94-21412 ResoRESOLUTION NO. 94-21412
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, RETROACTIVELY APPROVING AN
EMERGENCY AGREEMENT WITH KIMLEY-HORN AND ASSOCIATES
FOR TRAFFIC ENGINEERING AND TRANSPORTATION PLANNING
SERVICES RELATED TO THE PROPOSED DADE BOULEVARD
CONNECTOR PROJECT, WHICH IS SCHEDULED FOR SUBMISSION
TO THE METROPOLITAN PLANNING ORGANIZATION FOR FEDERAL
FUNDING CONSIDERATION.
WHEREAS, a recent study of future transportation needs has identified the
proposed Dade Boulevard Connector as an important project for good traffic circulation
within Miami Beach; and
WHEREAS, the Connector is a multi -million dollar project which will require federal
funding; and
WHEREAS, funding is appropriated by the Metropolitan Planning Organization (MPO)
through Dade County's Transportation Improvement Program (TIP); and
WHEREAS, the MPO requires that specific, technical data be presented with
candidate projects to facilitate evaluation by the various MPO committees; and
WHEREAS, the City does not have the specialized personnel, equipment, and
computer programs required to develop the technical data; and
WHEREAS, the deadline for applications is December 1, 1994; and
WHEREAS, on November 8, 1994, the City Manager signed the attached $15,000
Agreement with Kimley-Horn and Associates, to ensure timely preparation of the traffic
engineering and transportation planning data required for proper submission of the
Connector project application.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission retroactively
approve the attached Agreement with Kimley-Horn and Associates, which was previously
signed by the City Manager as an emergency item.
PASSED AND ADOPTED this 16th day of November 1 ,1994.
MA
ATTEST:
CI Y CLERK
FORK! APP ED
LEG aD
By _
Date
ti
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
COMMISSION MEMORANDUM NO.
To: Mayor Seymour Gelber and
Members of the City Commission
FROM: Roger M. Carlton
City Manager
SUBJECT:
DATE: November 16, 1994
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, RETROACTIVELY APPROVING AN
EMERGENCY AGREEMENT WITH KIMLEY-HORN AND ASSOCIATES
FOR TRAFFIC ENGINEERING AND TRANSPORTATION PLANNING
SERVICES RELATED TO THE PROPOSED DADE BOULEVARD
CONNECTOR PROJECT, WHICH IS SCHEDULED FOR SUBMISSION
TO THE METROPOLITAN PLANNING ORGANIZATION FOR FEDERAL
FUNDING CONSIDERATION.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, SUBMITTING THE DADE
BOULEVARD CONNECTOR PROJECT TO THE METROPOLITAN
PLANNING ORGANIZATION AS A CANDIDATE PROJECT FOR
INCLUSION IN THE 1996 TRANSPORTATION IMPROVEMENT
PROGRAM OF DADE COUNTY.
ADMINISTRATION RECOMMENDATION.
The Administration recommends that the Mayor and City Commission adopt two
Resolutions:
1) The first Resolution would retroactively approve the $15,000 Agreement with
Kimley-Horn and Associates, which was signed by the City Manager on November
9, 1994 as an emergency item. The Administration's order to proceed was needed
to ensure timely preparation of the traffic engineering and transportation planning
data required for submission of the City -proposed Dade Boulevard Connector
project to the Metropolitan Planning Organization (MPO), for federal funding
consideration. The deadline for project submission is December 1, 1994.
2) The second Resolution would officially submit the Connector application to the
MPO as a candidate project for inclusion in the 1996 Transportation Improvement
Program (TIP) of Dade County.
AGENDAITEM
DATE
The Dade Boulevard Connector would create a viable alternative to Collins Avenue
by channeling south/northbound commuter traffic through the 23rd Street/Dade
Boulevard/Alton Road route and away from the Historic Art Deco District. A
complete realignment of the 23rd Street bridge over Collins Canal would be
required. This project is very important to future traffic circulation, especially
considering the number of residential units being added to the Mid and North Beach
areas of the Collins corridor, plus the convention quality and suites hotels approved
for the upper portion of the South Beach corridor.
This "conceptual" project has been substantiated by a preliminary study of future
transportation needs completed in late October by Kimley-Horn (copy attached). It
identified the Dade Boulevard Connector as a most important transportation project
for Miami Beach.
The Administration recommends that this multi -million dollar project be submitted
to the MPO for federal funding consideration under the upcoming TIP. It is
required that the application package contain enough project -specific data to allow
the technical MPO sub -committees to perform a comprehensive evaluation of the
project's feasibility, extent, impact, effectiveness, cost -benefit ratio, and priority of
need as compared to other candidate transportation projects Countywide. The
City does not have the specialized personnel, equipment, and computer programs
required to develop this highly technical data. As mentioned previously, the TIP
application deadline is December 1, 1994.
ANALYSIS
Our Transportation Coordinator is advancing this project for the City, and aiding/
coordinating the technical work being produced by two outside parties:
1. Dade County Public Works and its consultant (Beiswenger, Hoch and
Associates) are performing the preliminary design/engineering, and
estimating constructions costs for the new 23rd Street bridge over Collins
Canal. This $100,000 project is being funded by Miami Beach's share of
the Road Impact Fee Program, administered by the County.
Dade Boulevard and Pine Tree/LaGorce Drives are County roads. Since the
Connector project may generate significant changes to the vehicular flow
pattern within the general area, the County has asked to review the traffic
data being, prepared by Kimley-Horn. They want to assess the potential
impact of the Connector project to the roadway and signalization network,
prior to completing and releasing the preliminary plans for the new bridge.
2. Kimley-Horn is conducting the traffic engineering and transportation planning
analyses required to develop an alternate circulation and roadway
improvement plan for the Connector project area, which extends from 26th
Street/Collins Avenue/Indian Creek Drive on the northeast to Dade
Boulevard/17 Street on the southwest. In addition, existing and future
traffic conditions will be evaluated using TRAF NETSIM, a network
simulation model for groups of signalized intersections, five at the eastern
end of the project area and eight at the western end (see attached map).
Three computer runs will be conducted, alternately using existing and future
traffic volumes, roadway geometries, and circulation plans. In addition,
preliminary costs for construction of the improvements needed to implement
the functional circulation plan will be estimated and the final report will be
produced. This study will give the City and the MPO a methodology for
evaluating the necessity and effectiveness of the proposed Dade Boulevard
Connector project.
Funding for the $15,000 Agreement with Kimley-Horn will come from the
Public Works, Streets, and Street Lights Professional Services account.
The Dade Boulevard Connector takes into, account and accommodates two other
projects planned for the same area: 1) The bicycle/ pedestrian facilities and
enhancement project scheduled for construction in 1996-97, using $1.3 million in
ISTEA program funding, and 2) the future Riverwalk Beautification project.
CONCLUSION
Approval of these two resolutions will allow the City to meet the December 1,
1994 deadline for new project applications for TIP funding. The Dade Boulevard
Connector has been identified by a recent study as an important transportation
project for the future of Miami Beach, but its capital cost would be prohibitive if it
were not for the possibility of federal funding.
aj
(dadedata)
❑ � ❑ Kimley-Horn
and Associates, Inc.
Engineering
Planning
and
Environmeptal
Consultants
November 8, 1994
Mr. Harry Mavrogenes
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Dear Mr. Mavrogenes:
This is a proposal to perform traffic engineering and transportation planning
services related to the Dade Boulevard Connector in the City of Miami Beach.
The intent is to improve traffic flow patterns at either end of Dade Boulevard
(Alton Road on the west and Collins Avenue on the east) to encourage a
diversion of traffic from Collins Avenue onto Dade Boulevard and Alton Road.
These services have been identified in our recent meetings and telephone calls
and are meant to support applications by the City of Miami Beach to the
Metropolitan Planning Organization for funding of the Dade Boulevard
Connector improvements.
At your request the following Scope of Services, Schedule and Fee Proposal are
offered.
SCOPE OF SERVICES
Kimley-Horn will conduct traffic engineering analyses and develop a functional
circulation plan for the two study areas:
■ Alton Road Study Area defined by Alton Road, Michigan
Avenue, 17th Street, and Dade Boulevard.
■ The Collins Avenue Study Area defined by Collins Avenue,
from 26th Street to 22nd Street, 23rd Street, Dade Boulevard,
and Pine Tree Drive
■
TEL 407 845 0665
FAX 407 863 8175
■
4431 Embarcadero Drive
West Palm Beach, Florida
33407
Kimley-Horn Mr. Harry Mavrogenes, November B, 1994, Page 2
❑� and Associates, Inc.
Specifically, Kimley-Horn will perform the tasks listed below.
Task I - Data Collection
In order to provide a basis from which to develop an alternate circulation and
roadway improvement plan for the two study areas certain traffic related data
will be collected.
Peak hour turning movement counts will be conducted at thirteen intersections
during the afternoon peak hour. Additionally, roadway geometries will be
recorded including existing right of way widths. On -street parking, delivery
truck operations, bus stops and pedestrian activity will also be noted.
Task H - Traffic Anal
Existing and future traffic conditions will be evaluated using TRAY NETSIM, a
network simulation model for groups of signalized intersections. This analysis
uses traffic counts and lane geometry as inputs and calculates vehicular delay.
These outputs will be used as the base evaluation criteria.
Based on the data collected in Task I, existing conditions in both study areas will
be evaluated using TRAF NETSIM. The Alton Road and Collins Avenue study
areas will be modeled separately. The distance between them does not justify
analysis of both areas together.
Projected increases in traffic volumes expected from new development in the
area and the diversion of traffic associated with the Dade Boulevard connector
will be estimated. TRAF NETSIM modeling will be rerun using these future
volumes and existing geometry. The outputs from these two runs of the model
will result in certain functional changes to the circulation plan in the area.
A third run of TRAF NETSIM will be conducted using future traffic volumes
and the geometry associated with the proposed changes to the circulation plan.
A qualitative analysis will be performed for special convention center events.
Task III - Functional Circulation Plan
Concepts will be developed to provide alternative traffic circulation and
roadway improvement plans for both the Alton Road and Collins Avenue study
areas. In the area of Alton Road and Dade Boulevard this may involve the
elimination of some conflicting movements at the intersection and the use of
Michigan Avenue and 19th Street to provide capacity for these movements. At
Collins Avenue, 23rd Street and Dade Boulevard this may involve specific
intersection improvements, realignment of intersection and potential bridge
improvements.
❑�❑ Kimley-Horn
and Associates, Inc.
Mr. Harty Mavrogenes, November 8, 1994, Page 3
A functional plan will be developed to illustrate these alternative circulation and
improvements plan and will include:
■ Conceptual plan of lane usage and intersection
improvements.
■ Signing and pavement marking plan.
■ Conceptual traffic signal design including preliminary
phasing and timing plans.
■ Determination of the impact on truck deliveries,
pedestrian activity, bus stops and on -street parking.
The functional circulation plans will be presented in an 11 inch by 17 inch
format for use in the final report.
Task IN - Estimate of Probable Cost
Based on the functional circulation plans and estimated quantities for
construction of the conceptual improvements, preliminary cost estimates will be
developed. Historical costs maintained by FDOT will be used, as appropriate.
The estimate of probable cost will be useful in pursuing funding alternatives.
Task V - Final Report
A final report will be prepared summarizing the findings and conclusions of the
various tasks listed above. This report will be provided to the City in draft form
for their review before it is finalized. This report can be used to justify
expenditures by Metro Dade County to implement these improvements through
the Capital Improvement Plan of the Metropolitan Planning Organization.
Task VI - Additional Services
We will provide, as requested and authorized by you, additional services that
require analyses beyond those described in Tasks I through V. These additional
services may include but not be limited to:
(1) other traffic engineering analyses
(2) general civil engineering
(3) environmental analysis and engineering
(4) planning and zoning assistance
(5) permitting and regulatory assistance
(6) highway and bridge design
(7) structural engineering
(8) construction administration observation
(9) comprehensive DRI services
Kimley-Horn Mr. Harry Mavrogenes, November 8, 1994, Page 4
and Associates, Inc.
SCHEDULE
We will provide our services as expeditiously as possible to meet the schedule
developed by you for the various elements of the projects.
PRICE PROPOSAL
The services described above will be provided for a lump sum fee of $15,0000.
The following budget categories have been identified for your information:
Task I - Data Collection $1,800
Task II - Traffic Analysis 5,500
Task III - Functional Circulation Plan 4,600
Task IV - Estimate of Probable Cost 1,200
Task V - Final Report 1,900
Total Lump Sum Cost $15,000
We will accomplish the services in Task VI on the basis of our hourly billing
rates in effect at the time the services are provided plus an amount to cover
certain direct expenses for the project which would include in-house duplicating,
facsimile, local mileage, telephone, postage, in-house blueprinting, and word
processing. In addition other direct expenses will be billed at 1.15 times costs.
Kimely-Horn's computer reimbursable expenses are billed at the hourly rate of
$25.00.
Fees are payable monthly with billing based upon the percentage complete of
lump sum elements.
In addition to amount payable by the Client to the engineer hereunder, the Client
shall be invoiced for and shall pay to the Engineer in accordance with these
provisions all taxes, if any, whether state, local, or federal levied with respect to
such amounts.
❑ � ❑ Kimley-Horn
and Associates, Inc.
CLOSURE
Mr. Harry Mavrogenes, November 8, 1994, Page 5
In addition to the matters set forth herein, our Agreement shall include, and shall
be subject to, the Standard Provisions attached hereto and hereby incorporated
herein. The term "the Client", as used in the attached Standard Provisions, shall
refer to the City of Miami Beach.
If you concur in the foregoing and wish to direct us to proceed with the
aforementioned services, please execute the enclosed copy of this letter
agreement in the space provided and return the same to me. Fees and time stated
in this Agreement are valid for thirty (30) days after the date of agreement by the
Engineer.
We appreciate this opportunity to submit a proposal. Please contact me if you
have any questions.
Very truly yours,
KIMLEY-HOR*ANASSOCIATES, INC.
Frederick W. Sc,.
Division Manager
FWS:smg
Attachment: Standard Provisions
CITY OF MIAMI BEACH
A Municipality
By: 4 ya�
Title: CITY MANA6£P,
KIMLEY-HORN AND ASSOCIATES, INC.
STANDARD PROVISIONS
(1) Scope of Services. The undertaking of the Engineer to perform professional services under this Agreement extends only to those services
specifically described herein. However, if requested by the Client and agreed to by the Engineer, the Engineer will perform additional services
("Additional Services") hereunder and shall be compensated therefore as set forth below. In addition, the Engineer is authorized to perform
Additional Services for which the Engineer will be similarly compensated for those services arising due to emergencies, errors or other
unanticipated actions by the Client's contractor(s), revised regulations governing the Engineer's services, and when, in the Engineer's opinion,
Additional Services are advisable as a result of other factors required by other authorities and such Additional Services are clearly in the Client's
interest and advance authorization cannot be obtained. In the event of the performance of such Additional Services, the Engineer will notify the
Client as soon as practical of the necessity and inception of the services.
(2) Client's Responsibilities. In addition to any responsibilities specifically described herein, the Client shall have the following responsibilities
to the Engineer:
(a) Designate in writing a person to act as his representative with respect to this Agreement, such person having complete authority to transmit
instructions, receive information, and make or interpret the Client's decisions.
(b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project These data shall include all
numerical criteria that are to be met and all standards of development, design, or construction that are to be followed.
(c) Provide to the Engineer all previous studies, plans, or other documents pertaining to the project and all new data reasonably necessary, in the
Engineer's opinion, such as site survey and engineering data, environmental impact assessments or statements, zoning or other land use regulations,
etc., upon on all of which the Engineer may rely.
(d) Arrange for access to the site and other private or public property as required for the Engineer to provide the services under this Agreement
(e) Review all documents or verbal reports presented by the Engineer and render in writing decisions pertaining thereto within a reasonable time
so as not to delay the services of the Engineer.
(f) Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties
as may be necessary for completion of the Engineer's services.
(g) Provide such independent accounting, legal, insurance, cost estimating, and overall feasibility services beyond the scope of this Agreement
as the Client may require or the Engineer may reasonably request with regard to the professional fields listed above.
(h) Give prompt written notice to the Engineer whenever the Client becomes aware of any development that affects the scope and timing of the
Engineer's services or any defect or noncompliance in any aspect of the project
(i) Bear all costs incident to the responsibilities of the Client
(3) Period of Services. Unless otherwise provided herein, the Engineer will begin work promptly after receipt of a fully executed copy of this
Agreement and, unless specified otherwise herein, shall complete the services within a reasonable length of time. The provisions of this section
and the compensation to the Engineer included in this Agreement have been agreed to in anticipation of a continuous and orderly progress through
the completion of the Engineer's services.
(a) Times for performance agreed to herein shall be extended to the extent necessary for delays due to natural disasters, strikes, or other
circumstances over which the Engineer has no control.
(b) If the Engineer's services are delayed or suspended in whole or in part, the times of performance shall be extended to the extent of such delay
or suspension; such suspension shall not terminate this Agreement unless the Engineer elects to terminate by written notice in accordance with
other provisions of this Agreement If such delay or suspension extends for more than six months (cumulatively) for reasons beyond the Engineer's
control, the various rates of compensation provided for elsewhere in this Agreement shall be subject to renegotiation.
(4) Compensation for Services. Unless specifically agreed to herein, the following standard provisions as to compensation amounts shall be
applicable.
(a) The Engineer shall be compensated in U.S. dollars for the services specifically described herein in accordance herewith.
(b) If the Engineer performs Additional Services, the Client shall pay the Engineer for the performance of those Services an amount (in addition
to all other amounts payable under this Agreement) based upon the Engineer's current hourly rates for the actual time spent by the Engineer in
coizi000vn -I-
providing such Additional Services plus an amount to cover certain direct expenses for the project which would include in-house duplicating,
facsimile, local mileage, telephone, postage, in-house blueprinting and word processing. In addition, other direct expenses will be billed at 1.15
times costs. Technical use of computers for analysis, design graphics, etc., will be billed at $25.00 per hour.
(c) In addition to amounts payable by the Client to the Engineer hereunder, the Client shall be invoiced for and shall pay to the Engineer in
accordance with paragraph (5) all taxes, if any, whether state, local, or federal, levied with respect to such amounts.
(5) Payments for Services. Compensation shall be paid to the Engineer in accordance with the following provisions:
(a) Invoices will be submitted by the Engineer to the Client monthly for services performed and expenses incurred pursuant to this Agreement
during the prior month. Payment of each such invoice will be due within twenty-five (25) days of the receipt thereof. A service charge will be
added to delinquent accounts at the maximum rate allowed by law for each' month of delinquency.
(b) If the Client fails to make any payment due the Engineer for services and expenses within thirty (30) days after the Engineer's transmittal
of its invoice therefor, the Engineer may, after giving seven (7) days' written notice to the Client, suspend services under this Agreement until
all amounts due hereunder are paid in full.
(c) In the event any invoice or any portion thereof remains unpaid for more than sixty (60) days following the invoice date, the Engineer may
initiate collection proceedings to collect the same and recover, in addition to all amounts due and payable including accrued interest, its reasonable
collection fees and other expenses related to the proceeding. Such expenses shall include, but shall not be limited to, the cost, determined at the
Engineer's normal hourly billing rates, of the time devoted to such proceeding by its employees.
(d) The Client acknowledges and agrees that the payment for services rendered and expenses incurred by the Engineer pursuant to this Agreement
is not subject to any contingency or conditions unless expressly set forth in this Agreement
(6) Reuse of Documents. All documents, including but not limited to drawings, specifications and data or programs stored electronically,
prepared by the Engineer pursuant to this Agreement are related exclusively to the services described herein. They are not intended or represented
to be suitable for reuse by the Client or others on extensions of this project or on any other project Any reuse without written verification or
adaptation by the Engineer to specific purposes intended will be at the Client's sole risk and without liability or legal exposure to the Engineer,
and the Client shall indemnify and hold the Engineer harmless from all claims, damages, losses and expenses, including but not limited to
attorneys' fees, arising out of or resulting therefrom. Any such verification or adaptation will entitle the Engineer to further compensation at rates
to be agreed upon by the Client and the Engineer.
(7) Opinions of Cost
(a) Since the Engineer has no control over the cost of labor, materials, equipment or services furnished -by others,�or over methods of determining
prices, or over competitive bidding or market conditions, any and all opinions as to costs rendered hereunder, including but not limited to. opinions
as to the costs of construction and materials, shall be made on the basis of its experience and qualifications and•represent^its besrjudgment as an
experienced and qualified professional engineer, familiar with the construction industry; but the Engineer cannot and does not guarantee that
proposals, bids or actual costs will not vary from opinions of cost prepared by it If at any time the Client wishes greater assurance as to the
amount of any cost, he shall employ an independent cost estimator to make such determination. Engineering services required to bring costs within
any limitation established by the Client will be paid for as Additional Services hereunder by the Client
(b) If a limit with respect to construction or other costs is established by written Agreement between the Client and the Engineer, the following
will apply:
(i) The acceptance by the Client at any time during the performance of services hereunder of a revised opinion of probable cost in excess
of the then established cost limit will constitute a corresponding revision in the previously agreed cost limit to the extent indicated in such
revised opinion.
(ii) Any cost limit so established shall be increased by a bidding contingency of ten percent unless another amount is established in writing.
(iii) The Engineer will be permitted to determine what materials, equipment component systems and types of construction are to be included
in the drawings and specifications prepared by it pursuant hereto and to make reasonable adjustments in the extent of the project to bring
it within the cost limit
(iv) If the bidding or negotiating phase of the project has not commenced within six (6) months after the completion of the Engineer's
design hereunder, the established cost limit will not be binding on the Engineer, and the Client shall consent to an adjustment in such cost
limit commensurate with any applicable change in the general level of prices in the construction industry between the date of completion
of the Engineer's design hereunder and the date on which proposals or bids are sought
Cnnigioan -2-
(v) If the lowest bona fide proposal or bid exceeds the established cbst limit, the client shall (1) give written approval to increase such cost
limit, (2) authorize negotiating or rebidding the project within a reasonable time, or (3) cooperate in revising the project's extent or quality.
In the case of (3), _the Engineer shall, without additional charge, modify the plans and specifications prepared by it hereunder as necessary
to bring the subject cost within the cost limit. The providing of such service will be the limit of the Engineer's responsibility in this regard
and, having done so, the Engineer shall be entitled to payment for its services in accordance with this Agreement and shall have no further
liability hereunder.
(8) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven (7) days'
written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the
terminating party. In the event of any termination, the Engineer will be paid for all services rendered to the date of termination, all expenses
subject to reimbursement hereunder, and other reasonable expenses incurred by the Engineer as a result of such termination. In the event the
Engineer's compensation under this Agreement is a fixed fee, upon such termination the amount payable to the Engineer for services rendered
will be a proportional amount of the
total fee based on the ratio of the amount of the work done, as reasonably determined by the Engineer, to the total amount of work which was
to have been performed, less prior partial payments, if any, which have been made.
(9) Liability. The Engineer is protected by Workers' Compensation Insurance (and/or employer's liability insurance), professional liability
insurance, and by public liability insurance for bodily injury and property damage and will famish certificates of insurance upon request. The
Engineer agrees to hold the Client harmless from loss, damage, injury, or liability arising directly and to the extent from the negligent acts or
omissions of the Engineer, its employees, agents, subcontractors and their employees and agents but only to the extent that the same is actually
covered and paid, under the foregoing policies of insurance. If the Client specifically directs the Engineer to obtain increased insurance coverage,
or if the nature of the Engineer's activities requires additional Workers' Compensation or similar insurance coverage, the Engineer will take out
such additional insurance, if obtainable, at the Client's expense.
(10) Standard of Care. In performing its professional services hereunder, the Engineer will use that degree of care and skill ordinarily exercised,
under similar circumstances, by reputable members of its profession practicing in the same or similar locality. No other warranty, express or
implied, is made or intended by the Engineer's undertaking herein or its performance of services hereunder. It is agreed that, in accordance with
and subject to the provisions of the foregoing paragraph (9), the Client will limit any and all liability, claim for damages, cost of defense, or
expenses to be levied against the Engineer on account of any and all design defects, errors, omissions, or professional negligence to the amount
actually paid in compensation for, or with respect to, such liability, claim, cost, or expense under any policy or policies of professional liability
insurance maintained by the Engineer. Further, the Client agrees to notify any contractor or subcontractor who may perform work in connection
with any design, report, or study prepared by the Engineer of such limitation for defects, errors, omissions, or professional negligence, and require
as a condition precedent to his (or its) performance of such work an identical limitation of liability on his (or its) part as against the Engineer.In
the event the Client fails to obtain an identical limitation of liability provision as to defects or negligence, the Client shall indemnify and hold the
Engineer harmless for any liability related to error, omissions, or act of professional negligence in such a manner and to such extent that the
aggregate liability of the Engineer, including awards and costs assessed by any tnediator-arbitrator for such defect or negligence to all parties
including the Client, shall not exceed the aforementioned amount Under no circumstances shall the Engineer be liable for extra costs or other
consequences due to changed conditions or for costs related to the failure of the contractor or materialmen to install work in accordance with the
plans and specifications.
(11) Means & Methods of Contractors. The Engineer shall have no authority over or responsibility for the means, methods, techniques,
sequences or procedures of construction selected by contractor(s), for safety precautions and programs incident to the work of contractor(s) or for
any failure of contractor(s) to comply with laws, rules, regulations, ordinances, codes or orders applicable to contractor(s) furnishing and
performing their work.
(12) Expenses of Litigation. In the event litigation in any way related to the services performed hereunder is initiated against the Engineer
by the Client, its contractors, or subcontractors, and such litigation concludes with the entry of a final judgment favorable to the Engineer, the
Client shall reimburse the Engineer for all of its reasonable attorneys' fees and other expenses related to said litigation. Such expenses shall
include, but shall not be limited to, the cost, determined at the Engineer's normal hourly billing rates, of the time devoted to such litigation by
the Engineer's employees.
(13) Arbitration. All claims, counterclaims, disputes, and other matters in question between the Client and the Engineer arising out of this
Agreement or the breach thereof shall be decided by binding arbitration in accordance with the Construction Industry Rules of the American
Arbitration Association then obtaining, at the sole discretion of the Engineer. Notice of demand for arbitration must be filed in writing with the
other party to this Agreement and with the American Arbitration Association no later than that date when institution of legal or equitable
proceedings based on such claim, dispute, or other matter in question would be bared by the applicable statute of limitations. In addition, no
arbitration proceedings shall include by consolidation, joinder, or in any other manner, any party other than the Client and the Engineer, and
arbitration in respect of a specifically described claim, counterclaim, dispute or other matter in question shall not be expanded to include any other
winIXiov'> -3-
issue. The restrictions of the previous sentence as to parties to and issues of the arbitration proceedings may be amended by specific written
approval of the Client and the Engineer for each exception.
(14) Hazardous Substances. It is understood and agreed that in seeking the professional services of the Engineer under this Agreement, the
Client does not request the Engineer to undertake to perform any services, studies, or tests, or to make any determinations involving hazardous
substances, as defined by federal law. Therefore, the Engineer undertakes no such obligation hereunder, and the Client agrees to hold harmless,
indemnify, and defend the Engineer from and against any and all claims, losses, damages, liability, and costs arising out of or in any way connected
with the presence, discharge, release, or escape of contaminants or hazardous substances of any kind, or environmental liability of any nature, in
any manner related to services performed by the Engineer under this Agreement If any condition regarding a hazardous substance, including but
not limited to asbestos, is observed by the Engineer or is alleged during the course of the performance of the services hereunder, the Engineer
shall have the right to cease all services until the hazardous substance condition has been eliminated. The Engineer shall have the responsibility
to notify the Client of any such condition of which the Engineer becomes aware, and the Client shall be solely responsible for the elimination
of the hazardous substance condition. If the services to be performed by the Engineer hereunder cannot be performed because of the existence
of the hazardous substance condition, the existence of the condition shall be deemed to be a substantial failure on the part of the Client to perform
in accordance with the terms of this Agreement, through no fault of the Engineer, for the purposes of termination under paragraph (8).
(15) Beneficiaries, Assignment and Subcontracting. Nothing under this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Client and the Engineer, and all duties and responsibilities undertaken pursuant to this Agreement will be for
the sole and exclusive benefit of the Client and the Engineer and not for the benefit of any other party. Neither the Client nor the Engineer shall
assign, sublet, or transfer any rights under or interests in this Agreement without the written consent of the other. However, nothing contained
herein shall prevent or restrict the Engineer from employing independent professional associates or consultants as the Engineer may deem
appropriate to assist in the performance of services hereunder.
(16) Confidentiality. The Client hereby consents to the use and dissemination by the Engineer of photographs of the Project and to the use by
the Engineer of facts, data and information obtained by the Engineer in the routine performance of the services hereunder. Notwithstanding the
foregoing, with respect to any facts, data or information specifically identified in writing by the Client, the Engineer shall use reasonable care to
maintain the confidentiality of such identified material.
(17) Controlling Law. This Agreement is to be governed by the law of the State of Florida.
(18) Binding Effect. This Agreement shall bind, and the benefits thereof shall inure to the respective parties hereto, their legal representatives,
executors, administrators, successors and assigns.
(19) Merger, Amendment. This Agreement constitutes the entire Agreement between the Engineer and the Client, and.negotiations; written,
and oral understandings between the parties are merged herein. This Agreement can be supplemented and/or amended only by a written document
executed by both the Engineer and the Client
(20) Severability and Waiver of Provisions. Any provision in this Agreement that is prohibited or unenforceable in any jurisdiction shall,• as
to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating, the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other jurisdiction. Also, the non -enforcement of any provision by either party shall
not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement
(21) Consideration. As specific consideration for the indemnification provided the Engineer by the Client hereunder, the Engineer shall pay
the Client the amount of One Dollar (S1.00) by credit upon the transmittal to the Engineer of a signed contract/agreement
(22) Limitation of Liability. See Attached.
FORM APRROVED
LE EPT.
By
Date s
Cnuiociovn -4-
Section 22. Limitation of Liability
The City desires to enter into this Agreement only if in so
doing the; City can place a limit on the City's liability for any
cause of action for money damages due to an alleged breach by the
City of this Agreement, so that its liability for any such breach
never exceeds the sum of any unpaid sums to Engineer pursuant to
this Agreement. Engineer hereby expresses its willingness to enter
into this Agreement with Engineer's recovery from the City for any
damage action for breach of contract to be limited to a maximum
amount of the amount to be disbursed to Engineer pursuant to this
Agreement, less the amount of any funds actually paid by the City
to Engineer pursuant to this agreement.
Accordingly, and notwithstanding any other term or condition
of this Agreement, Engineer hereby agrees that the City shall not
be liable to the Engineer for damages in an amount in excess of the
amount to be disbursed pursuant to this Agreement, which amount
shall be reduced by the amount actually paid by the City to
Engineer pursuant to this Agreement, for any action or claim for
breach of contract arising out of the performance or non-
performance of any obligations imposed upon the City by this
Agreement. Nothing contained in this paragraph or elsewhere in
this Agreement is in any way intended to be a waiver of the
limitation placed upon City's liability as set forth in Florida
Statutes, Section 768.28.
FORM APMVED
EPT.
1