95-21705 RESO
RESOLUTION No.
95-21705
A RESOLUTION OF THE MAYOR AND THE CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE AN AGREEMENT WITH FUSTER
DESIGN ASSOCIATES, FOR PROFESSIONAL LANDSCAPE
ARCHITECTURAL SERVICES AND OTHER RELATED PROFESSIONAL
SERVICES, AS REQUIRED, INCLUDING CIVIL ENGINEERING,
MECHANICAL/ELECTRICAL AND LAND SURVEYING SERVICES FOR
VARIOUS CITY CAPITAL PROJECTS WHERE THE BASIC
CONSTRUCTION COST DOES NOT EXCEED $500,000.00 PER PROJECT,
FOR A TWO (2) YEAR TERM.
WHEREAS, the City of Miami Beach (City) issued a Request for Letters ofInterest (RFLI
63-94/95) for "Professional Landscape Architectural Services for Various City Capital Projects for
a Two (2) Year Contract Term for Capital Projects Where Basic Construction Cost Does Not Exceed
$500,000.00 per Project"; and
WHEREAS, Fuster Design Associates (Consultant) submitted a proposal in response to the
City's Request for Letters of Interest; and
WHEREAS, the City and Consultant have negotiated the attached Agreement, which has
been recommended by the City Manager and approved as to form by the City Attorney.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and the City
Clerk are authorized to execute the attached Agreement with Fuster Design Associates, for
Professional Landscape Architectural and other Related Services for Various City Capital Projects
Where Basic Construction Cost Does Not Exceed $500,000.00 per Project, for a Two (2) Year
Contract Term.
PASSED AND ADOPTED THIS 13th day of
By
Date
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
CITY OF MIAMI BEACH
COMMISSION MEMORANDUM NO.
'=7~-qS
TO:
Mayor Seymour Gelber and
Memben or the City Commission
DATE: September 13, 1995
FROM:
Jose Garcia_pedroSI
City Manager .
RESOLUTIONS THORIZING THE MAYOR AND CITY CLERK TO
EXECUTE A EMENTS FOR PROFESSIONAL LANDSCAPE
ARCHITECTURAL SERVICES AND OTHER RELATED PROFESSIONAL
SERVICES AS REQUIRED INCLUDING CIVIL ENGINEERING,
MECHANICAL/ELECTRICAL ENGINEERING AND LAND SURVEYING
SERVICES FOR CITY CAPITAL PROJECTS WHERE BASIC CONSTRUCTION
COST DOES NOT EXCEED $500,000 PER PROJECT FOR A TWO (2) YEAR
PERIOD.
SUB.JECf:
ADMINISTRATION RECOMMENDATION:
The Administration recommends that the City Commission approve the attached resolutions
authorizing the Mayor and the City Clerk to execute the attached agreements between the City and
each of the four (4) finns selected to provide professional landscape architectural services on a
rotation basis for a two (2) year period for projects where total construction cost does not exceed
$500,000.
BACKGROUND:
Fourteen responses were received to the Request for Letters oflnterest (RFLI # 63-94/95) which
was issued on March 3, 1995. On July 14, 1995 a selection committee evaluated the proposals and
the six (6) semi-finalist firms were selected. On July 19, 1995 presentations were made by these six
firms to the selection committee. Following the presentations the selection committee ranked the
firms in the order in which they considered them to be most qualified. On July 26, 1995, the City
Commission confinned the top four (4) selections and authorized the Administration to enter into
negotiations for agreements with the following firms:
Rosenberg Design Group/David Scully, A.S.L.A., Inc.
Fuster Design Associates
Savino and Miller Design Studio
Curtis + Rogers Design Studio, Inc.
AGENDA ITEM r -1- +t
DATE~
Commission Memorandum - September 13, 1995
Landscape Architecture Agreements
Page 2
ANAL YSIS:
Negotiation with the above listed firms have resulted in the attached agreements which are
summarized as follows:
o The agreement is for a two (2) year period
o Professional landscape architectural services are to be provided only for projects where total
construction cost does not exceed $500,000
o Selection of the firms will be on a rotation basis
o Services include Basic Services for four (4) phases
Design
Construction Documents
Bidding and Negotiations
Contract Administration
o Additional Services may include a Study Phase
o Compensation may be on the basis of a lump sum amount in accordance with a sliding scale
for projects whose costs are within the total construction budget limits as follows:
9.0% $1 100,000
8.5 100,001 150,000
8.0 150,001 200,000
7.5 200,001 250,000
7.0 250,001 300,000
6.5 300,001 400,000
6.0 400,001 500,000
o Detail rates, including overhead and profit for hourly rates for personnel were also negotiated
and are contained in Exhibit "B" of the agreements.
CONCLUSION:
These agreements should be executed in order to enable the City to utilize the landscape architectural
services of these firms on a rotation basis for capital projects not exceeding $500,000.
KS/km
AGREEMENT BETWEEN
CITY OF MIAMI BEACH
AND
FUSTER DESIGN ASSOCIATES
FOR PROFESSIONAL LANDSCAPE ARCHITECTURAL SERVICES FOR VARIOUS
CITY CAPITAL PROJECTS WHERE BASIC CONSTRUCTION COSTS DOES NOT
EXCEED $500,000.00 PER PROJECT FOR A TWO (2) YEAR PERIOD
1
TABLE OF CONTENTS
P AGE No.
ARTICLE 1. DEFINITIONS: DUTIES AND RESPONSIBILITIES 6
1.1 CITY 6
1.2 CITY COMMISSION 6
1.3 CITY MANAGER 7
1.4 PROPOSAL DOCUMENTS 7
1.5 CONSULTANT 7
1.6 BASIC SERVICES R
....,.....:1: r,r, i, T1'~,"'--";-
, '
1. :,.::. PROJECT 2iCljd::'
1.8 CONSTRUCTION COST BUDGET 9
1.9 FORCE MAJEURE 10
1.10 CONTRACTOR 10
1.11 CONTRACT FOR CONSTRUCTION 10
1.12 CONSTRUCTION DOCUMENTS 10
1.13 CHANGE ORDER 10
1.14 ADDITIONAL SERVICES 10
1.15 WORK 10
1.16 BASE BID 10
1.17 SCHEDULES 10
1.18 UPSET LIMIT 11
ARTICLE 2. SCOPE OF SERVICES 11
2.1 STUDY PHASE 11
2.3 BASIC SERVICES 11
2.4 DESIGN PHASE 12
2.5 CONSTRUCTION DOCUMENTS PHASE 12
2.6 BIDDING OR NEGOTIATION PHASE 13
2.7 CONSTRUCTION PHASE, CONSTRUCTION OBSER V A TION
AND ADMINISTRATION OF THE CONSTRUCTION CONTRACT 13
2.8 RESPONSIBILITY FOR CLAIMS AND LIABILITIES 16
2.9 ADDITIONAL FIELD REPRESENTATION 16
2.10 ADDITIONAL SERVICES 17
2.11 TIME 18
ARTICLE 3. THE CITY'S RESPONSIBILITIES 18
2
ARTICLE 4. CONSTRUCTION COST
4.1 DEFINITION
4.2 RESPONSIBILITY FOR CONSTRUCTION COST
ARTICLE 5. DIRECT PERSONNEL EXPENSE
ARTICLE 6. REIMBURSABLE EXPENSES
Il'~J'~ :~'<~S ~(~ ~FfE CC~<~~\~: _.~ '..' "T~
7.1 PA Y{vlENTS ON ACCOLNT OF BASIC SERViC:':S
7,2 PA YMENT ON ACCOUNT OF ADDITIONAL SERVICES
7.3 PROJECT SUSPENSION OR TERMINA nON
ARTICLE 8. CONSULTANT'S ACCOUNTING RECORDS
ARTICLE 9. OWNERSHIP AND USE OF DOCUMENTS
ARTICLE 1 0, TERMINATION OF AGREEMENT
10,1 RlGHT TO TERMINATE
1 0,3 TERMINATION FOR CAUSE
10.4 TERMINATION FOR CONVENIENCE
NON-EXCLUSIVE PROVISIONS
1 0,5 IMPLEMENTATION OF TERMINA nON
1 0.6 NON-SOLICITATION
ARTICLE 11. MISCELLANEOUS PROVISIONS
ARTICLE 12. EXTENT OF AGREEMENT
ARTICLE 13. BASIS OF COMPENSATION
13.1 GENERAL
13.2 COMPENSATION FOR SERVICES
ARTICLE 14. INSURANCE
"-\RTICLE 1.5. Il\DE;vl0:IFlCATIU~
ARTICLE 16, ARBITRATION
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ARTICLE 17.
ARTICLE 18.
LIMITATION OF LIABILITY
ADDITIONAL CONDITIONS
SCHEDULE "A" - CONSULTANT SERVICE ORDER
SCHEDULE "B" - CONSULTANT COMPENSATION RATES
,.\~~:~~-", ~~_:.-: 1"('" ~ l,:'l T~:~/"".__.~r,_ \C~"' r~f~lr .~,!_ ,\~,r :~':-)',r~)f~:)S:'\-~~(-:\: ~_\~[3
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TERMS AND CONDITIONS OF AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND CONSULT ANT
FOR
PROFESSIONAL LANDSCAPE ARCHITECTURAL SERVICES
THIS CONTRACT made and entered into this 15th day of September, 1995 by and between
the CITY OF MIAMI BEACH, a municipal corporation existing under the laws of the State of
Florida (hereinafter referred to as City or Owner), having its principal offices at 1700 Convention
Center Drive, Miami Beach, Florida and Fuster Design Associates, a Florida corporation, whose
address is 2699 Collins Avenue, Suite 113, Miami Beach, Florida 33140 (hereinafter referred to as
(Consultant),
WIT N E SSE T H:
WHEREAS, the City intends to build various capital projects within the City of Miami
Beach, for a Basic construction cost not to exceed Five Hundred Thousand dollars ($500,000), and
wishes to engage the Consultant for the various projects at the agreed fees as set forth in this
agreement; and
WHEREAS, the Consultant desires to contract with the City for performance of landscape
architectural and related professional services relative to these projects as more particularly
hereinafter set forth, for studies, design, preparation of Construction Documents and Construction
Administration Services, all as hereinafter stipulated,
NOW THEREFORE, City and Consultant in consideration of the mutual covenants and
agreements herein contained, agree as follows:
5
ARTICLE 1.
DEFINITIONS: DUTIES AND RESPONSIBILITIES
1.1 CITY
-
The "City" or "Owner" shall mean the City of Miami Beach and is a Florida municipal
corporation having its principal offices at 1700 Convention Center Drive, Miami Beach,
Florida 33139. The City, as a governmental entity, is subject to the availability of funds and
appropriation of funds by its legislative body and other governmental authorities or sources
of revenue, in an amount to allow continuation of its performance under this Agreement. In
the event of lack of funding for this Agreement or this Project, this Agreement may be
terminated by the City pursuant to the procedure set forth in Article 10.
1.2 CITY COMMISSION
"City Commission" shall mean the governing and legislative body of the City, The City
Commission shall be the final authority to do or to approve the following actions or conduct
by passage of an enabling resolution or amendment to this Agreement.
1.2.1 The City Commission shall be the body to consider, comment upon, or approve of any
amendments or modifications to this Agreement.
1.2,2 The City Commission shall be the body to consider, comment upon, or approve any
assignment, sale, transfer or subletting of this Agreement or any interest therein and any
subcontracts made pursuant to this Agreement. Assignment and transfer shall be defined to
include sale of the majority of the stock of a corporate Consultant.
1.2.3 All City Commission approvals and authorizations shall be expressed by passage of an
appropriate enabling resolution and, if an amendment, by the execution of an appropriate
amendment to this Agreement.
1.2.4 The City Manager shall review, approve, disapprove or otherwise comment upon the
Consultant's Design and Construction Documents after they are submitted to the City by the
Consultant.
1.2.5 The City Commission shall hear appeals from the administrative decision of the City
Manager upon the Consultant's written request, in which case the Commission's decision
shall be final.
1.2,6 The City Commission shall approve or consider all change orders which exceed the sum of
ten thousand dollars ($1 0,000) (or other such amount as may be specified by the City of
Miami Beach Purchasing Ordinance. as amended).
1.3 CITY \L.\:\A(.ER
The "City Manager" shall mean the chief administrative oHicer of the City. The City
Manager shall be construed to include any duly authorized designees including a Project
Coordinator and shall serve as the City's representative to whom administrative requests for
6
approvals shall be made and who shall issue authorizations (exclusive of those authorizations
reserved to the Commission) to the Consultant. These authorizations shall include, without
limitation: reviewing, approving, or otherwise commenting upon the schedules, plans,
reports, estimates, contracts and other documents submitted to the City by the Consultant.
1.3.1 The City Manager shall decide, in his professional discretion, matters arising pursuant to this
Agreement, which are not otherwise expressly provided for in this Agreement, and he shall
attempt to render administrative decisions promptly to avoid unreasonable delay in the
progress of the Consultant's work.
1.3.2 The City Manager shall additionally be authorized but not required at the request of the
Consultant to reallocate monies already budgeted towards payment of the Consultant,
providing, however, that he cannot increase the Consultant's compensation or other budgets
established by this Agreement. The City Managt:f, in his administrative discretion, may
consult with the City Commission concerning disputes or matters arising under this
Agreement regardless of whether such matters or disputes are enumerated herein.
The City Manager shall additionally be the sole representative of the City authorized to issue
a notice to proceed as referenced in Article 2 herein. The City Manager may consider,
comment upon or approve modifications in accordance \\ith applicable laws and ordinances.
1.3.3 The City Manager may approve change orders which do not exceed the sum often thousand
dollars ($10,000) (or other such amount as may be specified by the City of Miami Beach
Purchasing Ordinance, as amended) and which do not increase any of the budgets established
herein.
1.3.4 The City Manager may, in his sole discretion, form a committee or committees, or inquire
of or consult with persons for the purpose of receiving advice and recommendations relating
to the exercise of his powers, duties and responsibilities under this Agreement.
1.4 PROPOSAL DOCUMENTS
"Proposal Documents" shall mean the Request for Letter of Interest, for "Professional
Landscape Architectural Services For Various City Projects For A Two (2) Year Contract
Term For Capital Projects Where Basic Construction Cost Does Not Exceed $500,000.00
Per Project (RFLI NO. 63-94/95) issued by the City in contemplation of this Agreement,
together with all amendments thereto, if any, and the Consultant's proposal in response
thereto ("Proposal") which are deemed as being incorporated by reference in this Agreement
and made a part hereof; provided, however, that in the event of an express conflict between
the Proposal Documents and this Agreement, this Agreement shall prevail.
1.5 CONSULTANT
TI1\: ICl;J1Sultant" is herein ddined as Fuster rksign\""2;~tcs, a Florida Corpor8tion.
whose address is 2699 Collins A vneue, Suite 113, Miami beach, FI 33140,
1.5.1 All Consultants required by the needs of this project shall be July licensed and admitted to
practice landscape architecture in this State pursuant to Chapter 481, Florida Statutes, and
7
additionally possessing the requisite occupational licenses from the City and the County. All
engineers required by the needs of this project shall be duly licensed and certified by the
State of Florida to engage in the practice of engineering in this State. All special inspectors,
if any, required by the needs of this project shall be duly certified, licensed and registered
under Cha!Jld 471, Florida Statutes, as an engineer, or under Chapter 481, as an architect,
and shall additionally possess the requisite occupational license from the City and the
County.
1,5.2 The Consultant shall be liable for the Consultant's services, responsibilities and liabilities
under this Agreement and the services, responsibilities and liabilities of any subconsultants,
and any other person or entity acting under the direction or control of the Consultant. When
the term "Consultant" is used in this Agreement it shall be deemed to include any
subconsultants and any other person or entity acting under the direction or control of
Consultant.
1.6 BASIC SERVICES
"Basic Services" shall include the professional services of normal landscape architectural
services, and the coordination of structural, mechanicaVelectrical, civil engineering, and land
surveying services, if necessary for the design, preparation of contract documents and
administration of the Construction Contract for the project hereunder.
1,7 THE PROJECT
Various City Capital Projects where basic construction cost does not exceed $500,000.00 per
project, as assigned by the City Manager,
1.7.1 PROJECT COST
Project Cost for each project is not to exceed Five Hundred Thousand Dollars ($500.000),
Each project will require Statements of Probable Cost prior to bidding.
Should construction proposals exceed Final Probable Cost Statements by more than 5%, the
Consultant shall perform all modifications to plans and specifications at no cost to the City
for reissuance of the bid proposal.
The "Project Cost", as established by the Owner, shall mean the total cost ofthe project to
the owner which represents construction costs, professional compensation, land costs if any,
financing costs, materials testing services, surveys, and other miscellaneous Owner costs,
1.7,2 PROJECT SCOPE
The Ovmer shall establish the final Scope of Work for each project based on input from the
Community and Consultant. All modifications thereto shall be in writing, and provide same
to the Consultant prior to the start of the work.
8
1.8 CONSTRUCTION COST BUDGET
The "Construction Cost Budget" for these project shall mean a sum which will not exceed
the amOlmt of Five Hundred Thousand Dollars ($500,000) and is the total cost to the Owner
of all elenlcltLs of the Project designed or specified by the Consultant and approved by the
Owner, including at current market rates (with a reasonable allowance for overhead and
profit), the cost of labor and materials and any equipment which has been designed,
specified, selected or specifically provided for by the Consultant and approved by the City,
and including a contingency allowance for unforeseen conditions but not to exceed ten
percent (10%) of the Construction Cost but not including the compensation of the Consultant
and the Consultant's consultants, rights-of-way, the cost ofland, materials testing services,
and surveys.
1,8,1 The Construction Cost Budget, as established by the Owner, shall not be exceeded absent
fully justifiable and extraordinary and unforeseen circumstances. such as force majeure,
which is beyond the control of the parties and which in any event shall be subject to prior
City Commission and/or City Manager approval by passage of an enabling resolution and
amendments to the appropriate agreements relative to this project prior to any modification
of the construction costs due to force majeure. Provided further, however, that even in the
event of a force majeure as defined below, the City shall have no obligation to exceed the
Construction Cost Budget limitations established herein.
1.9 FORCE MAJEURE
"Force Majeure" shall mean any delay occasioned by superior or irresistible force occasioned
by violence in nature without the interference of human agency such as hurricanes. tornados,
flood and total loss caused by fire and other similar unavoidable casualties, changes in
federal, state or local laws, ordinances, codes or regulations, enacted after the date of this
Agreement and having a substantial impact on the project or other causes beyond the
Consultant's control or by any other such causes which the Consultant and the City
Commission decide in writing justify the delay, Provided, however. that market conditions.
labor conditions, construction industry price trends and similar matters which normally
impact on the bidding process shall not be considered a Force Majeure.
1.10 CONTRACTOR
"Contractor" or "Contractors" shall mean those persons or entities responsible for performing
the construction work or providing the materials, supplies and equipment identified in the
bid and contract documents for the project.
1.11 CONTRACT FOR CONSTRUCTION
"Contract for Construction" shall mean contract with contractor(s),
9
1.12 CONSTRUCTION DOCUMENTS
"Construction Documents" shall mean the final plans, specifications, drawings, documents
and diagrams submitted by the Consultant pursuant to Article 2.4 and approved by the City.
-
1.13 CHANGE ORDER
"Change order" shall mean the written order to the Project Manager approved by the owner
as specified in this contract and signed by the Owner's duly authorized representative,
authorizing a change in the project or the method and manner of performance thereof or an
adjustment in the fees or completion dates, as applicable. Change orders shall only be
approved by the City Commission, if they exceed ten thousand dollars ($10,000) or the City
Manager if they are ten thousand dollars ($10,000) or less in amount (or other such amount
as may be specified by the City of Miami Beach Purchasing Ordinance, as amended), Even
for change orders for less than ten thousand ($10.000) the City Manager shall retain the right
to seek and obtain concurrence of the City Commission for the approval of any such change
order.
1.14 ADDITIONAL SERVICES
"Additional Services" shall mean those services described in Section 2,10 herein, which have
been duly authorized in writing by the City Manager.
1.15 WORK
"Work" shall mean all of the work to be performed on the project pursuant to the contract
documents and the construction and bid documents.
1. 16 BASE BID
"Base Bid" shall mean the elements contained in the Construction Documents recommended
by the Consultant and approved by the owner as being within the Construction Cost Budget
pursuant to the Statement of Probable Construction Cost provided by Consultant "Base Bid"
shall not include" Additive Alternates" or "Deductive Alternates".
1.17 SCHEDULES
"Schedules" shall mean the various schedules attached to this Agreement and referred to in
the Agreement, and are as follows:
Schedule A Service Order Form
Schedule B The schedule of hourly rates of compensation for the Consultant for
:\JJitio!l;lI)I.."l'\ ic~s. JS submittcj ~.: the Consultant ::rd Jrproycc h; the
City,
Schedule C The schedule of hourly rates of compensation for the Consultant's
sub-consultants for Additional services as submitted by the Consultant and
10
approved by the City Manager. Amendments to any City approved hourly
rates schedule shall require the same formalities as amendments to the
contract itself.
1.18 UPSETL;~,nT
"Upset Limit" as to any Service Order shall mean the maximum Cumulative fee allowable
under the Service Order for fees billed in accordance with Schedules B and C, which the
Consultant shall not exceed without specific written authorization. The Upset Limit is not
a guaranteed maximum cost for the Scope of Work set forth in the Service Order.
ARTICLE 2.
SCOPE OF SERVICES
2.1 STUDY PHASE
All site investigations, concept development, park or park system planning, programming,
program investigating and evaluation services, economic studies, feasibility studies and
master plans will be performed by the Consultant as a component of the Study Phase, The
Study Phase shall be compensated on the basis of a mutually agreed upon lump sum and
proceed the Design Phase including, but not limited to the following:
*
Documentation and analysis of existing site conditions, including identification and
location of all existing utilities within the project area.
Development of studies of alternative improvements based on information received
from the community. These studies will consist of drawings and other graphic
material necessary to convey the ideas, estimates of probable construction cost and
phasing of construction.
Public hearings. workshops or meetings to prepare development concepts, The total
number of meetings shall be determined by the Project Manager prior to the initiation
of the Study Phase.
Prepare a summary plan which documents the consensus plan with estimate of
probable construction cost and phasing of construction consistent with funding,
*
*
*
2.2 BASIC SERVICES
The Consultant shall provide Basic Service and/or Additional Services for this project. The
Consultant is aware that this is a non-exclusive Agreement, and that the City also has other
consultants under contract to provide landscape architectural services for projects under
$500,000,00. The City Manager shall have the discretion to determine which of the
Consultants under contract shall be awarded a particular project under consideration. The
work for each project will be performed by the Consultant upon receipt of a written
"Ser\ice Order" issLle~l :::' the City \bn~gcr. The S,::"\ic..: 0d..:; ,;1~~," .~ 'ntJin ~1 c:.>:ription
of the work required (Scope of Work), contain either an agreed amount lump sum fee or
hourly fee, as provided in Schedules B and C, with an upset limit for the work, reimbursable
expenses, the Construction Cost Budget for the Project and a description of th~ type of
services, Consultant shall countersign the Service Order.
11
2.3 The Consultant's Basic Services shall consist of the four phases described in Paragraphs 2.4
through 2.7 and include normal landscape architectural, and the coordination of structural,
civil, and mechanical/electrical engineering services.
2.4 DESIGN (-'iiASE
2.4.1 Based on the mutually accepted program, investigation of existing conditions and project
budget requirements as defined and approved in the Study Phase, the Consultant shall
prepare, for approval by the Owner, design documents consisting of drawings and other
documents appropriate for the project, and shall submit to the Owner a Statement of Probable
Construction cost.
2.5 CONSTRUCTION DOCUMENTS PHASE
2.5.1 Based on the approved design documents, the consultant shall prepare, for approval by the
City, three (3) copies of the construction documents, One of these copies shall be in the form
of a reproducible Mylar, for bidding purposes. Consultant shall also file with the
Coordinator at said time, the following items:
(a) four (4) copies of the Statement of Probable Construction Cost,
(b) four (4) unbound copies of advertisement for bids,
(c) four (4) unbound copies of the bid proposals, and
(d) final maintenance impact report.
Consultant shall also provide City with one (I) additional set of construction documents at
approximately eighty percent (80%) completion approximately thirty (30) days prior to the
date for delivery of the three (3) copies of 100% complete construction documents for review
by and comment by City's Building Department. Should additional sets be required,
Consultant will be reimbursed for the actual cost of reproduction, upon approval in advance
by the City.
2.5.2 Construction documents will be prepared, signed and sealed by design professionals, The
Construction documents shall call for a construction period as approved by the City
Manager. The entire project will be publicly bid with a Base Bid and such Additive
Alternates and/or Deductive Alternates as may be requested by City, to reasonably insure
that the award will be within the Construction Cost Budget.
The Construction Documents shall set forth in detail the requirements for construction of the
project including all the contractual, code (laws, rules and regulations), and technical
specifications and requirements under which the work is to be conducted.
In addition to complying with all other applicable codes, the project shall comply with. and
the construction documents shall fully set forth any requirements as necessary for the project
tu eompl~, \\ith all app:i-':Jbk pru\ision~ urthe norida .\ccessibiJity CllJ;.:- (~;.:-c.:tic'::<' ~~3.50J-
553,513 Florida Statutes [1993]) and the American with Disabilities Act Accessibility
Guidelines (ADAAG) both separately and jointly.
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All prerequisites for approvals and permits shall be the sole responsibility of the Consultant.
Prior to advertisement for bids Consultant shall assist the City by providing all documents
required to obtain all necessary local, state and federal permits as may be required for
construction of the Project.
2.5.3 The Consultants expressly agree that all of their duties, services and responsibilities under
this contract and all of their Consultant's duties, services and responsibilities shall be
performed in accordance with the standard of care normally exercised in the design of
projects of this nature in South Florida. "Standard of Care" includes an analysis of visible
site field conditions prior to initiating project design.
2,6 BIDDING OR NEGOTIATION PHASE
2,6.1 The Consultant, following the City's approval of the Construction Documen~s and of the
latest Statement of Probable Construction Cost, shall assist the City in obtaining lump sum
bids with the Additional and/or Deductive Alternatives and assist in awarding and preparing
the contract for construction,
2,6,2 Consultant shall be required to tabulate all bids. Within three (3) working days thereafter,
the Consultant shall submit in writing to the City's Project Coordinator, their
recommendations for the award or rejection of the construction contract, together with two
(2) sets of the bid tabulations to be reviewed by the City.
2.7
2.7.1
CONSTRUCTION PHASE. CONSTRUCTION OBSERVATION
ADMINISTRATION OF THE CONSTRUCTION CONTRACT
AND
The Construction Phase will commence with the award of the Contract for Construction and,
will terminate when final payment to the Contractor is due, or in the absence of a final
Certificate for Payment or of such due date, (60) sixty days after the Date of Substantial
Completion of the Work or sixty (60) days after the completion date specified in the contract
for construction at the time of the award, whichever occurs last, The City's Project
Coordinator will be the City's representative monitoring the construction. The presence of
this coordinator in no way diminishes any of the Consultant's duties and obligations as
described in these terms and conditions. All changes which would result in an increase of
compensation to the Consultant must be approved by the City Commission by passage of a
resolution, or the City Manager if such change is less than 10 percent of the amount set forth
in the Service Order. The City's Project Coordinator shall be considered to be monitoring
the project for the benefit and protection of the City, and Consultant shall have no right to
rely on the Project Coordinator for assurances or advice regarding work which is the
responsibility of the Consultant. The Consultant and the City's Project Coordinator will hold
regular site meetings at least three (3) times a month between themselves, the contractor and
the various subcontractors as is appropriate,
~:).: CUlbLl;lant sheill pi') \ i,,:c aJn~inistration or :1;c cunstruction cOr'~trJct J:' set forth herein
in the general or supplemental conditions of the contract for construction, and the
Consultant's assigned authority thereunder shall not be modified without the Consultant's
written consent.
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2.7.3 The Consultant shall advise and consult with the City, and keep it informed of the progress
of the work, including percentage completed on a monthly basis, during the Construction
phase. After issuance of the work order to proceed with the work, all of the City's
instructions to its contractors shall be issued through the Consultant's representative with
approvalt1vi.he City.
2.7.4 The Consultant shall visit the site at periodic intervals appropriate to the stage of
construction, or as is otherwise requested by the City to become familiar with the progress
and quality of the work and to determine if the work is proceeding in accordance with the
contract documents, The Consultant shall not be obligated to make continuous or exhaustive
on-site inspections to check quality and quantity of the work. On the basis of such on-site
inspections, the Consultant shall keep the City informed of the progress and quality of the
work and shall endeavor to guard the City against defects, deficiencies in the work of the
Contractor. Upon discovery of any defects or deficiencies the Consultant shall immediately
notify the City's Project Coordinator.
2,7,5 The Consultant shall not have control of or be in charge of and shall not be responsible for
construction means, methods, techniques, sequences or procedures, or for safety precautions
and programs in connection with the work, for the acts or omissions of the Contractor,
Sub-contractors or any other persons performing any of the work, or for failure of any of
them to carry out the work in accordance with the Contract documents.
2.7.6 The Consultant shall at all times have access to the work wherever it is in preparation or
progress.
2,7.7 The Consultant shall determine the amounts owed to the Contractor based on observations
at the site and on evaluations of the Contractor's applications for payment and shall issue
certificates for payment in such amounts, as provided in the contract documents, subject to
City's approval.
2.7,8 The issuance of a certificate for payment shall constitute a representation by the Consultant
to the City, based on the Consultant's observations at the site as provided in Subparagraph
2.7.4 and on the data comprising the Contractor's application for payment, that, to the best
of the Consultant's knowledge, information and belief, the work has progressed to the point
indicated; that, based on the Consultant's observation of the work, the quality of the work is
in accordance with the contract documents (subject to an evaluation of the work for
conformance with the contract documents upon substantial completion, to the results of any
subsequent tests required by or performed under the contract documents, to minor deviations
from the contract documents correctable prior to completion, and to any specific
qualifications stated in the certificate for payment), and that the Contractor is entitled to
payment in the amount certified. However, the issuance of a certificate for payment shall not
be a representation that the Consultant has made any examination to ascertain how and for
what purpose the Contractor has used the monies paid on account of the contract sum.
2.7.9 The Consultant shall be the interpreter of the requirements of the contract documents and the
judge of the performance thereunder by both the City and the Contractor, The Consultant
shall render interpretations necessary for the proper execution of the progress of the work
with reasonable promptness on written decisions, within twenty (20) days on all claims.
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disputes and other matters in question between the City and the Contractor relating to the
execution or progress of the work or the interpretation of the contract documents. All actions
required by Consultant under this Paragraph shall be taken expeditiously.
2.7.10 Interpretations and decisions of the Consultant shall be consistent with the intent of and
reasonable inferable from the contract documents and shall be in written or graphic form.
2.7.11 The Consultant shall, after discussion with the Project Coordinator, have authority to reject
work which does not conform to the contract documents. Subject to the City's approval, the
Consultant will have authority to require special inspection or testing of the work when it is
necessary or advisable (in the Consultant's opinion) for the implementation of the intent of
the Contract Documents whether or not such work be then fabricated, installed or completed.
2.7.12 The Consultant shall review and approve or take other appropriate action upon the
Contractor's submittal such as Shop Drawings, Product Data, and Samples and other
submissions of the Contractor for conformance only with the design concept of the work and
with the information give in the contract documents. Such action shall be taken with
reasonable promptness so as to cause no delay. The Consultant's approval of a specific item
shall not indicate approval of an assembly of which the item is a component.
2.7.13 The Consultant shall prepare change orders for the City's approval and execution in
accordance with the contract documents, and shall have authority to order minor changes in
the work not involving an adjustment in the contract sum or an extension of the contract time
which are not inconsistent with the intent of the contract documents. Meeting notes
documenting all minor changes shall be presented in writing to the Project Coordinator after
each meeting.
2.7.14 The extent of the duties, responsibilities and limitations of authority of the Consultant as the
City's representative during the construction phase shall not be modified or extended without
written consent of the City Manager.
2.7.15 The City shall furnish, in a timely manner, structural, mechanical, chemical and other
laboratory tests, inspections and reports in their records, as required by law or the contract
documents for design.
2.7.16 The Consultant shall prepare a set of reproducible record drawings showing the complete
project as it is finally built (i.e., "as built" drawings) from information collected by the
Consultant from the contractor(s). These shall be similar in scale and scope to the contract
drawings but shall include all occurrences and instances where the finished improvements
differ from the contract drawings as a result of duly approved changes made during the
construction of the project. In that record drawings are based on information provided by
the Contractor(s), Consultant cannot and does not warrant their accuracy.
2.7.17 Consultant shall conduct inspections to determine the Dates of Substantial and Final
Completion and shall issue a certificate for final payment by the Contractor under the
Contract Documents. The index and summary shall list each of the warranties, indicating
the term, conditions, and the purported legal enforcement and recourse rights of the City as
indicated by the language in the Warranty.
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2.8 RESPONSIBILITY FOR CLAIMS AND LIABILITIES
2.8.1 Approval by the City shall not constitute nor be deemed a release of the responsibility and
liability of the Consultant, his employees, sub-contractors, agents and consultants for the
accuracy and competency of their designs, working drawings, specifications or other
documents and 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 Consultant, his employees,
sub-contractors, agents and consultants. However, the Consultant shall be entitled to reply
upon the accuracy and validity of decisions and information furnished by the City,
2.~.2 D1SABJLTTY \VD 'l'ONDISCRIl\H~":Tf)N POT,ICY
The Consultant agrees to adhere to and be governed by all applicable requirements of the
laws listed below including, but not limited to, those provisions pertaining to employment
provision of programs and services, transportation, communications, access to facilities,
renovations, and new construction.
The Americans with Disabilities Act of 1990 (ADA): Pub. L. 101-336, 104 Stat 327, 42
US.c. 12101-12213 and 547 U.S.c. Sections 225 and 611 including Title I , Employment;
Title II, Public Services; Title III, Public Accomodations and Services operated by Private
Entities; Title IV, Telecommunications: and Title V, Miscellaneous Provisions,
The Rehabilitation Act of 1973: 29 U.S,c. Section 794
The Federal Transit Act, as amended: 49 U.S.C. Section 1612
The Fair Housing Act, as amended: 42 U.S,C. Section 3601-3631
The Consultant must complete ans submit the City's Disability Non-Discrimination Affidavit
(Affidavit), In the event the (Contractor) fails to execute the City's Affidavit, or is found to
be in non-compliance with the provisions of the Affidavit, the City may impose such
sanctions as it may determine to be appropriate, including but not limited to, witholding of
payments to (Contractor) under the Agreement until compliance and/or cancellation,
termination or suspension of the Agreement in whole or in part. In the event, the City cancels
or terminates the Agreement pursuant to this Section, (Contractor) shall not be relieved of
liability to the City for damages sustained by the City by virtue of (Contractor's) breach of
the Agreement.
2.9 ADDITIONAL FIELD REPRESENTATION
Should the City and the Consultant agree that more extensive representation at the site than
is described in rJr~1:;;.Jph 2.7 is ~d'.;s}ble. such ~'.c,:::;oml project representJtion shall j-,.
provided and paid for as an Additional Service,
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2.10 ADDITIONAL SERVICES
Unless specifically provided for in this Agreement, the following services are not included
in Basic Services. Any additional service must be authorized in writing by a City
Commission Resolution or by the City Manager in advance of its performance, and may be
paid for as a multiple of direct personal expense, as outlined in Schedules B and C.
Additional services will consist of the following services.
2.10.1 Making revisions in or addition to drawings, specifications or other documents when such
revisions or additions are inconsistent with written approvals or instructions previously
given, or are required by the enactment or revision of codes, laws or regulations subsequent
to the preparation of such documents or are due to other causes not solely within the control
of the Consultant.
2.10.2 Making il1\'estigations, surveys, valuations, inventories or detailed appraisals of existing
facilities, and services required solely in connection with construction performed for the
City.
2.10,3 Providing consultation concerning replacement of any work damaged by fire or other cause
during construction, and furnishing services as may be required in connection with the
replacement of such work.
2,10.4 Providing services made necessary by the default of the contractor, or by major defects or
deficiencies in the work of the Contractor, (provided Consultant promptly notified the City
of any such defects or deficiencies observed by Consultant) or by failure of performance of
either the City or Contractor under the contract for construction,
2,10,5 Providing basic services after issuance to the City of the final certificate for payment, or in
the absence of a final certificate for payment, more than sixty (60) days after the date of
substantial completion of the work, or sixty (60) days after the completion date set forth in
the construction contract, whichever is later.
2.10,6 Preparing to serve or serving as an expert witness in connection with any public hearing,
arbitration proceeding or legal proceeding unless such preparation has arisen from failure of
the Consultant to meet the Standard of Care established in Section 2.5.3,
2.10.7 Preparing documents for change orders, or supplemental work initiated at the City's request
and outside the scope of the work specified in the construction documents, after
commencement of the construction phase.
2,10.8 Making revisions in Drawings, Specifications or other documents when such revisions are
inconsistent with written approvals or instructions previously given, are required by the
enactment or revision of codes, laws or regulations subsequent to the preparatiun of such
"L ~ ~lm..:nts. If chcmges are requi:":'2 to re made !--..:, ..'Jse (,f cTc"" "\('r~ight. if'" ~\'ertencc"
clarification or discrepancy in the work of the Consultant, City shall not be liable to
compensate Consultant for additional services in such cOImecrion.
17
2.10.9 Providing consultation concerning replacement of a new project or damage by fire
or other cause during construction, and furnishing professional services the type set
forth herein as may be required in connection with the replacement of such work:
2.10,10 Providing professional services made necessary by the default of any contractor or
sub-contractor in the performance of the construction contract.
2.10.11 Providing contract administration services during the construction phase, should the
construction contract time and working days be extended by more than ten percent
(10%) or a minimum of seven (7) days through no fault of the Consultant.
2.10,12 Providing planning, programming, program investigating and evaluation services,
economic studies. feasibility studies. unless such studies are included in the Basic
St:rvices described in Section 1.6 by mutual consent of the Consultant and the City,
2.10.13 Providing certified land surveys and similar information.
2,10.14 Providing such other professional services to the City relative to this Project which
arise from subsequent circumstances and causes (excluding circumstances and causes
resulting from error, inadvertence or omission of the Consultant) which do not
currently exist or which are not contemplated by the parties at the time executing this
agreement. Services provided for by this subsection must be approved by a City
Commission Resolution or by the City Manager before such services are rendered,
2.11 TIME
It is understood that time is of the essence in the completion of this project, and in this
respect the parties agree as follows:
2.11.1 The Consultant shall perform Basic and Additional Services as expeditiously as is consistent
with the standard of professional skill and care required by this Agreement and the orderly
progress of the work. The Consultant may submit to the City adjustments to this schedule
made necessary by undue time taken by the City to approve the Consultant's submissions,
and/or excessive time taken by the City to approve the work or parts of the work. The City
shall not unreasonably refuse to approve such adjustment to the time schedule if the request
is made in a timely manner and is fully justified. This schedule, when approved by the City,
shall not, except for reasonable cause, be exceeded by the Consultant.
2.11.2 The parties agree that the Consultant's services during all phases of this project will be
performed in a manner which shall conform with the approved schedule, as may be amended.
ARTICLE 3.
THE CITY'S RESPONSIBILITIES
3,1 The City has provided Consultant with the Project goals and design elements as set forth in
the Proposal Documents and in Article 1,7 herein, and shall provide consistent \vith the
foregoing described goals such additional requirements for the Project as may be necessary,
18
including space requirements and relationships, flexibility and expendability, special
equipment and systems and the site requirements.
3.2 The City shall establish a Construction Cost Budget for the Project, which may include
contingencies for bidding, changes in the work during construction, and other costs which
are the responsibility of the City, including those described in this Article 3 and in
Subparagraph 4.1,2. The City shall, at the request of the Consultant, provide a statement of
funds available for the Project, and their source.
3,3 The City Manager shall designate a representative defined as the City's Project Coordinator
authorized to act in the City's behalf with respect to the Project. The City's Project
Coordinator shall examine the documents submitted by the Consultant and shall transmit
wrine!1 decisions pertaining thereto promptly. to avoid unre::lsonable delav in the progress
of the Consultant's services, The City shall observe the procedure of issuing orders to its
contractors only through Consultant.
3.4 In the City's sole discretion, the City may furnish legal, accounting and insurance counseling
services as may be required at any time for the Project, including such auditing services as
the City may require to verify the contractor's applications for payment or to ascertain how
or for what purposes the Contractor uses the moneys paid by or on behalf of the City.
3,5 If the City observes or otherwise becomes aware of any fault of defect in the Project or
nonconformance with the contract documents, prompt written notice thereof shall be given
by the City to the Consultant.
3,6 The City shall furnish required information and services and render approvals and decisions
in writing as expeditiously as necessary for the orderly progress of the Consultant's services
and of the Work. No approvals required by City during the various phases of the Project
shall be unreasonably delayed or withheld; provided that City shall at all times have the right
to approve or reject the proposed submission of Consultant on any reasonable basis,
ARTICLE 4.
CONSTRUCTION COST
4.1 DEFINITION
4,1,1 The Construction Cost shall be the total cost or estimated cost to the City of all elements of
the Project designed or specified by the Consultant and approved by the City as more
completely defined in Article 1.8.
4.1.2 Construction Cost does not include the compensation of the Consultant and the Consultant's
consultants, the cost of the land, rights-of-way, materials testing services, and surveys.
I 1 "; L,r \\ork n,.'\ cC't1stmctcu. const~'.,ctic':-, ..:ost :111 be !l:':'~J'11C :lS t1:,' 1,"\' '<1 h 'C" fide bid or
competitive proposal received and accepted from a responsible bidder or proposer for any
and all of such work.
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4.1.4 For work which bids or proposals have not been let, construction cost shall be the same as
the latest Statement of Probable Construction Cost or detailed cost estimate. The City shall
have the right to verify the Probable Cost or detailed cost estimate by the Consultant.
4.2 RESPONSIBILITY FOR CONSTRUCTION COST
4.2.1 If the bidding phase has not commenced within three months after the Consultant submits
the construction documents to the City, and the City approvals have been made, the total
time being known as the date of approval, the Construction Cost Budget shall be adjusted
to reflect any change in the general level of prices in the construction industry between the
date of submission of the construction documents to the City and the date on which proposals
are sought.
4.2.2 If the lowest bona tide base bid exceeds the Construction Cost Budget (adjusted as pro"ided
in Subparagraph 4,2.2) by more than five percent (5%), the City Commission or the City
Manager shall in its sole discretion, have any of the following options:
(1) give written approval of an increase in the Construction Cost Budget,
(2) reject all bids or proposals, authorize rebidding, or (if permissible) authorize a
renegotiation of the Project within a reasonable time,
(3) abandon the project and terminate Consultant Services for the Project covered by this
Agreement,
( 4) select as many deductive alternatives as may be necessary to bring the award within
the construction cost budget, or
(5) cooperate with the Consultant in reducing the project scope and quality and
construction schedule and sequence of work as required to reduce the construction
cost.
In the event the City elects to reduce the Project scope and quality, Consultant shall provide
such revisions to the construction documents and provide rebidding services, as many times
as requested by City, as a Basic Service, with no additional cost to the City in order to bring
the bids within five percent (5%) of Construction Cost Budget.
ARTICLE 5.
DIRECT PERSONNEL EXPENSE
5.1 For Additional Services rendered under this Agreement, the Consultant and its
sub-consultants, if any, shall be reimbursed on the basis of the hourly rates set forth in
Schedules B and C.
ARTICLE 6.
REIMBURSABLE EXPENSES
6.1 Rcij:,bur:;~lblc c\:penses are in additicm to the compensation for basic and additional services
and include actual expenditures made by the Consultant and the Consultant's employees and
consultants in the interest of the Project for the expenses listed in the follov.ing
subparagraphs.
20
All reimbursable expenses pursuant to this article, must be authorized in advance by the City
Manager or the City's Project Coordinator. Invoices or vouchers for reimbursable expenses
shall be submitted along with supporting receipts, and other back-up material reasonably
requested by City, by the Consultant to the City, and Consultant shall certify as to each such
invoice that the amounts and items claimed as reimbursable are "true and correct and in
accordance with the Contract". Expenses subject to reimbursement in accordance with the
above procedures are as follows:
6.1.1
Expense of data processing when such data processing equipment is available either directly
by the Consultant or through an outside service, shall not be reimbursable but should be
included in Basic Services.
r; 1 "
).. .-
r f :\1 lth.>;-i7cJ i :1~c!' ':'.:1CC by the City \br:;}~e or the City's Prej ec~ (\"f'I:(' :nato"'. '~~:r,~n~c (' f
overtime work requiring higher than regular rates not causeC: by Consultant or part of
Consultant's Basic Services, special consulting services, if any, or other services.
6,1,3 Expense of any additional insurance coverage or limits requested by the City in excess of the
insurance requirement set forth in Article 14,
6.1.4 Expense of transportation in connection with the Project; living expenses in connection with
out-of-town travel; long distance communications; and fees paid for securing approval of
authorities having jurisdiction over the Project. Consultant shall comply with the City's
standards for reimbursable travel expenses, Travel within Dade County shall not be
reimbursable.
6.1.5 Expense of reproduction, postage and handling of drawings, specifications and other
documents, except for those expenses to be borne by the Consultant under the Basic
Services, excluding reproductions for the office use of the Consultant and the Consultant's
consultants.
6,1.6 Aerial photography expenses and other photographic production expenses.
ARTICLE 7.
PAYMENTS TO THE CONSULTANT
7.1 PAYMENTS ON ACCOUNT OF BASIC SERVICES
7.1.1 Payments for Basic Services shall be made monthly based upon work completed and
approved by the Project Coordinator, upon presentation and receipt of Consultant's invoice
or statement. Payments shall be made in proportion to the service performed in each phase
so that the payments for Basic Compensation for each phase shall equal the following
percentages of the Total Compensation payable: Design Phase -35%; Construction
Documents Phase - 40%; Bidding Phase - 5%; Construction Phase - 20%.
7.2 PAYMENT ON ACCOUNT OF ADDITIONAL SERVICES
7.2,1 Payment on account of the Consultant's additional services as defined in Section '::;,9 and for
reimbursable expenses defined in Article 6 shall be made within forty-five (45) days of
21
presentation of the Consultant's detailed statement or invoice of services rendered or
expenses incurred which shall be rendered in duplicate to the City Manager.
7.3 PROJECT SUSPENSION OR TERMINATION
7.3.1 Upon written notice to Consultant, the City shall have the right to suspend or terminate the
service called for in this Agreement. If the project is suspended or abandoned in whole or
in part for more than three (3) months, the Consultant shall be compensated for all services
performed prior to receipt of written notice from the City of such suspension or such
abandonment, together with reimbursable expenses then due. If the project is resumed after
being suspended for more than three (3) months, the Consultant's compensation shall be
equitably adjusted including any necessary start-up costs. Prior to any payment due to
susper;~ion. the Consultant must provide the City with all documents. reports. drawings.
computer reports and the like reflecting tr.e work completed to date.
7,3,2 No deduction shall be made from the Consultant's Compensation on account of sums
withheld from payments to Contractors.
ARTICLE 8.
CONSULT ANT'S ACCOUNTING RECORDS
8.1 Records of reimbursable expenses and expenses pertaining to additional services and services
performed on the basis of a multiple of direct personnel expense shall be kept on the basis
of generally accepted accounting principles and shall be available to the City and the City's
authorized representatives at mutually convenient times and location.
ARTICLE 9.
OWNERSHIP AND USE OF DOCUMENTS
9.1 All plans or drawings will be prepared and submitted by Consultant to City for approval.
Working drawings will be prepared on Plate B tracing cloth or Mylar drafting film or the
equivalent, with all lettering in ink or pencil or press-type and clearly legible when the sheets
are reproduced and reduced to half size.
9.2 All documents including, but not limited to, tracing, drawings, estimates, specifications,
investigations and studies completed or partially completed, shall become the property of the
City upon the completion or termination of each project and payment made of all amounts
for the individual project due the Consultant. The City agrees to indemnify and hold
harmless the Consultant from any and all claims arising from the reuse of said documents
or projects other than the specific project contemplated in the documents and by the parties
and/or for completion of said documents by others, unless Consultant is in default under the
terms of this Contract.
9.3 Upon cC'n':-,l~tic'll of tnc cnn<:tmction nf tne project Cnn<:ultmt shall. within ninety (90)
calendar days, following tinal inspection, deliver to the City the original contract working
drawings and tracings, or Mylar or sepia prints (3 mil), correct to as built conditions, and
subject to Paragraph 2,6,16 to the City's Construction Coordinator, including all changes
made during the course of the project. Consultant shall deliver the above documents to the
22
City within thirty (30) days of termination of this Agreement or termination or abandonment
of the Project.
ARTICLE 10.
TERMINATION OF AGREEMENT
10.1 RIGHT TO TERMINATE
The City may terminate this Agreement for cause in the event that : (1) the Consultant
willfully violates any provisions of this Agreement or performs same in bad faith, or (2)
unreasonably delays the performance of the Services, upon notice to the Consultant in
writing seven (7) days prior to termination. Payment for Services performed shall then be
rr:ade ~n accordnncc with Article 10,] here:n '
10.2 THE CITY. IN ADDITION TO THE RIGHTS AND OPTIONS TO TERMINATE GIVEN
ABOVE, OR ANY OTHER PROVISIONS SET FORTH IN THIS AGREEMENT,
RET AINS THE RIGHT TO TERMINATE THIS AGREEMENT AT ITS SOLE OPTION
AT ANY TIME FOR CONVENIENCE, WITHOUT CAUSE AND WITHOUT PENALTY,
WHEN IN ITS SOLE DISCRETION IT DEEMS SUCH TERMINATION IS IN THE BEST
INTEREST OF THE CITY. PAYMENT FOR SERVICES SA TISF ACTORIL Y
PERFORMED AND FOR DELIVERY OF DOCUMENTS SHALL BE IN ACCORDANCE
WITH ARTICLE 10.4 HEREIN.
The Consultant may terminate this Agreement for cause in the event that the City, acting
through its Project Coordinator or otherwise, willfully violates any provisions of this
Agreement or unreasonably delays payment for the Services, upon written notice to the City
thirty (30) days prior to termination. In that event, payment for Services satisfactorily
performed prior to the date of termination shall be made in accordance with Article 10.3
herein. The Consultant shall have no right to terminate this Agreement for convenience of
the Consultant, without cause,
23
10.3 TERMINATION FOR CAUSE
In the event this Agreement is terminated by City for cause, the City, acting through the Ciry
Manager, may take over the Services and complete them, by contracting with another
Consultant(s) or otherwise, and in such event, the Consultant shall be liable to the City for
any additional cost incurred by the city due to such termination. "Additional Cost" is defined
as the difference between the actual cost of completion of such incomplete Services and the
cost of completion of such Services which would have resulted from payments to the
Consultant hereunder had the Agreement not been terminated.
Payment for Services satisfactorily performed by the Consultant prior to receipt of notice of
Termination for Cause, and accepted by the City, shall be made in accordance with Article
~.; her<n ~;i1d Ct:' ~'h:l~l have no further li~bi1ity for compensation expe;.ses C.T fees to
Consultant, except as set out in Article 7,1.
Upon receipt of \\>Titten notice of termination, the Consultant shall, when directed by the
City, promptly assemble and submit as provided herein or as required in the \VTinen notice
hereunder, all documents including drawings, calculations, specifications, correspondence,
and all other relevant materials affected by such termination,
In the event of Termination for Cause, no payments to the Consultant shall be made: (1) for
Services not satisfactorily performed; and (2) for assembly of submittal of documents for the
Services performed satisfactorily or unsatisfactorily.
1 0.4 TERMINATION FOR CONVENIENCE NON-EXCLUSIVE PROVISIONS
In the event the City causes abandonment, termination or suspension of the Consultant's
Services or parts thereof without cause as provided in Article 10,1 herein, the Consultant
shall be compensated for all Services rendered up to the time of receipt of said abandonment,
termination, or suspension, and for the assembly and submittal to the City of affected
documents for the Services performed shall be in accordance with Article 7 herein and City
shall have no further liability for compensation expenses or fees to Consultant, except as set
out in Article 7.1.
10.5 IMPLEMENTATION OF TERMINATION
In the event of termination either for cause or for convenience, the Consultant, upon receipt
of the notice of termination, shall: stop the performance of Services under this Agreement
on the date and to the extent specified in the notice of termination; place no further orders
or subcontracts except as may be necessary for completion of any portion( s) of the Services
not terminated, and as authorized by the written notice; terminate all orders and subcontracts
to the extent that they relate to the performance of the Services terminated by the notice of
termination; promptly assemble and submit as provided herein all documents for the Ser\'ices
p2rfurmcJ. incl::~::n; dr~l\',ings. calcubtions. specifications. correspnr-dence. and all other
relevant materials affected by the termination; and complete performance of any Services as
shall not have been terminated by the notice of termination.
24
1 0.6 NON-SOLICITATION
The Consultant warrants that it has not employed or retained any company or person, other
than an employee working solely for the Consultant, to solicit or secure this Agreement: and
that it has not paid, nor agreed to pay any company or other person any fee, commission, gift
or other consideration contingent upon the execution of this Agreement. For breach or
violation of this warranty, the City has the right to annul this Agreement without liability to
the Consultant for any reason whatsoever.
ARTICLE 11.
MISCELLANEOUS PROVISIONS
11.1 This Agreement sh:!~l be ~overned by the bws of the StJte of Florida.
11.2 Terms in this Agreement which have not been defined in Article 1.1 shall have the same
meaning as those in AlA Document A201, General Conditions of the Contract for
Construction, current as of the date of this Agreement.
11,3 As between the parties to this Agreement; as to all acts or failures to act by either party to
this Agreement, any applicable statute of limitations shall commence to run and any alleged
cause of action shall be deemed to have accrued in any and all events not later than the
relevant Date of Substantial Completion of the Work and the issuance of the temporary
certificate of occupancy, and as to any acts or failures to act occurring after the relevant Date
of Substantial Completion, not later than the date of issuance of the final Certificate for
Payment.
11.4 The City and the Consultant waive all rights against each other and against the contractors,
consultants, agents and employees of the other for damages covered by any property
insurance during construction as set forth in the current edition of AlA Document A201.
General Conditions of the Contract for Construction, current as of the date of this agreement.
The City and the Consultant each shall require appropriate similar waivers form their
contractors, consultants and agents,
11.5 The term of this Agreement shall commence upon execution ofthis Agreement and cbnclude
upon the completion of the project. Specific dates and an schedule will be promptly
developed and approved by the City.
ARTICLE 12.
EXTENT OF AGREEMENT
12.1 This Agreement represents the entire and integrated agreement between the City and the
Consultant and supersedes all prior negotiations, representations or agreements, either
written or oral.
This agreement may be amended only by written instrument signed by both City and
Consultant utilizing the same formalities as were used for its adoption.
25
ARTICLE 13.
BASIS OF COMPENSATION
13.1 GENERAL
The City shall compensate the Consultant for the scope of services provided, in accordance
with Article 7, Payments to the Consultant, and with the other terms and conditions of this
Agreement.
13.2 COMPENSATION FOR SERVICES
The Consultant shall be compensated for Basic Services, Additional Services and
Reimbursable Expenses on the basis set forth below:
13.2.1 Except for lump sum Service Orders, which shall be paid in accordance with percentage of
work completed, Basic Services of the Consultant shall be compensated for on the basis of
an hourly rate in accordance with Schedule B - Consultant Hourly Compensation Rates - and
a multiple of 1.10 times the hourly rate charged to the Consultants by its subconsultants, as
set forth in Schedule C - SubConsultant Hourly Compensation Rate, The fee for Basic
Services may be a fixed fee (if both the City and the Consultant agreed to such method and
amount of compensation and the pro-rata share of the fee allocated to each phase of the Basic
Services for Federally-funded Community Development Block Grant projects that require
a lump sum architectural fee.
13.2.2 Any services not included in the provisions of this agreement and its conditions may be
carried out by the Consultant following written authorization by the City.
13.2.3 The hourly rate for compensation to the Consultant by the City for Additional Services as
defined in Article 13,2.2 shall be as set forth in Schedule "B" and a multiple of 1,10 times
the hourly rate charged to the Consultant as forth in Schedule "C", as may be amended by
written amendment. The term Additional Service includes any work required and approved
by the City including work involving all or any sub-consultants whether previously retained
for the work or not or whether participating as members with Consultant or not, subject to
the City's right to previously approve any change in the consultants as set forth in this
agreement.
13.3 For reimbursable expenses as described in Article 6, the Consultant shall be paid, up to the
reimbursable expense limit set forth in the Service Order the exact amounts expended by the
Consultant and consultants in the interests of the project subject to the Consultant furnishing
adequate documentation of the expense and, if required, demonstrating to the satisfaction of
the City that the expense was in the interest of the project.
13.4 Payments due the Consultant and unpaid under this Agreement will be considered due thirty
(30) days trom receipt by the City of a detailed statement or invoice unless City contest an
ikn; c)r items set f0rtn in the inyoice.
13,5 The City and the Consultant agree in accordance \vith the temlS and conditions of this
Agreement that:
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13.5.1 If the scope of the Project or the Consultant services is changed substantially and materially
as per Section 2.10, the amount of compensation shall be equitably adjusted, this will require
a contract amendment.
13.5.2 If the entire services covered by this Agreement have not been completed within twenty-four
(24) months of the date hereof, through no fault of the Consultants or its consultants, the
amounts of compensation, rates and multiples set forth herein shall be adjusted upwards to
compensate for changes in the cost of living by mutual agreement of the parties on the
unspent fee balance.
ARTICLE 14.
INSURANCE
The Consultant shall comply throughout the term of this agreement with the insurance
stipulated herein, It is agreed by the parties that the Consultant shall not commence with this
project until proof of the following insurance coverage has been furnished to the City. The
Consultant will maintain in effect the following insurance coverage:
(a) Architects and Engineers Professional Liability Insurance in the amount of Five
Hundred Thousand ($500,000) Dollars per occurrence on a claims made form,
(b) Comprehensive General Liability Insurance in the amount of $1,000,000 Single
Limit Bodily Injury and Property Damage coverage for each occurrence, which will
include products, completed operations, and contractual liability coverage, The City
must be named as an additional insured on this policy,
(c) Worker's compensation and employer's liability coverage within the statutory limits
of the State of Florida.
(d) Thirty (30) days prior written notice of cancellation or of substantial moditications
in the insurance coverage must be given by the Consultant to the City Manager.
(e) The insurance must be furnished by an insurance company rated B+:VI or better, or
its equivalent, according to Best' Guide Rating Book and must additionally be
furnished by insurance companies duly authorized to do business in the State of
Florida and countersigned by the company's Florida resident agent.
ARTICLE 15. INDEMNIFICATION
15.1 In consideration of a separate and specific consideration of $10.00 and other good and
valuable consideration the receipt of which is hereby acknowledged, the Consultant hereby
agrees to indemnify, defend and hold the City and its employees, agents and authorized
representatives harmless with respect to any and all costs, claims, damages and liability
which may arise out of the performance of this Agreement as a result of :mv negligent acts.
errors or omission of the Consultant, or the Consultants sub-consultants, if any, or any other
person or entity under the direction or control of Consultant. The Consultant shall pay all
claims and losses arising out of Consultant's negligent acts, errors or omissions and shall
defend all suits, in the name of the City, its employees. agents and authorized representati\'es
27
when applicable, including appellate proceedings, and shall pay all costs, judgments and
attorneys' fees which may issue thereon.
ARTICLE 16.
ARBITRATION
16.1 All claims, disputes and other matters in question between the Consultant and the City
arising out of, or relating to this Agreement, the Project, the Work, the Contract Documents
or the breach thereof may, at the City's sole option, and only upon the exercise of that sole
option by the City, together or separately as the City sees fit, be decided by arbitration in
accordance with the Construction Industry Arbitration Rules of the American Arbitration
Association.
16.2 Any arbitration arising out of or relating to this Agreement, the Project, the Work, the
Contract Documents, or the breach thereof may include by consolidation, joinder or in any
other manner, at the City's sole option, any other entities or persons whom the City believes
to be substantially involved in a common question of fact or law. In the event that more than
one claim, dispute or other matter in question shall be in existence at the same time, the City
may at its sole option decide which of such claims, disputes or other matters in question shall
be arbitrated and which shall not be arbitrated. Such decision shall be final and
unappealable, and no arbitration shall be authorized to consider, decide, or make any award
on any claim or matter which City has determined shall not be arbitrated.
16.3 In the event that the Consultant wishes to request arbitration of any claim, dispute or other
matter in question, the Consultant shall file a notice of demand for arbitration in writing with
the City specifically describing the claims, disputes and other matters in question which the
Consultant wishes to submit to arbitration. The Consultant may not unilaterally elect
arbitration or cause arbitration to occur. The City has the sole discretion to decide whether
or not any such claims, disputes, and other matters shall be submitted for arbitration. If the
City wishes to submit any claim, dispute or other matter in question, whether or not it is the
subject of a request for arbitration by the Consultant, the City shall file a notice of demand
for arbitration with the American Arbitration Association and with the Consultant.
16.4 The City shall have the right, but not the obligation, by so electing in its arbitration demand,
to invoke the following method of selection of arbitrators in lieu of that otherwise provided
by the American Arbitration Association Rules. If the City so elects in its notice of demand
for arbitration, the City may appoint one party-appointed arbitrator in its notice of demand
for arbitration. If the City does so, the Consultant may, within ten (10) days, appoint a
second party-appointed arbitrator. These two party-appointed arbitrators shall, within thirty
(30) days, or such further time as may be agreed upon between the City and the Consultant,
appoint a third arbitrator. If the party-appointed arbitrators fail to appoint a third arbitrator,
the third arbitrator shall be appointed in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association.
16.5 The City may elect in its notice of demand for arbitration, to have the discovery rights and
procedures provided by the Florida Rules of Civil Procedure to be available and enforceable
within the arbitration proceeding.
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16.6 In any case in which the City elects to submit a claim, dispute, or other matter in question
to arbitration as provided herein, the City shall, in its sole discretion, select the locale for the
arbitration, Any request or demand for arbitration hereunder shall be made before the date
when institution of legal or equitable proceedings based on such claim, dispute or other
matter in question would be barred by the applicable statute of limitations.
16.7 This agreement to arbitrate shall be specifically enforceable by the City under the prevailing
arbitration law. Any award rendered by arbitrators shall be final and enforceable by any
party to the arbitration, and judgment may be rendered upon it in accordance with applicable
law in any court having jurisdiction thereof.
16,8 Consultant and City mutually agree to arbitrate under the terms and conditions outlined in
this Anicle. C0l1sultJ.nt h::ls i:1C!ud~d in the contr~ct price h) be paid on this contract a sum
of not less than ten dollars ($10,00) as compensation and considerathn for irrevocably
offering the foregoing options and arbitration rights to City. In further consideration for such
irrevocable offer and grant of the foregoing options and arbitration rights to it, City agrees
that, notwithstanding its right and discretion not to do so, it shall arbitrate, after the final
completion of the work, any claims which Consultant selects which total, in the aggregate,
up to ten thousand dollars ($10,000). City's obligation to arbitrate such claims totalling up
to ten thousand dollars ($10,000) shall be specifically enforceable by Consultant under the
prevailing arbitration law and any award rendered by the arbitrator(s) shall be final and
enforceable by any party to the arbitration, and judgment may be rendered upon it in
accordance with applicable law in any court having jurisdiction thereof.
16.9 Unless otherwise agreed in writing, and notwithstanding any other rights or obligations of
either of the parties under any Contract Documents or agreements, the Consultant shall carry
on with the performance of its services and duties hereunder during the pendency of any
claim, dispute, other matter in question or arbitration or other proceeding to resolve any
claim, dispute or other matter in question, and the City shall continue to make payments to
the Consultant in accordance with the Contract Documents, but the City shall be under no
obligation to make payments to the Consultant on or against such claims, disputes, or other
matters in question, during the pendency of any arbitration or other proceeding to resolve
such claims, disputes or other matters in question.
16.10 The City and Consultant agree to abide by the Arbitrator's recommendation as to which party
shall bear the costs of arbitration.
ARTICLE 17.
LIMIT A TION OF LIABILITY
17.1 The City desires to enter into this Agreement only if in so doing the City can place a limit
on City's liability for any cause of action for money damages due to an alleged breach as
outlined in Paragraph 17,2 by the City of this Agreement, so that its liability for any such
breach never exceeds the amount of fee under any outstanding Service Order. Consultant
h(TCby c'\prcsses its \\'illi'lgnec;5 to enter inti"' this Agreement with Consultant's recovery from
the City for any damage action for breach of contract to be limited to a maximum amount
of the fee set forth in the Service Order, less the amount of all funds actually paid by the City
to Consultant pursuant to the Service Order.
29
17.2 Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant
hereby agrees that the City shall not be liable to Consultant for damages in an amount in
excess of the amount of fee under any outstanding Service Order, which amount shall be
reduced by the amount actually paid by the City to Consultant pursuant to the Service Order,
for any action or claim for breach of contract arising out of the performance or non
performance of any obligations imposed upon the City by this Agreement, except those
damages due to the intentional tort or negligent act or omission of the City (subject to the
limitations of applicable law). Nothing contained in this subparagraph or elsewhere in this
Agreement is in any way intended to be a waiver of the limitation placed upon City's liability
as set forth in Florida Statutes, Section 768.28.
ARTICLE 18.
ADDITIONAL CONDITIONS
18,1 The parties each hereby bind themselves, their successors. assigns and legal representatives
to each other with respect to the terms of the contract. l\"either party shall assign, sell, pledge
or otherwise transfer this contract or any portion thereof. without written authorization and
consent of the other party to this Agreement. The parties agree that the Consultant's Services
are unique in nature and that the Consultant may only receive such authorization by way of
a City Commission resolution,
18.2 The Consultant, its consultants, agents and employees and sub-contractors, shall comply with
all applicable federal, state and county laws, the charter. related laws and ordinances of the
City of Miami Beach, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies as they relate to this project.
18.3 This Agreement shall be enforceable in Dade County, Florida, and iflegal action is necessary
by either party with respect to the enforcement of any or all of the terms or conditions herein
exclusive venue for the enforcement of same shall lie in Dade County, Florida.
18.4 All wTitten notices given to City by Consultant shall be addressed to the City Manager. City
of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, with a copy
to the City Attorney, 1700 Convention Center Drive. Miami Beach, Florida 33139, All
written notices from the City to the Consultant shall be addressed to the Consultants, Fuster
Design Associates, 2699 Collins Avenue, Suite 113, Miami Beach, Florida 33140. All
notices mailed by either party shall be deemed to be sufficiently transmitted if sent by
certified mail, return receipt requested.
18.5 With respect to the investigation, detection, abatement, replacement or removal of products,
materials or process containing asbestos, the Consultant hereby states, and the Owner
acknowledges that the Consultant has no professional liability (errors or omissions) or other
insurance, and is unable to reasonably obtain such insurance for claims arising out of the
performance of or failure to perform professional services, including but not limited to the
prcpar:ltion of rcr>on.'i. dC'ii~ns. ';'.l\\ings. and specific,,' 'ib lmohing such asbcst'Js reLlted
matters, Accordingly, the Owner hereby agrees to bring no claim of negligence, breach of
contract, indemnity or otherwise against the Consultant, his principals, employees, agents
and consultants if such claim in any way would involve the Consultant's services for the
investigation of or remedial work related to asbestos in the Project in the event asbestos is
30
determined by either the City or the Consultant to be present in the Project, the other party shall be
given notice and the City agrees to retain a specialist asbestos Consultant to provide services relating
to the asbestos.
IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be
signed in their names by their duly authorized officers and principals, attested by their respective
witnesses and City Clerk on the day and year first hereinabove written.
ATTEST:
~
LEGAL DEP,.
By 1JtI~~
CONSULTANT:
...., -:-,...::
,...'.>" --
FUSTER DESIGN ASSOCIATES
By:
~~~
(Signature)
eMit/OJ. ~
(Type Name of Person Signing)
WITNESS:
~H~J
(Signature)
CORPORATE SEAL
k(II-s '- yj\J H~ FP
Type Name of Person Signing)
km
31
SCHEDULE "A"
CITY OF MIAMI BEACH CONSULTANT SERVICE ORDER
Service Order No.
for Consulting Services
TO:
DATE:
Pursuant
to
the
Agreement
between
City
of
Miami
Beach
and
for VARIOUS CITY CAPITAL PROJECTS WHERE BASIC CONSTRUCTION COST DOES
NOT EXCEED $500,000, you are directed to provide the following services (describe services):
Project Name and No,:
Calendar days to complete this work (from date of issue):
Phase 1: Study Phase, Design and Construction Document Phases
Phase 2: Construction/Contract Administration Phase One
Additional phases
$
$
T,B.D.
_days
_days
_days
Estimated Construction Cost:
Fee for this Service Order:
The above fee is a lump sum . or Upset Limit
, (check one)
Basic Service: $ Additional Service: $
(Lump Sump for Study Phase)
Reimbursable Expense: $
APPROVED:
ACCEPTED:
Project Coordinator
Consultant
32
SCHEDULE "B"
CONSUL T ANT COMPENSA TION RATES
1. A sliding scale for projects which fall within the total construction budget limits, as follows:
9.0%
8.5
8.0
7.5
7.0
6,5
6.0
$ 1,00
100,001
150,001
200,001
250,001
300,001
400,001
$100,000
150,000
200,000
250,000
300,000
400,000
500,000
2, Detail rates, including overhead and profit for hourly rates of personnel:
Principals $11 O.OO/per hour
Senior Architect $ 80.00/per hour
Draftsperson $ 55,OO/per hour
Secretary & Junior Draftsperson $ 40,OO/per hour
Consultants 1,1 times rate charged to Architect (see
Schedule C)
33
SCHEDULE "C"
SUB-CONSULT ANT HOURLY COMPENSATION RATES
Civil/Structural Engineering
Principal Engineer
Engineer
Drafting - Designer
Field Supervision
Clerical
$ 7 5,00
$65.00
$45.00
$60.00
$25.00
Surveying
3-man Survey Crew
Drafting
Professional Engineer
$70.00
$25,00
$65,00
Electrical-Mechanical Engineer
Principal Engineer
Engineer
Designer
Drafter
Clerical
$75,00
$65,00
$45.00
$40,00
$25,00
34