First Amendment with The Gordian Group
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FIRST AMENDMENT
TO THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA, AND
THE GORDIAN GROUP INC, FOR THE ESTABLISHMENT OF A JOB ORDER
CONTRACTING (JOC) SYSTEM.
This First Amendment to the Agreement, dated July 10, .2002, is entered into
this 15~' day of April, 2008, by the CITY OF MIAMI BEACH, a Florida municipal
corporation, whose address is 1700 Convention Center Drive, Miami Beach, Florida,
33139 (City), and THE GORDIAN GROUP, INC. (TGG), whose prinapal address is
140 Bridges Road, Suite E, Mauldin, South Carolina, 29662.
WITNESSETH:
WHEREAS, as provided in Request for Proposals No. 49-00/01 and Article X of
the Agreement, entitled "Changes of Scope,A the City desires to extend the existing
Agreement with TGG for an additional sixty (60) months, said extension commencing
on Aprii 15, 2008, and ending on April 15, 2013; and
WHEREAS, pursuant to Article VIII of the Agreement, entitled "Schedule of
Fees," the City and TGG have agreed to a fee schedule during the aforementioned
extension term, as set forth below.
NOW THEREFORE, the City, and TGG, for and in consideration of the mutual
covenants, agreements and undertakings herein contained, do by these presents
mutually covenant and agree to amend the Agreement, as follows:
1. The City and TGG hereby agree to an extension of the term of the Agreement;
said extension commencing on April 15, 2008, and ending on April 15, 2013.
2. For any amounts of work ordered under the JOC System during the extension
term, the City agrees to pay TGG based on the fee schedule attached in Exhibit
°A" hereto.
3. F~ccept as otherwise specifically amended herein, all other terms and conditions
of the Agreement shall remain in full force and effect. In the event there is a
conflict between the terms provided herein and the Agreement, the provisions
of this First Amendment shall govern.
IN WITNESS WHEREOF, the City and TGG have hereunto affixed their respective
hands and seals at the place, and on the day and date first hereinabove written.
Signed, sealed and delivered in the presence of:
Attest:
Ro ert Parcher, City Clerk
CITY OF MIAMI BEACH, FLORIDA:
Gonzalez, ~ty-IGanager
Attest:
Secretary
~ s~.~ C~~
(Print Name)
THE GORDIAN GROUP, INC.
President
(Print Name
APPROVED AS TO
FORM ~ LANGUAGE
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Exhibit "A"
THE
GORDIAN
GROUP® - -_ _.. _ ..__.. .
April 17, 2008
City of Miami Beach
Mr. Gus Lopez
Procurement Director
City Hall 1700 Convention Center Drive
Miami Beach, FL 33139
Re: Ucense Fee Dfscount Offer
Dear Mr. Lopez:
In response to your request for volume discounts from our standard fee schedule, please
see the discount fee schedule below that The Gordian Group, Inc ("TGG") is willing to
offer for extending the Agreement for TGG to provide Job Order Contracting consulting
services and licensed products to the City of Miami Beach (the "City") for an addfional
five (5) year period (inclusive of any option years).
This fee discount structure based on Job Order Value is a structure TGG has never
offered to another client; however it seems to be the structure that the City's CIP group
finds most valuable tD the City. In appreciation of our long-term relationship with the
City, and in recognition that CIP is the largest user of the system within the City, we are
wiling to accommodate their request.
Our discount fee schedule offer follows:
Job Order Size TGG License Fees
Individual Job Orders Up To $2,000,000 in Value 1.95°~
Individual Job Orders Between $2,000,001 and 1
75%
$5,000,000 in Value .
lndividuai Job Orders Over $5,000,000 in Value 1.50%
All Deduct Supplemental Job Orders (Negafive
Change Orders) will be Credited at the License
Fee Level of The Base Job Order. All Other
Supplemental Job Orders Witi be Billed Based on
their Individual Value According to the License
Fee Schedule Above.
We appreciated the opportunity to provide consulting services and licensed products to
the City and it is our preference to continue under revised terms of a new Agreement (or
t
Page 1 of 2
1d0 BRIDGES ROAD. SUITE E MAUIDIN. SOUTH CAROLINA Y9662 B00/87d-2291 FA% 864/288-'9100
an amendment to the existing Agreement). If you anticipate very large individual Job
OrrJers, this discount fee schedule should be attractive to you. Given the expiration of
our existing Agreement, and our on-site presence and licensed assets, please notify us
of the City's intent with regard to this Agreement renewal matter in a timely manner.
Sincerely,
Ed Snow
Treasurer
cc: Mike Guerra
Dave Mahler
File
Page 2 of 2
AGREEMENT
BETWEEN THE CITY OF NIIAMI BEACH, FLORIDA
AND THE GORDIAN GROUP, INC.
FOR THE ESTABLISHMENT OF A JOB ORDER CONTRACTING (JOC) SYSTEM
This Agreement is made this ~O ~ day of _ iK ~~/ , 2002, by and between the
City of Miami Beach, Florida, whose address is 1700 Convention Center Drive, Miami Beach, Florida
33139, ("Client"), and The Gordian Group, Inc., whose address is 531 South Main Street, Suite M7,
Greenville, South Cazolina 29601 ("TGG").
WITNESSETH
WHEREAS, Client desires to engage the services of a firm to serve as consultants and to perform
services related to the development and implementation of a Job Order Contracting Program ("JOC"), in
accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which aze hereby acknowledged, the
parties agree as follows:
ARTICLE I
TERM
Client hereby retains TGG as Client's Job Order Contracting Consultant for the term commencing
on the date of this Agreement and expiring sixty (60) months after the selection of the first job order
construction contractor, unless terminated or extended as provided for herein.
ARTICLE II
GRANT OF LICENSE
TGG hereby grants to Client and Client hereby accepts from TGG anon-exclusive right, license,
and privilege to use TGG's JOC System and other related Proprietary Information in connection with the
terms and conditions set forth in this Agreement. The parties hereby agree that "Proprietary Information"
shall include, but is not limited to, Construction Task Catalog (CTC)~ , PROGEN® software and support
documentation, and training materials developed by TGG. Client acknowledges that disclosure of
Proprietary Information will result in irreparable harm to TGG for which monetary damages would be an
inadequate remedy and agrees that no such disclosure shall be made to anyone without first receiving the
written consent of TGG. Client further acknowledges and agrees to respect the copyrights, registrations,
trade secrets and other proprietary rights of TGG in the Proprietary Information during and after the term of
this Agreement and shall, to the extent allowed under State of Florida Public Records law, at all times
maintain complete confidentiality with regard to the Proprietary Information provided to Client.
In the event this Agreement expires or terminates as provided herein, the Client shall return to TGG
all Proprietary Information in the Client's possession.
JOC Consulting Agreement July 10, 2002 Page 1 of 7
Notwithstanding the foregoing, Client shall be allowed to distribute materials as required for the
proper performance of JOC.
ARTICLE III
DUTIES AND RESPONSIBILITIES -BASIC SERVICES
TGG will assume the following duties and responsibilities:
1. TGG will provide experienced staff that will be responsible for the JOC development and
implementation program. This staff will report directly to Client and will be available to
assist Client with any JOC related issues.
2. TGG will be responsible for the development of JOC documents including the unit price
book, technical specifications, contract terms and conditions and bid documents.
3. TGG will be responsible for the development of the automated JOC proposal development
system (PROGEN®), which will be capable of generating the JOC documents including
contractor cost proposals, cost estimates and other management reports and forms.
4. TGG will be responsible for installing and testing PROGENY' on both Client and JOC
contractor hazdwaze systems. Client will have no restrictions on the number of PROGEN®
installations.
5. TGG will be responsible for testing/debugging PROGEN® under actual field conditions
prior to the implementation of JOC.
6. TGG will be responsible for conducting the activities necessary for establishing the
structure of the Client's JOC program, informing the internal Client staff as well as the
contracting community about JOC, assisting with procurement of the actual JOC
contractors and assisting with development of the actual execution procedures that Client
will use in executing the JOC concept. Specific services will include:
• Develop the JOC Program StructureBidding Strategy,
• Prepaze and Conduct Pre-Bid Seminars,
• Prepaze and Conduct an External Marketing Program,
• Prepare and Conduct an Internal Marketing Program, and
• Coordinate and Develop the JOC Execution Procedures.
7. TGG will be responsible for developing a comprehensive JOC training program, which will
include different course modules in order for Client staff to receive specialized training.
8. It shall be TGG's sole and absolute responsibility to familiarize itself with the City of
Miami Beach Procurement Ordinance, as same is codified in the Miami Beach City Code,
and as may be amended from time to time; any and all applicable City of Miami Beach
JOC Consulting Agreement July 10, 2002 Page 2 of 7
procurement procedures and policies; and any and all applicable State of Florida
procurement policies, as same are set forth in the Florida Statutes and as may be amended
from time to time. This Agreement, and TGG's duties and responsibilities herein, shall at
all times comply with the aforestated laws and policies.
9. TGG will be responsible for assuring that all Services to be provided in this Agreement,
and that the JOC Program itself, shall comply with all applicable City of Miami Beach and
State of Florida procurement laws, as same may be amended from time to time.
10. TGG staff will assist in the actual execution of the contracts by helping Client staff develop
the initial Work Orders. TGG staff will attend and monitor initial site visits, proposal
development and negotiation sessions. During the ninety (90) day period after award of the
first JOC contractor, TGG will provide on-site service as needed to ensure that the
implementation phase of the JOC program is completed successfully.
11. TGG will be responsible for providing comprehensive JOC support to Client for a period of
sixty (60) months following the award of the first JOC contract by Client. TGG will also
monitor the overall program and prepare any status reports required by Client.
ARTICLE IV
DUTIES AND RESPONSIBILITIES -ADDITIONAL SERVICES
TGG shall provide additional services to Client as mutually agreed. However, no additional service
will be provided by TGG without prior written authorization by Client.
ARTICLE V
DUTIES AND RESPONSIBILITIES -Client
Client will assume the following duties and responsibilities:
1. Review all documentation and requests for information submitted by TGG in a timely
manner.
2. Provide full information regarding requirements for the JOC Program, including but not
limited to facilities lists, current Client procedures, programs, technical specifications and
bidding information.
3. Designate, in writing, a representative who shall render or obtain decisions in a timely
manner pertaining to the JOC Program.
4. Provide office space, furniture, fixtures, telephones, and equipment to TGG's JOC Project
Manager.
5. Provide reproduction services for all draft and final versions of the Construction Task
Catalog, Technical Specifications, Contract Terms and Conditions, Instructions to Bidders
JOC Consulting Agreement July 10, 2002 Page 3 of 7
and Proposal Forms, Execution Procedures and Training Materials.
ARTICLE VI
INDENINIFICATION
TGG agrees to indemnify and hold harmless Client, its officers, agents, and employees from any
and all claims against Client, its officers, agents, and employees, which may arise out of any negligent act of
TGG or any subconsultant employed by TGG or any of their officers, agents or employees related to this
Agreement and/or the JOC Program.
ARTICLE VII
INSURANCE
TGG shall maintain general liability insurance coverage of $1,000,000 per occurrence and workers'
compensation insurance as required by law during the entire term of this Agreement naming the City of
Miami Beach, Florida as an additional insured. TGG shall furnish to Client a certificate of insurance
evidencing the required coverage and providing that the insurance will not be cancelled without thirty (30)
days written notice to Client.
ARTICLE VIII
SCHEDULE OF FEES
In consideration of the Basic Services performed under Article III above, Client agrees to utilize the
JOC system for the placement of at least two million dollars ($2,000,000) in construction services during
the term hereof, and to pay TGG a licensing fee according to the following schedule:
For any amounts cumulating up to seven million dollars ($7,000,000) of work ordered
under the JOC system during the term hereof, Client agrees to pay TGG four percent (4%)
of that amount.
For any amounts cumulating over seven million dollars ($7,000,000) of work ordered under
the JOC system during the term hereof, Client agrees to pay TGG one and one-half percent
(1'/z %) of that amount.
Favorite City Provision: In the event that TGG enters into an agreement with any other
municipality in Miami-Dade County, Monroe County, Broward County, or Palm Beach
County, which provides for a lower fee than the percentages stated above (i.e. 4% for the
first $7MM, and 1.5% over $7MM), TGG agrees to amend this agreement to reflect the
lower fee(s).
In consideration for additional services, TGG shall be compensated an amount equal to (1) 250% of
actual direct labor costs plus reimbursement for the actual cost of all non-labor direct expenses incurred by
TGG; or (2) a mutually agreed upon fee.
JOC Consulting Agreement July 10, 2002 Page 4 of 7
ARTICLE IX
PAYMENT
Invoices for TGG's fee shall be submitted monthly. Invoices for any additional services provided
pursuant to this Agreement shall be submitted on a monthly basis and shall include a detailed description of
the services provided.
Client shall pay TGG's invoices within thirty (30) calendar days from the invoice date. In the event
of a dispute regarding an invoice, Client shall pay all undisputed invoice amounts within thirty (30) days of
the original invoice date.
ARTICLE X
CHANGE OF SCOPE
Client may, from time to time, request changes in the scope of services to be performed by TGG
hereunder or may request an extension of the term of this Agreement. No such change, including any
increase or decrease in the amount of compensation, which shall be mutually agreed upon by and between
Client and TGG, shall be effective and enforceable until and unless a written amendment or change order to
this Agreement has been executed by both parties and attached hereto and, as determined by Client unless
such change is approved by the City Manager and/or the City Commission, as the case may be, of the City
of Miami Beach.
ARTICLE XI
TERMINATION OF THIS AGREEMENT
Termination by Client:
Client may terminate this Agreement without cause and for convenience at any time by providing
notice to TGG in writing ninety (90) days prior to such termination. In the event Client exercises such
termination right, Client shall pay to TGG, within (30) days, for services performed by TGG less the sum of
all payments made prior to termination.
If at the end of any consecutive one-year period during the term of this Agreement, Client has
discontinued efforts to utilize the JOC System and Client has not utilized the JOC System to order two
million dollars ($2,000,000) in construction services, then this Agreement may be terminated by TGG for
convenience.
If TGG shall fail to fulfill its obligation under this Agreement or if TGG shall violate any of the
material provisions of this Agreement, then Client shall thereupon have the right to terminate this
Agreement for cause by giving written notice specifying the cause for such termination and the termination
date which shall be at least seven (7) days after the date such notice is given. In the event of a termination
for cause, Client shall pay TGG only for those services satisfactorily performed by TGG and such shall be
the extent of Client's liability to TGG.
JOC Consulting Agreement July 10, 2002 Page 5 of 7
Termination by TGG:
If Client shall fail to fulfill its obligation under this Agreement or if Client shall violate any of
the material provisions of this Agreement, then TGG shall thereupon have the right to terminate this
Agreement for cause by giving written notice specifying the cause for such termination and the
termination date which shall be at least thirty (30) days after the date such notice is given. In the event
of a termination for cause, Client shall pay TGG only for those services satisfactorily performed by TGG
and such shall be the extent of Client's liability to TGG.
ARTICLE XII
CONTRACT UNASSIGNABLE
Neither Client nor TGG shall have the right to assign or transfer its interest in this Agreement.
However, if TGG shall elect to change the name of the corporation, such an event shall not be construed to
be an assignment under the terms thereof.
ARTICLE XIII
ENTIRE AGREEMENT
This Agreement represents the entire and integrated agreement between Client and TGG and may
be amended only by written instrument, which is approved by both parties.
ARTICLE IX
VENUE
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida.
ARTICLE X
WAIVER OF JURY TRIAL
THE CITY AND TGG HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND
TGG MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT.
ARTICLE XI
LIMITATION OF CITY'S LIABILITY
The City desires to enter into this Agreement only if in so doing the City can place a limit on its
liability for any cause of action for money damages due to an alleged breach by the City of this
Agreement, so that its liability for any such breach never exceeds the sum of $100,000. TGG hereby
JOC Consulting Agreement July 10, 2002 Page 6 of 7
expresses his willingness to enter into this Agreement with TGG's recovery from the City for any damage
action for breach of contract to be limited to a maximum amount of $100,000, less the amount of all
funds actually paid by the City to TGG pursuant to this Agreement.
Accordingly, and notwithstanding any other term or condition of this Agreement, TGG hereby
agrees that the City shall not be liable to the TGG for damages in an amount in excess of $100,000,
which amount shall be reduced by the amount actually paid by the City to TGG pursuant to this
Agreement, for any action or claim for breach of contract arising out of the performance or non-
performance of any obligations imposed upon the City by this Agreement. Nothing contained in this
pazagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed
upon the City's liability as set forth in Section 768.28, Florida Statutes.
ARTICLE I~III
EQUAL EMPLOYMENT OPPORTUNITY
TGG shall not discriminate against any employee or applicant for employment because of race,
color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity,
mazitaUdomestic partner status or disability, except where any of the above is a bona fide occupational
qualification or need. TGG has an affirmative action program to ensure that applicants are employed, and
employees are treated during employment without regard to race, color, creed, religion, national origin,
ancestry, age, sex, sexual orientation, gender identity, maritaUdomestic partner status or disability. Such
action includes, but is not limited to, the following: hiring, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
The Gordian Group, Inc.
By: ~ o
Corporate Officer
Attest: J~JQ.w~G~,~ /~ !G~
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JOC Consulting Agreement July 10, 2002 ~ Page 7 of 7
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