Amendment No. 2 to PSA with McCumber Golf, Inc. .2W-,27 q0 ?
AMENDMENT NO. 2
TO THE PROFESSIONAL ARCHITECTURE
AND ENGINEERING (A/E) SERVICES AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
MCCUMBER GOLF, INC.,
DATED JUNE 9, 2010
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FOR ADDITIONAL GROUNDWATER SAMPLING, MODELING AND TESTING AS PER
REQUIREMENTS FROM SOUTH FLORIDA WATER MANAGEMENT IN A NOT-TO-
EXCEED LUMP SUM FEE OF $16,425.00 FOR THE PAR 3 GOLF COURSE
PROJECT PURSUANT TO SETTLEMENT AGREEMENT DATED JUNE 4, 2013 AND
RESOLUTION NO. 2010-27407
This Amendment No.2 to the Agreement made and entered this day of k4usL
2013, by and between the City of Miami Beach, Florida, a municipal corporation existing der 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 McCumber Golf, Inc., having its
offices at 7502 Plantation Bay Drive, Jacksonville, Florida 32254 (hereinafter referred to as
CONSULTANT).
RECITALS
WHEREAS, pursuant to Request for Qualifications (RFQ) No. 07-09/10, the Mayor and
City Commission adopted Resolution No. 2010-27407, on June 9, 2010, approving and
authorizing the Mayor and City Clerk to execute an Agreement (the Agreement) with the
Consultant, for Professional Services for the Par 3 Golf Course Project(the Project); and
WHEREAS, the Agreement was executed for a negotiated lump sum fee amount of
$294,500, plus an additional not-to-exceed amount of$92,600 for approved reimbursable; and
WHEREAS, the Project is comprised of improvements to redesign the par 3 golf course.
The scope of services includes design, bid and award services and construction management
services of the Project to include a 9-hole par 3 golf course ("Par 3 Golf Course") and other
amenities including, without limitation, tennis courts, jogging trail, tot lot, children's splash pad,
restroom facility, parking lot, lighting and irrigation design and additional streets cape/hardscape
improvements (the "Amenities"); and
WHEREAS,during the course of the design and planning phases of the Project, numerous
issues and disputes arose between the CITY and CONSULTANT with respect to the quality and
constructability of CONSULTANT's work at the Project; and
WHEREAS,on January 28, 2013,the CONSULTANT submitted a proposal for additional
fees for additional service items associated with alleged changes in its scope of services for the
Project in the amount of Fifty-Five Thousand Three Hundred Six Dollars and 50/100 Cents
($55,306.50) ("January 28, 2013 Cost Proposal"); and
WHEREAS, CITY staff evaluated the CONSULTANT's January 28, 2013 Cost Proposal
and found certain items reasonable and others unacceptable and therefore rejected; and
WHEREAS, following negotiations as to the disputes pertaining to the quality and
constructability of CONSULTANT's work at the Project and the January 28, 2013 Cost Proposal,
the CITY and CONSULTANT have entered into a Settlement Agreement ("Settlement
Agreement"), whereby the Parties have agreed to a reduced negotiated sum for the additional
service items set forth in the January 28, 2013 Cost Proposal and to modify the CONSULTANT's
scope of work on the Project to eliminate services pertaining to the Amenities; and
WHEREAS, in accordance with the terms and conditions of the Settlement Agreement,
incorporated herein,Amendment No. 1 to this Agreement will remove the Amenities component of
the Project from CONSULTANT's scope of work, reducing the original Agreement's lump sum fee
amount by Eighteen Thousand Eight Hundred Forty-One Dollars and 00/100 Cents($18,841.00);
and
WHEREAS, in accordance with the terms and conditions of the Settlement Agreement,
attached hereto and incorporated herein,Amendment No. 1 to the Agreement shall provide for the
CITY to pay CONSULTANT a not-to-exceed amount of Twenty Four Thousand Nine Hundred
Seventy-Five Dollars and 00/100 Cents ($24,975.00), in connection with the additional service
items set forth in the January 28, 2013 Cost Proposal,3 modifying the Agreement's lump sum fee
amount to Three Hundred Thousand Six Hundred Thirty-Four Dollars and 00/100 Cents
($300,634.00), plus the original Agreement's not to exceed amount of Ninety-Two Thousand Six
Hundred Dollars and 00/100 Cents ($92,600.00)for reimbursable, which remains unchanged by
this Amendment No. 1; and
WHEREAS, on June 4, 2013, the CITY executed a settlement agreement with the
CONSULTANT that included the following language under section 2.g.; "McCumber shall
immediately proceed in addressing environmental issues raised by regulatory agencies with
jurisdiction over the Project to ascertain any modification to the design and planning for the Par 3
scope of work on the Project"; and
WHEREAS,"The City will consider any potential additional services related to any outside
agency requirements in connection with these environmental matters in the future with a not to
exceed amount of Eighteen Thousand Dollars and 00/100 Cents ($18,000.00)"; and
WHEREAS,the Consultant and City have established that this additional service request
appears fair and reasonable; and
WHEREAS, the following Amendment No. 2 increases the total contract fee by a Not-to-
Exceed amount of$16,425, for a total contract fee of$317,059.
NOW,THEREFORE,the Parties hereto,and in consideration of the mutual promises,covenants,
agreements,terms, and conditions herein contained,and other good and valuable consideration,
the respect and adequacy are hereby acknowledged, do agree as follows:
1. ABOVE RECITALS
The above recitals are true and correct and are incorporated as a part of this Amendment
No. 2.
2. MODIFICATIONS
The Agreement is amended to incorporate the Settlement Agreement and Additional
Service No. 01 set forth therein, attached hereto.
3. OTHER PROVISIONS
All other provisions of the Agreement, as amended, are unchanged.
4. RATIFICATION
The CITY and CONSULTANT ratify the terms of the Agreement, as amended by this
Amendment No. 2.
1) Exhibit A—Authorization for A/E Additional Services
2) Exhibit B to the Settlement Agreement,incorporated herein and corresponding amounts approved by the
CITY related thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be
executed in their names by their duly authorized officials as of the date first set forth above.
ATTEST: CITY OF MIAMI BEA H, FLORIDA
/1--11001
Raphael E. Granado, City Clerk Jimrr y L. Morale , City Manager
ATTEST: CON ULTANT:
r MC ER GOLF, INC.
Secretary yt 5-Presid t
C tx ee VS1T
Print Name Print Name
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
City A rn Date
o/dAik"d BEACH
Authorization for A/E Additional Services
A/E Firm: McCumber Golf Inc.
A/E Principal/Partner: Jeffrey D. Lucovsk
7/18/2003
Name — S ature Date
Project Title: _Par 3 Golf Course Project
B.P.O Number: 014141 Additional Service Number: 01 -
Estimated Construction Cost: $0.00
Cause(Check All That Apply):
❑ CONTRACTOR REQUEST
X UTILITY COMPANY/PUBLIC AGENCY' `
❑ OWNER REQUEST
❑ CITY CONCURRENCY
❑ OWNER DELAY/CONTRACTOR DELAY
❑ UNFORSEEN
❑ OTHER
Contract Reference: Article 5 Additional Services, item 5.3.3
Reason for Service: (Back-up attached): South Florida Water Management District and Miami Dade
Department of Environmental Resources Management requested additional groundwater sampling,
testing, groundwater modeling and design neither anticipated nor proposed in our scope of services (See
enclosures for additional information.
Description of Services:
Groundwater data collection Phase II Environmental Site Assessment Modification Permanent sampling
wells for post-construction testing groundwater contour mapping and aquifer hydraulic modeling for
salinity control in dewatenng design, additional contaminant sampling (See enclosures for additional
information.)
Revised-A/E Services Cost: $ 300,634.00
Additional Cost of Services: $ 16,425.00
Total A/E Service Cost: $ 317,059.00
roject Coordin or,Cap' 1 lm rl Prod is Sr.Pr c rdi t Capital Improvement Projects
� —,1-31113
Assistant Direc ital Impro emen rojects Director, Capital Im ovement Projects
EXHIBIT A
City of Miami Beach Par 3
Groundwater-Dew ate ring Additional Services Proposal
Prepared by: Jimmy Richie 6/18/2013
$ 150.00 $ 125 00 1 $ 114.00 $ 88.0-0
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Engineering Phase £ °
A.!Dewatering plan, details, calculations, report 2 2 1 16 m 8
_ $ 3,078
B. Specifications and bid documents _ 2 2 6 8 1 $ 1,938
C. Resubmittals to City, SFWMD& DERM 1 2 2 2 14 - $ 3,150
SUBTOTAL HOURS 6 j 6 ; 34 ( 30
SUBTOTAL FEE $ 900 $ - 750 I $ 3,876 $ 2,640 ._,- $ 8,166
TOTAL FEE $ 900 $ 750 ;
$ 2 640 :: -;,_
$ 3,876 � �_;;<. -,�:;-.=�=-� $ 8,166
$ 8,200-
EXHIBIT A
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SETTLEMENT AGREEIMEN.T
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This Settlement Agreement ("Agreement" or"Settlement.Agreement") is entered into,by
and between THE CITY OF MIAN/1I BEACH, FLORIDA (the "CITY") and MCCUMBER
GOLF, INC. ("MCCUMBER") (collectively referred to as the'Tarties");t
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RECITALS
WHEREAS, the CITY retained MCCUMBER to perform design and planning services
in connection with the Par 3 golf course project including, without limitation,a par I golf course
("Par 3"), and certain amenities including tennis courts, restroorns, a tot lot, an interactive
children 's splash pad and 9-space parking lot (the "Amenities") (collectively referred to as the
"Project");
E ti t
WHEREAS,pursuant to Resolution T07-09/10, the CITY entered into
an agreeE-Went far professional architecture and engineering services with MCCUMBER to
design,plan and oversee construction of the Project(the "Contract")-
)N-TEREAS; during the course of the design and- planning-phases of the Project,
nun-ierous issues arose with respect to the quality and constructability of MCCUKBER's work;
'",HEREAS, as a result of the numerous design defects and deficiencies identified to date
in MCCUIMBER's work on the Project the CITY served MCCUMBER with a contractual
notice of Intent to Terminate to MCCUNT IBER from the Project, dated May 15, 2013. See
Exhibit 'A," attached hereto an.d incorporated herein, outlining numerous design and regulatory
deficiencies in the plans submitted by MCCUMBER and other contractual breaches which the
CITY required be cured;
IiNTIEREAS, as a result of disputes between the Parties as to certain work performed by
MCCUMBER at the Project, the Parties to this Settlement Agreement desire to avoid protracted
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gation at this time, move the Project forward, and compromi=se and settle claims that have
E been or could be asserted by and against them upon the terms set forth in this Settlement
Agreernentf
A GREEMEN T
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NOW, THEREFORE-, in consideration of the mutual covenants contained herein and
other good and vaIuable consideration, the receipt and sufficiency of which are hereby
acknowledged,the Parties agree as follows:
1. Recitals: The above recitals are hereby glade a material part of this Agreement
and are binding upon t'ne Parties.
Wherever used herein, the term '`Party"or"Parties"shall include singular and plural, officers, directors, officers,
heirs,le;al representatives,assigns of individuals:and the successors and assigns of corporations; and the use of any-
gender shall be held to include every other and all Genders,wherever the context so admits or requires.
EXHIBIT B
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2. Settlement Terms: The Parties agree to perform the following:
a. The Panties shall execute the Amendment to the Contract, attached hereto
as Exhibit "B," which modifies MCCUMBER's scope of work on the Project to remove the
Amenities component. MCCUIMBER shall execute the Amendment within five (5) days of
execution of this Agreement: MCCLTNIBER shall perform.and complete its scope of work as to
the Par 3 component of the Project in accordance with the terms and conditions of its Contract
including, without limitation, performing the work properly,without.defects and which is subject
to all applicable warranties. The contractual amounts for the Bid Award and Construction
iVlanagernent Services components of the Contract, as referenced in Schedule.B, Compensation
Fee Schedule, shall be reduced in the amount of Eighteen Thousand Eight Hundred Forty-One
.Dollars and 00/100 Cents ($18,8=11.00), accounting for the reduced scope of work:removing the
Amenities portion of the Project from MCCUMBER's scope of work.
b. MCCU'IBER shall immediately furnish to the CITY all draMngs in
CADD format, in connection with the Project, contemporaneously with the execution of the
Settlement Agreement. The CADD drawings shall be uploaded to the Project's FTP site.
C. MCCUiti�IBER shat l re��ise its Par 3 drawings to exclude the A enities in a
form and manner acceptable to all departments and governmental entities with jurisdiction over
the Project including, without lirnitati-on. perforrnina the revisions required to the existing plans
submitted to the CITY's Building Department.. Said revisions shall be performed by
MCCUMBER, its engineer, Wantman Group, and/or any other engineer or subconsultant
retained by MCCUMBER, at no additional charge to the CITY.
d. Following negotiations regardrm� seventeen (17) additional service
proposals submitted to the CITY by MCCUNIBER,the CITY agrees to pay iMCCUMBEER a total
of Twenty Four Thousand Mine Hundred Seventy-Five Dollars and 00!100 Cents (S2Y,975.00),
for the additional service items set forth in the attached Exhibit "C."
e. MCCUMBER will provide all revisions and responses to Building
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Department cotru-Lients for the portion of:the remaining Par 3 scope of its work within three (3)
weeks after execution of this Settlement Agreement.
f. MCCUMBER shall continue t com a 'caU with any and o m ru n t h n all
governmental agencies with jurisdiction over the Project and address all regulatory comments
necessary to obtain the required permits.
Cr MCCUT�IBER shall, immediately proceed in addressing environrnerital
issues raised by .regulatory agencies with jurisdiction over the Project to ascertain any
modification to the design and planning far the Par 3 scope of work on the Project. The CITY
will consider any potential additional services related to any outside agency requirements in
connection with these environmental matters in the futute with a riot to exceed amount of
Eighteen Thousand Dollars and 00 1/100 Cents ($18,000.00).
EXHIBIT B
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h. MCCUNIBER agrees to cooperate in any way to coordinate the Project
with any new design professional or. contractor retained by or on behalf of the CITY to complete
the Amenities component of the Project or utilities and infrastnicture that share connections
between each site and must be engineered accordingly,
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i. All other terms, conditions and provisions of the Contract, to the extent
not modified by the Arnendrnent, shall remain in full force and effect including, without
limitation, any and all contractual tivairanfes in the work required by MCCUMBER.
Consideration: Legal Representation: The Parties acknowledge that this
Agreement is adequately supported
by consideration and is fair and reasonable. The Parties
further acknowledge and agree that: (i) each Party has had the opportunity to consult with, and
had in fact consulted with, such professionals, experts and legal counsel of its choice as such
Party may have desired with respect to all matters settled and resolved herein; (ii) each Party,has
participated fully in the .negotiation and preparation of this Agreement; (iii) each Party has F
carefully reviewed this Agreerie.nt and is entering into same freely; and (iv) this Settlement
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Agreement is encored into in good faith and was not obtained by fraud, misrepresentation, or
deceit. Accordingly this Agreement shall not be more strictly construed against any Party.
4. Aut�: Each Party represents and warrants to the other that the execution and
delivery of this Settlement Agreement has been duly approved by all requisite corporate or
partnership action (as applicable)required to be taken by such Party.
5. Severabilim In the event any term or provision of dhis Settlement Agreement is
determined by appropriate judicial authority to be illegal or othervise invalid, such provision
shall be. given its nearest Iegal rrleanin` or shall be construed as deleted as such authority
determines, and the remainder of this Agreement shall be construed to be in full force and effect,
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provided that such deletion does not.materially adversely affect the interests of any party hereto
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or the meaning, intent or purpose of this Agreement. '
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6. Attornev's Fees; If any legal action, proceeding, arbitration or hearing is brought
by any Party to this Settlement Agreement to:resolve a dispute regarding payment,as provided in
this Agreeren-t, then the prevailing Party shall be. entitled to recover reasonable attorney's fees
and court costs incurred.
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7. Mo-dif cation: Waiver: This'Agreement may only be modified. in wrifina sicnzd
by both-.Parties. No Waiver or modification of the Agreement or of any covenant, condition or
limitation contained herein, shall be vabid unless in writing and signed by all Parties to the
fAgreement; or their authorized counsel_. If the CITY excuses or condones any breach or default
by MCCUNIBER of any obligation under this Agreement, this shall not be a wa ver of such
obligation with respect to any continuing obligation or subsequent breach or default and no such
i waiver shall be implied.
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l S. Choice of Law: This Settlement Agreement shall be construed in accordance with
the lags of the State of Florida.
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_ EXHIBIT B
9. Venue: Venue for any dispute arising out of, or in connection with, this
Settlement Agreement including, without limitation, its interpretation and effect, acid any action
to enforce any provision contained herein, shall be in a court of competent jurisdiction in and for
l!Iiami Dade County, Florida.
14. Entire Agreement: This Settlement Agreement constitutes the full and entire
agreement and understanding between the Parties with respect to the subject matter hereof, and
these are no agreements,representations or warranties except as specifically set forth herein. The
terms of this Settlement Agreement are contractual and not a mere recital. All prior agreement(s)
are to be construed to be of no further force or effect, it being the intention of the Parties that this
Settlement Agreement shall serve as the sole and entire expression of their agreement and
understanding. However, execution by all :Parties. shall be a condition precedent to the
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effectiveness of this Agreement as binding against any Party.
11, Cautions and Headings: References: The captions and headings of this
Agreement are for the purpose of convenience of reference only and in no W.-a define, limit or
describe the scope or intent of the Agreement or in any way,affect the terms and conditions of
this Agreement. All references in the Agreement:to the terms "herein," `hereunder;' "hereof'
and words of similar import shall refer to this Agreement, as distinguished from the Para aph,
Section and/or Subsection within which such term is located.
12. Exhibits: All of the Exhibits attached to this Agreement are incorporated herein
and deerned part of this Agreement.
1�. Courite�arts: This Agreement may be executed in counterparts v,.,, the same
force and effect as if all signatures appeared on the same docurnent. The Parties fi.rther agree
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that facsimile, digitally transmitted and electronic copies of an original signature shall be
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accepted as an authentic ori-ir:.31.signature:
fSia at?r-es on follo"Vin;pa e.J
_._....._...__... ..............._.. EXHIBIT B
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Signed this day of N 2013.
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MCC i IBER GOLF,LTC. CITY O i���II BE H,FLORIDA
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BY: Bw
N /l - -r�,�A— dame: Vt;1L NO
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APPROVED AS TO
FORM & LANGUAGE:
&FOR EXELI T IaU
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EXHIBIT B