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97-22553 RESO RESOLUTION NO. 97-22553 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH TRANSPORTATION MANAGEMENT ASSOCIATION (MBTMA) FOR THE TRANSFER OF $145,000 IN PROJECT ADMINISTRATION FUNDS FROM THE ADOPTED 1997-98 ELECTRIC SHUTTLE (ELECTROWAVE) BUDGET, FOR CONTRACT MANAGEMENT AND OVERALL ADMINISTRATIVE SERVICES TO BE PERFORMED BY MBTMA FOR THE ELECTROWAVE PROGRAM; SUCH TRANSFER BEING MADE ON A QUARTERLY BASIS, BEGINNING OCTOBER 1, 1997. WHEREAS, the Miami Beach Transportation Management Association (MBTMA) has developed the Electric Shuttle Park-and-Ride Demonstration Program (Electrowave) and will implement and administer its contracts and services, on behalf of the City; and WHEREAS, the two-year Electrowave Budget adopted for Fiscal Years 1996-97 and 1997-98 includes a Project Administration category; and WHEREAS, the City wishes to enter into the attached Professional Services Agreement with MBTMA and transfer $145,000 from this account to MBTMA, for Contract Management and Project Administration Services; and WHEREAS, MBTMA is required to open an individual bank account for these funds and file an expenditure/progress report with the City, on a monthly basis, documenting the use of the Project Administration funds; and WHEREAS, the Electrowave Program is undergoing its final phase of implementation with circulator/park-and-ride transit services scheduled to begin by late November/early December, 1997. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission approve and authorize the Mayor and City Clerk to execute the attached Agreement between the City of Miami Beach and the Miami Beach Transportation Management Association (MBTMAj for the transfer of $145,000 in Project Administration funds from the Adopted 1997-98 Electric Shuttle (Electrowave) Budget, for contract management and overall administrative services to be performed by MBTMA for the Electrowave Program; such fund transfer being made on a quarterly basis, beginning October 1, 1997. PASSED AND APPROVED this the ~ day of APPROVED J.S TO FORM & lANGUAGE & FOR EXeCUTION ~~ ?-S-?7 Oat. ATTEST: ~~~ ~~ CITY CLERK aj :ITY OF MIAMI BEACH 04",._". ;ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 ,ttp:\\ci.miam i-beach. f1.us TO: FROM: SUBJECT: COMMISSION MEMORANDUM NO. ~~8J1J Mayor Seymour Gelber and DATE:October 8,1997 Members of the City Commission Jose Garcia_pedrosa~ City Manager A RESOLUTION F THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH TRANSPORTATION MANAGEMENT ASSOCIATION (MBTMA) FOR THE TRANSFER OF $145,000 IN PROJECT ADMINISTRATION FUNDS FROM THE ADOPTED 1997-98 ELECTRIC SHUTTLE (ELECTROWAVE) BUDGET, FOR CONTRACT MANAGEMENT AND OVERALL ADMINISTRATIVE SERVICES TO BE PERFORMED BY MBTMA FOR THE ELECTROWAVE PROGRAM; SUCH TRANSFER BEING MADE ON A QUARTERLY BASIS, BEGINNING OCTOBER 1, 1997. ADMINISTRATION RECOMMENDATION Approve the Resolution. BACKGROUND On October 3, 1996, the City of Miami Beach and the Florida Department of Transportation (FOOT) executed a Joint Participation Agreement (JPA) which adopted a 2-Year (1996-98) funding package for the Electric Shuttle Program (E1ectrowave), in the amount of $3,712,254. The funding sources were the City, FOOT, Clean Cities Coalition, and in-kind equipment and services by the Florida Power & Light Co. A Two-Year E/ectrowave Budget was established to include the following expense categories: Capital Acquisitions, Marketing, Operating, Project Administration, and Project Contingency. The Project Administration category of the E/ectrowave Budget was always meant to be transferred to MBTMA which, on the City's behalf, developed the entire Program, identified funding sources, is intimately familiar with its intricacies and requirements, and established all contacts which are essential to the Program's livelihood and success. The Administration proposes that MBTMA administer all contracts and perform all administrative services related to the E/ectrowave Program, as per the Scope of Services herein attached as Exhibit "A." The Administration also proposes AGENDAITEM~ DATE~ -.:........ that the fund transfer be made on a quarterly basis, beginning October 1, 1997, after the City executes a contract with the company selected to operate the Electrowave transit system. Such contract - with American Bus Lines (Red Top) - has been submitted for your consideration at this meeting. ANAL YSIS When the Electrowave budget was established in October 1996, ten percent (10%) or $150,000 of the total Operating Budget of $1.5 million was set aside for Project Administration purposes. Since then, required travel to and training in Chattanooga, Tennessee, for pertinent City/MBTMA staff and Electrowave driver generated expenditures of approximately $5,000 out of this account, leaving a balance of $145,000. Since the Electrowave Park-and-Ride Demonstration Program was developed and will soon be implemented and administered by MBTMA, the Administration proposes to transfer the $145,000 balance in Project Administration funds to MBTMA, on a quarterly basis, under this proposed one-year Agreement which effective date is October 1, 1997. The services to be delivered by MBTMA are herein attached as Exhibit" A," entitled Contract Management and Project Administration Services. The main duties of MBTMA and City regarding the Electrowave Program are also set forth in Exhibit "8," entitled Division of Duties of the Agreement and herein attached. CONCLUSION The Administration believes the proposed transfer of funds is timely and appropriate for the following reasons: <> MBTMA's administration services have already begun. <> American Bus Lines Co. is being hired to operate the Electrowave system. <> Driver training/orientation will begin soon after transit contractor is hired. <> The vehicle facility will be completed within two month. <> Marketing, advertising, public relations efforts are in advanced planning stages. <> A 'soft' opening' followed by official inauguration ceremonies/full service implementation are scheduled for December 1997. JGP~AJ/aj ( ewagrtma) EXHIBIT "A" 4'.:_'" SCOPE OF SERVICES for CONTRACT MANAGEMENT AND ADMINISTRATION SERVICES FOR THE ELECTROWA VE PROJECT The Miami Beach Transportation Management Association, Inc. (MBTMA) proposes to provide the City of Miami Beach contract management and administration services in the amount of $145,000.00, effective October 1, 1997 through September 30, 1998, for the electric shuttle service known as the ELECTROWA VE Project, as follows: 1 . Contract administration for all aspects of the Electrowave Project, including authorization and review of any and all expenditures related to operations, marketing, public relations, maintenance, and all other applicable expenditures. 2. Preparing all non-technical provisions for the Electrowave system, including verifying compliance with all Federal, State and local requirements. 3. Coordinating all functions necessary to procure operations, marketing, vehicle maintenance, and public relations. These services include the preparation of contract requirements, requests for proposals and bids (as required by funding agencies), project negotiations and recommendations. 4. Authorizing capital, operating, and marketing expenditures for the Electrowave Program, and submitting reviewed and approved invoices to the City for payment by the Electrowave Budget. 5. Overseeing configuration management functions associated with the Electrowave Project such as: Document Control, Change Requests, Change Control, Procedures Administration, and Project Management Plan Maintenance. Includes responding to requests for Electrowave Project records. 6. Preparing all information necessary for the development of Resolutions and the coordination of all information related to the project and service. 7. Custodian of all Electrowave records including coordination with Florida Department of Transportation, Dade County Metropolitan Planning Organization, Clean Cities Coalition, Florida Alliance for Clean Technologies, Florida Department of Energy, and the Florida Department of Environmental Protection. 8. Researching, writing, and submitting grant applications to seek funding on a continual basis for the purpose of supporting operations, marketing, public relations and expansion/improvement of Electrowave services. 9. Preparing and submitting necessary reports to funding agencies as required. #~-'" 1 O. Continue marketing the Electrowave system - maintaining, updating, and circulating materials, etc. 11 . Monitoring maintenance activities of each vehicle and submitting reports as required. 12. Monitoring shuttle stop locations for effectiveness and operations efficiency. 13. Monitoring shuttle safety requirements and documentation. 14. Responding to any and all inquiries concerning the service, schedule, route, etc. 15. Responding and dealing with possible ridership complaints. 16. Surveying ridership at the end of initial six-month period of operations for effectiveness of service. And developing a mechanism whereby ridership surveys could be updated, on a needed basis. 1 7. Justifying and implementing changes to the service as required for efficiency and quality management. 18. Monitoring operations and quality of service on a daily basis. 19. Available for formal presentations concerning the overall shuttle project, its development, and uniqueness. 20. Coordinating and conducting driver training and orientation sessions on a quarterly basis, as needed. EXHIBIT "B" ",:-... DIVISION OF DUTIES REGARDING ELECTROWA VE PROGRAM-MBTMA AND CITY The main duties of the Miami Beach Transportation Management Association (MBTMA) and the City of Miami Beach regarding the Electrowave Program are the following: o MBTMA will administer all contracts and services related to the Electrowave Program, including all capital, operations, maintenance, marketing and public relations items; will search for additional funding sources, and prepare grant applications to support the continuation of contracts and services. These and further administrative duties are detailed in the Scope of Services attached herein and made part of the proposed Agreement. o MBTMA will have custody over and full use of the Electrowave Project Administration funds which will fund the administrative services to be provided by MBTMA, on behalf of the City, as above described. o MBTMA will open a separate account for the transferred Electrowave funds and establish accounting procedures which are independent from the MBTMA budget. o MBTMA will file an expenditure/progress report with the City, on a monthly basis. This report will constitute an added but separate item to the MBTMA monthly report presently being filed with the City and the FOOT. o MBTMA will authorize expenditures of the Electrowave funds under City custody, and will thoroughly review and approve all invoices received therefrom prior to submitting the invoices (with back-up documentation) to the City for payment. o MBTMA will abide by the procurement, permitting, and regulatory processes of the City of Miami Beach and the State of Florida, as applicable, and as the Electrowave Program's main funding partners. o MBTMA will coordinate efforts with and receive input, as appropriate, from City, State, or County staff regarding physical installations being contemplated for the Electrowave route, park-and-ride facilities, causeways, etc. o CITY will have custody over the remaining Electrowave funds (capital, operating, marketing, contingency) and will perform the needed accounts payable/accounting/ auditing services. o CITY, with MBTMA input, will prepare Electrowave items which require City Commission consideration. o CITY. Above and beyond this Agreement and the Electrowave budget, the City is responsible for providing a temporary vehicle facility and park-and-ride lot for the Electrowave Program. PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND THE MIAMI BEACH TRANSPORTATION MANAGEMENT ASSOCIATION (MBTMA) FOR THE TRANSFER OF ELECTROWAVE PROJECT ADMINISTRATION FUNDS TO MBTMA FOR CONTRACT MANAGEMENT/ PROJECT ADMINISTRATION SERVICES. THIS AGREEMENT is made this 8th day of October , 1997 by and between the CITY OF MIAMI BEACH, FLORIDA (City), which term shall include its officials, successors, legal representatives, and assigns, and the MBTMA (Consultant). Agreement: City Manager: Consultant: Fixed Fee: Project Coord i nator: Risk Manager: Services: Termination: SECTION 1 DEFINITIONS This written Agreement between the City and the Consultant. "City Manager" means the Chief Administrative Officer of the City. For the purposes of this Agreement, Consultant shall be deemed to be an independent contractor, and not an agent or employee of the City. Fixed amount paid to the Consultant to cover the costs of managing contracts and performing overall administrative services for the EJectrowave Program. An individual designated by the City Commission to coordinate, direct and review on behalf of the City all technical matters involved in the Services. The Risk Manager of the City, with offices at 1700 Convention Center Drive, Third Floor, Miami Beach, Florida 33139. All services, work and actions by the Consultant performed pursuant to or undertaken under this Agreement described in Section 2. Termination of Consultant Services as provided in Subsection 11 of this Agreement. Task: A discrete portion of the Scope of Services to be accomplished by the Consultant, as described in Section 2 below, if directed and authorized. SECTION 2 SCOPE OF WORK AND SERVICES REQUIRED The scope of work to be performed by the Consultant is set forth in Exhibit "A," entitled "Contract Management and Administration Services" (Services). The respective duties of Consultant and City regarding the entire Electrowave Program are set forth in Exhibit "B," entitled "Division of Duties." SECTION 3 COMPENSATION 3.1 FIXED FEE The City agrees to provide Consultant with funds in the amount of One Hundred and Forty-Five Thousand and 00/100 Dollars ($145,000), from the adopted 1997-98 Electrowave Budget, to be used in furtherance of the Services to be performed herein, such Services as set forth in Exhibit "A" hereto. All funds issued by the City to Consultant shall be placed by Consultant in an account designated solely and exclusively for contract management and overall administrative services related to the Electrowave Program. 3.2 METHOD OF PA YMENT/REPORTING Quarterly payments in the amount of Thirty Six Thousand, Two Hundred Fifty and 00/100 Dollars ($36,250) each shall be made to the Consultant, beginning October 1, 1997, for the term of this Agreement. Consultant shall be required to submit monthly reports with attachments documenting how the funds are being spent and the new services are being completed. No specific milestones have been established. All submissions shall contain a statement that the items set forth therein are true and correct and in accordance with the Agreement. SECTION 4 GENERAL PROVISIONS 4.1 RESPONSIBILITY OF THE CONSULTANT With respect to the performance of the Services, the Consultant shall exercise that degree of skill, care, efficiency and diligence normally exercised by recognized professionals -2- with respect to the performance of comparable Services. In its performance of the Services, the Consultant shall comply with all applicable laws and ordinances, including but not limited to, applicable regulations of the City, County, State, Federal Government, ADA, EEO Regulations and Guidelines. 4.2 PUBLIC ENTITY CRIMES State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes as available with the office of the City Clerk, shall be filed by Consultant. 4.3 PROIECT MANAGEMENT The Consultant shall appoint a qualified individual acceptable to the City to serve as Project Manager for the Services who shall be fully responsible for the day-to-day activities under this Agreement and who shall serve as the primary contact for the City's Projl~ct Coordinator. 4.4 DURATION AND EXTENT OF AGREEMENT The term of this Agreement shall be for a period of twelve (12) months, commencing on October 1, 1997, and ending on September 30, 1998. Funding for any additional term (s) shall be approved by the City and be contingent upon a favorable evaluation of the MBTMA by the City and the Florida Department of Transportation. Notwithstanding the aforestated language, however, the City shall have no future obligation to renew this Agreement beyond the twelve-month term set forth herein. 4.5 TIME OF COMPLETION The Services to be rendered by the Consultant shall be commenced upon receipt of a written Notice to Proceed from the City subsequent to the execution of this Agreement. A reasonable extension of time shall be granted in the event the work of the Consultant is delayed or prevented by the City or by any circumstances beyond the reasonable control of the Consultant, including weather conditions or acts of God which render performance of the Consultant's duties impracticable. 4.6 NOTICE TO PROCEED A Notice to Proceed will be issued by the City subsequent to the execution of this Agreement. -3- 4.7 OWNERSHIP OF DOCUMENTS AND EQUIPMENT All documents prepared by the Consultant pursuant to this Agreement are related exclusively to the Services described herein, and are intended or represented for ownership by the City. Any reuse by Consultant or the parties shall be approved in writing by the City. 4.8 INDEMNIFICATION Consultant agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the Consultant, its employees, agents, sub-consultants, or any other person or entity acting under Consultant's control, in connection with the Consultant's performance of the Services pursuant to this Agreement; and to that extent, the Consultant shall pay all such claims and losses and shall pay all such costs and judgements which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. The parties agree that one percent (1 %) of the total compensation to the Consultant for performance of the Services under this Agreement is the specific consideration from the City to the Consultant for the Consultant's Indemnity Agreement. The Consultant's obligation under this Subsection shall not include the obligation to indemnify the City of Miami Beach and its officers, employees and agents, from and against any actions or claims which arise or are alleged to have arisen from negligent acts or omissions or other wrongful conduct of the City and its officers, employees and agents. The parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. 4.9 INSURANCE REQUIREMENTS The Consultant shall not commence any work pursuant to this Agreement until all insurance required under this Subsection has been obtained and such insurance has been approved by the City's Risk Manager. The Consultant shall maintain and carry in full force during the term of this Agreement and throughout the duration of the work the following insurance: 1. Consultant General Liability in the amount of $1,000,000.00. A certified copy of the Consultant's (and any sub-consultants') Insurance Policy must be filed and approved by the Risk Manager prior to com men cement. 2. Workers Compensation & Employers Liability as required pursuant to Florida statute. -4- Thirty (30) days written notice of cancellation or substantial modification in the insurance coverage must be given to the City's Risk Manager by the Consultant and his insurance company. The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City's Risk Manager. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager for approval prior to any work commencing. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall. The Consultant is responsible for obtaining and submitting all insurance certificates for their consultants. All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B +" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Manager. Compliance with the foregoing requirements shall not relieve the Consultant of the liabilities and obligations under this Subsection or under any other portion of this Agreement, and the City shall have the right to obtain from the Consultant specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required overage. 4.9.1 Endorsements All of Consultant's certificates, above, shall contain endorsements providing that written notice shall be given to the City at least thirty (30) days prior to termination, cancellation or reduction in coverage in the policy. 4.9.2 Certificates Unless directed by the City otherwise, the Consultant shall not commence the Services until the City has received and approved, in writing, certificates of insurance showing that the requirements of this Subsection (in its entirety) have been met and provided for. 4.10 TERMINATION. SUSPENSION AND SANCTIONS 4.10.1 Termination for Cause If the Consultant shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, the City shall thereupon have the right to terminate the Services then remaining to be performed. Prior to exercising its option to terminate for cause, the City shall notify the Consultant of its violation of the particular terms of this Agreement and shall grant Consultant ten (10) days to cure such default. If such default remains uncured after (10) days, the City, upon seven (7) days notice to Consultant, may terminate this Agreement and the City shall be fully discharged from any -5- and all liabilities, duties and terms arising out of/or by virtue of this Agreement. In that event, all finished and unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports and other work products prepared by the Consultant and its subcontractors shall be properly assembled and delivered to the City at the Consultant's sole cost and expense, and the funds paid to Consultant pursuant to Section 3 herein shall, at the City's option and sole discretion, be returned and/or otherwise repaid in their entirety to the City. Notwithstanding the above, the Consultant shall not be relieved of liability to the City for damages sustained by the City by any breach of the Agreement by the Consultant. The City, at its sole option and discretion, shall additionally be entitled to bring any and all legal/equitable actions which it deems to be in its best interest in order to enforce the City's right and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorneys fees. To the extent allowed by law, the defaulting party waives its right to jury trial and its right to bring permissive counter claims against the City in any such action. 4.10.2 Termination for Convenience of City THE CITY MAY, FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE SERVICES THEN REMAINING TO BE PERFORMED AT ANY TIME DURING THE TERM HEREOF BY GIVING WRITTEN NOTICE TO CONSULTANT OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE SEVEN (7) DAYS FOLLOWING RECEIPT OF THE CONSULTANT OF THE WRITTEN TERMINATION NOTICE. IN THAT EVENT, ALL FINISHED OR UNFINISHED DOCUMENTS AND OTHER MATERIALS, AS DESCRIBED IN SECTION 2 AND IN EXHIBIT "A" SHALL BE PROPERLY ASSEMBLED AND DELIVERED TO THE CITY AT CONSULTANT'S SOLE COST AND EXPENSE. IF THE AGREEMENT IS TERMINATED BY THE CITY AS PROVIDED IN THIS SUBSECTION, THE CONSULTANT SHALL RETURN AND/OR OTHERWISE REPAY TO THE CITY THE REMAINING BALANCE OF THE FUNDS PAID TO CONSULTANT BY CITY, AS SET FORTH IN SECTION 3 HEREIN. 4.10.3 Termination for Insolvency The City also reserves the right to terminate the remaining Services to be performed in the event the Consultant is placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors. In such event, the right and obligations for the parties shall be the same as provided for in Section 4.10.2. 4.10.4 Sanctions for Noncompliance with Nondiscrimination Provisions In the event of the Consultant's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such sanctions as the City or the State of Florida may determine to be appropriate, including but not limited to, withholding of payments to the Consultant under the Agreement until the Consultant complies and/or cancellation, -6- termination or suspension of the Services. In the event the City cancels or terminates the Services pursuant to this Subsection the rights and obligations of the parties shall be the same as provided in Section 4.10.2. 4.10.5 Changes and Additions Each such change shall be directed by a written Notice signed by the duly authorized representatives of the Consultant. Said Notices shall provide an equitable adjustment in the time of performance, a reallocation of the task budget and, if applicable, any provision of this Agreement which is affected by said Notice. The City shall not reimburse the Consultant for the cost of preparing Agreement change documents, written Notices to Proceed, or other documentation in this regard. 4.11 AUDIT AND INSPECTIONS At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City and/or such representatives as the City may deem to act on its behalf, to audit, examine and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. Consultant shall maintain any and all records necessary to document compliance with the provisions of this Agreement. 4.12 ACCESS TO RECORDS Consultant agrees to allow access during normal business hours to all financial records to the City and/or such authorized representatives as it may deem to act on its behalf, and agrees to provide such assistance as may be necessary to facilitate financial audit by the City or its representatives when deemed necessary to insure compliance with applicable accounting and financial standards. Consultant shall allow access during normal business hours to all other records, forms, files, and documents which have been generated in performance of this Agreement, to those personnel as may be designated by the City. 4.13 ASSIGNMENT. TRANSFER OR SUBCONTRACTING The Consultant shall not subcontract, assign, or transfer any work under this Agreement without the prior written consent of the City. 4.14 SUB-CONSULTANTS The Consultant shall be liable for the Consultant's services, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of sub- consultants, and any other person or entity acting under the direction or controls of the Consultant. When the term "Consultant" is used in this Agreement, it shall be deemed to include any sub-consultants and any other person or entity acting under the direction or -7- control of Consultant. All sub-consultants must be approved In writing prior to their engagement by Consultant. 4.15 EQUAL EMPLOYMENT OPPORTUNITY In connection with the performance of this Agreement, the Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, or physical handicap. The Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, disability, or sexual orientation. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or termination; recruitment or recruitment advertising; layoff or termination; rates of pay, or other forms of compensation; and selection for training, including apprenticeship. 4.16 CONFLICT OF INTEREST The Consultant agrees to adhere to and be governed by the Metropolitan Dade County Conflict of Interest Ordinance (No. 72-82), as amended; and by the City of Miami Beach Charter and Code, which are incorporated by reference herein as if fully set forth herein, in connection with the Agreement conditions hereunder. The Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the Services. The Consultant further covenants that in the performance of this Agreement, no person having any such interest shall knowingly be employed by the Consultant. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefits arising therefrom. 4.17 PATENT RIGHTS: COPYRIGHTS: CONFIDENTIAL FINDINGS Any patentable result arising out of this Agreement, as well as all information, design specifications, processes, data and findings, shall be made available to the City for public use. No reports, other documents, articles or devices produced in whole or in part under this Agreement shall be the subject of any application for copyright or patent by or on behalf of the Consultant or its employees or subcontractors. 4.18 NOTICES All communications relating to the day-to-day activities shall be exchanged between the Project Manager appointed by Consultant and the Project Coordinator designated by the City. The Consultant's Project Manager and the City's Project Coordinator shall be designated promptly upon commencement of the Services. -8- All other notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Consultant and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO CONSULTANT: Miami Beach Transportation Management Association Attn: Judy Evans, Executive Director Colonial Bank Building 301 41 st Street, 5th Floor Miami Beach, Florida 33140 (305) 535-9160 TO CITY: City of Miami Beach Attn: Harry S. Mavrogenes, Assistant City Manager 1700 Convention Center Drive, DDHPS Miami Beach, FL 33139 (305) 673-7193 WITH COPIES TO: Office of the City Attorney Attn: Murray H. Dubbin, Interim City Attorney City of Miami Beach 1 700 Convention Center Drive Miami Beach, FL 33139 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 4.19 LITIGATION IURISDICTION/VENUE This Agreement shall be enforceable in Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Dade County, Florida. -9- 4.20 ENTIRETY OF AGREEMENT This writing and the Services embody the entire Agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written with reference to the subject matter hereof that are not merged herein and superseded hereby. The Services and the Proposal Documents are hereby incorporated by reference into this Agreement. No alteration, change, or modification of the terms of this Agreement shall be valid unless amended in writing, signed by both parties hereto, and approved by the City Commission of the City of Miami Beach. This Agreement, shall be governed by and construed according to the laws of the State of Florida. 4.21 LIMITATION OF CITY'S LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of $10,000. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $10,000, less the amount of all funds actually paid by the City to Consultant pursuant to this Agreement. Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to the Consultant for damages in an amount in excess of $10,000, which amount shall be reduced by the amount actually paid by the City to Consultant pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida Statutes. -10- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first entered above. FOR CITY: ATT~ By: ,+ City Clerk f~~ FOR CONSULTANT: ATTEST: (b:\ewagrtma. wpd)AJ , FLORI DA By: MIAMI BEACH TRANSPORTATION MANAGEMENT ASSOCIATION Corporate Seal APPROVED I-S TO FORM & lANGUAGE & fOR EXECUTION t5 - /l../-r? Date -11- EXHIBIT "A" SCOPE OF SERVICES for CONTRACT MANAGEMENT AND ADMINISTRATION SERVICES FOR THE ELECTROWA VE PROJECT The Miami Beach Transportation Management Association, Inc. (MBTMA) proposes to provide the City of Miami Beach contract management and administration services in the amount of $145,000.00, effective October 1, 1997 through September 30, 1998, for the electric shuttle service known as the ELECTROWA VE Project, as follows: 1 . Contract administration for all aspects of the Electrowave Project, including authorization and review of any and all expenditures related to operations, marketing, public relations, maintenance, and all other applicable expenditures. 2. Preparing all non-technical provisions for the Electrowave system, including verifying compliance with all Federal, State and local requirements. 3. Coordinating all functions necessary to procure operations, marketing, vehicle maintenance, and public relations. These services include the preparation of contract requirements, requests for proposals and bids (as required by funding agencies), project negotiations and recommendations. 4. Authorizing capital, operating, and marketing expenditures for the Electrowave Program, and submitting reviewed and approved invoices to the City for payment by the Electrowave Budget. 5. Overseeing configuration management functions associated with the Electrowave Project such as: Document Control, Change Requests, Change Control, Procedures Administration, and Project Management Plan Maintenance. Includes responding to requests for E1ectrowave Project records. 6. Preparing all information necessary for the development of Resolutions and the coordination of all information related to the project and service. 7. Custodian of all Electrowave records including coordination with Florida Department of Transportation, Dade County Metropolitan Planning Organization, Clean Cities Coalition, Florida Alliance for Clean Technologies, Florida Department of Energy, and the Florida Department of Environmental Protection. 8. Researching, writing, and submitting grant applications to seek funding on a continual basis for the purpose of supporting operations, marketing, public relations and expansion/improvement of Electrowave services. 9. Preparing and submitting necessary reports to funding agencies as required. 10. Continue marketing the Electrowave system - maintaining, updating, and circulating materials, etc. 11 . Monitoring maintenance activities of each vehicle and submitting reports as required. 12. Monitoring shuttle stop locations for effectiveness and operations efficiency. 13. Monitoring shuttle safety requirements and documentation. 14. Responding to any and all inquiries concerning the service, schedule, route, etc. 15. Responding and dealing with possible ridership complaints. 16. Surveying ridership at the end of initial six-month period of operations for effectiveness of service. And developing a mechanism whereby ridership surveys could be updated, on a needed basis. 17. Justifying and implementing changes to the service as required for efficiency and quality management. 18. Monitoring operations and quality of service on a daily basis. 19. Available for formal presentations concerning the overall shuttle project, its development, and uniqueness. 20. Coordinating and conducting driver training and orientation sessions on a quarterly basis, as needed. EXHIBIT "B" DIVISION OF DUTIES REGARDING ELECTROWA VE PROGRAM-MBTMA AND CITY The main duties of the Miami Beach Transportation Management Association (MBTMA) and the City of Miami Beach regarding the Electrowave Program are the following: o MBTMA will administer all contracts and services related to the Electrowave Program, including all capital, operations, maintenance, marketing and public relations items; will search for additional funding sources, and prepare grant applications to support the continuation of contracts and services. These and further administrative duties are detailed in the Scope of Services attached herein and made part of the proposed Agreement. o MBTMA will have custody over and full use of the Electrowave Project Administration funds which will fund the administrative services to be provided by MBTMA, on behalf of the City, as above described. o MBTMA will open a separate account for the transferred Electrowave funds and establish accounting procedures which are independent from the MBTMA budget. o MBTMA will file an expenditure/progress report with the City, on a monthly basis. This report will constitute an added but separate item to the MBTMA monthly report presently being filed with the City and the FDOT. o MBTMA will authorize expenditures of the Electrowave funds under City custody, and will thoroughly review and approve all invoices received therefrom prior to submitting the invoices (with back-up documentation) to the City for payment. o MBTMA will abide by the procurement, permitting, and regulatory processes of the City of Miami Beach and the State of Florida, as applicable, and as the Electrowave Program's main funding partners. o MBTMA will coordinate efforts with and receive input, as appropriate, from City, State, or County staff regarding physical installations being contemplated for the Electrowave route, park-and-ride facilities, causeways, etc. o CITY will have custody over the remaining Electrowave funds (capital, operating, marketing, contingency) and will perform the needed accounts payable/accounting/ auditing services. o CITY, with MBTMA input, will prepare Electrowave items which require City Commission consideration. o CITY. Above and beyond this Agreement and the Electrowave budget, the City is responsible for providing a temporary vehicle facility and park-and-ride lot for the Electrowave Program.