2002-24914 Reso
RESOLUTION NO. 2002-24914
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE AN AGREEMENT WITH THE GORDIAN GROUP, AS THE
SUCCESSFUL PROPOSER PURSUANT TO REQUEST FOR PROPOSALS
NO. 49-00/01, FOR THE ESTABLISHMENT OF A JOB ORDER
CONTRACTING (JOC) SYSTEM.
WHEREAS, the Mayor and City Commission, at its December 20, 2000 meeting,
referred to the Finance and Citywide Projects Committee, a Job Order Contracting
(JOC) system for achieving timely and cost effective procurement of maintenance and
construction services for capital projects; and
WHEREAS, the Finance and Citywide Projects Committee, at its February 12,
2001 meeting, listened to a presentation from the Administration relative to the JOC
System and its benefits, and recommended that the Administration pursue the
implementation of the JOC system for timely completion of construction projects; and
WHEREAS, on February 21, 2001, Commissioner Simon Cruz provided the City
Commission with a verbal report relative to the Finance and Citywide Projects
Committee's recommendation, as stated above; and
WHEREAS, on July 18, 2001, the Mayor and City Commission adopted
Resolution No. 2001-24524, which authorized the issuance of Request for Proposals
(RFP) No. 49-00/01, for the establishment of a JOC system for achieving timely and
cost effective procurement of maintenance and construction services for capital
projects; and
WHEREAS, on July 26, 2001, RFP notices were issued by DemandStar by
Onvia to 1,650 prospective national consultants, which resulted in 48 firms and/or
individuals requesting copies of the RFP, and the submission of two responsive
proposals: 1) The Gordian Group Inc.; and 2) URS in association with RS Means; and
WHEREAS, the City Manager, via Letter to Commission No. 253-2001,
appointed an Evaluation Committee (the "Committee") on the subject RFP; and
WHEREAS, on January 25, 2002, the Committee convened and was provided
with information relative to the project's goals and objectives, the RFP requirements, the
City's Cone of Silence Ordinance, the Government in the Sunshine Law, and the
Committee's role in the evaluation process; and
WHEREAS, on January 28, 2002, the Committee listened to 20-minute
presentations and engaged in 20-minute question and answer sessions with The
Gordian Group, Inc. and URS; and
WHEREAS, the Committee unanimously agreed that The Gordian Group, Inc.
was the most qualified firm based on their experience and qualifications, and URS as
the second-ranked firm; and
WHEREAS, the City Manager concurred with the Evaluation Committee's
recommendation; and
WHEREAS, on April 10, 2002, the Mayor and City Commission adopted
Resolution No. 2002-24818, which authorized the Administration to enter into
negotiations with The Gordian Group, Inc.; and
WHEREAS, Administrators from the Public Works Department, Capital
Improvements Office, and the Procurement Division met with and negotiated with The
Gordian Group, Inc., and the results of said negotiations are as follows:
1. The contract term will commence on the date that the agreement is executed, and
will expire in sixty (60) months, unless terminated or extended by the City as
provided for in the agreement; and
2. Gordian grants to the City a non-exclusive right, license, and privilege to use its
JOC System and other related proprietary information in connection with the terms
and conditions set forth in the Agreement. "Proprietary Information" shall include,
but is not limited to, PROGEN$ software and support documentation, training
materials and other materials developed by Gordian; and
3. Gordian will provide experienced staff that will be responsible for the JOC
development and implementation program;
4. Gordian will be responsible for the development of JOC documents including the
unit price book, technical specifications, contract terms and conditions and bid
documents; and
5. Gordian will be responsible for installing and testing PROGEN$ on both City and
JOC contractor hardware systems; and
6. The City will have no restrictions on the number of PROGEN$ installations; and
7. Gordian will be responsible for testing/debugging PROGEN$ under actual field
conditions before the implementation of JOC; and
8. Gordian will be responsible for conducting the activities necessary for establishing
the structure of the City's JOC program, informing the internal City staff as well as
the contracting community about JOC, assisting with procurement of the actual
JOC contractors and assisting with development of the actual execution procedures
that City will use in executing the JOC concept; and
9. Gordian will develop the JOC Program Structure/Bidding Strategy; and
10. Gordian will prepare and conduct Pre-Bid Seminars; and
11. Gordian will prepare and conduct an External Marketing Program; and
12. Gordian will prepare and conduct an Intemal Marketing Program, and
13. Gordian will coordinate and develop the JOC Execution Procedures; and
14. Gordian will be responsible for developing a comprehensive JOC training program,
which will include different course modules in order for City staff to receive
specialized training; and
15. Gordian will attend and monitor initial site visits, proposal development and
negotiation sessions; and
16. Gordian will during the ninety (90) day period after award of the first JOC
contractor, provide on-site service as needed to ensure that the implementation
phase of the JOC program is completed successfully; and
17. Gordian will be responsible for providing comprehensive JOC support to the City for
a period of sixty (60) months following the award of the first JOC contract by City;
and
18. Gordian will monitor the overall program and prepare any status reports required by
City; and
19. For any amounts totaling up to seven million dollars ($7,000,000) of work ordered
under the JOC system the City agrees to pay Gordian four percent (4%) of that
amount; and
20. For any amounts totaling over seven million dollars ($7,000,000) of work ordered
under the JOC system, City agrees to pay Gordian one and one-half percent (1 %
%) of that amount; and
21. The four percent (4%) negotiated fee is lower than any other fee negotiated by
any other governmental agency, including the City of New York which utilizes the
JOC System at a volume of $30 million/annually; and
22.ln the event that Gordian enters into an agreement with any other municipality in
Miami-Dade County, Monroe County, or Broward County, which provides for a
lower fee than the percentages stated above (Le. 4% for the first $7MM, and
1.5% over $7MM), Gordian agrees to amend its agreement with the City to reflect
the lower fee(s); and
WHEREAS, the Administration met with and negotiated with The Gordian Group,
Inc., and the results of said negotiations have been incorporated in the attached
Agreement.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Clerk be authorized to execute an Agreement with The Gordian Group, Inc. for the
establishment of a Job Order Contracting (JOC) system, pursuant to RFP No. 49-00/01.
PASSED and ADOPTED THIS 10th
July 2002.
~:r PdA-~
CITY CLERK
T:\AGENDA\2002\JUL 1 002\CONSENT\ResoJoc.doc
APPROVED AS TO
FORM & LANGUAGe
& FOR EXECUTION
CITY OF MIAMI BEACH
COMMISSION ITEM SUMMARY
m
.....
Condensed Title:
Authorize the Mayor and City Clerk to execute the contract with The Gordian Group for the
establishment of a Job Order Contracting (JOC) system.
Issue:
Whether to authorize the Mayor and Clerk to execute the contract with The Gordian Group for the establishment
of a JOC System.
Item SummarylRecommendation:
The benefits associated with procuring maintenance and construction services utilizing JOC include all
of the following:
. Significant Time Savings - An Average Savings Of Between 60-180 Days Per Project.
. Lower Overall Construction Costs- Typically In The Range Of 8-15%.
. A Consistent Increase In The Level Of Quality.
. An Increase In Contractual Control.
. A Significant Reduction In Claims And Changes.
Successful negotiations were held with The Gordian Group, agreeing to a four percent (4%) negotiated
fee for the first $7 million, than one and one-half percent (1.5%) after the first $7 million. The negotiated
fee is lower than any other fee negotiated by any other Governmental agency, including the City of New
York, which utilizes the JOC system at a volume of $30 million/annually.
THE ADMINISTRATION RECOMMENDS ADOPTION OF THE RESOLUTION.
Adviso Board Recommendation:
The Finance And Citywide Projects Committee At Its February 12, 2001 Meeting, Recommended That
The Administration Pursue The Implementation Of The Joe System. On April 10, 2002, the Mayor and
Cit Commission authorized the Administration to enter into ne otiations with the Gordian Grou
Financial Information:
Amount to be expended:
D
Finance D t.
Source of Funds:
City Clerk'. Office Legislative Tracking:
I Gus Lopez
AGENDA ITEM C 7;:
DATE 1-/1)-();}-
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:\\ci.miami-beach.fl.us
COMMISSION MEMORANDUM
FROM:
Mayor David Dermer and DATE: July 10, 2002
Members of the City Commission
Jorge M. Gonzalez ~ ^ ,~'
City Manager 0 VV - D
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN
AGREEMENT WITH THE GORDIAN GROUP FOR THE ESTABLISHMENT OF A JOB
ORDER CONTRACTING (JOC) SYSTEM.
TO:
SUBJECT:
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
ANALYSIS
The Mayor and City Commission at its December 20, 2000 meeting, referred to the
Finance and Citywide Projects Committee - Job Order Contracting (JOC) System for
Achieving Timely and Cost Effective Procurement of Maintenance and Construction
Services for Capital Projects.
The Finance and Citywide Projects Committee at its February 12, 2001 meeting,
listened to a presentation from the Procurement Director relative to the JOC System
and its benefits, and recommended that the City Administration pursue the
implementation of the JOC system for timely completion of minor construction projects.
On February 21, 2001, Commissioner Simon Cruz provided the City Commission with a
verbal report relative to the Finance and Citywide Projects Committee's
recommendation as stated above.
On July 18, 2001, the Mayor and City Commission adopted Resolution No. 2001-24524,
which authorized the issuance of a Request for Proposals (RFP) for the establishment
of a Job Order Contracting (JOC) System for Achieving Timely and Cost Effective
Procurement of Maintenance and Construction Services for Capital Projects.
On April 10, 2002, the Mayor and City Commission adopted Resolution No. 2002-
24818, which authorized the Administration to enter into negotiations with The Gordian
Group.
Administrators from the Public Works Department, Capital Improvements Office, and
the Procurement Division met with and negotiated with the Gordian Group, and the
results of said negotiations have been incorporated in the attached contract, and are
summarized as follows:
TERM
The contract term will commence on the date that the agreement is executed, and will
expire in sixty (60) months, unless terminated for convenience or cause, or extended by
the City as provided for in the agreement.
GRANT OF LICENSE
Gordian grants to the City a non-exclusive right, license, and privilege to use Gordian's
JOC System and other related proprietary information in connection with the terms and
conditions set forth in the Agreement. "Proprietary Information" shall include, but is not
limited to, PROGEN@ software and support documentation, training materials and other
materials developed by Gordian.
DUTIES AND RESPONSIBILITIES - BASIC SERVICES
Gordian will assume the following duties and responsibilities:
1. Provide experienced staff that will be responsible for the JOC development
and implementation program. This staff will report directly to the City's
Public Works and CIP Office, and will be available to assist City staff with
any JOC related issues.
2. Responsible for the development of JOC documents including the unit price
book, technical specifications, contract terms and conditions and bid
documents.
3. Responsible for the development of the automated JOC proposal
development system (PROGEN~, which will be capable of generating the
JOC documents including contractor cost proposals, cost estimates and
other management reports and forms.
4. Responsible for installing and testing PROGEN@ on both City and JOC
contractor hardware systems. City will have no restrictions on the number of
PROGEN@ installations.
5. Responsible for testing/debugging PROGEN@ under actual field conditions
before the implementation of JOC.
6. Responsible for conducting the activities necessary for establishing the
structure of the City's JOC program, informing the internal City staff as well
as the contracting community about JOC, assisting with procurement of the
actual JOC contractors and assisting with development of the actual
execution procedures that City will use in executing the JOC concept.
Specific services will include:
.
Develop the JOC Program Structure/Bidding Strategy,
Prepare and Conduct Pre-Bid Seminars,
Prepare and Conduct an Extemal Marketing Program,
Prepare and Conduct an Internal Marketing Program, and
Coordinate and Develop the JOC Execution Procedures.
.
.
.
.
7. Responsible for developing a comprehensive JOC training program, which
will include different course modules in order for City staff to receive
specialized training.
8. Attend and monitor initial site visits, proposal development and negotiation
sessions. During the ninety (90) day period after award of the first JOC
contractor, Gordian will provide on-site service as needed to ensure that the
implementation phase of the JOC program is completed successfully.
9. Responsible for providing comprehensive JOC support to the City for a
period of sixty (60) months following the award of the first JOC contract by
City. Gordian will also monitor the overall program and prepare any status
reports required by City.
FEES
For any amounts totaling up to seven million dollars ($7,000,000) of work ordered under
the JOC system the City agrees to pay Gordian four percent (4%) of that amount. Any
amount of work ordered after the initial seven million dollars, will be billed at one and
one-half percent (1% %).
The four percent (4%) negotiated fee is lower than any other fee negotiated by any
other governmental agency, including the City of New York which utilizes the JOC
System at a volume of $30 million/annually. Only the California State University system
was able to negotiate the same start-up percentage (4%) as the City, but they incurred
a $200,000 up-front cost for the documents and software, which the City will receive at
no additional cost.
In the event that Gordian enters into an agreement with any other municipality in Miami-
Dade County, Monroe County, Broward County, or Palm Beach County, which provides
for a lower fee than the percentages stated above (Le. 4% for the first $7MM, and 1.5%
over $7MM), Gordian agrees to amend its agreement with the City to reflect the lower
fee(s).
Additionally, any governmental agency that desires to "piggyback" on the City's JOC
system will be asked to pay a 1 % user fee. The user fee requirement is currently
utilized by the State of Florida Department of Management Services and Miami-Dade
County.
What are the benefits of JOC?
The benefits associated with procuring maintenance and construction services utilizing
JOC include all of the following:
. Significant time savings - an average savings of between 60-180 days per
project.
. Lower overall construction costs- typically in the range of 8-15%.
. A consistent increase in the level of quality.
. An increase in contractual control.
. A significant reduction in claims and changes.
. A substantial increase in the utilization of local, minority and women-owned
businesses.
How Does It Work?
The Job Order Contract is a specially designed indefinite quantity contract that is
awarded on a periodic basis to one or more contractors. Each JOC is competitively
procured using either a sealed bid or a request for proposal and has a pre-established
minimum and maximum dollar amount. Work is accomplished by the issuance of a
series of individual work orders to the contractor. This continuing incentive allows the
contractor to be continually rewarded for providing quality and responsive work.
The Job Order Contract package consists of three major documents:
. A location specific Unit Price Book containing over 140,000 construction tasks.
Each task contains a task description, unit of measurement, and a unit price.
Each unit price contains locally developed direct costs for material, equipment,
and labor. The construction tasks encompass all aspects of construction work.
. A set of detailed technical specifications for each of the 140,000 construction
tasks. The specification set incorporates the City's own specifications.
. The terms and conditions that contain the specific contract language concerning
the execution of the contract.
The general guidance given to potential contractors during the advertisement phase is
that the City cannot give any specific information regarding individual projects or types
of projects. No commitment is made with regard to which specific tasks will be used or
in what quantities. Since the contract value ranges from some nominal minimum to a
maximum amount the intending bidders are advised that the City is only obligated to
award the minimum amount during the term of the contract.
Intending bidders are required to submit a "bid" on all work contained in the unit price
book by quoting a single adjustment factor that would be applied for work accomplished
during normal working hours and a single adjustment factor for work to be accomplished
during other than normal working hours. These two adjustment factors represent the
contractor's only adjustment to the prices published in the unit price book and must
include all indirect cost such as overhead, profit, bonds, insurance, design and
contingency costs.
For example, an adjustment factor of 25% would be bid as 1.25. During the execution of
the contract the unit price of a specific construction task is multiplied by the appropriate
adjustment factor to obtain the final price to be paid for the specific task. JOC
represents a competitively bid, firm fixed price contract since all the prices and the
adjustment factors are established before the contract is awarded.
The actual JOC execution process begins with joint review of the scope of work
between the City and the contractor. This review will include an on-site inspection. After
the scoping conference the City provides the contractor with a formal scope of work.
The level of detail and design included in the scope of work is a function of the difficulty
of that particular project. The contractor breaks the scope of work down into individual
tasks and prepares his pricing proposal using the unit price data contained in the unit
price book. The total price is achieved by multiplying the specific construction task by
the appropriate quantities for that task and then multiplying by the adjustment factor.
As part of the pricing proposal, the contractor also develops a schedule and assembles
any technical data requested by the City. The proposal is then evaluated against the
City's in-house estimate and any differences in scope or quantities are verified. If the
client is satisfied that the contractor's proposal represents a fair and reasonable price for
the work, then a firm fixed priced, lump sum work order can be issued to the contractor.
This work order is the contractor's notice to proceed. Inspection and acceptance of work
are accomplished in the normal fashion.
What's the Major Advantage of JOC?
The major advantage of the Job Order Contracting System is that the individual work
orders give the contractor a "continuing incentive" to do timely and high quality work.
The incentive is generated because each work order only represents a small portion of
the total possible contract. By doing responsive and high quality work, the contractor
can expect follow on work orders.
Other Significant advantages of JOC include:
Increased Responsiveness
Independent studies have shown that JOC can save between 75-85% in the time it
takes to engage construction contractors over the more traditional contracting methods.
Lower Costs
JOC can save the City between 8-15% in actual costs as compared to traditional
contracting methods. These cost savings occur from reduced design costs, lower
procurement costs, lower project costs and reduced post award costs.
Design costs are reduced since a majority of the typical JOC projects can be described
without having to develop full design documents. In those cases where some design is
required, the design only needs to be completed to the point of being "priceable" and
"biddable". For every project the specifications are already developed as part of the
basic JOC contract. Design savings range from 2-6%.
Lower Procurement costs will be realized since the public agency will not have to
develop, advertise, and award individual firm fixed priced contracts for every small to
medium sized project. The cost of reproducing the contract documents alone can range
from .5% to 2% of the cost of construction. The average procurement cost using the
traditional methods for medium sized projects is $0.40 per thousand, for JOC the cost
drops to $0.16 per thousand. Typical overall procurement savings can range from 2-4%.
Studies have shown that when analyzing comparable work JOC is 4-8% cheaper
because of reduced indirect costs and the absence of large contingencies. For example,
if you consider a single project that is being advertised under the traditional system,
intending bidders will include in their bid anticipated overhead costs for the full duration
of the project. These costs will represent field as well home office costs.
Under JOC, the contractors spread their anticipated overhead cost over the entire
contract and therefore, the individual overhead allocation against anyone project is a
small percentage of the total overhead. Other studies have shown that contractors,
when developing their JOC bid, will lower the contingency cost because he/she will
have the opportunity to inspect each project prior to developing his cost for that specific
project.
What about Change Orders and Claims?
Post award costs primarily include change orders and claims. Under JOC the contractor
jointly scopes the work with the client and any misunderstanding or confusion is openly
discussed and resolved. If a question arises during the proposal development the
contractor is free to contact the City's representative and get the appropriate answers.
This non-adversarial relationship eliminates the underlying cause of most claims and
changes. Another key issue is that since JOC is a series of individual work orders it is
generally not in the contractors' best interest to submit claims. Change orders arising
from changes in the scope of work, or as a result of differing site conditions, are handled
as separate work orders. Post award cost savings have been shown to be 1-3% of the
cost of construction.
Enhanced Opportunities for Small Business Owners
JOC has been designed to enhance the participation of small business owners. Since
no commitment is made to the JOC contractor regarding specific projects or items of
work, the contractor cannot profitably develop an in-house work force and is forced to
maximize the use of subcontractors. Over the past 5 years, more than 40% of all JOC
work has been subcontracted to small or minority-owned businesses.
Joe Produces Higher Quality Construction
Since the structure of the JOC is a series of sequential work orders, the contractors
have an on-going financial incentive to produce quality projects. If the contractor fails to
maintain the desired level of quality, the City can elect to give future projects to other
JOC contractors or to accomplish the projects in the traditional manner.
The "contractual motivation" under JOC is the complete reverse of the traditional
system where the contractor has been awarded a one time, fixed price contract. With
the traditional system the contractor must make as much money as shelhe can off that
one opportunity. The contractor typically increases their profit by cutting corners and
submitting requests for claims and change orders. This sort of contractual behavior is
not found with JOC since it would only serve to diminish future opportunities.
JOC has been approved for use by the General Accounting Office
The General Accounting Office (GAO) has fully reviewed the JOC concept and found it
to be consistent with all Federal procurement laws and policies. Therefore, any federal
funds received by the City can be obligated through the JOC process.
The JOC concept was designed with internal controls as an integral part of the check
and balance process. The JOC concept relies on automated software, which provides
an excellent audit trail of all JOC work orders and transactions as well as various
verification programs to ensure the integrity of the JOC database.
The JOC System provides for procurement of an "annual General Contractors" through
a traditional bid process. An indefinite quantity contract is established with fixed unit
prices, against which work orders are issued for individual projects.
Historical Overview
· Introduced in the United States in 1985 by US Army Corps of Engineers
· In Use by all Federal Agencies
· Over 1000 Job Order Contracts in Use
· Over $1 Billion of Construction Placed Annually
· JOC Has Been Implemented by Major Cities, Counties, School Districts &
Universities Nationwide
JOC - Why It Works
· JOC Is A Series Of Individual Small Projects
Contractor Is Guaranteed Only a Small Minimum Amount of Work
· Contractor Has A Continuing Financial Incentive To Provide:
Responsive Services
Quality Work
Lower Cost
· Future Job Orders Tied to Contractor Performance
No Obligation To Give A Specific Project To JOC Contractor
- Additional JOC's May Be Bid And Awarded If the City Is Not Satisfied With
Contractor's Performance
- JOC Does Not Replace Traditional Methods For Accomplishing Work
Lower Costs
· Actual Cost of Construction
- Contractor bids $3 Million Contract - Not a $25,000 project
- Greater Maximum Value=Lower Adjustment Factors=Greater Savings
· Lower Procurement and Administrative Costs
- JOC Eliminates the Need to Use the Full Procurement Cycle for Small Projects
· No need to pay for advertisements & reproduction of documents
· Fewer Change Orders and Claims
- Joint Scoping Process Eliminates Misunderstandings About Scope
- Contractor Develops the Cost Proposal - Responsible for Errors and Omissions
- Reduction of ArchitecUEngineer Fees
Greater Participation
· JOC Increases the Number of Opportunities for Small, Local & Emerging
Businesses
No Pre-established quantities inhibits trade staffing by Prime Contractor
Responsiveness forces Prime Contractor to use multiple local subcontractors
· Review & Approval of Sub-Contractor Plan Prior to Issuance of Each Job Order
Ensures Compliance with Expectations
· Advantages for Small & Emerging Business Contractors
Expanded business opportunities
No bonding requirement for the sub-contractor
Fast Payment
Less Red Tape
In summary, the Job Order Contracting System will enable the City to achieve its
primary objective of being able to "more rapidly engage contractors" while lowering
costs and strengthening internal controls. JOC does not replace any of the existing
contracting systems including program management services. JOC is just an efficient
and effective tool for the City to use in accomplishing its facilities maintenance and
construction program. JOC is a proven system that can offer immediate as well as
long-term benefits.
JMG:RCM:FB:TM:GL
AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA
AND THE GORDIAN GROUP, INC.
FOR THE ESTABLISHMENT OF A JOB ORDER CONTRACTING (JOC) SYSTEM
This Agreement is made this /_ rH day of $ ';Y" , 2002, by and between the
City of Miami Beach, Florida, whose address is 1700 ConventIon Center Drive, Miami Beach, Florida
33139, ("Client"), and The Gordian Group, Inc., whose address is 531 South Main Street, Suite M7,
Greenville, South Carolina 29601 ("TGG").
WITNESSETH
WHEREAS, Client desires to engage the services of a firm to serve as consultants and to perfonn
services related to the development and implementation of a Job Order Contracting Program ("JOC"), in
accordance with the tenns and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
TERM
Client hereby retains TGG as Client's Job Order Contracting Consultant for the tenn commencing
on the date of this Agreement and expiring sixty (60) months after the selection of the first job order
construction contractor, unless tenninated or extended as provided for herein.
ARTICLE II '
GRANT OF LICENSE
TGG hereby grants to Client and Client hereby accepts from TOG a non-exclusive right, license,
and privilege to use TOG's JOC System and other related Proprietary Infonnation in connection with the
tenns and conditions set forth in this Agreement. The parties hereby agree that "Proprietary Infonnation"
shall include, but is not limited to, Construction Task Catalog (CTC)TM, PROGE~ software and support
documentation, and training materials developed by TOG. Client acknowledges that disclosure of
Proprietary Infonnation will result in irreparable hann to TGG for which monetary damages would be an
inadequate remedy and agrees that no such disclosure shall be made to anyone without first receiving the
written consent of TGG. Client further acknowledges and agrees to respect the copyrights, registrations,
trade secrets and other proprietary rights of TOG in the Proprietary Infonnation during and after the tenn of
this Agreement and shall, to the extent allowed under State of Florida Public Records law, at all times
maintain complete confidentiality with regard to the Proprietary Infonnation provided to Client.
In the event this Agreement expires or tenninates as provided herein, the Client shall return to TOG
all Proprietary Infonnation in the Client's possession.
JOC Consulting Agreement
July 10,2002
Page lof7
Notwithstanding the foregoing, Client sha1l be a1l0wed to distribute materials as required for the
proper performance of JOC.
ARTICLE m
DUTIES AND RESPONSmlLITIES - BASIC SERVICES
TGG will assume the f01l0wing duties and responsibilities:
1. TGG will provide experienced staff that will be responsible for the JOC development and
implementation program. This staff will report directly to Client and will be available to
assist Client with any JOC related issues.
2. TGG will be responsible for the development of JOC documents including the unit price
book, technical specifications, contract terms and conditions and bid documents.
3. TGG will be responsible for the development of the automated JOC proposal development
system (PROGEN~, which will be capable of generating the JOC documents including
contractor cost proposals, cost estimates and other management reports and forms.
4. TGG will be responsible for insta1ling and testing PROGE~ on both Client and JOC
contractor hardware systems. Client will have no restrictions on the number ofPROGE~
installations.
5. TGG will be responsible for testing/debugging PROGE~ under actual field conditions
prior to the implementation of JOC.
6. TGG will be responsible for conducting the activities necessary for establishing the
structure of the Client's JOC program, informing the internal Client staff as we1l as the
contracting community about JOC, assisting with procurement of the actual JOC
contractors and assisting with development of the actual execution procedures that Client
will use in executing the JOC concept. Specific services will include:
. Develop the JOC Program StructurelBidding Strategy,
. Prepare and Conduct Pre-Bid Seminars,
. Prepare and Conduct an External Marketing Program,
Prepare and Conduct an Internal Marketing Program, and
Coordinate and Develop the JOC Execution Procedures.
7. TGG will be responsible for developing a comprehensive JOC training program, which wi1l
include different course modules in order for Client staff to receive specialized training.
8. It sha1l be TGG's sole and absolute responsibility to familiarize itself with the City of
Miami Beach Procurement Ordinance, as same is codified in the Miami Beach City Code,
and as may be amended from time to time; any and a1l applicable City of Miami Beach
JOC Consulting Agreement
July 10, 2002
Page 2 of7
procurement procedures and policies; and any and all applicable State of Florida
procurement policies, as same are set forth in the Florida Statutes and as may be amended
from time to time. This Agreement, and TGG's duties and responsibilities herein, shall at
all times comply with the aforestated laws and policies.
9. TGG will be responsible for assuring that all Services to be provided in this Agreement,
and that the JOC Program itself, shall comply with all applicable City of Miami Beach and
State of Florida procurement laws, as same may be amended from time to time.
10. TGG staffwill assist in the actual execution of the contracts by helping Client staff develop
the initial Work Orders. TGG staff will attend and monitor initial site visits, proposal
development and negotiation sessions. During the ninety (90) day period after award of the
first JOC contractor, TGG will provide on-site service as needed to ensure that the
implementation phase of the JOC program is completed successfully.
11. TGG will be responsible for providing comprehensive JOC support to Client for a period of
sixty (60) months following the award of the first JOC contract by Client. TGG will also
monitor the overall program and prepare any status reports required by Client.
ARTICLE IV
DUTIES AND RESPONSmILITIES - ADDITIONAL SERVICES
TGG shall provide additional services to Client as mutually agreed. However, no additional service
will be provided by TGG without prior written authorization by Client.
ARTICLE V
DUTIES AND RESPONSmILITIES - Client
Client will assume the following duties and responsibilities:
1. Review all documentation and requests for information submitted by TGG in a timely
manner.
2. Provide full information regarding requirements for the JOC Program, including but not
limited to facilities lists, current Client procedures, programs, technical specifications and
bidding information.
3. Designate, in writing, a representative who shall render or obtain decisions in a timely
manner pertaining to the JOC Program.
4. Provide office space, furniture, fixtures, telephones, and equipment to TGG's JOC Project
Manager.
5. Provide reproduction services for all draft and final versions of the Construction Task
Catalog, Technical Specifications, Contract Terms and Conditions, Instructions to Bidders
JOe Consulting Agreement
July 10, 2002
Page 3 of7
and Proposal Forms, Execution Procedures and Training Materials.
ARTICLE VI
INDEMNIFICATION
TGG agrees to indemnify and hold harmless Client, its officers, agents, and employees from any
and all claims against Client, its officers, agents, and employees, which may arise out of any negligent act of
TGG or any subconsultant employed by TGG or any of their officers, agents or employees related to this
Agreement and/or the JOC Program.
ARTICLE vn
INSURANCE
TOO shall maintain general liability insurance coverage of $1,000,000 per occurrence and workers'
compensation insurance as required by law during the entire term of this Agreement naming the City of
Miami Beach, Florida as an additional insured. TOO shall furnish to Client a certificate of insurance
evidencing the required coverage and providing that the insurance will not be cancelled without thirty (30)
days written notice to Client.
ARTICLE vm
SCHEDULE OF FEES
In consideration of the Basic Services performed under Article ill above, Client agrees to utilize the
JOC system for the placement of at least two million dollars ($2,000,000) in construction services during
the term hereof, and to pay TGG a licensing fee according to the following schedule:
. For any amounts cumulating up to seven million dollars ($7,000,000) of work ordered
under the JOC system during the term hereof, Client agrees to pay TOO four percent (4%)
of that amount.
. For any amounts cumulating over seven million dollars ($7,000,000) of work ordered under
the JOC system during the term hereof, Client agrees to pay TGG one and one-half percent
(I y, %) of that amount.
Favorite City Provision: In the event that TOO enters into an agreement with any other
municipality in Miami-Dade County, Monroe County, Broward County, or Palm Beach
County, which provides for a lower fee than the percentages stated above (i.e. 4% for the
first $7MM, and 1.5% over $7MM), TGG agrees to amend this agreement to reflect the
lower fee(s).
In consideration for additional services, TOO shall be compensated an amount equal to (I) 250% of
actual direct labor costs plus reimbursement for the actual cost of all non-labor direct expenses incurred by
TGG; or (2) a mutually agreed upon fee.
JOC Consulting Agreement
July 10, 2002
Page 4 of7
ARTICLE IX
PAYMENT
Invoices for TOO's fee shall be submitted monthly. Invoices for any additional services provided
pursuant to this Agreement shall be submitted on a monthly basis and shall include a detailed description of
the services provided.
Client shall pay TOO's invoices within thirty (30) calendar days from the invoice date. In the event
of a dispute regarding an invoice, Client shall pay all undisputed invoice amounts within thirty (30) days of
the original invoice date.
ARTICLE X
CHANGE OF SCOPE
Client may, from time to time, request changes in the scope of services to be performed by TOO
hereunder or may request an extension of the term of this Agreement. No such change, including any
increase or decrease in the amount of compensation, which shall be mutually agreed upon by and between
Client and TGG, shall be effective and enforceable until and unless a written amendment or change order to
this Agreement has been executed by both parties and attached hereto and, as determined by Client unless
such change is approved by the City Manager and/or the City Commission, as the case may be, of the City
of Miami Beach.
ARTICLE XI
TERMINATION OF THIS AGREEMENT
Termination by Client:
Client may terminate this Agreement without cause and for convenience at any time by providing
notice to TOO in writing ninety (90) days prior to such termination. In the event Client exercises such
termination right, Client shall pay to TOO, within (30) days, for services performed by TGG less the sum of
all payments made prior to termination.
If at the end of any consecutive one-year period during the term of this Agreement, Client has
discontinued efforts to utilize the JOC System and Client has not utilized the JOC System to order two
million dollars ($2,000,000) in construction services, then this Agreement may be terminated by TOO for
convenience.
If TOO shall fail to fulfill its obligation under this Agreement or if TOO shall violate any of the
material provisions of this Agreement, then Client shall thereupon have the right to terminate this
Agreement for cause by giving written notice specifying the cause for such termination and the termination
date which shall be at least seven (7) days after the date such notice is given. In the event of a termination
for cause, Client shall pay TGG only for those services satisfactorily performed by TOO and such shall be
the extent of Client's liability to TGG.
JOe Consulting Agreement
July 10,2002
Page 5 of7
Termination by TGG:
If Client shall fail to fulfill its obligation under this Agreement or if Client shall violate any of
the material provisions of this Agreement, then TGG shall thereupon have the right to terminate this
Agreement for cause by giving written notice specifying the cause for such termination and the
termination date which shall be at least thirty (30) days after the date such notice is given. In the event
of a termination for cause, Client shall pay TGG only for those services satisfactorily performed by TGG
and such shall be the extent of Client's liability to TGG.
ARTICLE XII
CONTRACT UNASSIGNABLE
Neither Client nor TGG shall have the right to assign or transfer its interest in this Agreement.
However, if TGG shall elect to change the name of the corporation, such an event shall not be construed to
be an assignment under the terms thereof.
ARTICLE xm
ENTIRE AGREEMENT
This Agreement represents the entire and integrated agreement between Client and TGG and may
be amended only by written instrument, which is approved by both parties.
ARTICLE IX
VENUE
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the terms or conditions herein,
exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida.
ARTICLE X
WAIVER OF JURY TRIAL
THE CITY AND TGG HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND
TGG MAY HEREIN AFTER INSTITUTE AGAINST EACH OrnER WITH RESPECT TO ANY
MATTER ARISING OUT OF OR RELATED TO TillS AGREEMENT.
ARTICLE XI
LIMITATION OF CITY'S LIABILITY
The City desires to enter into this Agreement only if in so doing the City can place a limit on its
liability for any cause of action for money damages due to an alleged breach by the City of this
Agreement, so that its liability for any such breach never exceeds the sum of $100,000. TGG hereby
JOC Consulting Agreementm
July 10, 2002
Page 6 of7
expresses his willingness to enter into this Agreement with TGG's recovery from the City for any damage
action for breach of contract to be limited to a maximum amount of $100,000, less the amount of all
funds actually paid by the City to TGG pursuant to this Agreement.
Accordingly, and notwithstanding any other term or condition of this Agreement, TGG hereby
agrees that the City shall not be liable to the TGG for damages in an amount in excess of $100,000,
which amount shall be reduced by the amount actually paid by the City to TGG pursuant to this
Agreement, for any action or claim for breach of contract arising out of the performance or non-
performance of any obligations imposed upon the City by this Agreement. Nothing contained in this
paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed
upon the City's liability as set forth in Section 768.28, Florida Statutes.
ARTICLE XU
EQUAL EMPWYMENT OPPORTUNITY
TGG shall not discriminate against any employee or applicant for employment because of race,
color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity,
maritaVdomestic partner status or disability, except where any of the above is a bona fide occupational
qualification or need. TGG has an affirmative action program to ensure that applicants are employed, and
employees are treated during employment without regard to race, color, creed, religion, national origin,
ancestry, age, sex, sexual orientation, gender identity, marital/domestic partner status or disability. Such
action includes, but is not limited to, the following: hiring, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for
training, including apprenticeship.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
The Gordian Group. Inc.
(~O
Corporate Officer
By:
Attest: J-rn.ui ~ P ti-tdu--
City Clerk
Attest:
J)~ / 177Jk"
JOe Consulting Agreement
APPROVED AlTO
FORM & LANGUAGe
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