Forbes ArchitectsAGREEMENT BETWEEN
CITY OF MIAMI BEACH
- AND
FORBES ARCHITECTS
FOR
PROFESSIONAL ARCHITECTURAL AND ENGINEERING SERVICES IN SPECIALIZED CATEGORIES,.
ON AN "AS-NEEDED BASIS", FOR PROJECTS IN WHICH THE BASIC CONSTRUCTION COST.DOES
NOT EXCEED $2 MILLION OR FOR STUDY ACTIVITIES WHEN THE FEE FOR SUCH PROFESSIONAL
SERVICES DOES NOT EXCEED $200,000 .
Resolution No. 2010-27415
CITY APPROVED A & E FORM (AUGUST 201-0)
TABLE OF CONTENTS
.. ~..
DESCRIPTION ~ PAGE
ARTICLE 1 DEFINITIONS 2
ARTICLE 2. BASIC SERVICES ~ ~ - 7
ARTICLE 3. THE CITY'S RESPONSIBILITIES ' - 13
ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST. 46
.ARTICLE 5. ADDITIONAL SERVICES 17 "
ARTICLE 6. REIMBURSABLE EXPENSES ~ 18
.ARTICLE 7. COMPENSATION FOR SERVICES ' ~ 19 '
ARTICLE 8. CONSULTANT'S ACCOUNTLNG AND OTHER RECORDS ~ 20 '
ARTICLE 9. OWNERSHIP OF PROJECT DOCUMENTS 2D
ARTICLE 10. TERMINATION OF.AGREEMENT - 21
ARTICLE 11. INSURANCE 23
` .~ ARTICLE 42. INDEMNIFICATION AND HOLD HARMLESS 24
ARTICLE 13. ERRORS AND OMISSIONS ~ 24
ARTICLE 14. LIMITATION OF LIABILITY ~ 25
ARTICLE 15. NOTICE - 26
' ARTICLE 16. MISCELLANEOUS PROVISIONS . ' 26
SCHEDULES^
NOTE~~ AGREEMENT SCHEDULES. 32 •
SCHEDULE A SCOPE OF SERVICES 33
SCHEDULE B CONSULTANT COMPENSATION ~ 34
- SCHEDULE C '' HOURLY BILLING RATE 35
SCHEDULED CONSTRUCTION COST BUDGET 36
SCHEDULE E PROJECT SCHEDULE 37
SCHEDULE F GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT 38
SCHEDULE G INSURANCE AND SWORN AFFIDAVITS 39
SCHEDULE H BEST VALUE AMENDMENT 40
~~
' ~ CITYAPPROVED A & E FORM (AUGUST 2010)
TERMS AND CONDITIONS OF AGREEMENT
Z, .
- BETWEEN THE CITY OF MIAMI BEACH '
.. AND -
' FORBES ARCHITECTS
~ FOR
PROFESSIONAL ARCHITECTURE AND ENGINEERING (A/E) SERVICES
' FOR THE '
PROFESSIONAL ARCHITECTURAL AND ENGINEERING SERVICES IN SPECIALIZED CATEGORIES, ON
AN "AS-NEEDED BASIS", FOR PROJECTS IN WHCH THE BASIC CONSTRUCTION COST DOES NOT
EXCEED $2 MILLION OR-FOR STUDY ACTIVITIES WHEN THE -FEE FOR"SUCH PROFESSIONAL
SERVICES NOT EXCEED $200,000. "
This Agreement made and entered into this day of FM ~t~C 010, by and. between 'the CITY OF
MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida,-having its principal
offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, (hereinafter referred to as City), and
Forbes Architects, a Florida corporation .having its principal office at 4565 Ponce de Leon Boulevard, #100,
Coral Gables,. Florida 33146 (hereinafter referred to as Consultant).
WITNESSETH:
WHEREAS,, the City intends to uridertake a project within the City of Miami Beach, which is more
" . particularly described in the Scope of Services attached as Schedule "A" hereto, and wishes ~to engage the
Consultant to provide specific professional °services including, without limitation, A/E services, for the Project,
at the agreed fees set forth ih this Agreement; and .
WHEREAS, the Consultant desires to contract with the .City for performance of the aforestated
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: -
1
CITY APPROVED A & E FORM (AUGUST 2010)
ARTICLE 1. DEFINITIONS
t
- 1.1 CITY (OR OWNER): 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:
1.2 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 representatives designated in writing
~~ ~ (including the Project Coordinator) with respect to any -specific matter(s) concerning the Services
and/or this Agreement (exclusive of those authorizations reserved to the .City Commission ~' or
. regulatory~or administrative bodies having jurisdiction over any matter(s) related to the Project, the
Services, and/or this Agreement). .
1.4 .PROPOSAL DOCUMENTS: "Proposal Documents" shall mean .Request for Qualification (RFQ)
No. 01-09/10, entitled "FOR PROFESSIONAL' ARCHITECTURAL, LANDSCAPE
ARCHITECTURE, PLANNING & URBAN DESIGN AND ENGINEERING SERVICES IN
VARIOUS PROFESSIONAL SPECIALTIES ON AN "AS-NEEDED BASIS", FOR PROJECTS IN
WHICH THE BA5IC CONSTRUCTION COST DOES NOT EXCEED, $2 MILLION OR FOR
STUDY ACTIVITIES WHEN THE FEE FOR SUCH PROFESSIONAL SERVICES DOES NOT
EXCEED $200,000" issued by the City in. contemplation of this Agreement, together with all
amendments thereto (if any), and the Consultant's proposal in response thereto (Proposal), which is
- incorporated' by reference to this Agreement and made a part hereof; provided, however, that in the
event of an express conflict between the Proposal Documents and this Agreement, the Agreement
sha0 prevail.
1.5 CONSULTANT: The named entity on page 1 of this Agreement, the "Consultant" shall mean the
architect/engineer who has entered into acontract with the City to .provide the Services described
under this Agreement. When the term "Consultant" is used:in this Agreement it shall -also be deemed
to include any officers, employees., sub-consultants,. agents, and any other person or entity acting
under the supervision,.direction; or control of Consultant. Any sub-consultants retained by Consultant
... _ for the Project shall be subject to the prior written approval of the City Manager. Consultant shall
provide the Project Coordinator with copies of the contract 'between Consultant and any sub-
consultant's. Any- such. contracts shall contain provisions that preserve and protect the rights of the
2
CITY APPROVED A & E FORM (AUGUST 2010)
City under this Agreement. Nothing. contained in this. Agreement shall create any contractual
relationship between the City and sub-consultants. Any approval of asub-consultant by-the City shall
not, in any way, shift the responsibility for the quality and acceptability by the City of the services
performed by the sub-consultant, from the Consultant to City. Payment of sub-consultants shall be the
' ~ responsibility of the Consultant, and shall riot be cause for any increase in compensation to :the
Consultant-for payment of the Basic Services. The quality of services and' acceptability to the City of
the services performed by such sub-consultants shall be the sole responsibility of Corsultant..
The following sub-consultants are hereby approved by the City Manager for the Project`
Ludovici & Orange Consulting Engineers, Inc. -Civil Engineer and Land Survey
-~ TLC Engineers for Architecture -Mechanical and Electrical Engineer ~ .
Witkin Design Group, Inc. -Landscape Architect
DDA Engineers, PA -Structural Engineer
4:6 PROJECT COORDINATOR: The "Project .Coordinator" shall mean the individual designated in
writing 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 ..during the design and construction of the
Project (unless expressly provided otherwise in this Agreement or the Contract Documents).
1.7 [Intentionally Omitted)
1.8 BASIC SERVICES: "Basic Services" shall include those services which. Consultant shall perform
in accordance with the terms of the Agreement (and as required to complete the Project), as further
described in Article 2 and Schedule "A" hereto. In -addition any Services not specifically addressed as
. Additional Services (as defined herein)-shall be considered Basic Services.
1.9 PROJECT: The "Project" shall mean that. certain City capital project that has .been approved by
. ~ the City Commission and is described~in Schedule "A" hereto.
1.9..1 Proiect Cost: The "Project Cost", shall mean the estimated total cost of the Project, as
prepared and established by the City,~including the estimated Construction Cost and Soft Costs.
The Project Cost may, from time to time, be revised or.adjusted by the City, in its'sole discretion,
to accommodate approved modifications or changes to the Projector scope of work
1.9.2 Proiect Scope: The "Project Scope" shall mean the description of the Project in: Schedule
"A" hereto. .
3
CITY APPROVED A & E FORM (AUGUST 2010) -
1..10. CONSTRUCTION. COST: The "Construction. Cost" shall mean the sum which is the actual total
cost to the City of the Work (as established in the.Contract Documents, as they may be amended from
time to time),.including acontingency allowance for unforeseen conditions, not to exceed ten percent
(10%) of the construction cost for new construction., or twenty percent (20%) of the construction cost for
rehabilitation of historic buildings.
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 responsive and responsible bidder, or proposer for.such
Work.
1.10.1 Construction Cost Budget: The "Construction~Cost Budget" shall mean the amount
budgeted by the City for the Construction Cost, as set forth in Schedule "A" hereto.
1.10.2 Statement Of Probable Construction Cost: The "Statement of Probable Construction
Cost" shall mean the latest approved ,written estimate of Construction Cost submitted by
Consultant to the City, in a format approved by the Project Coordinator. _
For Work which bids or proposals have not been let, the Statement of Probable Construction Cost
.- .shall be the same as the Construction Cost.
. 1:11 FORCE MAJEURE: "Force Majeure" shall mean any delay occasioned by superior or irresistible
force occasioned by violerice 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 ;
or other causes beyond the parties' control which have, or may be reasonably expected to have, a
material. adverse effect on the Project, or on the rights and obligations of the parties under -this
Agreement and which, by the exercise of due diligence, such parties -shall not have been able to avoid;
provided, however, that inclement weather (except as noted above), the acts or omissions of sub-
corisultants/sub-contractors, market conditions, labor conditions, .construction industry price trends, and.
similar matters which normally impact on the constructioh process SHALL NOT' be considered a Force
Majeure. ~ ,
If the Consultant is delayed in performing any obligation under this Agreement due to a force majeure,
the Consultant shall request a time extension from the Project Coordinator within-five (5) business days
of said force majeure. Any time-extension shall be subject to mutual agreement and shall not be cause
for any claim by the Consultant for extra compensation, unless additional services are required, and .
approved pursuant to Article 5 hereof.
4
CITY APPROVED A &'E FORM (AUGUST 20T0)
. 1.12 CONTRACTOR: "Contractor" shall mean the individual or individuals, firm, company, corporation,
joint venture, or other entity contracting with City. for .performance of the Work covered in the Cortract
Documents.
. 1.13 CONTRACT DOCUMENTS: "Contract Documents" shall mean this Agreement (together. with all
exhibits, addenda, and. written amendments issued thereto);'and the documents prepared by Consultant
• in accordance with the requirements of the Scope of Services in Schedule "A" hereto (that form the
basis for which the City can receive bids for the Work included in ;the documents). The Contract
.Documents shall also include, without limitation (together with all exhibits, .addenda, and written -
` amendments issued thereto), ,the invitation to bid (ITB), instructions to bidders, bid form, bid bond, the
Contract for., Construction, surety payment and performance bonds, Conditions of the .Contract for
.. Construction [General,. Supplementary, and other Conditions], Divisions 0-17, Construction Documents,
„ an approved Change Order(s), approved Construction Change Directive(s), and/or approved° written
order(s) for a minor change in the Work. •
1.14 CONTRACT FOR CONSTRUCTION: "Contract for Construction" shall mean the legally binding
agreement between City and with Contractor for performance. of the Work covered in the .Contract:,
. Documents.
4::1.5 CONSTRUCTION DOCUMENTS: "Construction Documents" shall mean the final plans,
technical. specifications, drawings, documents, and diagrams prepared., by the Consultant pursuant to
thin Agreement,which show the locations, characters, dimensions and details of the Work to be done,
and which are part of the Contract Documents. .
1.16 CONTRACT AMENDMENT: "Contract Amendment" shall mean a written modification to the
• Agreement approved by the .City (as specified below) and executed _ between City .and Consultant, ,
` covering changes, additions; or reductions in the terms of this Agreement including, without limitation, ,.
authorizing. a change in theProject, or the method and manner of performance thereof,. or an
adjustment in the fee and/or completion dates.
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.
(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 reserves the right to seek and obtain concurrence of the, City Commission for approval of any
such Contract Amendment.
. 5
CITY APPROVED A & f FORM (AUGUST 2010) ,
1.17 ADDITIONAL SERVICES:. "Additional Services" shall mean those services, in addition to the
Basic Services in this Agreement, which the Consultant shall perform, at the ..City's option, and which
have been duly authorized, in writing, by the City Manager .or his authorized .designee, 'prior to
commencement of same.
. 1.18 WORK: "Work" shall `mean all Gabor, materials, tools, equipment, services, .methods,
..procedures, etc. necessary or convenient to performance by Contractor of all duties and obligations
proposed by the Contract Documents. .
1.19 SERVICES: "Services" shall -mean all services, work, and actions by the Consultant
performed. pursuant to or undertaken under this Agreement.
1.20 -SOFT COSTS: "Soft Costs". shall mean costs ..related to the .Project other than Construction
Cost including, without limitation, Consultant's. Basic .Services, Additional Services; surveys, testing,
' ~ - ~ general consultant, financing, and permitting fees,., etc. , , .
1.21 BASE BID: ".Base Bid" shall mean the elements contained in the Construction Documents
recommended by the Consultant (and .approved by the City) as beingwithin the Construction Cost
Budget. "Base Bid" shall not include Additive Alternates or Deductive Alternates...
. 1.22 SCOPE DP SERVICES: "Scope of Services" shalt include the Project Scope, Basic Services,
and any Additional Services (as approved by the City), all as described in Schedule "A" hereto.
1..23 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.
Schedule C -Consultant Hourly Billing Rate Schedule.
Schedule D -Construction Cost Budget.
Schedule E - Project Schedule.
Schedule F - General Conditions of the Contract for Construction
Schedule G -Insurance Requirements and Sworn Affidavits
Schedule H - ,Best Value Amendment
6
.CITY APPROVED A & E FORM (AUGUST 2010) - .
ARTICLE 2. BASIC SERVICES "
2.1 The Consultant shall provide Basic Services for the Project, as required by the Contract
Documents and as set forth in Schedule "A" hereto.
2:2 The Services-will be commenced upon issuance of the first Notice to Proceed,which_shall be.
issued. by the Project Coordinator and counter-signed by Consultant. Subsequent Notices to Proceed
shall also be issued by the Project Coordinator.
A separate Notice to Proceed shall be required prior to commencement of each Task las same
are set forth in Schedule. "A" heretol.
2.3 As it relates to the Services and the Project, Consultant warrants and represents to City that it
is knowledgeable of Federal, State, and local laws, codes, rules and regulations applicable in-the
jurisdiction(s) in -which the Project is located, including, without 'limitation., applicable Florida Statutes,
and State of Florida. codes, rules and. regulations, and local (City of Miami Beach and Miami-Dade
•• County) ordihances, codes, and rules and regulations (collectively, "Applicable Laws"). As they relate
' to the Services and to the Project, the Consultant agrees to comply with all -such Applicable Laws,
whether now in effector as maybe amended' or adopted from time to time, and shall further take into
account. all known pending changes to the foregoing of which it should reasonably be aware.
Recognizing that the. construction of other projects within the City may affect scheduling of the
construction for the Project, the Consultant shall diligently .coordinate performance of the Services with
the City (through the Project Coordinator) in order to provide for the safe, expeditious, economical and
efficient completion of the Project; without negatively impacting concurrent work by others. The
Consultant shall coordinate the. Services with all of .its sub-consultants, as well as other consultants,
including, without limitation, City provided consultants (if any).
2.4 The Consultant warrants and represents to Citythat all of the Services required under this
Agreement shall be .:performed in accordance with the. standard of care normally exercised in the
design of comparable projects in South Florida.. Consultant warrants and represents to the City that it
is experienced, fully-qualified, and properly licerised (pursuant to Applicable Laws) to perform the
Services. Consultant warrants and represents to City that. it is responsible for the technical accuracy
of the. Services (including, without limitation, the Design Documents contemplated in Schedule "A"
hereto):
CITY APPROVED A & E FORM (AUGUST 2010)
2.5 The Consultant's Basic Services shall consist of five (5) Tasks (inclusive of planning, design,
bidding/award, construction administration, and Additional Services [as may be approved]), all as
further described in Schedule "A" hereto; and shall also include any and all of Consultant's
responsibilities and obligations with respect to the Project, asset forth in the General Conditions of the, .
Contract for Construction (attached as Schedule "F" hereto).
2.5.1 Planning Services:
Consultant shall provide planning services for the Project, as required by the Contract
Documents and as set forth in Task 1 of Schedule "A'' hereto (entitled ".Planning Services").
• ,
2.5.2 Design-Services:
• Consultant shall prepare Design Documents for the Project, as required by the Contract
Documents and as set forth in Task 2 of Schedule "A" hereto (entitled "Design Services")
2'.5.3 Bidding And Award Services: .
• Consultant shall provide bidding and award services for the Project, as required by fhe Contract
Documents and as set forth in Task 3 of Schedule "A" hereto (entitled "Bidding and Award
Services"). -
2.5.4 Construction Administration Services:
-, ~ Consultant shall .provide construction administration services for the Project, as required by the
Contract Documents and as set forth in Task 4 of Schedule "A" hereto (entitled "Construction
Administration Services").
- 2.5.5 .Additional Services:
1f required {and so approved) by the City, Consultant shall provide Additional Services, as set
forth in Task 5_of Schedule "A" hereto,
2.6 RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Written decisions and/or approvals issued
. by the City shall not constitute nor. be deemed a release of the responsibility and liability of,the
Consultant (or of any, of its officers, employees, sub-consultants, agents, and/or servants), for the
accuracy and competency of •its/their designs, .working drawings, ;plans, technical specifications, or
other technical documents, nor shall such approval and/or decisions be deemed to be an assumption
. of such responsibility by the City for a defect, error or omission in designs, working drawings, plans,
technical specifications, or other technical documents; provided, however, that the Consultant shall be
entitled to reasonably rely upon the accuracy and validity of written decisions and approvals furnished
by the City pursuant to this Agreement.
. 8
• CITY APPROVED A & E FORM {AUGUST 2010)
2.7 TIME: It is understood that time is of the essence in the completion of the Project and, in this
respect, the parties agree as follows:
2.7.1 Term: The term of this Agreement shall .commence upon execution by the parties
(subject to approval of the Agreement by the Mayor and City Commission) (the .Effective 'Date),
and shall be in effect until all Services are completed or until the work and/or services .under the
Notices to Proceed.. in force at the end of the stated period of time have been completed and the
Services accepted, whichever may be later.
~ 2.7.2. 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.
2.7.3 The Services shall be performed-in a manner that shall conform with the approved
Project Schedule, attached to as Schedule "E" hereto. The Consultant may submit requests for
an adjustment to the Project Schedule; if made necessary .because of undue delays resulting from
untimely review taken by the City (or other governmental authorities having jurisdiction over the
. Project) to approve the Consultant's submissions, or any other .portion of the Services requiring
approval. by the City (or other ,governmental authorities having jurisdiction over 'the Project).:.
Consultant-shall immediately provide the Project Coordinator with written notice stating the reason
for the particular delay; the requested adjustment (i.e. extension) to the Project Schedule; and a
revised anticipated schedule of completion. Upon receipt and review of Consultants request (and
. such other documentation as the~Project Coordinator may require), the Project Coordinator may ,
grant a reasonable extension of time for completion of the particular work involved, and authorize
that the appropriate. adjustment be made to the Project Schedule. The Project Coordinator's
approval (if granted) shall be in writing. .
2.7.4.. Nothing in this Section 2;7 shall prevent the City-from exercising its. rights to terminate
the Agreement, as provided elsewhere herein.
2.8 Consultant shall use its best efforts to maintain a constructive, professional, cooperative working
.. relationship with the Project Coordinator, Contractor, and any and all other individuals and/or firms that
have been contracted, or otherwise retained, to perform work on the Project.
2.9 The Consultant shall perform its duties under this. Agreement in a competent, timely and '
professional manner, and shall be responsible to the City for any failure in its performance,. except to
. the extent that.acts or omissions by the City make such performance impossible.
~ .
CITY APPROVED A & E FORM (AUGUST 2010)
. J
The Consultant is responsible .for the professional quality, technical accuracy, _ completeness,
performance and coordination of all work required under the Agreement (including the work performed
by sub-consultants), within the specified time period and specified cost. The Consultant shall perform
the work utilizing the skill, knowledge, and judgment ordinarily. possessed and used by a proficient
consulting with respect to the disciplines required for the performance of the work in the State of
Florida. The Consultant is responsible for, and shall represent to City that the work conforms fo City's
requirements, as set forth in the Agreement.. The Consultant shall be arid remain liable to the City for
all damages to 'the City caused by' the Consultant's negligent acts or errors or omissions in the
performance of the work. In addition to all other rights and remedies, which the City may have, the
Consultant shall, at .its expense,' re-perform all or any .portion of the Services to correct any
deficiencies which result from the Consultant's failure to perform in accordance with the above
standards. The Consultant shall also be liable. for the replacement or repair of any defective materials
and equipment and re-performance of any non-conforming construction services resulting from such
deficient Consultant services for a period from the Effective Date of this Agreement, until twelve (12)
months following final acceptance of the Work, and for the period of design liability required by
applicable law. The Project Coordinator shall notify the Consultant, in writing, of any deficiencies and
shall approve the method and timing of the corrections. Neither the City's inspection, review, approval
or acceptance of, nor payment for, any of the work required under the Agreement shall be construetl to
relieve the Consultant (or any sub-consultant) of its obligations and responsibilities under the
Agreement, nor constityte a waiver of any of the City's rights under the Agreement, or of any cause of
action .arising out of the performance of the Agreement. The Consultant and its sub-consultants shall
be and remain liable to the City in accordance with Applicable Laws for all damages to City caused by
any failure of. the Consultant or its sub-consultants to comply .with the terms and .conditions of the
Agreement. or by the Consultant or any sub-consultants' misconduct, unlawful acts, negligent acts,
errors or omissions in the performance of the Agreement. With respect to the performance of work by
sub-consultants, the Consultant shall, in approving and accepting such work,. ensure the professional
quality, completeness, and. coordination of the sub-consultant's work.
2.9.1 The Consultant shall be responsible for deficient, defective services grid any resulting
deficient, defective construction services re-performed within twelve (12) months following final
acceptance and shall be subject to further re-performance, repair and replacement for twelve
{12) months from the date of initial re-performance, not to exceed twenty-four months (24) from
final acceptance.
2.9.2 Consultant Performance Evaluation: The Consultant is advised that a performance
evaluation of the work rendered throughout this Agreement will be completed by the City and
kept in the City's files for evaluation of future solicitations.
to
CITY APPROVED A & E FORM (AUGUST 2010)
2.10 The City shall have. the right, at any time, in its. sole and absolute discretion, to submit for
review to other consultants (engaged by the City at its expense) any or all parts of the Services and
the Consultant shall fully cooperate in such review(s). 1Nhenever others are-required to verify, review,
or consider any work performed by Consultant (including, without limitation, contractors, other design
professionals, and/or 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 projects; or which are inconsistent with Applicable Laws; or which are
inconsistent with standards, tlecisions or approvals provided by the City under this Agreement.
Consultant .wilt use.. reasonable care and skill, in accordance and consistent with .customary
professional standards, in responding to items identified by other reviewers, in accordance with this
subsection. Consultant shall receive comments .from reviewers,: in writing, including, without limitation
(and where applicable), 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 defined to mean as soon- as
possible under the circumstances, taking into account the timelines of the Project Schedule.
-2.11 [Intentionally Omitted]
2.1.2 Consultant. agrees that. when any portion of the Services relates to a professional service
_ which, under Florida Statutes, requires a license, certificate of authorization, or other form of legal
entitlement to practice and/or perform. such Service(s), it-shall employ and/or retain only qualified duly
licensed certified personnel to provide same.
2.13. .Consultant agrees to designate, in writing, within. five (5) calendar days after issuance of the
first .Notice to Proceed, a qualified licensed professional to serve. as its project manager (hereinafter
referred to as the "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 the
Services... Consultant's Project Manager (as well as any replacement) shall. be subject to the prior
written approval of the .City Manager or -his designee (who in this case shall be the .Project
Coordinator). Replacement- (including reassignment) of an approved- Project,Manager shall not be
made without the prior written approval of the City Manager or his designee (i.e. the Project
Coordinator).
2.13.1 Consultant agrees, within fourteen (14) calendar days of receipt of written notice from .
the City Manager or his designee (which notice shall state the cause therefore), to promptly
remove and replace a Project Manager, or any other personnel employed or otherwise retained
by Consultant for the Project (including, without limitation, any sub-consultants).
11
CITY APPROVED A & E FORM (AUGUST 2010)
2.14 Consultant agrees not to divulge, furnish or make available to any third party(ies); any non-
public information concerning the Services or the Project, without the prior written consent of the City
Manager or his designee (who shall be the Project Coordinator), unless such disclosure is incident to
the proper performance of the Services; or the disclosure is required pursuant to Florida Public
Records laws; or, in the course of judicial proceedings, where such information has been properly
subpoenaed. Consultant shall also require its employees and sub-consultants to comply with this.
- .subsection,
2.15 The City and Consultant acknowledge that the Services do not delineate every detaiP and minor
work task required to be performed by Consultant to complete the Project. If, during the course of
performing of the Services, Consultant determines that work should be ,performed to complete the
Project which is, in the Consultant's reasonable opinion, outside the level of effort originally anticipated
in the Scope of Services, Consultant shall promptly notify the Project Coordinator, in writing, and shall
obtain the Project Coordinator's written consent before proceeding with such work. `If~ Consultant
proceeds with any such. additional. work without obtaining the prior written consent of the Project
_ Coordinator., said work shall be deemed to be within the original Scope.. of Services, and deemed .
included as a Basic Service (whether or not specifically addressed in the Scope of .Services). Mere
notice, by Consultant to the Project Coordinator shall not constitute authorization or approval by the
City to perform such work. Performance of any such work by Consultant without the prior written
consent of the Project Coordinator shall be undertaken at Consultant's sole risk and liability.
2.16 Consultant shall establish, maintain, and categorize any and all Project documents and
records pertinent to the Services and shall provide the City, upon, request, with copies of any and all. ~ ~.
such documents and/or records..1n addition, Consultant shall provide electronic document files to the
City upon completion. of the Project.
2.17 The City's participation in the design and construction of the Project shall in no way be deemed
to relieve the Consultant of its professional duties and responsibilities under the. Contract Documents
or under Applicable Laws.
2.18 GREEN BUILDING STANDARDS:-
The Consultant shall comply~with the requirements of Section 255.2575„ Florida Statutes, and Chapter
1.00 of the City Code, as both may be amended from time to time, addressing applicable Leadership in
Energy and Environmental Design (LEED) compliance requirements.
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CITY APPROVED A & E FORM (AUGUST 2010)
2.19 SUB-CONSULTANTS: All services provided by :sub-consultants shall be consistent with .
those commitments made by the Consultant in its Proposal and during the competitive solicitation
selection process and interview. Such services shall be undertaken and performed pursuant to
appropriate written agreements between the Consultant and the sub-consultants, which shall contain
provisions that preserve and protect the rights of the City under this Agreement. Nothing contained in
. this Agreement shall create any contractual relationship between the City and the sub-consultants.
The Consultant shall not retain, add, or replace any sub-consultant without the prior written approval of
the City Manager, in response to a written request from the Consultant. stating the reasons for any.
proposed substitution. Any approval of asub-consultant by the City Manager shall not in any way shift
the responsibility for the quality and acceptability by the City of the services performed by the sub- .
consultant from the Consultant to the City.. The quality. of services and acceptability to the City of the
services performed by sub-consultants shall be the sole responsibility of Consultant... The Consultant
shall cause the names of sub-consultants responsible for significant portions of the Services to be
inserted on the plans and specifications. .
ARTICLE 3. THE CITY'S RESPONSIBILITIES
3.1 The City Manager shall designate a Project Coordinator, in writing, who shall be the City's
authorized representative to coordinate, direct,. and review all matters related to this Agreement and
the Project during the design and, construction of same (except unless otherwise expressly provided in
this Agreement or the Contract .Documents). The .Project Coordinator shall be authorized (without
limitation) to transmit instructions, receive information, and interpret. and define City policies and
decisions with respect to the Services and. the Project. However, the Project Coordinator is not
authorized to issue any verbal or written orders or instructions to Consultant that would have the affect
(or be interpreted.as having the effect) of rriodifying~or changing, (in any way) the following:
a) the Scope of Services;.
b) the time within which Consultant is obligated to commence and complete the Services; or
c) the amount of compensation the City is obligated or committed to pay Consultant.
3.2 The City shall make available to Consultant all .information that the City has in its possession
pertinent to the Project. Consultant hereby agrees and acknowledges that, in making any such
information available to Consultant, the City makes no express or implied certification, warranty,
,. and/or representation. as to the accuracy or completeness of such information. The Consultant
understands, and hereby agrees and acknowledges, that it is obligated to verify to the extent it deems .
13
CITY APPROVED A & E FORM (AUGUST201A)
necessary all information furnished by the City, and that it is solely responsible for the accuracy and
. applicability of all such information used by Consultant. Such verification. shall .include, without
limitation, visual examination of existing conditions in all locations encompassed by the Project, where
-, -such examination can be made without using destructive measures (i.e. excavation or demolition)..
. Survey information shall be spot checked to the' extent that Consultant has satisfied itself as to the
reliability of the information.
3.3 [Intentionally Omitted] '
° 3.4 At any time, in his/her sole discretion, the City Manager may furnish accounting, and insurance
counseling services for the Project . (including,. without limitation, auditing services to verify the
Consultant's applications for payment, or to ascertain that Consultant has properly remitted payment
due to its sub-consultants or vendors).
' .~ ` -
3.5 ff the City observes or otherwise becomes aware of any fault or defect in the Project, or .non-
conformance with the Contract Documents, the City, through the Project Coordinator, shall give prompt
written notice thereof to the Consultant.
~ 3.6 The Cit ,actin in its ro rietar ca acit as Owner and not in its re ulator ca acit ,shall render
Y 9 p p Y p Y 9 Y p Y
.any administrative approvals and decisions required under this Agreement, in writing, as reasonably
expeditious for the orderly progress of the Services and of the Work. No City administrative
(proprietary) approvals and/or decisions. required under this Agreement shall be unreasonably
conditioned, withheld, or delayed.; provided, however, that the City shall at all times have the right to
approve or reject any such requests forany 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 Except where- .otherwise expressly noted in the Agreement or the Contract
Documents, the City Commission shall be the body to consider, comment upon, or approve
any amendments or modifications'to 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. Assignment and transfer shall be
defined to also include sale of the majority of the stock of a corporate .consultant.
14
CITY APPROVED A & E FORM (AUGUST 2010)
3.7.3 Upon written request from Consultant, the City Commission shall hear appeals from
administrative decisions of the City Manager or the Project Coordinator. In such cases, the
Commission's decision shall be final and binding upon all parties.
3.7.4 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 Except where otherwise expressly noted in this Agreement, the City Manager shall serve as the
City's primary representative to whom administrative (proprietary) requests for decisions and
- approvals required hereunder by the City shall be made. Except where otherwise expressly noted in
this.Agreement or the Contract Documents, the City Manager shall issue decisions and authorizations
which may include., without limitation, proprietary review, approval, or comment upon the schedules,
plans, reports, estimates, contracts, and other documents submitted to the City by Consultant.
3.8.1 The. City Manager shall have prior review and approval of the Project Manager (and
any replacements) and of any sub-corisultants (and any replacements).
3.8.2- The City Manager shall decide, and render administrative (proprietary) decisions on
matters arising pursuant to this Agreement which are not otherwise expressly provided for in
this Agreement. In his/her discretion,. the City Manager may also consult with the City
Commission on such matters.
3.8.3 At the request of Consultant, the City"• Manager shall be authorized, but. not required,
to reallocate monies already budgeted toward payment of the Consultant; provided,
however, that. the Consultant's compensation (or other budgets established by this
Agreement) may not be increased without the prior approval of the City Commission, which
approval (if granted at all) shall be in its sole and reasonable discretion.
3.8.4 [Intentionally Omitted],
3.8.5 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); provided that no such
amendments increase any of the budgets established by this Agreement.
.' 15
CITY APPROVED A & E FORM (AUGUST 2010)
3.8.6 The City. Manager may, in his/her 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 the City's powers, duties, and responsibilities
underthis Agreement~or the Contract Documents.
3.8.7 The City .Manager shall be the City Commission's authorized representative with
regard to acting on behalf of the City in the event of issuing any default notice(s) under this
Agreement, and, should such default remain uncured, in terminating the Agreement
(pursuant to and in accordance with Article 10 hereof).
.ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST
4.1 The City has established the Construction'Cost Budget for the Project, as set forth in Schedule
"D'', attached .hereto. .
4.2 Consultant shall certify and warrant to the City all estimates of Construction Cost prepared by
Consultant.
4:3 ~ Consultant shall warrant and represent to the City that its review and evaluation of the
Construction Cost Budget, Statement of Probable Construction Cost, and any other cost estimates
prepared (or otherwise provided) by Consultant for the Project, represent Consultant's best judgment
as an experienced design professional familiar with the construction industry;.provided, however, that-
. Consultant cannot (and does not) guarantee that bids or negotiated prices will not vary from any
estimates of Construction Cost or other cost evaluation(s) prepared. (ar otherwise provided) by
Consultant. '
4.4 The Construction Cost Budget (as established in Schedule "D" hereto) shall not be exceeded
without. fully justifiable, extraordinary, and unforeseen .circumstances (such as Force Majeure) which
are beyond the control of the parties. Any expenditure above this amount shall be subject to prior City
Commission approval which, if granted at all, shall be at the sole and reasonable discretion of the City
Commission. The City Commission shall have. no obligation to approve an increase in the .
Construction Cost Budget and, if such budget_is exceeded, the City Commission may, at its sole and
' reasonable discretion, terminate this Agreement (and the remaining Services) without any further
liability to the City.
16
CITY APPROVED A & E FORM (AUGUST 2010)
4.5 If the lowest and best base bid exceeds the Construction Cost Budget by more than five percent
(5%), the City Commission may, at its sole option and discretion, elect any of the following options: (1)
approve an increase to the Construction Cost Budget; (2) reject alt bids, and (at its option) authorize
.rebidding of the Project; (3) abandon the Project and terminate the remaining Services without any
further liability to the City; (4) select as many Deductive Alternatives as may be necessary to bring the
lowest and best bid within the Construction Cost Budget; or (5) work with the Consultant to reduce the
Project Scope, construction schedule, sequence of Work, or such other action.., as deemed necessary„
to reduce the Construction Cost Budget, In the event the. City elects to reduce the Project Scope, the
Consultant shall provide any required revisions to the Contract 'Documents (including, without.
' limitation, the Construction Documents), and provide re-bidding services, as many times,as reasonably
requested^ by the City, at no additional cost to the City, in order to bring .any resulting; responsive .
and responsible bids within five percent (5,%) of the Construction Cost Budget.
ARTICLE 5. ADDITIONAL. SERVICES
5.1 Additional Services shall only. be performed by Consultant following receipt of written authorization
by the Project Coordinator (which authorization must be obtained prior to commencement of any such
- additional work by Consultant). The written. authorization shall contain a description of the Additional
Services required; an hourly fee (in accordance with the rates in Schedule "C" hereto), with a "Not to
Exceed" amount; Reimbursable Expenses (if any) with a "Not to Exceed" amount;' the amended
. Construction Cost Budget (if applicable); the time required to complete.the Additional Services; and an
amended Project Schedule (if applicable). "Not to Exceed" shalt mean the .maximum cumulative hourly ,
fees allowable (or, in the case of. Reimbursable Expenses, the maximum cumulative expenses .
allowable), which the Consultant shall not exceed without further written authorization of the Project
. Coordinator. The "Not to Exceed" amount is not a guaranteed maximum cost for the additional work ,
. requested-(or, in the case of Reimbursables, for the expenses), and all costs applicable to same shall
be verifiable through time sheets (and, for Reimbursables expense reviews). ~..
. 5.2 Additional Services, may include, but not be limited to, the following:
5.2.1 Providing additional work relative to the Project which arises from subsequent
circumstances and' causes which do not currently exist, or which are not contemplated by
- the parties at the time of execution of this Agreement.(excluding circumstances and causes
- resulting from error, omission, inadvertence, or negligence of Consultant).
5.2.2 Serving as an expert witness in connection with 'any public hearing., arbitration
proceeding, or legal proceeding, unless the subject matter at .issue has arisen from the error
17
CITY APPROVED A & E FORM (AUGUST 2010)
- -- omission, inadvertence, or negligence of Consultant.
5.2.3 [Intentionally Omitted] ~ ,
~~ ~ 5.2.4 Assistance in connection with bid protests; re-bidding, or re-negotiating contracts
. (except for. Contract Document revisions and re-bidding services required under Section 4.5
hereof, which shalt be provided at no additional cost to City).
ARTICLE 6. REIMBURSABLE EXPENSES ~ -
6.1 Reimbursable Expenses are an allowance set aside by the. City and shall include actual .
expenditures made by the Consultant in the- interest of the Project. The Reimbursable Expenses
allowance, as specified in Schedule,"B" hereto, belongs.to, and shall be controlled by, the City. Any
money, not directed. to be used by City for Reimbursable Expenses shall remain with the City (i.e.
unused portions will not be paid to Consultant). -
Notwithstanding the .above, any Reimbursable Expenses in excess of $500 must be authorized, in
advance, in writing, by the Project Coordinator:. Invoices or vouchers for_ Reimbursable Expenses shall -
be submitted to the Project Coordinator, (along with any supporting receipts and other back-up material
requested by the Project Coordinator). Consultant shall certify as to each such invoice and/or voucher
that the amounts and items claimed as reimbursable .are "true and correct and. iri accordance with the
: Agreement." .
6.2 Reimbursable Expenses may include, but not be limited to, the following:
. 6.2.1 Cost of reproduction, courier, and postage and handling of drawings, plans,
. specifications, and other Project documents (excluding reproductions for the office use of
the Consultant and its sub-consultants, and courier, postage and handling costs between
the Consultant and its sub-consultants). ~ ~ ,
- .. ~ _ 6.2.2 Costs for reproduction and preparation of graphics for community workshops. ~.
", 6.2.3 ~ Permit fees required by City of Miami Beach regulatory .bodies having jurisdiction
over the Project (i.e.-City permit fees). '
18
CITY APPROVED A & E FORM (AUGUST 2010)
ARTICLE 7..COMPENSATION FOR SERVICES
7.1 Consultant's "Not to Exceed" fee for provision of the Services shall be shall be negotiated
between City and Consultant, set forth in Schedule "B" hereto.
7.2 Payments for Services shalt be made within forty-five (45) calendar days of, receipt and approval
of .an acceptable invoice by the .Project Coordinator. Payments shall be .made in proportion to the
Services satisfactorily performed, so that the payments for Services .never exceed the progress
percentage noted' in the Consultant's Progress Schedule (to be submitted with each invoice). No mark-
upshall. be allowed on subcontracted work..
7.3 ,Approved.. Additional Services shall be compensated irr accordance with the hourly rates set forth
in Schedule "C,'' attached hereto. Any request for. payment of Additional Services shall be included
with a Consultant payment request. No mark-up shall be allowed on Additional Services (whether
sub-contracted or not).
- 7.4 Approved Reimbursable Expenses shall be paid .in accordance with Article 6 hereto, up to the
"Not to Exceed" Reimbursable allowance amount in Schedule "B" hereto: Any request for payment of
" .Reimbursable .Expenses shall also be included with. Consultant's payment request. No mark-up shall
be allowed on Reimbursable Expenses.
7.5 ESCALATION: During the Terris of this Agi-eemenf, the City may., by written directive approved
and executed by the City Manager; adjust the fees included in the Hourly Billing Rate Schedule in
Schedule "C" hereto, to reflect the change in the Consumer Price Index (CPI) on a year to year basis.
Such adjustment will be based on the cumulative change of. the CPI for ,the Miami urban area,
provided that in no event shall any the annual iricrease exceed three percent (3%).
~7.6 No retainage shall be made from the Consultant's compensation on account of sums withheld by
the City on payments to Contractor.
7.7 METHOD OF BILLING AND PAYMENT. Consultant sha{f invoice the Project Coordinator. in a
timely manner, but no more than once on. a monthly basis. Invoices shall identify the nature and
extent of the work performed; the total hours of work performed by employee category; and the
respective hourly billing rate associated therewith. In the event sub-consultant work is used, the
percentage of completion shall be identified. Invoices shall also itemize and summarize any Additional
Services and/or Reimbursable Expenses: A copy of the written approval of the Project Coordinator for
19
CITY APPROVED A & E FORM (AUGUST 2010)
" - the requested Additional Service(s) or Reimbursable Expense(s) shall accompany the invoice.
7.7.1 If requested, Consultant shall provide back-up"for past and current invoices that
. records hours for all work (by employee category), and cost itemizations for Reimbursable
Expenses (by category).
7.7.2 The City shall pay Consultant within forty-five (45) calendar days from receipt and
approval of an acceptable invoice by the Project Coordinator.
7.7.3. Upon completion of the Services,. Consultant's final payment shall require the prior
written approval of the City Manager before disbursement of same.
ARTICLE 8. CONSULTANT'S ACCOUNTING AND OTHER RECORDS
8.1 All books, records (whether financial or otherwise), correspondence, technical documents, and
any other records or documents related to the Services and/or Project will be available for examination
- and audit by the City Manager, or his/her authorized represeritatives, at Consultant's office (at the.
address designated in Article 15 [``Notices"]), during customary business hours. All such records shall
be kepf at least for a period of three (3) years after Consultant's completion of the Services.
. Incomplete or incorrect entries in such records and ..accounts relating personnel services and
expenses may be grounds for City's disallowance of any fees or expenses based upon such entries.
Consultant shall also bind its sub-consultants to the requirements of this Article and ensure
compliance therewith
ARTICLE 9. OWNERSHIP OF PROJECT DOCUMENTS
9.1 All notes, correspondence, documents, ~ plans and specifications, designs, drawings, renderings,
calculations, specifications, models, photographs, reports,. surveys, investigations, and any other
documents (whether completed or partially completed) and" copyrights thereto for Services performed"
. or produced in the performance of this Agreement, or related to the Project, whether in paper or other
' hard copy medium or in electronic medium, except with respect to copyrighted standard details and
designs owned by the Consultant or owned by a third party and licensed to the Consultant for use and
.reproduction, shall become the property of the City. Consultant shall deliver all such documents to the
Project Coordinator within thirty (30) days of completion of the Services (or within thirty (30) days of
expiration or earlier termination of this Agreement as the case may be). However, the City may grant
an exclusive license of the copyright to the Consultant for reusing and reproducing copyrighted'
20
CITY APPROVED A & E FORM (AUGUST 2010)"
~.
.materials or portions thereof as authorized by the City Manager in advance and in writing, In addition,
the Consultant shall not disclose, release, or make available any document to any third party without
prior written approval from the City Manager. The Consultant shall warrant to the City that it has been
granted a license to use and reproduce. any standard details and designs owned by a third party and
used or reproduced by the Consultant in the performance of this Agreement. Nothing contained herein
shall be deerimed to exclude any document from Chapter 119, Florida Statutes.
9.2 The Consultant is permitted to reproduce copyrighted material described above subject to prior
written approval of the City Manager.
9.3 At ,the City's option, the Consultant may be authorized., as an Additional Service, to adapt
copyrighted material. for additional or other work for the City; however, payment to the Consultant for
. such adaptations will be limited to an amount not greater than 50% of the original. fee earned to adapt
the original copyrighted material to a new site.
9.4 The City shall have the right to modify the Project or any components thereof without permission,
from the Consultant, or without any additional compensation to the Consultant. The Consultant shall
be released from any liability resulting from such modification.
9.5 The Consultant shall bind all sub-consultants to the Agreement requirements for re-use of plans
and specifications.
ARTICLE 10. TERMINATION OF AGREEMENT
10.1 TERMINATION FOR LACK OF FUNDS: The. City is a governmental entity and is subject to the
appropriat'rori .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 either for the Services or the Project (or. both), the City may terminate this
,,
Agreement without further liability to the City.
10.2 TERMINATION FOR CAUSE: The City, through the City .Manager, may terminate this
Agreement for cause, upon written notice to Consultant, in the event that the Consultant (1) violates
any provision of this Agreement or performs same in bad faith; (2) unreasonably delays the
performance of the. Services or any portion thereof;. or (3) does not perform the Services or any portion
thereof in a timely and satisfactory manner. In the case of termination for cause by the City, the ,
Consultant shall first be granted a thirty (30) day cure period (commencing upon receipt of the initial'
21
CITY APPROVED A & E FORM (AUGUST 2010)
written. notice of default from the City)
10.2.1 In the event this Agreement is terminated for cause by the City, the City, at its sole
option- and discretion, may take over the remaining Services and complete them by
- contracting with another_consultant(s), or otherwise. The Consultant shall be liable to the City
for any additional cost(s) incurred by the City due to such termination. "Additional Cost" is
. defined as the difference between the actual cost of completion of the Services, and the cost
of completion of such Services had the Agreement not been terminated..
10.2.2 In the event of termination for cause by the City, the City shall only be obligated to
. ~ pay; Consultant for those Services satisfactorily performed and accepted prior to the date of
termination (as such date is set forth in, or can be calculated from, the City's initial written
default notice). Upon payment of any amount which may be due to Consultant pursuant to
this subsection 10.2.2,. the' City shall have no further liability to Consultant.
10.2.3 As a condition precedent to release of any payment which may be due to Consultant
under subsection 10.2.2, the Consultant shall promptly assemble and deliver to the Project
Coordinator, any and all Project documents prepared (or caused to be prepared) by
Consultant(including, without limitation, those referenced in subsection 9.1 hereof). The City
shall not be responsible for any cost. incurred by Consultant for assembly, copy, and/ol-
delivery of Project documents pursuant to this subsection.
10.3 TERMINATION FOR CONVENIENCE:- In addition to the City's right to terminate for cause, the
City through the City Manager, may also terminate -this Agreement,. upon fourteen (14) ,days prior
- written notice to Consultant, for convenience, without cause, and without penalty, when (in ,its sole
discretion) it deems such termination to be in the best interest of the City. In the event the City
terminates the Agreement for convenience, Consultant shall be compensated for all Services
satisfactorily performed and accepted up to the termination date (as set forth in the City's written
notice), and for Consultant's costs in assembly and delivery to the Project Coordinator of the Project
documents (referenced in subsection 10.2.3 above). Upon payment of any amount which may be due
to Consultant pursuant this subsection 10.3, the City shall have no further liability to Consultant.
10.4 TERMINATION BY CONSULTANT: The. Consultant. may only terminate this Agreement for
cause,. upon thirty (30) days prior written notice to the City, in the event that the City willfully violates
. any provisions of this Agreement or unreasonably delays payment of the Services or any portion
thereof. In the event of a termination for cause by Consultant; the City shall pay Consultant for any
c
Services satisfactorily performed and accepted up to the date of termination;,provided, however, that
22
CITY APPROVED A & E FORM (AUGUST 2010) -
the City shall first be granted a thirty (30) day cure period- (commencing upon receipt of Consultant's
. `initial written notice).
10.4.1 The Consultant shall have no right to terminate this Agreement for convenience.
10.5 IMPLEMENTATION OF TERMINATION: In the event of termination (whether for cause or
for convenience), the Consultant shall immediately, upon receipt of the City's written notice of m
termination: (1) stop the performance of Services; (2) place no further orders or issue any other
subcontracts, except .for those which may have already been approved, in writing, by the Project ~ .
Coordinator; (3) terminate all existing orders and subcontracts; and (4) promptly assemble all Project
documents (for delivery to the Project Coordinator).
ARTICLE 11. INSURANCE
11.1 ~ At, all times during the Term of this Agreement, Consultant shall maintain the following
required insurance coverage in full force and effect: The Consultant shall not commence any work until
satisfactory proof of all .required insurance coverage has been furnished to the Project Coordinator:
(a) .Professional Liability Insurance, in the amount of one million dollars ($1,000,000.00), per
.occurrence, with a maximum deductible of .$150,000 .per .occurrence; $450,000 aggregate.
` Consultant shall notify the Project Coordinator, in writing, within thirty (30) days of any claims
. ~ filed or made against its Professional Liability Insurance policy.
- (b) Comprehensive General Liability- Insurance, in the amount of .one million dollars
($1,000,000;00), Single Limit Bodily Injury . and Property Damage coverage, for each
occurrence, which shall include products, .completed operations, and contractual liability
~, coverage. The City of Miami Beach, Florida must be .named as an additional insured on this
policy.
` (c) Worker's Compensation and Employer's Liability coverage within the .statutory limits
required' under Florida law.
~. ,
11:2 The Consultant must give the Project Coordinator at least thirty (30) days prior written notice
of cancellation or of substantial modifications in any required insurance coverage. All certificates and
endorsements shall contain this requirement.
11..3 They insurance must be furnished by an insurance company rated B+:VI or better, or its
equivalent, according to Bests' Guide Rating Book, and by insurance companies duly authorized to do
business in the State of Florida, and countersigned by the company's Florida resident agent.
~3
CITY APPROVED A & E FORM (AUGUST 2010)
.~ a
. 11.4 Consultant shall provide the Project Coordinator with a certificate of insurance of all required
insurance policies. The Gity reserves the right to require a certified copy of such policies, upon written
request to ,Consultant.
ARTICLE 12. INDEMNIFICATION AND. HOLD HARMLESS
12.1 Pursuant to .Section 725.08, ,Florida Statutes„ the Consultant shall indemnify and hold
harmless the City and its officers, employees, agents, and instrumentalities, 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 this Agreement.
' The Consultant shall pay all. claims and losses in connection therewith and shall investigate and
defend all claims, suits, or actions of any kind or nature in the name of the City, where applicable,
including' appellate proceedings, and shall pay .all costs, judgments, and attorney's fees which may ~-
"issue thereon. Consultant expressly understands and agrees that any insurance protection. required
by this Agreement or otherwise provided by Consultant shall in no way .limit its responsibility to
indemnify, keep, and save harmless and defend the City. or its officers, employees, agents, and
instrumentalities as herein provided.. '
12.2 The Consultant agrees and recognizes that the City shall not be held liable or responsible
for. any claims which may result from any negligent, reckless, or intentionally wrongful actions, errors
or .omissions of the Consultant in which the City participated either through review o.r concurrence of
the Consultant's actions. In reviewing, approving or rejecting any submissions by the Contractor, or
',other acts of the Consultant; the City iri no way assumes or shares any responsibility or~ liability of the
Consultant (including,.. without limitation its sub-consultants and/or any, registered. professionals
(architects and/or engineers) under.this Agreement).. .
ARTICLE 13. ERRORS AND OMISSIONS -
13.1 ERRORS AND OMISSIONS: It is specifically agreed that any construction changes
categorized by the City as caused by an error, an omission., or any combination thereof in the Contract ,
Documents that were prepared by the Consultant will constitute an additional cost to the City that
would not .have been incurred without. the error. The damages to the City for errors, omissions or any
combinations thereof shall be calculated as the total. cost of any damages or incremental costs to the
City.resulting out of the errors or omissions by the Consultant.
. 24 - '
CITY APPROVED A & E FORM (AUGUST 2010)
Damages shall include delay damages caused by the error; omission, or any combination thereof.
Should the Consultant disagree that a1C or part of such damages are the result of errors, omissions, or
any combination. thereof, the Consultant may appeal this determination, in writing, to the City's Capital
• ~ Improvement Projects Director (the Director). The Director's decision on ,all claims, questions and
,.
disputes shall be final, conclusive and binding upon the parties hereto unless such determination is
clearly arbitrary or unreasonable. In the event that the Consultant does not agree with the decision of
the Director, the Consultant shall present .any such objections, in writing, to the City Manager. The
Director and the Consultant shall abide by the decision of the City :Manager. This paragraph does not
- constitute a waiver of any party's right to proceed. in a court of competent jurisdiction after the above
administrative remedies have been exhausted.
ARTICLE 14. LIMITATION OF LIABILITY
The City desires to enter into this Agreement only if in so doing the City- can .place a limit on its 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 "not to exceed" amount of the fee paid to
Consultant under this Agreement, less any amount(s) actually paid to Consultant hereunder.
Consultant hereby expresses its willingness to enter into this Agreement, with Consultant's recovery
from the City for any damages for action for breach of contract to be limited to Consultant's "not to
exceed" fee under this Agreement, less any amount(s) actually paid by the Gity to the Consultant
hereunder.
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 "not to exceed amount" of Consultant's fees
under this Agreement, which amount shall be reduced by any amount(s) actually paid by the City to
Consultant hereunder. •
.Nothing contained in this subsection, 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.
25
CITY APPROVED A & E FORM (AUGUST 2010)
ARTICLE 15. NOTICE
All-written notices given to City by Consultant shall be addressed to
City Manager's Office
City of Miami Beach
1700 Converition Center Drive
• Miami Beach, Florida 33139
-Attn: Jorge Gomez, Assistant City Manager
With a copy to:
Capital Improvement Projects Office
City of Miami Beach
1700 Converition Center Drive
Miami Beach, Florida 33139
_ ;
Attn: Charles Carreno, CIP Director -
All written notices given to the Consultant from the City shall be addressed to:
Forbes Architects
4565 Ponce de Leon Blvd., #100
Coral Gables, Florida 33146 -
Attn: John R. Forbes, President
All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail,
return receipt requested.
' ARTICLE 16. MISCELLANEOUS PROVISIONS .
16.1 VENUE: This Agreement shall be governed by, and construed in accordance with, the
laws of-the 'State of Florida, both .substantive and remedial, without regard to principles of conflict of
laws.. The exclusive venue fior any litigation arising ouf of this Agreement shall be Miami-Dade County,
•
Florida; if in state court, and the U.S. District Court, Southern District of Florida, 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.
. ?(,
CITY.APPROVED A & E FORM (AUGUST 201-0) '
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1.6.2 .EQUAL OPPORTUNITY EMPLOYMENT GOALS:.. Consultant agrees that it will not
discriminate ;against any employee or applicant for employment for work under this Agreement
because of race, color, national origin, religion, sex, gender identity, sexual orientation, disability,
marital or familial status, or age, and~will take affirmative steps to ensure that applicants are employed
and employees are treated during employment without regard to race, color, national origin,. religion,
sex, gender identity, sexual orientation, disability, marital or.familial status, or age.
16.3 PUBLIC ENTITY CRIMES ACT: In accordance with the Public Entity Crimes Act (Section
i
287.133, Florida Statutes), a person or affiliate who is a consultant, who .has been placed on the
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. ,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 bid on leases of real.. property to the
City,'may not be awarded or perforrri 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. For violation of this subsection. by
Consultant, City shall have the right fo terminate the Agreement without any liability to City, and
.pursue debarment of Consultant ~.
16.4 NO CONTINGENT FEE: Consultant warrants that it has not employed or retained any
company or person, other thane 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 subsection, City shall have the right to terminate the
. Agreement, without any liability or, at its discretion, to deduct from the contract price (or otherwise
recover) the,full amount of such fee, commission,. percentage, gift, or consideration.
16.5 LAWS AND REGULATIONS:
1.6.5.1 The Consultant shall, during the Term of this Agreement, be governed by
Federal, State, Miami-Dade County, and City laws, ordinances, and codes which may have a
bearing on the Services involved in the Project.
27
CITY APPROVED A & E FORM (AUGUST 2010)
I
1.6'.5.2 Project Documents. In accordance with Section 119.07 • (3) (ee), Florida
Statutes, entitled "Inspection, Examination, and Duplication. of Records; Exemptions," all
building 'plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and ,
final formats, are exempt from the provisions of Section 119.07(1), Florida Statutes (inspection
and copying of public records), and s. 24(a), Article I of the State Constitution. Information
made: exempt by this paragraph, with prior written approval from the City Manager, may be
disclosed to another entity to perform its duties and responsibilities; to a licensed architect,
engineer, or contractor who is .performing work on or related. to the .Project; or upon a showing
of good cause before a court of competent jurisdiction. The entities or persons receiving such .
information shall maintain the exempt status of the. information..
16:5.2.1 In addition to the requirements in this subsection 16.5.2, the Consultant
agrees to abide by all applicable Federal, State, and City procedures, as may be
amended from time to time, by which the documents are handled, copied, -and.
• distributed which may include, but is not limited to, each employee of Consultant and
sub-consultants that will be involved in the Project being .required to sign an agreement
stating that they will not copy, duplicate, or distribute the documents unless authorized
by the City .Manager, in writing. .
46.5.2.2 The Consultant and its sub-consultants agree in writing that the Project
documents are to be kept and maintained in a secure location..
16.5.2.3 Each set of the Project documents are to be numbered and the
• ~ whereabouts of the documents shall be tracked at all times.
16.5.2.4 A log is developed to track each set of documents logging in the date,
time, and name of the individual(s). that work on or view the documents.
16.6 CORRECTIONS TO CONTRACT DOCUMENTS: The Consultant shall prepare, without
added compensation, all necessary supplemental documents to correct errors, omissions, and/or
ambiguities which may exist in the Contract Documents prepared by Consultant, including documents
- prepared by its sub-consultants. Compliance with this subsection shall not be construed to relieve the
Consultant from any liability resulting from any such errors, omissions, and/or ambiguities in the
Contract Documents and other documents or Services related thereto.
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• CITY APPROVED A & E FORM (AUGUST 2010)
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1.6.7_ WARRANTY: The- Consultant warrants that the Services furnished to the City under this
.,Agreement shall conform to the quality expected of and usually provided. by the profession in the State.
ofFlorida applicable to the design and construction of public and commercial facilities.
16.8' ' NON-EXCLUSIVITY:. Notwithstanding any provision of this non-exclusive Agreement, the
' City is -not precluded from retaining or utilizing any other architect, engineer, design professional or
`other consultant to perform any incidental Basic Services, Additional Services, or other professional
services within the contract limits defined in the Agreement. The Consultant shall have no claim
against the City as a result of the. City electing to retain or utilize such other architect, engineer, design
professional, or other consultant to perform any such incidental Services.
16.9. ASSIGNMENT: The Consultant shall not assign, transfer or convey this Agreement to any
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other person, firm, association or corporation, in whole or in .part, without the prior written consent of
.. the City Commission, which consent, if given at all, shall be at the .Commission's sole option and
discretion. However, the Consultant will be permitted to- cause portions of the Services to be
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.performed by sub-consultants, subject to the prior written approval of the City Manager.
16.10 SUCCESSORS AND ASSIGNS: The Consultant and the City each binds himself/herself, e '
his/her partrers, successors, legal representatives and ,assigns to the other party of the Agreement
and to the partners, successors, legal representatives, and assigns of such party in respect to all
covenants of this Agreement. The Consultant shall afford the City (through the City Commission) the
opportunity .to approve or reject all proposed assignees, successors or~other changes in the ownership '
'structure and composition of the Consultant. Failure to do so constitutes a breach of this Agreement
. bythe Consultant.
_ ~ -
16.11 PROVISION OF ITEMS NECESSARY TO COMPLETE SERVICES: In the performance of
the Services prescribed herein, it shall be the responsibility of the Consultant to provide all salaries,
wages, materials, equipment, sub-consultants, and other purchased services, etc., as necessary to
' complete said Services. -
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16.12 INTENT OF AGREEMENT:
16.12.1 The intent of the Agreement is for the Consultant to provide design services, and to
j
include all necessary items for the proper completion of such. services for a fully functional
Project which, when constructed in accordance with the design, will be able to be used by the
;.
29 ,
CITY APPROVED A & E FORM (AUGUST 201D)
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City for its intended purpose. The Consultant shall perform, as Basic Services,'such incidental'
work which. may not be specifically referenced, as necessary to complete the Project.
-.
16.12.2 This Agreement is for the benefit of the parties only and it does not grant rights fo a
third 'cparty beneficiary, to any person, nor does it authorize anyone not a party to the
Agreement to maintain a suit for personal injuries, professional liability,. or property damage
pursuant to the terms or provisions of the Agreement.. -
16.12'.3 No acceptance, order, payment, or certificate of or-by the City, or its employees or
agents, shall either stop the City from asserting any rights or operate as a waiver of any
a
provisions hereof or of any power or right herein reserved to the City or of any rights to
damages. herein provided.
- . 16.13 This document incorporates and includes all prior 'negotiations, correspondence,
conversations, agreements, or understandings applicable to the matters contained: herein;
t ~ and #he, 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. hereiri
shall be effective unless memorialized in vvritten document approval and executed with the
;same formality and of equal dignity herewith_
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CITY,APPROVED A & E. FORM (AUGUST.2010)
f
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 an'd City Clerk on the day and year first hereinabove written.
Attest CITY OF MIAMI BEACH:
C~~
CITY CLERK; MAY R
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CONSU ~ NT: FORBES ARCHITECTS
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Signaturel:Ss -y Signature/President ~" ' _ „~ `~'~=y,,,'~.~`s
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1 APPROVED AS TO
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F:\PURC\$ALL\Maria\RFO'S\09-10\RFQ-01-09-10 AE Rotational List\Agreements\Forbes Architect.doc
31
CITY APPROVED A & E FORM (AUGUST 2010)
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AGREEMENT SCHEDULES -
;.
..NOTE: WITH THE EXCEPTION OF SCHEDULE "C" (CONSULTANT'S HOURLY BILLING RATE
SCHEDULE), THE ATTACHED SCHEDULES ARE fOR ILLUSTRATIVE PURPOSES. WHEN
CONSULTANT IS ASSIGNED A PROJECT AND/OR STUDY ACTIVITY (IES) UNDER THE TERMS OF
THE AGREEMENT, THE SPECIFIC SCHEDULES PERTAINING TO THAT PROJECT AND/OR STUDY
ACTIVITY (IES) (LE. THE SCOPE OF SERVICES; CONSULTANT COMPENSATION; CONSTRUCTION
COST BUDGET; PROJECT SCHEDULE; INSURANCE REQUIREMENT; ETC) SHALL BE NEGOTIATED
AND, ATTACHED AND, ALONG WITH THE TERMS OF THE AGREEMENT, SHALL BE THE AGREEMENT
THAT GOVERNS FOR THAT PARTICULAR PROJECT AND /OR STUDY ACTIVITY (IES).
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CITY APPROVED A & E FORM (AUGUST 2010)
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SCHEDULE A
SCOPE OF SERVICES
33
SCHEDULE B
CONSULTANT COMPENSATION.
' Schedule of Payments .
Planning Services * $XXXXXXXX..
Design Services* ~ $XXXXXXXX
Bidding and Award Services- . $XXXXXXXX
Construction Administration ** $XXXXXXXX
Reimbursable Allowance"** $XXXXXXXX _
Historic .Preservation Board /Design Review Board (if required) $XXXXXXXX
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 upon commencement of•
construction.
In the event that, through no fault of the Consultant, Construction Administration services are
required to be extended, which extension shall be subject to prior City approval, and what shall be at
the City's sole discretion, the Consultant agrees to extend said services for $XXXXXX, per month, for
the duration required to complete the Project. .
;Note***: The Reimbursable Allowance belongs to the City and must be approved in writing, in,
..advance, by the Project.Coordinator. Unused portions will not be ..paid to the Consultant.
' ~ J .
Project.Princi al
$
150.00 Project Engineer (Coastal or "
Other)
$
101.00
Project Mana ""er $ 120:00 Sr. Field Services Professional" $ 101:00
Senior Civil En ineer $ 120.00 Field Services Professional $ 70.00
Civil En ineer $ 1-01.00 Threshold Ins ector $ 120.00
Senior Electrical En ineer $ .1.20.00 Structural S ecial Ins ector $ 95.00
Electrical En ineer $ 101.00. Technical Editor $ 65.00
Senior Mechanical En ineer $ 120.00 Senior GIS S ecialist $ ~ 1A1.00
Mechanical En ineer $ 101.00 GIS S ecialist $ 75.00
Senior Structural En ineer $ 120.00 Staff En ineer/Geolo ist /Scientist $ 82.00
Structural En ineer $ 10.1.00 Landsca e Desi er $ 83.00
Senior Environmental En ineer $ 120.00 Planner $ 101.00
Environmental En ineer
$
101.00 Project Principal (Structural
En ineer)
$
150.00
Environmental Technician
$
65.00 Vroject Manager (Structural
Engineer)
$
120.00.
Environmental S ecialist $ 55.00 CAD Technician (Structural) ~ $ 55.00
Environmental Permit
S ecialist ~
$
55.00
Traffic En ineers
$ . '
101.00
Project Scientist $ 105.00 Cost Estimator $ 65.00
Senior Surve or $ 120.00 S ecifications Writer $ 55.00
•
Surve or
$
101.00 Construction Administrator /
Mana er
$
82.00
Surveyor Su ort Staff $ 60.00 Senior Project Mana er $ 120:00
Senior Architect $ 120.00 MEP Project En ineer $ 120.00
•
Architect .
$
101.00 r Horticultural/maintenance
Consultant
$
75.00
Senior Desi er $ 120.00 Irri ation En ineer $ 82:00
Desi ner $ 83.00 Job Ca tain $ $0.00
Senior Urban Planner " $ 120.00 Interior Desi ner $ 83.00
Senior. CAD Technician $ 60.00 Princi al/Director of Desi n $ 120.00
CAD Technician $ 55.00
Senior Landsca e Architect $ 120.00
Landsca e Architect $ 101.00
Clerical " $ 35.00
Administrative Assistant $ 35.00
Surve Crew Part of 2 $ 122.33 "
- Survey Crew Party of 2 w/
GPS
$
146.53
Surve Crew Pa of 3 $ 148.21
Survey Crew Party of 3 w/
.GPS
$
171.31.
-
Surve Crew Pa of4 $ 183.75
Surve Crew Part of 4 w/GPS $ 217.50
Sr. Ins ector (CEI) $ 90.00
Inspector (CEI, Field or
Construction
$-
82.50 ,
CITY APPROVED A & E FORM (AUGUST 2010)
S�SRUGI ON COSI'
36
• &FORM
IPpGUg1 2101
c\�Y PPPRpV�p P
SCHEDULE E
PROJECT SCHEDULE
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' CITY APPROVED A & E FORM (AUGUST 2010)
37
SCHEDULE F
)NDITIONS OF THE CONSTRUCTION CONTRACT
38
SCHEDULE G
INSURANCE REQUIREMENTS AND SWORN AFFIDAVITS.
CITY APPROVED A & E FORM (AUGUST 2040)
39
SCHEDULE H
BEST.VALUE AMENDMENT
The Consultant agrees to abide by all the required documentation of the City's Performance Information
Procurement System and submit the weekly reports.
40
CITY APPROVED A & E FORM (AUGUST 2010)