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OFFICE

OF

THE CITY ATTORNEY

e"

F

L

0

R

I

D

A

JOSE

SMITH

NCO

Telephone: (

305) 673-

7470

City

Attorney

2

Facsimile: (

305) 673-7002

August

18, 2008

Martin A.

Schwartz,

Esquire

Bilzin

Sumberg

Baena

Price &

Axelrod

LLP

200

So.

Biscayne

Blvd.,

Suite 2500

Miami, Florida

33131

RE:

Predevelopment Agreement

City

o

Mami

Beach/

SRC

Properties,

LLC

Dear Mr. Schwartz:

Enclosed

peasefind

two ( 2)

original fu lly e xe cute d Agreements regarding th e

above-

referenced.

Should

youhave

any

questions

or

comments,

please

do not

hesitate

to

contact

me

Ve tr ours

Raul

J.

Aguil

Deputy City ttorney

RJA/

ed

Encl.

1700

Convention

Center

Drive--

Fourth

Floor -- Miami

Beach,

Florida

33139


2/275

ffi

Sumberg

ATTORNEYS

AT LAW

Martin A. Schwartz,

Esq.

Tel 305.350.2367

Fax 305.

351.

2255

mschwartz

@bilzin. com

August 14, 2008

VIA FEDERAL EXPRESS

Raul J. Aguila,

Esq.

First Assistant City Attorney

City

of

Mami Beach

1700 Convention Center Drive, 4th Floor

Mami Beach

FL 33139

Re: Predevelopment Agreement

City

o

Miami

Beach/

SRC Properties, LLC

Dear Raul:

Enclosed

pease find

five

origna sgned copes o

the

Predevelopment

Agreement on

behalf

o

SRC

Properties

LLC. Please have

them executed

and

dated

on

behalf of

the

C ity a nd re turn

two

of

the fully executed copies

to

me.

Very truly yours,

art'

S

wartz

MAS/

d

Encl.

cc:

Brian Tague,

Esq. (

vaemal)

Scott Robins (vaemal)

Philip

Levine (

va

emal)

MIAMI 1623237. 1 7319009976

BLZN

SUMBERG BAENA PRICE &

AXELROD LLP

200

S.

Biscayne Boulevard,

Suite

2500,

Miami,

FL

33131-

5340

Tel

305.

374.7580 Fax

305.374.7593

n;

n ;.

biizin.


3/275

PREDEVELOPMENT AGREEMENT

THIS AGREEMENT

dated

as

oAugust ,

2008 ("

Agreement")

between CITY

OF

MIAMI

BEACH,

a Florida muncpa

corporation ("

City")

and SRC

PROPERTIES,

LLC, a

Florida

limited

liability company ("

SRC").

City an d SR C are collectively referred to a s the

Parties"

and

individually

as a "

Party."

RECITALS

A.- SRC,

through certan

affiliates,

contros

certan

properties ("

Project Properties")

located

in

Miami

Beach, Florida in

the.

area

bounded

by

19h

Street

onthe north

18̀

h

Street

on

the sou th , Bay

Road

on

th e

eas t a nd P urdy Aven ue on th e

east.

B.

City and SRC are exploring

a n arrangement

fo r

the purchase of the

air rights

over .

some

o

the

Project Properties

by

the

City ("

Purchase")

an d th e

construction

b y the City of a

parking

garage ("Project").

C.

In order to determine the

feasibility of

the

Purchase,

the

City

has

requested SRC

to

obtain

approvals

of th e

Project from the City

P la n nin g B o ar d an d the

City

Design

Review

Board (

collectively, "

Board

Approvals").

D.

In

order to

obtanthe

Board

Approvals,

it will

be

n ec es sa ry to perform-

certain

predeveopmen

work("

Predevelopment

Work")

and- the City ha s

a gre ed to

share th e cost of

such

Predevelopment

Work ("

Predevelopment Costs")

wthSRC;

notwithstanding

that

the

Parties

have: not at

this time

entered

into a formal agreement

with

respect to th e Project

Properties and the development

thereof.

NOW, THEREFORE,

in

consideration of

the

premises recited

above,

the undertakings of

the

Parties described

below

and $

10 .

0 0

an d

o th er g oo d

an d

valuable

consideration

p aid b y

each

Party

to

the other, the

City and S RC

agree

a s

set forth be low.

1 .

Predevelopment

Work.

S R C shall

perform

th e

Predevelopment Work consisting

of th e following:

a)

Obtain

sufficient

archtectura .

and

engineering

pans

for the Board

Approvals;

b

Obtain a

traffic

study;.

c)

Obtain a

concurrency report;

d)

Use

reasonabe commerca efforts

to

obtain

a

proposed design/

build

contract from a contractor reasonably acceptable to

the

City

for

execution by

the

City providing

for

completion of th e Project (exclusive of th e build

out

of th e first floor

retail

space) at a cost of

approximately$

15,

805 (

low) to $

20 , 377 (

high)

per

parking

space in accordance with SR C ' s prior

submission to the City

without

consideration

of

any

changes

th at ma y b e necessitated in

such

contr ac t b y

reason

of th e Board

Approvals;

MIAMI 1 598569.6

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e)

Obta in such other materials a s

may be

required

by

th e Planning

Board

and/

or

th e

Design Review Board

to obtain the

Board

Approvals,

including

the i tems descr ib ed

in

Schedule

A;

and

f)

Obtain

approval

from any other City Bo ards w ho se approval

may be

required for the initial design and site plan ofthe

Project.

2.

Predevelopment Costs Payments.

a)

SRC

andthe

City

agree

to

share

Approved

Predevelopment Costs.

SRC

shal be

responsbe

for

35%

of

Approved

Predevelopment

Costs

and

the

City

shall be

responsbefor 65%

of

Approved

Predevelopment

Costs.

Approved

Predevelopment

Costs shall

mean

those

Predevelopment

Costs up to the amounts descr ibed in Schedule A.

b)

The

limits

on

Approved

Predevelopment Costs

and

any

addtiona

Predevelopment

Costs

shall

be subject

to

change from time to time

upon

written approval

between

the City

and S R C .

c)

Both the City and

SRC

agree to pay their respective share of Approved

Predevelopment

Costs

within 3 0 days of

receipt

of an

invoice

for an

item

of such

Approved

Predevelopment Costs together with such additional information

with

respect to

such

invoice as

may

be

reasonably

requested

by any

o

the

Parties.

The

Parties agree t ha t e it he r P ar ty may, b y

agreement between the Parties,

be

the

disbursing agent for

an y

such invoice

and,

in such e ve nt,

the alocabe

share

ofeach

Party

for

such

invoice

sha

be

pad

to

the

disbursing

agent.

Upon

payment

of

any

invoice,

the

disbursing agent shall obtain evidence of payment

and

distribute

such evidence to th e

nondisbursing Party.

d)

Predevelopment Costs shall

not

include any

costs incident

to developing

retail

facilities

on the

first floor of the Project Properties.

3 .

Notices.

Any

and

al

noices

requred

or

desired

to be

given

under this

Agreement

shall

b e

in

writing and shall

b e

deemed to

have been duly given

when

delivered by( i)

hand, (

ii)

facsimile (

provided

a

confirmation

sheet is

provided

b y

the

sending

machne), (

iii) any

overngh courier

servce (

such

as

Federal Express)

or (iv)

United

States mal,

regsteredor

certifiedmal, return

recept

requested

postage

prepad,

and

in

an y such

case addressed

to th e

address

of

the

Party

to

be noified

set forth

below (

or to such other

address

as e ith e r P ar ty m a y

subsequently specify

b y

a

noicegven

in

accordance

wth

his-Section 5

to

the

oher

Party).

Any

Party m ay

change

the address for notice purposes by giving written notice

in

accordance

with

this

Section

5.

T h e P ar tie s d esig na te th e

following

a s th e

respective

places

for giving

of

notice:

FOR CITY:

City ofMami Beach

1700 Convention Center

Drive

Miami

Beach,

Florida 33139

Attn:

Jorge M. Gonzalez,

City

Manager

Fax No.:

305- 673-

7782

2

MIAMI

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r

With a copy to:

City

of

Mami Beach

1700 Convention

Center

Drive

Miami

Beach, Florida

33139

Attn: Kevin Crowder

Fax No.:

305-

673-

7033

For

SRC:

SRC Properties

LLC

230 Fifth Street

Miami Beach,

Florida

33139

Attn:

Scott Robins

Fax

No.:

305- 674-0619

4.

Captions.

All

captions in this Agreement

are for

convenience

only and

are not

to

be

re fe r re d to

in

connection

with

th e

const ru c tion or

interpretation

of this

Agreement

or

an y

of

its

provisons.

5.

Attorneys

Fees.

In

any

litigation

brought

or

mantaned

pursuant

to,

or

arising

out of, he terms of

this

Agreement, the

prevai l ing

Party shal l be entitled to recover its reasonable

attorneys' fees from

the

other Party.

6.

Assignment.

SRC

may

assgn

this

Agreement to

any

entity

meeting the

following requirements:

a)

Scott Rob ins

has a

direct

or indirect ownership

interest in

th e

entity;

b)

the

entity

has an

ownership

interest

in

an y

of

the

Project

Properties;

and

c)

the

entity

assumes

in

writing

al

o

SRC'

s

obigations

under

this

Agreement.

Upon

any

such

assgnment,

S RC shall remain

jointly

an d severally- l iable for a ll o b lig a tio n s

under

this

Agreement.

This

Agreement and its

obligations shall

ntotherwise be

assignable

wthout

the

priorwitten

consent

o

the non-

assigning

Party.

Except

as

otherwise indicated

in

this

Sect ion, this Agreement shal l be binding on the successors and assigns of th e

respective

Parties.

7.

Termination.

Either Party ma y

terminate

th is Agreement at an y

time by notice

to

the oher

Party.

Such

termination

will

not relieve

either

of

th e

Parties

of

its payment

obligation

for Predevelopment

Costs

incurred

or

for which an obligation for payment

has b een

incurred

pursuant to any written

or oral

agreement

entered

into by e ither Party

prior to

t h e

non-

terminating

Party'

s

recept

o

noice

of

termination. The

obligation for

payment of such

Predevelopment Costs shall

survive

termination

of

this

Agreement.

3

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8 .

Complete

Agreement.

This Agreement contains

the entire

understanding of the

Parties

relating

to the subject matter of

this Agreement

and cannot b e changed or- terminated

e xc ep t b y an instrument

signed b y b oth

Parties.

9.

No

Joint

Venture

Nor Agreement to

Purchase.

This

Agreement

does

not and

sha

I

no

be

construedto

create

a

partnership

or

j

ont

venturebetween

the

Parties.

Neither Party

shal

be

liable

for

any

actor

omssonof

the

oher

Party.

This Agreement does not

constitute

an

agreement to

sell o r

a n agreement to purchase an y

portion of the Project Properties nor shall it

bind

ether

o

the

Parties

to

reach

such

agreement.

T o

th e extent th e P artie s re ach

any

such

agreement,

it wll

be

the

subectofa

further

witten

agreement

executed

b y

the

Parties.

The

failure of

th e P ar tie s

to

reach

an agreement for th e

sale

an d purchase of

th e

Project Properties

shall

not relieve

either Party of its payment

obligations

under this

Agreement.

10.

Governing

Law.

This Agreement has been

entered

into in

the

State of

Florida,

and the

validity,

interpretation a n d legal

effect

of th is Agreement shall

be

governed

by

the laws

of

th e

State ofFlorida

applicable

t o c o n tr a ct s entered into

an d

performed entirely

within

th e

State

o

Florida.

Jurisdiction

an d venue

of

any

controversies regarding this Agreement,

an d any

action

or other proceeding

which involves

such

a

controversy

will

b e

brought

in

Miami=

Dade

County,

Florida

and not elsewhere.

11.

Partial

Invalidity.

In

the event

an y provision of.

h is Ag re em en t shall be

determined to be

invalid

or unenforceable

by a

court of competent

jurisdiction

or by any other

legally

constituted body

having jurisdiction to make

such

determination,

the

remainder

of

the

Agreement shall

remain

in full

force

and effect.

4

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12.

Construction

of

Agreement.

The Parties acknowledge that each has

participated

in and has been equally responsible fo r preparation

of

th is Agreement , an d tha t th is Agreement

or

an y

possible ambiguities contained therein shall no t be construed against

either Party.

13.

Agreement

Subject to

Ratification

by

City

Commission.

The

Parties

acknowedge that,

pursuant

to prior authorization of th e

City

Commission

with regard

to th e

Project,

the

City

has (

as

of

the

effective

date

o

this

Agreement)

appropriated $

50,

000

toward

the

Predevelopment

Costs, as

set

forth

in

Schedule

A hereto.

Accordingly,

the balance

of

Predevelopment

Costs shal

be

subect

to

appropriation

by

the

City

Commission.

T he City shal l

have no

obigation

to

remburse

any

Predevelopment

Costs beyond $

50,

000 until such time as

the

balance

osad

Costs

are

approved

by

the

City

Commission.

In

th e even t

that

th e

City

Commission does not a p pro ve th e appropriation of th e

balance

of th e Predevelopment Costs by

October

1 ,

2008,

then

this

Agreement

may

be

terminated

by

ether

party,

uponthree (

3 )

days

witten

noiceto

the

oher. In the event

o

a

termination

pursuant

to

this

Section 13,

th e City

shall compensate SRC fo r the City' s

portion

of the Predevelopment Costs incurred up

to

the date

o

termnation (

up

to a

maxmumof$

50,000),

and

thereafter the Parties shall

have

no

further

liability

to each other with regard to

this

Agreement.

CITY OF MIAMI BEACH

By:

7ROPERTIES,

LLC

By

Scott

Robins,

Managing Member

APPROVED AS

TO

FORM&

LANGUAGE

FOREXECUTION

5

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SCHEDULE

A

PREDE'VELOPMENT

WORK

ITEM

MAXIMUMCOST

1 .

Architectural and

Landscape

Plans 952000

2.

Traffic

Study

22,

100

I

Renderings

6,000

4.

Survey

Preparation

11050

5.

Environmental

Reports

2,

000

6. Application,

Filing

Fees

and

20,000

Miscellaneous fees

7 .

Attorneys

and

Mscellaneous

20,

000

Consultants

Fees

166

150

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c _

PREDEVELOPMENT AGREEMENT

THIS

AGREEMENT

dated

as of

August ,

2008 ("

Agreement")

between

CITY

OF

MIAMI

BEACH, a

Florida muncpa

corporation ("

City")

and

SRC

PROPERTIES, LLC,

a

Florida

limited

liability company ("

SRC").

City an d

S R C

are

collectively

referred to a s th e

Parties"

and

individually

as a "

Party."

RECITALS

A.- SRC,

through

certan

affiliates,

contros

certan

properties ("

Project Properties")

located

in Miami

Beach, Florida in

the

areabounded

by

19

Street

on

the

north

18

Street

on

t he s ou th , Bay R oad on the ea st a nd Purdy 'Avenue on th e

east.

B.

City

an d S R C are

exploring

an

arrangement for the purc ha se of th e air rights over .

someo

the

Project

Properties

by

the

City ("

Purchase")

an d

th e

construction

b y

th e City of a

parking

garage ("

Project").

C.

In o rd er to

determine the

feasibility of

the

Purchase,

the City ha s

requested

SRC

to

obtan

approvas

o

the

Project

from th e

City

P la n nin g B o ar d an d th e City Design

Review

Board (

collectively, "

Board Approvals").

D.

In

order to-obtan

the

Board

Approvals,

it will be

necessary to perform

certain

predeveoprnent

work("

Predevelopment

Work")

an d

th e City ha s agreed

to

share th e

cost

of

such

Predevelopment Work ("

Predevelopment

Costs")

wthSRC;

notwithstanding

that the

Parties have

not

at this time entered

into

a formal

agreement with respect to

th e Project

Properties

and the

development thereof.

NOW,.

THEREFORE, in consideration of

the

premises

recited above,

the

undertakings of

the

Parties

described

below and $

1 0 .

0 0

an d

o th er g oo d

and

valuable consideration paid

by

each

Party to the other,

the City and

SRC agree a s set forth below.

1 .

Predevelonnient Work.

S R C

shal l

perform th e Predevelopment Work consisting

of

th e

following:

a)

Obtain

sufficent archtectura .

and

engineering

pans

for the

Board

Approvals;

b)

Obtain a

traffic study;.

c)

Obtain a

concurrency report;

d)

Use reasonable commercial

efforts

to

obtain a

proposed design/

build

contract from a contractor reasonably

acceptable

to the C i ty fo r execution by the

City

providing

for

competion

of

the

Project (

exclusive

of

the build

out of

the first floor retail space)

at

a

cost of

approximately $

15,

805 (

low)

to $

2 0 , 3 7 7 (

high)

per

parking

space

in

accordance with SR C '

s

prior

submission to the

C i ty w itho ut

consideration of any changes that

may

b e necessitated

in

such

contract by reason of th e Board Approvals ;

MIAMI 1598569.6 7319009976

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m

e)

Obtain such other

materials a s may be required

by

th e P la n nin g B o ar d

and/

or

th e Design

Review

Board to obtain th e

Board

Approvals, including the items described in

Schedule

A; and

f)

Obtain

approval from a ny oth er City B oa rd s w ho se approval may be

required

for

the initial design

and site

plan ofthe Project.

2.

Predevelopment Costs Payments.

a) SRC

and

the

City

agree

to

share

Approved

Predevelopment Costs.

SRC

shal

be

responsbe for

35%

o

Approved


and

the

City

shall be

responsbe

for

65%

of

Approved Predevelopment

Costs.

Approved

Predevelopment

Costs

shall

mean those Predevelopment Costs

up

to th e

amounts described in

Schedule A.

b)

The limits

on

Approved

Predevelopment

Costs

and

any

addtiona

Predevelopment

Costs

shall

be subject

to

change

from

time to

time

upon written approval

between

th e City and S RC .

c)

Both

th e

City an d

S R C

agree to pay their respective share

of

Approved

Predevelopment

Costs within 30 days of

receipt

of an invoice for

an item

of such

Approved

Predevelopment

Costs together with such

additional

information

with respect to such invoice

as

may

be

reasonably

requested

by any

o

the

Parties.

T h e P artie s agree

that

e ith e r P a rty may, by

agreement

between the P ar ties,

be

th e

disbursing

agent for a ny such invoice and,

in

such event,

the alocabe

share

o

each

Party

for suchinvoice sha be

pad

to the

disbursing

agent. Upon

payment

of

any

invoice,

the disbursing agent shall obtain

evidence of

payment an d distribute

such evidence to th e

nondisbursing Party.

d)

Predevelopment

Costs

shall

no t

include a ny c osts incident to developing

retail facilities on the

first

floor of

the

Project Properties.

3 .

Notices.

Any

and

al

noices requred

or

desired to

be given under this

Agreement shall be

in writing

and shall be deemed

to have been duly

given when delivered by (

i)

hand, (

ii)

facsimile (provideda

confirmation

sheet

is

provided

b y

the

sending

machne), (

iii)

any

overngh courier

servce (

suchas

Federal Express)

or (iv)

United

States

mal,

regstered

or

certified

mal,

return

recept requested,

postageprepad,

and in

any

such case addressed

to th e

address of the Party

to

be notified set forth below (

or to such other

address a s either Party

may

subsequently

specify by

a

noicegvenin

accordancewth

his'

Section

5

to

the

oher

Party).

Any

Party ma y

change

the address

fo r

notice

purposes

by g iv ing wr it ten notice in

accordance with

this

Section

5.

The

Part ies designate the

following

a s the respective places for giving

ofnotice:

FOR CITY:

City

of

Mami

Beach

1700 Convention

Center Drive

Miami Beach, Florida

33139

Attn:

Jorge M. Gonzalez, City Manager

Fax

No.:

305- 673-

7782

2

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With a

copy

to:

City ofMami Beach

1700 Convention

Center

Drive

Miami Beach,

Florida

33139

Attn:

Kevin

Crowder

Fax

No.:

305-

673- 7033

For

SRC:

SRC

Properties LLC

230 Fifth Street

Miami Beach,

Florida

33139

Attn: Scott Robins

Fax

No.:

305-674-0619

4.

Captions.

All captions in this Agreement

are

for

convenience only and ar e

not

to

be

referred

to

in

connection

with

th e construction

or

interpretation

of this

Agreement

or

an y of its

provisons.

5.

Attorneys

Fees.

In

any

litigation

brought ormantaned

pursuant

to,

or arising

ou t of, he terms of

th is Agreement,

the

prevai l ing

Party shall be entitled

to

recover its reasonable

attorneys'

fees

from the other Party.

6.

Assignment. SRC

may

assgn this

Agreement

to

any

entity

meeting the

following

requirements:

a)

S c ott R o b in s

has a

d ir ec t o r

indirect

ownership interest in the

entity;

b)

th e

entity

has an

ownership interest

in

an y

of

the Project Properties;

and

c)

the

entity

assumes in

writing

al

o

SRC' s

obigations

under

this

Agreement.

Upon

any

such

assgnment,

S RC shall remain jointly and

severally l iable for all ob li gations

under

this

Agreement.

This Agreement

and

its

obligations

shall not otherwise be assignable

wthout

the

prior

written

consent

othe

non-

assigning

Party.

Except

as

otherwise indicated in

this

Section,

t hi s A g re em e n t

shall

be binding

on the successors

an d

assigns of th e respective

Parties.

7.

Termination.

Either Party may terminate

this

Agreement at an y time

b y n o tic e

to .

the

oher

Party.

Such

termination

will

not relieve either

of th e

Parties

of

its payment

obligation

for


incurred

or for which

an

obligation for payment ha s been incurred

pursuant

to

any written or oral

agreement entered

into by eith er Party

prior to

the

non-

terminating

Party'

s

recept of

noice

of

termination.

The obligation for

payment

of such

Predevelopment

Costs

shall survive termination of this Agreement.

3

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8.

Complete

Agreement.

This

Agreement

contains

the

entire

understanding of the

Parties relating

to the

subject matter of this

Agreement

and cannot

b e

changed or

terminated

except

b y an

instrument signed by both Parties.

9.

No

Joint Venture

Nor Agreement

to

Purchase. This Agreement does not and

shal no be construedto

create

a

partnership

or

joint

venture

between

the

Parties.

Neither Party

shal be

liable

for

any

act

oromsson

ofthe

oher

Party.

This Agreement does

not constitute an

agreement to sell or an

agreement

to

purchase any portion

of

the Project

Properties nor shall it

bind

etherof

the

Parties

to

reachsuch

agreement.

To the extent th e P a rtie s reach any such

agreement, it

wll

be

the

subect

of

a

further

witten

agreement

executed

by

the

Parties.

The

failure of th e Parties to

reach an agreement for

the sale and purchase of th e

Project Properties

shall not relieve ei ther Party of its p a ym e n t obligations under th is A greement .

10.

Governing

Law.

This Agreement has been

entered

into in

the

State ofFlorida,

and the

validity, interpretation and legal effect of th is Agreement shall be governed by

the laws

of

th e

State ofFlorida applicable

to contracts entered

into an d

performed

entirely

within th e

State

oFlorida.

Jurisdiction an d venue of any cont roversies regard ing

th is Agree me nt,

an d

any

action

or o ther p roceeding

which involves

such

a

controversy

will

b e

b rought in

Miami-

Dade

County,

Florida and

not

elsewhere.

1 1 .

Partial

Invalidity.

In the event any

provision

of th is A gre em ent shall b e

determined- to

be

invalid or unenforceable by a court

of

competent jurisdiction or by any other

legally

constituted

body

having

jurisdiction

to

makesuch

determination,

the

remainder

o the

Agreement shall remain in full force

and

effect.

4

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12.

Construction

of

Agreement.

The Parties

acknowledge that

each has

participated

in

and

has been equally

responsible

fo r

preparation

of

this Agreement, an d

that

this

Agreement

or

any possible ambiguities

contained therein shall not

b e construed

against either Party.

13.

Agreement

Subject to

Ratification

by

City

Commission.

The

Parties

acknowedge that,

pursuant to

prior

authorization

of

th e City

Commission with regard

to th e

Project,

the

City

has (

as

o

the

effective

date

o

this

Agreement)

appropriated $

50,

000

toward

the

Predevelopment

Costs,

as set

forth

in

Schedule A

hereto.

Accordingly,

the balance

of

Predevelopment

Costs

shal

be

subect

to

appropriation

b y

the

City

Commission.

T he

City

shall

have

no

obigation

to

remburse

any

Predevelopment

Costs

beyond $

50,000 until

such

time as

the

balance o

sad

Costs

are

approved

by

the

City

Commission.

In th e

event

that

th e

City

Commission does not

approve

th e appropriation

of

th e

balance of

th e


by

October 1 ,

2008,

then this

Agreement

may

be

terminated

by

ether

party,

upon

three ( 3) days

written

noice

to

the

oher. In

the

event

oa

termnation

pursuant to

this

Section 13,

th e City

shall

compensate SRC

fo r the City' s portion of

the Predevelopment

Costs incurred

up to the

date

o

termnation (

up

to

a maxmumo$

50,

000), and thereafter

the Parties shall. have no further

liability to

each other

with regard

to

this

Agreement.

CITY

OF MIAMI

BEACH

By:

SRC

7.

TIES, LLC

By:

Scott

Robins,

Managing Member

APPROVED AS

TO

FORM &

LANGUAGE

FOR EXECUTION

5

MIAMI

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ae


14/275

a

SCHEDULE

A

PREDEVELOPMENT WORK

ITEM

MAXIMUM COST

1 .

Architectural

and

Landscape

Plans

951000

2.

Traffic

Study

22,

100

3 .

Renderings

6,000

4.

Survey

Preparation

1 , 050

5.

Environmental

Reports

2,

000

6.

Application,

Filing

Fees

and

20,000

Miscellaneous fees

7.

Attorneys

and

Mscellaneous 20,

000

Consultants Fees

166 150

MIAMI

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15/275

AGREEMENT

BETWEEN

CITY OF MIAMI BEACH

AND

ARQUITECTONICA INTERNATIONAL CORP.

FOR

PROFESSIONAL ARCHITECTURE AND

ENGINEERING

SERVICES

FOR

THE

PURDY AVENUE

GARAGE AND

RETAIL PROJECT

Resolution

No.

d

o


16/275

TABLE OF

CONTENTS

DESCRIPTION

1

DEFINITIONS

1

1 .

1

City

1

1 .

2

City

Commission

2

1 .

3

City

Manager 2

1 .

4

Proposal Documents

2

1 .

5

Consultant

2

1 . 6

City

Project

Coordinator

2

1 .

8

Basic Services

2

1 .

9

The

Project

2

1 . 9. 1

The

Project

Cost

3

1 .

9.

2

The

Project Scope

3

1 .

10

Construction

Cost

3

1 .

10.

1

Construction Cost

Budget

3

1 .

10.

2

Statement

oProbable

Construction

Cost

3

1 .

11

Force

Majeure

3

1 .

12

Contractor

4

1 .

13

Contract

Documents

4

1 .

14

Contract

for

Construction

4

1 .

15

Construction

Documents

4

1 .

16

Contract

Amendment

4

1 . 17

Additional

Services

4

1 .

18

Work

5

1 .

19

Services

5

1 . 20

Base

Bid

5

1 .

21

Schedules

5

1 .

22

Scope

o

Services

5

2.

BASIC

SERVICES

2.

1

Planning

Services

6

2.2

Design

Services

7

2.

3

Bidding

andAward

Services

7

2.4

Construction

Phase

Services

7

2.5

Additional

Services

7

2.6

Responsibility

for

Claims

and

Liabilities

7

2.7

Time

7

ARTICLE

3.

THE CITY'

S

RESPONSIBILITIES

11

ARTICLE

4.

RESPONSIBILITY

FOR

CONSTRUCTION

COST

14

ARTICLE

5.

ADDITIONAL

SERVICES

15

ARTICLE 6.

REIMBURSABLE EXPENSES

16

ii


17/275

7. COMPENSATION

FOR SERVICES

16

8.

CONSULTANT'S ACCOUNTING

RECORDS

18

9.

OWNERSHIP AND

USE

OF

DOCUMENTS

18

10.

TERMINATION

OF

AGREEMENT

19

10.

1

Termination

for

Lack o

Funds

19

10.

2

Termination

for

Cause

19

10.

3

Termination

for

Convenience

20

10.4

Termination for

Condition

Precedent

20

10. 5

Termination

by

Consultant

20

10. 6

Implementation

o

Termination

21

10.

7 Non-

Solicitation

21

1 1 .

INSURANCE

21

12.

INDEMNIFICATION

22

13.

VENUE

22

14.

LIMITATION

OF

LIABILITY

22

15.

MISCELLANEOUS

PROVISIONS

23

16.

NOTICE

25

SCHEDULES:

SCHEDULE A SCOPE OF SERVICES

SCHEDULE

B

CONSULTANT

COMPENSATION

SCHEDULE C

HOURLY BILLING

RATE

SCHEDULE

D

PROJECT SCHEDULE

SCHEDULE E GENERAL CONDITIONS OF

THE

CONSTRUCTION CONTRACT

SCHEDULE F

INSURANCE AND

SWORN

AFFIDAVITS

SCHEDULE G

BESTVALUE AMENDMENT

iii


18/275

TERMS AND CONDITIONS

OF AGREEMENT

BETWEEN THE CITY

OF MIAMI

BEACH AND CONSULTANT

ARQUITECTONICA

INTERNATIONAL

CORP.

FOR PROFESSIONAL

ARCHITECTURE

AND

ENGINEERING (

A/E)

SERVICES

FOR

THE

PURDY AVENUE GARAGE AND RETAIL PROJECT

0

entered

into

this ?

day

o:

AMsch

2009

b

and between the CITY

OF

MIAMI

This

Agreement

made and

y

Y

BEACH, a

muncpa

corporation

existing

under

the

laws

o

the

State

o

Florida (

hereinafter

referred to as

City),

having

its

princpa

ofices at

1700

Convention

Center

Drive,

Mami

Beach, Florida,

33139,

and

Arquitectonica

International

Corp.,

a Florida

corporation

having

its

princpa

ofice

at

801

Brickell Avenue,

Suite

1100,

Miami,

Florida,

33131 (

hereinafter

referred to

as

Consultant).

WTNESSETH

WHEREAS, the

City

intends

to

undertake a proect

wthn

the

City

o

Mami

Beach,

which is more

particularly

described

in

this

Agreement andthe

attached

Schedule "

A", and wishes

to

engage the Consultant

to

provide architecture, landscape architecture, an d engineering

services fo r

th e Pro je ct a t th e a gre ed

fees

as

set forth in this Agreement; and

WHEREAS,

the

Consultant

desires

to

contract

wth

the

City

for

performance

o

archtectura,

engineering,

urban

design,

and

landscape

archtectura, and related

professional services

relative to the

Project, as hereinafter set forth; and

NOW

THEREFORE,

City

and

Consultant,

in consideration of the mutual covenants and agreement

herein contained, agree

as follows:

ARTICLE

1 .

DEFINITIONS

1 . 1

CITY:

The "

City"

shal mean

the

City

of

Mami

Beach,

a Florida municipal corporation having its

princpa

ofices

at

1700

Convention

Center

Drive, Mami

Beach,

Florida,

33139.


19/275

1 .

2

CITY COMMISSION: "

City

Commission"

shall

mean the governing

and legislative body of

th e

City.

1 .

3

CITY

MANAGER:

The "

City

Manager"

sha

mean

the

chef

admnstrative

oficer

o

the

City.

The

City

Manager

shal

be construed

to

include

any

duly

authorized

designees,

including th e

Project

Coordinator

a nd sh all s er ve

as

th e C i ty 's representative to wh om

administrative

requests for approvals

sha

be

made

and

who

sha

issue

auhorizations (

exclusive of

those authorizations

reserved

to

the

City Commission)

to

th e Consultant.

1 . 4

PROPOSAL

DOCUMENTS: "

Proposal

Documents" shall

mean the

documents dated

August 0 1 ,

20 0 8 , a n d submitted to a nd a p p ro v ed by th e D esig n R e vie w Board

for

th e Project.

1 .

5

CONSULTANT: The "

Consultant"

is

herein defined as

Arquitectonica

International

Corp. ,

a

Florida

corporation

having

its

princpa

ofices

at

801

Brickell

Avenue,

Suite

1100,

Miami,

FL 33131.

When the

term "

Consultant"

is

used

in

this

Agreement it

shall

be deemed to

include any sub -

consutants

and

any

oher

personor

entity

acting

under

the

direction orcontro of Consultant.

Any

subconsultants retained by Consul tant pursuant

to this

Agreement

an d

th e

Project shall

be subject to

prior

witten

approva

o

the

City.

T he follow ing sub consultan ts are hereby

approved

by th e C ity for

Project:

he

Po

Structural Engineer:

Donnell Duquesne Albarsa Engineers,

PA.

Landscape

Architect: Arquitectonica GEO

M/ E/ P: Fire Engineer: PG I Group

Civil Engineer: Terra Civil Engineering

1 .

6

PROJECT

COORDINATOR:

The "

Project

Coordinator" shall mean the individual appointed by

th e

City

Manager

who

sha

be the

City'

s

authorized

representative

to

coordnate, direct,

and revewon

behalf of the City, all

matters

related

to

th e Project,

except

as otherwise provided

herein.

1 .

8

BASIC SERVICES: "

Basic

Services"

shall include the

architectural and interior design,

landscape

architectural,

and/or

engineering an d re la ted pro fessiona l serv ices rela tive

to

the Pro ject, as

hereinafter

set

forth,

including:

planning,

design, bidding/ award,

and

construction administration fo r

th e Project,

as

described in Article

2

herein and

in Schedule"

A"

entitled "

Scope of

Services"

attached

hereto.

1 .

9 PROJECT: The "

Project"

shall mean

the

City Capi ta l Pro ject that has

been

approved by the C ity

Commission

and as

described

in

Schedule "A" attached

hereto.

2


20/275

1 . 9.

1

PROJECT

COST:

The " Project

Cost",

asestabished

by

the

City,

shall mean the

total cost of

the

Project

to the

City

including:

Construction

Cost,

proessona

compensation,

land

cost,

if

any,

financing

cost,materias

testing

services,

surveys,

contingencesand

oher

mscelaneous

costs.

1 . 9.2

PROJECT

SCOPE:

The "Project

Scope" shall mean the description

of

the Project

contained

in

Schedule "

A" attached

hereto.

1 . 10

CONSTRUCTION

COST:

The "

Construction

Cost" for

the Project shall mean the sum which

is

th e total cost or estimated cost to the City of al l elements of th e P ro je ct designed or specified by th e

Consultant and

approved

by

the

City,

including,

at

current

market

rates (

wth

a

reasonabealowance

for

overhead

and proit),

th e cost of

labor

a nd m ate ria ls a nd any

equipment which

h as b een designed,

specfied,

seected

or

specifically

provded for

by

the

Consultant

and

approved

by

the

City,

and

including

a

contingency

alowance

for

unforeseen

condtions, no to exceed ten

percent (

10%) of the

construction

cost

for

newconstruction,

or

twenty

percent (

20%)

of construction cost

for

rehabilitation

of

historic

buildings,

and

not

including

the

compensationo the

Consultant

and

any

subconsutants,

the

cost

o

land,

righs-

o-

way,

surveys,

testing,

oroher

rembursabe

expenses. For

Work not constructed,

the

Construction Cost shall

be

the same

as

the

lowest

bona fide bid or

competitive

bid

received and

accepted

from

a

responsible

bidder

or

p r o p os er fo r any

an d a ll

o f

such

Work.

1 .

10.

1

CONSTRUCTION

COST

BUDGET: The "

Construction Cost Budget" shall mean an amoun

budgeted

by

the

City

for

Construction Cost,

as specfiedin

the Project

Scope

in

Schedule "A"

attached

hereto.

1 .

10.

2

STATEMENT

OF

PROBABLE

CONSTRUCTION

COST:

The "

Statement o

Probable

Construction

Cost"

shall mean a forecast

of Construction

Cost

prepared

b y

the Consultant,

as

defined

in

attached

Schedule "

A",

entitled "

Scope o

Services",

for the

guidance of the City. For Work which

bids

or

proposas

have no

been

let, the Construction Cost shall

be

the same

as

the latest Statement

of

Probable

Construction

Cost.

The

City

shal

have

the

righ

to

verify

the

Statement

of Probable

Construction

Cost o r deta iled cost estimate

by

the Consultant.

1 . 1 1

FORCE

MAJEURE: " Force Majeure"

shall mean an y

delay

occasioned by

superior

or irresistible

force

occasioned by violence in

nature

without the interference of human agency such as hurricanes,

tornadoes,

floods,

loss caused

by

fire and

oher smlar

unavodabe

casuaties;

or

by changes

in

Federal, State

or

local laws, ordnances,

codes

orreguations,

enacted

after the date

of

this Agreement

and

having

a

substantia

impact

on

the Project;

oher

causes beyond the parties

contro;

or by any

oher

such

causes

whchthe

Consultant

and

the

City

decide

in

writing

justify

the

delay;

provded,

3


21/275

however,

that

market

condtions, labor

condtions,

construction

industry

price

trends and similar matters

which normally impact on the bidding process sh all not

be

considered

a

Force Majeure.

1 .

12

CONTRACTOR /

CONTRACTORS: "

Contractor"

or "

Contractors"

shall mean those persons

or

entities

responsbe

for

performing

the Work

or

providing

the

materias, suppies

and

equpment

identified

in

the

Bid

and

Construction Documents

for

the Project.

1 .

13

CONTRACT

DOCUMENTS: "

Contract

Documents" sha

meanthis Agreement;

the

Agreement

between

the

City

and

Contractor; Contract

for

Construction;

Conditions

of

the Contract for Construction

General,

Supplementary,

andoher

Conditions);

Construction

Documents;

and addenda

issued

prior to

execution

o the

Contract

for

Construction.

A

modfication

is

one o

the

following: (

1 )

witten

amendment

to

this

Agreement

or

the

Contract for

Construction

sgned

by

both

parties; (

2) an

approved

Change

Order; (

3)

a

Construction

Change

Directive; or (

4)

a

written order

for

a minor change

in

the

Work

issued

by th e

Consultant.

1 .

14

CONTRACT

FOR

CONSTRUCTION: "

Contract

for

Construction"

shall mean a legally binding

agreement

with

Contractors.

1 .

15

CONSTRUCTION

DOCUMENTS: "

Construction

Documents"

sha mean the

final pans,

specifications,

drawings,

documents

and diagrams submitted by the

Consultant

pursuant to Article 2. 2

and

Schedule "

A"

attached hereto.

1 .

16

CONTRACT

AMENDMENT: "

Contract

Amendment"

shal

mean the witten

order to the

Consultant

approved

by

the

City,

as

specfied

in this

Agreement,

and

sgned

by

the C ity' s duly

authorized

representative,

authorizing

a

change

in the

Project

or the method and manner

o

performance

thereof, or an

adustment in

the

fees

and/

or

competion

dates,

as

appicabe.

Contract

Amendments

shal

be

approved

by

the

City

Commission,

if

they

exceed twenty- five t ho us an d d olla rs

25,000.

00)

or the

City

Manager

if

they

are

twenty-

five

thousand dollars ($

25,000.00) or less in

amount (

or

oher

such

amount

as

may

be specfied

by

the

City

o Mami Beach

Procurement

Ordinance,

as amended).

Even

for

Contract

Amendments

for

less

than

twenty-

five

thousand

25,

000.

00),

the

City Manager

shall

retain

the

right

to seek

and

obtain concurrence of the City

Commission for th e ap prova l of

a ny suc h

Contract Amendment.

1 .

17

ADDITIONAL

SERVICES: "

Additional

Services"

shall

mean those services described in Article

5

herein,

which

h ave b een

duly

authorized

in writing

by

th e C ity M a na ge r p rio r to

commencement

of

same.

4


22/275

1 . 18

WORK: "

Work"

shall

mean

th e work

to

be performed on

the

P ro je ct b y the Contractor,

pursuant

to

the

appicabe

Documents,

whether

competed

or

partially

competed,

and

includes labor and

materias,

equpment,

and

servces

provded, or

to

be provded,

by

the

Contractor to fulfill its

obigations.

1 .

19

SERVICES: "

Services"

sha

mean

the

services

to

be performed

on

the

Project

by

th e

Consultant

pursuant to

this

Agreement,

whether

competed

or

partially

competed,

and includes other

labor

and

materias,

equpment

and

services

provded, or to

be

provded,

by Consul tant to fulfill

its

obligations

herein.

1 . 20

BASE

BID: " Base

Bid"

shall mean the elements contained

in

the

Construction

Documents

recommended b y the Consultant and approved

by

the City as

being

within the Construct ion

Cost

Budget

pursuant

to

the

Statement

o

Probable

Construction

Cost

provided

by

Consultant. "

Base

Bid"

shal no

include "

Additive

Alternates"

or" Deductive Alternates".

1 . 21

SCHEDULES: "

Schedules"

shall

mean the various schedules attached to this Agreement

and referred to as follows:

Schedule

A—

Scope of Services.

Schedule

B—

Consultant

Compensation:

The schedule of compensation to the Consultant

for

Basic

Services, and

for

Reimbursable

Expenses,

as

defined,

pus

any

Additional Services,

as submitted by

th e

Consultant

and approved

by

th e

City.

Schedule

C —

Hourly Billing

Rate

Schedule:

T he

sc he dule o f H ourly

Compensation

Rates

to

th e

Consultant

as

submitted

by

the Consultant

and

approved

by the City.

Schedule

D —Project Schedule.

Schedule E —

General Conditions

of

the Construction

Contract

Schedule

F —

Insurance and Sworn Affidavits

Schedule

G —

Best

Value

Amendment

1 .

22

SCOPE

OF

SERVICES: "

Scope

o

Services" shall

mean the Project

Scope as

described

in

Schedule "A",

together

wth

the

Basic

Services

and

any

Additional

Services

approved

by

the

City,

as

described in Articles 2 an d 5 , respectively

herein.

5


23/275

ARTICLE 2. BASIC SERVICES

The

Consultant

sha

provde

Basic

Services

for the

Project

as set forth

hereafter.

The Services for

this Project will be performed by

the

Consultant

upon

receipt of a writ ten Not ice to Proceed

issued

by

the

City

Manager,

or his

designee,

and

Consultant

shal

countersgn

the

Notice

to

Proceed.

A

separate

Notice

to

Proceed

shal be

requred

for

commencement

of

eachTask,

as

defined

in

attached

Schedule "

A"

entitled "

Scope ofServices".

The

Consultant'

s

Basic

Services

sha

consst

o five (

5)

Tasks (

inclusive

o

planning,

design,

bidding/

award,

construction

admnstration

and

addtiona

servces)

as described

in attached Schedule

A ",

Scope o

Services, and

including,

wthout

limitation,

any

and all

of consultant' s responsibilities

andobigations,

as

set

forth

in the

General

Conditions o

the

Construction Contract (

Schedule "

E").

The Consultant

shal

coordnate

wth

subconsutants

and

oher consutants,

and

conformto

all

appicabe

building

codes

and

reguations.

Consultant,

as

it

reates to

its

Services,

representsand

warrants to the

City

that it

is

knowledgeable

o

codes,

rues and

reguations

applicable in the

jurisdictions

in

whch

the

Project

is

located,

including,

local

ordnances

and

codes (

City

of Miami

Beach

and

Miami-

Dade

County),

Florida

Statutes,

Administrative

rues and

reguations

including,

Federal

laws,

ruesand

reguations. The

Consultant

agreesto

comply

wth

all

suchlaws,

codes,

rues, and

reguations

now

n

effect,

andas

may

be

amended

oradopted

at

any

time,

and shall further take into

account

all

known

pending

changes

to

the

foregoing,

o

whch

it

shoud

reasonably

be

aware. The

Consultant

shall

insert

th e

provisions of

al l

required

laws, codes rules

an d regulations into

th e Contract

Documents.

The

Consultant

expressly

agrees

that

all o

its

duties,

servces

and

responsblities

under

this

Agreement shall be performed in accordance with

the standard

of care normally exercised in th e

design

o

proects

o

this nature

in

South

Florida.

In

addtion,

Consultant

represents

that it

is

experienced

a n d

fully

qualified

t o perform the Services

contemplated b y this

Agreement, a n d

that

it is

properly

licensed

pursuant

to

the

appicabe

laws, rules

and

regulations

to

perform

such

Services.

Consu ltant war rants that it shall

be respons ib le for

t he t ec h nic a l

accuracy

of

its work,

including

without

limitation

th e Design Documents

contemplated

in Section 2. 1 below

and th e a tta ch e d

Sch edule "

A".

2.

1

PLANNINGSERVICES:

Consultant

sha

prepare

Planning

services, as

noed

in

attached

Schedule " A" (

Task 1 )

entitled

Scope

of Services".

6


24/275

2. 2

DESIGN SERVICES:

Based

on

the

approved

Planning

documents

developed

under Section 2. 1 ,

Consultant shall prepare

Design

Documents,

as

noed in

attached

Schedule "

A", (

Task

2)

entitled "

Scope of Services"

2. 3 BIDDING AND AWARD

SERVICES:

Consultant

shal

provde

bidding

and

award services

as

noed

in

attached

Schedule "

A" (

Task

3)

entitled "

Scope

of Services".

2.

4 CONSTRUCTION ADMINISTRATION SERVICES:

Consultant

sha

furnish

construction

admnstration

servces

as noedin attached

Schedule "

A"

Task

4) entitled "

Scope

of

Services".

2. 5 ADDITIONAL

SERVICES:

If

requred

and

soapproved

b y

the

City,

Consultant

shall provide

Additional

Services

as

noted

in

attached

Schedule "

A", (

Task 5)

entitled "

Scope

of

Services".

2. 6 RESPONSIBILITY

FO R

C LAIM S AN D LIABILITIES: Approval by th e City

sh a ll n ot

constitute

nor

be deemed

a

release of th e

responsibil i ty

and

l iability

o f th e Consultant, its employees,

subcontractors,

agents and

consutants

for

the

accuracy

and

competency

o

their

designs,

working

drawings,

specfications or

oher

documents

and

services;

nor

sha

such

approva

be

deemed

to

be

an

assumption

o

such

responsibility

by

the

City

for a

defect,

error or omsson

in designs,

working

drawings,

specfications

or

oher

documents

prepared

by

the

Consultant,

its

empoyees,

subcontractors,

agents

and

consutants.

However, the Consultant shall be entitled to reasonably

rely

upon the accuracy and

validity

of written decisions

and

approvals furnished b y the City and it sY

Y

empoyees.

2.7

TIME:

It

is

understood

that

time

is

o the

essence

in

the

competion

o

this

Project, and in this

respect

the parties agree as follows:

2.

7 . 1

The

Consultant

sha

perform

the Services

as

expeditiously

as

is

consistent

with

the

standard

of

professional

skill an d

care required by this Agreement

and

th e orderly progress

of

th e

Work.

2.

7.

2

The parties a gre e th at th e

Consultant'

s Ser vices dur ing

al l phases

of this Project will

be

performed

in

a

manner

that

shal

conform

wththe

approved

Project

Schedule, which

is

attached

to

this

Agreement

as

Schedule "

D".

The

C o n su lta n t m ay submit requests fo r

an

7


25/275

adustment to the

Project

Schedule,

made

necessary

by

undue

time

taken

by

th e City

to

approve

the

Consultant's

submssons,

a nd/ o r

excessive

time

taken by

th e

City

to

a p pro ve th e

S e rv ic es o r

parts

o

the

Services.

The

City

sha

no

unreasonably

refuse

to approve

such

adustment(

s)

to

th e

Project

Schedule if th e request

is made

in a

timely

manner and is fully

justified.

2.

7.

3

In

providing

the

Services described

in

this

Agreement,

the

Consultant

shall use

its

best

efforts

to

mantan,

on behalf

o

the

City,

a

constructive,

proessona,

cooperative working

relationship

wth

the

Contractor(

s),

and others that have

been

contracted

to

perform Services

and/

or W ork pertaining

t o the Project.

While

the

Services to b e provided

b y

Consultant

under

this

Agreement will be

p ro vid ed u nd er

th e general

direction

o f th e City' s Program Coordinator, it is

th e

intent

of this

Agreement to a llo w th e Consultant

to

coordinate th e performance of al l design

and

construction

administration to

the extent such coordination

by

the

Consultant is

permitted

by

th e

contracts

for the design

and construction administration.

2.7.

4

I t is further

the

intent o f th is A g re em e n t th a t th e Consultant

shall

perform

its

duties

under

this

Agreement

in a

competent,

timely

and

proessona

manner and that it shall be

responsbe

to

the

City

for

any

failure

in

its

performance

except to the

extent

that

acts

or

omissions

by

the

City or

others make

such

performance impossible.

2.

7.

5

Whenever

during

the

term

o

this

Agreement,

ohers

are

requred

to

verify,

revew

or

consider

a n y work

performed

b y

Consultant, including but not

limited

to the

design

professionals,

Contractors,

an d

other consul tants retained

by

the City,

th e

intent

of

such

requirement

i s

to

enable

the

Consultant

to

receve input

from

ohers

professional expertise to identify any discrepancies,

errors or o m is sio ns th a t are inconsistent w ith in d us try

standards

fo r design

or

construction of

comparabe

pubic

proects;

or

whch

are

inconsistent wth

appicabe

laws,

codes,

ordnances,

and

reguations;

or

which

are

inconsistent with

standards or

decisions provided in writing

by

th e

City'

s

Project

Coordinator.

Consultant

will use

reasonable care

and

skill in accordance with and

i

consstent

wth

customary

professona

standards

in

responding

to

items

identified

as

discrepancies, errors and omissions by

others.

Consultant

shal l receive comments

f rom rev iewers

va

a

set

of

marked-

up

drawings

and

specfications.

Consultant

sha

address comments

forwarded

to

it

in

a

timely

manner.

The

term "

timely"

shall be construed to mean

as

soon

as

possible under the circumstances, taking

into

account the requirements o f th e Project Schedule.

2.

7.

6

The

City

shal

have the

righ

at

any

time,

and

in its

sole

and

absolute

discretion,

to submit

for

reviewto

consulting

engneers

or

consulting

archtects

or

oher

consutants,

engaged by th e

City

at its

own

expense

for

that

purpose,

any

or all

parts of the services performed by th e

8


26/275

Consultant,

an d

th e Consul tant s hal l c o operate fully in s uc h r ev ie w

at

th e City'

s

request.

2. 7. 7

Consultant agrees to certify and

warrant

all estimates of Construction C ost p re pare d

by

Consultant.

Said certifications shall be in

a form and

manner as approved by

the City '

s

Project

Coordinator.

2.7.

8

Consultant

represents to

City

that

all

evauations of the

City'

s

Project

Budget,

Consultant

generated

Statement

o

Probable

Construction

Cost,

and detailed estimates represent

Consultant'

s

best

judgment

as

a

design

proessona

familiar wth

the

construction

industry.

Consultant

cannot

an d

does not

guarantee

that

bids

or

negotiated

prices

will no t

vary from

any

estimate

of Construction Cost or evaluation prepared or agreed to by

Consultant.

2.7. 9

Consultant

agrees

that,

when

the

Services

to

be

provided

hereunder

reate to a

proessona

servce

whchunder

Florida

Statutes,

requres

a

license,

certificationoauhorization,

or

oher

form

o

legal

entitlement

to

practice

such

services,

it shall

employ and/

or

retain

only

qualified personnel to provide

such

services.

2.7. 10

Consultant

agreesto

employ

and

designate

in

writing,

wthn

five (

5)

calendar

days after

receiving i t s

initial Notice

to Proceed,

a

qualified licensed professional to serve a s the Consultant' s

proect

manager (

herein

after

referred

to

as "

Project

Manager").

The Project Manager shall

be

authorizedand

responsbe to

act

on

behalf

o

Consultant

wth

respect

to

directing,

coordinating

a n d

administrating

a ll

aspects

of Services

to b e

provided

and

performed under

this

Agreement.

The person selected by Consultant to

serve

as Project Manager shall

be

subject

to approval

and

acceptance

by

City.

Replacement (

including

reassgnment)

of

said

Project

Manager

shall not

be

made

without

the

prior written approval

of

the

City.

2.7.

11

Consultant

agrees,

wthn

fourteen (

14)

calendar days

of

receipt

of

written notice to do

such

from

City,

to

promptly

remove

and

repace

Project

Manager, or

any

oher personne

empoyed

or

retaned

by

Consultant,

or

any

subconsutant

or

subcontractors

engaged

by

Consultant,

which request may

be

made

by

City

with

or

without

stating

its

cause.

2.

7.

12

Consultant

herein

represents

to

City

that

it has

expertise

in

the type

of

professional

servces

that

wll

be

performed

and

pursuant

to this

Agreement.

Consultant

agrees that

all

Services to b e provided by Consultant pursuant to this Agreement shall be subject t o

City'

s review

and

approval

and shall b e

in

accordance

with

the

generally

accepted

standards

of professional

practicein the

State

o

Florida,

as

wel

as

in

accordance

wth

appicabe

pubished

laws,

statues,

9


27/275

ordnances,

codes,

rues,

regulations an d requirements of an y governmental agencies

having

jurisdiction

over th e Project or th e Services to be

performed

by

Consu ltant hereunder.

In th e event

o

any

conflicts

in these

requrements,

Consultant s ha ll n o tify City of such conflict a nd u tiliz e its

best professional judgment

to

advise City regarding

resolution

of

each such

conflict.

2. 7.

13

Consultant

agrees

not

to

divulge, furnish

or

makeavalabe

to

any

third

person,

firm

or

organzation,

without City'

s prior written

consent,

or

unless incident

to the proper

performance of

Consultant'

s

obigations

hereunder,

or

in the course of

judicial

or

legislative proceedings

where

such

information

has

been

properly

subpoenaed,

an y non- public

information

concerning Services

to

be

rendered

by

Consultant

hereunder, and

Consultant

shal requre

its

empoyees,

agents,

subconsultants an d

subcontractors

to comply

with

th e

provisions

of

th is p a ra g ra p h .

2.7.

14

T h e

C i t y a n d Consultant acknowledge

that

the

Scope of

Services

does

not delineate every

detail

and

mnor

work

task

requred

to

be

performed

by

Consultant to

compete

the

Project. If,

d u r i n g

t h e

c o u r s e

o f the

p e r f o r m a n c e o f

t h e S e r v i c e s

c o n t e m p l a t e d in

this Agreement,

C o n s u l t a n t

determines

that

work

shoud

be

performed

to

compete

the

Project

whch

is,

in the Consultant' s

opnon,

outsde

the

level o

effort

originally

anticpated,

whether or

not the

Scope of Services

identifies the

work

items,

Consultant

sha

notify

the Project

Coordinator, in

writing,

in a timely

manner, and

obtan

sad

Project

Coordinator'

s

witten

consent,

before proceeding with the work.

The

Project

Coordinator

mus

comply

wth

Contract

Amendment

processing

requrements as

outlined

in

Article

1 . 16,

prior

to

issuance

of

any writ ten author ization to proceed with Addi tional

Services

to

Consultant.

If

Consultant proceeds with additional

Services without

notifying

and

obtaining

the

consent o the

Project

Coordinator,

said

work shall be deemed

to be

within the

origna level

o

effort,

and

deemed included

as

a Basic

Service

herein, whether or not

specifically

addressed

in

the

Scope o

Services.

Notice to

the

Project Coordinator

does not constitute

authorization

or

approva

b y

the

City

to

perform

the

work

Performance of work by Consultant

outside

t h e

originally anticipated l e v e l

of effort without

the prior

written consent

of

the C i t y s h a ll

b e

at Consultant's sole

risk,

2.

7.

15

Consultant

sha

estabish

andmantan

files

o

documents,

letters,

reports,pans,etc.

pertinent

to

the Project.

Consultant

shal provde

City

wth

a

copy

o

appicabe

Project

correspondencefor

City

to

file in

its

filing

system

In addtion,

Consultant shall provide electronic

Project document f iles to the City, at

the completion

of the Pro ject.

2.

7. 16

It is

further the intent

o f th is A gre em en t that

the

Consultant

s ha ll p er fo rm its

duties

under

this Agreement

in

a

competent,

timely

and

proessona

manner

and

that it

sha

be

10


28/275

responsbe to the

City

for

any

failure

in

its

performance except

to the extent

that acts or

omissions

by

the

City or

others

m ak e such

performance impossible.

2.

7.

17

In th e event

Consultant

is

unable

to

timely complete

th e

Project

because

of delays

resulting from untimely

review

by C ity or

other governmental

authorities having

jurisdiction

over

the

Project,

or

such

delays

whch

are

caused

by

factors

outside

the

control

of

Consultant,

Consultant

shall

provide Ci ty with immediate writ ten notice stating the reason

fo r such delay and a

revsed

anticpated

schedueo

competion.

City,

upon

review of Consultant's submittal and such

oher

documentation

as the

City may.

requre,

may grant a reasonable extension

of

time fo r

completion of

the Project

and may

provide

reasonable compensation,

if

appropriate.

2.

7.

18

The Consultant

covenants

wth

the

City

to

furnish its Services

hereunder

properly,

in

accordance with

the

standards of

its

profession and

in

conformance

with

applicable construction,

building

and

health

codes

and

oher

appicabe

Federal,

State

and

local

rues, reguations

and

laws,

of

which

it should reasonably

be aware, throughout

the term of this

Agreement.

The

City'

s

participation in th e design and construction of th e Project

in

no way relieves th e Consul tant of

its

professional duties an d responsibilities under applicable law and

under

the Contract Documents

ARTICLE 3 .

THE

CITY'

S

RESPONSIBILITIES

3.

1

The

City shall designate

in writing a Project Coordinator to act as the City' s representative with

respect to

the

servces

to

be

rendered

under

this

Agreement (

herein after

referred

to as

Project

Coordinator).

The

Project

Coordinator

sha

have

authority

to

transmit

instructions,

receive information,

interpret

and define City

policies

and

decis ions with respect

to

Consultant' s

Services on this

Project.

However, the Project Coordinator is not authorized to issue

any

verbal or written orders or instructions

to

Consultant

that

woud

have

the

effect,

or

be

interpreted to

have

the

effect,

of

modifying

or

changing

in

any

way

whatsoever,

unless

approved b y the City (Manager

and/

or City Commission

in

compliance

with Article

1 . 1 6 requirements,

including

b ut not

l imited

to th e

fol lowing:

a)

The Scope of Services to

be

provided and performed by Consultant hereunder;

b)

The

time

th e Consultant is

obligated

to commence

and

complete all such Services; or

c)

The

amount

of compensation th e City is obligated or committed to pay Consultant.

3 . 2 The

City

shall

assist

Consultant b y

placing a t

Consultant'

s

disposal a l l information that

the

C i t y

has available pertinent

to

th e

Project, including

previous

reports

an d

an y

other

data relative to

design

or

construction

o

the

Project.

It

shal be

fully

understood

that

City,

in

making

suchreports, ste

1


29/275

information, and

documents

available to

the Consultant is in no way certifying representing

and/

or

warranting

as to

the

accuracy

or

competeness

o

such

data.

An y conc lusions or assumptions drawn

th rough examinat ion

thereof

shall

be th e so le

responsibil i ty of th e Consultant and subject to whatever

measure it deems necessary

to final

verification essential

to its

performance under

this

Agreement.

Additional Services required

du e

to inaccurate, incomplete or incorrect information suppl ied by th e City

may

be

undertaken

b y

the

Consultant

as an

Additional

Service

to this

Agreement.

Consultant shall

notify

the

Project

Coordinator, in

writing,

in a timely manner and obtain said Pro jec t Coord ina tor'

s

witten

consent,

before

proceeding

wth

the

work

If Consultant proceeds with the Additional Services

without notifying

and obtaining the consent

of

the Project

Coordinator,

said

work shall

b e

deemed t o

be

within

th e

original

level

of effort an d deemed included as a Basic Service herein.

3 . 3

The

C i t y h a s

established

a Construction Cost

B u d g e t

for

the

P r o j e c t ,

a s stated in Schedule A.

3.

4

In

the

City'

s soe

discretion,

the

City

may furnish

legal,

accounti