2000-23455 RESO
RESOLUTION NO. 2000-23455
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING, BY 517THS VOTE,
THE WAIVER OF FORMAL COMPETITIVE BIDDING AND APPROVING
THE PURCHASE OF SPECIAL LIGHTING, IN THE AMOUNT OF
$63,105.51, FOR THE EXPANSION AND RENOVATION OF THE BASS
MUSEUM OF ART (THE PROJECT), SAID LIGHTING TO BE
PURCHASED DIRECTL Y FROM THE MANUF ACTURER'S
REPRESENTATIVE.
WHEREAS, on December 3,1997, the Mayor and City Commission approved award ofa
construction contract to Danville-Findorff, Inc. (DFI), for the Expansion and Renovation ofthe Bass
Museum of Art ( the Project), which gave Notice to Proceed with construction on February 5, 1998,
and called for a construction period of twenty (20) months; and
WHEREAS, an appropriation and standing order was established in December 1997, for
this purpose; and
WHEREAS, the contract documents called for the installation of electrified track lights in
several ceilings within the Project's galleries; and
WHEREAS, it was always the intention of the City's architects for the Project, Spillis
Candela & Partners (SC & P) and Arata Isozaki, Inc. (Isozaki), that the track lights be purchased
separately, by the City, to avoid excessive mark-ups on the materials and labor for these lights; and
WHEREAS, track lights were specified for information purposes only, as recommended
by the architects' lighting consultant, Fisher Marantz Stone (FMS), who advised that this is
customary in museum projects because the lights are usually located by the staff in accordance to
their desired placement; and
WHEREAS, SC & P did not inform the City in advance of its intention, and the City was
not aware that the lights were to be purchased separately until the contractor, DFI, asked a question
about them after construction had begun; and
WHEREAS, the City initially considered this an error and omission on the part of SC & P
and, after several exchanges ofletters and information, the Administration asked the City Attorney's
Office for a legal opinion on whether SC & P was responsible for the cost of the lights or not; and
WHEREAS, the City Attorney's Office has now issued its opinion, stating, in summary,
that SC & P is not responsible for the cost of the lights, since the City would have had to purchase
them regardless of whether they were included in DFI's bid or not; and
WHEREAS, by purchasing the lights directly from Sesco, the manufacturer's representative,
the City can obtain them at a lower price than DFI would have included in its bid; and
WHEREAS, SC & P obtained direct quotes from Sesco, in the amount of $63,105.51, and
DFI provided a quote, in the amount of $107,467.23, after all mark-ups were included; and
WHEREAS, due to the significant difference in the Project cost, the Administration
recommends that the lights be purchased directly from Sesco, and not through DFI; and
WHEREAS, because these are special lights, and are FMS' recommended types required
for the particular museum use, the Administration requests that the Mayor and City Commission
approve purchasing these lights without competitive bidding; and
WHEREAS, it also would allow the expeditious purchase of the lights in order to have them
available to the museum staff in their preparations for the opening of upcoming exhibitions at the
Bass Museum of Art.
NOW, THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission herein authorize, by
517ths vote, the waiver of formal competitive bidding, and approve the purchase of special lighting,
in the amount of$63,105.51, for the Expansion and Renovation of the Bass Museum of Art, said
lighting to be purchased directly from the manufacturer's representative.
PASSED AND ADOPTED THIS
12th
daM
January ,2000
MAYOR
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CITY CLERK
F\WORK\$ALL\CHA TRAND\BASS\TRACRESO.WPD
APPROVED t-S "; .
FORM & LA,! .
& FOR E>C' ." .
r!o/IvP
Spillis Candela DMJM
800 Douglas Entrance Coral Gables, Florida 33134
Tel:305/4444691 Fax: 305/447 3580
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!MEMORANDUM
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Date:
9.Sept.99
From:
Jorge Chartrand - City of Miami Beach
Charles Hugh Crain AlA ~~
Bass Museum of Art: G - 3032 - Track Light fixtures
To:
Subject:
Per our recent discussion regarding the Museum's direct purchase of the track light fixtures,
we have asked Fisher-Marantz to re-confirm the minimum quantity that the Museum should
have on hand opening day. They recommended that the Museum obtain 129 type FH
fixtures and 128 type FK fixtures. These numbers are based on 1 fixture per 40 sq. ft. of
gallery space, but do not include additional fixtures for the bridge tracks which could be
provided at a ratio of 1 fixture per 2.5 LF of track. To offer greater flexibility Fisher-Marantz
also suggested that an additional 5% more fixtures be purchased due to the changing exhibit
requ i rements.
To keep costs down they suggested that the Edison Price Minima Series be substituted for
the Artima series originally selected. That is, the Minima 36-0 for the FH fixture and the
Minima 38-0 for the FK fixture, reflecting a savings of $87 and $5 per fixture respectively.
The manufacturer's prices provided by one vendor for the Minima series were $240 for the
FH and $190 for the FK. This does not consider any negotiated discount, sales tax or
shipping. The fixtures should be priced from several different distributors for competitive
prIcing.
As Fisher-Marantz had stated in an earlier letter, the Owner normally provides the track
fixtures, usually out of the FF&E budget, to avoid the contractor mark-ups. This will be the
best way to obtain a higher number of fixtures for the best cost.
We can list one source for these fixtures as: SESCO Lighting, Inc., 1093 Shotgun Road, Ft.
Lauderdale, FI 33326; Tel: 954-474-9888, Fax: 954-474-9773; Attn: Mike Simpson
If you have any questions about this recommendation, please call.
cc: S. Berler
T. Gonzalez
I: \bassmuseum._.g3032 \memos \jc090999.doc
Attachment #1
Page 1 of 1
FJIS
F ISH E R MAR ANT Z S T ,0 N E
Partll~r~ ill .-\n.:hitt:clural Lighting Do;::,ign
r01S
L!6 Fifth Avenue
Nc:w York City 100 II
Tel 2126913020
Fax 212 6331644
JUN 29 19'19
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29 June 1999
Mr. Steve Berler
Spillis Candela and Partners, Inc.
800 Douglas Entrance
Coral Gables, Florida 33134
Re: Bass Museum of Art
Track Mounted Light Fixtures
Dear Mr. Berler:
During the design development phase of this project FMS provided an estimated
pricing schedule for the lighting fixtures. At that time we estimated the unit fixture cost
for electrical track mounted Type FH to be $240 and for the Type FK to be $180. (This
budget cost included spread lens, lamp and UV filter). We also provided an allowance
quantity for the Type FH and FK track fixtures. We allowed one Type FH fixture for
every 6' of electrical track plus 20% of the total and one Type FK fixture for every 6' of
electrical track.
We have since reviewed the electrical track layouts and feel that the 20% extra Type
FH fixtures are not required. We recommend that a quantity of (163) Type FH fixtures
and a quantity of (163) Type FK fixtures be supplied for the spaces using electrical
track. The quantities include fixtures to be mounted to Type FL bridge track, which has
not yet been submitted.
To keep the cost down and speed up the delivery schedule for these fixtures, we will
consider the Edison Price Minima series as a substitute for the Artima series.
In our previous projects the contractor normally provided and installed one track fixture
for each electrical track circuit. In this way it would be easy to verify if all the circuits are
functional. The owner normally provides the remaining electrical track fixtures, usually
out of the FF&E budget, to avoid any contractor mark ups. We recommend this
procedure be used for the Bass Museum.
Very truly yours,
FISHER MARANTZ STONE, INC
~ry~ ~~
cc: Paul Marantz, FMS
Via: fax/mail (305.447.3580) /
834ber03. doc
Attachment #2
Page 1 of 1
CITY OF MIAMI BEACH
m
1700 CONVENTION CENTER DRIVE, MIAMI BEACH, FLORIDA 33139
PUBLIC WORKS DEPARTMENT
TELEPHONE: (305) 673-7080
FAX: (305) 673-7028
September 30, 1999
Mr. Charles Crain, Vice President
Spillis Candela/DJMJ
800 Douglas Entrance
Coral Gables, FL 33134
RE: BASS MUSEUM EXPANSION AND RENOVATION
Dear Charles:
The City is in receipt of your memorandum and the letter from Fisher Marantz Stone (FMS) regarding the track
light fixtures at the Bass Museum project. We have discussed their contents and explanations and find that
they are not acceptable to the City. We were never informed in writing, prior to the bid award, that these
fixtures were not part of the contract documents or of the Danville-Findorff, Inc. (DFI) bid. The fact that the
fixtures are described and specified on the schedules, and the tracks shown on the drawings, indicates that they
are part of the contract and not part of the FF & E.
At this time, the City considers this matter to be an error and omission on the part of Spillis Candela/DJMJ
(SCP) and its consultants or an error by DFI in addressing the bid documents. It is certainly not a
responsibility of the City to now provide additional funding for installations which are crucial to the operation
of the Museum and which should have always been clearly included in the overall project scheme.
The City does not accept FMS' explanation that it is customary for the Owner to provide these fixtures out of
a different budget than that set aside for construction. Even if this were the case, the consultant should have
informed the City of this approach prior to bid, and allow the Owner to decide whether to proceed in this
manner or not. The City was not given this opportunity and therefore assumes no responsibility for the
resolution of this matter.
This is now an error of at least $55,280 plus mark-ups and is certainly not contained and was not envisioned
in the FF & E budget. We are directing you to address these matters with your consultants and the contractor
and provide, by whatever appropriate means necessary, the additional bridge tracks and the track light fixtures
as are specified in the light fixture schedule on drawing EO.02, or the suggested alternate fixtures described
in FMS' letter dated June 29, 1999 and in your memorandum. If it is necessary to issue a change directive to
DFI, while the responsibility for the costs of the fixtures is determined, then do so. We assume the fixtures
are long lead items and the City does not want this issue to cause a delay to the schedule.
J rge . Chartrand, Capital Projects Coordinator
: Mayra Diaz-Buttacavoli, Assistant City Manager
Matthew D. Schwartz, Assistant City Manager
Julio Grave de Peralta, Director
F:IWORK\SALLICHA TRANDlBASS\ TRACLiTE.WPD
Attachment #3
Page 1 of 1
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CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
C.A.O. NO. 99-25
SUBJECT:
Lawrence A. Levy
Interim City Manager
Murray H. Dubbin l~ J'~ V
City Attorney ~)t1lW'"
BASS MUSEUM TRACK LIGHTS
C.M.O. NO. 1-11/99
TO:
FROM:
DATE:
December 22, 1999
This legal opinion is prepared in response to City Manager Sergio Rodriguez's memorandum,
dated November 29, 1999, requesting an opinion regarding a possible error and omission on the part
of the" City's architect, Spillis Candela and Partners (SC&P), for the specifications for the track light
fixtures required for the illumination of art relative to its work on the Bass Museum Renovation and
Expansion Project (Project).
From the facts provided by the Administration, at the time of issuance of the bid for the
construction contract for the Project (the Bid), specifications which anticipated track light fixtures
were included in the Bid documents, as evidenced by the inclusion of the tracks themselves.
However, quantities for said track light fixtures were not specified and, consequently, the successful
bidder, Danville-Findorff, Inc. (DFI), did not include them in its bid. In mitigating this dispute, the
City has informed SC&P that it was never informed, in writing, prior to the Bid award, that
quantities for the track lights were not included in the Bid specifications/contract documents. The
City and SC&P further agree that it was not the intention to include the track lights as part of the
FF&E.
The City alleges this matter to be an error and omission on the part of SC&P, or an error by
DFI in addressing the bid documents. The cost of the track light fixtures for the Project, totalling
approximately $55,280.00, must now necessariJ.y be included as a Change Order, and represents an
increase to the overall Project budget.
In its response to the City's allegations, SC&P acknowledges the absence of proper
notification to the City that the track light fixtures were to be purchased directly from the supplier
and outside of the DFI contract; hence the omission of same in the Bid specifications. SC&P
contends that the reason quantities for track light fixtures were omitted was so that the City could
purchase same outside the Bid, directly from the supplier, and therefore realize a cost savings. With
said acknowledgement by SC&P, the instant matter cannot be viewed as an error and omission by
Attachment #4
Page 1 of 3
DFI, as it was only able to bid on what was specified in the Bid and, as stated, quantities for the track
light fixtures were omitted.
Additionally, pursuant to the City's directive to SC&P to provide the track light fixtures for
the Project by whatever means appropriate, SC&P has issued proposal requests to both DFI and
directly to the supplier (outside the DFI contract) to establish a cost for providing said fixtures. Said
costs will remain a Change Order, representing an additional cost to the Project as it nears
completion; however, it is likely that the City will obtain the best price possible for the track light
fixtures by purchasing them outside the DFI contract and going directly to the supplier.
The City contends that SC&P is responsible for absorbing the Change Order, representing
the additional cost of the omitted track light fixtures. It relies on Section 2.7.1 of its Agreement with
SC&P, stating as follows:
2.7.1 Responsibility for Claims and Liabilities
Approval by the City shall not constitute nor be deemed a release of the
responsibility and liability of the Architect, its employees, subcontractors,
agents and consultants for the accuracy and competency of their designs,
working drawings, specifications or other documents in the works; nor shall
such approval be deemed to be an assumption of such responsibility by the
City for a defect or omission in designs, working drawings, and specifications
or other documents prepared by the Architect, its employees, subcontractors,
agents and consultants... .
SC&P contends that, since the Project will have the benefit of the light fixtures, the alleged
omission adds value to the Project. Under Florida law, an owner cannot benefit from an omission
so as to receive value, that if not for the omission, the owner would have paid for in the first place.
Costs incurred that are "value added" have an established legal precedent under Florida law.
Under the theory of unjust enrichment, an owner cannot benefit from an omission so as to receive
value, that if not for the omission, the owner would have paid for in the first place. See Zaleznik v.
Gulf Coast Roofing Co.. Inc., 576 So.2d 776, 778 (Fla. 2d DCA 1991); People's National Bank of
Commerce v. First Union National Bank of Florida, 667 So.2d 876, 879 (Fla. 3d DCA 1996); W.
R. Townsend Contracting. Inc. v. lenses Civil Construction. Inc., 728 So.2d 297,303 (Fla. 1st DCA
1999); Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla. 2d DCA 1998); Hiers v. Thomas, 458
So.2d 322 (Fla. 2d DCA 1984); Robert L. Weed. Architect. Inc. v. Homing, 33 So.2d 648. It would
follow that if the track light fixtures were not included in the specifications prepared by SC&P and,
consequently, not accounted for in the Bid, that the City would have to purchase the fixtures anyway.
As they would benefit the City through the added value to the Project, under the theory of unjust
enrichment, the City cannot benefit and/or receive value from an omission that it wold have paid for
in the first place.
2
Attachment #4
Page 2 of 3
."'1
The responsibility of the professional is limited to any premium costs incurred by the owner.
SC&P has acknowledged its responsibility for said premium costs, and is therefore proceeding with
obtaining the aforestated cost estimates for the purchase of the track light fixtures by the City. It is
anticipated that by having the City buy the fixtures directly from the supplier, the need for any
premium cost will be eliminated.
hi conclusion, SC&P's contention is substantiated by Florida case law. The City would
necessarily have to provide for the track light fixtures for the Project; therefore, it cannot benefit
from this type of omission. Notwithstanding the preceding sentence, the City is not responsible for
any premium or other additional cost(s) that may be incurred as a result of this omission (and SC&P
has acknowledged this).
Should you have any questions, please feel free to contact me.
RJA\kw
F:IA TTOIAGUR\CA0\99-25.CAO
cc: Mayra Diaz Buttacavoli, Assistant City Manager
~e Chartrand, Capital Projects Coordinator
3
Attachment #4
Page 3 of 3
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
m
- -- -- -
COMMISSION MEMORANDUM NO. ~
TO:
FROM:
Mayor Neisen O. Kasdin and
Members of the City Commission
Lawrence A. Levy \ f\ /
City Manager 2Ji$J
DATE: January 12, 2000
SUBJECT:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING, BY 5/7THS VOTE,
THE WAIVER OF FORMAL COMPETITIVE BIDDING AND APPROVING
THE PURCHASE OF SPECIAL LIGHTING, IN THE AMOUNT OF
$63,105.51, FOR THE EXPANSION AND RENOVATION OF THE BASS
MUSEUM OF ART (THE PROJECT), SAID LIGHTING TO BE
PURCHASED DIRECTLY FROM THE MANUFACTURER
REPRESENTATIVE.
ADMINISTRATION RECOMMENDATION:
Adopt the Resolution.
FUNDING:
Funds are available in the project's appropriated contingency allowance in account 364.2076.069358.
ANALYSIS:
On December 3, 1997, the Mayor and City Commission approved award of a construction contract to
Danville-Findorff, Inc. (DFI) for the Renovation and Expansion of the Bass Museum of Art (the Project).
Notice to Proceed with construction was given on February 5, 1998 with construction expected to last
twenty months.
The contract documents called for the installation of electrified tracks in several ceilings within the
Project's galleries. Track lights were specified for information purposes only but not located on the
documents. It was always the intention of the consultants, Spillis Candela & Partners (SC & P) and Arata
Isozaki, Inc. (Isozaki), that these lights be purchased separately by the City (Attachment No.1). It is their
recommendation that this be done to avoid excessive mark-ups on the materials and labor for these lights.
Their lighting consultant, Fisher Marantz Stone (FMS), advised SC & P that this is customary in museum
projects because the lights are usually located by the staff in accordance to their desired placement
(Attachment No.2).
AGENDA ITEM C -1 uJ
DATE~
SC & P did not inform the City in advance of their intention and the City was not aware that the lights were
to be purchased separately until the contractor, DFI asked a question about them after construction had
begun. The City initially considered this an error and omission on the part of SC & P (Attachment No.3).
After several exchanges of letters and information, the Administration asked the City Attorney's Office
for a legal opinion on whether S C & P was responsible for the cost of the lights or not.
The City Attorney's office has now issued its opinion, stating that SC & P is not responsible for the cost
of the lights, since the City would have had to purchase them regardless of whether they were included in
DFI's bid or not (Attachment No.4). In addition, by purchasing the lights directly from Sesco, the
manufacturer's representative, the City can obtain them at a lower price than DFI would have
included in its bid. SC & P obtained direct quotes from Sesco and also asked DFI to provide a Request
for Proposal.(RFP). Sesco priced the lights at $63,105.51 if purchased directly and DFI priced the lights
at $107,467.23 after all mark-ups were included. The remaining balance in the construction contingency
account after the track lights are purchased will be $101,218.
Due to the significant difference in cost, the Administration recommends that the lights be purchased
directly from Sesco and not through DFI. Because these are special lights, and are FMS' recommended
types required for the particular museum use, the Administration requests that the Mayor and City
Commission approve purchasing these lights without competitive bidding. It also would allow the
expeditious purchase of the lights in order to have them available to the museum staff in their preparations
for the opening of upcoming exhibitions. Sesco has stated that the lights have a delivery period of six to
eight weeks after ordering.
Attac~nts~/" \
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F:IWORK\$ALLICHA TRANDIBASSITRACMEMO. WPD