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Chen Moore and Associates
a��3-a�isg m MIAMIBEACH AGREEMENT BETWEEN CITY OF MIAMI BEACH AND CHEN MOORE AND ASSOCIATES FOR FOR PROFESSIONAL CONSTRUCTION ENGINEERING AND INSPECTION (CEI) FIRMS TO PROVIDE VARIOUS CEI SERVICES ON AN "AS NEEDED" BASIS Resolution No. 2013-28158 TABLE OF CONTENTS DESCRIPTION PAGE ARTICLE 1. DEFINITIONS 3 ARTICLE 2. BASIC SERVICES 8 ARTICLE 3. THE CITY'S RESPONSIBILITIES 14 ARTICLE 4. RESPONSIBILITY FOR CONSTRUCTION COST 17 ARTICLE 5. ADDITIONAL SERVICES 18 ARTICLE 6. REIMBURSABLE EXPENSES 18 ARTICLE 7. COMPENSATION FOR SERVICES 19 ARTICLE 8. CONSULTANT'S ACCOUNTING AND OTHER RECORDS 20 ARTICLE 9. OWNERSHIP OF PROJECT DOCUMENTS 21 ARTICLE 10. TERMINATION OF AGREEMENT 22 ARTICLE 11. INSURANCE 23 ARTICLE 12. INDEMNIFICATION AND HOLD HARMLESS 24 ARTICLE 13. ERRORS AND OMISSIONS 25 ARTICLE 14. LIMITATION OF LIABILITY 25 ARTICLE 15. NOTICE 26 ARTICLE 16. MISCELLANEOUS PROVISIONS 27 SCHEDULES: NOTE TO AGREEMENT SCHEDULES 32 SCHEDULE A- SCOPE OF SERVICES 33 SCHEDULE A-1 - CONSULTANT SERVICE ORDER 44 SCHEDULE B - CONSULTANT COMPENSATION 45 SCHEDULE C - CONSULTANT HOURLY BILLING RATE 46 SCHEDULE D - INSURANCE AND SWORN AFFIDAVITS 47 SCHEDULE E - BEST VALUE AMENDMENT 48 . 2 TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CHEN MOORE AND ASSOCIATES FOR FOR PROFESSIONAL CONSTRUCTION ENGINEERING AND INSPECTION (CEI) FIRMS TO PROVIDE VARIOUS CEI SERVICES ON AN "AS NEEDED" BASIS This Agreement made and entered into this Z day of 0& O 2013 (Effective Date), 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 Chen Moore and Associates a Florida corporation having an office at 1444 Biscayne Blvd, Suite 204, Miami, Florida, 33132 (hereinafter referred to as Consultant). WITNESSETH: WHEREAS, the City intends to undertake various capital projects within the City of Miami Beach, and wishes to engage the Consultant to provide certain professional services as same are described and set forth in Schedule "A" hereto, for certain projects, to be assigned, at the City's discretion and by means of the issuance of a "Consultant Service Order" (similar to the form shown in Schedule "A-1" attached hereto), at the agreed fees set forth in this Agreement; and WHEREAS, the Consultant desires to contract with the City for performance of those certain professional services relative to those projects assigned by the City, pursuant to a Consultant Service Order. NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and agreement herein contained, agree as follows: ARTICLE 1. DEFINITIONS 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. 3 f 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 Qualifications No. 54-11/12, entitled "Professional Construction Engineering and Inspection (CEI)firms to provide various CEI Services On An "As-Needed" Basis" issued by the City in contemplation of this Agreement, together with all amendments thereto (if any), (the RFQ), 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 shall prevail. 1.5 CONSULTANT: The named entity on page 1 of this Agreement, the "Consultant" shall mean the architect/engineer who has entered into a contract 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 a 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- consultants. Any such contracts 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 sub-consultants. Any approval of a sub-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 not be cause for any increase in compensation to the Consultant for payment of the Services. The quality of services and acceptability to the City of the services performed by such sub-consultants shall be the sole responsibility of Consultant. 1.6 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 a Project. 4 r 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 a 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 which is described in the Consultant Service Order. 1.9.1 Project 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 Project or scope of work. 1. .2 Prowect Scope: Th e "Project Scope" shall m ea n the description of the Project, contained in the Consultant Service Order (and as same may be modified by any approved change orders). 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 Consultant Service Order (and as same may be modified by any approved change order), and which may include a contingency allowance. 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 shall be set forth in the Consultant Service Order. 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. The cost estimate shall comply with the guidelines (including accuracy) as defined by the Association for the Advancement of Cost Engineering, formerly, American Association of Cost Engineering (AACE)and the American National Standards Institute (ANSI). 5 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 violence in nature without the interference of human agency such as hurricanes, tornadoes, floods, loss caused by fire and other similar unavoidable casualties; or by changes in Federal, State or local laws, ordinances, codes or regulations enacted after the date of this Agreement ; 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-consultants/sub-contractors, market conditions, labor conditions, construction industry price trends, and similar matters which normally impact on the construction process SHALL NOT be i 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. 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 Contract Documents. 1.13 CONTRACT DOCUMENTS: "Contract Documents" shall mean this Agreement (together with all exhibits, addenda, and written amendments issued thereto), the Consultant Service Order issued to I Consultant by the City for a Project, and the documents prepared by Consultant in accordance with it I Service Order. T the requirements stipulated in such Consultant Se ce O der he Contract Documents may also include, without limitation (together with all exhibits, addenda, and written amendments issued thereto), the solicitation documents and other agreements issued and approved by the City for construction of the Project including, without limitation, the Invitation to Bid (ITB) (or such other solicitation document as the City may deem advisable, in the sole and reasonable discretion), 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, approved change order(s), approved construction change directive(s), and/or approved written order(s)for a minor change in the Work. 6 1.14 CONTRACT FOR CONSTRUCTION: "Contract for Construction" shall mean the legally binding agreement between City and Contractor for performance of the Work covered in the Contract Documents. 1.15 CONSTRUCTION DOCUMENTS: "Construction Documents" shall mean the final plans, technical specifications, drawings, documents, and diagrams prepared by the Consultant, 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, 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. 1.17 ADDITIONAL SERVICES: "Additional Services" shall mean those services, in addition to the Basic Services, 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 labor, materials, tools, equipment, services, methods, procedures, etc. necessary or convenient to performance by Contractor of all duties and obligations proposed by the Contract for Construction. 1.19 SERVICES: "Services" shall mean all services, work, and actions by the Consultant performed pursuant to or undertaken under this Agreement. When the term "Services" is used in this Agreement, it shall also be deemed to refer to the particular work, services, and/or tasks assigned to Consultant pursuant to the City's issuance of a Consultant Service Order. 1.20 SOFT COSTS: "Soft Costs" shall mean costs related to a Project other than Construction Cost including, without limitation, Consultant's Basic Services, Additional Services, surveys, testing, general consultant, financing, and permitting fees, etc. 7 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 being within the Construction Cost Budget. "Base Bid" shall not include Additive Alternates or Deductive Alternates. 1.22 SCOPE OF SERVICES: "Scope of Services" shall include the Project Scope, Basic Services, and any Additional Services (as approved by the City), all as described in Schedule "A" hereto. It shall also be deemed to refer to the particular work, services, and/or tasks assigned to Consultant pursuant to the City's issuance of a Consultant Service Order. 1.23 CONSULTANT SERVICE ORDER: "Consultant Service Order" shall mean the work, services and/or tasks assigned by the City to Consultant(and issued pursuant to the notice, in substantial form, attached as in Schedule "A-1" hereto), and specifically describing and delineating the particular Services (Basic and otherwise) which will be required of Consultant for the Project that is the subject of such Order. 1.24 SCHEDULES: "Schedules" shall mean the various schedules attached to this Agreement and referred to as follows: Schedule A — Scope of Services. Schedule A-1 — Consultant Service Order. Schedule B — Consultant Compensation. Schedule C — Consultant Hourly Billing Rate Schedule. Schedule D — Insurance Requirements and Sworn Affidavits Schedule E — Best Value Amendment ARTICLE 2. BASIC SERVICES 2.1 The Consultant shall provide Basic Services under this Agreement, as set forth in Schedule "A" hereto, and as may also be more specifically described in the Consultant Service Order. 2.2 The Services will be commenced by the Consultant upon receipt of a written Consultant Service Order signed by the City Manager or his/her designee. Consultant shall countersign the Consultant Service Order upon receipt, and return the signed copy to the City. 2.3 As it relates to the Services and a Project, Consultant warrants and represents to City that it is knowledgeable of Federal, State, and local laws codes, rules and regulations applicable in the 8 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) ordinances, 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 effect or as may be 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 a 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 City that 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 licensed (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. 2.5 The Consultant's Basic Services to be provided under this Agreement shall (at a minimum) consist of, but not be limited to, the following: 1. Administer the Construction Contract and monitor and inspect the work performed by the Contractor such that the project is constructed in reasonable conformity with the plans, specifications, and special provisions of the Construction Contract. 2. Provide Survey Control - Consultant shall check or establish the survey control baseline(s) along with sufficient baseline control points and bench marks at appropriate intervals along the project in order to: (1) make and record measurements necessary to calculate and document quantities for pay items, (2) make and record pre-construction and final cross section surveys of the project site in those areas where earthwork (i.e., embankment, excavation, subsoil excavation, etc.) is part of the construction project, and (3) perform incidental engineering surveys. 3. Resident Engineering Services - Coordinate the Construction Contract administration activities of all parties other than the Contractor involved in completing the construction project. Services shall include maintaining the required level of surveillance of Contractor activities, interpreting plans, specifications, and special provisions for the Construction Contract. Maintain complete, accurate 9 records of all activities and events relating to the project and properly document all project changes. Notwithstanding this Section 2.5, the Consultant Service Order issued by the City to Consultant shall specifically delineate and describe the Services to be provided by Consultant for the particular Project (that is the subject of such Order). 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. 2.7 TIME: It is understood that time is of the essence in the completion of a 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 which shall be the Effective Date referred on page 1 hereof, and shall be in effect for two (2) years plus two (2), one (1) year renewal options to be exercised at the.sole discretion of the City Manager. Notwithstanding the preceding Term, Consultant shall adhere to any and all timelines and/or deadlines, as set forth in the Consultant Service Order issued for a particular Project, including the time for completion of the work and/or services for such Project (as set forth in the particular Service Order. 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 will be performed in a manner that shall conform to the Consultant Service Order. The Consultant may submit requests for an adjustment to the Consultant Service Order completion time, 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). 10 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 Consultant's 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 a Project. 2.9 The Consultant shall perform its duties under this Agreement, and under a Consultant Service Order, 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. The Consultant is responsible for the professional quality, technical accuracy, completeness, performance and coordination of all Services required under the Agreement and, under any Consultant Service Order issued to the Consultant by the City (including the Services performed by sub-consultants), within the specified time period and specified cost. The Consultant shall perform the Services 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 Services in the State of Florida. The Consultant is responsible for, and shall represent to City that its work conforms to the City's requirements, as set forth in the Agreement and in any particular Consultant Service Order issued to Consultant by the City. The Consultant shall be and 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. Neither the City's inspection, review, approval or acceptance of, nor payment for, any of the Services required under the Agreement shall be construed to relieve the Consultant (or any sub-consultant) of its obligations and responsibilities under the Agreement, nor constitute 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 11 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 Services by sub-consultants, the Consultant shall, in approving and accepting such Services, ensure the professional quality, completeness, and coordination of the sub-consultant's Services. 2.9.1 Consultant Performance Evaluation: The Consultant is advised that performance evaluation(s) of the work and/or services rendered throughout the Term of this Agreement will be completed by the City and kept in the City's files for evaluation of future solicitations. 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). Whenever others are required to verify, review, or consider any Services 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, decisions or approvals provided by the City under this Agreement. Consultant will 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] 2.12 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 receiving a fully executed Consultant Service Order, a qualified licensed professional to serve as its project manager (hereinafter referred to as the "Project Manager"). The Project Manager shall be authorized and 12 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/her 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/her 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). 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, as described in this Agreement and in Schedule "A" hereto, do not delineate every detail and minor work task required to be performed by Consultant to complete the work and/or services described and delineated under a Consultant Service Order issued to Consultant by the City for a particular Project. If, during the course of performing work, services and/or tasks on a particular Consultant Service Order, Consultant determines that work and/or services should be performed (to complete the Project delineated under such Order which is, in the Consultant's reasonable opinion), outside the level of effort originally anticipated in the Consultant Service Order (issued for the particular Project), then Consultant shall promptly notify the Project Coordinator, in writing, and must obtain the Project Coordinator's written consent before proceeding with such work and/or services. If Consultant proceeds with any such additional work and/or services without obtaining the prior written consent of the Project Coordinator, said work and/or services shall be deemed to be a Basic Service under this Agreement and shall also be deemed to be within the scope of services delineated in the Consultant Service Order(whether or not specifically addressed in such scope of services). Mere notice by Consultant to the Project Coordinator shall not constitute authorization or approval by the City to perform such work and/or services. Performance of any such work and/or services by Consultant without the prior written consent of the Project Coordinator shall be undertaken at Consultant's sole risk and liability. 13 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. In 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 100 of the City Code, as both may be amended from time to time, addressing applicable Leadership in Energy and Environmental Design (LEED)compliance requirements. 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 or his/her designee, in response to a written request from the Consultant stating the reasons for any proposed substitution. Any approval of a sub-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 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 14 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 modifying or changing, (in any way)the following: a) the Services described in this Agreement; b) the Term of this Agreement; 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 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 If the City observes or otherwise becomes aware of any fault or defect in the Project, or non- conformance with the Contract Documents, the City, through the Project Coordinator, shall give prompt written notice thereof to the Consultant. 3.6 The City, acting in its proprietary capacity as Owner and not in its regulatory capacity, shall render 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 for any reasonable basis. 15 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, of this Agreement. 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-consultants(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 16 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. 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 under this 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 [Intentionally Omitted] 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 (or otherwise provided) by Consultant. 4.4 [Intentionally Omitted] 4.5 [Intentionally Omitted] 17 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" shall 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 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. 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. Notwithstanding the preceding, 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 18 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 in 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). ARTICLE 7. COMPENSATION FOR SERVICES 7.1 Consultant's "Lump Sum" or "Not to Exceed" fee for provision of the Services, or portions thereof, as may be set forth and described in the Consultant Service Order issued for a particular Project, shall be negotiated between City and Consultant, and shall be set forth in such Consultant Service Order. 7.2 Payments for Services shall 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- up shall be allowed on subcontracted work. 7.3 Approved Additional Services shall be compensated in 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. 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. 19 7.5 ESCALATION: During the Term of this Agreement, 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 increase 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 shall 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 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 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 representatives, at Consultant's office (at the address designated in Article 15 ["Notices"]), during customary business hours upon reasonable prior written notice. All such records shall be kept 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 20 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 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 deemed 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. 21 ARTICLE 10. TERMINATION OF AGREEMENT 10.1 TERMINATION FOR LACK OF FUNDS: The City is a governmental entity and is subject to the appropriation of funds by its legislative body in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this Agreement. In the event there is a lack of adequate funding 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 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/or delivery of Project documents pursuant to this subsection. 22 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 Services satisfactorily performed and accepted up to the date of termination; provided, however, that 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 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 claim, 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. 23 (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 The 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. 11.4 Consultant shall provide the Project Coordinator with a certificate of insurance of all required insurance policies. The City 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 and/or in the performance of any Consultant Service Order issued by the City to Consultant pursuant to 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 24 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 or concurrence of the Consultant's actions. In reviewing, approving or rejecting any submissions by the Contractor, or other acts of the Consultant, the City in 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. Damages shall include delay.damages caused by the error, omission, or any combination thereof. Should the Consultant disagree that all 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 $10,000, less any amount(s) actually paid to 25 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 $10,000, less any amount(s)actually paid by the City 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 $10,000, 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. ARTICLE 15. NOTICE All written notices given to City by Consultant shall be addressed to: City Manager's Office City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: J. Mark Taxis, Assistant City Manager With a copy to: Capital Improvement Projects Office City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: David Martinez, P.E., CIP Acting Director All written notices given to the Consultant from the City shall be addressed to: Chen Moore and Associates 1444 Biscayne Blvd, Suite 204 Miami, Florida 33132 Attn: Peter Moore, P.E. LEED AP All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. 26 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 for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, 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. 16.2 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 287.133, Florida Statutes), a person or affiliate who is a consultant, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not bid on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or subconsultant under a contract with the City, and may not transact business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for Category Two, for a period of 36 months from the date of being placed on the convicted vendor list. For violation of this subsection by Consultant, City shall have the right to 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 than a bona fide employee working solely for Consultant, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this subsection, City shall have the right to terminate the 27 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: 16.5.1 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. 16.5.2 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. 16.5.2.2 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. 28 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. 16.7 WARRANTY: The Consultant warrants that the Services furnished to the City under this Agreement and under any Consultant Service Order issued by the City to Consultant shall conform to the quality expected of and usually provided by the profession in the State of Florida 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 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 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, his/her partners, 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 by the 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, 29 wages, materials, equipment, sub-consultants, and other purchased services, etc., as necessary to complete said Services. 16.12 INTENT OF AGREEMENT: 16.12.1 The intent of the Agreement is for the Consultant to provide design services, and to 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 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 to a third party 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 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; and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless memorialized in written document approval and executed with the same formality and of equal dignity herewith. 30 IN WITNESS WHEREOF, the parties hereto have.hereunto caused these presents to be signed in their names by their duly authorized officers and principals, attested by their respective witnesses and City Clerk on the day and year first hereinabove written. Attest `?';jQTY OF MIAMI BEACH: :iNCORP O� ATE r' C TY CLERK , A O"R CN HEN MOORE AND ASSOCIATES A est Signature/S cretary� Signat /President /,Aft t Print Name/Title Print Name/Title APPROVED AS TO _. FORM & LANGUAGE OR E CUTION ity ney ate 31 NOTE TO AGREEMENT SCHEDULES NOTE: WITH THE EXCEPTION OF SCHEDULES "A" AND "C" (BASIC SERVICES AND CONSULTANT'S HOURLY BILLING RATE SCHEDULE), THE ATTACHED SCHEDULES ARE FOR ILLUSTRATIVE PURPOSES ONLY. WHEN CONSULTANT IS ISSUED A CONSULTANT SERVICE ORDER FOR A PARTICULAR PROJECT PURSUANT TO THIS AGREEMENT, THEN THE SPECIFIC SCHEDULES PERTAINING TO THAT PARTICULAR WORK, SERVICES AND/OR TASKS (I.E. THE SCOPE OF SERVICES; CONSULTANT COMPENSATION; CONSTRUCTION COST BUDGET; PROJECT SCHEDULE; ETC) SHALL BE NEGOTIATED BETWEEN THE CITY AND THE CONSULTANT AND THE TERMS OF THIS AGREEMENT SHALL GOVERN FOR THAT PARTICULAR PROJECT. 32 SCHEDULE A SCOPE OF SERVICES The Consultant shall provide professional engineering services on an "as needed basis" to provide Construction Engineering and Inspection (CEI) services pursuant to the Agreement. Each firm awarded a contract hereby agrees to be placed on a list of professionals that will provide CEI services where the City may call upon them to perform professional services for certain City projects, (the Project or Projects), as assigned by the City, in its sole discretion and judgment. As the need for service arise, firms will be contacted to provide the necessary professional services according to the negotiated scope of work and cost. Professional services will be quoted as a not to exceed or lump sum based on the estimated hours to complete a project and in accordance with the hourly rates set forth in Schedule "C" of this Agreement. The Services will be commenced by the Consultant upon receipt of a written Consultant Service Order; the Consultant shall sign it and returned it to the City for execution by the City Manager or his/her designee. The Consultant's Basic Services that may be provided under this Agreement shall (at a minimum)consist of, but not be limited to, the following: 1. Administer the Construction Contract and monitor and inspect the work performed by the Contractor such that the project is constructed in reasonable conformity with the plans, specifications, and special provisions of the Construction Contract. 2. Provide Survey Control - Consultant shall check or establish the survey control baseline(s) along with sufficient baseline control points and bench marks at appropriate intervals along the project in order to: (1) make and record measurements necessary to calculate and document quantities for pay items, (2) make and record pre-construction and final cross section surveys of the project site in those areas where earthwork (i.e., embankment, excavation, subsoil excavation, etc.) is part of the construction project, and (3) perform incidental engineering surveys. 3. Resident Engineering Services - Coordinate the Construction Contract administration activities of all parties other than the Contractor involved in completing the construction project. Services shall include maintaining the required level of surveillance of Contractor activities, interpreting plans, specifications, and special provisions for the Construction 33 Contract. Maintain complete, accurate records of all activities and events relating to the project and properly document all project changes. The following services shall be performed. a) General Coordination: The Consultant shall communicate daily or periodically with the City, the Design Consultant and Contractor, as needed. They shall report on concerns as it relates to the construction effort and activities. In addition, the Consultant shall also coordinate with the Public Information Officer (PIO) where notifications such as utility outages,. road closures, etc. may be required. The Consultant shall monitor and verify that the Contractor has made the required notifications to the utility owners, residents and businesses as may be required. b) Value Engineering Meetings: The Consultant shall be expected to attend, participate, and provide cost estimating information at Value Engineering meetings between the City, the Design Consultant, and the Contractor for the Project. c) Resident's Information Meetings: The Consultant shall be expected to attend, address residents' concerns, participate, produce meeting minutes, and take a lead role in Resident Information Meetings with the City,for the Project. d) Pre-Construction Meetings: The Consultant shall be expected to attend, participate, produce meeting minutes and take a lead role in Pre-Construction Meeting with the City, Design Consultant and Contractor for the Project. The Pre-construction Meeting shall be scheduled once the first Notice-to-Proceed is issued to the Contractor. e) Weekly Construction Progress Meetings: The Consultant shall attend, participate and take a lead role in weekly construction project meetings with the City, Design Consultant and Contractor on the Project. These meetings shall serve as forums to review the status of construction progress, discuss construction issues, discuss schedule and/or cost concerns, discuss potential changes or conflicts, review the status of shop drawing submittals and Construction Document clarifications and interpretations, and to resolve problems before they become critical. Consultant shall prepare weekly meeting minutes and distribute to all meeting attendees, review the two week look ahead provided by the Contractor and provide comments or objections to written statements within the specified timeframe. The Consultant shall prepare detailed weekly reports that describe the construction activities, progress, incidents and issues that have occurred on the construction site and distribute to the attendees in advance of the weekly construction progress meetings. 34 f) Field Observations: The Consultant shall conduct field observations on a daily basis throughout the duration of construction. Field observations shall be provided jointly by the City and the Consultant. If and when necessary, the City shall provide part-time construction inspectors for the duration of the Project. The role of the City's construction P J Y inspectors shall be limited. The Consultant shall be present at the construction site daily during the construction phase of the Project and shall be expected to be available, as needed, throughout the Contractor's work day. g) Stormwater Permit.- Verify that the Contractor is conducting inspections, preparing reports and monitoring all storm water pollution prevention measures associated with the project. For each project that requires the use of the NPDES General Permit, provide at least one inspector who has successfully completed the "Florida Stormwater, Erosion, and Sedimentation Control Training and Certification Program for Inspectors and Contractors". The Consultant's inspector shall be familiar with the requirements set forth in the FEDERAL REGISTER, Vol. 57, No. 187, Friday, September 5, 1992, pages 4412 to 4435 "Final NPDES General Permits for Storm Water Discharges from Construction Sites" and the City's guidelines. h) Specialty Design Consultant Site Visits: The Consultant shall monitor the number of specialty site visits requested by the Contractor or City and conducted by the Design Consultant. When it becomes evident that a specialty site visit from the design Engineer of Record (EOR) shall be required, the Consultant shall notify the FOR to discuss and schedule a mutually acceptable time for meeting at the construction site. i) Daily Reports: The Consultant shall prepare daily reports, on the same date as construction occurs, to record the daily performance of the Contractor as well as other significant construction related matters. Daily reports shall be uploaded by the Consultant to e--BuilderT"", the City's document management system. At the end of each week, the Consultant shall forward the original daily reports to the City for review. The Consultant shall maintain and file paper copies of the daily reports onsite for reference. The daily reports shall include records of when the Contractor is on the job-site, general field observations, weather conditions, change orders, changed conditions, list of job site visitors, daily drilling and testing activities, testing results, testing observations, and records of the outcome of tests and inspections. At a minimum the daily reports shall contain the following information: 35 • Weather and general site conditions • Contractor's work force counts by category and hours worked • Description of Work performed including location • Equipment utilized • Names of visitors to the jobsite and reason for the visit • Tests made and results • Construction difficulties encountered and remedial measures taken • Significant delays encountered and apparent reasons why • Description of(potential)disputes between the Contractor and City • Description of(potential)disputes between the Contractor and residents • Summary of additional directions that may have been given to the Contractor • Detailed record of materials, equipment and labor used in connection with extra work, or where there is reason to suspect that a claim or request for Change Order may be submitted by the Contractor • Summary of any substantive discussions held with the Contractor and/or City • Summary of nonconforming work referenced to corresponding Non-Compliance Notice • A log of photographs taken j) Photographic Record: Consultant shall provide a photographic record of the overall progress of construction, beginning with preconstruction documentation, following with on- going construction documentation, and ending with post-construction documentation. Photographs shall be digital snapshot type taken to,define the progress of the project and shall be filed electronically by month in e-BuilderT"", the City's document management system, labeled by date, time and location. The Consultant shall upload all photos to the e- BuilderTm document management system on a weekly basis. k) Adherence to Construction Documents: The Consultant shall review materials and workmanship of the projects and report to the City any deviations from the Construction Documents that may come to the Consultant's attention. Consultant shall determine the acceptability of the work and materials and, in concert with the Design Consultant (as necessary), make recommendations to the City to reject items not meeting the requirements of the Construction Documents. 1) Delivery of Unaccepted Materials to Jobsite: As new materials are delivered to the jobsite, the Consultant shall check the material's certifications and samples and verify that 36 an approved shop drawing was submitted for the material in question. If it is determined that a submittal has not been approved, the Consultant shall immediately notify the City and issue a Non-Compliance Notice. In conjunction with the Design Consultant (as necessary), the Consultant shall direct and supervise the sampling and testing of materials to be performed by the City's independent testing laboratory. The Consultant shall maintain test report logs which shall be submitted to the City for review on a monthly basis and uploaded to e--BuilderT"", the City's document management system on a weekly basis. Consultant shall also review invoices submitted by the independent testing laboratories and recommend payment by the City. m) Shop Drawing Submittals: The Consultant shall review shop drawing and product approvals throughout the duration of the construction period for familiarity prior to delivery of materials. Consultant shall verify that Contractor is maintaining a submittal log, conducting timely submittals, and uploading approved shop drawings to e--Builder TM, the City's document management system. n) Issuance of Non-compliance Notices: The Consultant shall be responsible for notifying the City when they become aware of a condition that is believed to be in non- compliance with Construction Documents. Anytime the Consultant notices a potential construction problem or a condition that could result in non-complying materials, equipment or workmanship, the Consultant will need to determine whether the condition poses an immediate threat to public health or safety. If a condition does not pose a threat to public health or safety, immediate verbal notification or "Pre-Noncompliance Notice" of the potential non-compliance should be made to the Contractor and the City. This verbal notice shall be documented in the Consultant's daily report and shall advise the Contractor of potential construction problems, errors, or deficiencies that can be promptly resolved and do not warrant a Non-compliance Notice. If the Contractor fails to respond to the verbal notification within a reasonable timeframe, the Consultant shall notify the City and the City's Projects Coordinator shall issue a Non-compliance Notice. If a condition poses an immediate threat to public health or safety, the Consultant shall notify the Contractor and City immediately and the City's Projects Coordinator shall issue a Non-compliance Notice to the Contractor. Non-compliance Notices shall include a description of the Work that does not meet the construction contract requirements, along with a required timetable for corrective work to be implemented by the Contractor. Other items that should be included in the Notice include a reference to the provision of the Construction Documents that has been violated. 37 o) Damage to Existing Facilities: The Consultant shall identify any existing facilities damaged by the Contractor and verify that the Contractor has notified the respective owner(s). Include record of such occurrences in the daily reports. p) Change Orders: Consultant shall perform an independent review of any Change Orders submitted by the Contractor and provide a written statement noting recommendation for approval or denial of the Change Order to the City. If recommended for approval, the Consultant shall note if the requested cost and schedule impacts are fair and reasonable. The Consultant shall be responsible for maintaining a Change Order log and uploading approved Change Orders to e--BuilderT"", the City's document management system. The Consultant shall also participate in change request review meetings with City and Contractor to resolve and/or negotiate the equitable resolution of request. q) Requests for Information/Construction Document Clarification (RFIs/CDCs): When RFIs and CDCs involve design issue interpretations, the Consultant shall coordinate with the Design Consultant, as needed, to resolve the Contractor's Requests for Information, Construction Document Clarifications, Field Orders, and other related correspondence. The Consultant shall be also be responsible for verifying that the Design Consultant is providing a written response to RFIs and CDCs in a timely manner and for processing, logging, and distributing all RFIs/CDCs. Consultant shall upload all RFI and CDC responses to a-1- BuilderT"", the City's document management system. r) Schedule: Analyze the Contractor's schedule(s) (i.e. baseline(s), revised baseline(s), updates, as-built, etc.) for compliance with the contract documents. Elements including, but not limited to, completeness, logic, durations, activity, flow, milestone dates, concurrency, resource allotment, and delays shall be reviewed. Verify the schedule conforms with the construction phasing and MOT sequences, including all contract modifications. Provide a written review of the schedule identifying significant omissions, improbable or unreasonable activity durations, errors in logic, and any other concerns as detailed in the contract documents. s) Pay Requisitions: Consultant shall verify Contractor's pay requisition quantities and sign-off on all pay requisition quantities in the field. Consultant shall be responsible for reviewing with the Contractor the monthly payment requisition to confirm the status of completed and uncompleted work and stored materials. The Consultant shall advise the City of quantities being approved for subsequent concurrence for payment purposes. Payment Requisitions shall only be approved by the City. 38 t) Equipment Tests and Systems Start-up: Consultant shall be responsible for coordinating various tests for quality control on the projects; verifying that equipment tests and systems start-up are conducted in the presence of appropriate personnel; and that the Contractor is maintaining adequate records thereof. Consultant shall observe, record, and report appropriate details relative to the test procedures and start-up. u) Record Drawings: Consultant shall monitor that record drawing mark-ups are properly maintained by the Contractor. The Consultant shall review the record drawing mark-ups as deemed necessary by the City. Contractor's failure to maintain the record drawings in up-to-date condition may be deemed grounds for withholding Contractor's monthly payment requisitions until such time as the record drawings are brought up-to- date. The Consultant shall notify the City if it considers the mark-up documents insufficient. The City shall make final determination of payment withholding. v) Safety: Consultants shall be expected to recognize a hazard that any reasonable non-safety professional might be expected to recognize. In addition, those safety obligations extend only to recognizable hazards that the Consultant may note while in the normal conduct of onsite business. If a situation presents itself, the following procedures should be followed: • Immediately direct personnel to remove themselves from the apparent danger. • Notify the Contractor's superintendent of the apparent condition that caused the concern and that the affected personnel were directed to remove themselves accordingly. • Notify the Contractor of the situation that arises concern,.both in writing and verbally. • Issue a written Notice of Noncompliance stating that the Contractor should take immediate action as it deems necessary to correct the deficiency/condition. • Write a full report in the Daily Report on the condition found to be unsafe, all actions taken, and correspondence written, including times and names. • Take photographs, of the concern. • If the Contractor does not make corrections, the Consultant should notify the City. • The Consultant shall review the situation with the City for further direction. • The condition, as well as all conversations and correspondence, shall be recorded in the Consultant's Daily Report. 39 • In the case of a construction-related accident, Consultant shall notify the City of the accident. Consultant shall direct the Contractor to prepare an accident report with a t% copy forwarded to the City. w) Quality Control: The Consultant shall review and monitor the Contractor's adherence to an acceptable quality control program submitted by the Contractor prior to the issuance of the second Notice-to-Proceed by the City. This program shall describe the Contractor's quality control, organizational procedures, documentation controls and processes for each phase of the work. Quality control during construction shall be the responsibility of the Contractor; however, oversight and ensuring the Contractor complies with applicable jurisdictional construction standards shall be enforced on the City's behalf by the Consultant. x) Proceeding with Disputed Work: In the event that an agreement cannot be reached on a Change Order, the Contractor must carry on the work and adhere to the project schedule in accordance with the construction contract general conditions. The Consultant shall log all forced work efforts related to disputed change order on a Forced Work Daily Log Reports which shall be signed and dated by the Consultant and the Contractor's representative at the completion of each workday. The Consultant shall forward copies of this form to the City for record purposes. y) Maintenance of Traffic (MOT): The Contractor shall provide the Consultant, City and Design Consultant with approved copies of its MOT at the Pre-Construction Meeting for general information purposes. It shall be the Consultant's responsibility to verify compliance with the MOT in the field. z) Contractor Request for Services: When the Contractor requires services from the City for issues such as water main shutdowns, tie-ins to existing water mains, special regulatory inspections, etc., a request shall be made in writing by the Contractor, and forwarded by the Consultant to the City, a minimum of three working days prior to when required. aa) Substantial Completion: When the Contractor considers that the Work has reached Substantial Completion, the Contractor shall notify the Consultant who shall verify that the work has progressed to the substantial completion point in accordance the Construction Documents. If the Consultant is in agreement, the Consultant shall contact the City to agree on a schedule for conducting a substantial completion "walk-through" inspection of the 40 Work. Consultant shall attend and participate in the substantial completion "walk-through", perform a substantial completion inspection with the Contractor, Design Consultant and the City, and prepare a master punch list that describes items remaining to be completed. This master punch list shall be attached to the certificate of substantial completion. bb) Final Completion and Project Closeout: When the Contractor considers that the Work has reached Final Completion, the Contractor shall notify the Consultant who shall verify that the work has progressed to the Final Completion point in accordance the Construction Documents. If the Consultant is in agreement, the Consultant shall contact the City to agree on a schedule for conducting a Final Completion "walk-through" inspection of the Work. Consultant shall attend and participate in the Final Completion "walk-through" and perform a Final Completion inspection with the Contractor, Design Consultant and the City. If the work is determined to be incomplete, Consultant and other attendees shall each develop a punch list of items requiring completion or correction prior to consideration of final acceptance of each project which shall be forwarded to the Contractor by the Consultant for the Project. Consultant shall complete all necessary close-out and construction completion forms and documentation in coordination with the City for the Project. The Consultant shall work with the Design Consultant and the Contractor, as necessary to ascertain materials required for the closeout binder, as required by the City, and review the Operation and Maintenance manuals for each project for completeness prior to forwarding documentation to the City. Once all parties determine the work is complete and the Contractor has delivered all close-out documentation to the City, the Consultant shall prepare a Final Certificate for Payment. The Consultant shall be responsible for providing final certifications based on the entire scope of work for the Project. cc) Consultant and Design Consultant Relationship: These services outlined herein are intended to provide support to both the City and the Design Consultant during the construction phase of the Project. The Consultant shall perform the services outlined in this Agreement under the supervision and contractual directives of the Project Coordinator, and shall refer all matters pertaining to this Agreement to the City. In matters relating to the design concept and constructability thereof, the Consultant shall conduct this scope of services under the technical directives issued by the Design Consultant such that the Design Consultant's FOR can provide final certification of the design components at Project Closeout. 41 4. Provide qualified personnel necessary to efficiently and effectively carry out its responsibilities under this Agreement. The personnel shall be qualified by experience and education. Submit in writing to the City for review and approval, the names of personnel proposed for assignment to the project, including a detailed resume for each. The City reserves the right to have Consultant's personnel removed and substituted from the project, if the employee's conduct or performance is detrimental to the project. The City reserves the right to request periodic rotation of field personnel. 5. The Consultant shall furnish the City with a Quality Assurance Plan within 15 calendar days after the award of this agreement. The QA Plan shall detail the procedures, evaluation criteria, and instructions of the Consultant's organization for providing services pursuant to this Agreement. Significant changes to the work requirements may require the Consultant to revise the QA Plan. It shall be the responsibility of the Consultant to keep the plan current with the work requirements. The Plan shall include, but not be limited to: a) Consultant's QA Organization and its functional relationship to the part of the organization performing the work under the Agreement. The authority, responsibilities and autonomy of the QA organization shall be detailed as well as the names and qualifications of personnel in the quality control organization. b) Methods used to monitor and achieve organization compliance with Agreement requirements for services and products. c) Outline the types of records which shall be generated and maintained during the execution of the QA program. d) Methods used to control subconsultant and vendor quality. e) An officer of the Consultant firm shall certify that the inspection and documentation was done in accordance with specifications, plans, City standards, and City's procedures. f) Maintain adequate records of the quality assurance actions performed by the organization (including subcontractors and vendors) in providing services and products under this Agreement. All records shall indicate the nature and number of observations made, the number and type of deficiencies found, and the corrective actions taken. 42 6. Provides assistance in preparing for arbitration hearings or litigation that occurs during the Agreement time in connection with the construction project covered by this Agreement. 7. Provide qualified engineering witnesses and exhibits for arbitration hearings or litigation in connection with the Agreement. 8. Provide services determined necessary for the successful completion and closure of the Construction Contract. 9. Provide Post construction claims review — The Consultant shall analyze the claim, engage in negotiations leading to settlement of the claim, and prepare and process the required documentation to close out the claim. 10. The Consultant may be asked to provide all or some construction engineering and inspection services including inspectors, construction managers and/or construction administration staff for CIP Right-of-Way construction projects. 43 SCHEDULE A-1 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CHEN MOORE AND ASSOCIATES CONSULTANT SERVICE ORDER Service Order No. for Consulting Services. TO: Chen Moore and Associates 1444 Biscayne Blvd, Suite 204 Miami, Florida 33132 DATE: Pursuant to the Agreement between the City of Miami Beach and Consultant for PROFESSIONAL CONSTRUCTION ENGINEERING AND INSPECTION (CEI) FIRMS TO PROVIDE VARIOUS CEI SERVICES ON AN "AS-NEEDED" BASIS (RFQ 52-11/12) you are directed to provide the following Services: SCOPE OF SERVICES: Per attached proposal dated , to be considered part of this Agreement. Project Name and No: Estimated calendar days to complete this work: days Fee for this Service Order: $ The above fee is a Lump Sum or an Not to Exceed (check one). CIP Project Coordinator Date CIP Assistant Director Date Consultant Date CIP Director Date 44 SCHEDULE B CONSULTANT COMPENSATION AGREEMENT BETWEEN CITY OF MIAMI BEACH AND CHEN MOORE AND ASSOCIATES FOR PROFESSIONAL CONSTRUCTION ENGINEERING & INSPECTION (CEI) FIRMS TO PROVIDE VARIOUS CEI SERVICES ON AN "AS-NEEDED" BASIS Project Name and No: Scope of Services: Note*: These services will be paid lump sum based on percentage of work complete as identified in the Consultant Service Order. 45 SCHEDULE C HOURLY BILLING RATE SCHEDULE RFQ#52-11/12 PROFESSIONAL CONSTRUCTION ENGINEERING AND INSPECTION(CEI) FIRMS TO PROVIDE VARIOUS CEI SERVICES ON AN"AS NEEDED"BASIS CATEGORIES Hourly Rates Project Principal 175.00 Project Manager 150.00 Senior Cost Estimator 105.00 Cost Estimator 75.00 Senior Scheduler 100.00 Scheduler 70.00 Sr. Inspector(CEI) 100.00 Inspector(CEI, Field or Construction) 75.00 Structural Special Inspector 105.00 Threshold Inspector 105.00 Senior Civil Engineer 130.00 Civil Engineer 110.00 Senior Electrical Engineer 130.00 Electrical Engineer 110.00 Senior Mechanical Engineer 130.00 Mechanical Engineer 110.00 Senior Structural Engineer 130.00 Structural Engineer 110.00 Clerical/Admin. 40.00 46 SCHEDULE D INSURANCE REQUIREMENTS AND SWORN AFFIDAVITS. See Attached 47 SCHEDULE E 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. 48 Ac®® DATE(MMIDDIYYYY) CERTIFICATE OF LIABILITY INSURANCE 10/2/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Jude Sutton Lassiter-Ware Insurance of Tampa Bay PHONE . (800)845-8437 (FAX. No:(888)883-8680 4401 West Kennedy Blvd A DRIESS: Suite 200 INSURE NS)AFFORDING COVERAGE NAIC# Tampa FL 33609 INSURERA:Hudson Specialty Ins. Co. 37079 INSURED INSURERB:Travelers Indemnity Company 5658 Chen Moore and Associates, Inc. INSURERC:Travelers Casualty & Surety Co 19038 500 West Cypress Creek Road INSURER D: Suite 630 INSURER E: Fort Lauderdale FL 33309 INSURER F: COVERAGES CERTIFICATE NUMBER:13-14 No Umbr Cert REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE POLICY EFF POLICY EXP LIMITS LTR POLICY NUMBER MM/DD MMIDD/YYYY GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 X DAMAGE TO RENTED COMMERCIAL GENERAL LIABILITY 300,000 PREMISES Ea occurrence $ A CLAIMS-MADE a OCCUR ESB1944131304 1/1/2013 1/1/2014 MED EXP(Any one person) $ 5,000 PERSONAL 8 ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,000 JECT X POLICY PRO LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident 11000,000 B X ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BA4C593558 1/1/2013 1/1/2014 BODILY INJURY(Per accident) $ AUTOS AUTOS NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS Per accident PIP-Basic $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DIED I I RETENTION$ $ C WORKERS COMPENSATION X WC STATU- OTH- AND EMPLOYERS'LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? ❑ N/A (Mandatory in NH) 3984771013 1/1/2013 /1/2014 E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 A Professional Liab Limits ESB1944131304 1/1/2013 1/1/2014 EACH CLAIM $1,000,000 incl with General Liab CLAIMS MADE FORM AGGREGATE $2,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,ff more space is required) RE: City of Miami Beach CEI Services as needed Resolution #2013-28158 - Certificate Holder has been named as Additional Insured under the General Liability coverages referenced herein as respects the activites of the named insured and as per the terms and conditions of the policy as issued as required by written contract. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Miami Beach ACCORDANCE WITH THE POLICY PROVISIONS. City Manager's Office Attn: J. Mark Taxis, Ass't City Manager AUTHORIZED REPRESENTATIVE 1700 Convention Center Drive Miami Beach, FL 33139 P Schmaltz/JOANR - Q ACORD 25(2010/05) ©1988-2010 ACORD CORPORATION. All rights reserved. INSn25 rgrnnnsi m Tho arewn name 2nrl Innn arc ronictororl marlrc of of'npn