreement not been terminated. 10.2.2 Payment only for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of a Notice of Termination, shall be made in accordance with Article 7 herein and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 7. 10.2.3 Upon receipt of a written Notice of Termination, the Consultant shall promptly assemble and submit to the City, as provided herein or as required in the written notice, all documents, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by such termination. 10.2.4 In the event of a termination for cause, no payments to the Consultant shall be made (1) for Services not satisfactorily performed and (2) for assembly of submittal of documents, as provided above. 10.3 Termination For Convenience. The City, in addition to the rights and options to Terminate for Cause, as set forth herein, or any other provisions set forth in this Agreement, retains the right to terminate this Agreement, at its sole option, at any time, for convenience, without cause and without penalty, when in its sole discretion it deems such termination is in the best interest of the City, upon notice to Consultant, in writing, fourteen (14) days prior to termination. In the event City terminates Consultant's services for its convenience, as provided herein, Consultant shall be compensated for all Services rendered up to the time of receipt of said written termination notice, and for the assembly and submittal to the City of documents for the Services performed, in accordance with Article 7 herein, and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 7. 10.4 Termination By Consultant. The Consultant may only terminate this Agreement for cause in the event that the City willfully violates any provisions of this Agreement or unreasonably delays payment for the Services, upon written notice to the City, thirty (30) days prior to termination. In that event, payment for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of a Notice of Termination shall be made in accordance with Article 7 herein. In the case of 20 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 termination by Consultant for cause, the City shall be granted a thirty (30) day cure period after receipt of written notice from the Consultant. 10.4.1 The Consultant shall have no right to terminate this Agreement for convenience of the Consultant. 10.5 Implementation of Termination. In the event of termination, either for cause or for convenience, the Consultant, upon receipt of the Notice of Termination, shall (1) stop the performance of Services under this Agreement on the date and to the extent specified in the Notice of Termination; (2) place no further orders or subcontracts except for any that may be authorized, in writing, by the Project Coordinator, prior to their occurrence; (3) terminate all orders and subcontracts to the extent that they relate to the performance of the Services terminated by the Notice of Termination; (4) promptly assemble and submit, as provided herein, all documents for the Services performed, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by the termination; and (5) complete performance of any Services as shall not have been terminated by the Notice Of Termination, and as specifically set forth therein. 10.6 Non Solicitation. The Consultant warrants that it has not employed or retained any company or person, other than an employee working solely for the Consultant, to solicit or secure this Agreement; and that it has not paid, nor agreed to pay any company or other person any fee, commission, gift or other consideration contingent upon the execution of this Agreement. For breach or violation of this warranty, the City has the right to terminate this Agreement without liability to the Consultant for any reason whatsoever. ARTICLE 11. INSURANCE 11.1 The Consultant shall comply throughout the term of this Agreement with the insurance requirements stipulated herein. It is agreed by the parties that the Consultant shall not commence with work on this Project until satisfactory proof of the following insurance coverage has been furnished to the City. The Consultant will maintain in effect the following insurance coverage: (a) Professional Liability Insurance in the amount of One Million ($1,000,000.00) Dollars per occurrence, with a maximum deductible of $150,000 per occurrence, $450,000 aggregate. Consultant shall notify City in writing within thirty (30) days of any claims filed or made against the Professional Liability Insurance Policy. (b) Comprehensive General Liability Insurance in the amount of $1,000,000.00 Single Limit Bodily 21 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 Injury and Property Damage coverage for each occurrence, which will include products, completed operations, and contractual liability coverage. The City must be named as an additional insured on this policy. (c) Worker's compensation and employer's liability coverage within the statutory limits of the State of Florida. 11.2 The Consultant must give thirty (30) days prior written notice of cancellation or of substantial modifications in the insurance coverage, to the Project Coordinator. 11.3 The insurance must be furnished by an insurance company rated B+:VI or better, or its equivalent, according to Bests' Guide Rating Book and must additionally be furnished by insurance companies duly authorized to do business in the State of Florida and countersigned by the company's Florida resident agent. 11.4 Consultant shall provide to City a Certificate of Insurance or a copy of all insurance policies required above. City reserves the right to require a certified copy of such policies upon request. All certificates and endorsements required herein shall state that the City shall be given thirty (30) days notice prior to expiration or cancellation of the policy. ARTICLE 12. INDEMNIFICATION Consultant herein agrees to indemnify and hold harmless the City, and its officer and employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Consultant and other persons employed or utilized by the Consultant in the performance of the Agreement. This Article 12, and Consultant's indemnification contained herein, shall survive the termination and expiration of the Agreement. ARTICLE 13. VENUE 13.1 This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein. Exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. This Agreement shall be governed by, and construed in accordance with, the laws of the State 22 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CONSULTANT AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. ARTICLE 14. LIMITATION OF LIABILITY 14.1 The City desires to enter into this Agreement only if in so doing the City can place a limit on City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the amount of the fees for Services agreed upon under the terms of the Agreement, less any amount(s) paid to Consultant thereunder. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the fee for Services agreed upon under the terms of the Agreement, less the amount of all funds actually paid by the City to the Consultant Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to Consultant for money damages due to an alleged breach by the City of this Agreement in an amount in excess of the amount of fee under any this Agreement, which amount shall be reduced by the amount actually paid by the City to Consultant for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Section 768.28, Florida Statutes. ARTICLE 15. MISCELLANEOUS PROVISIONS 15.1 The laws of the State of Florida shall govern this Agreement. 15.2 Equal Opportunity Emplovment Goals: Consultant agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin, disability or sexual orientation and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to sexual 23 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 orientation, race, color, religion, sex, age, national origin, or disability. This provision shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment advertising, layoff or compensation; and selection for training, including apprenticeships. Consultant agrees to furnish City with a copy of its Affirmative Action Policy. 15.3 Public Entity Crimes Act: In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes), a person or affiliate who is a consultant, 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 bids or leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or subconsultant under a contract with the City, and may not transact business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for Category Two for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this Section by Consultant shall result in cancellation and may result in Consultants debarment. 15.4 No Contingent Fee: Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Consultant, 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 Consultant any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, City shall have the right to terminate the Agreement without liability at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 15.5 The Consultant represents that it has made and will make reasonable investigation of all sub- consultants to be utilized in the performance of work under this Agreement to determine that they possess the skill, knowledge and experience necessary to enable them to perform the services required. Nothing in this Agreement shall relieve the Consultant of its prime and sole responsibility for the performance of the work under this Agreement. 15.6 The Consultant, its consultants, agents and employees and sub contractors, shall comply with all applicable Federal, State and County laws, the Charter, related laws and ordinances of the City of Miami Beach, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies as they relate to this Project. 24 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree 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. ARTICLE 16. NOTICE 16.1 All written notices given to City by Consultant shall be addressed to: City Manager's Office c/o Assistant City Manager Tim Hemstreet City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: Fred H. Beckmann Capital Improvement Projects Interim Director Capital Improvement Project Office City of Miami Beach 777 17 Street, Suite 301 Miami Beach, Florida 33139 All written notices given to the Consultant from the City shall be addressed to: Raymond Jungles, RLA., President Raymond Jungles Inc. 242 S.W. 5`h Street Miami„ Florida, 33139 All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be signed in 25 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 December 16, 2008 All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be signed in their names by their duly authorized officers and principals, attested by their respective witnesses and City Clerk on the day and year first hereinabove written. Attest ~~i P~ CITY CLERK Attest CITY OF MIAMI BEACH M YOR ignature/Se retary Print Name APPROVED AS TO FORM & LANGUAGE' d~ F EXECUTION z u pq 26 SCHEDULE "A" -SCOPE OF SERVICES CITY OF MIAMI BEACH MIAMI BEACH BOTANICAL GARDENS PROJECT The following is a detailed description of the Scope of Work to be provided by Raymond Jungles, Inc. (CONSULTANT) for the City of Miami Beach (CITY) relative to the design, permitting, and implementation of the proposed Miami Beach Botanical Gardens (Project) located south of Dade Canal, at 2000 Convention Center Drive. The purpose of the Project is to study how to provide free public access to an attractive Botanical Garden (Garden); promote environmental stewardship and green lifestyle; present environmental and ecological education programs for children and adults; preserve urban green space and tree canopy; serve as a venue for visual and performing arts; and serve as a community resource for weddings, parties and events, and tourist destinations. The work shall include, but not limited to, conceptual drawing(s), survey, planning, design development, estimate(s) of probable construction cost, construction document preparation, bidding/award, and construction administration services for the Project. The Garden improvements currently envisioned may include, but will not be limited to, create curbside appeal and visibility, maximize the use of space to create areas of dynamic energy, and offer a sense of hidden treasure and pockets of serenity. In general, the idea is to foster an impression that the garden is more than the 2.6 acres, creating "rooms" that invite exploration by visitors, meandering pathways that invite guests to find the rooms, each room would be a delight to see and smell. Significant garden revenue is generated by rentals for weddings, parties, and corporate events, the Boat Show etc. other events, such as Art Basel, create exceptional visibility and high volume of traffic. Landscape planning must incorporate functionality, traffic patterns, and plant selection for high-used areas, while seeking to promote the peace and quite of the gardens amid an urban environment. The integration of existing garden areas, such as the Japanese garden and the Native garden on the south side of the property, envisions that they can be enhanced and integrated into the new design, but remain in the existing locations, along with the pump house and its storage capacity. New landscape should reinforce Japanese design principles, i.e., the existing Norfolk pines are in bad shape and should be replaced with plantings that give height and scale on the east side. Gardens on the south suffer noise and fumes impacts from the County transit buses that idle in the street during the shift work. In addition, with respect to the horticulture, the Garden Conservancy Board desires a Garden that is an outstanding example of the beauty and sustainable landscape principles and practices that residents can incorporate in their own landscape. Orchids and bromeliads are two mayor plant collections at the garden. Goals includes a design that builds on a variety of native plants, flowering trees, ground cover and lawn substitutes, as well as Page 1 of 17 Miami Beach Botanical Garden improving the gardens Great lawn areas. Xeriscaping, additional water features, permanent and temporary outdoor art installations, landscape lighting, and a combination of sun and shade, butterflies and birds along with beautifying the Gardens service driveways are all desired concepts the Conservancy wishes to have explored. The Garden also seeks a leadership position with respect to Green Goals. To foster this position on Green Goals, the Garden will seek a leadership position with respect to ecological good sense, and design that demonstrates "green living" with composting, recycling, water and energy conservation, and choice of plant materials. The landscape design must frame the Garden's mid-century American building. The Horticulture director needs a workspace, potting shed with potable water and designed to provide some privacy. CONSULTING SERVICES PART 1 -PLANNING SERVICES: The purpose of this Task is to develop a concept plan that meets the City's functional requirements, incorporates community input, and stays within established schedule and cost parameters. The CITY has previously met with neighborhood representatives to review improvements and has identified certain items that are to be considered. The descriptions provided therein are not considered all encompassing, but are only intended to provide the CONSULTANT with a starting point from which to base its conceptual master plan upon. Solicited input shall be reviewed by the CONSULTANT and incorporated, with the CITY approval, into the CONSULTANT's work product. Based on the results of the CDW, a draft Master Plan shall be developed as noted in Task 1.2. Subsequent interdepartmental design reviews /presentations and approvals shall be as noted in Task 1.2. A final Master Plan shall then be prepared summarizing the accepted design concept, budget level cost estimate and implementation schedule as noted in Task 1.3. In addition, please note that to facilitate the implementation of the CITY's Public Information Program, the CONSULTANT shall provide electronic files of all project documents upon request by the CITY. Task 1.1 - Project Kick-Off 8~ Proaramming Meeting /Site Reconnaissance Visit The CONSULTANT shall meet with the CITY to review existing reference documents, discuss the results of previous scoping sessions held with affected neighborhood representatives and user groups, discuss the CITY's programmatic needs, and review the CONSULTANT's 2006 concept plan and discuss any revisions needed. Issues to be discussed shall include the proposed project elements (i.e. site lighting, planting, circulation, irrigation, etc.). In addition, the CITYwill Page 2 of 17 Miami Beach Botanical Garden present the CITY's Program procedures, timelines, and budgets. The site visit is intended to facilitate the CONSULTANT's understanding of the project area needs. The CONSULTANT shall prepare draft meeting minutes and forward them to the CITY and or PROGRAM MANAGER for review and comments. The CONSULTANT shall finalize and distribute, accordingly. Based on the results of the meeting and site visit, the CONSULTANT shall revise the 2006 design concept in a way that is responsive to the project program, budget, and schedule. In this effort, the CONSULTANT shall make revisions to its proposed concept plan, as necessary to develop a Recommended Approach as approved by the CITY. Revisions to the design concept shall also take into account adjacent programming and improvements as applicable. The CONSULTANT shall also identify investigative work recommendations or additional services, if any. The CONSULTANT is advised that the CITY's previous reference work products may be utilized and these work products may require revisions by the CONSULTANT. In addition, the CONSULTANT shall prepare preliminary "budget" level cost estimates (+30%, -15% as defined by the American Association of Cost Engineers) for each work component, indicating opinions of probable cost. Estimates shall present costs by category types (i.e. sitework, concrete, specialties, electrical, lighting, landscaping, etc.; CSI format) and shall be prepared in a Microsoft Excel Spreadsheet format. Deliverables: -Attend Project Kick-Off & Programming Meeting/ Site Reconnaissance Visit - Develop Project concept as noted above - Develop "budget" level cost estimates Schedule: -See Schedule "D"- Project Schedule Task 1.2 -Master Plan (DRAFTI: The CONSULTANT shall prepare a draft Master Plan presenting the final consensus design plan (the "Recommended Approach") based on the meeting, site visit and feedback obtained during Task 1.1. The Master Plan shall primarily consist of an illustrative plan-view drawing of the proposed Garden layout, including all proposed landscape and hardscape improvements and existing features to be retained. A key goal is to use the Master Plan drawing for fundraising and promotion by the Miami Beach Botanical Garden, and as such the plan must be a compelling drawing with major site features labeled. In addition, the Master Plan shall include sufficient detail in plans, sections, notes and key descriptions to facilitate review by the various CITY permitting and planning divisions. As a minimum, the draft Master Plan shall include the following written material and graphics: • A draft Illustrative Site Plan showing proposed site improvements. Page 3 of 17 Miami Beach Botanical Garden • Two cross-sections of key features of the plan. • An Executive Summary summarizing the design intentions of the Master Plan, and the fulfillment of CITY needs, as determined in Task 1.1. • A "budget" level cost estimate prepared in conformance with format provided by CITY. Estimates shall be provided for both current (funded) and unfunded improvements. Based upon the CONSULTANT's cost estimate, the CITY will advise the CONSULTANT if portions of the project need to be deleted, phased and/or bid as alternate bid items to satisfy existing fiscal constraints. The CONSULTANT shall revise the draft Master Plan to reflect such issues accordingly. • A Project implementation plan, showing phasing based on the cost estimate above. • A schedule for implementing the Project by phases (i.e. design, bid, award, construction) including critical issues and the time period allowed for resolving each issue. • Discussion regarding permitting authorities having jurisdiction over Project and provide a list of permits typically retained by the Owner and / or Contractor. Unique and / or special permitting requirements shall be identified as well as estimated permitting fees. Ten (10) copies of the draft Master Plan shall be provided to the CITY for initial review and comments. The CITY will forward copies of the draft Master Plan to the following CITY Departments /review entities: • City of Miami Beach Parks and Recreation Department • City of Miami Beach Planning Department • City of Miami Beach Public Works Department • City of Miami Beach Fire Department • City of Miami Beach Tourism and Cultural Development Department • City of Miami Beach Commission Page 4 of 17 Miami Beach Botanical Garden Comments shall be solicited and forwarded to the CONSULTANT for review /comment / response /incorporation into the Final Master Plan document. The CONSULTANT shall address and respond to comments received from the various reviews in writing, and implement requested revisions into the draft Master Plan, as agreed with the CITY, within thirty (30) calendar days of receipt of comments, unless agreed to otherwise with the CITY. It is understood that Design Review approval can be done at a staff level, does not have to go before any of the boards, and is not subject to the CITY BOD process. Deliverables: -Prepare 10 copies of the draft Master Plan. Schedule: -See Schedule "D" -Project Schedule Task 1.3 -Final Master Plan: The CONSULTANT shall prepare a final Master Plan based on comments and revisions implemented during the reviews with the various the CITY Departments /review entities as noted in Task 1.2. This final Master Plan serves as the basis for development of detailed design documents as discussed in Task 2. Based on the Project implementation plan and cost estimate prepared by the CONSULTANT for the Master Plan, the CONSULTANT will meet with the CITY and the Miami Beach Botanical Garden to choose a Phase 1 of construction. The CONSULTANT shall prepare draft meeting minutes and forward them to the CITY and or PROGRAM MANAGER for review and comments. The CONSULTANT shall finalize and distribute, accordingly. Detailed design documents (as described in Task 2) will be prepared for Phase 1 of the Master Plan. Deliverables: -Prepare 10 copies of a final Master Plan Schedule: -See Schedule "D" -Project Schedule TASK 2 -DESIGN SERVICES The purpose of this Task is to establish requirements forthe preparation of Contract Documents for the Project. To facilitate the implementation of a Public Information Program, the CONSULTANT shall provide electronic files of all Project documents, as requested by the CITY The CONSULTANT shall provide the electronic files for the front-end documents, technical specifications, and construction drawings in MS-Word, AutoCAD and Adobe Acrobat file format. Task 2.1 - Verification of Existing Conditions: The CONSULTANT shall obtain available As- Built drawings; perform preliminary investigations of Code requirements, preliminary coordination with sub-consultants. The CITY shall provide the CONSULTANT with copies of the Page 5 of 17 Miami Beach Botanical Garden detailed topographic survey, completed in September 6, 2006. Survey shall be in the proper format along with applicable number of copies for all permit applications. The survey shall be sufficient for the architectural and engineering design of the Garden improvements. The CONSULTANT shall forward same to the following agencies with a request to mark /identify respective utilities on the survey base map. The CONSULTANT shall coordinate this effortwith each agency in an effort to identify the location of all existing underground utilities. The CONSULTANT shall incorporate utility owner markups /edits into its survey base map file. The CONSULTANT shall contact the following entities and request that they each verify locations of their existing improvements in the affected areas: • Florida Power and Light Company • BellSouth • Miami-Dade Water and Sewer Authority • Charter Communications (Atlantic Broadband) • Natural Gas provider • City of Miami Beach Public Works Department • Others as deemed necessary by the CONSULTANT The CONSULTANT shall also request information regarding anyfuture proposed improvements by each agency. To facilitate tracking of the progress made in this work effort, the CONSULTANT shall copy the CITY on all correspondence with each agency. Based on the collected data, the CONSULTANT shall develop a base map for the project. The map shall include an overall key map and partial plans scaled at 1-inch equals 20 feet or a scale that better suits the project requirements. Copies of base maps shall be distributed to CITY. Deliverables: -Perform work as noted to develop updated base map from City- provided final survey and utility company data. Deliver five (5) final base maps to CITY. Schedule: -See Schedule "D" -Project Schedule Task 2.2 -Detailed Design: The CONSULTANT shall prepare detailed design documents consisting of landscape architectural, civil, and structural, waterfeature hydraulics, lighting, and irrigation drawings, as applicable, for Phase 1 of the Master Plan. All Contract Documents are Page 6 of 17 Miami Beach Botanical Garden to be provided in accordance with the applicable architectural and engineering design standards, and in accordance with the requirements of all applicable state, local and federal regulatory agencies having jurisdiction over the Project. The CONSULTANT shall use CITY standard details as provided by CITY, and as deemed appropriate by CONSULTANT. The CONSULTANT shall provide additional sections that may be required, and are not already provided through the CITY standards, as it deems necessary, to provide CITY with a complete work product. All drawings shall be prepared using AutoCAD Version 2000 software, or latest, with a layering system as approved by CITY. Technical specifications shall be prepared in conformance with Construction Specifications Institute (CSI) formats. The CITY shall furnish the CONSULTANT with standard CITY specification outlines for Division 1 and other front-end documents. Any supplier listings required by specifications shall include a minimum of two (2) named suppliers, and shall meet all applicable CITY and State of Florida procurement codes. Specifications shall be provided to the CITY, and or CONSULTANT in "Microsoft MS-Word" format. In addition, the CONSULTANT shall use the same software in all project related work. The CONSULTANT shall utilize base front-end documents provided by the CITY. The CONSULTANT shall edit accordingly to result in a project specific document. Any requirements for Supplementary General Conditions shall be subject to review and acceptance by the CITY. CONSULTANT shall provide, and maintain a design progress schedule. Should the CITY determine that the CONSULTANT has fallen behind schedule; the CONSULTANT shall provide a recovery schedule that shall accelerate work to get back on schedule. The CONSULTANT shall submit monthly invoice requests for its services, accompanied by an updated design progress schedule. For purposes of this Scope of Services, the following will be considered the minimum effort to be provided by the CONSULTANT for establishing detail design milestone submittals. Note that CITY review procedures, and CONSULTANT'S responsibilities associated with such, are discussed under Task 2.3: • The 50% design completion stage milestone shall consist of the updated survey, work products of the previously outlined Tasks, with all proposed improvements identified in approved Master Plan, illustrated in plan and elevation views, and with applicable sections and details. In addition, the CONSULTANT shall include draft technical specifications and a draft schedule of prices bid (bid form) identifying the items to be bid by the prospective contractors with the submittal. Also, this submittal shall include the CONSULTANT'S "Budget" level opinion of probable cost as defined by the American Association of Cost Engineers. Prior to the preparation of the 50% design completion stage drawings, the CONSULTANT shall incorporate changes to its design based upon its existing Page 7 of 17 Miami Beach Botanical Garden as-built /existing conditions verification efforts and review comments received, as noted in Task 2.1 and 2.3. • The 100% design completion stage milestone shall consist of a final construction document set including the front-end documents (general and supplemental conditions), technical specifications, and construction drawings for all work proposed to be completed in Phase 1 of the Master Plan. The CONSULTANT shall include detailed construction sequencing restrictions, and special conditions for the CITY'S review with this submittal. Prior to the preparation of the 100% design completion stage drawings, the CONSULTANT shall incorporate changes to its design based upon review comments received from the 50% submittal, as noted in Task 2.3, below. In addition, the CONSULTANT shall provide its "Definitive" level opinion of probable cost as defined by the American Association of Cost Engineers with this submittal. Documents shall also include all constructability and design review comments, City of Miami Beach Building Department permitting pre-approval comments as may be provided by the CITY and/or jurisdictional review agency. Deliverables: -Furnish sets of design documents as requested by the CITY - Prepare and update project invoices and schedule tracking spreadsheets, on a monthly basis. - Attend progress meetings with CITY staff Schedule: -See Schedule "D" -Project Schedule Note: The above 50% and 100% design documents completions are contingent upon CITY's reviews occurring within the timeframe allowed for final completions of each task. Task 2.3 -Design / Constructability Review: To verify that the CONSULTANT is in compliance with the required Master Plan and CITY's requirements, the CITY shall perform reviews of all Project design documents, including cost estimates, at the 50 and 100% design completion stage submittals. Note that the 100% design completion stage submittal will incorporate the pre-approval review comments from the Building Dept. and will be used to procure permits from jurisdictional review agencies, and/or may be utilized to obtain pricing. The purpose of these reviews shall be to verify that the documents are consistent with the design intent. These documents shall be furnished as bound 8-1/2-inch by 11-inch technical Page 8 of 17 Miami Beach Botanical Garden specifications and full-size (24-inch by 36-inch) and half size (11-inch by 17-inch) scaled drawings as requested by the CITY and as noted in the Task 2.2 deliverables. CITY staff shall perform reviews on these documents and provide written comments (in "Excel" spreadsheet format) back to the CONSULTANT within the timeframes specified in Project Schedule - Schedule "D" Following receipt of comments by the CONSULTANT, the CONSULTANT shall prepare a written memorandum to address how each comment was resolved. Such written memorandum shall be prepared and submitted to CITY for review /approval, within ten (10) working days after the review session. The responses shall be in the spreadsheet format provided to the CONSULTANT. In addition, the CONSULTANT shall revise its documents to address all review comments accordingly, to the satisfaction of the CITY. In addition, the CITY shall perform constructability reviews of the design documents relative to value, construction sequencing /schedule, and bid format. These reviews shall be based upon 50 and 100% design submittals received from the CONSULTANT and shall be conducted concurrently with the 50 and 100% design reviews. These constructability review meetings shall be held with the CONSULTANT and CITY to discuss review comments, as required. A detailed review of CONSULTANT's proposed construction sequencing restrictions will be performed by CITY at the 50 and 100 % completion stages. The CONSULTANT shall note that the CITY's review of the Contract Documents does not relieve the CONSULTANT from its responsibility to the CITY with regard to the quality of its contract documents. Deliverables: - Attend one (1) meeting with CITY staff, as requested, to review and discuss design constructability and value comments. - Prepare written responses to comments made during reviews. Schedule: - Complete concurrently with Design Schedule Task 2.4 - Cost Oainions: The CONSULTANT shall prepare opinions of probable construction costs for the 50 and 100 percent design completion stage submittal. The accuracy of the cost estimate associated with the 50 percent completion stage shall be +30% to -15% "Budget" Level as defined by the American Association of Cost Engineers. The accuracy of the cost estimate associated with the 100 percent completion stage submittals shall be a +15% to -5% "Definitive" Level Estimates as defined by the American Association of Cost Engineers. All Page 9 of 17 Miami Beach Botanical Garden estimates shall be submitted in Microsoft "Excel" format. All estimates shall be furnished bound in 8-1/2-inch by 11-inch size. The CONSULTANT shall advise the CITY immediately when the Project cost estimate exceeds the budget established by the CITY. Based upon the CONSULTANT's cost estimate, the CITY will advise the CONSULTANT if portions of the project need to be deleted, phased and/or bid as alternate bid items to satisfy existing budgetary and fiscal constraints. In this effort, the CONSULTANT maybe required to attend one (1) meeting to develop alternative cost savings options for CITY consideration, if the estimates show that the projected project cost will exceed the target budget. The CONSULTANT shall revise the contract documents to reflect necessary revisions to meet budget parameters at no additional cost accordingly. Deliverables: -Prepare opinions of probable costs at the 50 and 100% completion stage. Attend one (1) meeting with CITY staff to review and discuss cost estimates. This Task includes development of cost savings alternatives, and implementation / revision of documents to address such items, to meet established budget parameters. Schedule: -Complete concurrently with Design Schedule. Task 2.5 - Permitting: Task 2.5.1 -State Permitting: The Consultant shall consult with the Florida Department of Environmental Protection (DEP) relative to civil and will advise the CITY as to any required state permits for the proposed work. This scope of work assumes that the proposed grading and drainage activities will not impact the existing drainage system and will not require a DEP Environmental Resource Permit. Deliverables: -Correspond with jurisdictional authorities to establish permitting requirements. Schedule: -Complete concurrently with the design schedule Task 2.5.2 -City of Miami Beach Permits: Permits from Public Works and the Building Department will be required for the Project. The City will prepare applications and process these permits. The Consultant will assist the City in processing the permits. The Consultant will meet Page 10 of 17 Miami Beach Botanical Garden with representatives of the City as required, toward securing the required approvals for site and civil improvements. Task 2.5.3 -Miami-Dade DERM Permits: The Consultant will prepare permit applications and will process the civil plans for the water, sanitary sewer, and stormwater permits through DERM. This scope of services assumes that no DERM tree removal or relocation permit will be required; if the CITY- preferred Project design, these services will be provided under a separate scope. Task 2.6 -The CONSULTANT's QA/QC of Design Documents: The CONSULTANT shall establish and maintain an in-house Quality Assurance /Quality Control (QA/QC) program designed to verify and ensure the quality, clarity, completeness, constructabilityand bid ability of its contract documents. TASK 3 -BIDDING AND AWARD SERVICES Please note that the Tasks below address the level of service required for a traditional Advertise/Bid/Award process. As an alternative to this traditional bidding process outlined herein, the City may consider implementing the project via the Job Order Contract (JOC) system, the Best Value Procurement Method, or other construction method deemed appropriate. If such decision is made, it is understood that the Consultant's hours assigned to traditional bidding tasks would be re-distributed, on a not to exceed basis, to complete tasks related to procurement of the job through the JOC system. This scope of services includes no allowance for the CONSULTANT's time to assist the CITY in the event of a bid protest. To the proportionate extent the CONSULTANT's services are required in the event of a bid protest, due to a direct action or lack thereof by the CONSULTANT, the CONSULTANT shall participate in such activities at no additional cost to the CITY. Task 3.1 -Bid Document Delivery: The CONSULTANT shall provide the CITY with reproducible, sets of contract documents, including digital plot files. These documents shall include responses to all comments obtained during permit reviews and shall incorporate all corrections required by the permitting agencies. The City Procurement Department shall reproduce documents and handle the advertising, distribution, sale, maintenance of plan holder lists and other aspects of bid document delivery to prospective Bidders. Page 11 of 17 Miami Beach Botanical Garden Task 3.2 -Pre-Bid Conference: CONSULTANT shall attend the pre-bid conference. Task 3.3 -Addenda Issuance: The CONSULTANT shall provide, through CITY, timely responses to all inquiries received by the CITY from prospective bidders. The addenda will be prepared by CITY. Deliverables- -Attend and participate in Pre-bid conference. - Respond to questions from prospective bidders Schedule: -See Schedule "D" -Project Schedule TASK 4 -CONSTRUCTION ADMINISTRATION SERVICES The CONSULTANT shall perform the following tasks related to the construction administration of the Project to support full time construction management services provided by the CITY. These tasks shall be performed for the duration of the construction of the Project. CONSULTANT's compensation is based upon a construction period of approximately six (6) months. Task 4.1 -Pre-Construction Conference: The CONSULTANT shall attend one pre- construction conference for the Project. The CONSULTANT shall prepare and distribute meeting minutes to all attendees and other appropriate parties. At this meeting, it is anticipated that the CITY will issue a Limited Notice to Proceed. A final Notice to Proceed (NTP) shall be issued upon receipt and approval of a construction schedule, schedule of values, submittal schedule and procurement of all applicable construction permits from the contractor. Deliverables: -Attend and participate in one pre-construction conference forthe project and prepare meeting minutes. Schedule: - As scheduled by CITY after receipt of Task 4, Notice to Proceed. Task 4.2 - Bi-Weekly Construction Meetinas: The CONSULTANT shall attend up to ten (10) construction meetings with the contractor and applicable CITY representatives, as required. The purpose of these meetings shall be to review the status of construction progress, shop drawing submittals and contract document clarifications and interpretations. In addition, the CONSULTANT shall review the contractor's furnished two-week look -ahead work schedule to allow for proper coordination of necessary work efforts. These meetings shall also serve as a forum for discussion of construction issues, potential changes /conflicts and any other applicable matters. The meetings may include site visits to visually observe /address Page 12 of 17 Miami Beach Botanical Garden construction related concerns. The site visits shall be separate and distinct from the "Specialty Site Visits" discussed under Task 4.6. The CONSULTANT shall prepare and distribute meeting minutes to all attendees and other appropriate parties. Deliverables: -Attend and participate in ten (10) construction progress meetings, as required, and prepare meeting minutes. Schedule: -Ongoing throughout the project duration. Task 4.3 - Reauests for Information /Contract Document Clarification (RFIs / CDCsI: The CONSULTANT shall receive, log and process all RFIs /CDCs. Whenever an RFI involves the interpretation of design issues or design intent, the CONSULTANT shall prepare a written response within the timeframe specified in the construction contract and return it to the contractor. The CONSULTANT shall distribute and update the RFI log at each progress meeting. In addition, the CONSULTANT may be requested by the CITY to prepare and forward CDCs should certain items within the contract documents require clarification. Deliverables: - Respond to those RFI's that involve design interpretations and return to CONTRACTOR and CITY's office. Prepare RFI log and distribute at meetings. - Issue CDCs as required. Schedule: - Ongoing throughout project construction duration. Task 4.4 - Requests for Chanaes to Construction Cost and/or Schedule: The CONSULTANT shall receive, log, evaluate all requests for project cost and/or schedule changes from the CONTRACTOR, and report such, to the CITY at progress meeting. The CONSULTANT shall distribute and update the Change Order log at each progress meeting. Changes may be the result of unforeseen conditions, interferences identified by the CONTRACTOR during the routine progress of work, inadvertent omissions (betterment) issues in the contract documents or additional improvements requested by the CITY or CONSULTANT. Regardless of the source, the CONSULTANT shall evaluate the merit of the request, as well as the impact of the change in terms of project cost and schedule. CONSULTANT shall review claims and / or change order requests with CITY. No legal claims assistance is included under this Task. Deliverables: -Perform independent review of request for cost increase and/or time extension. - Coordinate and participate in meetings, as required, with the Page 13 of 17 Miami Beach Botanical Garden CITY and CONTRACTOR to resolve and/or negotiate the equitable resolution of request. - Prepare and execute change order documentation (AIA form) -Prepare and update change order log and distribute at progress meetings. Schedule: -Ongoing throughout project construction duration. Task 4.5 -Processing of Shop Drawings: The CONSULTANT will receive, log and distribute shop drawings, as appropriate, for their review. The CONSULTANT shall have 14 calendar days or the number of calendar days specified in the construction contract, (whichever is lesser) from the date of receipt in its office, to review and return shop drawings to CONTRACTOR and CITY's office. Deliverables: -Review Shop Drawings and return them to CITY. -Prepare and update shop drawing log and distribute at progress meetings. Schedule: -Ongoing throughout project construction duration. Task 4.6 -Field Observation Services: The CONSULTANT shall provide specialty site visits by various design disciplines (civil, electrical, landscape architect) on an as requested basis to support full-time construction management services. For the purposes of this scope of services, it is assumed that specialty site visits are included in the Scope or Services, and will be provided by the CONSULTANT as required by the Project. Specialty site visits are assumed to include one or more of the CONSULTANT's Team attendance, as may be requested by the CITY, to review, discuss, resolve field conditions and issues at the job site. Attendance shall be as requested, although a minimum of 24 hour notice will be provided when possible. In cases where conditions require immediate action, the CONSULTANT shall make itself available in the field, as soon as possible, to review /respond to necessary issues. Deliverables: -Provide ten (10) specialty site visits as required and Field Observation Reports Schedule: -Ongoing throughout project construction duration. Page 14 of 17 Miami Beach Botanical Garden Task 4.7 -Project Closeout: Upon receiving notice from the CONTRACTOR advising the CONSULTANT that a Project is substantially complete, the CONSULTANT, in conjunction with appropriate CITY staff, shall conduct an overview of the Project. The overview shall include development of a "punch list" of items needing completion or correction prior to consideration of final acceptance. The CONSULTANT shall develop the Substantial Completion Punch list. The list shall be forwarded to the CONTRACTOR for corrective action. CONSULTANT shall forward copy of said list to the CITY. For the purposes of this Task, Substantial Completion shall be deemed to be the stage in the construction of the Project where the Project can be utilized for the purposes for which it was intended, and where minor items may not be fully completed, but all items that affect the operational integrity and function of the Project are capable of continuous use. Upon notification from the CONTRACTOR that all remaining "punch list" items have been resolved, the CONSULTANT, in conjunction with appropriate CITY staff, shall perform a final review of the finished Project. Based on successful completion of all outstanding work items by the CONTRACTOR, the CONSULTANT shall assist in closing out the construction contract. This shall include the review of markups forwarded by CONTRACTOR, and the reproduction and binding of these markups in an easily accessible and storable manner. Ten (10) copies shall be provided. Deliverables: -Attend two (2) field meetings to review substantial and final completion and assist in development of the applicable "punch lists". Schedule: -At the Substantial and Final completion of the project. TASK 5 -ADDITIONAL SERVICES Additional services would include but not be limited to traffic engineering, archaeological, historical, or environmental analysis, and a Japanese garden specialist. Such services are not currently anticipated, however, if such services are required during the performance of the Work, they shall be requested by CITY and negotiated in accordance with contract requirements. Note that a separate Notice to Proceed is required prior to performance of any Work not expressly required by this Scope of Services. If CONSULTANT proceeds without proper authorization, it does so at its own risk. Page 15 of 17 Miami Beach Botanical Garden TASK 6 - REIMBURSABLES Task 6.1-Reproduction Services: The CONSULTANT shall be reimbursed at the usual and customary rate for reproduction of reports, contract documents and miscellaneous items, as maybe requested by the CITY. Unused amounts in this allowance shall be credited back to the CITY at the completion of the project. Refer to Schedule B. Task 6.2 - Surveying: The CONSULTANT shall update the topographic survey provided by the CONSERVANCY/CITY as required to meet the intent of the approved project Scope outlined in Task 1 -Planning Services and Task 2 -Design Services. Unused amounts in this allowance shall be credited back to the CITY at the completion of the project. Task 6.3 - Geotechnical Evaluation: The CONSULTANT shall contract the services of a professionally licensed geotechnical firm to perform boring /test excavations as necessary to adequately define the soil characteristics for the purposes of design. Actual boring /test excavations shall be as directed by CONSULTANT. Unused amounts shall be credited back to the CITY at the completion of the project. Minimum Drawing Requirements The composite set of drawings to be produced shall contain sufficient information and detail to clearly define all proposed improvements in terms of quantity, quality and location. All drawings and details shall be to a scale sufficient to be legible. The CONSULTANT shall propose a drawing list to be reviewed and approved by the CITY. The below drawing list /description is provided as a guide: ^ Survey ^ Site Plan /Site Layout ^ Show limits of demolition /removal ^ Show limits of proposed work ^ Identify all surface features of all existing and proposed work ^ Identify proposed structures ^ Identify trees /landscaping to remain in place ^ Proposed Landscape/Irrigation ^ Proposed Driveway Section ^ Site furniture/Fixtures/Equipment (FF&E) Page 16 of 17 Miami Beach Botanical Garden ^ Elevations ^ Typical Details ^ Electrical Site Plan Site Plans Existing Conditions -Site Survey - to include property lines, sidewalks, pavement areas, landscaping, existing site improvements, buildings, dimensions of buildings, fencing, lighting, overhead and underground utilities, etc. Demolition -Clearly depict existing conditions to be demolished or modified. Proposed Improvements -Clearly depict all new design elements including sidewalks, pavement areas, landscaping, fencing, lighting, utility modifications, replacements, and additions, etc. Enlarged Site plans -Where necessary to clearly define Project requirements, provide enlarged site plans for specific areas of improvement. Page 17 of 17 Miami Beach Botanical Garden SCHEDULE B: MIAMI BEACH BOTANICAL GARDEN PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & RAYMOND JUNGLES INC. CONSULTANT COMPENSATION Please refer to attached schedule and see below Schedule of Payments: Schedule of Payments Planning Services* $30,000 Design Services* $60,000 Bidding and Award Services $10,000 Construction Administration** $25,000 Reimbursable Allowance*** $5,000 Historic Preservation Board /Design Review Board (if required) N/A Note *: These services will be paid lump sum based on percentage complete of each phase as identified in the individual tasks Note **: Construction administration will be paid on a monthly basis. It is anticipated that construction duration will be 8 months, therefore once construction starts Consultant will be paid $3,125/month for 8 months. In the event that, through no fault of the Consultant, Construction Administration services are required to be extended, which extension shall be at the sole discretion of the city, the Consultant agrees to extend said services for $3,500 per month for the duration required to complete the project. Note ***: The Reimbursable Allowance belongs to the city of Miami Beach and must be approved in advance by the Project Coordinator. Unused portions will not be paid to the Consultant. MIAMI BEACH BOTANICAL GARDEN December 16, 2008 SCHEDULE C PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND RAYMOND JUNGLES INC. HOURLY BILLING RATE SCHEDULE Classification Hourly Billins~ Rate FY 20 ~~~~ Principal / Landscape Architect of $178.50 per hour Record. Principal Civil/MEP Engineer of Record $178.50 per hour Project Manager $148.00 per hour Senior Architect/Engineer $127.00 per hour Engineer /Architect $107.00 per hour Staff Engineer $86 per hour Designer $90 per hour Civil Engineer $110 per hour CADD Operator $$64 per hour Clerical $49.20 per hour December 16, 2008 29 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 SCHEDULE D PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND RAYMOND JUNGLES INC. SEE ATTACHED PROJECT SCHEDULE December 16, 2008 30 ~;; ;'„ ,`4 , ;,;fit ~, ;;: :si Y ,i `J ~ ~ _ ~ I i i i '~ W i I i I I i -{~ I ~ __- j ~ t F . d ~ ~ j O fi U i O ~ „ : ~ 2 C ~ °i C c E « o ~ m «+ ° v ~ ~ W ~ z ~ `o ~' 2 ~ of U ao N ~ o ~ ~ € ~ v ~ R vii U ~ U a ao U ^^^^^^^o MIAMI BEACH BOTANICAL GARDEN December 16, 2008 SCHEDULE E PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND RAYMOND JUNGLES INC. See attached General Conditions of the Construction Contract December 16, 2008 31 00800. GENERAL CONDITIONS: 1. Protect Manual: 1.1. The Project Manual includes any general or special Contract conditions or specifications attached hereto. 1.2. The Project Manual, along with alt documents that make up and constitute the Contract Documents, shall be followed in strict accordance as to work. performance, material, and dimensions except when CONSULTANT may authorize, in writing, an exception. 1.3. Dimensions given in figures are to hold preference over scaled measurements from the drawings; however, ail discrepancies shall be resolved by CONSULTANT. CONTRACTOR shall not proceed when in doubt as to any dimension or measurement, but shall seek clarification from CONSULTANT. 1.4. CONTRACTOR shall be furnished three (3) copies. free of charge, of the Project Manual; two of which shall be preserved and always kept accessible to CONSULTANT and CONSULTANTS authorized representatives. Additional copies of the Project Manual may be obtained from CITY at the cost of reproduction. 2. In n ' n of CITY: ' It is the intent of CITY to describe in the Contract Documents a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents and in accordance with a!I codes and regulations governing construction of the Project. 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 by CONTRACTOR whether or not specifically called for. When words which have a well-known technical or trade meaning are used to describe work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard speafications, manuals, or codes of any technical society, organization or assoaation, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect 'at the time of opening of bids and CONTRACTOR shall comply therewith. CITY shall have no duties other than those duties and obligations expressly set forth within the Contract Documents. SID NO: XX-3(X/XX CITY OF MIAMI BEACH DATE: o~noio6 ~ 3. Preiiminarv Matters: 3.1. Within five (5) calendar days prior to the pre-construction meeting described in Section 3.2, CONTRACTOR shall submit to CONSULTANT for CONSULTANTs review and acceptance: 3.1.1. A progress schedule in the indicated form: [ ]Bar Chart (]Modified CPM [ ]CPM [X] Computerized CPM (CPM shall be interpreted to be generally as outlined in the Assoaation of General Contractors (AGC) publication, "The Use of CPM in Construction.") The progress schedule shall indicate the start and completion dates of the various stages of the Work and shall show an activity network for the planning and execution of the Work. Induded with the progn~ss ~ schedule shat! be a narrative description of the progress schedule. The progress schedule must be updated monthly by CONTRACTOR, submitted as part of each Application for Payment and shat! be acceptable to CONSULTANT. 3.1.2. A preliminary schedule of Shop Drawing submissions; and 3.1.3. in a lump sum contract or in a contract which includes lump sum bid items of ~ Work, a preliminary schedule of values for all of the Work which will include quantities and prices of items aggregating the Contract Price and will subdivide the Work into component parts in sufficient detail to serve as the basis for progress payments during construction. Such prices will include an appropriate amount of overhead and profit applicable to each item of work which will be confirmed in writing by CONTRACTOR at the time of submission. [ ]Such prices shall be broken down to show labor, equipment, materials and overhead and profit. 3.1.4. After award but prior to the submission of the progress schedule, CONSULTANT, Contract Administrator and CONTRACTOR shall meet with all utility owners and secure from them a schedule of uttiity relocation, .provided, however, neither CONSULTANT nor IID NO: XX-XX/X7t ~ CITY OF MIAMI BEACH DA7'd: 07/20/x6 2 CITY shall be responsible for the nonperformance by the utility owners. 3.2. At a time. specified by CONSULTANT but before CONTRACTOR starts the work at the Project site, a conference attended by CONTRACTOR, CONSULTANT and others as deemed appropriate by Contract Administrator, will be held to discuss the schedules referred to in Section 3.1, to discuss procedures for handling Shop Drawings and other submittals and .for processing Applications for Payment, and to establish a working understanding among the parties as to the Work. 3.3. Within thirty-five (35) days from the Project initiation Date set forth in the Notice to Proceed, a conference attended by CONTRACTOR, CONSULTANT and others, as appropriate, wiU be held to finalize the schedules submitted in accordance with Section 3.1. Within forty-five (45) days after the Project Initiation Date set forth !n the Notice to Proceed, the CONTRACTOR shall revise the original schedule submittal to address all review comments from the CPM review conference and resubmit for CONSULTANT review. The finalized progress schedule will be accepted by CONSULTANT only as providing an orderly progression of the Work to completion within the Contract Time, but such acceptance shall not constitute acceptance by CITY or CONSULTANT of the means or methods of construction or of the sequencing or scheduling of the Work, and such acceptance will neither impose on CONSULTANT or CiTY responsibility for the progress or scheduling of the Work nor relieve CONTRACTOR from fuA responsibility therefore. The finalized schedule of Shop Drawing submissions must be acceptable to CONSULTANT as providing a workable arrangement for processing the submissions. The finalized schedule of values pursuant to Section 3.1.3 above must be acceptable to CONSULTANT as to form and substance. 4. Performance Bond and Pa ment Bond: Within fifteen (15) calendar days of being notifred of the award, CONTRACTOR shall furnish a Performance Bond and a Payment Bond containing all the provisions of the Performance Bond and Payment Bond attached hereto as forms 00710 and 00720. BID NO: XX-X~(/a(X CITY OF MlAM1$EACH DATE: 07/20/06 3 4.1. Each Bond shat! be in the amount of one hundred percent (100%) of the Contract Price guaranteeing to CITY the completion and performance of the work covered in such Contract as well as full payment of all suppliers, laborers, or subcontractors employed pursuant to this Project. Each Bond shall be with a surety company which is qualified pursuant to Article 5. 4.2. Each Bond shall continue in effect for one year after Final Completion and acceptance of the work with liability equal to one hundred percent (100%) of the Contract sum, or an additional bond shall be conditioned that CONTRACTOR will, upon notification by CITY, correct any defective or f~~~~~.= ~~•^~ or ~ materials whi~:h ap~-Ear within one year after Final Completion of ~~ ~~ ~c~~,~;.::..,~. 4.3: Pursuant to the requirements of Section 255.05(1)(a), Florida Statutes, as may be amended from time to time, CONTRACTOR shall ensure that the bond(s) referenced above shall be recorded in the public records of Miami-Dade County and provide CITY with evidence of such recording. 4.4. Alternate Form of Security: In lieu of a Pertormance Bond and a Payment Bond, CONTRACTOR may furnish alternate foorms of security which may be in the form of cash, money order, certified check. cashier's check or unconditional letter of credit in the form attached hereto as Form 00735. Such alternate forms of security shall be subject to the prior approval of CITY and for same purpose and shall be subject to the same conditions as those applicable above and shall be held by CITY for one year after completion and acceptance of the Work. 5. Qualification of Surety 5.1. Bid Bonds, Pertormance Bonds and Payment Bonds over Five Hundred Thousand Dollars ($500,000.00): 5.1.1. Each bond must be executed by a surety company of recognized standing, authorized to do business in the State of Florida as surety, having a resident agent in the State of Florida and having been in business with a record of successful continuous operation for at least five (5) years. 5.1.2. The surety company shall hold a current certificate of authority as acceptable surety on federal bonds in accordance with United States Department of Treasury Circular 570, Current Revisions. If the amount of the Bond exceeds the underwriting limitation set forth in the circular, in order to qualify, the net retention of the surety Dm NO: XX-XX/XX CITY OF MIAMI BEACH DA3•B: 07!20/06 4 company shall not exceed the underwriting limitation in the circular, and the excess risks must be protected by coinsurance, reinsurance, or other methods in accordance with Treasury Circular 297, revised September 1, 1978 (31 DFR Section 223.10, Section 223.111). Further, the surety company shall provide CITY with evidence satisfactory to CITY, that such excess risk has been protected in an acceptable manner. 5.1.3. The CITY will accept a surety bond from a company with a rating of B+ or better for bonds up to $2 million, provided, however, that if any surety company appears on the watch list that is published quarterly by Intercom of the Office of the Florida Insurance Commissioner, the CITY shall review and either accept or reject the surety company based on the financial information available to the CITY. A surety company that is rejected by the CITY may be substituted by the Bidder or proposer with a surety company acceptable to the CITY, only if the bid amount does not increase. The following sets forth, in general, the acceptable parameters for bonds: Policy- Financial holder''s Size Amount of Bond tins a o 500,001 to 1,000,000 B+ Class ! 1,000,001 to 2,000,000 B+ Class II 2,000,001 to 5,000,000 A Class Ilf 5,000,001 to 10,000,000 A .Class IV 10,000,001 to 25,000,000 A Class V 25,000,001 to 50,000,000 A Class VI 50,000,001 or more A Class Vll 5.2. For projects of $500,000.00 or less, CITY may accept a Bid Bond, Pertormance Bond and Payment Bond from a surety company which has twice the minimum surplus and capital required by the Florida Insurance Code at the time the invitation to bid is issued, if the surety company is otherwise in compliance with the provisions of the Florida Insurance Code, and if the surety company holds a currently valid certificate of authority issued by the United States Department of the Treasury under Section 9304 to 9308 of Title 31 of the. United States Code, as may be amended from time to time. The Certificate and Affidavit so certifying (Form 00722) should be submitted with the Bid Bond and also with the Pertormance Bond and Payment Bond. D1D NO: XX XX/XX CITY OF MIAMI BEACH DATE: 07/l0/06 S 5.3. More stringent requirements of any grantor agency are set forth within the Supplemental Conditions. If there are no more stringent requirements, the provisions of this section shall apply. 6. Indemnifcation 6.1 CONTRACTOR shall indemnify and hold harmless CITY, its officers, agents, directors, and employees, from liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of CONTRACTOR and persons employed or utilized by CONTRACTOR in the performance of this Agreement. Except as spedfically provided herein, this Agreement does not require CONTRACTOR to indemnify CITY, its employees, officers, directors, or agents from any liability, damage, loss, daim, action, or proceeding. These indemnifications shall survive the term of this Agreement. In the event that any action or proceeding is brought against CITY by reason of any such claim or demand, CONTRACTOR shall, upon written notice from CITY, resist and defend such action or proceeding by counsel satisfactory to CITY. 6.2 The indemnification provided above shall obligate CONTRACTOR to defend at its vwn expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at CITY's option, any and a!I daims of liability and all suits and actions of every name and description covered by Section 6.1 above which may be brought against CITY whether performed by CONTRACTOR, or persons employed or utilized by CONTRACTOR. 7. Insurance Reouirements: 7.1. Without limiting any of the other obligations or liabilities of CONTRACTOR, CONTRACTOR shall provide, pay for, and maintain in force until all of its work to be performed under this Contract has been completed and accepted by CITY (or for such duration as is otherwise specified hereinafter), the insurance coverages set forth herein. 7.1.1. 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 poticy(ies) must include: sID NO: XX XX/XX CITY OF MIAMI BEACH DATE: Q7R0/06 6 7.1.1.1. Employers' Liability with a limit of One Million Doitars (51,000,000.00) Dollars ($) each accident. 7.1.1.2. if any operations are to be undertaken on or about navigable waters, coverage must be included for the U.S. Longshoremen & Harbor Workers Act and Jones Act. 7.1.2. Comprehensive Genera! Liability with minimum limits of Qne Million Dollars 01.000,000.00) per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: [ X ] 7.1.2.1. Premises and/or Operations. (X J 7.1.2.2. Independent Contractors. [ X ] 7.1.2.3. Products andlor Completed Operations for contracts over Fifty Thousand Dollars ($50,000.00) CONTRACTOR shall maintain in force until at least three years after completion of all work required under the Contract, coverage for Products and Completed Operations, including Broad Form Property Damage. [ X ] 7.1.2.4. Explosion, Collapse and Underground Coverages. [ X ] 7.1.2.5. Broad Form Property Damage. [ X j 7.1.2.6. Broad Form Contractual Coverage applicable to this specific Contract, including any hold harmless and/or indemnification. agreement. (] 7.1.2.7. Personal Injury Coverage with Employee and Contractual Exclusions removed, with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability. [ X ] 7.1.2.8• CITY is to be expressly included as an Additional Insured with respect to liability arising out of operations pertormed for CITY by or on behalf of CONTRACTOR or acts or omissions of CONTRACTOR in connection with general supervision of such operation. SID ~~' ~ ~x CITY OF MIAMI BEACH DATE: 07ROV06 ~ 7.1.3. Business Automobile Liability with minimum Limits of One Million Dollars (61,000,000.00) per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must 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 must include: 7.1.3.1. Owned Vehicles. 7.1.3.2. Hired and Non-Owned Vehicles. 7.1.3.3. Employers' Non-Ownership. (Not Applicable to this bid) [ X ] 7.1.4. Builder's Risk insurance for the construction of and/or addition to aboveground buildings or structures is/is not required. The coverage shall be "All Risk" coverage for 100 percent of the completed value, covering CITY as a named insured, with a deductible of not more than Five Thousand Dollars ($5,000.00) each claim. 7.1.4.1. Waiver of Occupancy Clause or Warranty--Policy must be specifically endorsed to eliminate any "Occupancy Clause" or similar warranty or representation that the bullding(s),~ addition(s) or structure(s) in the course of construction shall not be occupied without specific endorsement of the policy. The Policy must be endorsed to provide that the Builder's Risk coverage wiU continue to apply until final acceptance of the building(s), addition(s) or structure(s) by CITY. ~ ] 7.1.4.2. Flood Insurance--When the buildings or structures are located within an identified special flood hazard area, flood insurance must be afforded for the lesser of the total insurable value of such buildings or structures, or, the maximum amount of flood insurance coverage available under the National Flood Program. [ ] 7.1.5. Installation Floater for the installation of machinery and/or equipment into an existing structure is/is not required. The coverage shall be "Ail Risk" coverage inGuding installation and transit for 100 percent of the "installed replacement cost value," covering CITY as a named insured, with a deductible of not more than Five Thousand Dollars ($5,000.00) each Gaim. DID NO; XX XX/XX CITY OF MIAMI BEACH DATt: 0720/06 8 7.1.5.1. Cessation of insurance--Coverage is not to cease and is to remain in force (subject to cancellation notice) until final acceptance by CITY. 7.1.5.2. Flood Insurance--When the machinery or equipment is located within an identified special flood hazard area, flood insurance must be afforded for the lesser of the total insurable value of such buildings or structure, or, the maximum amount of flood insurance coverage available under the National Flood Program. 7.2. If the initial insurance expires prior to the completion of the work, renewal copies of policies shall be furnished at least thirty (30) days prior to the date of their expiration. 7.3. Notice of Cancellation and/or endorsed to provide CITY with cancellation and/or restriction. . Restriction--The policy(ies) must be at least thirty (30) days notice of 7.4. CONTRACTOR shall furnish to the City's Risk Manager Certificates of Insurance or endorsements evidencing the insurance coverage specified above within fifteen (15) calendar days after notification of award of the Contract. The required Certificates of Insurance shall name the types of policies provided, refer specifically to this Contract, and state that such insurance is as required by this Contract. The Certificate of Insurance shall be in form similar to and contain the information set forth in Form 00708. 7.5. The official title of the Owner is the City of Miami Beach, Florida. This official title shall be used in all insurance documentation. 8. Labor and Materials: 8.1. Unless otherwise provided herein, CONTRACTOR shall provide and pay for a)I materials, labor, water, tools; equipment, fight, power, transportation and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 8.2. CONTRACTOR shall at all times enforce strict discipline and good order among its employees and subcontractors at the Project site and shall not employ on the Project any unfit person or anyone not skilled in the work to which they are assigned. DID NO: XX-XX/XX CtTY OF M1AMt BEACH DATE: 07/20/06 9 9. Royalties and Patents: Alt fees, royalties, and Gaims for any invention, or pretended inventions, or patent of any artiGe, material, arrangement, appliance, or method that may be used upon or in any manner be connected with the construction of the Work or appurtenances, are hereby included in the prices stipulated in this Contract for said work. 10. Weather: . Extensions to the Contract Time for delays caused by the effects of inclement weather shall be submitted as a request for a change in the Contract Time pursuant to Artide 40. These time extensions are justffied only when rains or other indement weather conditions or related adverse soil conditfons prevent CONTRACTOR from productively performing controlling items of work identified on the accepted schedule or updates resulting in: {1) CONTRACTOR being unable to work at least fifty percent (50%) of the normal workday on controlling items of work identified on the accepted schedule or updates due to adverse weather conditions; or {2) CONTRACTOR must make major repairs to the Work damaged by weather. Providing the damage was not attributable to a failure to perform or neglect by CONTRACTOR, and providing that CONTRACTOR was unable to work at feast fifty percent (50%) of the normal workday on controlling items of work identified on the accepted schedule or updates. 11. Permits. Licenses and Impact Fees: 11.1, Except as otherwise provided within the Supplemental Conditions, all permits and licenses required by federal, state or local laws. rules and regulations necessary for the prosecution of the Work undertaken by CONTRACTOR pursuant to this Contract shall be secured and paid for by CONTRACTOR. It is CONTRACTOR's responsibility to have and maintain appropriate Certificate(s) of Competency, valid for the Work to be performed and valid for the jurisdiction in which the Work is to be performed for all persons working on the Project for whom a Certificate of Competency is required. 11.2. Impact fees levied by the City and/or Miami-Dade County shall be paid by CONTRACTOR. CONTRACTOR shall be reimbursed only for the actual amount of the impact fee levied by the municipality as evidenced by an invoice or other acceptable documentation issued by the municipality. Reimbursement to CONTRACTOR in no event shall include profit or overhead of CONTRACTOR. IaID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 0780/06 ~ 0 12. Resolution of Disputes: 12.1 To prevent all disputes and litigation, it is agreed by the parties hereto that CONSULTANT shall decide all questions, claims, difficulties and disputes of whatever nature which may arise relative to the technical interpretation of the Contract Documents and fulfillment of this Contract as to the character, quality, amount and value of any work done and materials fumished, or proposed to be done or fumished under or, by reason of, the Contract Documents and CONSULTANTs estimates and decisions upon all claims, questions, difficulties and disputes shall be final and binding to the extent provided in Section 12.2. Any claim, question, difficulty or dispute which cannot be resolved by mutual agreement of CITY and CONTRACTOR shall be submitted to CONSULTANT in writing within twenty-one (21) calendar days. Unless a different period of time is set forth herein, CONSULTANT shall notify CITY and CONTRACTOR in writing of CONSULTANT's decision within twenty-one (21) calendar days from the date of the submission of the claim. question, difficulty or dispute, unless CONSULTANT requires additional time to gather information or allow the parties to provide additional information. All nontechnical administrative disputes shall be determined by the Contract Administrator pursuant to the time periods provided herein. During the pendency of any dispute and after a determination thereof, CONTRACTOR,. CONSULTANT and CITY shall act in good faith to mitigate any potential damages including utilization of construction schedule changes and a(temate means of construction. 12.2 !n the event the determination of a dispute under this ArtiGe is unacceptable to either party hereto, the party objecting to the determination must notify the other party in writing within ten (10) days of receipt of the written determination. The notice must state the basis of the objection and must be accompanied by a statement that any Contract Price adjustment claimed is the entire adjustment to which the objecting party has reason to believe it is entitled to as a result of the determination. Within sixty (60) days after Final Completion of the Work, the parties. shall participate in mediation to address aq objections to any determinations hereunder and to attempt to prevent litigation. The mediator shall be .mutually agreed upon by the parties. Should any objection not be resolved in mediation, the parties retain all their legal rights and remedies provided under State law. A party objecting to a determination specifically waives all of its rights provided hereunder, including its rights and remedies under State law, if said party fails to comply in strict accordance with the requirements of this Article. s1D NO: XX-XX/XX CITY OF M1AM1 BEACH awrE: mnoro6 ~ ~ 13. inspection of Work: 13.1. CONSULTANT and CITY shall at all times have access to the Work, and CONTRACTOR shat! provide proper facilities for such access and for inspecting, measuring and testing. 13.1.1. Should the Contract Documents, CONSULTANT'S instructions, any taws, ordinances, or any public authority require any of the Work to be specially tested or approved, CONTRACTOR shall give CONSULTANT timely notice of readiness of the Work for testing. If the testing or approval is to be made by an authority other than CITY, timely notice shall be given of the date fixed for such testing. Testing shall be made promptly, and, where praccticable, at the source of supply. If any of the Work should be covered up without approval or consent of CONSULTANT. it must, if required by CONSULTANT, be uncovered for examination and properly restored at CONTRACTOR's .expense. 13.1.2. Reexamination of any of the Work may be ordered by CONSULTANT with prior written approval by the Contract Administrator, and if so ordered. the Work must be uncovered by CONTRACTOR. !f such Work is found to be in accordance with the Contract Documents, CITY shall pay the cost of reexamination and replacement by means of a Change Order. If such Work is not in accordance with the Contract Documents, CONTRACTOR shall pay such cost. 13.2. Inspectors shall have no authority to permit deviations from, nor to relax any of the provisions of, the Contract Documents nor to delay the Contract by failure to inspect the materials and work with reasonable promptness without the written permission or instruction of CONSULTANT. 13.3. The payment of any compensation, whatever may be its character or form, or the giving of any gratuity or the granting of any favor by CONTRACTOR to any inspector, directly or indirectly, is strictly prohibited, and any such act on the part of CONTRACTOR will constitute a breach of this Contract. 14. Superintendence and Supervision: 14.1. The orders of CITY are to be given through CONSULTANT, which instructions are to be strictly and promptly followed in every case. CONTRACTOR shall keep on the Project during its progress, afull-time competent English speaking superintendent and any necessary DID NO: XX-XX/XX CITY OF MIAMI BEACH DATt~; 07/20/06 I2 assistants, all satisfactory to CONSULTANT. The superintendent shall not be changed except with the written consent of CONSULTANT, unless the superintendent proves to be unsatisfactory to CONTRACTOR and ceases to be iri its employ. The superintendent shai! represent CONTRACTOR and all directions given to the superintendent shall be as binding as if given to CONTRACTOR and wiA be confirmed ~ in writing by CONSULTANT upon the written request of CONTRACTOR.' CONTRACTOR shall give efficient supervision to the Work, using its best skill and attention. 14.2. Daily, CONTRACTOR's superintendent shall record, at a minimum, the following information in a bound log: the day; date; weather conditions and how any weather condition affected progress of the Work; time of commencement of work for the day; the work being performed; materials, labor, personnel, equipment and subcontractors at the Project site; visitors to the Project site, including representatives of CONSULTANT, regulatory representatives; any ~ special or unusual conditions or occurrences encountered; and the time of termination of work for the day. All information shaA be recorded in the daily log in ink. The daily log shall be kept on the Project site and shall be available at ail times for inspection and copying by CITY and CONSULTANT. 14.3. The Contract Administrator, CONTRACTOR and CONSULTANT shall meet at least weekly or as determined by the Contract Administrator, during the course of the Work to review and agree upon the work performed to date and to establish the controlling items of work for the next two weeks. The CONSULTANT shall publish, keep, and distribute minutes and any comments thereto of each such meeting. 14.4. If CONTRACTOR, in the course of prosecuting the Work, finds any discrepancy between the Contract Documents and the physical conditions of the locality, or any en'ors, omissions, or discrepancies in the Project Manual, it shall be CONTRACTOR's duty to immediately inform CONSULTANT, in writing, and CONSULTANT will promptly review the same, Any work done after such discovery, until authorized, will be done at CONTRACTOR s sole risk. 14.5. CONTRACTOR shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. CONTRACTOR shalt be solely responsible for the means, methods, techniques, sequences and procedures of construction. SID NO: XX-XX/XX CITY OF MUMI BEACH DATE: 0780/06 I3 15. CtTY's Ri~ hc~t to Terminate Contract: 15.1. !f CONTRACTOR fails to begin the Work within fifteen (15) calendar days after the Project Initiation Daie, or fails to perform the Work with sufficient workers and equipment or with sufficient materials to insure the prompt completion of the Work, or shall perform the Work unsuitably, or cause it to be rejected as defective and unsuitable, or shall discontinue the prosecution of the Work pursuant to the accepted schedule or if CONTRACTOR shall fail to perform any material term set forth in the Contract Documents or if CONTRACTOR shall become insolvent or be declared bankrupt, or commit any act of bankruptcy or insolvency, or shall make an assignment for the benefit of creditors, or from any other cause whatsoever shall not carry on the Work in an acceptable manner, Contract Administrator may give notice in writing to CONTRACTOR and its Surety of such delay, neglect or default, specifying the same. If CONTRACTOR, within a period of five (5) calendar days after such notice, shall not proceed in accordance therewith, then CITY may upon written certificate from CONSULTANT of the fact of such delay, neglect or default and CONTRACTOR's failure to comply with such notice, terminate the services of CONTRACTOR. exclude CONTRACTOR from the Project site and take the prosecution of the Work out of the hands of CONTRACTOR, and appropriate or use any or all materials and equipment on the Project site as may be suitable and acceptable. In such case. CONTRACTOR shall not be entitled to receive any further payment until the Project is completed. In addition CITY may enter into an agreement for the completion of the Project according to the terms and provisions of the Contract Documents, or use such other methods as in CITY's sole opinion shall be required for the completion of the Project according to the terms and provisions of the Contract Documents, or use such other methods as in CITY's sole opinion. shall be required for the completion of the Project in an acceptable manner. All damages, costs and charges incurred. by CITY, together with the costs of completing the Project, shalt be deducted from any monies due or which may become due to CONTRACTOR. In case the damages and expenses so incurred by CITY shall exceed the unpaid balance, then CONTRACTOR shall be liable and shall pay to CITY the amount of said excess. 15.2. If after notice of termination of CONTRACTOR's right to proceed, it is determined for any reason that CONTRACTOR was not in default, the rights and obligations of CITY and CONTRACTOR shall be the same as if the notice of termination had been issued pursuant to the Termination for Convenience clause as set forth in Section 15.3 below. ~ID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 I4 15.3. This Contract may be terminated for convenience in writing by CITY upon ten (10} days written notice to CONTRACTOR (delivered by certified mail, return receipt requested) of intent to terminate and the date on which such termination becomes effective. In such case, CONTRACTOR shall be paid for all work executed and expenses incurred prior to termination in addition to termination settlement costs reasonably incurred by CONTRACTOR relating to commitments which had become firm prior to the termination. Payment shall include reasonable profit for work/services satisfactorily performed. No payment shall be made for profit for work/services which have no been performed. 15.4.. Upon receipt of Notice of Termination pursuant to Sections 15.1 or 15.3 above, CONTRACTOR shalt promptly discontinue all affected work unless the Notice of Termination directs otherwise and deliver or otherwise make available to CITY all data, drawings, speafications, reports, estimates, summaries and such other information as may have been required by the Contract Documents whether completed or in process. 16. CONTRACTOR's Riaht to Stoo Work or Terminate Contract: Should CONSULTANT fail to review and approve or state in writing reasons for nonapproval of any Application for Payment within twenty (20} days after it is presented, or if CITY fails either to pay CONTRACTOR within thirty (30) days after presentation by CONSULTANT of any sum certified by CONSULTANT, or to notify CONTRACTOR and CONSULTANT in writing of any objection to the Application for Payment, then CONTRACTOR may. give written notice to CITY and CONSULTANT of such delay, neglect or default, specifying the same. If CITY or CONSULTANT (where applicable), within a period of ten (10) calendar days after such notice shall not remedy the delay, neglect, or default upon which the notice is based, then CONTRACTOR may stop work or terminate this Contract and recover from CITY payment for ail work executed and reasonable expenses sustained therein plus reasonable termination expenses. Any objection made by CITY to an Application for Payment shall be submitted to CONSULTANT in accordance with the provisions of ArtiGe 12 hereof. 17. Assignment: Neither party hereto shall assign the Contract or any subcontract in whole or in part without the written consent of the other, nor shall CONTRACTOR assign any monies due or to become due to it hereunder, without the previous written consent of the Mayor and City Commission. eID NO: XX-XX/XX CITY OF M1AMl BEACH DATE: 0780/06 ~ S 18. Rights of Various Interests: Whenever work being done by CITY's forces or by other contractors is contiguous to or within the limits of work covered by this Contract, the respective rights of the various interests involved shall be established by the Contract Administrator to secure the completion of the various portions of the work in general harmony. . 19. Differing Site Conditions: In the event that during the course of the Work CONTRACTOR encounters subsurface or concealed conditions at the Project site which differ materially from those shown on the Contract Documents and from those ordinarily encountered and generally recognized as inherent in work of the character called for in the Contract Documents; or unknown physical conditions of the Project site, of an unusual nature, which differ materially from that ordinarily encountered and generally recognized as inherent in work of the character called for in the Contract Documents, CONTRACTOR, without disturbing the conditions and before performing any work affected by such conditions. shall, within twenty-four (24) hours of their discovery, notify CITY and CONSULTANT in writing of the existence of the aforesaid conditions. CONSULTANT and CITY shall, within two (2) business days after receipt of CONT'RACTOR's written notice, investigate the site conditions identified by CONTRACTOR. If, in the sole opinion of CONSULTANT, the conditions do materially so differ and cause an increase or decrease in CONTRACTOR's cost of, or the time required for, the performance of any part of the Work, whether or not charged as a result of the conditions, CONSULTANT shall recommend an equitable adjustment to the Contract Price, or the Contract Time, or both. If CITY and CONTRACTOR cannot agree on an adjustment in the Contract Price or Contract Time, the adjustment shall be referred to CONSULTANT for determination in accordance with the provisions of Article 12. Should CONSULTANT determine that the conditions of the Project site are not so materially different to justify a change in the terms of the Contract, CONSULTANT shall so notify CITY and CONTRACTOR in writing, stating the reasons, and such determination shall be final .and binding upon the parties hereto. No request by CONTRACTOR for an equitable adjustment to the Contract under this provision shall be allowed unless CONTRACTOR has given written notice in strict accordance with the provisions of this Article. No request for an equitable adjustment or change to the Contract Price or Contract Tirne for differing site conditions shall be allowed if made after the date certified by CONSULTANT as the date of substantial completion. aID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 0780/06 ~ 6 20. Plans and Working Drawings: CITY, through CONSULTANT, shall have the right to modify the details of the plans and specifications, to supplement the plans and specifications with additional plans, drawings or additional information as the Work proceeds, ail of which shall be considered as part of the Pn~ject Manual. In case of disagreement between the written and graphic portions of the Project Manual, the written portion shall govern. 27 . CONTRACTOR to Check Plans. Specifications and Data: CONTRACTOR shall verify all dimensions, quantities and details shown on the plans, specifications or other data received from CONSULTANT, and shall notify CONSULTANT of all errors, omissions and discrepancies found therein within three (3) calendar days of discovery. CONTRACTOR will not be allowed to take advantage of any error, omission or discrepancy. as full instructions will be fumished by CONSULTANT. CONTRACTOR shall not be liable for damages resulting from errors, omissions or discrepancies in the Contract Documents unless CONTRACTOR recognized such error, omission or discrepancy and knowingly failed to report it to CONSULTANT. 22. CONTRACTOR's Responsibility for Dam es and Accidents: 22.1. CONTRACTOR shall accept full responsibility for the Work against all loss or damage of whatsoever nature sustained until final acceptance by CITY, and shall promptly repair any damage done from any cause whatsoever, except as provided in Article 29. 22.2. CONTRACTOR shall be responsible for all materials, equipment and supplies pertaining to the Project. In the event any such materials, equipment and supplies are lost, stolen, damaged or destroyed prior to final acceptance by CITY, CONTRACTOR shall replace same without cost to CITY, except as provided in Article 29. 23. Warren CONTRACTOR warrants to CITY that ,all materials and equipment fumished under this Contract will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by CONSULTANT, CONTRACTOR shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the provisions of Article 25 herein. SID NO: )CJIC-XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 ~ ~ 24. Su~olementarv Drawings: 24.1. When, in the opinion of CONSULTANT, it becomes necessary to ex^'~`- the Work to be done more fully, or to illustrate tic ~.R!r-~- ~• -~~ ~~ , „~ ~o show any changes which may be requi~~~ _„~~„~mentary drawl^gs, with specifications pertaining there+~ ..,,, ae prepared by CONSULTANT. ~c~+.~. i he supplementary drawi~~gs shall be binding upon CONTRACTOR with the same force as the Project Manual. Where such suppiernentary drawings require either less or more than the original quantities of work, appropriate adjustments shall be made by Change Order. 25. Defective Work: 25.1. CONSULTANT shall have the authority to reject or disapprove work which CONSULTANT frnds to be defective. If required by CONSULTANT, CONTRACTOR shall promptly either correct all defective work or remove such defective work and replace it with nondefective work. CONTRACTOR shall bear all direct, indirect and consequential costs of such removal or corrections including cost of testing laboratories and personnel. 25.2. Should CONTRACTOR fail or refuse to remove or correct any defective work or to make •any necessary repairs in accordance with the requirements of the Contract Documents within the time indicated in writing by CONSULTANT, CITY shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be necessary at CONTRACTOR'S expense. Any expense incurred by CITY in making such removals, corrections or repairs, shall be paid for out of any monies due or which may become due to CONTRACTOR, or may be charged against the Performance Bond. In the event of failure of CONTRACTOR to make all necessary repairs promptly and fully, CITY may declare CONTRACTOR in default. 25.3. lf, within one (1 j year after the date of substantial completion or such longer period of time as may be prescribed by the terms of any applicable speaal warranty required by the Contract Documents, or by any specific provision of the Contract Documents, any of the Work is found to be defective or not in accordance with the Contract Documents, CONTRACTOR, after receipt of written notice from CITY, shall promptly correct such defective or nonconforming Work within the time specified by CITY without cost to CITY, to do so. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which CONTRACTOR might have under the Contract Documents including but not limited to, Article 23 hereof and any claim regarding latent defects. fID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 0720/06 18 25.4. Failure to reject any defective work or material shall not in any way prevent later rejection when such defect is discovered, or obligate CITY to final acceptance. 26. Taxes CONTRACTOR shall pay all applicable sales, consumer, use and other taxes required by law. CONTRACTOR is responsible for reviewing the pertinent state statutes involving state taxes and complying with all requirements. 27. Subcontracts: 27.1. CONTRACTOR shall not employ any subcontractor against whom CITY or CONSULTANT may have a reasonable objection. CONTRACTOR shall not be required to employ any subcontractor against whom CONTRACTOR has a reasonable objection. 27.2. CONTRACTOR shall be fully responsible for all acts and omissions of its subcontractors and of persons directly or indirectly employed by its subcontractors and of persons for whose acts any of them may be liable to the same extent that CONTRACTOR is responsible for the acts and omissions of persons directly employed by it. Nothing in the Contract- Documents shall create any contractual relationship -between any subcontractor and CITY or any obligation on the part of CITY to pay or to see the payment of any monies due any subcontractor. CITY or CONSULTANT may furnish to any subcontractor evidence of amounts paid to CONTRACTOR on account of specific work performed. 27.3. CONTRACTOR agrees to bind specif+cally every subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of CITY. [ ] 27.4. CONTRACTOR shall perform the Work with its own organization, amounting to not less than _____% percent of the Contract Price. 28. Separate Contracts: 28.1. CITY reserves the right to let other contracts in connection with this Project. CONTRACTOR shall afford other persons 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. 28.2. If any part of CONTRACTOR'S Work depends for proper execution or results upon the work of any other persons, CONTRACTOR shall inspect 1ID NO: XX XX/XX CITY OF MIAMI BEACH DATE: 07R0J06 ~ 9 and promptly report to CONSULTANT any defects in such work that render it unsuitable for such proper execution and results. CONTRACTOR's failure to so inspect and report shall constitute an acceptance of the other person's work as fit and proper for the reception of CONTRACTOR's Work, except as to defects which may develop in other contractor's work after the execution of CONTRACTOR's. 28.3. CONTRACTOR shall conduct its operations and take all reasonable steps to coordinate the prosecution of the Work so as to create no interference or impact on any other contractor on the site. Should such interference or impact occur, CONTRACTOR shall be liable to the affected contractor for the cost of such interference or impact. 28.4. To insure the proper execution of subsequent work, CONTRACTOR shall inspect the work already in place and shall at once report to CONSULTANT any discrepancy between the executed work and the requirements of the Contract Documents. 29. Use of Completed Portions: 29.1. CITY shall have the right at its sole option to take possession of and use any completed or partially completed portions of the Project. Such possession and use shah not be deemed an acceptance of any of the Work not completed in accordance with the Contract Documents. If such possession and use increases the cost of or delays the Work, CONTRACTOR shall be entitled to reasonable extra compensation, or reasonable extension of time or both. as recommended by CONSULTANT and approved by CITY. . 29.2. In the event CITY takes possession of any completed or partially completed portions of the Project, the following shall occur: 29.2.1. CITY shall give notice to CONTRACTOR in writing at least thirty (30) calendar days prior to CITY's intended occupancy of . a designated area. 29.2.2. CONTRACTOR shall complete to the point of Substantial Completion the designated area and request inspection and issuance of a Certificate of Substantial Completion in the form attached hereto as 00925 from CONSULTANT. D1D NO: XX-XXJXX CITY OF MIAMI BEACH DwTE: o~noio6 zo 29.2.3. Upon CONSULTANTs issuance of a Certificate of Substantial Completion, CITY .will assume full responsibility for maintenance, utilities, subsequent damages of CITY and public, adjustment of insurance coverages and start of warranty for the occupied area. 29.2.4. CONTRACTOR shall complete all items noted on the Certificate of Substantial Completion within the time specified by CONSULTANT on the Certificate of Substantial Completion, as soon as possible and request. final inspection and final acceptance of the portion of the Work occupied. Upon completion of final inspection and receipt of an application for final payment. CONSULTANT shall issue a Final Certificate of Payment relative to the occupied area. 29.2.5. If CITY finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion thereof, such occupancy or use shall not commence prior to a time mutually agreed upon by CITY and CONTRACTOR and to which the insurance company or companies providing the property insurance have consented by endorsement to the policy or policies. Insurance on the unoccupied or unused portion or portions shall not be canceled or lapsed on account of such partial occupancy or use. Consent of CONTRACTOR and of the insurance company or companies to such occupancy or use shall not be unreasonably withheld. 30. Lands for Work: 30.1. CITY shall provide, as may be indicated in the Contract Documents, the lands upon which the Work is to be pertormed, rights-of way and easements for access thereto and such other lands as are designated by CITY or the use of CONTRACTOR. 30.2. CONTRACTOR shall provide, at CONTRACTOR's own expense and without liability to CITY, any additional land and access thereto that may be required for temporary construction facilities, or for storage of materials. CONTRACTOR shall furnish to CITY copies of written permission obtained by CONTRACTOR from the owners of such facilities. 31. Legal Restrictions and Traffic Provisions: CONTRACTOR shall conform to and obey all applicable laws, regulations, or ordinances with regard to labor employed, hours of work and CONTRACTOR's general operations. CONTRACTOR shall conduct its operations so as not to dID NO: XX-XXlXX CITY OF MIAMI BEACH DATE: 07/20/06 21 close any thoroughfare, nor intertere in any way with traffic on railway, highways, or water, without the prior written consent of the proper authorities. 32. Location and Damage to Existino Facilities Eaui~ment or Utilities: 32.1. As far as possible, all existing utility lines in the Project area have been shown on the plans. However, CITY does not guarantee that all lines are shown, or that the ones indicated are in their true location. It shall be the CONTRACTOR S responsibility to identify and locate all underground and overhead utility tines or equipment affecting or affected by the Project. No additional payment will be made io. the CONTRACTOR because of discrepancies in actual and plan location of utilities, and damages suffered as a result thereof. 32.2. The CONTRACTOR shall notify each utility company involved at least ten (10) days prior to the start of .construction to arrange for positive underground location, relocation or support of its utility where that utility may be in conflict with or endangered by the proposed construction. Relocation of water mains or other utilities for the convenience of the CONTRACTOR shall be paid by the CONTRACTOR. All charges by utility companies for temporary support of its utilities shall be paid for by the CONTRACTOR. All costs of permanent utility relocation to avoid conflict shall be the responsibility of the utility company involved. No additional payment will be made to the CONTRACTOR for utility relocations, whether or not said relocation is necessary to avoid conflict with other lines. 32.3. The CONTRACTOR shall schedule the work in such a manner that the work is not delayed by the utility providers relocating or supporting their utilities. The CONTRACTOR shall coordinate its activities with any and all public and private utility providers occupying the right-of--way. No compensation wiU be paid to the CONTRACTOR for, any loss of time or aelay. 32.4. All overhead, surface or underground structures and utilities encountered are to be carefully protected from injury or displacement. All damage to such structures is to be completely repaired within a reasonable time; needless delay will not be tolerated. The CITY reserves the right to remedy such damage by ordering outside parties to make such repairs at the expense of the CONTRACTOR. Aii such repairs made, by the CONTRACTOR are to be made to the satisfaction of the utility owner. All damaged utilities must be replaced or fully repaired, All repairs are to be inspected by the utility owner prior to backfilling. DID NQ: XX-XX/XX CITY OF M1AMl BEACH DATL: 0780/06 Z2 33. Value Engineering: CONTRACTOR rn~• ,aquest substitution of materials, articles, pieces of ,_,~V.r.~..~,_. _. _.,y cha;~ges that reduce the Contract Price by making such request to Cafe:.': ~i_TANT in writing. CONSULTANT will be the sole judge of acceptability, and no substitute will be ordered, installed, used or initiated without CONSULTANTs prior written acceptance which will be evidenced by either a Change Order or an approved Shop Drawing. However, any substitution accepted by CONSULTANT shall not result in any increase in the Contract Price or Contract Time. By making a request for substitution, CONTRACTOR agrees to pay directly to CONSULTANT all CONSULTANT's fees and charges related to CONSULTANT'S review of the request for substitution, whether or not the request for substitution is accepted by CONSULTANT. Any substitution submitted by CONTRACTOR .must meet the form, fit, function and life cycle criteria of the item proposed to be replaced and there must be a net dollar savings including CONSULTANT review fees and charges. If a substitution is approved, the net dollar savings shall be shared equally between CONTRACTOR and CITY and shall be processed as a deductive Change Order. CITY may require CONTRACTOR to famish at CONTRACTOR'S expense a special performance guarantee or other surety with respect to any substitute approved after award of the Contract. 34. Continuing~e Work: CONTRACTOR shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with CITY, including disputes or disagreements concerning a request for a Change Order, a request for a change in the Contract Price or Contract Tirne. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. 35. Chanoes in the Work or Terms of Contract Documents: 35.1. Without invalidating the Contract and without notice to any surety CITY reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or addi#ional work within the scope of this Project must be accomplished by means of appropriate Field Orders and Supplemental Instructions or Change Orders. 35.2. Any changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any work reflecting SID NO: XX-XX/XX CITY OF M1AM1 BEACH DATE: 07/ZO/06 23 such change. This section shall not prohibit the issuance of Change Orders executed only by CITY as hereinafter provided. 36. 37. Field Orders and Supplemental Instructions: 36.1. The Contract Administrator, through CONSULTANT, 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 Work execution, providing the Field Order involves no change in the Contract Price or the Contract Time. 36.2. CONSULTANT ~~^'' "ave !r ,,, ucG~..~ settin4 fnr[n ~nceming she Cr , ~~: t Supplemental Instn.:..;ur~s Contract Ti:^ ~e. the right !^ - ,,.,e .,~ ,ss~~ ~~~~~~;,.:~;;~.G~ _ _.. .~~~~ ::~tructions, or interpretations n~ ~:~,ts or its performance, provided sych ~, ; ~~olve no change in the Contract Price or the Chance Orders: 37.1. Changes in the quantity or character of the Work within the scope of the Project which are not properly the subject of Field Orders or Supplemental Instructions, including all changes resulting in changes in the Contract Price, or the Contract Time, shall be authorized only by Change Orders approved in advance and issued in accordance with the provisions of the CITY. 37.2. All changes to construction contracts must be approved in advance in accordance with the value of the Change Order or the calculated value of the time extension, All Change Orders with a value of $25,000 or more shall be approved in advance by the Mayor and City Commission. All Change Orders with a value of less than $25,000 shah be approved in advance by the City Manager or his designee. 37.3. fn the event satisfactory adjustment cannot be reached for any item requiring a change in the Contract Price or Contract Time, and a Change Order has not been issued, CITY reserves the right at its sole option to either terminate the Contract as it applies to the items in question and make such arrangements as may be deemed necessary to complete the disputed work; or submit the matter in dispute to CONSULTANT as set forth in Article 12 hereof. During the pendency of the dispute, and upon receipt of a Change Order approved by CITY, CONTRACTOR shall promptly proceed with the change in the Work involved and advise the CONSULTANT and Contract Administrator in writing within seven (7) calendar days of CONTRACTOR`s agreement or disagreement with the HID NO: XX-XX/XX C[TY OF MIAMI BEACH DATE: 07/20/06 24 method, if any, provided in the Change Order for determining the proposed adjustment in the Contract Price or Contract Time. 37.4. On approval of any CONTRACTOR shall bond are increased increased. Contract change increasing the Contract Price, ensure that the performance bond and payment so that each reflects the total Contract Price as 37.5. Under circumstances determined necessary by CITY, Change Orders may be issued unilaterally by CITY. 38. -Value of Chanoe Order Work: 38.1. The value of any work covered by a Change Order or of any claim for an increase or decrease in the Contract Price shall be determined in one of the following ways: 38.1.1. 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 of Section 38.7. 38.1.2. By mutual acceptance of a lump sum which CONTRACTOR and CITY acknowledge contains a component for overhead and profit. 38.1.3. On the basis of the "cost of work," determined as provided in Sections 38.2 and 38.3, plus a C4NTRACTOR's fee for overtead and profit which is determined as .provided in Section 38.4. 38.2. The term "cost of work" means the sum ~ of all direct costs necessarily incurred and paid by CONTRACTOR in the proper performance of the Work described in the Change Order. Except as otherwise may be agreed to in writing by CITY, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items and shall not include any of the costs itemized in Section 38.3. 38.2.1. Payroll costs for employees in the direct employ of CONTRACTOR in the performance of the work described in the Change Osier under schedules of job classifications agreed upon by CITY and CONTRACTOR. Payroll costs for employees not employed full time on the work covered by the Change Order shalt be apportioned on the basis of their time spent on IsID NO: XX-XX1XX CITY OF MIAMI BEACH DATE: 0780/06 2S the work. Payroll -costs shall include, b~~+ nit ~~ ~~ ;_~. -~ salaries and wages plus the c~~* ~' ..__v ~v' .....ye oenefits which shaif include social sert~~+~ _,,,,~nons, unemployment, excise and paYr^~~ *"" =.., woncers' er dvorkmen's compensation, health and ~~~~ moment benefits, bonuses, sick leave, vacation and holiday pay application thereto. Such employees shall include superintendents and foremen at the 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 CITY. 38.2.2. Cost of all materials and equipment furnished and incorporated in the work, including costs of transportation and storage thereof, and manufacturers' field services required in connection therewith. All cash discounts shall accrue to CONTRACTOR unless CITY deposits funds with CONTRACTOR with which to make payments, in which case the cash discounts shall accrue to CITY. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to CITY and CONTRACTOR- shall make provisions so that they may be obtained. Rentals of all construction equipment and machinery and the parts thereof whether rented from CONTRACTOR or others in accordance with rental agreements approved by CITY with the advice of CONSULTANT 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 work. 38.2.3. Payments made by CONTRACTOR to Subcontractors for work pertormed by Subcontractors. If required by CITY, CONTRACTOR shall obtain competitive bids from Subcontractors acceptable to CONTRACTOR and shall deliver such bids to CITY who will then determine, with the advice of CONSULTANT, which bids will be accepted. If the Subcontract provides that the Subcontractor is to be paid on the basis of cost of the work plus a fee, the Subcontractor's cost of the work shall be determined in the same manner as CONTRACTOR'S cost of the work. All Subcontractors shall be subject to the other provisions of the Contract Documents insofar as applicable. 38.2.4. Cost of special consultants, including, but not limited to, engineers, architects, testing laboratories, and surveyors DiD NO: XX-XX/aCX C[TY OF M1AMI BEACH DATE: 07Aa/06 26 employed for services specifically related to the performance of the work described in the Change Order. 38.2.5. Supplemental costs including the following: 38.2.5.1. The proportion of necessary transports#ion, travel and subsistence expenses of CONTRACTOR's employees incurred in discharge of duties connected with the work except for local travel to and from the site of the work. 38.2.5.2. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, applian- ces, office and temporary faalities at the site and hand tools not owned by the workmen, which 'are consumed in the performance of the work, and cost less market value of such items used but not consumed which remains the property of CONTRACTOR. 38.2.5.3. Sales, use, or similar taxes related to the work, and for which CONTRACTOR is liable, imposed by any govemmenta! authority. 38.2.5.4. Deposits lost for causes other than CONTRACTOR's negligence; royalty payments and fees for permits and licenses. 38.2.5.5. The cost of utilities, fuel and sanitary facilities at the site. 38.2.5.6. Receipted minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection with the work. 38.2.5.7. Cost of premiums for additional bonds and insurance required because of changes in the work. 38.3. The term "cost of the work" shall not include any of the following: 38.3.1. Payroll costs and other compensation of CONTRACTOR's officers, executives, principals (of partnership and sole proprietorships), general managers, engineers, architects, estimators, lawyers, auditors, accountants, purchasing and •ID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 07~10/a6 27 contracting agents, expediters, timekeepers, clerks and other personnel employed by CONTRACTOR whether at the site or in its principal or a branch office for general administration of the work and not specifically included in the agreed-upon schedule of job classifications referred to in Section 38.2.1., all of which are to be considered administrative costs covered by CONTRACTOR's fee. 38.3.2. Expenses of CONTRACTOR's principal and branch offices other than CONTRACTOR's office at the site. 38.3.3. Any part of CONTRACTOR's capital expenses, including interest on CONTRACTOR's capital employed for the work and charges against CONTRACTOR for delinquent payments. 38.3.4. Cost of premiums for all Bonds and for all insurance whether or not CONTRACTOR is required by the Contract Documents to purchase and maintain the same, except for additional bonds and insurance required because of changes in the work. 38.3.5. Costs due to the negligence or neglect of CONTRACTOR, any Subcontractors, 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 con action of defective work, disposal of materials or equipment wrongly supplied and making good any. damage to property. 38.3.6. Other overhead or general expense costs of any kind and the cost of any item not speafically and expressly included in Section 38.2. 38.4. CONTRACTOR's fee allowed to CONTRACTOR for overhead and profit shall be determined as follows: 38.4.1. A mutually acceptable fixed fee or if none can be agreed upon, 38.4.2. A fee based on the following percentages of the various portions of the cost of the work: 38.4.2.1. For costs incurred under Sections 38.2.1 and 38.2.2, CONTRACTOR's fee shall not exceed ten percent (10%), 38.4.2.2. For costs incurred under Section 38.2.3, CONTRACTOR's fee shall not exceed seven and DID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 28 one half percent (7.5%); and if a subcontract is on the basis of cost of the work plus a fee, the maximum allowable to the Subcontractor as a fee for overhead and profit shall not exceed ten percent (10%j; and 38.4.2.3. No fee shall be payable on the basis of costs itemized under Sections 38.2.4 and 38.2.5, (except Section 38.2.5.3), and Section 38.3. 38.5. The amount of credit to be allowed by CONTRACTOR to CITY for any such change which results in a net decrease in cost, will 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, however, CONTRACTOR shat! not be entitled to claim lost profits for any Work not performed. 38.6. Whenever the cost of any work is to be determined pursuant to Sections 38.2 and 38.3, CONTRACTOR wilt submit in a form acceptable to CONSULTANT an itemized cost breakdown together with the supporting data. 38.7. Where the quantity of any item of the Work that is covered by a unit price is increased or decreased by more than twenty percent (20°~b) from the quantity of such work indicated in the Contract Documents, an appropriate Change Order shall be issued to adjust the unit price, if warranted. 38.8. 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, CONTRACTOR shall submit an initial cost estimate acceptable to CONSULTANT and Contract Administrator. 38.8.1. Breakdown shall list the quantities and unit prices for materials, labor, equipment and other items of cost. 38.8.2. Whenever a change involves CONTRACTOR and one or more Subcontractors and the change is an increase in the Contract Price, overhead and profit percentage for CONTRACTOR and each Subcontractor shall be itemized separately. 38.9. Each Change Order must state within the body of the Change Order whether it is based upon unit price, negotiated lump sum, or "cost of the work." BlD NO: XX-XJUXX CITY OF MIAMI BEACH DATd: 0780/06 29 39. Notification and Claim for Change of Contract Time or Contract Price: 39.1. Any claim for a change in the Contract Time or Contract Price shall be made by written notice by CONTRACTOR to the Contract Administrator and to CONSULTANT within five (5) calendar days of the commencement of the event giving rise to the claim and stating the general nature and cause of the claim. Thereafter, within twenty (24) calendar days of the termination of the event giving rise to the claim, written notice of the extent of the claim with supporting information and documentation shalt be provided unless CONSULTANT allows an additional period of time to ascertain more accurate data in support of the claim and such notice shall be accompanied by CONTRACTOR's written notarized statement that the adjustment claimed is the entire adjustment to which the CONTRACTOR has reason to believe it is entitled as a result of the occurrence of said event. All claims for changes in the Contract Time or Contract Price shall be determined by CONSULTANT in accordance with Article 12 hensof, if CITY and CONTRACTOR cannot otherwise agree. IT IS EXPRESSLY AND SPECIFICALLY AGREED THAT ANY AND ALL CLAIMS FOR CHANGES TO THE CONTRACT TIME OR CONTRACT PRICE SHALL BE WAIVED 1F NOT SUBMITTED IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF THIS SECTION. 39.2. The Contract Time wil! be extended in an amount equal to time lost on critical Work items due to delays beyond the control of and through no fault or negligence of CONTRACTOR if a claim is made therefor as provided in Section 39.1. Such delays shall include, but not be limited to, acts or neglect by any separate contractor employed by CITY, fires, floods, labor disputes, epidemics, abnormal weather conditions or acts of God. 44. No Damages for Delay: No claim for damages or any claim, other than for an extension of time, shall be made or asserted against CITY by reason of any delays except as provided herein. CONTRACTOR shall not be entitled to an increase in the Contract Price or payment or compensation of any kind from 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; provided, however, that this provision shall not preclude recovery of damages by CONTRACTOR for actual delays due solely to fraud, bad faith or active interference on the part of CITY or its CONSULTANT. Otherwise, CONTRACTOR shall be entitled only to SID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 0780/06 30 extensions of the Contract Time as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above. 41. Excusable Delay: Comoensable: Non-Comoensable: 41.1 Excusable Delay. Delay which extends the completion of the Work and which is caused by circumstances beyond the control of CONTRACTOR or its subcontractors, suppliers or vendors is Excusable Delay. CONTRACTOR is entitled to a time extension of the Contract Time for each day the Work is delayed due to Excusable Delay. CONTRACTOR shall document its daim for any time extension as provided in Article 39 hereof. Failure of CONTRACTOR to comply with Artide 39 hereof as to any particular event of delay shall be deemed condusively to constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay. Excusable Delay may be Compensable or non-Compensable: {a) Compensable Excusable Delay. Excusable Delay is Compensable when (l) the delay extends the Contrail Time, (ii) is caused by dreumstances beyond the control of the CONTRACTOR or its subcontractors, suppliers or vendors, and (iii) is caused solely by fraud, bad faith or active interference on the part of CITY or its agents. In no event shall CONTRACTOR be compensated for interim delays which do not extend the Contract Time. CONTRACTOR shall be entitled to direct and indirect costs for Compensable Excusable Delay. Direct costs recoverable by CONTRACTOR shall be limited to the ailua! additional costs allowed pursuant to Article 38 hereof. CITY and CONTRACTOR recognize and agree that the amount of CONTRACTOR's precise actual indirect costs for delay in the performance and completion of the Work is impossible to determine as of the date of execution of the Contract Documents, and that proof of the precise amount will be difficult. Therefore, indirect costs recoverable by the CONTRACTOR shall be liquidated on a daily basis for each day the Contract Time is delayed due to a Compensable Excusable Delay. These liquidated indirect costs shall be pall to compensate CONTRACTOR for all indirect costs caused by a Compensable Excusable Delay and shall indude, but not be limited to, all profit on indirect costs, home office overhead, acceleration, loss of earnings, loss of productivity, loss of 1sID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 3l bonding capacity, loss of opportunity and all other indirect costs incurred by CONTRACTOR. The amount of liquidated indirect costs recoverable shall be N/A per day for each calendar day the Contract is delayed due to a Compensable Excusable Delay. (b) Non-Compensabie Excusable Delay. When Excusable Delay is (i) caused by arcumstances beyond the control of CONTRACTOR, its subcontractors, suppliers and vendors, and is also caused by circumstances beyond the control of the CITY or CONSULTANT, or (ii) is caused jointly or concurrently by CONTRACTOR or its subcontractors, suppliers or vendors and by the CITY or CONSULTANT, then CONTRACTOR shall be entitled only to a time extension and no further compensation for the delay. 42. Substantial Com leo tion: When CONTRACTOR considers that the Work, or a portion thereof designated by CITY pursuant to Article 29 hereof, has reached Substantial Completion, CONTRACTOR shall so notify CITY and CONSULTANT in writing. CONSULTANT and CITY shall then promptly inspect the Work. When CONSULTANT, on the basis of such an inspection, determines that the Work or designated portion thereof is substantially complete, it will then prepare a Certificate of Substantial Completion in the form attached hereto as Form 00925 which shall establish the Date of Substantial Completion; shall state the responsibilities of CITY and CONTRACTOR for security, .maintenance, heat, utilities, damage to the Work, and insurance; and shall list ail Work yet to be completed to satisfy the requirements of the Contract Documents for Final Completion. The failure to include any items of corrective work on such list does not alter the responsibi{ity of CONTRACTOR to complete all of the Work in accordance with the Contract Documents. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. The Certificate of Substantial Completion shall be submitted to CITY through the Contract Administrator and CONTRACTOR for their written acceptance of the responsibilities assigned to them in such Certificate. 43. No Interest: Any monies not paid by CITY when claimed to be due to CONTRACTOR under this Agreement, including, but not limited to, any and all claims for contract damages of any type. shall not be subject to interestsnduding, but not limited to prejudgment interest. However, the provisions of CITY's prompt payment ordinance, as such relates to timeliness of payment, and the provisions of SID ND: XX-XX/XX CITY OF MIAMI BEACH DATE: o~noio6 3t Section 218.74(4}, Florida Statutes (1989) as such relates to the payment of interest, shall apply to valid and proper invoices. 44. Shop Drawings: 44.1. CONTRACTOR shall submit Shop Drawings as required by the Technical Specifications. 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. 44.2. Within thirty (30) calendar days after the Project initiation Date specified in the Notice to Proceed, CONTRACTOR shall submit to CONSULTANT a complete list of preliminary data on items for which Shop Drawings are to be submitted and shall identify the critical items. Approval of this fist by CONSULTANT shall in no way relieve CONTRACTOR from submitting complete Shop Drawings and providing materials, equipment, etc., fully in aa;ordance with the Contract Documents. This procedure is required in order to expedite final approval of Shop Drawings. 44.3. After the approval of the list of items required in Section 44.2 above, CONTRACTOR shall promptly request Shop Drawings from the various manufacturers, fabricators, and suppliers. CONTRACTOR shall include all shop drawings and other submittals in its certification. 44.4. CONTRACTOR shall thoroughly review and check the Shop Drawings and each and every copy shall show this approval thereon, 44.5. !f the Shop Drawings show or indicate departures from the Contract requirements, CONTRACTOR shall make specific mention thereof in its fetter of transmittal. Failure to point out such departures shall not relieve CONTRACTOR from its responsibility to comply with the Contract Documents. 44.6. CONSULTANT shall review and approve Shop Drawings within twenty- one (21) calendar days from the date received, unless said Drawings are rejected by CONSULTANT for material reasons. CONSULTANT's approval of Shop Drawings will be general and shat! not relieve CONTRACTOR of responsibility for the accuracy of such Drawings, nor for the proper fitting and construction of the work, nor for the furnishing of materials or work required by the Contract Documents and not indicated on the Drawings. No work called for by Shop Drawings shall be performed until the said Drawings have been approved by CONSULTANT. Approval shall not relieve CONTRACTOR from responsibility for errors or omissions of any sort on the Shop Drawings. dID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 33 44.7. No approval wilt be given to partial submittals of Shop Drawings for items which interconnect and/or are interdependent where necessary to properly evaluate the design. It is CONTRACTOR's responsibility to assemble the Shop Drawings for all such interconnecting and/or interdependent items, check them and then make one submittal to "CONSULTANT along with its comments as to compliance, noncompliance, or features requiring special attention. 44.8. If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. 44.9. CONTRACTOR shall submit the number of .copies required by CONSULTANT. Resubmissions of Shop Drawings shall be made in the same quantity until final approval is obtained. 44.10. CONTRACTOR shall keep one set of Shop Drawings marked with CONSULTANT's approval at the job site at all times. 45. Field Layout of the Work and Record Drawings: 45.1. The entire responsibility for establishing and maintaining line and grade in the field ties with CONTRACTOR. CONTRACTOR shall maintain an accurate and prease record of the location and elevation of all pipe lines, conduits, structures, maintenance access structures, handholes, fittings and the like and shalt prepare record or "as-built" drawings of the same which are sealed by a Professional Surveyor. CONTRACTOR shall deliver these records in good order to CONSULTANT as the Work is completed. The cost of all such field layout and recording work is included in the prices bid for the appropriate items. All record drawings shall be made on reproduable paper and shall be delivered to CONSULTANT prior to, and as a condition of, final payment. 45.2. CONTRACTOR shall maintain in a safe place at the Project site one record copy of all Drawings, Plans, Specifications, Addenda, written amendments, Change Orders, Field Orders and written interpretations and clarifications in good order and annotated to show alt changes made during construction. These record documents together with all approved samples and a counterpart of all approved Shop Drawings shall be available at all times to CONSULTANT for reference. Upon Final. Completion of the Project and prior to Final Payment, these record documents, samples and Shop Drawings shall be delivered to the Contract Administrator. SID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 07/ZO/06 34 45.3. Prior to, and as a condition precedent to Final Payment, CONTRACTOR shall submit to .CITY, CONTRACTORSs record drawings or as-built drawings acceptable to CONSULTANT. 46. safety and Protection: 4fi.1. CONTRACTOR shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project. CONTRACTOR shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 46.1.1. All employees on the work site and other persons who may be affected thereby; 46.1.2. All the work and all materials or equipment to be incorporated therein, whether in storage on or off the Project site; and 46.1.3. Other property at the Project site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 46.2. CONTRACTOR shalt 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 ail necessary safeguards for such safety and protection. 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 Sections 46.1.2 and 46.9.3 above, caused directly or indirectly, in whole or in part, by CONTRACTOR. any Subcontractor 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 CONTRACTOR. CONTRRACTORS duties and responsibilities for the safety and protection of the work shall continue until such time as ail the Work is completed and CONSULTANT has issued a notice to CITY and CONTRACTOR that the Work is acceptable except as otherwise provided in Article 29 hereof. 46.3. CONTRACTOR shall designate a responsible member of its organization at the Work site whose duty shall be the prevention of accidents. This person shall be CONTRACTOR'S superintendent unless otherwise designated in writing'by CONTRACTOR to CITY. sID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 0780/06 35 (X ] 47. Final Bill of Materials: CONTRACTOR shall be required to submit to CITY and CONSULTANT a final bill of materials with unit costs for each bid item for supply of materials in place. This shall be an itemized list of all materials with a unit cost for each material and the total -shall agree with unit costs established for each Contract item. A Final Certificate for Payment cannot be issued by CONSULTANT until CONTRACTOR submits the final bill of materials and CONSULTANT verifies the accuracy of the units of Work. 48. Pavment by CITY for Tests: Except when otherwise specified in the Contract Documents, the expense of all tests. requested by CONSULTANT shall be borne by CITY and performed by a testing firm ~ chosen by CONSULTANT. For road construction projects the procedure for making tests required by CONSULTANT will be in confom~ance with the most recent edition of the State of Florida, Department of Transportation Standard Specifications for road and Bridge Construction. The cost of any required test which CONTRACTOR fails shall be paid for by CONTRACTOR. 49. Proie~t Sion: Any requirements for a project sign shall be as set forth within the Technical Specifications section. 50. Hurricane Precautions: 50.1. During such periods of time as are designated by the United States Weather Bureau as being a hurricane waming or alert, the CONTRACTOR, at no cost to the CITY, shall take all precautions necessary to secure the Project site in response to all threatened storm events, regardless of whether the CITY or CONSULTANT has given notice of same. 50.2. Compliance with any specific hurricane waming or alert precautions will not constitute additional work. 50.3. Additional work relating to hurricane warning or alert at the Project site will be addressed by a Change Order in accordance with Section 37, General Conditions. 50.4. Suspension of the Work caused by a threatened or actual storm event, regardless of whether the CITY has directed such suspension, will entitle the CONTRACTOR to additional Contract Time as noncompensable, BID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 36 excusable delay, and shall not give rise to a claim for cornpensable delay. 51. Cleanino Uo~ City's Rioht to Clean Uo; CONTRACTOR shall at all times keep the premises free from accumulation of waste materials or rubbish caused by its operations. At the completion of the Project, CONTRACTOR shall remove all its waste materials and rubbish from and about the Project as wail as its tools, txmstnsction equipment, machinery and surplus materials. if CONTRACTOR fails to dean up during the prosecution of the Work or at the completion of the Work. CITY may do so and the cost thereof shalt be charged to CONTRACTOR. If a dispute arises between CONTRACTOR and separate contractors as to their responsibility for leaning up, CITY may clean up and charge the cost thereof to the contractors responsible therefor as CONSULTANT shall determine to be just. 52. Removal of Eauiament: !n case of termination of this Contract before completion for any cause whatever, CONTRACTOR, if notified to do so by CITY. shall promptly remove any part or all of CONTRACTOR'S equipment and supplies from the property of CITY, failing which CITY shall have the right to remove such equipment and supplies at the expense of CONTRACTOR. 53. Nondiscrimination. Equal Emoloyment O~oortunity, and Americans with Disabili~es_ Act: CONTRACTOR shall not unlawfully discriminate against any person in its operations and activities or in its use or expenditure of funds in fulfilling its obligations under this Agreement. CONTRACTOR shall affirmatively comply with ail applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by CITY, including Titles I and II of the ADA (regarding nondiscriminatlon on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, CONTRACTOR shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. CONTRACTOR's decisions regarding the delivery of services under this Agreement shall be made without regard to or consideration of race, age, religion, color, gender, sexual orientation, national origin, marital status, physical or mental disability, political affiliation, or any other factor which cannot be lawfully used as a basis for service delivery. CONTRACTOR shall not engage in or commit any discriminatory practice in violation of City of Miami Beach Ordinance No 92.2824 in performing any services pursuant to this Agreement. BID NO: XX-XaL/XX CITY OF MIAMI BEACH DATE: 07!20/06 37 54. Proiect Records: CITY shall have the right to inspect and copy, at CITY's expense, the books and records and accounts of CONTRACTOR which relate in any way to the Project, and to any claim for additional compensation made by CONTRACTOR, and to conduct an audit of the financial and accounting records of CONTRACTOR which relate to the Project and to any claim for additional compensation made by CONTRACTOR. CONTRACTOR shall retain and make available to CITY a!I such books and records and accounts, financial or otherwise, which relate to the Project and to any claim for a period of three (3} years fogowing Final Completion of the Protect. During the Project and the three (3} year period following Final Completion of the Project, CONTRACTOR shall provide CITY access to its books and records upon seventy-two (72) hours written notice. DID NO: XX-XX/XX CITY OF MIAMI BEACH DATE: 07/20/06 38 MIAMI BEACH BOTANICAL GARDEN December 16, 2008 SCHEDULE F PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & RAYMOND JUNGLES INC. See Attached Insurance and other Sworn Affidavits. December 16, 2008 32 z~ W J W m Z O Z ~ W C nWz LL ZZ~a ~ ~ F ~ ~ Z m ~ Q » Q ~ m um ~g O u= H ~ ri m w e ~ a g r O 8 O N ^ q N r a E s ~ n rn n '9 Q V ~ N u C i II Q m N °a N ~ ~ Y b 8 w N `y d ~ c C ~ 1 M _ ~ ~ ° °v c~i r°-° ? o .. W ~ . Q Q d a d `o r`o' r m o ~ ~ '0 0 y y y a w Z N C ~ N £ ~ O u y O O N a rc n I, w c p , ~~ K V { ~' u p LL ~ S O ~ 2 4 ~ .. m O ~ O O N pp j y N lE ~ ~ ~m 0 ~ to a` W IIc 10 Y ;n ~ c ~' ~ f W~ 0 a a u Y =°, m ~ m ~ ~ ~ d I d 0 G D j LL p y r F MIAMI BEACH BOTANICAL GARDEN December 16, 2008 ' SCHEDULE G PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH & RAYMOND JUNGLES INC. Best Value Amendment December 16, 2008 The Consultant agrees to abide by all the required documentation of the City's Performance Information Procurement System and submit the weekly reports. F:\CAPI\$all\Mario\Raymond Jungles A E Agreement (Long Form - 12172008).doc 33