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95-21700 Reso RESOLUTION NO. 95-21700 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT WITH GAMBACH SKLAR ARCHITECTS, FOR PROFESSIONAL ARCHITECTURAL, ENGINEERING AND LAND SURVEYING SERVICES, ON A ROTATIONAL BASIS, FOR VARIOUS CITY PROJECTS WHERE THE BASIC CONSTRUCTION COST DOES NOT EXCEED $500, 000 . 00, PER PROJECT, SAID AGREEMENT HAVING A TWO (2) YEAR TERM. WHEREAS, the City of Miami Beach (City) issued a Request for Letters of Interest (RFLI 34-94/96) for "Professional Architects, Engineers and Land Surveyors for Various City Projects For a Two (2) Year Contract Term For Capital Projects Where Basic Construction Cost Does Not Exceed $500, 000 . 00 Per Project" ; and WHEREAS, Gambach Sklar Architects (Consultant) submitted a proposal in response to the City' s Request for Letters of Interest; and WHEREAS, the City and the Consultant have negotiated the attached Agreement recommended by the City Manager and approved as to form by the City Attorney. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, that the Mayor and the City Clerk are authorized to execute the attached Agreement with Gambach Sklar Architects for Professional Architect al, Engineering, and Land Surveying Services for Various City apital P . 'ects where Basic Construction Cost does not Exceed $504 , 000 . 00 p - , Project for a Two (2) Year Contract Term. rP . , PASSED and ADOPTED this 13th . .. •f Septem.~ 1 t 4, . MAYOR A EST: L / CITY CL RK FORM APPROWii) LEGAL D PT. By — Date th/f--1— CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 COMMISSION MEMORANDUM NO. 2.0 3-9 TO: Mayor Seymour Gelber and Members of the City Commission DATE: Sept . 13 , 1995 FROM: Jose Garcia-Pedrosa City Manager SUBJECT: RESOLUTIONS • ' 'HORIZING THE MAYOR TO SIGN AGREEMENTS ON RFLI34-94/96, PROFESSIONAL ARCHITECTURAL/ENGINEERING AND LAND SURVEYING SERVICES FOR VARIOUS CITY PROJECTS FOR A TWO (2) YEAR CONTRACT ON A ROTATIONAL BASIS BETWEEN BERMELLO, AJAMIL & PARTNERS, INC. , CARR SMITH ASSOCIATES, R.J. HEISENBOTTLE ARCHITECTS, GAMBACH-SKLAR ARCHITECTS, KUNDE, SPRECHER & ASSOCIATES, INC. , GILLER & GILLER, INC. , PEREZ & PEREZ ARCHITECTS PLANNERS, INC. , AND THE CITY OF MIAMI BEACH. ADMINISTRATION RECOMMENDATION: It is recommended that the City Commission approve the attached Resolutions authorizing the Mayor and City Clerk to execute the seven Agreements for Architectural, Engineering and Land Surveying Services for various City projects not exceeding $500, 000 . 00 in construction cost . The contract term shall be two years and the projects will be awarded on a rotation basis with consideration being given to an equitable distribution of the annual fee amount . BACKGROUND: On June 7, 1995, Commission Memo. 383-95, the City Commission authorized the Administration to negotiate agreements with the seven top ranked firms . These negotiated contracts were then to be submitted to the Commission for approval . ANALYSIS: Negotiations were conducted with the seven above-named firms during the August recess, and the firms all agreed to the same pricing structure for this contract . The pricing agreed to is the same as in the last Architectural, Engineering and Land Surveying contract awarded by the City in 1992 . and is as follows : Civil Engineering - Roads & Parking Lots 6% Lump Sum of the Construction Cost New Construction/Buildings 7 . 5% Lump Sum of the Construction Cost Renovations/Buildings 10% Lump Sum of the Construction Cost AGENDA ITEM G DATE c1 13 . 5 r 1 RESOLUTIONS AUTHORIZING THE MAYOR TO SIGN AGREEMENTS ON RFLI 34- 94/96, PROFESSIONAL ARCHITECTURAL/ENGINEERING AND LAND SURVEYING SERVICES FOR VARIOUS CITY PROJECTS FOR A TWO (2) YEAR CONTRACT BETWEEN BERMELLO, AJAMIL & PARTNERS, INC. , CARR SMITH ASSOCIATES, R.J. HEISENBOTTLE ARCHITECTS, GAMBACH-SKLAR ARCHITECTS, KUNDE, SPRECHER & ASSOCIATES, INC. , GILLER & GILLER, INC. , PEREZ & PEREZ ARCHITECTS PLANNERS, INC. , AND Tkag CITY OF MIAMI BEACH. Page Two September 13 , 1995 ANALYSIS: (Continued) Detail rates, including overhead and profit for hourly rates of personnel were also negotiated, and can be seen on page 42 of the Contracts . CONCLUSION: Contracts with the seven Architectural/Engineering firms who were highest ranked after presentations should be executed to provide the City of Miami Beach with professional services for capital projects not exceeding $500, 000 . 00, on a rotation basis . JGP/PFL/AET/JMF/al , AGREEMENT BETWEEN CITY OF MIAMI BEACH AND GAMBACH-SKLAR ARCHITECTS FOR PROFESSIONAL ARCHITECTURAL, ENGINEERING AND LAND SURVEYING SERVICES FOR VARIOUS CITY CAPITAL PROJECTS WHERE BASIC CONSTRUCTION COST DOES NOT EXCEED $500, 000 . 00 PER PROJECT FOR A TWO (2) YEAR PERIOD -1- TABLE OF CONTENTS ARTICLE 1 . DEFINITIONS; DUTIES AND RESPONSIBILITIES 5 1 . 1 CITY 5 1 . 2 CITY COMMISSION 5 1 . 3 CITY MANAGER 6 1 . 4 PROPOSAL DOCUMENTS 7 1 . 5 CONSULTANT 7 1 . 6 BASIC SERVICES 8 1 . 7 THE PROJECT 8 1 . 7 . 1 PROJECT COST 8 1 . 7 . 2 PROJECT SCOPE 9 1 . 8 CONSTRUCTION COST BUDGET 9 1 . 9 FORCE MAJEURE 10 1 . 10 CONTRACTOR 10 1 . 11 CONTRACT FOR CONSTRUCTION 10 1 . 12 CONSTRUCTION DOCUMENTS 10 1 . 13 CHANGE ORDER 10 1 . 14 ADDITIONAL SERVICES 11 1 . 15 WORK 11 1 . 16 BASE BID 11 1 . 17 SCHEDULES 11 1 . 18 UPSET LIMIT 12 ARTICLE 2 . BASIC SERVICES 12 2 . 1 GENERAL 12 2 . 2 BASIC SERVICES 12 2 . 3 DESIGN PHASE 12 2 . 4 CONSTRUCTION DOCUMENTS PHASE 13 2 . 5 BIDDING OR NEGOTIATION PHASE 14 2 . 6 CONSTRUCTION PHASE, CONSTRUCTION OBSERVATION AND ADMINISTRATION OF THE CONSTRUCTION CONTRACT 14 2 . 7 RESPONSIBILITY FOR CLAIMS AND LIABILITIES 19 2 . 8 ADDITIONAL PROJECT REPRESENTATION 19 2 . 9 ADDITIONAL SERVICES 19 2 . 10 TIME 22 ARTICLE 3 . THE CITY' S RESPONSIBILITIES 22 ARTICLE 4 . CONSTRUCTION COST 23 4 . 1 DEFINITION 23 4 . 2 RESPONSIBILITY FOR CONSTRUCTION COST 24 ARTICLE 5 . DIRECT PERSONNEL EXPENSE 25 ARTICLE 6 . REIMBURSABLE EXPENSES 25 ARTICLE 7 . PAYMENTS TO THE CONSULTANT 26 -2- 7 . 1 PAYMENTS ON ACCOUNT OF BASIC SERVICES 26 7 . 2 PAYMENT ON ACCOUNT OF ADDITIONAL SERVICES 26 7 . 3 PROJECT SUSPENSION OF TERMINATION 27 ARTICLE 8 . CONSULTANT' S ACCOUNTING RECORDS 27 ARTICLE 9 . OWNERSHIP AND USE OF DOCUMENTS 27 ARTICLE 10 . TERMINATION OF AGREEMENT 28 10 . 1 RIGHT TO TERMINATE 28 10 . 3 TERMINATION FOR CAUSES 29 10 . 4 TERMINATION FOR CONVENIENCE NON-EXCLUSIVE PROVISIONS 29 10 . 5 IMPLEMENTATION OF TERMINATION 30 10 . 6 NON-SOLICITATION 30 ARTICLE 11 . MISCELLANEOUS PROVISIONS 30 ARTICLE 12 . EXTENT OF AGREEMENT 31 ARTICLE 13 . BASIS OF COMPENSATION 32 13 . 1 GENERAL 32 13 . 2 COMPENSATION FOR SERVICES 32 ARTICLE 14 . INSURANCE 33 ARTICLE 15 . INDEMNIFICATION 34 ARTICLE 16 . ARBITRATION 35 ARTICLE 17 . LIMITATION OF LIABILITY 38 ARTICLE 18 . ADDITIONAL CONDITIONS 38 SCHEDULE "A" - CONSULTANT SERVICE ORDER 41 SCHEDULE "B" - CONSULTANT COMPENSATION RATES 42 SCHEDULE "C" - SUBCONTRACT HOURLY COMPENSATION RATES 43 -3- TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT PROFESSIONAL ARCHITECTURAL, ENGINEERING AND LAND SURVEYING SERVICES THIS CONTRACT made and entered into this 13th day of September , 1995 by and between the CITY OF MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida (hereinafter referred to as City or Owner) , having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida and Gambach-Sklar Architects, a Florida corporation, whose address is 1132 Kane Concourse, Level 2 , Bay Harbor Islands, Florida 33154 (hereinafter referred to as Consultant) . WITNESSET H: WHEREAS, the City intends to build various capital projects within the City of Miami Beach, for a basic construction cost not to exceed Five Hundred Thousand Dollars ($500, 000 . 00) for each project, and wishes to engage the Consultant for the various projects at the agreed fees as set forth in this Agreement ; and WHEREAS, the Consultant desires to contract with the City for performance of architectural engineering and related professional services relative to these projects, as more particularly hereinafter set forth, for studies, design, preparation of construction documents and construction administration services, all as hereinafter stipulated, NOW THEREFORE, City and Consultant in consideration of the mutual covenants and agreements herein contained, agree as follows : -4- ARTICLE 1. DEFINITIONS; DUTIES AND RESPONSIBILITIES 1 . 1 CITY The "City" or "Owner" shall mean the City of Miami Beach and is a Florida municipal corporation having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139 . The City, as a governmental entity, is subject to the availability of funds and appropriation of funds by its legislative body and other governmental authorities or sources of revenue, in an amount to allow continuation of its performance under this Agreement . In the event of lack of funding for this Agreement or this project, this Agreement may be terminated by the City pursuant to the procedure set forth in Article 10 . 1 . 2 CITY COMMISSION "City Commission" shall mean the governing and legislative body of the City. 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 . 1 . 2 . 1 The City Commission shall be the body to consider, comment upon, or approve of any amendments or modifications to this Agreement . 1 . 2 . 2 The City Commission shall be the body to consider, comment upon, or approve any assignment, sale, transfer or subletting of this Agreement or any interest therein and any subcontracts made pursuant to this Agreement . Assignment and transfer shall be defined to include sale of the majority of the stock of a corporate Consultant . 1 . 2 . 3 All City Commission approvals and authorizations shall be expressed by passage of an appropriate enabling resolution and, if an amendment, by the execution of an appropriate amendment to this Agreement . 1 . 2 . 4 The City Commission shall review, approve, disapprove or otherwise comment upon the Consultant' s Design and Construction Documents after they are submitted to the City by the Consultant . -5- 1 . 2 . 5 The City Commission shall hear appeals from the administrative decision of the City Manager upon the Consultant' s written request, in which case the Commission' s decision shall be final . 1 . 2 . 6 The City Commission shall approve or consider all change orders which exceed the sum of ten thousand dollars ($10, 000 . 00) (or other such amount as may be specified by the City of Miami Beach Purchasing Ordinance, as amended) . 1 . 3 CITY MANAGER The "City Manager" shall mean the chief administrative officer of the City. The City Manager shall be construed to include any duly authorized designees, including a Project Coordinator, and shall serve as the City' s representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the Commission) to the Consultant . These authorizations shall include, without limitation: reviewing, approving, or otherwise commenting upon the schedules, plans, reports, estimates, contracts and other documents submitted to the City by the Consultant . 1 . 3 . 1 The City Manager shall decide, in his professional discretion, matters arising pursuant to this Agreement, which are not otherwise expressly provided for in this Agreement, and he shall attempt to render administrative decisions promptly to avoid unreasonable delay in the progress of the Consultant' s work. 1 . 3 . 2 The City Manager shall additionally be authorized but not required, at the request of the Consultant, to reallocate monies already budgeted toward payment of the Consultant, provided, however, that he cannot increase the Consultant' s compensation or other budgets established by this Agreement . The City Manager, in his administrative discretion, may consult with the City Commission concerning disputes or matters arising under this Agreement regardless of whether such matters or disputes are enumerated herein. -6- The City Manager shall additionally be the sole representative of the City authorized to issue a notice to proceed as referenced in Article 2 herein. The City Manager may consider, comment upon or approve modifications in accordance with applicable laws and ordinances . 1 . 3 . 3 The City Manager may approve change orders which do not exceed the sum of ten thousand dollars ($10, 000 . 00) (or other such amount as may be specified by the City of Miami Beach Purchasing Ordinance, as amended) and which do not increase any of the budgets established herein. 1 . 3 .4 The City Manager may, in his sole discretion, form a committee or committees, or inquire of or consult with persons for the purpose of receiving advice and recommendations relating to the exercise of his powers, duties and responsibilities under this Agreement . 1 .4 PROPOSAL DOCUMENTS "Proposal Documents" shall mean the Request for Letters of Interest for "Professional Architects, Engineers and Land Surveyors For Various City Projects For A Two (2) Year Contract Term For Capital Projects Where Basic Construction Cost Does Not Exceed $500, 000 . 00 Per Project" (RFLI No. 34-94/96) issued by the City in contemplation of this Agreement, together with all amendments thereto, if any, and the Consultant' s proposal in response thereto (Proposal) , which are deemed as being incorporated by reference in this Agreement and made a part hereof; provided, however, that in the event of an express conflict between the Proposal and this Agreement, this Agreement shall prevail . 1 . 5 CONSULTANT The "Consultant" is herein defined as Gambach-Sklar Architects, a Florida corporation, whose address is 1132 Kane Concourse, Level 2 , Bay Harbor Islands, Florida 33154 . 1 . 5 . 1 All architects required by the needs of this Project shall be duly licensed and admitted to practice architecture in this State pursuant to Chapter 481, Florida Statutes, and additionally possessing the requisite occupational licenses from -7- • the City and the County. All engineers required by the needs of this Project shall be duly licensed and certified by the State of Florida to engage in the practice of engineering in this State . All special inspectors, if any, required by the needs of this Project shall be duly certified, licensed and registered under Chapter 471, Florida Statutes, as an engineer, or under Chapter 481, as an architect, and shall additionally possess the requisite occupational license from the City and the County. 1 . 5 . 2 The Consultant shall be liable for the Consultant' s services, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of any subconsultants, and any other person or entity acting under the direction or control of the Consultant . When the term "Consultant" is used in this Agreement it shall be deemed to include any subconsultants and any other person or entity acting under the direction or control of Consultant . 1 . 6 BASIC SERVICES "Basic Services" shall include the professional services of normal architectural, structural, mechanical/electrical , civil engineering, and land surveying services for the design, preparation of contract documents and administration of the Construction Contract for the projects hereunder. 1 . 7 THE PROJECT(S) Various City Capital Projects where basic construction cost does not exceed $500 , 000 . 00, per project, as assigned by the City Manager. 1 . 7 . 1 PROJECT(S) COST The "Project (s) Cost" , as established by the Owner, shall mean the total cost of the project to the owner which represents construction costs, professional compensation, land costs if any, financing costs, materials testing services, surveys, and other miscellaneous Owner costs. Project Cost for each Project is not to exceed Five Hundred Thousand ($500 , 000 . 00) Dollars . Each Project will require Statements of Probable Cost prior to bidding. -8- Should construction cost proposals exceed Final Probable Cost Statements by more than 5%, the Consultant shall perform all modifications to plans and specifications at no cost to the City for reissuance of the construction bid proposal. 1 . 7 . 2 Project (s) Scope The Owner shall establish the Scope of Work for each Project and all modifications thereto in writing, and provide same to the Consultant prior to the start of the work. 1 . 8 CONSTRUCTION COST BUDGET The "Construction Cost Budget" for these Projects shall mean a sum which will not exceed the amount of Five Hundred Thousand Dollars ($500, 000 . 00) and is the total cost to the Owner of all elements of the Project designed or specified by the Consultant and approved by the Owner, including at current market rates (with a reasonable allowance for overhead and profit) , the cost of labor and materials and any equipment which has been designed, specified, selected or specifically provided for by the Consultant and approved by the City, and including a contingency allowance for unforeseen conditions, but not to exceed ten percent (10%) of the Construction Cost, and not including the compensation of the Consultant and the Consultant' s consultants, rights-of-way, the cost of land, and surveys . 1 . 8 . 1 The Construction Cost Budget, as established by the Owner, shall not be exceeded absent fully justifiable and extraordinary and unforeseen circumstances, such as force majeure, which is beyond the control of the parties and which in any event shall be subject to prior City Commission and/or City Manager approval by passage of an enabling resolution and amendments to the appropriate agreements relative to these Project (s) prior to any modification of the construction costs due to force majeure. Provided further, however, that even in the event of a force majeure as defined below, the City shall have no obligation to exceed the Construction Cost Budget limitations established herein. -9- 1 . 9 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, tornados, flood and total loss caused by fire and other similar unavoidable casualties, changes in federal, state or local laws, ordinances, codes or regulations, enacted after the date of this Agreement and having a substantial impact on the Project, or other causes beyond the parties control or by any other such causes which the Consultant and the City Commission decide in writing justify the delay. Provided, however, that market conditions, labor conditions, construction industry price trends and similar matters which normally impact on the bidding process shall not be considered a Force Majeure . 1 . 10 CONTRACTOR "Contractor" or "Contractors" shall mean those persons or entities responsible for performing the construction work or providing the materials, supplies and equipment identified in the bid and contract documents for the Project . 1 . 11 CONTRACT FOR CONSTRUCTION "Contracts for Construction" shall mean contracts with contractors . 1 . 12 CONSTRUCTION DOCUMENTS "Construction Documents" shall mean the final plans, specifications, drawings, documents and diagrams submitted by the Consultant pursuant to Article 2 . 4 and approved by the City. 1 . 13 CHANGE ORDER "Change order" shall mean the written order to the Project Manager approved by the Owner as specified in this Agreement and signed by the Owner' s duly authorized representative, authorizing a change in the project or the method and manner of performance thereof or an adjustment in the fees or completion dates, as applicable . Change orders shall only be approved by the City Commission, if they exceed ten thousand dollars ($10, 000 . 00) , or the City Manager if they are ten thousand dollars ($10, 000 . 00) or -10- less in amount (or other such amount as may be specified by the City of Miami Beach Purchasing Ordinance, as amended) . Even for change orders for less than ten thousand ($10, 000 . 00) the City Manager shall retain the right to seek and obtain concurrence of the City Commission for the approval of any such change order. 1 . 14 ADDITIONAL SERVICES "Additional Services" shall mean those services described in Section 2 . 9 herein, which have been duly authorized in writing by the City Manager. 1 . 15 WORK "Work" shall mean all of the work to be performed on the Project pursuant to the contract documents and the construction and bid documents . 1 . 16 BASE BID "Base Bid" shall mean the elements contained in the Construction Documents recommended by the Consultant and approved by the Owner as being within the Construction Cost Budget pursuant to the Statement of Probable Construction Cost provided by Consultant . "Base Bid" shall not include "Additive Alternates" or "Deductive Alternates" . 1 . 17 SCHEDULES "Schedules" shall mean the various schedules attached to this Agreement and referred to in the Agreement, as follows : Schedule A -- Service Order Form Schedule B -- The schedule of hourly rates of compensation for the Consultant for Basic and Additional Services, as submitted by the Consultant and approved by the City. Schedule C -- The schedule of hourly rates of compensation for the Consultant' s sub-consultants for Basic and Additional Services, as submitted by the Consultant and approved by the City Manager. Amendments to any City approved hourly rates schedule shall require the same formalities as amendments to the Agreement itself . -11- 1 . 18 UPSET LIMIT "Upset Limit" as to any Service Order shall mean the maximum Cumulative fee allowable under the Service Order for fees billed in accordance with Schedules B and C, which the Consultant shall not exceed without specific written authorization. The Upset Limit is not a guaranteed maximum cost for the Scope of Work set forth in the Service Order. ARTICLE 2 . BASIC SERVICES 2 . 1 The Consultant shall provide Basic Service and/or Additional Services for various Projects . The Consultant is aware that this is a nonexclusive Agreement, and that the City also has other consultants under contract to provide architectural/engineering services for projects under $500, 000 . The City Manager shall have the discretion to determine which of the consultants under contract shall be awarded a particular Project under consideration. The work for each Project will be performed by the Consultant upon receipt of a written "Service Order" issued by the City Manager. The Service Order shall contain a description of the work required (Scope of Work) , contain either an agreed lump sum fee or an hourly fee, as provided in Schedules B and C, with an upset limit for the work, reimbursable expenses, the Construction Cost Budget for the Project, a description of the type of services . Consultant shall countersign the Service Order. 2 . 2 The Consultant' s Basic Services shall consist of the four phases described in Paragraphs 2 . 3 through 2 . 6 and include normal architectural, structural, civil, and mechanical/electrical engineering services. 2 . 3 DESIGN PHASE 2 . 3 . 1 The Consultant shall review with the City, (including, if requested by the City Manager, review by a committee or committees) alternative approaches to design and construction of the Project . -12- 2 . 3 . 2 Based on a mutually accepted program and Project budget requirements, the Consultant shall prepare, for approval by the Owner, design documents consisting of drawings and other documents appropriate for the Project, and shall submit to the Owner a Statement of Probable Construction Cost. 2 . 4 CONSTRUCTION DOCUMENTS PHASE 2 . 4 . 1 Based on the approved design documents, the Consultant shall prepare, for approval by the City, three (3) copies of the Construction Documents . One of these copies shall be in the form of a reproducible mylar, for bidding purposes . Consultant shall also file with the Project Coordinator at said time, the following items : (a) four (4) copies of the Statement of Probable Construction Cost; (b) four (4) unbound copies of advertisement for bids; (c) four (4) unbound copies of the bid proposals; and (d) final maintenance impact report . Consultant shall also provide City with one (1) additional set of construction documents at approximately eighty percent (80%) completion approximately thirty (30) days prior to the date for delivery of the three (3) copies of one hundred percent (100%) complete Construction Documents for review by and comment by the City' s Building Department . Should additional sets be required, Consultant will be reimbursed for the actual cost of reproduction, upon approval in advance by the City. 2 .4 . 2 Construction Documents will be prepared, signed and sealed by design professionals . The Construction Documents shall call for a construction period as approved by the City Manager. The entire Project will be publicly bid with a Base Bid and such Additive Alternates and/or Deductive Alternates as may be requested by City, to reasonably insure that the award will be within the Construction Cost Budget . The Construction Documents shall set forth in detail the requirements for construction of the Project including all the contractual, code (laws, rules and regulations) , and technical specifications and requirements under which the work is to be conducted. -13- All prerequisites for obtaining the necessary approvals and permits shall be the sole responsibility of the Consultant . Prior to the advertisement for bids, Consultant shall also assist the City in obtaining all necessary local, state and federal permits as may be required for construction of the Project . 2 . 4 . 3 The Consultant expressly agrees that all of its duties, services and responsibilities under this Agreement and all of its consultant ' s duties, services and responsibilities, shall be performed in accordance with the standard of care normally exercised in the design of projects of this nature in South Florida . "Standard of Care" includes an analysis of visible site field conditions prior to initiating Project design. 2 . 5 BIDDING OR NEGOTIATION PHASE 2 . 5 . 1 The Consultant, following the City' s approval of the Construction Documents and of the latest Statement of Probable Construction Cost, shall assist the City in obtaining lump sum bids with the Additional and/or Deductive Alternatives and assist in awarding and preparing the Contract for Construction. 2 . 5 . 2 Consultant shall be required to tabulate all bids received. Within three (3) working days thereafter, the Consultant shall submit in writing to the City' s Project Coordinator, its recommendations for the award or rejection of the Construction Contract , together with two (2) sets of the bid tabulations to be reviewed by the City. 2 . 6 CONSTRUCTION PHASE, CONSTRUCTION OBSERVATION AND ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2 . 6 . 1 The Construction Phase will commence with the award of the Contract for Construction and, together with the Consultant' s obligation to provide Basic Services for each Project under this Agreement, will terminate when final payment to the Contractor is due, or in the absence of a final Certificate for Payment or of such due date, sixty (60) days after the Date of Substantial Completion of the Work or sixty (60) days after the completion date specified in the Contract for Construction at the time of the award, whichever occurs last . The City' s construction coordinator -14- will be the City' s representative on the Project construction site, but the presence of this coordinator shall in no way diminish any of the Consultant' s duties and obligations as described in this Agreement . Any and all changes which would result in an increase of compensation to the Consultant must be approved by the City Commission, or by the City Manager, if such change is less than ten percent (10%) of the amount set forth in the Service Order. The City' s construction coordinator shall be considered to be on the Project site for the benefit and protection of the City. The Consultant shall have no right to rely on the construction coordinator for assurances or advice regarding work which is the responsibility of the Consultant. The Consultant and the City' s construction coordinator will hold regular site meetings on at least a twice a month basis between themselves, the contractor and the various subcontractors, as is appropriate. 2 . 6 . 2 The Consultant shall provide administration of the Construction Contract as set forth herein in the general or supplemental conditions of the contract for construction, and the Consultant' s assigned authority thereunder shall not be modified without the Consultant' s written consent . 2 . 6 . 3 The Consultant shall advise and consult with the City, and keep it informed of the progress of the work, including percentage completed on a monthly basis, during the construction phase. After issuance of the work order to proceed with the work, all of the City' s instructions to the Contractors shall be issued through the Consultant' s representative, with final approval by the City. 2 . 6 .4 The Consultant shall visit the Project site at periodic intervals appropriate to the stage of construction, or as may otherwise be requested by the City, to become familiar with the progress and quality of the work and to determine if the work is proceeding in accordance with the Construction Contract . The Consultant shall not be obligated to make continuous or exhaustive on-site inspections to check quality and quantity of the work. On -15- the basis of such on-site inspections, the Consultant shall keep the City informed of the progress and quality of the work and shall endeavor to guard the City against defects and deficiencies in the work of the Contractor. Upon discovery of any defects or deficiencies the Consultant shall immediately notify the City' s Project Coordinator. 2 . 6 . 5 The Consultant shall not have control of, or be in charge of, and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work, for the acts or omissions of the Contractor, the Contractor' s sub-contractors or any other persons performing any of the work, or for failure of any of them to carry out the work in accordance with the Contract Documents . 2 . 6 . 6 The Consultant shall at all times have access to the work whenever it is in preparation or progress . 2 . 6 . 7 The Consultant shall determine the amounts owing to the Contractor based on observations at the site and on evaluations of the Contractor' s applications for payment and shall issue certificates for payment in such amounts, as provided in the Contract Documents, subject to the City' s final approval . 2 . 6 . 8 The issuance of a certificate for payment shall constitute a representation by the Consultant to the City, based on the Consultant' s observations at the site as provided in Subparagraph 2 . 6 .4 and on the data comprising the Contractor' s application for payment that, to the best of the Consultant' s knowledge, information and belief, the work has progressed to the point indicated; that, based on the Consultant' s observation of the work, the quality of the work is in accordance with the Contract Documents (subject to an evaluation of the work for conformance with the Contract Documents upon substantial completion; to the results of any subsequent tests required by or performed under the Contract Documents; to minor deviations from the Contract Documents correctable prior to completion; and to any specific qualifications stated in the certificate for payment; and that the Contractor is -16- entitled to payment in the amount certified. However, the issuance of a certificate for payment shall not be a representation that the Consultant has made any examination to ascertain how and for what purpose the Contractor has used the monies paid on account of the contract sum. 2 . 6 . 9 The Consultant shall be the interpreter of the requirements of the Contract Documents. The Consultant shall render interpretations necessary for the proper execution of the progress of the work with reasonable promptness on written decisions, within twenty (20) days on all claims, disputes and other matters in question between the City and the Contractor relating to the execution or progress of the work or the interpretation of the Contract Documents . All actions required by Consultant under this Paragraph shall be taken expeditiously. 2 . 6 . 10 Interpretations and decisions of the Consultant shall be consistent with the intent of, and reasonably inferable from, the Contract Documents, and shall be in written or graphic form. 2 . 6 . 11 The Consultant shall, after discussion with the Project Coordinator, have authority to reject work which does not conform to the Contract Documents . Subject to the City' s approval, the Consultant will have authority to require special inspection or testing of the work when it is necessary or advisable (in the Consultant' s opinion) for the implementation of the intent of the Contract Documents, whether or not such work be then fabricated, installed or completed. 2 . 6 . 12 The Consultant shall review and approve or take other appropriate action upon the Contractor' s submittals, including, but not limited to shop drawings, product data, samples and other submissions of the Contractor, for conformance only with the design concept of the work and with the information given in the Contract Documents . Such action shall be taken with reasonable promptness so as to cause no delay. The Consultant' s approval of a specific item shall not indicate approval of an assembly of which the item is a component . -17- 2 . 6 . 13 The Consultant shall prepare change orders for the City' s approval and execution in accordance with the Contract Documents, and shall have authority to order minor changes in the work not involving an adjustment in the contract sum or an extension of the contract time which are not inconsistent with the intent of the Contract Documents . Meeting notes documenting all minor changes shall be presented in writing to the Project Coordinator after each meeting. 2 . 6 . 14 The extent of the duties, responsibilities and limitations of authority of the Consultant as the City' s representative during the Construction Phase, shall not be modified or extended without written consent of the Consultant and the City Manager. 2 . 6 . 15 The City shall furnish, in a timely manner, structural , mechanical, chemical and other laboratory tests, inspections and reports as required by law or the Contract Documents . 2 . 6 . 16 The Consultant shall prepare a set of reproducible record drawings showing the completed Project as it is finally built (i .e . , "as built" drawings) from information collected by the Consultant from the contractor (s) . These shall be similar in scale and scope to the Contract Document drawings but shall include all occurrences and instances where the finished building differs from the Contract Document drawings as a result of duly approved changes made during construction of the Project . 2 . 6 . 17 Consultant shall conduct inspections to determine the dates of Substantial and Final Completion and shall issue a certificate for final payment to the Contractor under the Contract Documents . The index and summary shall list each of the warranties, indicating their terms and conditions as indicated by the language in such warranties . -18- 2 . 7 RESPONSIBILITY FOR CLAIMS AND LIABILITIES 2 . 7 . 1 Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant, its employees, sub-contractors, agents and consultants for the accuracy and competency of their designs, working drawings, specifications or other documents and work; nor shall such approval be deemed to be an assumption of such responsibility by the City for a defect or omission in designs, working drawings, specifications or other documents prepared by the Consultant, its employees, sub-contractors, agents and consultants . However, the Consultant shall be entitled to reasonably rely upon the accuracy and validity of decisions and information furnished by the City. 2 . 8 ADDITIONAL FIELD REPRESENTATION Should the City and the Consultant agree that more extensive representation at the site than is described in Paragraph 2 . 6 is advisable, such additional Project representation shall be provided and paid for as an Additional Service. 2 . 9 ADDITIONAL SERVICES Unless specifically provided for in a Service Order, the following services are not included in Basic Services . Any Additional Service must be authorized in writing by a City Commission Resolution or by the City Manager in advance of its performance, and may be paid for as a multiple of direct personnel expense, as outlined in Schedules B and C. Additional services will consist of the following services : 2 . 9 . 1 Providing services to investigate existing conditions or facilities or to make measured drawings thereof, and to verify the accuracy of drawings or other information furnished by the City in the event of an inconsistency or omission in the drawings . -19- . • 1 2 . 9 . 2 Making revisions in or addition to drawings, specifications or other documents when such revisions or additions are inconsistent with written approvals or instructions previously given, or are required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents or are due to other causes not solely within the control of the Consultant . 2 . 9 . 3 Making investigations, surveys, valuations, inventories or detailed appraisals of existing facilities, and services required solely in connection with construction performed by the City. 2 . 9 . 4 Providing consultation concerning replacement of any work damaged by fire or other causes during construction, and furnishing services as may be required in connection with the replacement of such work. 2 . 9 . 5 Providing services made necessary by the default of the Contractor, or by major defects or deficiencies in the work of the Contractor (provided Consultant promptly notified the City of any such defects or deficiencies observed by Consultant) , or by failure of performance of either the City or Contractor under the Contract for Construction. 2 . 9 . 6 Providing Basic Services after issuance to the City of the final certificate for payment, or in the absence of a final certificate for payment, more than sixty (60) days after the date of substantial completion of the work, or sixty (60) days after the completion date set forth in the Construction Contract, whichever is later. 2 . 9 . 7 Preparing to serve or serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding unless such preparation has arisen from failure of the Consultant to meet the Standard of Care set forth in Section 2 . 4 . 3 . 2 . 9 . 8 Preparing documents for change orders, or supplemental work, initiated at the City' s request and outside the scope of the work specified in the Construction Documents, after -20- commencement of the Construction Phase . 2 . 9 . 9 Making revisions in drawings, specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given, are required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents. If changes are required to be made because of error, oversight, inadvertence, clarification or discrepancy in the work of the Consultant, the City shall not be liable to compensate Consultant for Additional Services in such connection. 2 . 9 . 10 Providing consultation concerning replacement of a new project or damage by fire or other cause during construction, and furnishing such professional services in the type set forth herein as may be required in connection with the replacement of such work. 2 . 9 . 11 Providing professional services made necessary by the default of any Contractor or any sub-contractor in the performance of the Construction Contract . 2 . 9 . 12 Providing contract administration services during the Construction Phase, should the Construction Contract time and working days be extended or unreasonably extended through no fault of the Consultant . 2 . 9 . 13 Providing planning, programming, program investigating and evaluation services, economic studies, feasibility studies, unless such studies are included in the Basic Services described in Section 1 . 6 . 2 . 9 . 14 Providing certified land surveys and similar information. 2 . 9 . 15 Providing such other professional services to the City relative to the Project which arise from subsequent circumstances and causes (excluding circumstances and causes resulting from error, inadvertence or omission of the Consultant) which do not currently exist or which are not contemplated by the parties at the time of execution of this Agreement . -21- 2 . 9 . 16 Services provided for by this subsection must be approved by the City Commission or by the City Manager before such services are rendered. 2 . 10 TIME It is understood that time is of the essence in the completion of this Project, and in this respect the parties agree as follows : 2 . 10 . 1 The Consultant shall perform Basic and Additional 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. The Consultant may submit to the City adjustments to this schedule made necessary by undue time taken by the City to approve the Consultant' s submissions, and/or excessive time taken by the City to approve the work or parts of the work. The City shall not unreasonably refuse to approve such adjustment to the time schedule if the request is made in a timely manner and is fully justified. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Consultant . 2 . 10 . 2 The parties agree that the Consultant' s services during all phases of this Project will be performed in a manner which shall conform with the approved schedule, as may be amended. ARTICLE 3 . THE CITY' S RESPONSIBILITIES 3 . 1 The City has provided Consultant with the Project goals and design elements as set forth in the Proposal Documents and in Article 1 . 7 herein, and shall provide consistent with the foregoing described goals, such additional requirements for the Project as may be necessary, including space requirements and relationships, flexibility and expendability, special equipment and systems, and site requirements . 3 . 2 The City shall establish a Construction Cost Budget for the Project, which may include contingencies for bidding, changes in the work during construction, and other costs which are the responsibility of the City, including those described in this Article 3 and in subparagraph 4 . 1 . 2 . The City shall, at the -22- request of the Consultant, provide a statement of funds available for the Project, and their source. 3 . 3 The City Manager shall designate a representative defined as the City' s Project Coordinator authorized to act on the City' s behalf with respect to the Project . The City' s Project Coordinator shall examine the documents submitted by the Consultant and shall transmit written decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of the Consultant' s services . The City shall observe the procedure of issuing orders to its Contractor only through Consultant . 3 .4 In the City' s sole discretion, the City may furnish legal, accounting and insurance counseling services as may be required at any time for the Project, including such auditing services as the City may require to verify the Contractor' s applications for payment or to ascertain how or for what purposes the Contractor uses the monies paid by or on behalf of the City. 3 . 5 If the City observes or otherwise becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents, prompt written notice thereof shall be given by the City to the Consultant . 3 . 6 The City shall furnish required information and services and render approvals and decisions in writing as expeditiously as necessary for the orderly progress of the Consultant' s services and of the work. No approvals required by the City during the various phases of the Project shall be unreasonably delayed or withheld; provided that the City shall at all times have the right to approve or reject any proposed submissions of Consultant for any reasonable basis . ARTICLE 4 . CONSTRUCTION COST 4 . 1 DEFINITION 4 . 1 . 1 The Construction Cost shall be the total cost or estimated cost to the City of all elements of the Project, as designed or specified by the Consultant and approved by the City, as more completely defined in Article 1 . 9 . -23- 4 . 1 . 2 The Construction Cost does not include the compensation of the Consultant and the Consultant' s consultants, the cost of the land, rights-of-way, and surveys . 4 . 1 . 3 For work not constructed, the Construction Cost shall be the same as the lowest bona fide bid or competitive proposal received and accepted from a responsible bidder or proposer for any and all of such work; 4 . 1 . 4 For work which bids or proposals have not been let, the Construction Cost shall be the same as the latest Statement of Probable Construction Cost or detailed cost estimate . The City shall have the right to verify the Statement of Probable Cost or detailed cost estimate by the Consultant . 4 . 2 RESPONSIBILITY FOR CONSTRUCTION COST 4 . 2 . 1 If the bidding phase has not commenced within three (3) months after the Consultant submits the Construction Documents to the City, and the City approvals have been made, the total time being known as the date of approval, the Construction Cost Budget shall be adjusted to reflect any change in the general level of prices in the construction industry between the date of submission of the Construction Documents to the City and the date on which proposals are sought . 4 . 2 . 2 If the lowest bona fide base bid exceeds the Construction Cost Budget (adjusted as provided in Subparagraph 4 . 2 . 2) by more than five percent (596-) , the City Commission shall, at its sole discretion, have any of the following options : (1) give written approval of an increase in the Construction Cost Budget; (2) reject all bids or proposals, authorize rebidding, or (if permissible) authorize a renegotiation of the Project within a reasonable time; (3) abandon the Project and terminate the Consultant ' s services for the Project covered by the Service Order; (4) select as many Deductive Alternatives as may be necessary to bring the award within the Construction Cost Budget, or (5) cooperate with the Consultant in reducing the Project scope and quality and construction schedule and sequence of work as required to reduce the Construction Cost . In the event the City elects to -24- reduce the Project scope and quality, the Consultant shall provide such revisions to the Construction Documents and provide rebidding services, as many times as requested by the City, as a Basic Service, with no additional cost to the City, in order to bring the bids within five percent (5%) of the Construction Cost Budget . ARTICLE 5. DIRECT PERSONNEL EXPENSE 5 . 1 For Additional Services rendered under this Agreement, the Consultant and its sub-consultants, if any, shall be reimbursed on the basis of the hourly rates set forth in Schedules B and C. ARTICLE 6. REIMBURSABLE EXPENSES 6 . 1 Reimbursable expenses are in addition to the compensation for Basic and Additional Services and include actual expenditures made by the Consultant and the Consultant' s employees and consultants in the interest of the Project, for the expenses listed in the following subparagraphs . All Reimbursable Expenses pursuant to this Article, must be authorized in advance by the City Manager or the City' s Project Coordinator. Invoices or vouchers for Reimbursable Expenses shall be submitted by the Consultant to the City, along with supporting receipts, and other back-up material reasonably requested by the City, and Consultant shall certify as to each such invoice that the amounts and items claimed as reimbursable are "true and correct and in accordance with the Agreement" . Expenses subject to reimbursement in accordance with the above procedures are as follows : 6 . 1 . 1 Expense of data processing when such data processing equipment is available either directly by the Consultant or through an outside service, shall not be reimbursable but should be included in Basic Services . 6 . 1 . 2 If authorized in advance by the City Manager or the City' s Project Coordinator, expense of overtime work requiring higher than regular rates not caused by Consultant, or, not included as part of Consultant' s Basic Services, special consulting services, if any, or other services . -25- 6 . 1 . 3 Expense of any additional insurance coverage or limits requested by the City in excess of the insurance requirement set forth in Article 14 . 6 . 1 . 4 Expense of transportation in connection with the Project ; living expenses in connection with out-of-town travel; long distance communications; and fees paid for securing approvals of authorities having jurisdiction over the Project . Consultant shall comply with the City' s standards for reimbursable travel expenses . Travel within Dade County shall not be reimbursable . 6 . 1 . 5 Expense of reproduction, postage and handling of drawings, specifications and other documents, except for those expenses to be borne by the Consultant under the Basic Services, excluding reproductions for the office use of the Consultant and the Consultant' s consultants . 6 . 1 . 6 Aerial photography expenses and other photographic production expenses . ARTICLE 7 . PAYMENTS TO THE CONSULTANT 7 . 1 PAYMENTS ON ACCOUNT OF BASIC SERVICES 7 . 1 . 1 Payments for Basic Services shall be made monthly based upon work completed and approved by the Project Coordinator, upon presentation and receipt of Consultant' s invoice or statement . When compensation is made on the basis of a lump sum, then payments shall be made in proportion to the services performed in each phase so that the payments for Basic Services for each phase shall equal the following percentages of the Total Compensation payable : Design Phase - 35%; Construction Documents Phase - 40%; Bidding Phase - 5%; Construction Phase - 20% . 7 . 2 PAYMENT ON ACCOUNT OF ADDITIONAL SERVICES 7 . 2 . 1 Payment on account of the Consultant' s Additional Services, as defined in Section 2 . 9, and for Reimbursable Expenses, as defined in Article 6, shall be made within forty-five (45) days of presentation of the Consultant' s detailed statement or invoice of services rendered or expenses incurred, which shall be rendered in duplicate to the City Manager. -26- 7 . 3 PROJECT SUSPENSION OR TERMINATION 7 . 3 . 1 Upon written notice to Consultant, the City shall have the right to suspend or terminate the services called for in any particular Service Order (s) . If the Project is suspended or abandoned in whole or in part for more than three (3) months, the Consultant shall be compensated for all services performed prior to receipt of written notice from the City of such suspension or such abandonment, together with Reimbursable Expenses then due . If the Project is resumed after being suspended for more than three (3) months, the Consultant' s compensation shall be equitably adjusted including any necessary start-up costs . Prior to any payment due to suspension, the Consultant must provide the City with all documents, reports, drawings, computer reports and the like reflecting the work completed to date. 7 . 4 No deduction shall be made from the Consultant' s compensation on account of sums withheld from payments to contractors . ARTICLE 8 . CONSULTANT'S ACCOUNTING RECORDS 8 . 1 Records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of direct personnel expense shall be kept on the basis of generally accepted accounting principles and shall be available to the City and the City' s authorized representatives at mutually convenient times and location. ARTICLE 9 . OWNERSHIP AND USE OF DOCUMENTS 9 . 1 All plans or drawings will be prepared and submitted by Consultant to City for approval . Working drawings will be prepared on Plate B tracing cloth or mylar drafting film or the equivalent, with all lettering in ink or pencil or press-type and clearly legible when the sheets are reproduced and reduced to half size . 9 . 2 All documents including, but not limited to, tracings, drawings, estimates, specifications, investigations and studies completed or partially completed, shall become the property of the City upon completion or termination of each Project . -27- 9 . 3 Upon completion of the construction of the Project, Consultant shall, within ninety (90) calendar days following final inspection, deliver to the City the original contract working drawings and tracings, or mylar or sepia prints (3 mil) , correct to "as built" conditions, to the City' s Project Coordinator, including all changes made during the course of the Project . Consultant shall deliver the above documents to the City within thirty (30) days of completion of the Project, or termination of this Agreement or termination or abandonment of the Project . ARTICLE 10 . TERMINATION OF AGREEMENT 10 . 1 Right to Terminate The City may terminate this Agreement for cause in the event that (1) the Consultant willfully violates any provisions of this Agreement or performs same in bad faith; or (2) unreasonably delays the performance of the services, upon notice to the Consultant in writing seven (7) days prior to termination. Payment for services performed shall then be made in accordance with Article 10 . 3 herein. 10 . 2 THE CITY, IN ADDITION TO THE RIGHTS AND OPTIONS TO TERMINATE FOR CAUSE AS SET FORTH HEREIN, OR ANY OTHER PROVISIONS SET FORTH IN THIS AGREEMENT, RETAINS THE RIGHT TO TERMINATE THIS AGREEMENT AT ITS SOLE OPTION AT ANY TIME FOR CONVENIENCE, WITHOUT CAUSE AND WITHOUT PENALTY, WHEN IN ITS SOLE DISCRETION IT DEEMS SUCH TERMINATION IS IN THE BEST INTEREST OF THE CITY. PAYMENT FOR SERVICES SATISFACTORILY PERFORMED AND FOR DELIVERY OF DOCUMENTS SHALL BE IN ACCORDANCE WITH ARTICLE 10 . 5 HEREIN. 10 . 3 The Consultant may terminate this Agreement for cause in the event that the City, acting through its Project Coordinator or otherwise, willfully violates any provisions of this Agreement or unreasonably delays payment for the services, upon written notice to the City, thirty (30) days prior to termination. In that event, payment for services satisfactorily performed prior to the date of termination shall be made in accordance with Article 10 . 3 herein. The Consultant shall have no right to terminate this Agreement for convenience of the Consultant, without cause . -28- 10 .4 Termination for Cause In the event this Agreement is terminated by the City for cause, the City, acting through the City Manager, may take over the services and complete them by contracting with another Consultant (s) or otherwise. In such event, the Consultant shall be liable to the City for any additional cost incurred by the City due to such termination. "Additional Cost" is defined as the difference between the actual cost of completion of such incomplete services and the cost of completion of such services which would have resulted from payments to the Consultant hereunder had the Agreement not been terminated. Payment for services satisfactorily performed by the Consultant, and accepted by the City, prior to receipt of a Notice of Termination for Cause shall be made in accordance with Article 7 . 1 herein and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 7 . 1. Upon receipt of written notice of termination, the Consultant shall, when directed by the City, promptly assemble and submit as provided herein, or as required in the written notice hereunder, all documents, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by such termination. In the event of termination for cause, no payments to the Consultant shall be made (1) for services not satisfactorily performed; and (2) for assembly of submittal of documents for the services performed satisfactorily or unsatisfactorily. 10 . 5 Termination for Convenience/Non-Exclusive Provisions In the event the City causes abandonment, termination or suspension of the Consultant' s services or parts thereof, without cause, as provided in Article 10 . 1 herein, the Consultant shall be compensated for all services rendered up to the time of receipt of said abandonment, termination, or suspension, and for the assembly and submittal to the City of affected documents for the services performed, in accordance with Article 7 herein, and the City shall have no further liability for compensation, expenses -29- or fees to the Consultant, except as set forth in Article 7 . 1 . 10 . 6 Implementation of Termination In the event of termination, either for cause or for convenience, the Consultant, upon receipt of the notice of termination, shall : stop the performance of services under this Agreement on the date and to the extent specified in the notice of termination; place no further orders or subcontracts except as may be necessary for completion of any portion (s) of the services not terminated, and as authorized by the written notice; terminate all orders and subcontracts to the extent that they relate to the performance of the services terminated by the notice of termination; promptly assemble and submit as provided herein all documents for the services performed, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by the termination; and complete performance of any services as shall not have been terminated by the notice of termination. 10 . 7 Non-Solicitation The Consultant warrants that it has not employed or retained any company or person, other than an employee working solely for the Consultant, to solicit or secure this Agreement; and that it has not paid, nor agreed to pay any company or other person any fee, commission, gift or other consideration contingent upon the execution of this Agreement . For breach or violation of this warranty, the City has the right to annul this Agreement without liability to the Consultant for any reason whatsoever. ARTICLE 11. MISCELLANEOUS PROVISIONS 11 . 1 This Agreement shall be governed by the laws of the State of Florida. 11 . 2 Terms in this Agreement which have not been defined in Article 1 . 1 shall have the same meaning as those in AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement . -30- 11 . 3 As between the parties to this Agreement, as to all acts or failures to act by either party to this Agreement, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the relevant date of substantial completion of the work and the issuance of the temporary certificate of occupancy, and as to any acts or failures to act occurring after the relevant date of substantial completion, not later than the date of issuance of the final certificate for payment . 11 . 4 The City and the Consultant waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages covered by any property insurance during construction as set forth in the current edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement . The City and the Consultant each shall require appropriate similar waivers from their contractors, consultants and agents. 11 . 5 The term of this Agreement shall be for a period of two (2) years from the date of execution of this Agreement . Provided, however, that as to any Project for which a Service Order has been issued within such two year period, the Basic and/or Additional Services relating to such Project may be completed beyond such two year period. ARTICLE 12 . EXTENT OF AGREEMENT 12 . 1 This Agreement represents the entire and integrated agreement between the City and the Consultant and supersedes all prior negotiations, representations or agreements, either written or oral . This Agreement may be amended only by written instrument signed by both City and Consultant utilizing the same formalities as were used for its adoption. -31- ARTICLE 13 . BASIS OF COMPENSATION 13 . 1 GENERAL The City shall compensate the Consultant for the scope of services provided, in accordance with Article 7, and with the other terms and conditions of this Agreement . 13 . 2 COMPENSATION FOR SERVICES The Consultant shall be compensated for Basic Services, Additional Services and Reimbursable Expenses on the basis set forth below: 13 . 2 . 1 Except for lump sum Service Orders, which shall be paid in accordance with percentage of work completed, Basic Services of the Consultant shall be compensated for on the basis of an hourly rate in accordance with Schedule B - Consultant Hourly Compensation Rates - and a multiple of 1 . 10 times the hourly rate charged to the Consultant by its subconsultants, as set forth in Schedule C - Subconsultant Hourly Compensation Rate. The fee for Basic Services may be a fixed fee (if both the City and the Consultant agree to such method and amount of compensation and the pro-rata share of the fee allocatable to each phase of the Basic Services for Federally-funded Community Development Block Grant projects that require a lump sum architectural fee) . 13 . 2 . 2 Any services not included in the provisions of this Agreement and its conditions may be carried out by the Consultant following written authorization by the City. 13 . 2 . 3 The hourly rate for compensation to the Consultant by the City for Additional Services as defined in Article 13 . 2 . 2 and Article 2 shall be as set forth in Schedule B and a multiple of 1 . 10 times the hourly rate charged to the Consultant as forth in Schedule C, as may be amended by the parties in writing. The term "Additional Service" includes any work required and approved by the City including work involving all or any sub-consultants whether previously retained for the work or not or whether participating as members with Consultant or not, subject to the City' s right to previously approve any change in the consultants as set forth in this Agreement . -32- 13 . 3 For Reimbursable Expenses, as described in Article 6, the Consultant shall be paid, up to the reimbursable expense limit set forth in the Service Order, the exact amount (s) expended by the Consultant and its consultants in the interest of the Project, subject to the Consultant furnishing adequate documentation of the expense and, if required, demonstrating to the satisfaction of the City that the expense was in the interest of the Project . 13 .4 Payments due the Architect and unpaid under this Agreement will be considered due thirty (30) days from receipt by the City of a detailed statement or invoice unless City contest an item or items set forth in the invoice . 13 . 5 The City and the Architect agree in accordance with the terms and conditions of this Agreement that : 13 . 5 . 1 If the scope of the Project or the Consultant' s services is changed substantially and materially, as per Article 2 . 9, the amount of compensation shall be equitably adjusted. 13 . 5 . 2 If the entire services covered by this Agreement have not been completed within twenty-four (24) months of the date hereof, through no fault of the Consultant, the amounts of compensation, rates and multiples set forth herein shall be adjusted upwards to compensate for changes in the cost of living, by mutual agreement of the parties, on the unspent fee balance. ARTICLE 14 . INSURANCE The Consultant shall comply throughout the term of this Agreement with the insurance stipulated herein. It is agreed by the parties that the Consultant shall not commence with this Project until proof of the following insurance coverage has been furnished to the City. The Consultant will maintain in effect the following insurance coverages : (a) Architects and Engineers Professional Liability Insurance in the amount of Five Hundred Thousand ($500, 000 . 00) Dollars per occurrence on a claims made form. -33- (b) Comprehensive General Liability Insurance in the amount of $1 , 000, 000 . 00 Single Limit Bodily Injury and Property Damage coverage for each occurrence, which will include products, completed operations, and contractual liability coverages . The City must be named as an additional insured on this policy. (c) Worker' s compensation and employer' s liability coverage within the statutory limits of the State of Florida. (d) Thirty (30) days prior written notice, of cancellation or of substantial modifications in the insurance coverages, must be given by the Consultant to the City Manager. (e) The insurance must be furnished by an insurance company rated B+ :VI or better, or its equivalent, according to Bests' Guide Rating Book and must additionally be furnished by insurance companies duly authorized to do business in the State of Florida and countersigned by the company' s Florida resident agent . ARTICLE 15 . INDEMNIFICATION 15 . 1 In consideration of a separate and specific consideration of $10 . 00 and other good and valuable consideration the receipt of which is hereby acknowledged, the Consultant hereby agrees to indemnify, defend and hold the City and its employees, agents and authorized representatives harmless with respect to any and all costs, claims, damages and liability which may arise out of the performance of this Agreement as a result of any negligent acts, errors or omission of the Consultant, or the Consultant' s sub-consultants, or any other person or entity under the direction or control of Consultant . The Consultant shall pay all claims and losses arising out of Consultant' s negligent acts, errors or omissions and shall defend all suits, in the name of the City, its employees, agents and authorized representatives when applicable, including appellate proceedings, and shall pay all costs, judgments and attorneys' fees which may issue thereon. -34- ARTICLE 16 . ARBITRATION 16 . 1 All claims, disputes and other matters in question between the Consultant and the City arising out of, or relating to this Agreement, the Project, the work, the Contract Documents or the breach thereof may, at the City' s sole option, and only upon the exercise of that sole option by the City, together or separately as the City sees fit, be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. 16 . 2 Any arbitration arising out of or relating to this Agreement, the Project, the work, the Contract Documents, or the breach thereof may include by consolidation, joinder or in any other manner, at the City' s sole option, any other entities or persons whom the City believes to be substantially involved in a common question of fact or law. In the event that more than one claim, dispute or other matter in question shall be in existence at the same time, the City may at its sole option decide which of such claims, disputes or other matters in question shall be arbitrated and which shall not be arbitrated. Such decision shall be final and unappealable, and no arbitration shall be authorized to consider, decide, or make any award on any claim or matter which City has determined shall not be arbitrated. 16 . 3 In the event that the Consultant wishes to request arbitration of any claim, dispute or other matter in question, the Consultant shall file a notice of demand for arbitration in writing with the City specifically describing the claims, disputes and other matters in question which the Consultant wishes to submit to arbitration. The Consultant may not unilaterally elect arbitration or cause arbitration to occur. The City has the sole discretion to decide whether or not any such claims, disputes, and other matters shall be submitted for arbitration. If the City wishes to submit any claim, dispute or other matter in question, whether or not it is the subject of a request for arbitration by the Consultant, the City shall file a notice of demand for arbitration with the American Arbitration Association and with the Consultant . -35- 16 . 4 The City shall have the right, but not the obligation, by so electing in its arbitration demand, to invoke the following method of selection of arbitrators in lieu of that otherwise provided by the American Arbitration Association Rules . If the City so elects in its notice of demand for arbitration, the City may appoint one party-appointed arbitrator in its notice of demand for arbitration. If the City does so, the Consultant may, within ten (10) days, appoint a second party-appointed arbitrator. These two party-appointed arbitrators shall, within thirty (30) days, or such further time as may be agreed upon between the City and the Consultant, appoint a third arbitrator. If the party-appointed arbitrators fail to appoint a third arbitrator, the third arbitrator shall be appointed in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. 16 . 5 The City may elect in its notice of demand for arbitration, to have the discovery rights and procedures provided by the Florida Rules of Civil Procedure to be available and enforceable within the arbitration proceeding. 16 . 6 In any case in which the City elects to submit a claim, dispute, or other matter in question to arbitration as provided herein, the City shall, in its sole discretion, select the locale for the arbitration. Any request or demand for arbitration hereunder shall be made before the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations . 16 . 7 This agreement to arbitrate shall be specifically enforceable by the City under the prevailing arbitration law. Any award rendered by arbitrators shall be final and enforceable by any party to the arbitration, and judgment may be rendered upon it in accordance with applicable law in any court having jurisdiction thereof . -36- 16 . 8 Consultant and City mutually agree to arbitrate under the terms and conditions outlined in this Article. Consultant has included in the contract price to be paid on this contract a sum of not less than ten dollars ($10 . 00) as compensation and consideration for irrevocably offering the foregoing options and arbitration rights to City. In further consideration for such irrevocable offer and grant of the foregoing options and arbitration rights to it, City agrees that, notwithstanding its right and discretion not to do so, it shall arbitrate, after the final completion of the work, any claims which Consultant selects which total, in the aggregate, up to ten thousand dollars ($10 , 000 . 00) . City' s obligation to arbitrate such claims totalling up to ten thousand dollars ($10, 000 . 00) shall be specifically enforceable by Consultant under the prevailing arbitration law and any award rendered by the arbitrator (s) shall be final and enforceable by any party to the arbitration, and judgment may be rendered upon it in accordance with applicable law in any court having jurisdiction thereof. 16 . 9 Unless otherwise agreed in writing, and notwithstanding any other rights or obligations of either of the parties under any Contract Documents or agreements, the Consultant shall carry on with the performance of its services and duties hereunder during the pendency of any claim, dispute, other matter in question or arbitration or other proceeding to resolve any claim, dispute or other matter in question, and the City shall continue to make payments to the Consultant in accordance with the Contract Documents, but the City shall be under no obligation to make payments to the Consultant on or against such claims, disputes, or other matters in question, during the pendency of any arbitration or other proceeding to resolve such claims, disputes or other matters in question. 16 . 10 The City and Consultant agree to abide by the Arbitrator' s recommendation as to which party shall bear the costs of arbitration. -37- ARTICLE 17 . LIMITATION OF LIABILITY 17 . 1 The City desires to enter into this Agreement only if in so doing the City can place a limit on City' s liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the amount of fee under any outstanding Service Order. Consultant hereby expresses its willingness to enter into this Agreement with Consultant' s recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the fee set forth in the Service Orderless the amount of all funds actually paid by the City to Consultant pursuant to the Service Order. 17 . 2 Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to Consultant for damages in an amount in excess of the amount of fee under any outstanding Service Order, which amount shall be reduced by the amount actually paid by the City to Consultant pursuant to the Service Order, for any action or claim for breach of contract arising out of the performance or non- performance of any obligations imposed upon the City by this Agreement . Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City' s liability as set forth in Section 768 . 28, Florida Statutes . ARTICLE 18. ADDITIONAL CONDITIONS 18 . 1 The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of the Agreement . Neither party shall assign, sell, pledge or otherwise transfer this Agreement or any portion thereof, without written authorization and consent of the other party to this Agreement . The parties agree that the Consultant' s services are unique in nature and that the Consultant may only receive such authorization by way of a City Commission resolution. -38- 18 .2 The Consultant, its consultants, agents and employees and sub-contractors, shall comply with all applicable federal, state and county laws, the Charter, related laws and ordinances of the City of Miami Beach, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies as they relate to this Project . 18 . 3 This Agreement shall be enforceable in Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Dade County, Florida. 18 . 4 All written notices given to City by Consultant shall be addressed to the City Manager, City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, with a copy to the City Attorney, 1700 Convention Center Drive, Miami Beach, Florida 33139 . All written notices from the City to the Consultant shall be addressed to the Consultant, Gambach-Sklar Architects, 1132 Kane Concourse, Level 2, Bay Harbor Islands, Florida 33154 . All notices mailed by either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. -39- 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. CITY OF MIAMI BEACH By: AMER AllAW MAY'R ATTEST: ler TY CLERK GAMBACH SKLAR ARCHITECTS,INC. CONSULTANT: By: LOLA-I (Si a u ) ?SEA, (Type Name of Person Signing) WITNESS (Signature CORPORATE SEAL (Type Name of Person Signing) FORM APPROVE) LEGAL EPT. -40- le By Date F �'/ s SCHEDULE "A" CITY OF MIAMI BEACH CONSULTANT SERVICE ORDER Service Order No. for Consulting Services TO: DATE: Pursuant to the Agreement between City of Miami Beach and , for VARIOUS CITY CAPITAL PROJECTS WHERE BASIC CONSTRUCTION COST DOES NOT EXCEED $500, 000 . 00 PER PROJECT, you are directed to provide the following services (describe services) : Project Name and No. : Calendar days to complete this work (from date of issue) : Estimated Construction Cost $ Fee for this Service Order $ The above fee is a lump sum , or Upset limit , (check one) Basic Service Additional Service Reimbursable Expense ACCEPTED: Project Coordinator Consultant -41- SCHEDULE B CONSULTANT COMPENSATION RATES 1 . Fee estimate for projects with a total budget project cost up to $500, 000 . 00 for project profiles as stated in the scope of projects : a. Civil Engineering - Roads & Parking Lots - 6% Lump Sum of the Construction Cost b. New Construction/Buildings - 7 . 5% Lump Sum of the Construction Cost c . Renovations/Buildings - 10% Lump Sum of the Construction Cost 2 . Detail rates, including overhead and profit for hourly rates of personnel : Principal $110 . 00/Per Hour Senior Architect $ 80 . 00/Per Hour Architect $ 65 . 00/Per Hour Jr. Architect $ 50 . 00/Per Hour CADD Operator $ 55 . 00/Per Hour Draftsperson $ 45 . 00/Per Hour Clerical $ 25 . 00/Per Hour Consultants (See Schedule C) -42- SCHEDULE "C" SUBCONSULTANT HOURLY COMPENSATION RATES Structural Engineering Senior Engineer - $80 . 00 Engineer $65 . 00 Jr. Engineer $50 . 00 CADD Operator $55 . 00 Drafting-Designer $45 . 00 Surveying 3-man survey crew $70 . 00 Professional Land Surveyor $65 . 00 CADD Operator $55 . 00 Drafting $25 . 00 Electrical-Mechanical Engineer Senior Engineer $80 . 00 Engineer $65 . 00 Jr. Engineer $50 . 00 CADD Operator $55 . 00 Drafting-Designer $45 . 00 -43-