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95-21846 Reso RESOLUTION NO. 95-21846 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE EXPENDITURE OF $50,000 TOWARD THE SECOND YEAR OPERATING BUDGET OF THE MIAMI BEACH TRANSPORTATION MANAGEMENT ASSOCIATION (MBTMA), WHICH BEGINS ON JANUARY 1, 1996; APPROVING THE REALLOCATION OF EXISTING 1995-96 FUNDS TO COVER THE EXPENSE; AND FURTHER APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH MBTMA. WHEREAS, on October 24, 1995, the Board of Directors of the South Beach Transportation Management Association (SoBe TMA) voted to become an independent 501 (c)(6) not-for-profit corporation, and adopted new Articles of Incorporation and Bylaws for the organization, which was renamed Miami Beach Transportation Management Association (MBTMA); and WHEREAS, the major item on MBTMA's 1996 Work Program is the development and implementation of the South Beach Electric Shuttle Demonstration Program, for which the City and MBTMA have applied for approximately $3 million in state and federal grants; and WHEREAS, the first year budget of $150,000 expires on December 31,1995, with the First Year Work Program either completed or ongoing; and WHEREAS, the proposed MBTMA Second Year Operating Budget is $183,975, with $73,590 to be funded by the Florida Department of Transportation, a combined $50,000 from the City of Miami Beach and the Miami Beach Redevelopment Agency, and a $60,385 combination of MBTMA membership dues and in-kind/sponsorship services; and WHEREAS, the City's portion of the combined $50,000 contribution, or $20,550 in Parking Enterprise Funds, needs to be reallocated for purposes of this contribution; and WHEREAS, the City has negotiated the attached Professional Services Agreement with MBTMA for the Second Year Operating Budget. NOW. THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the City is supportive of MBTMA, its budget and work program and commits to provide a $50,000 matching grant for the second year of MBTMA operations; further, that certain 1995-96 Parking Enterprise funds be reallocated to cover $20,550 of the total matching grant; and, further, that the attached Professional Services Agreement with MBTMA is approved for execution by the Mayor and City Clerk. PASSED AND APPROVED this 20th day of Decem FORM APPROVED LEGAL DEPT. By .fAt '1(~ Date / '-/ I s,h 5 ~'" ATTEST: ~.wJ'~ CITY CLERK aj CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 CITY OF MIAMI BEACH COMMISSION MEMORANDUM NO. ~ TO: Mayor Seymour Gelber and Memben of the City Commission DATE: December 20, 1995 FROM: Jose Garcia-Pedrosa I1J City Manager" A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE EXPENDITURE OF $50,000 TOWARD THE SECOND-YEAR OPERATING BUDGET OF THE MIAMI BEACH TRANSPORTATION MANAGEMENT ASSOCIATION (MBTMA), WHICH BEGINS ON JANUARY 1, 1996; APPROVING THE REALLOCATION OF EXISTING 1995-96 FUNDS TO COVER THE EXPENSE; AND FURTHER APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH MBTMA. SUBJECT: ADMINISTRATION RECOMMENDATION Approve the Resolution. BACKGROUND The Miami Beach Transportation Management Association (MBTMA), originally incorporated as the South Beach Transportation Management Association (SoBe TMA), . was initiated last year to develop and implement transit solutions (circulator/park-and- ride shuttle service) and mobility options (vanpools, carpools, etc.) for Miami Beach beyond the private automobile. The City Commission then approved a contribution of $50,000 toward the $150,000 first-year operating costs of SoBe TMA. At the same time, the Florida Department of Transportation (FDOT) contributed $75,000 and the Miami Beach Development Corporation (MBDC), which housed SoBe TMA, contributed $25,000. This $25,000 contribution was paid back to MBDC for staff support, office space and use of office equipment. On October 24, 1995, the Board of Directors of SoBe TMA voted affirmatively for the Association (1) to become an independent not-for-profit 501 [c][6] corporation, (2) to approve Articles of Incorporation and new Bylaws, (3) to change the name of the organization to Miami Beach Transportation Management Association (MBTMA), and (4) to move the office from MBDC to Jefferson Bank on 41 st Street, As a member of MBTMA, Jefferson Bank is providing office space and use of office equipment as an AGENDAITEM~ DATE j2.-'2()-~ in-kind contribution to MBTMA. This has freed up a substantial portion of the operating budget for Work Program uses. The Second Year Work Program is herein attached as "Exhibit A." The TMA Work Programs for this and next year have maintained the development and implementation of the South Beach Electric Shuttle Service as its priority project. The City of Miami Beach and TMA have applied for several State, Federal and local grants and/or funds totalling approximately $3 million. Once the needed $2.8 million in capital and operating funds are in place, the Electric Shuttle service is scheduled to be implemented by the next tourist season. First-{ear accomplishments of TMA are: * Conducted a nationwide search and hired a qualified and competent Executive Director in Judy Evans; Developed an initial TMA membership base; Conducted a highly successful two-day Electrical Shuttle service demonstration in South Beach with one electric vehicle loaned from the Chattanooga Area Regional Transportation Authority (CARTA); Structured and initiated the Electric Shuttle Program development; Secured commitment of $1.25 million in State grants (capital and operating) for the Electric Shuttle Program; Secured commitment of an $150,000 in-kind contribution (electric battery charge station) by the Florida Power & Light Company; Produced, distributed and is in the process of analyzing results of several transportation surveys; and Conducted several transportation forums. * * * * * * * ANALYSIS MBTMA's effectiveness and commitment to its Work Program have been confirmed by both the FOOT and City project managers who evaluate the reports MBTMA is required to submit on a quarterly basis. The proposed Second Year Operating Budget (January-December 1996) of $183,975 is herein attached as "Exhibit B." It should be read in conjunction with the proposed Second Year Work Program (Exhibit A). The funding distribution is as follows: * $73,590 from FOOT, which, from now on, funds only 40% of the total proposed budget; * $50,000 from the City Parking Enterprise Fund and the Redevelopment Agency Fund (RDA); and * $60,385 from a combination of MBTMA membership dues and in-kind/ sponsorship services, as shown on the proposed operating budget. Funds for the $50,000 contribution toward the MBTMA operating budget are available if reallocations are made in both the 1995-96 City Parking Enterprise Fund in the amount of $20,550, and the Redevelopment Agency budget in the amount of $29,450. The reallocation is requested and made possible for the following reasons: $100,000 in Parking and RDA funds were budgeted in 1995-96 for a transportation mobility study known as "The Miami Beach Municipal Mobility Plan." Subsequently, a $68,500 grant toward this $100,000 Mobility Plan was received from the Metropolitan Planning Organization, thereby reducing the City Parking and RDA funding obligation to $31,500 and freeing up $68,500 for other uses. Since MBTMA and its future South Beach Electric Shuttle Program, a circulator/park-and-ride transit system, will greatly benefit the parking system and the two South Beach redevelopment areas, we request that $50,000 of the $68,500 available funds be reallocated for MBTMA operating budget purposes. A companion item is on today's RDA Agenda. CONCLUSION The continued public-private partnership of City and MBTMA is essential to the development and implementation of the circulator/park-and-ride service which will help alleviate the congestion, mobility and parking problems of South Beach. Therefore, the Administration strongly recommends that funds be reallocated as requested, and that the combined City Parking and RDA $50,000 contribution be approved, as well as the related Professional Services Agreement with MBTMA. JGP/AJ/aj (mbtma2nd) PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND THE MIAMI BEACH TRANSPORTATION MANAGEMENT ASSOCIATION (MBTMA) THIS AGREEMENT made this 20th day of December , 1995 by and between the CITY OF MIAMI BEACH, FLORIDA (City), which term shall include its officials, successors, legal representatives, and assigns, and MBTMA, (Consultant). SECTION 1 DEFINITIONS Agreement: This written Agreement between the City and the Consultant. City Manager: "City Manager" means the Chief Administrative officer of the City. Consultant: For the purposes of this Agreement, Consultant shall be deemed to be an independent contractor, and not an agent or employee of the City. Final Acceptance: "Final Acceptance" means notice from the City to the Consultant that the Consultant's Services are complete as provided in Section 4.8 of this Agreement. Fixed Fee: Fixed amount paid to the Consultant to allow for its costs and margin of profit. Project Coordinator: An individual designated by the City to coordinate, direct and review on behalf of the City all technical matters involved in the Scope of Work and Services. Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center Drive, Third Floor, Miami Beach, Florida 33139. Services: All services, work and actions by the Consultant performed pursuant to or undertaken under this Agreement described in Section 2. Termination: Termination of Consultant Services as provided in Section 4.9 of this Agreement. Task: A discrete portion of the Scope of Services to be accomplished by the Consultant, as described in Section 2 below, if directed and authorized. SECTION 2 SCOPE OF WORK AND SERVICES REQUIRED The scope of work for this project to be performed by the Consultant is set forth in Exhibit "A," entitled "Second Year Work Program" (Services). SECTION 3 COMPENSATION 3.1 FIXED FEE The City agrees to provide Consultant with funds in the amount of Fifty Thousand and 00/100 Dollars ($50,000.00); $20,550.00 from the Parking Enterprise Fund, and $22,450.00 from the Redevelopment Agency budget, to be used in furtherance of the Services to be performed herein, such Services as set forth in Exhibit "A" hereto. All funds issued by the City to Consultant shall be placed by Consultant in an account designated solely and exclusively for the operation and administration of the MBTMA. 3.2 METHOD OF PAYMENT Payment shall be made to the Consultant at the time of execution of this Agreement. Consultant shall be required to submit quarterly invoices or other submissions which detail or represent the final completion of Project milestones as set forth in Exhibit "A." Specific milestones shall include the submission of an invoice documenting the completion of tasks related to the data collection effort, a draft report of the operation and management review and the final consolidated report document. All submissions shall contain a statement that the items set forth therein are true and correct and in accordance with the Agreement. -2- SECTION 4 GENERAL PROVISIONS 4.1 RESPONSIBILITY OF THE CONSULTANT With respect to the performance of the Services, the Consultant shall exercise that degree of skill, care, efficiency and diligence normally exercised by recognized professionals with respect to the performance of comparable Services. In its performance of the Services, the Consultant shall comply with all applicable laws and ordinances, including but not limited to applicable regulations of the City, County, State, Federal Government, ADA, EEO Regulations and Guidelines. 4.2 PUBLIC ENTITY CRIMES State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes as available with the office of the City Clerk, shall be filed by Consu Itant. 4.3 PROIECT MANAGEMENT The Consultant shall appoint a qualified individual acceptable to the City to serve as Project Manager for the Services who shall be fully responsible for the day-to-day activities under this Agreement and who shall serve as the primary contact for the City's Project Coord i nator. 4.4 DURATION AND EXTENT OF AGREEMENT The term of this Agreement shall be for a period of one year, commencing on January 1, 1996 and ending on December 31, 1996. Any future term of this Agreement following the one-year term set forth herein, shall be subject to the approval of the City. The City's future funding for any additional term(s) shall also be contingent upon a favorable evaluation of the MBTMA by the City and the Florida Department of Transportation. Notwithstanding the aforestated language, however, the City shall have no future obligation to renew this Agreement beyond the one-year term set forth herein. 4.5 TIME OF COMPLETION The Services to be rendered by the Consultant shall be commenced upon receipt of a written Notice to Proceed from the City subsequent to the execution of this Agreement and Consultant shall adhere to the completion schedule as shall be determined by the City and Consultant. A reasonable extension of time shall be granted in the event the work of the Consultant is delayed or prevented by the City or by any circumstances beyond the reasonable control -3- of the Consultant, including weather conditions or acts of God which render performance of the Consultant's duties impracticable. 4.6 NOTICE TO PROCEED Unless otherwise directed by the City, the Consultant shall proceed with the work only upon issuance of a Notice to Proceed by the City. 4.7 OWNERSHIP OF DOCUMENTS AND EQUIPMENT All documents prepared by the Consultant pursuant to this Agreement are related exclusively to the Services described herein, and are intended or represented for ownership by the City. Any reuse shall be approved by the City. 4.8 INDEMNIFICATION Consultant agrees to indemnify and hold harmless, the City of Miami Beach and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the Consultant, its employees, agents, sub-consultants, or any other person or entity acting under Consultant's control, in connection with the Consultant's performance of the Services pursuant to this Agreement; and to that extent, the Consultant shall pay all such claims and losses and shall pay all such costs and judgements which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys fees expended by the City in the defense of such claims and losses, including appeals. The parties agree that one percent (1 %) of the total Compensation to the Consultant for performance of this Agreement is the specific consideration from the City to the Consultant for the Consultant's Indemnity Agreement. The Consultant's obligation under this article shall not include the obligation to indemnify the City of Miami Beach and its officers, employees and agents, from and against any actions or claims which arise or are alleged to have arisen from negligent acts or omissions or other wrongful conduct of the City and its officers, employees and agents. The parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. 4.9 INSURANCE REQUIREMENTS The Consultant shall not commence any work pursuant to this Agreement until all insurance required under this Section has been obtained and such insurance has been approved by the City's Risk Manager. The Consultant shall maintain and carry in full force during the term of this Agreement and throughout the duration of this project the following -4- insurance: 1. Consultant's Professional Liability in the amount of $300,000.00. A certified copy of the Consultant's (and any sub-consultants') Insurance Policy must be fi led and approved by the Risk Manager prior to commencement. 2. Workers Compensation & Employers Liability as required pursuant to Florida statute. 3. Thirty (30) days written notice of cancellation or substantial modification in the insurance coverage must be given to the City's Risk Manager by the Consultant and his insurance company. 4. The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City's Risk Manager. 5. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager for approval prior to any work commencing. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall. 6. The Consultant is responsible for obtaining and submitting all insurance certificates for their consultants. All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B +" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Manager. Compliance with the foregoing requirements shall not relieve the Consultant of the liabilities and obligations under this Section or under any other portion of this Agreement, and the City shall have the right to obtain from the Consultant specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required overage. 4.9.1 Endorsements All of Consultant's certificates, above, shall contain endorsements providing that written notice shall be given to the City at least thirty (30) days prior to termination, cancellation or reduction in coverage in the policy. 4.9.2 Certificates Unless directed by the City otherwise, the Consultant shall not commence any services -5- pursuant to this Agreement until the City has received and approved, in writing, certificates of insurance showing that the requirements of this Section (in its entirety) have been met and provided for. 4.10 FI NAL ACCEPTANCE When the Consultant's Services have been completed, the Consultant shall so advise the City in writing. Final Acceptance shall not constitute a waiver or abandonment of any rights to remedies available to the City under any other Section of this Agreement. 4.11 TERMINATION. SUSPENSION AND SANCTIONS 4.11.1 Termination for Cause If through any cause within the reasonable control of the Consultant, the Consultant shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, the City shall thereupon have the right to terminate the Services then remaining to be performed. Prior to exercising its option to terminate for cause, the City shall notify the Consultant of its violation of the particular terms of this Agreement and shall grant Consultant ten (10) days to cure such default. If such default remains uncured after ten (10) days, the City, upon three (3) days' notice to Consultant, may terminate this Agreement. In that event, all finished and unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports and other work products prepared by the Consultant and its subcontractors shall be properly del ivered to the City and the City shall compensate the Consultant in accordance with Section 3 for all Services performed by the Consultant prior to Termination. Notwithstanding the above, the Consultant shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the Agreement by the Consultant and the City may reasonably withhold payments to the Consultant for the purposes of set off until such time as the exact amount of damages due the City from the Consultant is determined. 4.11.2 Termination for Convenience of City The City may, for its convenience, terminate the Services then remaining to be performed at any time by giving written notice to Consultant of such termination, which shall become effective seven (7) days following receipt by Consultant of the written termination notice. In that event, all finished or unfinished documents and other materials as described in Section 2 shall be properly delivered to the City. If the Agreement is terminated by the City as provided in this Section, the City shall compensate the Consultant for all Services actually performed by the Consultant and reasonable direct costs of Consultant for assembling and -6- delivering to City all documents. Such payments shall be the total extent of the City's liability to the Consultant upon a Termination as provided for in this Section. 4.11.3 Termination for Insolvency The City also reserves the right to terminate the remaining Services to be performed in the event the Consultant is placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors. In such event, the right and obligations for the parties shall be the same as provided for in Section 4.10.2. 4.11.4 Sanctions for Noncompliance with Nondiscrimination Provisions In the event of the Consultant's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such Sanctions as the City or the State of Florida may determine to be appropriate, including but not limited to withholding of payments to the Consultant under the Agreement until the Consultant complies andlor cancellation, termination or suspension of the Services, in whole or in part. In the event the City cancels or terminates the Services pursuant to this Section the rights and obligations of the parties shall be the same as provided in Section 4.10.2. 4.11.5 Changes and Additions Each such change shall be directed by a written Notice signed by the duly authorized representatives of the Consultant. Said Notices shall provide an equitable adjustment in the time of performance, a reallocation of the task budget and, if applicable, any provision of this Agreement which is affected by said Notice. The City shall not reimburse the Consultant for the cost of preparing Agreement change documents, written Notices to Proceed, or other documentation in this regard. 4.12 ASSIGNMENT. TRANSFER OR SUBCONTRACTING The Consultant shall not subcontract, assign, or transfer any work under this Agreement without the prior written consent of the City; which consent, if given, shall be at the sole and absolute discretion of the City. 4.13 SUB-CONSULTANTS The Consultant shall be liable for the Consultant's services, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of sub- consultants, and any other person or entity acting under the direction or control of the Consultant. When the term "Consultant" is used in this Agreement, it shall be deemed to include any sub-consultants and any other person or entity acting under the direction or control of Consultant. All sub-consultants must be approved in writing prior to their engagement by Consu Itant. -7- 4.14 EQUAL EMPLOYMENT OPPORTUNITY/ADA NON- DISCRIMINATION POLICY In connection with the performance of this Agreement, the Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, or physical handicap. The Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, disability, or sexual orientation. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or termination; recruitment or recruitment advertising; layoff or termination; rates of pay, or other forms of compensation; and selection for training, including apprenticesh i p. Consultant agrees to adhere to and be governed by all applicable requirements of the laws listed below including, but not limited to, those provisions pertaining to employment, provision of programs and services, transportation, communications, access to facilities, renovations, and new construction. The Americans with Disabilities Act of 1990 (ADA): Pub. L. 101- 336, 104 Stat 327, 42 U.s.e. 12101-12213 and 547 U.S.e. Sections 225 and 611 including Title I, Employment; Title II, Public Services; Title III, Public Accommodations and Services Operated by Private Entities; Title IV, Telecommunications; and Title V, Miscellaneous Provisions. The Rehabilitation Act of 1973: 29 U.S.e. Section 794. The Federal Transit Act, as amended: 49 U.S.e. Section 1612. The Fair Housing Act as amended: 42 U.s.e. Section 3601-3631. Consultant must complete and submitthe City's Disability Non-Discrimination Affidavit (Affidavit). In the event Consultant fails to execute the City's Affidavit, or is found to be in non- compliance with the provisions of the Affidavit" the City may impose such sanctions as it may determine to be appropriate, including but not limited to, withholding of payments to Consultant under the Agreement until compliance andlor cancellation, termination or suspension of the Agreement in whole or in part. In the event, the City cancels or terminates the Agreement pursuant to this Section, Consultant shall not be relieved of liability to the City for damages sustained by the City by virtue of Consultant's breach of the Agreement. 4.15 CONFLICT OF INTEREST The Consultant agrees to adhere to and be governed by the Metropolitan Dade County -8- Conflict of Interest Ordinance (No. 72-82), as amended; and by the City of Miami Beach Charter and Code, which are incorporated by reference herein as if fully set forth herein, in connection with the contract conditions hereunder. The Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the Services. The Consultant further covenants that in the performance of this Agreement, no person having any such interest shall knowingly be employed by the Consultant. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefits arising therefrom. 4.16 PATENT RIGHTS: COPYRIGHTS: CONFIDENTIAL FINDINGS Any patentable result arising out of this Agreement, as well as all information, design specifications, processes, data and findings, shall be made available to the City for public use. No reports, other documents, articles or devices produced in whole or in part under this Agreement shall be the subject of any application for copyright or patent by or on behalf of the Consultant or its employees or subcontractors. 4.17 NOTICES All communications relating to the day-to-day activities shall be exchanged between the Project Manager appointed by Consultant and the Project Coordinator designated by the City. The Consultant's Project Manager and the City's Project Coordinator shall be designated promptly upon commencement of the Services. All other notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Consultant and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO CONSULTANT: Miami Beach Transportation Management Association Attn: Judy Evans, Executive Director Jefferson Bank Bldg. 301 41 st Street, 2nd Floor Miami Beach, Florida 33140 (305) 535-9160 -9- TO CITY: Office of The City Manager Attn: Jose Garcia-Pedrosa, City Manager 1 700 Convention Center Drive Miami Beach, FL 33139 (305) 673-7010 WITH COPIES TO: Office of the City Attorney Attn: Murray H. Dubbin, City Attorney City of Miami Beach 1 700 Convention Center Drive Miami Beach, FL 33139 (305) 673-7470 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 4.18 LITIGATION IURISDICTION Any litigation between the parties, arising of, or in connection with this Agreement, shall be initiated in the court system of the State of Florida. 4.19 ENTIRETY OF AGREEMENT This writing and the Scope of Services embody the entire Agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written with reference to the subject matter hereof that are not merged herein and superseded hereby. The Scope of Services is hereby incorporated by reference into this Agreement to the extent that the terms and conditions contained in the Scope of Services are consistent with the Agreement. To the extent that any term in the Scope of Services is inconsistent with this Agreement, this Agreement shall prevail. No alteration, change, or modification of the terms of this Agreement shall be valid unless amended in writing, signed by both parties hereto, and approved by the City Commission of the City of Miami Beach. This Agreement, shall be governed by and construed according to the laws of the State of Florida. -10- 4.20 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 the City's 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 $50,000.00. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $50,000.00 less the amount of all funds actually paid by the City to Consultant pursuant to this Agreement. Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to the Consultant for damages in an amount in excess of $50,000.00 which amount shall be reduced by the amount actually paid by the City to Consultant 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 paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Section 768.28, Florida Statutes. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first entered above. FOR CITY: CITY OF MIAMI BEACH, FLORIDA By: Rol4tt ~ City Clerk By: ATTEST: FOR CONSULTANT: MIAMI BEACH TRANSPORTATION MANAGEMENT ASSOCIATION (MBTMA) ATTEST: By: ~k resid~t - Corporate Seal: C:\WPWIN60\WPDOC5\AGREEMNT.RjA\MBTMA.5Y5 -11- FORM APPROVED LEGAL DEPT. By r!I (tbJI~- Date f.!/L3!35' -.