C7E-Execute Settlement Agreement Indian Creek Drive Between 26th And 41st StreetT:
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Approving And Authorizing
The Mayor And City Clerk To Execute A Settlement Agreement Between The City Of Miami Beach And Bermetlo
Ajamil & Partners, Inc., For Extended Professional Construction Engineering And Inspection Services {CEI) For The
Florida Department Of Transportation Work Included In The Water Mains And Sanitary Sewer Mains, And Milling
And Resurfacing Improvements Along Indian Creek Drive Between 26th And 41st Streets; In The Amount Of$73,000
From Previously Appropriated Funding.
Key Intended Outcome Supported:
Ensure Value and Timely Delivery of Quality Capital Projects
Supporting Data (Surveys, Environmental Scan, etc.): The 2012 Customer Satisfaction Survey indicated that
81% of businesses rated completed capital improvement projects as "excellent" or "good."
Item Summary/Recommendation:
The Florida Department of Transportation {FDOT) identified the need to perform roadway milling and resurfacing
along Indian Creek Drive from 261h to 41"t Streets as part of its five (5) year transportation plan. The FOOT work
consisted of roadway milling and resurfacing, guardrail replacements, sidewalk replacement and bump-out
construction at certain intersections. At the time, the City had planned two (2) capital pr~~ect elements which
consisted of the installation of a new 12-inch diameter water transmission main from 26th to 41 5 Street, along Indian
Creek Drive, as well as the replacement of an existing 15-inch diameter wastewater interceptor along Indian Creek
Drive, between 281h and 41st Streets.
On March 18, 2009, the City Commission, pursuant to Invitation to Bid 28-07/08, awarded a contract to proceed with
the construction services for the installation of water mains, sanitary sewer mains, milling, and resurfacing
improvements along Indian Creek Drive from 26th to 41st Streets.
On September 9, 2009, the City Commission approved Resolution No. 2009-27169, to enter into a professional
services agreement with the firm Bermello Ajamil & Partners, Inc. (BAP) for professional CEI services for the FOOT
work along Indian Creek Drive from 26th to 41 51 Street in the amount of $129,942.7 4.
On July 13, 2011, the City Commission through Resolution No. 2011-27703, approved a settlement agreement
between the City and the Contractor in the amount of $1,197,966 for additional work related to water service transfers
and side street service connections to the newly installed 12-inch water transmission main and the work associated
with an FPL duct bank in conflict with the proposed sewer main.
The original project substantial completion date was August 23, 2010. Due to the additional scope of work, the
contract's completion date was extended to May 2012. During this additional time, BAP was required to perform
extended CEI services, above and beyond the services contemplated under the original negotiated professional
services agreement. The additional cost for the extended CEI services submitted by BAP was $117,213.58. BAP
provided substantial documents supporting this amount. Staff reviewed the documentation and was able to
substantiate $73,000 in additional costs for the extended services provided. BAP has accepted the City's
calculations of additional costs and has executed the settlement agreement.
It is recommended that the Mayor and City Commission adopt the resolution.
Advisory Board Recommendation:
I N/A
Financial Information·
Source of Amount Account
Funds: 1 $73,000 424-2949-061357 Water and Sewer Bonds 2000S
2
....-... 3
OB~~ 4
Total
Financial lm_Q_act Summary: 73,000
City Clerk's Office legislative Tracking:
David Martinez, ext 6972
Sign-Offs: (\
Depart me~ ir'fi!ctor Assistant .Cit.v Manager
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DM \ M~ V\)
\AGENDA\2013\0oiDb~ 1 \mello\SERMELLQAjAMIL -S-" -<oO<
MIAMI BEACH
242
City rY~anager
JLM I [\JfY\
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AGENDA ITEM _C;;;....._7_E __
DATE /0-ll:r/3
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachiLgov
TO: Mayor Matti Herrera Bower and Memb
FROM: Jimmy L. Morales, City Manager
DATE: October 16, 2013
SUBJECT: A RESOLUTION OF THE MAYOR AN CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A SETTLEMENT AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH AND BERMELLO AJAMIL & PARTNERS, INC., (BAP) FOR
EXTENDED PROFESSIONAL CONSTRUCTION ENGINEERING AND INSPECTION
SERVICES (CEI) FOR THE FLORIDA DEPARTMENT OF TRANSPORTATION
(FOOT) WORK INCLUDED IN THE WATER MAINS AND SANITARY SEWER MAINS,
AND MILLING AND RESURFACING IMPROVEMENTS ALONG INDIAN CREEK
DRIVE BETWEEN 26TH AND 41ST STREETS; IN THE AMOUNT OF $73,000 FROM
PREVIOUSLY APPROPRIATED FUNDING.
ADMINISTRATION RECOMMENDATION
Approve the Resolution.
FUNDING
Funding for this additional professional construction engineering inspection services has
been previously appropriated from the following fund:
$73,000
BACKGROUND
424-2949-061357 Water and Sewer Bonds 2000S
The Florida Department of Transportation (FOOT) identified the need to perform roadway milling
and resurfacing along Indian Creek Drive from 26 1h to 41st Streets as part of its five (5) year
transportation plan. The FOOT work consisted of roadway milling and resurfacing, guardrail
replacements, sidewalk replacement and bump-out construction at certain intersections. At the
time, the City had planned two (2) capital project elements which consisted of the installation of a
new 12-inch diameter water transmission main from 26th to 41st Street, along Indian Creek Drive,
as well as the replacement of an existing 15-inch diameter wastewater interceptor along Indian
Creek Drive, between 28th and 41st Streets.
On October 31, 2007, the City entered into a Joint Participation Agreement ( JPA) with the FOOT
(See Attachment A) for the construction of roadway improvements along Indian Creek Drive
between 261h and 41st Street. FOOT provided the City with construction plans prepared by
Corradino Group and agreed to contribute with project funding in the amount of $1,501,000. The
agreed upon funding for the FOOT portion of the work under the JPA between the City and
FOOT was as follows:
• Project Construction
• Project Construction Engineering and Inspection (CEI) Services
• Total Project Estimate
243
$1,365,000
$ 136.000
$1,501,000
Commission Memorandum -Settlement Agreement-Indian Creek Drive Improvements
October 16, 2013
Page 2 of2
Pursuant to section 2C of the JPA, the City advertised for bid, let the consultant and construction
contracts, administered, supervised, and inspected all aspects of their portion ofthe project. The
City was required to retain the services of a CEI, which supervised the milling and resurfacing
component. FOOT allocated $136,000 for such services.
On September 9, 2009, the City Commission approved Resolution No. 2009-27169, to enter into
a professional services agreement with the firm Bermello Ajamil & Partners, Inc. (BAP) for
professional CEI services for the FOOT work along Indian Creek Drive from 26th to 41st Street in
the amount of $129,942.74 (See Attachment B).
ANALYSIS
On March 18, 2009, the City Commission, pursuant to Invitation to Bid 28-07/08, awarded a
contract to proceed with the construction services for the installation of water mains, sanitary
sewer mains, milling, and resurfacing improvements along Indian Creek Drive from 26 1h to 41st
Streets.
On July 13, 2011, the City Commission through Resolution No. 2011-27703, approved a
settlement agreement between the City and the Contractor in the amount of $1,197,966 for
additional work related to water service transfers and side street service connections to the newly
installed 12-inch water transmission main and the work associated with an FPL duct bank in
conflict with the proposed sewer main.
The original project substantial completion date was August 23, 2010. Due to the additional
scope of work, the contract's completion date was extended to May2012. During this additional
time, BAP was required to perform extended CEI services, above and beyond the services
contemplated under the original negotiated professional services agreement. The additional cost
for the extended CEI services submitted by BAP was $117,213.58. BAP provided substantial
documents supporting this amount. Staff reviewed the documentation and was able to
substantiate $73,000 in additional costs for the extended services provided. BAP has accepted
the City's calculations of additional costs and has executed the attached settlement agreement.
(Attachment C)
CONCLUSION
The Administration recommends approval of the Resolution approving and authorizing the Mayor
and City Clerk to execute a settlement agreement between the City of Miami Beach and Bermello
Ajamil & Partners, Inc. in the amount of $73,000, for extended Professional Construction
Engineering and Inspection (CEI} services for the Florida Department Of Transportation (FOOT)
work included in the water mains and sanitary sewer mains, and milling and resurfacing
improvements along Indian Creek Drive, between 26th and 41st Streets.
Attachments:
A: Joint Participation Agreement (JPA)
B: Bermello, Ajamil and Partners, Inc. Professional Service Agreement
C: Settlement Agreement
JLM/MT/DM/OS
244
RESOLUTION TO BE SUBMITTED
245
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AHachment A J c--o 7-7 ? t-Cj cr
1l IF--Jo/;'7 )o 7
Contra<:: Number: tJ:.oYf/J
CSF/, Number: ..-55.023
JOINT PARTICIPATION AGREEMENT
BETWEEN
STATE OF FLORIDA DEPARTMENT OF TR.AJ.~SPORTATION
AND
THE CITY OF MIAMI BEACH
THlS AGREEMENT is made and entered into this 31 s.+-da•t of tJ cfrJhe-r-,
20JLZ., between the State of Florida Department ofTransportation, :; component agency ofthe
State ofFlorida, hereinafterreferred to as the 'DEPARTMENT', and ·:3e CityofMiami Beach, a
municipal corporation of the State of Florida, hereinafter referred to~-the 'CITY'.
RECITALS:
WHEREAS, the DEPARTMENT has jurisdiction over and maintains the State Road
(SR) AlA corridor (Indian Creek Drive) in the City of Miami Beach; <IIld
WHEREAS, the DEPARTMENT has drafted design pl&Js for the construction of
roadway improvements on SR AlA southbound from 41"t Street to 26th Street, hereinafter
referred to as the 'PROJECT', the individual elements of which a:·e outlined in the attached
Exhibit "A", 'Scope of Services', which is herein incorporated by refi:rence; and
WHEREAS, the DEPARTMENT has programmed funding for the PROJECT under
Financial Project Numbers 414641-1-58-01 and 414641~1~68-01, aad has agreed to reimburse
the CITY for eligible PROJECT costs up to a maximum limiting amoun~ as outlined in the
attached Exhibit "B", 'Financial Summary', which is herein incorpor.:.ted by reference; and
WHEREAS, the CITY has agreed to supervise and insped all aspects of PROJECT
construction and administration; and
WHEREAS, the parties hereto mutually recognize the 1eed for entering into an
Agreement designating and setting forth the responsibilitie~ of each party; and
WHEREAS, the parties are authorized to enter into this Ag1 eement pursuant to Section
339.08(e) and 339.12, Florida Statutes;
NOW, THEREFORE, in consideration of the premises, th<: mutual covenants and other
valuable considerations contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Pagel of 13
Joint Participatitur AgreemenJ betweet~ the Florida Department of Transpl)rtarion am' the City of Miami &licit,
FiliQJicial Projecl Numhen #4/4641-1-58-01, and 414641-J-(.1-01
246
1. INCORPORATION OF RECITALS
The foregoing recitals are true and correct and are in• :orporated into the body of
this Agreement, as if fully set forth herein.
2. GENERAL REQUIREMENTS
a. The CITY shall submit this Agreement to its City C:ommission for ratification
or approval by resolution. A copy of said resohtion is attached hereto as
Exhibit "C .. , 'Resolution·, and is herein incorporat•xi by reference.
b. The CITY shall obtain all necessary permits fro1a the DEPARTMENT, and
other concerned agencies, as needed, prior t11 commencing PROJECT
construction on DEPARTMENT right-of-way.
c. The CITY shall advertise for bid, let the consultar.·: and construction contracts,
administer, supervise and inspect all aspects of PROJECT construction until
completion, and, as further defined in Exhibit "A'', 'Scope of Services'. The
CITY shall complete the PROJECT on or before J' me 30, 2010. All aspects of
PROJECT construction and administration are :mbject to DEPARTMENT
standards and specifications and must be in compliance with all governing
laws and ordinances.
d. The CITY shall not execute any contract or obligate itself in any manner
requiring the disbursement of DEPARTMENT ft::1ds, including consulting or
construction contracts or amendments thereto, with any third party with
respect to the PROJECT without the prior written approval of the
DEPARTMENT. The DEPARTMENT specifically reserves the right to
review qualifications of any consultant or cortractor and to approve of
disapprove CITY employment of same.
e. The DEPARTMENT shall reimburse the CITY fc·~ eligible PROJECT costs as
defined in Exhibit .. B", 'Financial Sununary', ~md in accordance with the
financial provisions in Section 3 of this Agreement.
3. FINANCIAL PROVISIONS
a. Eligible PROJECT costs may not exceed ONE r.IILLION FIVE HUNDRED
ONE THOUSAND DOLLARS ($1,501,000.00). as outlined in Exhibit "B",
'Financial Summary'. If additional funding i~ required, contingent upon
DEPARTMENT approval, a supplemental agreement between the
DEPARTMENT and the CITY authorizing the additional funding shall be
executed prior to such costs being incurred.
Page 2 of 13
Joint Participation Agreeme11t betwUJt the Florid4 /Jepartme11t of TrarJSportatioll Qll<' the ary of Miami Beach,
Financial Proji!Ct Numbers 1#4U641-1-58-0/, and 414641-/-0-01
247
b. The DEPARTMENT agrees to pay the CITY for th•: herein described services
at a compensation as detailed in this Agreement.
c. Payment shall be made only after receipt and appr•>val of goods and services
unless advance payments are authorized by the Department's Comptroller
under Section 334.044(29), Florida Statutes, or by the Department of
Financial Services under Section 215.422(14), Florida Statutes.
d. Bills for fees or other compensation for servkes or expenses shall be
submitted in detail sufficient for a proper preaudit ;md postaudit thereof.
e. Travel costs will not be reimbursed.
f Records of costs incurred under the terms of this Agreement shall be
maintained and made available upon request to the DEPARTMENT at all
times during the period of this Agreement and. for five years after final
payment is made. Copies of these documents and records shall be furnished to
the DEPARTMENT upon request. Records of :::osts incurred include the
CITY's general accounting records and the pre~ ect records, together with
supporting documents and records, of the contra~tor and all subcontractors
performing work on the project, and all other re•:ords of the contractor and
subcontractors considered necessary by the DEPARTMENT for a proper audit
of costs.
g. In the event this contract is for services in excess .:-f$25,000.00 and a term for
a period of more than 1 year, the provisions of Sc::tion 339.135(6)(a), Florida
Statutes, are hereby incorporated:
The DEPARTMENT, during any fiscal year, shall not expend money,
incur any liability, or enter into any contract whit:h, by its terms, involves the
expenditure of money in excess of the amount:: budgeted as available for
expenditure during such fiscal year. Any contrac: t, verbal or written, made in
violation of this subsection is null and void, and no money may be paid on
such contract. The DEPARTMENT shall recuire a statement from the
Comptroller of the DEPARTMENT that such !Unds are available prior to
entering into any such contract or other binding commitment of funds.
Nothing herein contained shall prevent the making of contracts for periods
exceeding 1 year, but any contract so made shall be executory only for the
value of the services to be rendered or agreed to be paid for in succeeding
fiscal years; and this paragraph shall be incorporated verbatim in all contracts
ofthe DEPARTMENT which are for an amount :n excess ofTWENTY FIVE
THOUSAND DOLLARS ($25,000.00) and whic:h have a term for a period of
more than 1 year.
h. The DEPARTMENT's obligation to pay is :ontingent upon an annual
appropriation by the Florida Legislature.
Page 3 of 13
Joinr Parlicipatian Agreement be:ween rhe Florida Department ofTransplJrtariont~• d I he aty of Miami Beach,
Finanda/ Project Numben #414641-J-58-()1, and 4/4641-f-,i8-0J
248
4. INDEMNIFICATION
To the extent pennitted by Section 768.28, Florida S~~rtutes, the parties agree to
indemnify each other for liability due to any act or omission, neglect or
wrongdoing of a party or any of its officers, agents c,: employees. Further, the
parties agree to defend each other against any and a:J such claims or demands
which may be claimed and have arisen as a result of or in connection with the
parties' participation in this Agreement. Nothing t;ontained herein shall be
construed to contradict the provisions of Section 76:1.28, Florida Statutes, nor
shall this Section be construed to require either party to indemnify the other for
the negligent acts of the other.
5. GOVERNING LAW
This Agreement shall be governed and construed in a•;cordance with the laws of
the State ofFlorida.
6. AMEND'MENT
This Agreement may be amended by mutual agreem:nt of the DEPARTMENT
and the CITY expressed in writing, executed and deliv !Ted by each party.
7. INVALIDITY
If any part of this Agreement shall be determined to be invalid or unenforceable,
the remainder of this Agreement shall not be affectec thereby, if such remainder
continues to conform to the terms and requirements of applicable law.
8. COMMUNICATIONS
a. All notices, requests. demands, consents, approval3 and other communications
which are required to be served or given hereur.ier. shall be in writing and
hand-delivered or sent by either registered or certLied U.S. mail, return receipt
requested, postage prepaid, addressed to the par.-, to receive such notices as
follows:
To DEPARTMENT: Florida Department of Transportation
1000 Northwest 111 Avenue, Room 6137
Miami, Florida ]3172-5800
Attn: Kenneth Robertson, JP A Coordinator
Ph: (305) 470-: ~52; Fax: (305) 470-5552
Page4 ofl3
Joi11t Participation Agreement between the Florida DepartmenJ of Tran3portation 011 J the City of Miami Beach.
Financial Project Numbers 1#4l4641·1-J8-0I. and 414641-I-~8-01
249
To CITY: City of Miami Bc!ach
1700 Conventior: Center Drive
Miami Beach, F: xida 33139
A~: Fernanda Vazquez, City Engineer
Ph: (305) 673-7080; Fax: (305) 673-7028
b. Either party may, by notice given as aforesaid. change its address for all
subsequent notices. Notices given in complianc'! with this section shall be
deemed given when placed in the mail.
9. EXPIRATION OF AGREEMENT
The CITY agrees to complete the PROJECT on or ::efore June 30, 2010. If the
CITY does not complete the PROJECT within this time period, this Agreement
will expire unless an extension of the time period is requested by the CITY and
granted in writing by the DEPARTMENT's District Six Secretary or Designee.
Expiration of this Agreement will be considered terrnhation of the PROJECT.
10. FINAL INVOICE
The CITY must submit the final invoice on this PROJECT to the DEPARTMENT
within 120 days after the expiration of this Agreem•:nt. Invoices submitted after
October 28, 2010, will not be paid.
11. AUDITS
State of Florida Single Audit Act requirements as ou:lined in the attached Exhibit
"D .. , 'Audit Reports', are incorporated herein by refennce.
12. ENTIRE AGREEMENT
This Joint Participation Agreement is the entire Ag1 eement between the parties
hereto, and it may be modified or amended only by nutual consent of the parties
in writing.
--REMAINDER OF PAGE INTENTIONALLY LEFT BLANK--
Pagd of13
Joint Participazion Agreemenr between the FloridJJ [JqNJHment of Tnmsportaliot~ am' rlre City of Miami B-=h,
Finandal Project Nronben #414641-I-58-01, and 4/4641-J-(.1.01
250
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, on the day
and year above written.
STATE OF FL(JRIDA, DEPARTMENT
OF TRANSPOF:TATION:
·?./. ... L?
BY: ?-!_~.;:.....;......::.~___;~---
6r>ISTRICT SECRETARY
ATTEST:
(SEAL)
~!e~ ' ATTEST:/lZt.·~H~~A<
(SEAL) EXIiUTIVE SE~Y CITY CLERK
ROBERT PARCHER
APPROVED AS TO
FORM & LANGUAGE
~-·.....--
FO CUTION
'-~~~~~. iP~~Io7
LEGAL REVIEW:
cu.::..,_ :1.: ~
DISTRICT GEi·aRAL co NSEL
Page6 of13
Joint Participation Agreement betwe~ Jhe f1orida Deptutment cfTronsporlllliDn au I the City of Miami Beat:h.
Firumcial Projec:t Numbers# 4U641-/-58-0J, and 4!4641-l-!8-0l
251
EXHIBIT "A"
SCOPE OF SERVICES
To construct roadway improvements in accordance with and as detailed in the attached
PROJECT plans along the SR AlA southbound corridor within the b ;:low-identified PROJECT
Limits. The DEPARTMENT will provide the CITY with the signed and sealed construction
plans. The CITY will let, supervise and inspe\':t all aspects of PROJECT construction and
administration.
PROJECT Limits: SR AlA/Indian Creek Drive, southbound, from 41st Street to 26th Street
FOOT Financial Project Numbers: 414641-1-58-01 and 414641-1··68-01
County: Miami-Dade
FDOT Project Manager: Ana Arvelo, P.E.
CITY Project Manager: Fernando Vazquez, P.E.
PLANS AND SPECIFICATION~;
The CITY agrees to construct the PROJECT using a competitively-b ,d contractor in accordance
with the signed and sealed plans and specifications, attached hereto and incorporated herein by
reference.
Please see attached plans prepared by:._......::C.::o~rr~a...,d""'in...::o:..;G~r""'o"=u:l<.p __
Dated:---------
Page 7 of 13
Joilll Participmion Agreement between the Florida. DepaniiWtt ofTrai!SpOrtaiion <Ll :1 the City of Miami Beach.
Financial Project Numbers# 4UMI-J-58-0J. and 4/4641·1·' 8..()/
252
EXHIBIT "B"
FINANCIAL SUMMARY
Estimated PROJECT costs for reimbursement are below·listed, separated by phase of work:
Financial Project Number 414641·1-58-0 1
PROJECT Construction:
Financial Project Number 414641·1-68-01
PROJECT Construction Engineering and Inspection (CEI) services:
Total PROJECT Cost Estimate:
Page 8 of13
$1,365,000.00
+ $136,000.00
$1,501,000.00
Joint Participatiolf Agreemenr ~en/he Florida Department o/Transporratiolf tv' I the City of Miami Beach.
Fmancial Project N11171bers I# 4J.i641-I-58-01, and 414641-J-,jg-1)[
253
EXHIBIT "C"
RESOLUTION
To be herein incorporated once approved by the CITY Commission.
Page 9 ofl3
Joint Participation Agreement between the Florida DeJHJrtmenl o[Tl'ansportation a.1 i the City of Miami Beach.
Fi/IQncial ProJect Numben #4U641-J-S8-01, and 414641-1-~ 8-01
254
EXHIBIT"D"
AUDIT REPORTS
The administration of resources awarded by the Dc:partment to the:: CITY OF MIAMI BEP.GH may be subject to audits
and/or monitoring by the Department, as described in this section. For further guidance, s: e the Executive Office of
the Governor website, which can be found at: www .fssa.state.n.us .
MONITORING
In addition to reviews of audits conducted in accordance with OMB Circular A-133 and Sc:ction 215.97, F.S., as
revised (see "AUDITS" below), monitoring procedures may include, but not be limited to, on-site visits by
Department staff, limited scope audits~ defined by OMB Circular A-133, as revised, anc. 'or other procedures. By
entering into this agreement, the recipient agrees to comply and cooperate fully with any monitoring
procedures/processes deemed appropriate by the Department. In the event the Departmen1 determines that a limited
scope audit of the recipient is appropriate, the recipient agrees to comply with any additiotal instructions providc:d by
the Department staff to the CITY OF MIAMI BEACH regarding such audit The CITY 0 F MIAMI BEACH further
agrees to comply and cooperate with any inspections, reviews, investigations, or audits de•:med necessary by the Chief
Financial Officer (CFO) or Auditor General.
AUDITS
PART 1: FEDERALLY FUNDED
Recipients of federal funds (i.e. state, local government, or non-profit organizations as iefined in OMB Circular A·
133, as revised) are to have audits done annually using the following criteria:
1. In the event that the recipient expends $300,000 ($500,000 for fiscal years ending after December 31, 2003)
or more in Federal awards in its fiscal year, the recipient must have a single or program-specific audit
conducted in accordance with the provisions of OMB Circular A-133, as t•:vised. EXHIBIT 1 to this
agreement indicates Federal resources awarded through the Department by th:_; agreement. In determining
the Federal awards expended in its fiscal year, the recipient shall consider all sources of Federal awards,
including Federal resources received from the Department. The detennination of amounts of Federal awards
expended should be in accordance with the guidelines established by OMB Ci;·cular A-133, as revised. An
audit of the recipient conducted by the Auditor General in accordance with the provisions OMB Circular A-
133, as revised, will meet the requirements of this part.
2. In connection with the audit requirements addressed in Part I, paragraph 1., the recipient shall fulfill the
requirements relative to auditee responsibilities as provided in Subpart C of0M3 Circular A-133, as revised.
3. If the recipient expends less than $300,000 ($500,000 for fiscal years ending after December 31, 2003) in
Federal awards in its fiscal year, an audit conducted in accordance with the pr >visions of OMB Circu1ar A-
133, as revised. is not required. In the event that the recipient expends Less thar $300,000 ($:500,000 for fiscal
years ending after December 31, 2003) in Federal awards in its ftscal yea:: and elects to have an audit
conducted in accordance with the provisions ofOlltffi Circular A-133, as revise;~ the cost of the audit must be
paid from non-Federal resources {i.e., the cost of such an audit must be paid from recipient resources obtained
from other than Federal entities).
4. Federal awards are to be identified using the Catalog of Federal Domestic Assistance (CFDA) title and
number, award number and year, and name of the awarding federal agency.
Page 10 of 13
Joint Parrictparion Agreemenr between the Florida Department of Transportation OJI t 1he City of Miami Becch.
Fintlllcial Project Numbers# 4/4641-1-58-01. attd 4/4Ml-1-~ 8-01
255
PART II: STATE FUNDED
Recipients of state funds (i.e. a nonstate entity as defined by Section 215.97(2)(1}, Flori<~ 1 Statutes) are to have audits
done annually using the following criteria:
1. In the event that the recipient expends a total amount of state financial assistance equal to or in excess of
$300,000 ($500,000 for fiscal years ending on September 30, 2004, and thereafl:tr) in any fiScal year of such
recipient, the recipient must have a State single or project-specific audit for such :.seal year in accordance with
Section 215.97, Florida Statutes; applicable rules of the Executive Office of the Governor and the CFO; and
Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the
Auditor General. EXHIDIT 1 to this agreement indicates state financial assirtance awarded through the
Department by this agreement In determining the state financial assistance expended in its fiscal year, the
recipient shall consider all sources of state financial assistance, including state financial assistance received
from the Department, other state agencies, and other nonstate entities. State linancial assistance docs not
include Federal direct or pass-through awards and resources received by a nonst<. e entity for Federal program
matching requirements.
2. In connection with the audit requirements addressed in Part II, paragraph 1, the recipient shall ensure that the
audit complies with the requirements of Section 215.97(7), Florida Statutes. Tiis includes submission of a
financial reporting package as defined by Section 215.97(2)(d), Florida Statute!• and Chapters 10.550 (local
governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of· he Auditor General.
3. [f the recipient expends less than $300,000 in state financial assistance in its fi;~al year ($500,000 for fiscal
years ending on September 30, 2004, and thereafter), an audit conducted in acccJ dance with the provisions of
Section 215.97, Florida Statutes, is not required. In the event that the recipient expends less than $300,000
($500,000) in state financial assistance in its fiscal year and elects to have an attdit conducted in accordance
with the provisions of Section 215.97, Florida Statutes, the cost of the audit m-:st be paid from the nonstate
entity's resources (i.e., the cost of such an audit must be paid from the recipient's 1 esources obtained from other
than State entities).
4. State awards are to be identified using the Catalog of State Financial Assistaro:e (CSFA) title and number,
award number and year, and nam: of the state agency awarding it.
PART Ill: OTHER AUDIT REQUIREMENTS
The recipient shall follow up and take corrective action on audit findings. Prep<:·ation of a summary schedule
of prior year audit findings, including corrective action and current status of the audit findings is required.
Current year audit findings require corrective action and status of findings.
Records related to unresolved audit findings, appeals, or litigation shall be retaine•l. until the action is completed
or the dispute is resolved. Access to project records and audit work papers shaU be given to the FDOT, the
Comptroller, and the Auditor General. This section does not limit the authority of the Department to conduct or
arrange for the conduct of additional audits or evaluations of state financial assc; :ance or limit the authority of
any other state official.
Page 11 of 13
Joint Panicipation AgreemDZI between liz£ Florida Department ofTrllliSpOrtntion tv' I the City of Miami Beach.
FiJUJncial Proj~ct Numbers# -114641-l-58-01, aruUU641-1~!~-01
256
PART IV: REPORT SUBMISSION
l. Copies of reporting packages for audits conducted in accordance with OMB Cin:ular A-133, as revised, and
required by PART I of this agreement shall be submitted, when required by Secticn .320 (d), OMB Circular A-
133, as revised, by or on behalf of the recipient directly to each of the following:
A. The Department at each of the following addresses:
Florida Department of Transportation
1000 Northwest 111 Avenue
Miami, Florida 33172
B. The Federal Audit Clearinghouse designated in OMB Circular A-133, as r~vised (the number of copies
required by Sections .320 (d)(l) and (2), OMB Circular A-133, as revisecl, should be submitted to the
Federal Audit Clearinghouse), at the following address:
Federal Audit Clearinghouse
Bureau of the Census
1201 East 10111 Street
Jeffersonville, IN 47132
C. Other Federal agencies and pass-through entities in accordance with Se:tions .320 (e) and (f), OMB
Circular A-133, as revised.
2. In the event that a copy of the reporting package for an audit required by PI1RT I of this agreement and
conducted in accordance -with OMB Circular A-133, as revised, is not reqt:.:red to be submitted to the
Department for reasons pursuant to section .320 (cX2), OMB Circular A-133, JS revised, the recipient shall
submit the required written notification pursuant to Section .320 (e)(2} and a c:py of the recipient's audited
schedule of expenditures ofFederal awards directly to each of the following:
Florida Department of Transportation
1000 Northwest 111 Avenue
Miami, Florida 33172
In addition, pursuant to Section .320 (f), OMB Circular A-133, as revised, the recipient shall submit a copy of
the reporting package dcscn"bed in Section .320 (c), OMB Circular A-133, as r:vised, and any management
letters issued by the auditor, to the Department at each of the follo-wing addresses:
Florida Department of Transportation
1000 Northwest 111 Avenue
Miami, Florida 33172
3. Copies of financial reporting packages required by PART II of this agreemen: shall be submitted by or on
behalf of the recipient directly to each of the following:
A. The Department at each of the following addresses:
Florida Department of Transportation
1000 Northwest 111 Avenue
Miami, Florida 33172
B. The Auditor General's Office at the following address:
Page 12 of13
Joint Participation Agreement ~en the Florida Department ofTrQIISportation ar. l the City of Miami Beach.
FiiUlltcial Project Numbers# 4UMI-1-58-01, and 414641-1-·l'-01
257
Auditor General's Office
Room 401, Pepper Building
Ill West Madison Street
Tallahassee, Florida 32399-1450
4. Copies of reports or the manage~nt letter required by PART III of this agreement shall be submitted by or on
behalf of the recipient directly to:
A. The Department at each of the following addresses:
Florida Department of Transportation
1000 Northwest 111 Avenue
Miami, Florida 3 3172
5. Any reports, management letter, or other information required to be submitted t•• the Departtnent pursuant to
this agreement shall be submitted timely in accordance with OMB Circular .\.-133, Florida Statutes, and
Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the
Auditor General, as applicable.
6. Recipients, when submitting fmancial reporting packages to the Departtnent for al!dits done in accordance with
OMB Circular A-133 or Chapters 10.550 (local governmental entities) or 10.•)50 (nonprofit and for-profit
organizations), Rules of the Auditor General, should indicate the date that the ret: orting package was delivered
to the recipient in correspondence accompanying the reporting package.
PART V: RECORD RETENTION
1. The recipient shall retain sufficient records demonstrating its compliance with the terms of this agreement for a
period of at least five years from the date the audit report is issued, and shall allo>. the Department, or its
designee, the state CFO or Auditor General access to such records upon request. :"he recipient shall ensure that
the independent audit working papers are made available to the Department, or it: designee, the state CFO, or
Auditor General upon request for a period of at least five years from the date the ail.dit report is i.ssued, unless
extended in writing by the Department
Page 13 of 13
Joint Participation AgreemenJ between the Florida Depanment of Transp()TUltion •: ui the City of Miami Beach,
Financial Proje.ct Nlllftbus It 414641-1-58-01, and 414641-1·68..01
258
Florida Department of Transpol'tation
CHARLIE CRIST
GOVERNOR
November 6, 2007
Mr. Fernando Vazquez
District Contracts and Procurement
1000 Northwest 111'" Avenue, Room 6203
Miami. FL 33172
IMlem a request for sefVice is an opportunity to serve you 1
City of Miami Beach, Transportation Division
1700 Convention Center Drive
Miami Beach. Florida 33139
STEPHANIE C. KOPELOUSOS
SECRETARY
Re: Project#414641-1~1: SRA1A Roadway Improvements; JP.t\ Execution Notice
Dear Mr. Vazquez:
Endosed for the City of Miami Beach's (City's) records is one {1) original Joirl Participation Agreement {JPA) for
the referenced project This JPA was executed by the Florida Department of .. ransportation (Department) on
Wednesday, October 31, 2007. Another original JPA was mailed by separate cover to the City's Clerk's Office,
Attn: Ms. Kerry Hernandez.
Thank you on behalf of the Department for your assistance in expediting thE.! execution of this JPA If you have
any questions or concerns, please feel free to contact me at (305) 47Q-5404.
Sincerely,
J ;
·14-u-u·IL 9-J{u:Vt:T~
Kenneth Robertson
District Contracts and Procurement Manager
encl: One (1) original executed JPAAgreement
cc: Ana .Arvelo, P.E., FDOT Project Manager; File
www.dot.state . .fl.us
259
Attachment B
AGREEMENT BETWEEN
CITY OF MIAMI BEACH
AND
BERMELLO AJAMIL & e.A:BINEfiS, INC.
FOR
[IOV1-? 71 ~~
c 70-1/9/o1
· PROFESSIONAL CERTIFIED ENGINEER INSPECTION (CEI} SERVICES
PURSUANT TO REQUEST FOR QUALIFICATIONS (RFQ) NO. 03..08/09 ..
FOR THE FLORIDA DEPARTMENT OF TRANSPORTATION (FOOT)
WORK INCLUDED IN THE WATER MAINS AND SANITARY SEWER
MAINS, AND MILLING AND RESURFACING IMPROVEMENTS ALONG:
INDIAN CREEK DRIVE BETWEEN 26TH AND 41sT STREETS.
August 12, 2009
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INDIAN CREEK CEI AGREEMENT
TABLE OF CONTENTS
DESCRIPTION
ARTICLE 1 DEFINITIONS
1.1 City
1.2 City Commission
1.3 City Manager
1.4 Proposal Documents
1. 5 Consultant
1.6 City's Project Coordinator
1. 7 Basic Services
1. 8 The Project
1.8.1 The Project Cost
1.8.2 The Project Scope
1.9 Construction Cost
1.9.1 Construction Cost Budget
1.9.2 Statement of Probable Construction Cost
1.10 Force Majeure
1.11 Contract Documents
1.12 Contract Amendment
1.13 Services
1.14 Schedules
1. 15 Scope of Services
ARTICLE 2. CONSULTANT'S SERVICES
2. 1 Basic Services
2.2 Additional Services
2.3 Responsibility for Claims and Liabilities
2.4 Time
ARTICLE 3. THE CITY'S RESPONSIBILITIES
ARTICLE 4. ADDITIONAL SERVICES
ARTICLE 5. REIMBURSABLE EXPENSES
ARTICLE 6. COMPENSATION FOR SERVICES
ARTICLE 7. CONSULTANT'S ACCOUNTING RECORDS
ARTICLE 8. OWNERSHIP AND USE OF DOCUMENTS
ARTICLE 9. TERMINATION OF AGREEMENT
ARTICLE 10.1NSURANCE
ARTICLE 11.1NDEMNIFICATION
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INDIAN CREEK CEI AGREEMENT
ARTICLE 12.VENUE
ARTICLE 13.LIMITATION OF LIABILITY
ARTICLE 14. NOTICE
ARTICLE 15. MISCELLANEOUS PROVISIONS
ATIACHED SCHEDULES:
SCHEDULE "A" .,. SCOPE OF SERVICES
SCHEDULE "8" .,. CONSULTANT COMPENSATION
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INDIAN CREEK CEI AGREEMENT
TERMS AND CONDITIONS OF AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND
BERMELLO AJAMIL & PARTNERS, INC.
FOR
PROFESSIONAL CERTIFIED ENGINEER INSPECTION (CEI) SERVICES
PURSUANT TO REQUEST FOR QUALIFICATIONS (RFQ) NO. 03-08/09.
FOR THE FLORIDA DEPARTMENT OF TRANSPORTATION (FOOT) WORK
INCLUDED IN THE WATER MAINS AND SANITARY SEWER MAINS, AND MILLING
AND RESURFACING IMPROVEMENTS ALONG INDIAN CREEK DRIVE BETWEEN
26TH AND 41ST STREETS.
This Agreement made and entered into this 9 t {day of ~ f ~ 4, t 2009, by
and between the CITY OF MIAMI BEACH, a municipal corporation existing under the
laws of the State of Florida (hereinafter_ referred to as City), having its principal offices at
1700 Convention Center Drive, Miami Beach, Florida, 33139, and BERMELLO AJAMIL
& PARTNERS, INC., a Florida corporation, having its principal office at 2601 South
Bayshore Drive, Miami, Florida 33133 {hereinafter referred to as Consultant).
W I T N E S S E T H:
WHEREAS, the City intends to undertake a project within the City of Miami
Beach, which is more particularly described in this Agreement and the attached
Schedule .. A .. (Scope of Services), and wishes to engage the Consultant to provide
engineering inspection services, and related professional services for the Project at the
agreed fees as set forth in this Agreement; and
WHEREAS, the Consultant desires to contract with the City for performance of
architectural, master planning, and related professional services relative to the Project,
as hereinafter set forth.
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INDIAN CREEK CEI AGREEMENT
NOW THEREFORE, City and Consultant, in consideration of the mutual
covenants and agreements herein contained, agree as follows:
ARTICLE 1. DEFINITIONS
1.1 CITY: The "City" shall mean the City of Miami Beach, a Florida municipal
corporation having its principal offices at 1700 Convention Center Drive, Miami
Beach, Florida, 33139.
1.2 CITY COMMISSION: "City Commission" shall mean the governing and
legislative body of the City.
1.3 CITY MANAGER: The "City Manager'' shall mean the chief
administrative officer of the City. The City Manager shall be construed to include
any duly authorized designees (including the Project Coordinator), who shall
serve as the City's representative to whom administrative requests for approvals
shall be made and who shall issue authorizations to the Consultant; exclusive of
those authorizations reserved to the City Commission.
1.4 PROPOSAL DOCUMENTS: "Proposal Documents" shall mean Request
for Qualifications RFQ No. 03-08/09, For Professional Construction Engineering
and Inspection (CEI} Services of the Water Mains, Sanitary Sewer Mains, and
Milling and Resurfacing Improvements along Indian Creek between 26th and 41st
Streets. issued by the City in contemplation of this Agreement, together with all
amendments thereto, if any, and the Consultant's proposal in response thereto
(Proposal), which is incorporated by reference in this Agreement and made a
part hereof; provided, however, that in the event of an express conflict between
the Proposal Documents and this Agreement, this Agreement shall prevail.
1.5 CONSULTANT: The "Consultant" is herein defined as Bermello Ajamil
& Partners, Inc., a Florida corporation, having its principal office at 2601 South
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INDIAN CREEK CEI AGREEMENT
Bayshore Drive, Miami, Florida 33133. When the term "Consultant" is used in
this Agreement it shall be deemed to include any sub-Consultants and any other
person or entity acting under the direction or control of Consultant. Any sub-
Consultants retained by Consultant pursuant to this Agreement and the Project
shall be subject to the prior written approval of the City Manager.
1.6 PROJECT COORDINATOR: The "Project Coordinator" shall mean
the individual appointed by the City Manager who shall be the City's authorized
representative to coordinate, direct, and review on behalf of the City, all matters
related to the Project, except as otherwise provided herein.
1.7 BASIC SERVICES: "Basic Services" shall include those certain master
planning, architectural, landscape architectural, engineering and/or other related
professional services as required to complete the Project, as described in Article
2 herein and in Schedule "A" ("Scope of Services").
1.8 THE PROJECT: The "Project'' shall mean that certain City project
which has been approved by the City Commission, and as further described in
Schedule "A" ("Scope of Services").
1.8.1 THE PROJECT COST: The "Project Cosf', as shall be
established by the City, shall mean the total cost of the Project to the City
including: Construction Cost, professional compensation, land costs (if
any), financing costs, testing services, surveys, or other reimbursable
expenses.
1.8.2 THE PROJECT SCOPE: The "Project Scope" shall mean the
description of the Project contained in Schedule "A" ("Scope of Services").
1.9 CONSTRUCTION COST: The ,.Construction Cost" for the Project shall
mean the sum which is the total cost or estimated cost to the City of all elements
of the Project, (as specified by the Consultant and approved by the City)
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INDIAN CREEK CEI AGREEMENT
including, at current market rates (with a reasonable allowance for overhead and
profit), the cost of labor, materials and any equipment which has been designed,
specified, selected or specifically provided for the Project, and including a
contingency allowance for unforeseen conditions, not to exceed ten percent
(1 0%) of the construction cost for new construction, or twenty percent (20%) of
the construction cost for rehabilitation of historic buildings, and not including the
compensation of the Consultant and any sub-Consultants, the cost of land,
surveys, testing, or other reimbursable expenses.
1.9. 1 CONSTRUCTION COST BUDGET: The "Construction Cost
Budget" shall mean an amount budgeted by the City for Construction
Cost, of the Project.
1.9.2 STATEMENT OF PROBABLE CONSTRUCTION COST: The
"Statement of Probable Construction Cost" shall mean a forecast of
Construction Cost for the Project prepared by the Consultant for the
guidance of the City. The City shall have the right to verify the Statement
of Probable Construction Cost.
1.1 0 FORCE MAJEURE: "Force Majeure" shall mean any delay occasioned
by superior or irresistible force occasioned by violence in nature without the
interference of human agency such as hurricanes, tornadoes, floods, loss caused
by fire and other similar unavoidable casualties; or by changes in Federal, State
or local laws, ordinances, codes or regulations enacted after the date of this
Agreement and having a substantial impact on the Project; other causes beyond
the parties' control; or by any other such causes which the Consultant and the
City decide in writing justify the delay; provided, however, that market conditions,
labor conditions, construction industry price trends, and similar matters which
normally impact on the construction process shall not be considered a Force
Majeure.
1.11 CONTRACT DOCUMENTS: .. Contract Documents.. shall mean this
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INDIAN CREEK CEI AGREEMENT
Agreement, any schedules or exhibits attached and incorporated hereto; and any
other documents as may be incorporated by reference hereto.
1.12 CONTRACT AMENDMENT: "Contract Amendment" shall mean a written
amendment to this Agreement, signed by both parties and including, without
limitation, an order to the Consultant (approved by the City and signed by the
City's duly authorized representative) authorizing a change in the Project, or the
method and manner of performance thereof, or an adjustment in the fees and/or
completion dates, as applicable. Contract Amendments shall be approved by the
City Commission, if they exceed twenty-five thousand dollars ($25,000.00) or the
City Manager if they are twenty-five thousand dollars ($25,000.00) or less in
amount (or other such amount as may be specified by the City of Miami Beach
Procurement Ordinance, as amended). Even for Contract Amendments for less
than twenty-five thousand ($25,000.00), the City Manager shall retain the right to
seek and obtain concurrence of the City Commission for the approval of any
such Contract Amendment.
1.13 SERVICES: The "Services" shall mean all services (including Basic
Services and Additional Services, as approved by the City) to be performed on
the Project by the Consultant pursuant to this Agreement, whether completed or
partially completed, and includes labor and materials, equipment, and such other
services provided (or to be provided) by Consultant, as required to fulfill its
obligations herein.
1.14 SCHEDULES: "Schedules" shall mean the various schedules attached to
this Agreement and referred to as follows:
Schedule A-Scope of Services.
Schedule B -Consultant Compensation: The schedule of compensation
to the Consultant for Basic Services and Additional Services (as approved
by the City), and for Reimbursable Expenses (as defined).
Schedule C -Hourly Billing Rate Schedule: The schedule of hourly
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INDIAN CREEK CEI AGREEMENT
compensation rates to the Consultant (as submitted by the Consultant and
approved by the City).
Schedule D -Project Schedule.
1.15 SCOPE OF SERVICES: "Scope of Services" shall mean the Project scope
as described in Schedule "A" ("Scope of Services"), which includes Basic
Services and any Additional Services (as approved by the City).
ARTICLE 2. CONSULTANT'S SERVICES
The Consultant shall provide Services for the Project as required by the Contract
Documents and as set forth in Schedule "A" (Scope of Services). The Services
for the Project will be commenced by Consultant upon receipt of a written Notice
to Proceed issued by the City Manager, and countersigned by Consultant.
A separate Notice to Proceed shall be required for commencement of each Task
(as delineated in Schedule "A" "Scope of Services").
The Consultant shall be responsible for coordinating with sub-Consultants and
other Consultants. Consultant shall conform to all applicable building codes and
regulations. Consultant, as it relates to its Services, represents and warrants to
the City that it is knowledgeable of codes, rules and regulations applicable in the
jurisdictions in which the Project is located, including, without limitation, local
ordinances and codes (City of Miami Beach and Miami-Dade County), Florida
Statutes, administrative rules and regulations, and Federal laws, rules and
regulations. The Consultant agrees to comply with all such laws, codes,
rules, and regulations, whether now in effect, or as may be amended or adopted .
at any time, and shall further take into account all known pending changes to the
foregoing, of which it should be reasonably aware.
The Consultant represents and warrants that all of its duties, services and
responsibilities under this Agreement shall be performed in accordance with the
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INDIAN CREEK CEI AGREEMENT
standard of care normally exercised in the design of projects of this nature in
South Florida. In addition, Consultant represents and warrants that it is
experienced and fully qualified to perform the Services contemplated by this
Agreement, and that it is properly licensed pursuant to the applicable laws, rules
and regulations to perform such Services. Consultant represents and warrants
that it is responsible for the technical accuracy of its Contract Documents.
2.1 BASIC SERVICES:
Consultant shall perform the Basic Services as required in Schedule "A" ("Scope
of Services").
2.2 ADDITIONAL SERVICES:
Consultant shall provide those Additional Services as required in Schedule "A"
("Scope of Services").
2.3 RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Approval by the City
shall not constitute nor be deemed a release of the responsibility and liability of
the Consultant, or any of its officers, directors, employees, contractors,
Consultants, agents and servants, for the accuracy and competency of their
designs, working drawings, specifications, or other documents and services; nor
shall such approval be deemed to be an assumption of such responsibility by the
City for a defect, error or omission in such designs, working drawings,
specifications or other documents and services; 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.
2.4 TIME: It is understood that time is of the essence in the completion of the
Services, and in this respect the parties agree as follows:
2.4.1 The Consultant shall perform the Services as expeditiously as is consistent
with the standard of professional skill and care required by this Agreement and
the orderly progress of the work.
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INDIAN CREEK CEI AGREEMENT
2.4.2 The parties agree that the Services will be performed in a manner that shall
conform with the approved Project Schedule, which is attached as Schedule "D"
hereto.
In the event Consultant is unable to timely complete the Services because of
delays resulting from untimely review by the City or other governmental
authorities having jurisdiction over the Project, or such other delays which are
caused by factors outside the reasonable control of Consultant. Consultant shall
immediately provide the Project Coordinator with written notice stating the reason
for such delay, 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 for the particular service/work involved (and the
City may also provide reasonable compensation, if deemed appropriate) and an
adjustment to the Project Schedule will be made.
2.4.3 In providing the Services, the Consultant shall use its best efforts to
maintain a constructive, professional, cooperative working relationship with the
Project Coordinator and any of all firms and/or individuals that have been
contracted or otherwise retained to perform services and J or work pertaining to
the Project.
2.4.4 The Consultant shall perform its duties 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.
2.4.5 Whenever others are required to verify, review, or consider any work
performed by Consultant including, without limitation, contractors and/or other
design professionals or Consultants retained by the City, the intent of such
requirement is to enable the Consultant to receive input from others' professional
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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, codes, ordinances, and regulations;
or which are inconsistent with standards or decisions provided by the Project
Coordinator. Consultant will use reasonable care and skill, in accordance and
consistent with customary professional standards, in responding to items
identified as discrepancies, errors and omissions by others. Consultant shall
receive comments from reviewers in writing including, without limitation, via a set
of marked~up drawings and specifications. Consultant shall address comments
forwarded to it in a timely manner. The term "timely" shall be construed to mean
as soon as possible and taking into account the requirements of the Project
Schedule.
2.4.6. 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
own expense) any or all of the services and/or work performed by Consultant in
connection with the Services, and the Consultant shall fully cooperate in such
review.
2.4.7 Consultant agrees to certify and warrant to the City all estimates of
Construction Cost prepared by Consultant.
2.4.8 Consultant represents and warrants to the City that its review and
evaluation of the Project budget, Statement of Probable Construction Cost, and
any other cost estimates for the Project, represents 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 estimate of Construction Cost or other
cost evaluation prepared by Consultant.
2.4.9 Consultant agrees that when any portion of the Services relates to a
professional service which, under Florida law, requires a license, certification of
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INDIAN CREEK CEI AGREEMENT
authorization, or other form of legal entitlement to practice such Service(s), it
shall employ and/or retain only qualified, duly licensed and/or certified personnel
to provide same.
2.4.1 0 Consultant agrees to designate, in writing, within five (5) calendar days
after receiving the first Notice to Proceed, a qualified licensed professional to
serve as the Consultant's project manager (herein after referred to as the
"Project Manager"). The Project Manager shall be authorized and responsible to
act on behalf of Consultant with respect to directing, coordinating and
administrating all aspects of the Services. The person selected by Consultant to
serve as its Project Manager shall be subject to the prior written approval of the
City Manager. Replacement (including re-assignment) of the approved Project
Manager shall not be made without the prior written approval of the City
Manager.
2.4.11 Consultant agrees, within fourteen (14) calendar days from receipt of
written notice from the City Manager stating the cause therefore, to promptly
remove and replace a Project Manager, or any other personnel employed or
retained by Consultant on the Project (including without limitation, any sub-
Consultant or subcontractors).
2.4.12 Consultant hereby represents and warrants to the City that it has expertise
in the type of professional services required to perform the Services. Consultant
agrees that all Services shall be subject to the City's review and approval, and
shall be in accordance with the generally accepted standards of professional
practice in the State of Florida, as well as in accordance with applicable laws,
statutes, ordinances, codes, rules, regulations, and any other requirements of
governmental agencies having jurisdiction over the Project (or the Services). In
the event of any conflict in these requirements, Consultant shall notify City's
Project Coordinator of such conflict and utilize its best professional judgment to
advise the City regarding resolution of each such conflict.
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INDIAN CREEK CEI AGREEMENT
2.4.13 Consultant agrees not to divulge, furnish or otherwise make available to
any third party(ies) any non-public information concerning the Services or the
Project without the City Manager's prior written consent, unless such disclosure
is incident to the proper performance of Consultant's obligations hereunder; or
the disclosure is required pursuant to Florida Public Records law; or in the course
of judicial proceedings, where such information has been properly subpoenaed.
Consultant shall also require its sub-Consultants and subcontractors to comply
with the provisions of this subsection.
2.4.14 The City and Consultant acknowledge that the Services (as set forth in
Schedule A, "Scope of Services") may not delineate every detail and minor work
task required to be performed by Consultant to complete the Project. If, during
the course of performance of the Services, Consultant determines that work
should be performed to complete the Project which is, in Consultant's opinion,
outside the level of effort originally anticipated in the Scope of Services,
Consultant shall notify the Project Coordinator, in writing, in a timely manner, and
obtain the Project Coordinator's written consent before proceeding with such
work. If Consultant proceeds with any such additional work without notifying and
obtaining the written consent of the Project Coordinator, said work shall be
deemed to be within the original level of effort and deemed included as a Basic
Service (whether or not specifically addressed in the Scope of Services). Notice
by Consultant to the Project Coordinator (in and of itself) shall not constitute
authorization or approval by the City to perform the work. Performance of any
such work by Consultant without the prior written consent of the Project
Coordinator shall be at Consultant's sole risk.
2.4.15 Consultant shall establish, maintain and categorize any and all documents
related to the Project and the Services in accordance with the City Capital
Improvement Projects (CIP) Department's filing system, and shall provide CIP
with copies of correspondence and other doquments, as required by the City to
properly track the progress of the work and any issues related to the Project and
the Services. In addition, Consultant shall provide electronic document files to
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CIP upon completion of the Services.
2.4.16 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 law.
ARTICLE 3. THE CITY'S RESPONSIBILITIES
3.1 The City Manager shall designate a Project Coordinator, in writing, who
shall act as the City's representative with respect to the Services and the Project.
The Project Coordinator shall have authority to transmit instructions, receive
information, and interpret and define City policies and decisions with respect to
the Services. However, the Project Coordinator is not authorized to issue any
verbal or written orders or instructions to Consultant that would have the effect,
(or be interpreted as having the effect) of modifying or changing, in any way
whatsoever, unless approved by the City Manager or the City Commission (in
accordance with Article 1.12), the following:
a) the Scope of Services;
b) the time within which the Consultant is obligated to commence and
complete the Services; or
c) the amount of compensation the City is obligated or committed to pay
Consultant.
3.2 The City shall assist Consultant by placing, at Consultant's disposal, all
information the City has available pertinent to the Project. Consultant hereby
agrees and acknowledges that, in making such information available to the
Consultant, the City makes no express or implied certification, representation, or
warranty, as to the accuracy or completeness of any such information (including,
without limitation, any information provided in the Proposal and backup
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documentation thereto). Any conclusions or assumptions drawn by Consultant
following review of the City's information shall be the sole responsibility of the
Consultant, and subject to whatever measures Consultant deems necessary, in
accordance with its sole professional judgment, to verify the accuracy or
completeness of same. If Consultant deems that it is necessary to undertake
additional work due to inaccurate, incomplete or incorrect information supplied by
the City, Consultant shall notify the Project Coordinator, in writing, in a timely
manner, and obtain the Project Coordinator's written consent before proceeding
with such work. tf Consultant proceeds with without obtaining the consent of the
Project Coordinator, said work shall be deemed to be within the original level of
effort and deemed included as a Basic Service.
3.3 The City has established the Construction Cost Budget for the Project, as
set forth in Schedule "A."
3.4 In the City's sole discretion, the City may furnish legal, accounting and
insurance counseling services for the Project at any time including, without
limitation, auditing services the City may requrre to verify Conl?ultant's
applications for payment, or to ascertain that Consultant has properly remitted
payments due to its subcontractor or vendors.
3.5 If the City observes or otherwise becomes aware of any fault or defect in
the Services, or non-conformance with the Contract Documents, the City shall
give prompt written notice thereof to the Consultant.
3.6 The City shall furnish required information and render approvals and
decisions, in writing, as reasonably expeditious as necessary for the orderly
progress of the Services. No approvals required by the City shall be
unreasonably delayed or withheld; provided that the City shall at all times have
the right to approve or reject any proposed submisslpns of Consultant· for any
reasonable basis.
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3. 7 The City Commission shall be the final authority to do or to approve the
following actions or conduct by passage of an enabling resolution or amendment
to this Agreement.
3.7.1 The City Commission shall be the body to consider, comment upon,
or approve any amendments or modifications to the Agreement,: except
' when expressly noted otherwise. (i.e., where delegated to the City
Manager or the Project Coordinator)
3.7.2 The City Commission shall be the body to consider, comment upon,
or approve any assignment, sale, transfer or subletting of this Agreement
or any interest therein. Assignment and transfer shall be defined to include
sale of the majority of the stock of a corporate Consultant.
3.7.3 The City Commission shall hear appeals from the administrative
decision of the City Manager upon the Consultant's written request. In
such cases, the Commission's decision shall be final.
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 The City Manager shall serve as the City's representative to whom
administrative requests for approvals shall be made and who shall issue
authorizations to the Consultant (exclusive of those authorizations reserved to
the City Commission and the Project Coordinator). 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, and prior review and approval of any
subcontractors or sub-Consultants.
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3.8.1 The City Manager shall decide, in his professional discretion,
matters arising pursuant to this Agreement which are not otherwise
expressly provided for in this Agreement, and shall attempt to render
administrative decisions promptly to avoid unreasonable delay in the
progress of the Services. The City Manager, in his discretion, may consult
with the City Commission concerning disputes or matters arising under
this Agreement regardless of whether such matters or disputes are
enumerated herein.
3.8.2 The City Manager shall be authorized, but not required, at the
request of the Consultant, to reallocate monies already budgeted to
payment of the Consultant; provided, however, that the Consultant's
compensation or other budgets established by this Agreement cannot be
increased.
3.8.3 The City Manager shall be the sole representative of the City
authorized to issue the first Notice to Proceed (as referenced in Article 2);
provided, however, that subsequent Notices to Proceed may be issued by
the Project Coordinator.
3.8.4 The City Manager may approve Contract Amendments which do
not exceed the sum of twenty five thousand dollars ($25,000.00) (or other
such amount as may be specified by the City of Miami Beach Purchasing
Ordinance, as amended) and which do not increase any of the budgets
established herein.
3.8.5 The City Manager may, in his sole discretion, form a committee or
committees, or inquire of or consult with persons for the purpose of
receiving advice and recommendations relating to the exercise of his
powers, duties and responsibilities under this Agreement.
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ARTICLE 4. ADDITIONAL SERVICES
4. 1 Additional Services will only be performed by the Consultant following
receipt of written authorization by the Project Coordinator (which authorization
must be obtained prior to commencement of any such services or work by
Consultant). Such authorization shall contain a description of the Additional
Services required; an hourly fee (as provided in Schedule "C'') and/or lump sum,
(including a "not to exceed" amount on additional Reimbursable Expenses [if
any]) the amended Construction Cost Budget (if applicable); and an amended
time of completion date for the Services (if applicable). "Not to exceed" shall
mean the maximum cumulative fee allowable, which the Consultant shall not
exceed without further written authorization from the Project Coordinator. The
"Not to exceed" amount is not a guaranteed maximum cost for the serVices or
work requested and all costs applicable to same shall be verifiable through time
sheet and reimbursable expense reviews.
4.2 Additional Services may consist of the following:
4.2.1 Providing additional work or services 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, inadvertence or omission of the Consultant).
4.2.2 Serving as an expert witness in connection with any public hearing,
arbitration proceeding or legal proceeding, unless such preparation has
arisen from the failure of the Consultant to meet the standard of care
required in the Contracts Documents.
4.2.3 Preparing documents for change orders or supplemental work
initiated at the City's request.
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ARTICLE 5. REIMBURSABLE EXPENSES
5.1 Reimbursable Expenses shall include actual expenditures made' by the
Consultant for the Services. All Reimbursable Expenses, in excess of $500, must
be authorized in advance, in writing, by the Project Coordinator. Invoices for
Reimbursable Expenses shall be submitted by Consultant to the Project
Coordinator (along with supporting receipts, and any other back-up r:naterial
reasonably requested by the City). Consultant shall certify as to eaQh such
invoice that the amounts and items claimed as reimbursable are "true and, correct
and in accordance with the Agreement."
5.2 Reimbursable Expenses may include the following:
5.2.1 The cost of testing or investigation for underground utilities.
5.2.2 Expenses for reproduction, postage and handling of drawings,
specifications, and other documents (excluding reproductions for the
office use of the Consultant and courier and postage costs between the
Consultant and its sub-Consultants).
5.2.3 Expenses for preparation of special graphics for community
workshops.
5.2.4 Permit fees for all necessary City of Miami Beach regulatory bodies
having jurisdiction over the Project (in the event that same are not
waived, or cannot be waived, by the City).
ARTICLE 6. COMPENSATION FOR SERVICES
6.1 This Agreement is a Lump Sum Agreement. The Consultant shall be
compensated at the not to exceed fee, as listed in Schedule "8", attached hereto,
and which (for invoicing and tracking purposes), is based on the "Hourly Rate
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Schedule" in Schedule "C". Payment 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 shall not 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
services.
6.2 Additional Services (as approved by the City) will be compensated using
the hourly rates in Schedule "C". Requests for payment of Additional Services
shall be included with the monthly payment request in Article 6.1. No mark-up
shall be allowed on subcontracted Additional Services.
6.3 Reimbursable Expenses (as approved by the City) will be paid up to the
"not to exceed" amount in Schedule "B". Requests for payment of Reimbursable
Expenses shall be included with the monthly payment request in Article 6.1. No
mark-up shall be allowed on Reimbursable Expenses.
6.4 The City and the Consultant agree that:
6.4.1 If the Scope of Work is substantially and materially changed, and
following written request from Consultant to the Project Coordinator, and
subject further to the prior written approval of the City, the amount of
compensation may be equitably adjusted by mutual agreement of the
parties.
6.4.2 Upon written request by Consultant to the Project Coordinator, and
subject further to the prior written approval of the City Manager, the Hourly
Billing Rate Schedule in Schedule "C" may be adjusted (but no more than
annually) based upon the Miami-Fort Lauderdale Consumer Price Index
issued by the U.S. Department of Labor, Bureau of Labor Statistics. Such
adjustment shall be calculated by multiplying the ratio of the April index
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divided by the previous year's index by the Hourly Rate Schedule to define
the new Hourly Rate Schedule. The maximum increase will be limited to
three percent (3%).
6.5 No retainage shall be made from the Consultant's compensation on
account of sums withheld (if any) from payments to the City's general contractor
for the Project.
6.6 Method of Billing and Payment. Consultant shall submit billings in a timely
manner, on a monthly basis. These billings shall identify the portion of the
Service(s) completed (and the nature of the work/services performed); the total
hours of work/services performed by employee category and the respective
hourly billing rate associated with the employee category; and in the event the
work/services of any subcontractor is accomplished, the percentage shall be
identified. Billings shall also itemize and summarize Reimbursable Expenses.
Where written approval of the Project Coordinator is required for Reimbursable
Expenses, a copy of said approval shall accompany the billing for such
reimbursable.
If requested, Consultant shall provide back~up for past and current invoices that
records hours for all Services (by employee category) and Reimbursable
Expenses (by category).
6. 7 The City shall pay Consultant within forty-five (45) calendar days of receipt
and approval of an acceptable invoice by the Project Coordinator.
6.8 Final payment to Consultant (upon completion of the Services) shall be
approved by the City Manager.
ARTICLE 7. CONSULTANT•s ACCOUNTING RECORDS
7. Consultant shall keep complete financial records and accounts (and
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require any and all subcontractors to keep such records and accounts) as may
be required in order to record complete and correct entries as to personnel hours
charged to the Services and any expenses for which Consultant expects to be
reimbursed. All books and records relative to the Services will be available
during customary business hours for examination and audit by the City and shall
be kept for a period of three (3) years after completion of the Services.
Incomplete or incorrect entries in such books and records will be grounds for the
City's disallowance of any fees or expenses based upon such entries.
ARTICLE 8. OWNERSHIP AND USE OF DOCUMENTS
8.1 Electronic files of all documents including, without limitation, tracings,
drawings, specifications, estimates, investigations, and studies (whether
completed or partially completed) are intended to and shall become the property
of the City upon completion of the Services, or upon termination or other
expiration of this Agreement. Consultant shall deliver all documents to the City
within thirty (30) days of completion of the Services (or within thirty (30) days
from termination or expiration of this Agreement).
8.2 Any re-use of documents by the City without written verification or adaptation
by Consultant for the specific purpose intended will be without liability to
Consultant.
ARTICLE 9. TERMINATION OF AGREEMENT
9.1 Termination For Lack Of Funds. The City is a governmental entity and is
subject to the appropriation of funds by its legislative body in an amount sufficient
to allow continuation of its performance in accordance with the terms and
conditions of this Agreement. In the event there is a lack of adequate funding for
the Services (or the Project), the City may cancel this Agreement without further
liability to the City.
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9.2 Termination For Cause. The City may terminate this Agreement for cause
upon written notice to Consultant, in the event that the Consultant (1) violates
any provisions of this Agreement or performs same in bad faith; or (2)
unreasonably delays the performance of the Services or does not perform the
Services in a timely and satisfactory manner. In the case of termination by the
City for cause, the Consultant shall be first granted a thirty (30) day cure period
(commencing upon receipt of written notice from the City).
9.2.1 In the event this Agreement is terminated for cause, the City, at its
sole option and discretion, 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 costs 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.
9.2.2 In the event of a termination for cause, the City shall only be
required to make payment to Consultant for Services satisfactorily
performed and accepted by the City prior to receipt of the City's notice of
termination. The City shall have no further liability for compensation,
expenses, or fees to the Consultant.
9.2.3 Upon receipt of the written notice of termination, and as a condition
to any payment pursuant to subsection 9.2.2, Consultant shall promptly
assemble and submit to the Project Coordinator any and all Project
documents (including drawings, calculations, specifications,
correspondence, and all other relevant materials effected). No additional
payment shall be made for assembly and submittal of documents.
9.3 Termination For Convenience. In addition to the rights and options to
terminate for cause, the City may terminate this Agreement for convenience and
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INDIAN CREEK CEI AGREEMENT
without cause upon written notice to Consultant at least fourteen (14) days prior
to the effective date of termination. In the event the City terminates the
Agreement for convenience, Consultant shall be compensated for all Services
satisfactorily performed up to the time of receipt of the City's written termination
notice, and for the assembly and submittal (to the City) of documents in
subsection 9.2.3. The City shall have no further liability for compensation,
expenses or fees to the Consultant.
9.4 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 for the Services. In that event, the City shall pay
Consultant for all Services satisfactorily performed by the Consultant and
accepted by the City prior to receipt of the notice of termination. Prior to
termination by Consultant for cause, the City shall be granted a thirty (30) day
cure period after receipt of written notice from the Consultant.
9.4.1 The Consultant shall have no right to terminate this Agreement for
convenience.
9.5 Implementation Of Termination. In the event of termination, either for
cause or for convenience, the Consultant, upon receipt of the notice of
termination, shall: (1) stop the performance of Services (as of the date specified
in the notice of termination); (2) place no further orders or issue any other
subcontracts, except for those that may have already been authorized, in writing,
by the Project Coordinator; (3) terminate all existing orders and subcontracts
and; (4} promptly assemble and submit all documents and other related materials
related to the Services.
ARTICLE 10 INSURANCE
10.1 At all times throughout performance of the Services, the Consultant shaJJ
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keep the following insurance coverage in full force and effect. The Consultant
shall not commence any work until satisfactory proof of the following insurance
coverage has been furnished to the City's Risk Manager:
(a) Professional Liability Insurance, in the amount of one million
($1 ,000,000.00) dollars, per occurrence, with a maximum deductible of
$150,000 per occurrence, $450,000 aggregate. Consultant shall notify City
in writing within thirty (30) days of any claims filed or made against the
Professional Liability Insurance policy.
(b) Comprehensive General Liability Insurance, in the amount of
$1,000,000.00 Single Limit Bodily Injury and Property Damage coverage,
for each occurrence, which will 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, as
required pursuant to Florida law.
10.2 Consultant must give 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.
10.3 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.
10.4 Consultant shall provide to the City's Risk Manager, a certificate of
insurance (or copy) of all required insurance policies. The City reserves the right
to require a certified copy of such policies upon request.
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ARTICLE 11. INDEMNIFICATION
In consideration of the sum of $10.00, and other good and valuable
consideration, the receipt thereof which is hereby acknowledged, Consultant
agrees to indemnify and hold harmless the City, and its officers, employees,
contractors, and agents, from any liabilities, damages, loss, and costs, including,
but not limited to, reasonable attorneys' fees, to the extent caused by the
negligent acts, errors or omissions, recklessness, or intentionally wrongful
conduct of the Consultant, or its officers, directors, employees, contractors,
agents and servants, in the performance of the Services. This Article 11, and
Consultant's indemnification, shall survive the tennination or other expiration of
the Agreement.
ARTICLE 12. 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, if in federal court. BY ENTERING
INTO THIS AGREEMENT, CONSULTANT AND CITY EXPRESSLY WAIVE ANY
RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
ARTICLE 13. LIMITATION OF LIABILITY
13.1 The City desires to enter into this Agreement only if in so doing the City can
place a limit on the 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 total amount of the fees paid to Consultant for
the Services (as agreed under the Agreement), less any amount(s) paid to
Consultant thereunder. Consultant hereby expresses its willingness to enter into
this Agreement with Consultant's recovery from the City for any damage action
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for breach of contract to be limited to a total amount of the fees for Services
(agreed upon under the Agreement), less the amount of any fee(s) actually paid
by the City to the Consultant.
Accordingly, and notwithstanding any other term or condition of this Agreement,
Consultant hereby agrees that the City shall not be liable to Consultant for money
damages due to an alleged breach by the City of this Agreement, in an amount in
excess of the total amount of fees under this Agreement, which amount shall be
reduced by the amount actually paid by the City to Consultant, for any action or
claim for breach of contract arising out of the performance or non-performance of
any obligations imposed upon the City by this Agreement. Nothing contained in
this subparagraph or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon City1S liability as set forth in Section 768.28,
Florida Statutes.
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INDIAN CREEK CEI AGREEMENT
ARTICLE 14. NOTICE
14. All written notices given to City by Consultant shall be addressed to:
City Manager's Office
clo Assistant City Manager Tim Hemstreet
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With a copy to:
Fernando Vazquez
City Engineer
Public Works Department
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
All written notices given to the Consultant from the City shall be addressed to:
Bermello Ajamil & Partners, Inc.
2601 South Bayshore Drive
Miami, Florida 33133
Attn: Gus Quesada
All notices mailed to either party shall be deemed to be sufficiently transmitted if
sent by certified mail, return receipt requested.
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ARTICLE 15. MISCELLANEOUS PROVISIONS
15.1 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, religion, sex, age, national origin,
disability or sexual orientation and will take affirmative steps to ensure that
applicants are employed and employees are treated during employment without
regard to sexual orientation, race, color, religion, sex, age, national origin, or
disability.
15.2 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 submit bids for the sale or
lease of real property to the City, may not be awarded or perform work as a
contractor, supplier, subcontractor, or sub-Consultant under a contract with the
City, and may not transact business with the City in excess of the threshold
amount provided in Section 287.017, Florida Statutes, for Category Two for a
period of 36 months from the date of being placed on the convicted vendor list.
Violation of this subsection by Consultant shall result in termination of the
Agreement, without any liability to the City, and may result in Consultant's
debarment.
15.3 No Contingent Fee: Consultant warrants to City that it has not employed or
retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement and that it has not paid or
agreed to pay any person, company, corporation, individual or firm, other than a
bona fide employee working solely for Consultant, any fee, commission,
percentage, gift, or other consideration contingent upon or resulting from the
award or making of this Agreement. For the breach or violation of this provision,
City shall have the right to terminate the Agreement, without liability, or, at its
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INDIAN CREEK CEI AGREEMENT
discretion, to deduct from the contract price (or otherwise recover) the full
amount of such fee, commission, percentage, gift, or consideration.
15.4 The Consultant represents that it has made and will make reasonable
investigation of all sub-Consultants to be utilized in the performance of work or
services under the Agreement to determine that they possess the requisite skill,
knowledge and experience necessary to enable them to perform the Services (or
portion thereof) required. Notwithstanding the preceding, or any other term or
condition in this Agreement, Consultant shall not be relieved of primary and sole
responsibility for the timely and satisfactory performance of the Services.
15.5 The Consultant shall comply with all applicable federal, State, and County
laws; the City of Miami Beach Charter and related laws and the Code of the City
of the Miami Beach; as well as and with all applicable rules and regulations
promulgated by local, State and national boards, bureaus and agencies, as they
relate to the Project or the performance of the Services.
15.6 This Agreement, or any i~terest herein, shall not be assigned, transferred
or otherwise encumbered by Consultant, under any circumstances, without the
prior written consent of the City.
15.7 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 contained in a written document executed with the same
formality and of equal dignity herewith.
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INDIAN CREEK CEI AGREEMENT
IN wrTNESS 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.
At!~ . CITY OF MIAMI BEACH _
CVJA6 ~~. ~f/ ~
CITY CLERK MAYOR
Date
Attest
Print Name
Date
CONSULTANT
BERMELL AJAMIL & PARTNERS, INC.
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President
Print Name
APPROVED AS TO
FORM & LANGUAGE
.--..:-FOR EXECUTION
INDIAN CREEK CEI AGREEMENT
SCHEDULE A
PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH
AND BERMELLO AJAMIL & PARTNERS, INC.
SCOPE OF SERVICES
FOR THE FLORIDA DEPARTMENT OF TRANSPORTATION (FOOT) WORK
INCLUDED IN THE WATER MAINS AND SANITARY SEWER MAINS, AND MILLING
AND RESURFACING IMPROVEMENTS ALONG INDIAN CREEK DRfVE BETWEEN
26TH AND 41sT STREETS.
The project scope of work includes construction administration services required for the
development of the water mains, sanitary sewer mains and milling and resurfacing
improvements along Indian Creek Drive between 261h and 41st Streets. Milling and
resurfacing is approximately 20,494 square yards of road, 1,213 square yards of
sidewalk, 412.5 linear feet of guardrail; the introduction of bulbs-outs and trench drains
to facilitate construction of pedestrian ramps complying with ADA standards, the
upgrade of existing pedestrian features at intersections with count-down pedestrian
signal heads; the upgrade of existing signing and pavement markings; furnishing and
installing. precast concrete manholes with frames and covers, and traffic control. The
length of the services shown in the cost proposal is seven months.
The Consultant will be responsible for management, oversight, administration and
quality assurance with respect to all construction, engineering and inspection services,
as defined in the Scope of Services and this Agreement. The Consultant shall utilize
effective control procedures to assure that the Project General Contractor's (thereinafter
the Contractor) Quality Control (QC) plan is effectively and accurately implemented, and
that the construction of the Project is in conformity with the Plans, Specifications and
Contract Provisions.
The Consultant shall monitor construction progress, provide engineering inspection
throughout the Project, review, monitor and approve payment requisitions by the
contractor(s), provide progress reports and status on the Project, attend and address
meetings with City officials, Boards and Neighborhood Groups, approve Requests for
Change Orders, maintain files of all documentation and correspondence in an orderly
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INDIAN CREEK CEI AGREEMENT
system to be submitted to the City upon completion of the Project. The Consultant shall
maintain close coordination with the City and the Contractor in order to minimize
rescheduling of Consultants' activities due to construction delays or changes in
scheduling of the contractor's activities.
The Consultant shall perform the following activities related to the construction
administration of the Project. These activities shall be performed for the duration of the
construction of the Project.
Project Start-up:
1. Pre-Services Meeting -The Consultant shall schedule a kick-off
meeting with all key City and Consultant Project personnel within ten
(1 0) days after NTP to complete introductions and discuss critical
aspects of the job.
2. Pre-QC Meeting -The Consultant will conduct a Contractor Quality
Control (QC) pre-construction meeting with representatives from the
City's CIP, the Verification Testing laboratory and the Contractor's
Quality Control team to review QC specifications, outline testing
procedures, establish operational procedures, exchange all contact
information and resolve any questions. Consultant shall provide a
detailed method for recording test results for easy reporting and
analysis. The Contractor will be encouraged to utilize Consultant's
system of test results recording and reporting. All test data will be
input into Consultant's system for ease of communication to the City.
3. Pre-Construction Meeting -The Pre-Construction Meeting will be
conducted in full accordance with FOOT CPAM guidelines. During this
meeting, the Consultant and the Contractor will establish a framework
for handling issues. At this time, meetings will be scheduled with the
individual utilities impacted by the Project, as well as any other affected
agencies.
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INDIAN CREEK CEI AGREEMENT
4. Other Pre-Construction Activities-A multi-line check of the earthwork
quantities will be completed. A Final Estimates Informational Meeting
will be held. Videotaping of pre-construction conditions will be
accomplished.
Construction Activities:
1. Progress Meeting -The Consultant will conduct and report weekly
Progress Meetings with the Contractor, subcontractors, utility owners
and third party agencies. Like the Pre-Construction Meeting, this is a
very important tool in successfully managing a project. While the main
focus of these meetings will be to discuss the Contractor's progress on
the Project and future work plan, Consultant will also discuss any
issues that may effect or delay the progress of the work and will also
discuss any upcoming events or traffic impacts. A discussion of the
Contractor's performance win be on the agenda for each Progress
Meeting.
2. Monthly Status Progress Reports -Contents of the reports, which will
be electronically distributed include: Status of Project activity relative
to the Project schedule and recommendations for action; General
Project information such as original Project contract days, present
Project contract days, original Project contract amount, present Project
contract amount, job progress percentage, and job progress chart
percentage; Status of supplemental agreements; Delays and reasons
for delays; Condition of Maintenance of Traffic (MOT) and Project
contract claims.
3. Daily Recording/Monthly Estimates -The Consultant Senior Inspectors
and Inspectors assigned to the Project will keep accurate, detailed,
objective and complete records of the work being performed. They will
complete a Daily Report of Construction for all activities by the
Contractor, subcontractor or utility company. Pay quantities
representing the work completed will be accurately determined and
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INDIAN CREEK CEI AGREEMENT
verified prior to including them in the report. Consultant Project/Office
Engineer will review the Inspector's Daily Report of Construction on a
daily basis to ensure that pay quantities used are correct. Also, they
will perform field reviews as the work progresses to verify the pay
quantities paid on the Inspector's Daily Report of Construction. A
Monthly Progress Estimate will be generated to support payment to the
Contractor.
4. Correspondence/Project Files -All contract records will be classified
and filed for future reference. Acting as an extension of City,
Consultant office staff will ensure that all letters and memoranda from
City, Contractor, and others are acknowledged, filed, distributed, and
resolved.
5. Shop Drawings/Submittals -Consultant will receive, log and distribute
Shop Drawings, as appropriate, for their review. Consultant will work
with the Contractor, City, and others to coordinate timely and effective
Shop Drawing reviews. The Engineer of Records shall have fourteen
(14) calendar days or the number of calendar days specified in the
construction contract, (whichever is lesser) from the date of receipt in
its office, to review and return shop drawings to contractor and City's
office. Consultant will track this item at all weekly Progress Meetings.
6. Schedule Review and Monitoring -Consultant shall review and
monitor construction schedule to deliver the Project on time or before
schedule.
7. Public Involvement-Consultant shall work to maintain a responsive,
effective and positive public information program and present a
positive public image through coordination with City. The Consultant
will provide all necessary information and support for the City's PIO .
program for the Project. Consultant will closely coordinate activities
with the City Public Information Officer.
8. Survey Control -Consultant shall verify the existence location for all
benchmarks as required. Consultant will utilize Inspectors who have
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INDIAN CREEK CEI AGREEMENT
the capability of performing engineering surveys so that spot checks
can be made and immediate action can be implemented.
9. Contractor Quality Control (QC) -Consultant shall initiate effective
support of the contractor's QC efforts by hosting the Pre-QC meeting
described above. Consultant Inspectors, Senior Inspectors and
Project Engineer will work closely with contractor personnel to assist in
issues of clarification, training, reporting procedures and/or analysis.
Verification Testing will be provided by the Consultant, utilizing the
laboratory testing function provided by the City of Miami Beach.
10. Supplemental Agreements (SAs)/Field SAs/\Nork Orders -The
Consultant will react quickly to any indication of a changed condition or
a Contract change. Our goal is to prevent, mitigate and assist the
contractor in the event of a changed condition. We will analyze any
changed condition and make a fully documented recommendation to
the CIP Construction Project Manager. If the City concurs with the
recommendation, a supplemental agreement for unforeseen additional
work will be expeditiously initiated and processed.
11. Compliance with EEO/SBE Requirements -The Consultant will assist
the City of Miami Beach in monitoring the contractor and
Subcontractors' compliance with the contract provisions regarding
Equal Employment Opportunity and Affirmative Action, as well as
participation of subcontractors, as required by the contract documents.
The Consultant will support and assist the function of the City's
Compliance Officer.
12. Photographs and Videos -The Consultant shall take electronic
pictures and/or video of any situation that may result in a claim, as well
as pre-construction conditions, accidents, unsafe working conditions,
and unusual construction techniques.
13. As-Built Drawings -The Consultant shall make accurate sketches of
field changes and/or scanned electronic as-built records if desired by
the City. The Senior Project Engineer will review the as-built plans
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INDIAN CREEK CEI AGREEMENT
generated by the contractor and verify accuracy for changes made
during construction.
Post Construction Activities:
After all the contract work is completed and the Project is conditionally or final accepted,
The Consultant will follow up with the necessary activities to close out all the Project
documentation, enabling the City to certify the Project and present the offer of final
payment to the contractor. These activities include: Preparation of the Final Estimate
Package, Certification of the Project, final satisfaction of the permit requirements and
close out meetings with the Contractor.
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297
N (Q 00 . SCHEQULE B ·\ . -~1 --~~-PROfESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND BERMELLO AJAMIL & PARTNERS, INC. ITEMIZED SCHEDULE OF COMPENSA TIDN TlUe:___ .L-.--j.~--·---+---·-.. -~---·--------~· -··-·-·-----FDOT portion of the work Included In the Water Maino, Sanitary Sawar Mains and Milling and f:!;~~'--j~:~:.::nu 1mprov11ments along lndiaT~ortv"-~!".:::=ramt 4te_t §rata Pn>r ___ 1 ___ u r---"------·-~ wLoml FIELD OFFICEPERSORNEL NAMEII'QSITION lloa-. =t~-IINov I IDee I ,.n r-· life& . . I ---.. llMar ~--. M~l -n STRAIGI-ff I TOTAL RATE HOURS RATE HOURS RATE HOURS RATE fHOURSII-RATE HOURS RATE HOURS H RATE IHOURii" i-----sALJi.Ry .. i HOURS :~~==~--n~-~~-~~ ::~ ~-= .: :: _,: ::~~: ::~ .:~:: .: -=-~~~ __ 5%J?J An~!!.'?& $27.00 ---~~S27.q~> ___ a S27.oo 1 S27.oa e S27.oo e S27.oo e S27.oo e $1,377.00 ---~ ···I·--~~-~~-~----1---u----1--~1 I--~----~~--I I I I I 1--~-~--~·-H·--~_-_ _:= ===~~r-I Pag111 of1 TOTAL STRAIGHT SALARY SALARY MULTIPLIER FCC ADJUSTEO SALARY DIRECT EXPENSE SUBTOTAL OPERATING MA.RGIN l 2B.OIJOO,i;l_______ I $13.666.52 . .'OTAL!ALARV REI:Al£DC08t~. ~----·· .. ---~-. ----:-:, : --~ • I . $128,842:74 -------------+----l'-----l----f--~--+---l'----+----+---l-----+----l----+---+----1----i ...... ······-.-· .~~------+~~-1 --f--+--~-1---f-·--+-~--+----I ·· ---1--·---· I ·-t-1-------+ 1---i Copy of BA Cost Proposal -Indian Creak Dri¥9 betw9en 261h end 41 sl Streets Project.xls ATTACHMENT B Method of Compensal1on Original Dale: 10/01/2009
Attachment C
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made and entered into tills __ day
of October, 2013, by and between BERMELLO AJAMIL & PARTNERS, INC., a Florida
corporation, (hereinafter "BAP") and the CITY OF MIA..MI BEACH, FLORIDA, a municipal
corporation (hereinafter, the "CITY"). BAP and the City may also be referred to individually as
a "Party", and collectively as the "Parties."1
WHEREAS, the City retained BAP to perfonn professional certified engineer inspection
(CEI) services in connection with the Florida Department ofTransportation (FDOT) work
included in the water mains and sanitary sewer mains, and milling and resurfacing improvements
along Indian Creek Drive between 261h and 41st Streets (hereinafter the "Project");
WHEREAS, pursuant to Resolution# 2009-27169 I RFQ #03-08/09, the CITY entered
into an agreement for said CEI services for the Project (the "Contract");
WHEREAS, the Parties desire to settle all claims, disputes, past, present, or future
regarding the Project, regardless of responsibility;
WHEREAS, during the course of the Project, numerous construction issues arose with
respect to water main installation and other additional work, which extended the completion time
of the Project. As a result, BAP was required to perform extended CEI services, above and
beyond the services contemplated under the Contract;
WHEREAS, as a result of a dispute between the Parties as to the value of the additional
services provided by BAP on the Project, the Parties to this Settlement Agreement desire to
avoid protracted litigation at this time, and compromise and settle claims that have been or could
be asserted by and against them upon the terms set forth in this Settlement Agreement;
AGREEMENT
NOW THEREFORE. in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. R7citals: The above recitals are true and correct and are hereby made a material part of
this Agreement and are binding upon the Parties.
1 Wherever used herein, the term "Party" or "Parties" shall include singular and plural, officers, directors, officers,
heirs, legal representatives, assigns of individuals, and the successors and assigns of corporations, and the use of
any gender shall be held to include every other and all genders, wherever the context so admits or requires.
299
2. Settlement Terms: That the full amount due and owing BAP is $73,000.00, which
reflects the total remaining amount due and owing for the Project. No other monies are due and
owing BAP. Payment will be made to BAP within thirty (30) days after approval by the City
Commission of the Settlement Agreement and execution by the Parties.
3. Consideration; Legal Representation: The Parties acknowledge that this Agreement is
adequately supported by consideration and is fair and reasonable. The Parties further
acknowledge and agree that: (i) each Party has had the opportunity to consult with, and had in
fact consulted with, such professionals, experts and legal counsel of its choice as such Party may
have desired with respect to all matters settled and resolved herein; (ii) each Party has
participated fully in the negotiation and preparation of this Agreement; (iii) each Party has
carefully reviewed this Agreement and is entering into same freely; and (iv) this Settlement
Agreement is entered into in good faith and was not obtained by fraud, misrepresentation, or
deceit. Accordingly, this Agreement shall not be more strictly construed against any Party.
4. Authority: Each Party represents and warrants to the other that the execution and
delivery of this Settlement Agreement has been duly approved by all requisite and corporate or
partnership action (as applicable) required to be taken by such Party.
5. Severability: In the event any term or provision of this Settlement Agreement is
determined by appropriate judicial authority to be illegal or otherwise invalid, such provision
shall be given its nearest legal meaning or shall be construed as deleted as such authority
determines, and the remainder of this Agreement shall be construed to be in full force and effect,
provided that such deletion does not materially adversely affect the interests of any party hereto
or the meaning, intent, or purpose of this Agreement.
6. Modification: Waiver: This Agreement may only be modified in writing signed by
both Parties. No waiver or modification of the Agreement or of any covenant, condition or
limitation contained herein, shall be valid unless in \Vfiting and signed by all Parties to the
Agreement, or their authorized counsel. If the CITY excuses or condones any breach or
defaulted by BAP of any obligation under this Agreement, this shall not be a waiver of such
obligation with respect to any continuing obligation or subsequent breach or default and no such
waiver shall be implied.
7. Choice of Law: This Settlement Agreement shall be construed in accordance with the
laws of the State of Florida.
8. Venue: Venue for any dispute arising out of, or in connection with, this Settlement
Agreement including, without limitation, its interpretation and effect, and any action to enforce
any provision contained herein, shall be in a court of competent jurisdiction in and for Miami-
Dade County, Florida.
300
9. Entire Agreement: This Settlement Agreement constitutes the full and entire
agreement and understanding between the Parties with respect to the subject matter hereof, and
there are no agreements, representations or warranties except as specifically set forth herein. The
terms of this Settlement Agreement are contractual and not a mere recital. All prior agreement(s)
are to be construed to be of no further force or effect, it being the intention of the Parties that this
Settlement Agreement shall serve as the sole and entire expression of their agreement and
understanding. However, execution by all Parties shall be a condition precedent to the
effectiveness of this Agreement as binding against any Party.
l 0. Captions and Headings; References: The captions and headings of this Agreement
are for the purpose of convenience of reference only and in no way define, limit or describe the
scope or intent of the Agreement or in any way affect the terms and conditions of this
Agreement. All references in the Agreement to the terms "herein," "hereunder," "hereof' and
words of similar import shall refer to this Agreement, as distinguished from the Paragraph,
Section and/or Subsection within which such term is located.
13. Counterparts: This Agreement may be executed in counterparts v.-ith the same force
and effect as if any signatures appeared on the same document. The Parties further agree that
facsimile, digitally transmitted and electronic copies of an original signature shall be accepted as
an authentic original signature.
***SIGNATURE PAGES FOLLOW***
301
--------------------
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and date
first written above.
Attest:
BERME.·LLO AJr/\ IL & P ARNERS, INC . . ~J ( ' \l \ .
kA-;AJ v{d_ )._( · No d_o (/I f2_
--Print N arne
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Title: President
Luis Ajamil
Print Name
The foresoing instrument was acknowledged before me this CX day of October, 2013,
by Al.U~ ft.JIWll L as :PR[;s a::£ JJ r of Bermello Ajamil & Partners, Inc., who is
personally known to me or who has p::::aq/~e of identification).
(Print Name)
Notary Public-State of florida
My Commission Expires:
302
---
CITY OF MIAMI BEACH, FLORIDA
Attest:
Title: ---------------------
City Clerk Print Name
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this __ day of May, 2012, by
___________ as of the City of Miami Beach, who is personally
known to me or who has produced (type of identification).
Name: -------------------(Print N arne)
Notary Public-State of Florida
My Commission Expires
303
RESOLUTIONS TO BE SUBMITTED
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