HDR AgreementA PROFESSIONAL SERVICES AGREEMENT
BETWEEN
CITY OF MIAMI BEACH
HDR
FOR
PROFESSIONAL CONSULTING SERVICES
FOR
EVALUATION OF RAPID TRANSIT OPTIONS
Date: May 2003
TABLE OF CONTENTS
DESCRIPTION
ARTICLE 1
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
IA1
1.12
DEFINITIONS
City
City Commission
City Manager
Proposal Documents
Consultant
City's Project Coordinator
Basic Services
Additional Services
Agreement Amendment
Force Majeure
Schedules
Scope of Services
ARTICLE
2.5
2.6
2.7
2.8
BASIC SERVICES (Consultant Responsibilities)
Additional Services
Responsibility for Claims and Liabilities
Time
Additional Consultant Responsibilities
ARTICLE 3. THE CITY'S RESPONSIBILITIES
ARTICLE 4. ADDITIONAL SERVICES
ARTICLE 5. COMPENSATION FOR SERVICES
ARTICLE 6. CONSULTANT'S ACCOUNTING RECORDS
ARTICLE 7. OWNERSHIP AND USE OF DOCUMENTS
ARTICLE 8.
8.1
8.2
8.3
8.4
8.5
TERMINATION OF AGREEMENT
Termination for Cause
Termination for Convenience
Termination by Consultant
Implementation of Termination
Non-Solicitation
ARTICLE 9. INSURANCE
ARTICLE 10. INDEMNIFICATION
ARTICLE 11. VENUE
PAGE
4
5
5
6
6-9
9-12
12
12-13
13
13-14
14
14
16
15-16
16
16
16-17
17
18
DESCRIPTION PAGE
ARTICLE 12. LIMITATION OF LIABILITY
ARTICLE 13. MISCELLANEOUS PROVISIONS
ARTICLE 14. NOTICE
SIGNATURES
18
19-20
21
22
SCHEDULES
SCHEDULE "A" - SCOPE OF SERVICES
SCHEDULE "B" - CONSULTANT COMPENSATION
SCHEDULE "C" - HOURLY BILLING RATE SCHEDULE
SCHEDULE "D" - PROJECT BUDGET
23
24
25
26
iii
TERMS AND CONDITIONS OF AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT
HDR
FOR
PROFESSIONAL CONSULTING SERVICES:
EVALUATION OF RAPID TRANSIT OPTIONS
This Agreement made and entered imo this 6th day of May, 2003, by and between the CITY OF
MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida
(hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive,
Miami Beach, Florida, 33139, and H D R, a Nebraska corporation having its principal offices at
8404 Indian Hill Drive, Omaha, Nebraska 68114 (hereinafter referred to as Consultant).
WITNESSETH:
WHEREAS, the City intends to undertake a study within the City of Miami Beach,
which is more particularly described in Schedule "A", attached hereto, and wishes to engage the
Consultant to provide professional consulting services for the evaluation of rapid transit options
at the agreed fee as set forth in this Agreement; and
WHEREAS, the Consultant desires to contract with the City to provide paid services, as
hereinafter stipulated.
NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and
agreements herein contained, agree as follows:
ARTICLE 1. DEFINITIONS
1.1 CITY. The "City" shall mean the City of Miami Beach, a Florida municipal corporation
having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139.
1.2 CITY COMMISSION. "City Commission" shall mean the governing and legislative
body of the City.
1.3 CITY MANAGER. The "City Manager" shall mean the chief administrative officer of
the City. The City Manager shall be construed to include any duly authorized designees,
including a Project Coordinator, and shall serve as the City's representative to whom
administrative requests for approvals shall be made and who shall issue authorizations (exclusive
of those authorizations reserved to the City Commission) to the Consultant.
1.4 PROPOSAL DOCUMENTS. "Proposal Documents" shall mean the Request for
Qualifications No. 36-02/03, for Evaluation of Rapid Transit Options for Miami Beach,
issued by the City in contemplation of this Agreement, and the Consultant's proposal in response
thereto (Proposal), which is incorporated by reference in this Agreement and made a part hereof;
provided, however, that in the event of an express conflict between the Proposal Documents and
this Agreement, this Agreement shall prevail.
1.5 CONSULTANT. The "Consultant" is herein defined as HDR, a Nebraska
corporation having its principal offices at 8404 Indian Hill Drive, Omaha, Nebraska 68114.
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.
The following sub-consultant was included in the Consultant's Proposal and is hereby approved
for the Study:
ADA
11401 SW 40th Street, Suite 470
Miami, Florida 33165
1.6 CITY'S PROJECT COORDINATOR. The "City's Project Coordinator" shall mean
the individual appointed by the City Manager who shall be the City-authorized representative to
coordinate, direct, and review on behalf of the City, all matters related to the Project, except as
otherwise provided herein.
1.7 BASIC SERVICES. "Basic Services" shall include the preparation of an evaluation of
rapid transit options and related public involvement services, as described in Article 2 herein and
in Schedule "A" entitled "Scope of Services", attached hereto.
1.8 ADDITIONAL SERVICES. "Additional Services" are not provided for as part of
this Agreement. If Additional Services are required, above and beyond the approved Project
Budget, such Additional Services/cost increase shall be duly negotiated by and between the City
and Consultant, and authorized in writing by the City Manager and/or City Commission, as
applicable, via an Amendment to this Agreement, as needed, prior to commencement of same.
1.9 AGREEMENT AMENDMENT. "Agreemem Amendment" shall mean the written order
to the Consultant approved by the City, as specified in this Agreement, and signed by the City's
duly authorized representative, authorizing a change in the Project's Scope of Services, or an
adjustment in the fees and/or completion dates, as applicable. The City Commission shall also
approve agreement Amendments, if they exceed twenty-five thousand ($25,000.00); or the City
Manager if they are twenty-five thousand ($25,000.00) or less in mount (or other such amount
as may be specified by the City of Miami Beach Procurement Ordinance, as amended). Even for
Agreement 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 the approval of any
such Agreement Amendment.
1.10 FORCE MAJEURE. "Force Majeure" shall mean any delay caused 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 other similar unavoidable casualties; or
other causes beyond the party's control; or by any other such causes which the Consultant and
the City decide in writing justify the delay.
1.11 SCHEDULES. "Schedules" shall mean the various schedules attached to this Agreemem
and referred to as follows:
Schedule "A" - Scope of Services: Includes all the Services approved by City for
the Project.
Schedule "B" - Consultant Compensation: The fixed fee payable to the Consultant for
the Basic Services, as negotiated by and between the City and the Consultant, and
approved by the City.
Schedule "C" - Hourly Billing Rate Schedule: The schedule of compensation payable
to the Consultant for the Services, as submitted by the Consultant and approved by the
City.
Schedule "D"- Project Schedule: Upon receipt of a Notice to Proceed fi:om the
City, Consultant shall initiate the Services, pursuant to Project Schedule, as submitted by
the Consultant and approved by the City.
1.12 SCOPE OF SERVICES. "Scope of Services" shall mean the Project Scope as described
in Schedule "A", together with the Basic Services, Article 2 below.
ARTICLE 2. BASIC SERVICES (CONSULTANT RESPONSIBILITIES)
2.1 The Consultant shall provide Basic Services for the Project as set forth hereafter. The
Services for this Project will be performed by the Consultant upon receipt of written Notice to
Proceed issued by the City Manager, or his designee.
2.2 The Consultant's Basic Services shall consist of preparation of an Evaluation of Rapid
Transit Options for Miami Beach, as described in attached Schedule "A", "Scope of Services".
2.3 The Consultant shall coordinate with its sub-consultant and conform to all applicable
codes, rules and regulations applicable in the jurisdictions in which the Project is located,
including without limitation, local ordinances and codes (City of Miami Beach and Miami-Dade
County), Florida Statutes, Administrative rules and regulations, and Federal laws, rules and
regulations. The Consultant agrees to comply with all such laws, codes, rules, and regulations
now in effect, and as may be amended or adopted at any time during the term of this Agreement,
and shall further take into account all known pending changes to the foregoing, of which it
should reasonably be aware.
2.4 The Consultant expressly agrees that all of its duties, services and responsibilities under
this Agreement shall be performed in accordance with the standard of care normally exercised in
the design of projects of this nature in South Florida. In addition, Consultant represents that it is
experienced and fully qualified to perform the Services contemplated by this Agreement, and
that it is properly licensed pursuant to the applicable laws, rules and regulations to perfmm such
Services. Consultant warrants that it shall be responsible for the technical accuracy of documents
prepared pursuant to this Agreement.
2.5 ADDITIONAL SERVICES:
Consultant shall provide Additional Services only if previously negotiated and authorized in
writing by the City, as stated in Article 1.8 and Article 4., herein, and attached Schedule "A"
entitled "Scope of Services".
2.6 RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Approval by the City shall
not constitute nor be deemed a release of the responsibility and liability of the Consultant, its
employees, subcontractors, agents and consultants for the accuracy and competency of their
services; nor shall such approval be deemed to be an assumption of such responsibility by the
City for a defect, error or omission in the Project's final report and other documents prepared by
the Consultant, its employees, subcontractors, agents and consultants. However, the Consultant
shall be entitled to reasonably rely upon the accuracy and validity of written decisions and
approvals furnished by the City and its employees.
2.7 TIME. Notwithstanding the above subsection, the entire Consultant's Services shall be
completed within two (2) months from the receipt of a Notice to Proceed, to be issued by the
City. It is understood that time is of the essence in the completion of this Project.
2.8 ADDITIONAL CONSULTANT RESPONSIBILITIES: The parties agree that the
Consultant's Services will be perfom,ed in a manner that shall conform to the approved
Project Schedule. Upon receipt of a Notice to Proceed from the City, Consultant shall abide by
the Project Schedule attachment to this Agreement as Schedule "D".
2.8.1 In providing the Services described in this Agreement, the Consultant shall use its
best efforts to maintain, on behalf of the City, a constructive, professional, cooperative
working relationship with the City's Project Coordinator, and others that have been
engaged to perform Services and/or Work pertaining to the Project. While the Services to
be provided by Consultant under this Agreement will be provided under the general
direction of the City's Project Coordinator, it is the intent of this Agreement to allow the
Consultant to coordinate the performance of all work to the extent such coordination by
the Consultant is permitted by this Agreement.
2.8.2 It is further the intent of this Agreement that the Consultant shall perform its
duties under this Agreement in a competent, timely and professional manner and that it
shall be responsible 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.
2.8.3 The Consultant shall perform the Services as expeditiously as is consistent
with the standard of professional skill and care required by this Agreement.
2.8.4 Consultant agrees to designate in writing, upon receiving its initial Notice to
Proceed, a qualified professional to serve as the Consultant's project manager (herein
after referred to as "Project Manager"). The Project Manager shall be authorized and
responsible to act on behalf of Consultant with respect to directing, coordinating and
administrating all aspects of Services to be provided and performed under this
Agreement.
2.8.5 Consultant herein represents to City that it has expertise in the type of professional
services that will be performed and pursuant to this Agreement. Consultant agrees that all
Services to be provided by Consultant pursuant to this Agreement shall be subject to
City's review and approval and shall be in accordance with the generally accepted
standards of professional practice in the State of Florida, as well as in accordance with all
published laws, statutes, ordinances, codes, rules, regulations and requirements of any
governmental agencies having jurisdiction over the Project or the Services to be
performed by Consultant hereunder. In the event of any conflicts in these requirements,
Consultant shall notify City of such conflict and utilize its best professional judgement to
advise City regarding resolution of each such conflict.
2.8.6 Consultant agrees not to divulge, furnish or make available to any third person,
firm or organization, without City's prior written consent, or unless incident to the proper
performance of Consultant's obligations hereunder, or in the course of judicial or
legislative proceedings where such information has been properly subpoenaed, any non-
public information concerning Services to be rendered by Consultant hereunder, and
Consultant shall require its employees, agents, subconsultants to comply with the
provisions of this paragraph.
2.8.7 The City and Consultant acknowledge that the Scope of Services does not
delineate every detail and minor work task required to be perfm,ned by Consultant to
complete the Project. If, during the course of the performance of the Services
contemplated in this Agreement, Consultant determines that work should be performed to
complete the Project which is, in the Consultant's opinion, outside the level of effort
originally anticipated, whether or not the Scope of Services identifies the work items,
Consultant shall notify the City's Project Coordinator in writing, in a timely manner, and
obtain said Project Coordinator's written consent, before proceeding with the work. The
City Project Coordinator must comply with Agreement Amendment processing
requirements as outlined in Article 1.8 and Article 4, prior to issuance of any written
authorization to proceed with Additional Services to Consultant. If Consultant proceeds
with Additional Services without notifying and obtaining the consent of the City, said
work shall be deemed to be within the original level of effort, and deemed included as a
Basic Service herein, whether or not specifically addressed in the Scope of Services.
Notice to the City Project Coordinator does not constitute authorization or approval by
the City to perform the work. Perfmmance of work by Consultant outside the originally
anticipated level of effort without the prior written consent of the City shall be at
Consultant's sole risk.
2.8.8 Consultant shall establish and maintain files of documents, letters, reports, plans,
etc. pertinent to the Project. Consultant shall provide City with a copy of applicable
Project correspondence for City to file in its filing system. In addition, Consultant shall
provide electronic Project document files to the City, at the completion of the Project, as
applicable.
2.8.9 It is further the intent of this Agreement that the Consultant shall perform its
duties under this Agreement in a competent, timely and professional manner and that it
shall be responsible 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.
2.8.10 In the event Consultant is unable to timely complete the Project because of
delays resulting from review by City, or such delays which are caused by factors outside
the control of Consultant, Consultant shall provide City with immediate written and oral
notices stating the reason for such delay, and a revised anticipated schedule of
completion. City, upon review of Consultant's submittal and such other documentation
as the City may require, may grant a reasonable extension of time for completion of the
Project.
2.8.11 The Consultant covenants with the City to furnish its Services hereunder
properly, in accordance with the standards of its profession and other applicable Federal,
State and local rules, regulations and laws, of which it should reasonably be aware,
throughout the term of this Agreement. The City's participation in the Project in no way
relieves the Consultant of its professional duties and responsibilities under applicable law
and under the Agreement Documents
ARTICLE 3. THE CITY'S RESPONSIBILITIES
3.1 The City shall designate inwriting a Project Coordinator to act as the City's
representative with respect to services to be rendered under this Agreement (herein after referred
to as Project Coordinator). The Project Coordinator shall have authority to transmit instructions,
receive information, interpret and define City policies and decisions 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 would have the effect, or be interpreted to
have the effect, of modifying or changing in any way whatsoever, unless approved by the City,
in compliance with Article 1.8 and Article 4. requirements, including but not limited to the
following:
a) The Scope of Services to be provided and performed by Consultant hereunder;
b) The time the Consultant is obligated to commence and complete all such Services;
c) The amount of compensation the City is obligated or committed to pay Consultant.
3.2 The City shall assist Consultant by placing at Consultant's disposal all information City
has available pertinent to the Project, including previous reports and any other data relative to the
Project. It shall be fully understood that City, in making such reports, site information, and
documents available to the Consultant is in no way certifying, representing and/or warranting as
to the accuracy or completeness of such data, including any information provided in the RFQ and
backup documentation thereto. Any conclusions or assumptions drawn through examination
thereof shall be the sole responsibility of the Consultant and subject to whatever measure it
deems necessary to final verification essential to its performance under this Agreement. If
Consultant performs additional services without notifying and obtaining written consent of the
City Project Coordinator, said work shall be deemed to be within the original level of effort and
deemed included as a Basic Service herein.
3.3 In the City's sole discretion, the City may furnish legal, accounting and insurance
counseling services as may be required at any time for the Project, including such auditing
services as the City may require to verify the Consultant's applications for payment or to
ascertain that Consultant has properly remitted payment due to sub-consultants working on this
project for which Consultant has received payment from the City.
3.4 If the City observes or otherwise becomes aware of any fault or defect in the Project or
non-conformance with the Agreement Documents, the City shall give prompt written notice
thereof to the Consultant.
3.5 The City shall furnish required information and services and render approvals and
decisions in writing as expeditiously as necessary for the orderly progress of the Consultant's
Services. It shall be the Consultant's sole responsibility to notify the City of any required
approvals due under the Agreement. The City's rights and responsibilities shall commence upon
said notice from Consultant. No approvals required by the City hereunder shall be unreasonably
delayed or withheld; provided that the City shall at all times have the right to approve or reject
any proposed submissions of Consultant for any reasonable basis.
3.6 The City Commission shall be the final authority to do or to approve the following
actions or conduct by passage of an enabling resolution or amendment to this Agreement.
3.6.1 The City Commission shall be the body to consider, comment upon, or approve
any amendments or modifications to this Agreement, except when noted otherwise (i.e.,
where delegated to the City Manager or his designee) in this Agreement.
3.6.2 The City Commission shall be the body to consider, comment upon, or approve
any subcontracts made pursuant to this Agreement. Assignment and transfer shall be any
assignment, sale, transfer or subletting of this Agreement or any interest therein and
defined to include sale of the majority of the stock of a corporate Consultant.
10
3.6.3 All required City Commission approvals and authorizations shall be expressed by
passage of an appropriate enabling resolution and, if an amendment, by the execution of
an appropriate amendment to this Agreement.
3.6.4 The City Commission shall hear appeals from the administrative decision of the
City Manager's appointed designee(s), upon the Consultant's written request, in which
case the Commission's decision shall be final.
3.6.5 The City Commission shall approve or consider all Agreement Amendments that
exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as
may be specified by the City of Miami Beach Procurement Ordinance, as amended).
3.7 The City Manager or his designee(s) shall serve as the City's representative to whom
administrative requests for approvals shall be made and who shall issue authorizations (exclusive
of those authorizations reserved to the City Commission) to the Consultant. These authorizations
shall include, without limitation: reviewing, approving, or otherwise commenting upon the
reports and other documents submitted to the City by the Consultant.
3.7.1 The City Manager shall decide, in his professional discretion, matters arising
pursuant to this Agreement which are not otherwise expressly provided for in this
Agreement, and shall attempt to render administrative decisions promptly to avoid
unreasonable delay in the progress of the Consultant's services. The City Manager, in his
administrative discretion, may consult with the City Commission concerning disputes or
matters arising under this Agreement regardless of whether such matters or disputes are
enumerated herein.
3.7.2 The City Manager shall be authorized, but not required, at the request of the
Consultant, to reallocate monies already budgeted toward payment of the Consultant,
provided, however, that the Consultant's compensation or other budgets established by
this Agreement cannot be increased.
11
3.7.3 The City Manager, or his designee, shall be the sole representative of the City
authorized to issue a Notice to Proceed, as referenced in attached Schedule "A" entitled
"Scope of Services".
3.7.4 The City Manager may approve Agreement Amendments which do not exceed
the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be
specified by the City of Miami Beach Purchasing Ordinance, as amended) and which do
not increase any of the budgets established herein.
ARTICLE 4. ADDITIONAL SERVICES
4.1 "Additional Services" are not provided for as part of this Agreement. If Additional
Services (if any) are required, above and beyond the Scope of Services and fixed cost, such
Additional Services/cost increase shall be duly negotiated by and between the City and
Consultant, and authorized in writing by City via Resolution and Agreement Amendment; as
needed, prior to commencement of same. Such authorization shall contain a description of the
Services required; the amended Agreement Cost Budget (if applicable); and an amended
completion date for the Project (if any).
ARTICLE 5. COMPENSATION FOR SERVICES
5.1 FIXED FEE. The Consultant shall be compensated for the Services to be provided
herein in an amount not to exceed One Hundred Fifty Nine Thousand, Nine Hundred Fifty Seven
and 00/1000 Dollars ($159,957), pursuant to Schedule "B," "Agreement Fee Computation
(Basic Services)." The City's Project Coordinator shall make payments for Basic Services
satisfactorily completed pursuant to this Agreement, within forty-five (45) calendar days of
receipt and approval of an acceptable invoice. No markup shall be allowed on subcontracted
Basic Services. Under no circumstances shall the "Not to Exceed" amount noted in Schedule "B"
be exceeded without prior written approval from the City's Project Coordinator.
5.2 Additional Services, if any, authorized in accordance with Article 4, will be compensated
as approved by City. Request for payment of Additional Services shall be included with the
12
monthly Basic Services payment request noted in Article 5.1 above. All Additional Services
must be approved, in advance and in writing, by the City prior to commencement of same, as
noted in Article 4. No markup shall be allowed on subcontracted Additional Services.
5.3 Method of Billing and Payment. With respect to all Services, Consultant shall submit
billings on a monthly basis in a timely manner, in a format and content that will satisfy City
requirements. In the event subconsultant work is accomplished utilizing the lump sum method,
the percentage of completion shall be identified. Billings shall also be itemized and summarized
by category. Consultant shall provide backup records for all Services, by category.
5.4 The City shall pay Consultant within forty-five (45) calendar days from receipt of
Consultant's proper statement for Services satisfactorily performed.
ARTICLE 6. CONSULTANT'S ACCOUNTING RECORDS
6.1 Consultant shall keep such records and accounts and require any and all sub-
consultants to keep such records and accounts as may be necessary in order to record complete
and correct entries as to charges to the Project, and any expenses for which Consultant expects to
be reimbursed. All books and records relative to the Project will be available at all reasonable
times for examination and audit by City and shall be kept for a period of three (3) years after the
completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect
entries in such books and records will be grounds for City's disallowance of any fees or expenses
based upon such entries. All books and records, which are considered public records shall,
pursuant to Chapter 119, Florida Statutes, be kept by Consultant in accordance with such
statutes.
ARTICLE 7. OWNERSHIP AND USE OF DOCUMENTS
7.1 Electronic files of all documents, including, but not limited to research and studies
completed or partially completed, shall become the property of the City upon completion,
termination, or abandonment of the Project. Consultant shall deliver the above documents to the
13
City within thirty (30) days of completion of the Project, or termination of this Agreement, or
termination or abandonment of the Project. (Reference attached Schedule "A", entitled "Scope
of Services" for additional requirements).
7.2 Any re-use of documents by City without written verification or adaptation by Consultant
for the specific purpose intended will be without liability to Consultant.
ARTICLE 8. TERMINATION OF AGREEMENT
8.1 Termination for Cause. The City may terminate this Agreement for cause in the event
that the Consultant (1) violates any provisions of this Agreement or performs same in bad faith
or (2) unreasonably delays the perfmmance of the Services, upon notice to the Consultant, in
writing, seven [7] days prior to termination. In the case of termination by the City for cause, the
Consultant shall be granted a fifteen-[ 15] day cure period after receipt of written notice from the
City.
8.1.1 In the event this Agreement is tem,inated by the City for cause, the City, at its
sole option and discretion, may take over the Services and complete them by contracting
with another consultant(s) or otherwise. In such event, the Consultant shall be liable to
the City for any additional cost incurred by the City due to such termination. "Additional
Cost" is defined as the difference between the actual cost of completion of such
incomplete Services, and the cost of completion of such Services which would have
resulted from payments to the Consultant hereunder had the Agreement not been
terminated.
8.1.2 Payment only for Services satisfactorily performed by the Consultant and
accepted by the City prior to receipt of a Notice of Termination, shall be made in
accordance with Article 5 herein and the City shall have no further liability for
compensation, expenses or fees to the Consultant, except as set forth in Article 5.
8.1.3 Upon receipt of a written Notice of Termination, the Consultant shall promptly
14
assemble and submit to the City, as provided herein or as required in the written notice,
all documents and other relevant materials affected by such termination. Failure to do so,
shall relieve the City of any obligation to make any outstanding payments due Consultant
at the time of termination.
8.1.4 In the event of a termination for cause, no payments to the Consultant shall be
made (1) for Services not satisfactorily performed and (2) for assembly of submittal of
documents, as provided above.
8.2 Termination for Convenience. The City, in addition to the rights and options to Terminate
for Cause, as set forth herein, or any other provisions set forth in this Agreement, retains the right
to temfinate this Agreement, at its sole option, at any time, for convenience, without cause and
without penalty, when in its sole discretion it deems such termination is in the best interest of the
City, upon notice to Consultant in writing fifteen (15) days prior to termination. In the event
City terminates Consultant's services for its convenience, as provided herein, Consultant shall be
compensated for all Services rendered up to the time of receipt of said written termination notice,
and for the assembly and submittal to the City of documents for the Services performed, in
accordance with Article 5. herein, and the City shall have no further liability for compensation,
expenses or fees to the Consultant, except as set forth in Article 5. Upon a termination for
convenience, Consultant's failure to assemble and submit documents for Services performed,
shall relieve the City of any obligation to make any outstanding payments due to Consultant at
the time of termination.
8.3 Termination by Consultant. The Consultant may only temiinate this Agreement for cause
in the event that the City willfully violates any provisions of this Agreement or unreasonably
delays payment for the Services, upon written notice to the City, thirty (30) days prior to
termination. In that event, payment for Services satisfactorily performed by the Consultant and
accepted by the City prior to receipt of a Notice of Termination shall be made in accordance with
Article 5 herein. In the case of termination by Consultant for cause, the City shall be granted a
thirty-(30) day cure period after receipt of written notice from the Consultant.
15
8.3.1 The Consultant shall have no right to terminate this Agreement for convenience of
the Consultant.
8.4 Implementation of Termination. In the event of termination, either for cause or for
convenience, the Consultant, upon receipt of the Notice of Temtination, shall (1) stop the
performance of Services under this Agreement on the date and to the extent specified in the
Notice of Termination; (2) place no further orders or subcontracts except for any that may be
authorized, in writing, by the City, prior to their occurrence; (3) terminate all orders and
subcontracts to the extent that they relate to the performance of the Services terminated by the
Notice of Termination; (4) promptly assemble and submit, as provided herein, all documents for
the Services performed, including drawings, calculations, specifications, correspondence, and all
other relevant materials affected by the termination; and (5) complete performance of any
Services as shall not have been terminated by the Notice Of Termination, And As Specifically
Set Forth Therein.
8.5 Non Solicitation. The Consultant warrants that it has not employed or retained any
company or person, other than an employee working solely for the Consultant, to solicit or
secure this Agreement; and that it has not paid, nor agreed to pay any company or other person
any fee, commission, girl or other consideration contingent upon the execution of this
Agreement. For breach or violation of this warranty, the City has the right to terminate this
Agreement without liability to the Consultant for any reason whatsoever.
ARTICLE 9. INSURANCE
9.1 The Consultant shall comply throughout the term of this Agreement with the insurance
requirements stipulated herein. It is agreed by the parties that the Consultant shall not commence
with work on this Project until satisfactory proof of the following insurance coverage has been
furnished to the City. The Consultant will maintain in effect the following insurance coverage:
(a)
Professional Liability Insurance in the amount of One Million ($1,000,000.00)
Dollars per occurrence. Consultant shall notify City in writing within thirty
16
(30) days of any claims filed or made against the Professional Liability
Insurance Policy.
(b) Worker's Compensation and employer's liability coverage within the statutory
limits of the State of Florida.
9.2 The Consultant must give thirty (30) days prior written notice of cancellation or of
substantial modifications in the insurance coverage, to the City Manager.
9.3 The insurance must be furnished by an insurance company rated B+:VI or better, or its
equivalent, according to Bests' Guide Rating Book and must additionally be furnished by
insurance companies duly authorized to do business in the State of Florida and countersigned by
the company's Florida resident agent.
9.1 Consultant shall provide to City a Certificate of Insurance or a copy of all insurance
policies required above. City reserves the right to require a certified copy of such
policies upon request. All certificates and endorsements required herein shall state
that the City shall be given thirty (30) days notice prior to expiration or cancellation
of the policy.
ARTICLE 10. INDEMNIFICATION
In consideration of a separate and specific consideration of $10.00 and other good and valuable
consideration, the receipt of which is hereby acknowledged, the Consultant hereby agrees to
indemnify, defend, and hold the City and its employees, agents and authorized representatives
harmless with respect to any and all costs, claims, damages and liability which may arise out of
the performance of this Agreement as a result of any negligent acts, errors or omissions of the
Consultant, or the Consultant's sub-consultants, or any other person or entity under the direction
or control of Consultant. The Consultant shall pay all claims and losses arising out of
Consultant's negligent acts, error or omissions and shall defend all suits, in the name of the City,
its employees, agents and authorized representatives, when applicable, including appellate
17
proceedings, and shall pay all costs, judgments and attorneys' fees which may issue thereon.
ARTICLE 11. VENUE
11.1 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 or all of the terms or
conditions herein. Exclusive venue for the enfomement of same shall lie in Miami-Dade County,
Florida.
ARTICLE 12. LIMITATION OF LIABILITY
12.1 The City desires to enter into this Agreement only if in so doing the City can place a limit
on 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 amount of the
fees for Services agreed upon under the terms of the Agreement, less any amount(s) paid to
Consultant thereunder. 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 the fee for Services agreed upon under the terms of the
Agreement, less the amount of all funds actually paid by the City to the Consultant
Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant
hereby agrees that the City shall not be liable to Consultant for money damages due to an alleged
breach by the City of this Agreement in an amount in excess of the amount of fee under this
Agreement, which amount shall be reduced by the amount actually paid by the City to
Consultant 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 subparagraph 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.
18
ARTICLE 13. MISCELLANEOUS PROVISIONS
13.1 The laws of the State of Florida shall govern this Agreement.
13.2 Equal Opporttmity Employment: Consultant agrees that it will not discriminate against
any employee or applicant for employment for work under this Agreement because of race,
color, religion, sex, age, national origin, disability or sexual orientation and will take affirmative
steps to ensure that applicants are employed and employees are treated during employment
without regard to sexual orientation, race, color, religion, sex, age, national origin, or disability.
This provision shall include, but not be limited to, the following: employment upgrading,
demotion or transfer; recruitment advertising, layoff or compensation; and selection for training,
including apprenticeships. Consultant agrees to furnish City with a copy of its Affirmative
Action Policy.
13.3 Public EntiW Crimes Act: In accordance with the Public Entity Crimes Act (Section
287.133, Florida Statutes), a person or affiliate who is a consultant, who has been placed on the
convicted vendor list following a conviction for a public entity crime may not submit a bid on a
contract to provide any goods or services to the City, may not submit a bid on a contract with the
City for the construction or repair of a public building or public work, may not bids or leases of
real property to the City, may not be awarded or perform work as a contractor, supplier,
subcontractor, or subconsultant under a contract with the City, and may not transact business
with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for
Category Two for a period of 36 months from the date of being placed on the convicted vendor
list. Violation of this Section by Consultant shall result in cancellation and may result in
Consultant's debarment.
13.4 No Contingent Fee Consultant warrants that it has not employed or retained any company
or person, other than a bona fide employee working solely for Consultant, to solicit or secure this
Agreement and that it has not paid or agreed to pay any person, company, corporation, individual
or firm other than a bona fide employee working solely for Consultant any fee, commission,
pementage, gift, or other consideration contingent upon or resulting from the award or making of
19
this Agreement. For the breach or violation of this provision, City shall have the right to
terminate the Agreement without liability at its discretion, to deduct from the contract price, or
otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration.
13.5 The Consultant represents that it has made and will make reasonable investigation of all
subconsultants to be utilized in the performance of work under this Agreement to determine that
they possess the skill, knowledge and experience necessary to enable them to perform the
services required. Nothing in this Agreement shall relieve the Consultant of its prime and sole
responsibility for the performance of the work under this Agreement.
13.6 The Consultant, its sub-consultants, agents and employees, shall comply with all
applicable Federal, State and County laws, the Charter, related laws and ordinances of the City of
Miami Beach, and with all applicable rules and regulations promulgated by local, state and
national boards, bureaus and agencies as they relate to this Project. This Agreement, or any
interest herein, shall not be assigned, transferred or otherwise encumbered by Consultant, under
any circumstances, without the prior written consent of City.
13.7 This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements or understandings applicable to the matters contained herein; and the
parties agree that there are no commitments, agreements or understandings concerning the
subject matter of this Agreement that are not contained in this document. Accordingly, the
parties agree that no deviation from the terms hereof shall be predicated upon any prior
representations or agreements whether oral or written. It is further agreed that no modification,
amendment or alteration in the terms or conditions contained herein shall be effective unless
contained in a written document executed with the same formality and of equal dignity herewith.
20
ARTICLE 14. NOTICE
All written notices given to City by Consultant shall be addressed to:
City Manager
c/o Robert Middaugh
Assistant City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
With copies to:
Fred H. Beckmann,
Director of Public Works
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
fredbeckmann~miamibeachfl.gov
Murray Dubbin
Office of City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
All written notices given to the Consultant by the City shall be addressed to:
Paul A. Bowdoin
Senior Vice President, HDR
8404 Indian Hill Drive
Omaha, Nebraska 68114
All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by
certified mail, return receipt requested.
21
IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be
signed in their names by their duly authorized officers and principals, attested by their respective
witnesses and City Clerk on the day and year first hereinabove written.
Attest:
CITY OF MIAMI BEACH
CITY CLERK
Attest: H D R (CONSULTANT)
Secretary
Paul A. Bowdoin, Senior Vice President
Company Seal
FORM & LANGUAGE
F:\WORKXSTRAXAMELIAWIPO\HD Ragnnt. RTO.doc
22
SCHEDULE "A"
PROFFESIONAL SERVICES AGREEMENT BETWEEN CITY OF MIAMI BEACH
AND HD R.
SCOPE OF SERVICES
Please refer to the attached Schedule "A"
23
SCHEDULE "A"
SCOPE OF SERVICES
FOR
EVALUATION OF RAPID TRANSIT OPTIONS
Explain the significance of rapid transit to Miami Beach in addressing growth and traffic
congestion issues, in light of known and imminent development in the community.
Review and comment on study accuracy and completeness of the Bay Link Draft
Environmental Impact Study (DEIS) dated October, 2002.
Study and contrast in generic terms and also specifically to the conditions of Miami Beach
the advantages and disadvantages of the following system modes (technology):
· Bus, Bus Rapid Transit (BRT) and Light Rail Transit (LRT) or other variations (i.e.
Trackless Trolley, etc.).
· Develop data beyond the DEIS, if necessary, to support a full explanation of the
different transit modes.
· Examine route options including,-but not limited to those addressed in the DEIS.
Comparison should include the effectiveness of each transit mode and their projected
passenger capture rates within Miami Beach; consultant will rely on data supplied by
the City and on the data and analysis produced for the DEIS, rather than creating new
data or models.
· Summarize order-of-magnitude cost for bus, BRT, LRT, and other options; including
necessary infrastructure and other similar factors to enable the Commission to have a
full understanding of the practical transit modes available.
Assess the capacity and reliability of the current bus transit system, including the
Electrowave shuttle, as the baseline for transit system enhancements.
Evaluate the long term impact on land use and infrastructure of bus, BRT, LRT and other
options.
Evaluate the potential for each mode to be expanded through subsequent phases.
Evaluate how a bus, BRT, LRT, or other options fit into the regional transportation system.
Carry out a public involvement effort for this study which includes:
Two public workshops (The cost of notification, meeting rooms, and other meeting
arrangement and activities beyond the time and direct expenses of the consultant,
will be the responsibility of the City).
Scope of Services/RTO
Page 2
Meetings will be held once with each of the City committees which are stakeholders
in the design of this transit project:
(a) Planning Board
(b) Historic Preservation Board
(c) Transportation and Parking Committee
(d) Meetings with City Commissioners; Directors of Public Works,
Planning, and CIP; the Miami-Dade County Metropolitan Planning
Organization (MPO); Office of Public Transportation Management
(OPTM); Miami-Dade Transit (MDT); as well as County
Commissioner Bruno Barreiro.
Based on the findings of elements 1-7 above, provide proposed conditions to be considered
for adoption by the Commission, which would attach to approval of a Locally Preferred
Alternative to guide Final Environmental Impact Statement (FEIS) preparation, project
design, and implementation.
10. Provide a definitive description as to how the local and federal transit project funding process
works. Explain the consequences in project funding and priority ofprompt action to pmceed
with a Final Environmental Impact Statement (FEIS) versus the approach of continuing to
review and discuss over the next years, and then proceeding with a FEIS. Include in the
analysis a summary as to the impact of federal funding based on the technology (mode)
chosen as the LPA.
11. Complete and provide the above tasks in twenty printed copies and one unbound, camera-
ready copy of a written document, inclusive of text, drawings, graphic charts, etc.
12. Present findings and recommendations at public meetings and to the Miami Beach City
Commission no later than July 10, 2003.
13. Prepare a draft scope of work, schedule and budget for Phase II of the study for consideration
by City staff and the Commission.
F:\WORK\$TRAK&MELIAWIPO\SOS. RTO.HDR. doc
SCHEDULE "B"
PROFFESIONAL SERVICES AGREEMENT BETWEEN CITY OF MIAMI BEACH
AND H D R.
CONSULTANT COMPENSATION (FIXED FEE)
As negotiated by and between the City and Consultant
Please refer to the attached Schedule "B"
24
SCHEDULE "C"
PROFFESIONAL SERVICES AGREEMENT BETWEEN CITY OF MIAMI BEACH
AND HDR.
HOURLY BILLING RATE SCHEDULE
As negotiated by and between the City and Consultant
Please refer to the attached Schedule "C"
25
SCHEDULE C
PROFESSIONAL SERVICES AGREEMENT BETWEEN
THE CITY OF MIAMI BEACH AND
HDR
Classification
HOURLY BILLING RATE SCHEDULE
Hourly Billing Rate
Project Principal
Project Manager
Sr. Planner
Transit P.E.
Deputy Project Manager
Urban Designer
Attomey
Technician
Data Collector
Graphics
Admin/Clerical
$203.00 per hour
$196.00 per hour
$162.00 per hour
$152.00 per hour
$141.00 per hour
$120.00 per hour
$181.00 per hour
$ 88.00 per hour
$125.00 per hour
$ 70.00 per hour
$ 62.00 per hour
SCHEDULE "D"
PROFFESIONAL SERVICES AGREEMENT BETWEEN CITY OF MIAMI BEACH
AND H D R
PROJECT SCHEDULE
Please refer to the attached Schedule "D"
27