HomeMy WebLinkAboutR-2002-119 RESOLUTION NO. 2002-119
A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA,
APPROVING THE AGREEMENT WITH DESIGN &
CONSTRUCTION SOLUTIONS FOR PROFESSIONAL
DESIGN AND CONSTRUCTION SERVICES RELATING TO
THE ADMINISTRATION OF THE FROST PARK
IMPROVEMENTS AND MELI PARK AQUATIC CENTER
PROJECTS IN AN AMOUNT NOT TO EXCEED $31,500.00;
WITHOUT COMPETITIVE BIDDING OR ADVERTISEMENT
FOR BID; PROVIDING FOR CONFLICTS; FURTHER,
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Charter of the City of Dania Beach, Part III, Article 3, Section 4,
Subsection (J), provides that during unusual conditions or emergencies, the City
Commission may, by resolution, authorize the purchase by the City Manager of
designated supplies, services, equipment and materials in amounts in excess of fifteen
thousand dollars ($15,000.00) without competitive bids and without advertisement for
bids; and
WHEREAS, the City Manager has determined that it is necessary to provide
professional design and construction services for the Frost Park Improvements and Meli
Park Aquatic Center projects; and
WHEREAS, the City Manager has determined that such services can be obtained
through Design & Construction Solutions, 318 Indian Trace, #335, Weston, Florida
33326 in an amount not to exceed $31,500.00.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA;
Section 1. That certain Agreement between Design & Construction Solutions for
professional design and construction services relating to the administration of the Frost
Park Improvements and Meli Park Aquatic Center projects, in substantial form as
attached, is approved and the appropriate city officials are authorized to execute it.
1 RESOLUTION NO. 2002- 119
Section 2. That the City Manager and City Attorney are authorized to make
revisions to such Agreement as are deemed necessary and proper for the best interests
of the City. Such Agreement shall not be deemed accepted by the City unless and until
the City has completed its execution.
Section 3. That all resolutions or parts of resolutions in conflict with this resolution
are repealed to the extent of such conflict.
Section 4. That this resolution shall be in force and take effect immediately upon
its passage and adoption.
PASSED AND ADOPTED on the 13T" day of AUGUST, 2002.
® IROBRT H. CHUNNR-COMMISSIONER
ATTEST: ROLL CALL:
COMMISSIONER BERTINO - YES
v� COMMISSIONER MCELYEA - YES
CHARLENE J NSON COMMISSIONER MIKES - YES
CITY CLERK VICE-MAYOR FLURY - YES
MAYOR CHUNN -YES
APPROVED AS O ;RM AND CORRECTNESS:
BY:
TOO AS J. AINSBRO
CITY ATTORNEY
•
2 RESOLUTION NO. 2002- 119
CONSULTING CONTRACT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of by and
between Design & Construction Solutions, Inc., a Florida corporation located at 318 Indian
Trace#335, Weston, Florida 33326 ("DCS") and The City of Dania Beach, a Florida
municipality with offices located at 100 West Dania Beach Boulevard , Dania Beach, Florida
33004 (hereinafter referred to as "City").
RECITALS
A. City is a government agency and in the conduct of its business desires to have project
management services performed by the DCS.
B. DCS is willing to perform such project management services for the City according to the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth in this Agreement, the
parties hereto, intending to be legally bound agree as follows:
1. Services. DCS agrees to perform for City the services listed in Exhibit A (Proposal to
Perform Professional Services), attached hereto. Such services are hereinafter referred to as
"Services." City agrees that DCS shall have ready access to City's staff and resources as
necessary to perform the Services. Should the time required for the performance of such
Services exceed the time indicated in Exhibit A, DCS can expend such additional time provided
that DCS obtains prior approval therefor from City.
2. Rate of Payment for Services. City agrees to pay DCS for Services in accordance
with the schedule contained in Exhibit A attached hereto.
3. Billing. City shall pay the amounts agreed to herein upon receipt of invoices which
shall be sent by DCS on a monthly basis. City shall pay DCS a late payment fee of one and
one-half percent (1'/2 %) per month on any invoice balance that remains outstanding for thirty
(30) days or more after such invoice was received by City.
4. Confidential Information. DCS hereby acknowledges that during the performance of
this Agreement, DCS may learn or receive confidential City information. DCS hereby confirms
that all information relating to the City's business, which City reasonably identifies as
confidential, will be kept confidential by the DCS, except to the extent that such information is
required to be divulged to a third party(ies) in order to enable DCS to perform DCS's
contractual obligations.
5. Independent Contractor. DCS is an independent contractor and neither the
principals of DCS nor any member of DCS's staff is or shall be deemed to be employed by City.
City is hereby contracting with DCS for the performance of the Services and DCS reserves the
right to determine the method, manner and means by which the Services will be performed.
Except as provided in Exhibit A, DCS is not required to perform the Services during a fixed
hourly or daily time and if the services are performed at the City's premises, then DCS's time
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spent at the premises is to be at the discretion of the DCS; subject to the City's normal business
hours and security requirements. DCS hereby confirms to City that City will not be required to
furnish or provide any training to DCS to enable DCS to perform the Services. The Services
shall be performed by DCS or DCS's staff, and City shall not be required to hire, supervise or
pay any assistants to help DCS to perform the Services under this Agreement. DCS shall not be
required to devote DCS's full time to the performance of the Services, and it is acknowledged
that DCS has other cities and DCS offers services to the general public. The order or sequence
in which the work is to be performed shall be under the control of DCS. Except to the extent that
DCS's work must be performed on or with City's computers or City's existing software, all
materials used in providing the Services shall be provided by DCS.
6. Term and Termination. The term of this Agreement shall extend until the Frost Park
Improvement Project and the Meli Aquatic complex project are complete or for a period of nine
(9) months, whichever comes first. It will commence on the date first above written.
6.1 Termination of Agreement for Convenience. It is expressly understood and agreed
that the City may terminate this'Agreement at any time for any reason or no reason at all by
giving DCS notice by certified mail, return receipt requested, directed to the principal office of
DCS, thirty (30) days in advance of the termination date. In the event that the Agreement is
terminated pursuant to this provision, DCS shall be entitled to be compensated for the services
rendered and out-of-pocket costs expended on behalf of the City, if any, from the effective date
of execution of the Agreement up to the termination date. Such compensation for services
rendered shall be based on the fee percentage of work completed, as fairly and reasonably
determined by City after conferring with DCS.
6.2 Termination of Agreement for Cause. If City elects to terminate the Agreement for
cause, City will provide consultant five (5) days' advance written notice. The term "cause" shall
mean a material failure by DCS to provide the Services contracted by the City according to the
terms and conditions hereunder. If DCS promptly cures the matter giving rise to the cause
within that time, this Agreement shall continue. If not timely cured, the Agreement will stand
terminated and the City will pay DCS for work completed less any costs, expenses and
damages incurred by City as a result of such termination; provided, however, that DCS shall not
be liable to City for more than the value of the work completed, except to the extent that such
liability is covered by applicable insurance..
7. Insurance. City shall not provide any insurance coverage of any kind for employees
of DCS or DCS's staff, and City will not withhold any amount from DCS that would normally be
withheld from an employee's pay. DCS shall take appropriate measures to insure that DCS's
staff is competent and that they do not breach any terms of this Agreement.
7.1 DCS shall provide and maintain in force at all times during the term of this
Agreement as stated below:
1) Comprehensive general liability insurance, including contractual, with minimum limits
of One Million Dollars ($1,000,000) per occurrence, combined single limit for bodily
injury liability, death and property damage liability. The City is to be included as an
"additional insured"with respect to any claims arising out of this Agreement.
2) DCS shall provide the Risk Manager of the City Certificates of Insurance for
coverages and policies required by this Agreement. All certificates shall state that the
City shall be given (30) days' advance notice prior to expiration or cancellation of any
policy. Such policies and coverages shall not be affected by any other policy of
insurance which the City may carry in its own name.
8. Restrictions on Employment. Each of the parties hereto agrees that, while
performing the Services, and for a period of three (3) months following the termination of this
Agreement, neither party will, except with the other party's written approval, solicit or offer
employment to the other party's employees or staff engaged in any efforts under this
Agreement.
9. Use of Work Product. Except as specifically set forth in writing and signed.by both
City and DCS, DCS shall have all copyright and patent rights with respect to all materials
developed under this Agreement, and City is hereby granted a non-exclusive license to use and
employ such materials within the City's business.
10. City Representative. Janet E. Palacino, President, shall represent DCS and Ivan
Pato, City Manager shall represent the City during the performance of this contract with respect
to the Services and each has authority to execute written modifications or additions to this
Agreement.
11. Disputes.Any disputes that arise between the parties with respect to the
performance of this contract shall be submitted to a process of informal dispute resolution
whereby the President of DCS and the City Manager shall meet, in good faith, to attempt to
arrive at an amicable solution to such dispute before resorting to formal legal action.
11.1 Consent to Jurisdiction. The parties agree that the jurisdiction for any legal action
arising out of or pertaining to this Agreement shall be-the Circuit Court for the Seventeenth
Judicial Circuit in and for Broward County, Florida, or the Federal District Court in the Southern
District of the United States. Each party further agrees that venue of any action to enforce this
Agreement shall be in Broward County, Florida.
11.2 Attorney's Fees and Costs. If City or DCS incurs any expense in enforcing the
terms of this Agreement, whether suit is brought or not, each party shall bear its own costs and
expenses including, but not limited to, court costs and reasonable attorneys' fees.
12. Taxes. Any and all taxes, except income taxes, imposed or assessed by reason of
this contract or its performance, including but not limited to sales or use taxes, shall be paid by
the City. DCS shall be responsible for any taxes or penalties assessed by reason of any
claim(s) that DCS employee is in fact an employee of City and City and DCS specifically agree
that DCS is not an employee of City.
13. Limited Warranty. DCS warrants to City that the material, analysis, data, programs
and Services to be delivered or rendered hereunder, will be of the kind and quality designated in
Exhibit A and will be provided / performed by qualified personnel. Special requirements for
format or standards to be followed shall be attached as an additional Exhibit and executed by
both City and DCS.
. 13.1 Indemnification of City. DCS agrees to indemnify and hold harmless the City for
all costs, losses and expenses including, but not limited to, damages to persons or property
including, but not limited to, judgments and attorneys' fees arising solely and directly out of the
• negligent acts, errors or omissions or the willful misconduct of DCS, its agents, servants or
employees in the performance of services under this Agreement. If called upon by the City,
DCS shall assume and defend not only itself, but also the City, in connection with any suit or
cause arising out of the foregoing, and such defense shall be at no cost or expense whatsoever
to the City. This indemnification does not extend to acts of third parties who or which are wholly
unrelated to DCS. The covenants and representations relating to this indemnification provision
shall survive the term of this Agreement and continue in full force and effect as to DCS's
responsibility to indemnify the City.
13.2 Liability Limitation. It is specifically understood and agreed that the consideration
inuring to DCS for the execution of this Agreement consists of the promises, payments,
covenants, rights and responsibilities contained in this Agreement.
14. Complete Agreement. This Agreement contains the entire understanding between
the parties hereto with respect to the matters covered herein. No other agreements,
representations, warranties or other matters, oral or written, purportedly agreed to or
represented by or on behalf of DCS or by any of its employees or agents, or contained in any
sales materials or brochures, shall be deemed to bind the parties hereto with respect to the
subject matter hereof. In the event of a conflict in the provisions of any attachments hereto and
the provisions set forth in this Agreement, the provisions of this Agreement shall govern. City
acknowledges that it is entering into this Agreement solely on the basis of the representations
contained herein.
15. Applicable Law. This Agreement shall be construed in accordance with the laws of
the State of Florida.
16. Scope of Agreement. If the scope of any of the provisions of this Agreement is too
broad in any respect whatsoever to permit enforcement to its full extent, then such provisions
shall be enforced to the maximum extent permitted by law, and the parties hereto consent and
agree that such scope may be judicially modified accordingly and that the whole of such
provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be
curtailed only to the extent necessary to conform to law.
17. Additional Work. After receipt of an order that adds to the Services, DCS may, at
its discretion, take reasonable action and expend reasonable amounts of time and money
based on such order. City agrees to pay DCS for such action and expenditure as set forth in
Exhibit A of this Agreement for payments related to Services.
18. Notices. Notices to DCS should be sent to: Attn: Janet E. Palacino, President,
Design & Construction Solutions, Inc. 318 Indian Trace#335, Weston, Florida 33326. Notices to
City should be sent to: Mr. Mr. Ivan Pato, City Manager City of Dania Beach, 100 W. Dania
Beach Boulevard, Dania Beach, Florida 33004.
19. Assignment. This Agreement may not be assigned by either party without the prior
written consent of the other party. Except for the prohibition on assignment contained in the
preceding sentence, this Agreement shall be binding upon and inure to the heirs, successors
and assigns of the parties hereto.
20. Applicable Laws. Consultant shall comply with all federal, state and City laws
applicable to the Consultant services and specifically those covering Equal Opportunity
Employment, the Americans With Disabilities Act ("ADA"), the Workers Compensation Laws
and the Florida Building Code. DCS is expected to fully comply with all provisions of all laws
applicable to this Agreement, and the City reserves the right to verify DCS' compliance with
them. Failure to comply with any laws will be grounds for termination of the Agreement for
cause.
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day
and year first above written. y�--
BY: /f
CITY: ROBERT H. CHUNN, JF .
MAYOR-COMMISSIONER
CITY OF DANIA BEACH,
A Florida Municipal Corporation
ATTEST: IVAN PATO, CITY MANAGER
01444_N_4_�
By:
CHARLENE JO SON
CITY CLERK
•
APPROVED FOR FORM APPROVED AS TO SCOPE OF
SERVICES \
AND CORRECTN tS )
By: ,By:
THOMAS Jf ANSBRO -B-MIE TEMCHUK,
CITY ATTORNEY ASST. TO THE CITY MANAGER
CONSULTANT:
Signed, sealed and delivered DESIGN & CONSTRUCTION
SOLUTIONS, INC.
In the presence of:
By:
Witness
�0� 1 H'3 1 Ic-- r- 0
Print Name Title
Witness
ZAA
Print Name
STATE OF FLORIDA )
COUNTY OF BROWARD )
Thp foregoi in ment was acknowledged before me on , 2002, by
c eLne+ 100 trx7 as President of Design & Construction Solutions, Inc., a
Florida corporation, on behalf of the corporation. She is nown to or she
produced as identificati n a d did of to a an oath.
NOTARYPI t9
State of Florida
P&'� Gia D. Smith
�pF1Y '..
O:' �'.
__: 6_Commission#CC 925933
-a o; Expires May 23,2004 Print, Type or Stamp Commissioned
'''%I°it"°4�' AUantBB�a;ne'co..Inc. Name of Notary Public Expiration
Date:
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Exhi_b
PROJECT MANAGEMENT SERVICES:
DCS shall serve as a project manager. As the term is used in this agreement, "the Project
Manager" is the person responsible for monitoring the work to be performed under the contract
of construction for the construction of a project, as a direct representative of the Owner. The
services are as follows:
1) During the initial stages of the project, DCS will assist with the review and comment on
the design build documents for the Frost Park Improvement Project and the Patrick J.
Meli Aquatic Complex Project.
2) DCS will provide assistance with and participation in the selection process for the design
build team for the Frost Park Improvement Project and the Patrick J. Meli Aquatic
Complex Project.
3) DCS will work with the City and the design build team and perform overall design
management for the Frost Park Improvement Project.
4) During the Construction Phase, which begins with the award of the Construction
Contract and will end when the Contractor's final Payment Certificate is approved by the
Owner,DCS shall provide Administration of the Construction Contract as set forth in the
General and Supplementary Conditions of the Construction Contract.
5) DCS, as the representative of the Owner during the Construction Phase, shall advise
and consult with the Owner and shall have authority to act on behalf of the Owner to the
extent provided in the General Conditions and the Supplementary Conditions of the
Construction Contract.
6) DCS shall visit the site at least weekly, and at all key construction events, to ascertain
the progress of the Project and to determine in general if the Work is proceeding in
accordance with the Contract Documents. On the basis of on-site observations, DCS
shall endeavor to protect the Owner against defects and deficiencies in the Work. DCS
will not be required to make extensive inspections or provide continuous daily on-site
inspections to check the,quality or quantity of the Work unless otherwise set forth in this
Agreement. DCS will not be held responsible for construction means, methods,
techniques, sequences or procedures, or for safety precautions and programs in
connection with the Work, nor will DCS be held responsible for the Contractor's or
Subcontractors', or any of their agents' or employees', failure to perform the Work in
accordance with the Contract Documents.
inaam
Exhibit A
• Page 2
7) DCS shall furnish the Owner with a written report of all observations of the Work made
by DCS during each visit to the Project. DCS shall also note the general status and
progress of the work, and submit same in a timely manner. DCS shall ascertain that the
Contractor is making timely, accurate, and complete notations on the "as-built" drawings.
Based on observations at the site, DCS shall determine the amount due the Contractor on
account and shall recommend approval of such amount. This recommendation shall
constitute a representation by DCS to the Owner that, to the best of the DCS's knowledge,
information and belief, the Work has progressed to the point indicated and the quality of
the Work is in accordance with the Contract Documents subject to:
a. an evaluation of the Work for conformance with the Contract Documents upon
Substantial Completion,
b. the results of any subsequent tests required by the Contract Documents,
C. minor deviations from the Contract Documents correctable prior to completion,
and
d. any specific qualifications stated in the Payment Certificate; and further that the
Contractor is entitled to payment in the amount agreed upon at the requisition
site meeting.
By recommending approval of a Payment Certificate, DCS shall not be deemed to
represent that DCS has made any examination to ascertain how and for what purpose the
Contractor has used the money paid on account of the Construction Contract Sum.
9) DCS shall be an interpreter of the requirements of the Contract Documents and the judge
of the performance thereunder. DCS shall render interpretations necessary for the proper
execution or progress of the Work with reasonable promptness on written request of either
the Owner or the Contractor, and shall render written decisions, within a reasonable time,
on all claims, disputes and other matters in question between the Owner and the
Contractor relating to the execution or progress of the work or the interpretation of the
Contract Documents.
10) Interpretations and decisions of DCS shall be consistent with the intent of, and reasonably
inferable from, the Contract Documents and shall be in written or graphic form. In the
capacity of interpreter, DCS shall endeavor to secure faithful performance by both the
Owner and the Contractor, and shall not show partiality to either.
Exhibit A
Page 3
11) DCS shall have authority to recommend rejection of Work which does not conform to the
Contract Documents. Whenever, in DCS's reasonable opinion, it is necessary or
advisable to insure compliance with the Contract Documents, DCS will have authority to
recommend special inspection or testing of any Work deemed not to be in accordance
with the Contract, whether or not such Work has been fabricated and delivered to the
Project, or installed and completed. DCS shall provide such normal mechanical, electrical,
structural, landscape or other related inspection expertise as necessary to determine
compliance with the Construction Contract.
12) DCS shall initiate Change Orders for the Owner's approval as required by DCS's
observations, or requested by the Owner; and review and recommend action on proposed
Change Orders within the scope of the Project initiated by others.
13) DCS shall examine the Work upon receipt of the Contractor's Request of Substantial
Completion Inspection of the Project .and shall, prior to occupancy by the Owner,
recommend execution of a Certificate of Acceptance for Substantial Completion after first
ascertaining that the Project is substantially completed in accordance with the Contract
requirements. A punch list of any defects and discrepancies in the Work required to be
corrected by the Contractor shall be prepared by DCS in conjunction with representatives
of the Owner, and satisfactory performance shall be obtained thereon before DCS
• recommends execution of a Certificate of Final Acceptance and final payment to the
Contractor. DCS shall obtain from the Contractor all guarantees, operating and
maintenance manuals for equipment, releases of claims and such other documents and
certificates as may be required by applicable codes, laws, and the specifications, and
deliver them to the Owner.
14) DCS shall provide assistance in obtaining the Contractor's compliance with the Contract
Documents relative to 1) initial instruction of Owner's personnel in the operation and
maintenance of any equipment or system, and 2) final clean-up of the Project all as
appropriate