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HNTB Corp Service Agreement ,:! )01-2.5'32.4- A PROFESSIONAL SERVICES AGREEMENT BETWEEN CITY OF MIAMI BEACH AND HNTB CORPORATION FOR PROFESSIONAL CONSULTING SERVICES FOR TRAFFIC ANALYSIS OF THE 63RD ST. IINDIAN CREEK DRIVE INTERSECTION AREA Date: September 2003 TABLE OF CONTENTS DESCRIPTION PAGE ARTICLE 1 DEFINITIONS 2 1.1 City 2 1.2 City Commission 2 1.3 City Manager 2 1.4 Consultant 2 1.5 City's Project Coordinator 2 1.6 Basic Services 2 1.7 Additional Services 3 1.8 Agreernent Amendment 3 1.9 Force Majeure 3 1.10 Schedules 3 1.11 Scope of Services 4 ARTICLE 2. BASIC SERVICES (Consultant Responsibilities) 4 2.5 Additional Services 5 2.6 Responsibility for Claims and Liabilities 5 2.7 Time 5 2.8 Additional Consultant Responsibilities 5-8 ARTICLE 3. THE CITY'S RESPONSIBILITIES 8-11 ARTICLE 4. ADDITIONAL SERVICES 11 ARTICLE 5. COMPENSATION FOR SERVICES 11-12 ARTICLE 6. CONSULTANT'S ACCOUNTING RECORDS 12 ARTICLE 7. OWNERSHIP AND USE OF DOCUMENTS 13 ARTICLE 8. TERMINATION OF AGREEMENT 13 8.1 Termination for Cause 13 8.2 Termination for Convenience 14 8.3 Termination by Consultant 15 8.4 Implernentation of Termination 15 8.5 Non-Solicitation 15 ARTICLE 9. INSURANCE 16 ARTICLE 10. INDEMNIFICATION 17 ARTICLE 11. VENUE 17 ii DESCRIPTION PAGE ARTICLE 12. LIMITATION OF LIABILITY 17 ARTICLE 13. MISCELLANEOUS PROVISIONS 18-19 ARTICLE 14. NOTICE 20 SIGNATURES 21 SCHEDULES SCHEDULE "A" - SCOPE OF SERVICES SCHEDULE "B" - CONSULTANT COMPENSATION 22 23 iii TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT HNTB CORPORATION FOR PROFESSIONAL CONSULTING SERVICES: TRAFFIC ANALYSIS OF THE 63RD STREETIINDIAN CREEK DRIVE INTERSECTION AREA This Agreement made and entered into this IO-#i.dav of September. 2003 by and between the CITY OF MIAMI BEACH, a rnunicipal 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 HNTB CORPORATION, a Florida corporation having its principal offices at 8700 West Flagler Street, Suite 2000, Miami, Florida 33174-2428 (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 traffic analysis of the 63rd Street at Indian Creek Drive intersection area, for a 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 rnean 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 whorn administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Comrnission) to the Consultant. 1.4 CONSULTANT. The "Consultant" is herein defined as HNTB CORPORATION, a Florida corporation having its principal offices at 8700 West Flagler Street, Suite 200, Miami, Florida 33174-2428, 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 is hereby approved for the Study: Crossroads Engineering Data, Inc. 13501 SW 128th Street #101 Miami, Florida 33186 1.5 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 rnatters related to the Project, except as otherwise provided herein. 1.6 BASIC SERVICES. "Basic Services" shall include the preparation of a traffic analysis for the 63rd Street/Indian Creek Drive intersection area, as described in Article 2 herein and in Schedule "A" entitled "Scope of Services", attached hereto. 2 1.7 ADDITIONAL SERVICES. "Additional Services" are not provided for as part of this Agreernent. 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. 1.8 AGREEMENT AMENDMENT. "Agreement Arnendrnent" 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 agreernent Arnendrnents, 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 amount (or other such amount as may be specified by the City of Miami Beach Procurernent Ordinance, as amended). Even for Agreement Arnendments 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. 1.9 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. 1.10 SCHEDULES. "Schedules" shall mean the various schedules attached to this Agreement and referred to as follows: Schedule "A" - Scope of Services: Includes all the Services approved by City and FDOT for the Project, which will be completed within the timeline stated herein. 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. 3 1.11 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 Traffic Analysis of the 63rd Street I Indian Creek Drive Intersection Area, 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 rnay be arnended 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 conternplated by this Agreernent, and that it is properly licensed pursuant to the applicable laws, rules and regulations to perform such Services. Consultant warrants that it shall be responsible for the technical accuracy of documents prepared pursuant to this Agreement. 4 2.5 ADDITIONAL SERVICES: Consultant shall provide Additional Services only if previously negotiated and authorized in writing by the City, as stated in Article 1.7 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 deerned a release of the responsibility and liability of the Consultant, its employees, subcontractors, agents and consultants for the accuracy and cornpetency 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 ernployees, 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 forty five (45) days from the receipt of a Notice to Proceed, to be issued by the City. It is understood that time is ofthe essence in the completion of this Project. 2.8 ADDITIONAL CONSULTANT RESPONSIBILITIES: The parties agree that the Consultant's Services will be performed in a manner that shall conform to the approved Project Schedule. 2.8. I 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 Agreernent to allow the Consultant to coordinate the performance of all work to the extent such coordination by the Consultant is permitted by this Agreement. 5 2.8.2 It is further the intent of this Agreernent that the Consultant shall perform its duties under this Agreement in a competent, tirnely 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 adrninistrating 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 Agreernent 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 6 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 performed 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 iterns, 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 Arnendment processing requirernents as outlined in Article 1.7 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 deerned 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. Performance 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 systern. In addition, Consultant shall provide electronic Project document files to the City, at the cornpletion 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 cornpetent, timely and professional manner and that it shall be responsible to the City for any failure in its performance except to the extent that 7 acts or ornissions by the City or others make such performance impossible. 2.8.1 0 In the event Consultant is unable to timely cornplete 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 imrnediate 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 rnay 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 Agreernent. 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 in writing 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 1.7 and Article 4. requirements, including but not lirnited 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 cornpensation the City is obligated or cornmitted to pay Consultant. 8 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 cornpleteness of such data. 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 rnay be required at any time for the Project, including such auditing services as the City rnay 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 frorn 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 prornpt 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 cornmence 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 tirnes 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. 9 3.6.1 The City Comrnission shall be the body to consider, comment upon, or approve any amendrnents or rnodifications to this Agreernent, 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 Agreernent. 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. 3.6.3 All required City Cornmission approvals and authorizations shall be expressed by passage of an appropriate enabling resolution and, if an amendment, by the execution of an appropriate amendrnent to this Agreement. 3.6.4 The City Comrnission shall hear appeals from the adrninistrative decision of the City Manager's appointed designee(s), upon the Consultant's written request, in which case the Comrnission's decision shall be final. 3.6.5 The City Comrnission 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 Procurernent Ordinance, as amended). 3.7 The City Manager or his designee(s) shall serve as the City's representative to whom adrninistrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Comrnission) 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, rnatters 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 hisf 10 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. 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 Amendrnents which do not exceed the sum of thirteen thousand nine hundred seventy four dollars ($13,974.00) (or other such amount as rnay be specified by the City, 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 Agreernent. 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 Agreernent Amendment; as needed, prior to cornmencement 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 LUMP-SUM FEE. The Consultant shall be compensated for the Services to be provided herein in a lump-sum amount not to exceed Thirteen Thousand Nine Hundred Seventy Four and 11 001100 Dollars ($13,974.00), pursuant to Schedule "B," "Agreernent Fee Computation (Basic Services)." The City's Project Coordinator shall make payments for Basic Services satisfactorily cornpleted pursuant to this Agreement, within forty-five (45) calendar days of receipt and approval of an acceptable invoice. No rnarkup shall be allowed on subcontracted Basic Services. Under no circurnstances 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 monthly Basic Services payrnent request noted in Article 5.1 above. All Additional Services must be approved, in advance and in writing, by the City prior to cornmencement 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, in a timely manner, one (1) lump-sum billing statement upon completion of Services, and in a format and content that will satisfy City requirements. The percentage of completion shall be identified, and the lump-sum statement shall 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 reqUlre 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 tirnes 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 12 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 researc h 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 City within thirty (30) days of cornpletion 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 rnay terminate this Agreement for cause in the event that the Consultant (I) violates any provisions of this Agreement or performs same in bad faith or (2) unreasonably delays the performance 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 terminated 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 incornplete Services, and the cost of cornpletion of such Services which would have 13 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 prornptly 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 payrnents 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 (I) 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 terminate 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 cornpensation, 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 payrnents due to Consultant at the time of termination. 14 8.3 Termination by Consultant. The Consultant rnay only terminate this Agreement for cause in the event that the City willfully violates any provisions of this Agreernent or unreasonably delays payment for the Services, upon written notice to the City, thirty (30) days prior to termination. In that event, payrnent 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 frorn the Consultant. 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 Termination, shall (I) 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 cornpany or person, other than an employee working solely for the Consultant, to solicit or secure this Agreernent; and that it has not paid, nor agreed to pay any company or other person any fee, comrnission, gift 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. 15 ARTICLE 9. INSURANCE 9.1 The Consultant shall comply throughout the term of this Agreernent with the insurance requirernents 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 Two Hundred Fifty Thousand ($250,000.00) Dollars per occurrence. Consultant shall notify City in writing within thirty (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. 9.3.1 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. 16 ARTICLE 10. INDEMNIFICATION The Consultant hereby agrees to indemnify, defend, and hold the City and its ernployees, agents and authorized representatives harmless with respect to any and all costs, clairns, 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. The Consultant shall pay all claims and losses arising out of Consultant's negligent acts, errors or omissions. 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 enforcernent of any or all of the terms or conditions herein. Exclusive venue for the enforcement 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 Agreernent, less any amount(s) paid to Consultant thereunder. Consultant hereby expresses its willingness to enter into this Agreernent with Consultant's recovery from the City for any damage action for breach of contract to be limited to a rnaximum 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 Agreernent, Consultant hereby agrees that the City shall not be liable to Consultant for rnoney damages due to an alleged breach by the City of this Agreernent in an arnount in excess of the amount of fee under this Agreernent, which amount shall be reduced by the amount actually paid by the City to 17 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. ARTICLE 13. MISCELLANEOUS PROVISIONS 13.1 The laws of the State of Florida shall govern this Agreement. 13.2 Equal Opportunitv Employment: Consultant agrees that it will not discriminate against any employee or applicant for employment for work under this Agreernent 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 Entitv 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 proyide 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 sub consultant 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 rnonths 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. 18 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, percentage, gift, or other consideration contingent upon or resulting from the award or making of 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 rnake 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 pnor negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein; and the parties agree that there are no commitments, agreernents 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 rnodification, 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. 19 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 and: 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: Jose de Almagro, P .E. Vice President HNTB Corporation 8700 West Flagler Street, Suite 200 Miami, Florida 33174-2428 idealrnagro@hntb.com All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. 20 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 J?f))),lr PlU~ CITY CLERK ~~o 'tJ ~ C Y MANAGER Attest: HNTB COPORA TION (CONSULTANT) Company Seal APPROVED AS TO FORM & lANGUAGE & FOR EXECUTION ,- 3-~ Date F:\ WORK\$TRA IAMELIA \FDOT\HNTBagnnt63n1 Study.doc 21 SCHEDULE "A" PROFFESIONAL SERVICES AGREEMENT BETWEEN CITY OF MIAMI BEACH AND HNTB CORPORATION SCOPE OF SERVICES Please refer to the attached Schedule "A" 22 Sc:lIpe Prepared by: HNTB TraiN, Ma~si.s - OJ S~eellnlerseclilns Attachment A Scope o/Services City a/Miami Beach Consultant Service Order No.2 Traffic Ana/vsis - 63 Street In/ersectiolls Introduction The City of Miami Beach has identified the need to study the existing conditions and future (Year 2021) conditions at two signalized intersections. Study intersections are: · Indian Creek Drive at 63 Street (with and without fly-over) · Indian Creek Drive at 65 Street In general, this study will assist the City staff in responding to the four questions in Commissioner Richard Steinberg's email dated May 6, 2003, as provided to the Consultant by the City staff. Study Period: Traffic operation analysis will be for the existing conditions during A.'vf, mid-day and PM peak hours on a typical weekday. The 2-hour period to be counted in the AM, mid-day and the PM peak periods would be based on 72-hour (three-day) bi- directional machine counts on 63 Street and Indian Creek Drive. In addition to the existing conditions analysis, traffic analysis will also be performed for projected Year 2021 AM, mid-day, and PM peak hours for each of the alternatives analyzed. Interim year forecasting and/ or analysis are not a part of this scope. Study Alternatives: Four alternatives specified by the City staff will be analyzed for Year 2021 projected volumes. The first three are: 1. At-grade Intersection (Alternative 1B, FOOT Report entitled 63'" Street at Indian Creek Drive, dated March 16, 1999, provided to the Consultant on May B, 2003 by City staff) 2. New Fly-over (Alternative 2, FOOT Report entitled 63rd Street at Indian Creek Drive, dated March 16, 1999, provided to the Consultant on May B, 2003 by City staff). 3. No-Build A fourth alternative will be analyzed to respond to the Commissioner's email comment #3. This alternative, a variation of study alternative 2, will analyze Indian Creek Drive at 65 Street with the same lane configuration as in the study alternative 1. Year 2021 Traffic Projections: The methodology used to project 2003 traffic volumes to Year 2021 volumes will be based on a linear growth method. A linear growth rate of 1.0% will be applied to existing volumes to project 2021 volumes, as used in the FOOT and Corradino studies. No model runs are part of this scope. Seepe Prepared by: HNTB T raffle Analysis - 6J S~eellnlerSeclions Task 1 - Meetings This task allows for up to 2 informal meetings, one with City staff and one COmmissioner briefing. Public presentations and/ or board meetings are not part of this scope. Task 1 Products . Two Meetings Task 2 - Review Background Studies This task allows for review of pertinent studies and data provided to the Consultant by City staff at the May 8,2003 scope meeting. The City will provide other relevant data and studies. This task does not allow for the Consultant to coordinate and obtain such studies from third parties. Specifically, the following studies related to 63 Street Fly-over may be relevant: 1. FOOT's Traffic Study Report, dated January 27,1999 along with traffic count data (not provided yet) 2. FOOT's Final Supplemental Report. dated March 11, 1999 (already provided) 3. Corradino's Traffic Study Evaluation. dated April 2000 (already provided) Task 2 Products . General understanding of previous efforts and analysis methodology Task 3 - Traffic Counts This task allows for collection of existing 72-hour (three-day) machine bi-directional counts on one typical weekday at two study locations. Vehicle classification counts are not part of this scope. The two locations are as follows: . 63 Street just west of the fly-over . Indian Creek Drive just north of the fly-over This task allows for collection of existing tuming movement counts on one typical weekday at the two study intersections and the fly-over. The turning movement count program is as follows: . AM (2-hours) Intersection Turning Movement Counts including pedestrians . Mid-day (2-hours) Intersection Turning Movement Counts including pedestrians . PM (2-hours) Intersection Turning Movement Counts including pedestrians Task 3 Products . 72-hour bi-directional traffic counts - 21ocations . 6-hour (AM+MO+PM) Intersection TUI'!\ing Movement Counts - 2 intmP<"tinn. Sc~pe Prepared oy: HNTB T raffle AIIalysis - OJ Slrllt!llnlerseclicns Task 4 - Field Review This task allows for field observations of the intersection traffic operations during the study periods. Review will be performed by a qualified traffic engineer during the AM. Mid-day and PM peak periods. Roadway characteristics. intersection geometry and signal characteristics will also be recorded during the field review. This task does not provide for field inventory of all physical features. Task 4 Products · AM. Mid-day and PM Peak Period Field Observations Task 5 - Existing Intersection Level of Service (LOS) Analysis This task allows for the intersection analysis using SIGNAUOOO. The results will be checked for reasonableness compared to field observations. Any adjustments to the inputs and! or default values to achieve a reasonable representation of field observed conditions will be documented and provided to the Oty. Base condition analysis will reflect existing conditions, i.e., volumes, geometry. signal timing. Ry-over volumes will be treated consistent with FDOT and the Corradino study in the LOS analysis. Task 5 Products · Intersection Analysis and Worksheets - Existing Condition (AM+MD+ PM) Task 6A - Year 2021 Volume Forecasts Year 2021 hourly volumes will be projected consistent with FOOT and the Corradino study. Methodology is described in the introduction section of this scope. AM. MD. and PM peak hour turning volumes will be estimated for the two study intersections for each of the study alternatives. Task 6A Products · Year 2021 Intersection Volume Estimates (AM+MD+PM. for each study alternative) for use in Task 6B Task 68 - Year 2021 Intersection LOS Analysis This task allows for the Year 2021 intersection LOS analysis using SIGNAt2000. Fly-over volumes will be treated consistent with FOOT and the Corradino study in the LOS analysis. AM, mid-day, and PM peak hours will be analyzed for each study alternative. Signal timing will be based on the Corradin~ report and engineering judgment. Scepe Pre.ared by: HNTB Traffic Analysis - 53 SlIeellnlerseclions Quantitative analysis for signal coordination and signal optimization to develop signal phasing and timing plan are not a part of this scope. Transyt 7f is not a part of this scope. Task 6B Products · Intersection Analysis and Worksheets - Year 2021 (AM+MD+PM, for each study alternative) Task 7A - Draft Study Report This task allows for the preparation of a draft study report to document the data, reviews, analysis and findings of Tasks 1 thru 6, and present recommendations and/or conclusions of the study. This task and/or scope do not provide for drawings of the intersection condition diagrams and/ or the improvement concepts. Concept drawings from the FDOT study may be copied and excerpted in the report appendix, if appropriate. Three copies of the draft report are budgeted. Task 7 A Products · Draft Report - 3 copies - unbound Task 78 - Final Study Report This task allows for the preparation of a final study report to respond to the comments on the draft. Three copies of the final report are budgeted. This task allows for response to up to one (1) round of comments from the City staff received on the draft. Subsequent rounds of comments will require additional fees. The budget includes response to comments that are editorial/clarification, but does not include response that would require testing variations of the analysis and/ or concepts. Such revisions to the analysis and/ or report will require additional fees, if those revisions are for any reason other than error on part of the Consultant. Task 78 Products · Final Report - 3 copies - bound Schedule The schedule is dependent on when the notice to proceed is issued in relation to the Memorial Day weekend and subsequent closure of Miami-Dade Schools. Counts are not recommended for the week of May 26, and the Thursday before May 26. Then Miami- Dade schools close June 11 so we would not recommend counting that week or until schools open after summer. Furthermore, the Consultant is not resDon.ihl" FM rl~I..," Scope Pr1pared !ly: HNT8 TI1Jlic Analysis - 53 S~eet Inlerstclicns Usually, a study such as this can be completed within 45 calendar days of notice to proceed, if traffic counts can be obtained in a timely manner. Tasks Not Included )- Crash Review, Analysis, Collision Diagrams }> Link LOS }> Transyt 7f )- FSUTMS }> Weekend analysis }> Existing Condition Diagram }> Improvement Concept Drawings }> Cost Estimates }> Tasks not specifically mentioned in the task descriptions above. SCHEDULE "B" PROFFESIONAL SERVICES AGREEMENT BETWEEN CITY OF MIAMI BEACH AND HNTB CORPORATION CONSULT ANT COMPENSATION (FIXED FEE) As negotiated by and between the City and Consultant Please refer to the attached Schedule "B" 23 Altachment B Man-hour & Fee Estimate I Prepared by HNTB Corporation City 0' Miami Beach Consultant Service Order No.2 Alternate ScoDe to Control Costs (No transvt 7'. No link LOS. wf72 hr counts) May 14.2003 Final PRljlCl P'ojecc 51 Classification >>>:>>>" onClO' MOIlogor Enqin_ Enoin_ Clotlca' Hours Cootrad Rails n:>""" S 15<.00 S 12700 S 109.00 S 9200 S 4200 rask I . 1\oI..tinos II in'ormal mto with slat!. 1 in'o""ar mlll with Cornmis~on.r) 3.00 3.00 0.00 0.00 0.00 8.00 Task 2. AlVilw BackQtaund Studies 1.00 200 2.00 0.00 0.00 5.00 rask 3 . T,"fllc CDllnls 0.00 0.00 0.00 2.00 0.00 2.00 rask 4 . Fiel. Review lAM. MD. PI\oII 0.00 0.00 9.00 0.00 0.00 9.00 risk 5. ex..lIn. LOS. SIGNAL 2000 lAM. MD. PMl 0.00 1.00 2.00 7.00 0.00 10.00 rask SA - 2021 V""'",. F.......slS (3 AIlS. AM. MD. PM. No FSUTMSl 0.00 1.00 4.00 11.00 0.00 16.00 Task 6B - 2021 LOS. SIGNAL 2000 (3 AIlS' AM. MO. PM! 0.00 2.00 2.00 20.00 0.00 24.00 Task 7A - o..aft Slu.y R.potI (3 copiesl 2.00 4.00 18.00 1.00 0.00 30.00 Task 1B - .",al SlIIdy Roper! (3 copies) 1.00 2.00 B.OO 1.00 0.00 10.00 Ta~1 Labar Hours 1.00 15.00 43.00 41.00 0.00 112.00 ro..' Liller F.. S 1.011 S 1.905 S 4.681 S 4.324 S - S 11.994 Total Labor a Is lu"l Reitrrbur!iOlbl. e.MnslS ~MTMC.@2~~~s' I-hr Mil"". Counl an Flyovl, a 72-h' Macl1inlI 21oc:.IionS . Miluge . RepRlouc1icnlSinding . SllippingIMliti"9 . Tolal Oul..'.Pock.' Expo...s . S 711 S 353 S 100 S 50 S 200 S . S 1,150 S 13.916 TorAL LUMP SUM FEE.