95-21791 RESO Incomplete
RESOLUTION NO. 95-21791
A RESOLUTION OF THE MA YOR AND THE CITY
COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, AUTHORIZING THE MAYOR AND THE CITY
CLERK TO EXECUTE A PROFESSIONAL SERVICES
AGREEMENT WITH BURROUGHS AND ROCKHILL,
INCORPORATED FOR ASSESSMENT CENTER
EXAMINATION DEVELOPMENT AND VALIDATION FOR
THE CLASSIFICATIONS OF SERGEANT OF POLICE AND
LIEUTENANT OF POLICE.
Whereas, the current Fraternal Order of Police (FOP) bargaining agreement states that
eligible applicants for the promotional examination for Sergeant and Lieutenant shall be given an
Assessment Center evaluation for the second part of the testing process; and
Whereas, the City issued Request for Proposal (RFP) Number 140-94/95 to solicit proposals
for Assessment Center development and validation for Sergeant of Police and Lieutenant of Police;
and,
\\'hereas, Burroughs and Rockhill, Incorporated, were evaluated as the top-ranked proposer;
and
Whereas, the Administration was granted authorization at the September 27, 1995,
Commission Meeting to negotiate a contract with Burroughs and Rockhill, Incorporated; and
Whereas, the Administration has successfully negotiated a contract with Burroughs and
Rockhill, Incorporated.
NOW, THEREFORE, BE IT nUL Y RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and the City
Commission hereby authorize the Mayor and the City Clerk to execute the attached Agreement
between the City of Miami Beach and Burroughs and Rockhill, Incorporated, in consideration for
an amount not to exceed $124,900 including all out-of-pocket and other expenses incurred by
Burroughs and Rockhill, Incorporated.
PASSED AND ADOPTED this
25th
day of October
, 1995.
Attest:
JGP:TCA:GPLae
By
Date
OF
MIAMI
BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
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COMMISSION MEMORANDUM NO. 7 ~ l..o -9 S
Mayor Seymour Gelber and
Members of the City Commission
DATE:
October 25, 1995
I FROM:
Jose Garcia-Pedrosa
City Manager
SUBJECT:
, REQUEST FOR AUTHORIZA nON TO EXECUTE THE AGREEMENT
WITH BURR GHS AND ROCKHILL, INe. FOR DEVELOPMENT AND VALIDA nON
OF AN ASSESSMENT CENTER FOR SERGEANT AND LIEUTENANT OF POLICE
ADMINISTRA nON RECOMMENDA nON:
It is recommended that the Mayor and the City Commission authorize the Mayor and the City Clerk to execute the
Agreement with the top-ranked proposer, Burroughs and Rockhill, Ine., for Assessment Center examination
development and validation for the classifications of Sergeant of Police and Lieutenant of Police.
CONTRACT AMOUNT AND FUNDING:
$124,900 (Not to exceed) Funds are available from Police Budget Account No. 011.1130.000312
BACKGROUND:
BACKGROUND SINCE SEPTEMBER 27, 1995, COMMISSION MEETING
During the September 27, 1995, Commission meeting, the Mayor and the City Commission authorized the
Administration to negotiate a contract with the top-ranked proposer, Burroughs and Rockhill, Inc., and, if the
Administration was unable to reach closure with Burroughs and Rockhill, authorization was granted to negotiate a
contract with the second ranked proposer, Morris and McDaniel, Inc. After authorization was granted, JeffBernstien
addressed the Commission stating there might be a conflict of interest in that Burroughs and Rockhill, Inc. also provide
tutoring services to applicants preparing to participate in employment and promotional examinations including
assessment center format tests. The Commission requested that the City Attorney look into Mr. Bernstien's concerns.
These issues were discussed by Murray Dubbin, Dean Mielke, and Human Resources staff. The City Attorney's first
concern was whether the successful proposer responded to the Request For Proposals (RFP) and determined that it had.
The City Attorney found no initial contlict of interest, but suggested that further inquiry would be advisable, as to other _
services provided by the successful proposer which could raise a question of propriety.
Mr. Mielke met with Mr. Bernstien to afford him the opportunity to present any further concerns. Burroughs and
Rockhill, Inc., wrote to the City Attorney and were contacted by telephone. It was the position of Burroughs and
Rockhill, Inc., that there was no conflict of interest and represented that:
1. Burroughs and Rockhill, Inc. has never provided any test preparation workshops for any City of Miami
Beach employee
2. Burroughs and Rockhill, Inc. has never conducteG test preparation workshops in any market in which they
design, develop, and/or conduct promotional testing (and will not do so in Miami Beach)
AGENDA ITEM
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DATE
All new material and Assessment Center test exercises will be developed for the City after the Contract is
awarded
3.
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5.
In the opinion of Burroughs and Rockhill, Inc., an individual would not have profited any more or less from
attending one of their test preparation workshops versus having attended a workshop with any other firm
Part of this project is for Burroughs and Rockhill, Inc. to conduct a customized orientation session for all
City of Miami Beach Sergeant and Lieutenant test applicants
Based upon the above investigation, the City Attorney felt that an Agreement for Professional Services could be
negotiated with the top-ranked firm, Burroughs and Rockhill, Inc.
BACKGROUND PRIOR TO SEPTEMBER 27, 1995, COMMISSION MEETING
The Current bargaining agreement by and between the City of Miami Beach and the Fraternal Order of Police (FOP)
contains the following language:
"Section 1 - Advancement to the ranks of Sergeant and Lieutenant shall be by examinations that
measure the knowledge, skills and ability of personnel and by seniority. A promotional test will be
given every eighteen (18) months.
Section 2 - Eligible applicants for the promotional examination for Sergeant and Lieutenant shall be
given a two-part test, consisting of a validated, written examination... and an Assessment Center for
the second part of the testing process."
The City entered into a Professional Services Agreement with Dr. David Santisteban on March 31, 1995, to develop and
validate the written tests for the Sergeant and Lieutenant of Police classifications. However, Dr. Santisteban does not
develop assessment centers and, therefore, the City must contract with another testing firm in order to provide the
assessment centers, as required by the FOP contract.
Twenty specification packages ere mailed for this RFP, which opened on September 12, 1995, resulting in the receipt
of five bids and three "No Bid" responses. All five responses were reviewed by a three (3) member RFP selection
committee from the Testing and Recruitment Section of the Human Resources Department. The committee members
were Adam Gross, Karen Hunter-Jackson (Affirmative Action Officer), and Gail Poe-Liu.
ANALYSIS:
"No Bid" responses were received from:
Darany and Associates
Miami-Dade Community College, North Campus
Stanard & Associates, Inc.
Proposals were received from five firms, all of which met the RFP criteria and were evaluated in the following rank
order:
1. Burroughs and Rockhill, Inc. ($124,900, including 5 days legal preparation - 402 Points)
2. Morris & McDaniel, Inc. ($262,343 - 363 Points)
3. O'Leary Brokaw & Associates, Inc. ($88,080 plus $500/day for individual face-to-face feedback
for candidates: $200/hour to respond to appeals in writing. 326 Points)
4. International Association of Chiefs of Police (IACP) ($130,000 plus cost of individual face-to-face
feedback sessions for candidates - 319 Points)
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5. Management and Personnel Systems, Inc. ($148,000 plus $125/hour for travel;$150/day for
challenges, appeals - 297 Points)
The proposals were evaluated in the areas noted in Attachment A, with Burroughs and Rockhill, Inc. being evaluated
as the number one ranked finn for this project. The areas in which this finn excelled included overall proposal
completeness, responsiveness, quality, clarity and presentation, experience of the firm and of the proposed project team,
comparable scope, Sergeant and Lieutenant of Police experience with job analysis and assessment exercise development
and validation, litigation history and experience, price and completion schedule.
CONCLUSION:
In order to comply with the Federal law and the FOP bargaining Agreement, an Assessment Center must be developed
and validated for the Sergeant of Police and Lieutenant of Police classifications. Through the RFP process, the City
received and evaluated five (5) proposals, with Burroughs and Rockhill, Inc. being the top-ranked finn. It is
recommended that the Mayor and the City Commission authorize the Mayor and the City Clerk to execute the
Agreement with Burroughs and Rockhill, Inc. for development and validation of an Assessment Center examination
for Sergeant of Police and Lieutenant of Police.
JGP:TCA:GPL:ses
Attachment
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CITY OF MIAMI BEACH
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH (CITY)
AND BURROUGHS AND ROCKHILL, INCORPORATED, (CONSULTANT)
FOR ASSESSMENT CENTER DEVELOPMENT AND VALIDATION FOR
SERGEANT OF POLICE AND LIEUTENANT OF POLICE
THIS AGREEMENT, made this 25th day of
October
in the
year of 1995, by and between the CITY OF MIAMI BEACH, a Florida
municipal corporation, hereinafter called the "City", which term
shall include its officials, successors, legal representatives, and
assigns, and BURROUGHS AND ROCKHILL, INCORPORATED, a consulting
firm, hereinafter called the "Consultant" for consultant services
as stated herein.
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Agreement:
City Manager:
Consultant:
Final Acceptance:
Fixed Fee:
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
be
an
independent
to
contractor, and not an agent or employee of
the City.
"Final Acceptance" means notice from the City
to the Consultant that
the Consultant's
Services are complete as provided in Section
4.8 of this Agreement.
Fixed amount paid to the Consultant to allow
for his costs and margin of profit.
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Project
Coordinator:
An individual designated by the City Manager
to coordinate, direct and review on behalf of
the City all technical matters involved in the
Scope of Work.
Risk Manager:
The Risk Manager of the City, wi~h offices at
1700 Convention Center Drive, Third Floor,
Miami Beach, Florida 33139.
Services:
All
services,
work and actions by the
Consultant performed pursuant to or undertaken
under this Agreement described in Section 2.
Termination:
Termination of Consultant Services as provided
in Section 4.9 of this Agreement.
Task:
A discrete portion of the Scope of Services to
be
accomplished
by
the
Consultant,
as
described in Section 2 herein, if directed and
authorized.
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SECTION 2
SCOPE OF WORK AND SERVICES REOUIRED
The Scope of Work for this project to be performed by the
Consultant is set forth in the Request For Proposals No. 140-94/95
which is incorporated herein by reference (Attachment A) .
SECTION 3
COMPENSATION
3.1
LUMP SUM FIXED FEE
Consultant shall be compensated for the Services
performed herein in an amount not to exceed a lump sum fixed fee of
One Hundred Twenty Four Thousand Nine Hundred Dollars ($124,900.00)
for both the Sergeant of Police and Lieutenant of Police
classifications, according to the fee schedule itemized on page 16
of the Consultant's proposal (Attachment B) incorporated herein by
reference.
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3.2
METHOD OF PAYMENT
Monthly Payment
Payment shall be made to the Consultant monthly pursuant
to invoices submitted by the Consultant which detail percentage of
3.2.1
completion of each task.
Invoices shall be accompanied by a
narrative progress report which supports the invoices, and shall
contain a statement that the items set forth therein are true and
correct and in accordance with the Agreement.
Payments of such
invoices shall be made within 30 days of receipt by City.
SECTION 4
GENERAL PROVISIONS
4.1
RESPONSIBILITY OF THE CONSULTANT
wi th respect to the performance of the Services, the
Consultant shall exercise that degree of skill, care, efficiency,
and diligence normally exercised by recognized professionals with
respect to the performance of comparable Services.
In its
performance of the Services, the Consultant shall comply with all
applicable laws, ordinances, and guidelines including but not
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limited to applicable regulations and guidelines of the City,
County, State, Federal Government, ADA, and EEO.
BURROUGHS AND ROCKHILL, INCORPORATED, agrees to adhere to
and be governed by all applicable requirements of the laws listed
below including, but not limited to, those provisions pertaining to
employment, provision of programs and services, transportation,
communications,
access to facilities,
renovations,
and new
construction.
The Americans with Disabilities Act of 1990 (ADA): Pub.
L. 101-336, 104 Stat 327, 42 U.S.C. 12101-12213 and 547 U.S.C.
Sections 225 and 611 including Title I, Employment; Title II,
Public Services; Title III, Public Accommodations and Services
Operated by Private Entities; Title IV, Telecommunications; and
Title V, Miscellaneous Provisions.
The Rehabilitation Act of 1973: 29 U.S.C. Section 794.
The Federal Transit Act, as amended: 49 U.S.C. Section
1612.
The Fair Housing Act as amended: 42 U. S. C. Section
3601-3631.
BURROUGHS AND ROCKHILL, INCORPORATED, must complete and
submit
the
City's
Disability
Non-Discrimination
Affidavit
(Affidavit) .
In the event the Consultant fails to execute the
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city's Affidavit, or is found to be in non-compliance with the
provisions of the Affidavit, the City may impose such sanctions as
it may determine to be appropriate, including but not limited to,
withholding of payments to the Consultant under the Agreement until
compliance and/or cancellation, termination or suspension of the
Agreement in whole or in part. In the event, the City cancels or
terminates the Agreement pursuant to this Section, the Consultant
shall not be relieved of liability to the City for damages
sustained by the' City by virtue of the Consultant's breach of the
Agreement.
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,
(Attachment C).
PROJECT MANAGEMENT
The Consultant shall appoint a qualified individual
acceptable to the City to serve as Project Manager for the Services
4.3
who shall be fully responsible for the day-to-day activities under
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this Agreement and who shall serve as the primary contact for the
City's Project Coordinator.
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
4.4
subsequent to the execution of this Agreement, and Consultant shall
adhere to the completion schedule as stated in the Consultant's
proposal (Attachment B) on page 14.
A reasonable extension of time shall be granted ln 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.
Such extensions of time shall not be a basis for any
claim by the Consultant for additional compensation, unless an
extension is based on a delay caused solely by the City and is in
excess of sixty (60) days.
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4.5
NOTICE TO PROCEED
Unless directed by the City otherwise, the Consultant
shall proceed with the work only upon issuance of a Notice to
Proceed by the City.
4.6
OWNERSHIP OF DOCUMENTS AND EOUIPMENT
All documents, including but not limited to test and test
scoring data or programs stored electronically, prepared by the
Consultant pursuant to this Agreement, are related exclusively to
the Services described herein. They are intended or represented to
be suitable for reuse by the City.
4.7
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, in law or in equity, which may arise or be
alleged to have arisen from the negligent acts or omission or other
wrongful conduct of the consultant, employees, or agents in
connection with the Consultant's performance of Services pursuant
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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 this Agreement is the specific
consideration from the City to the Consultant for the Consultant's
Indemnity Agreement.
The Consultant's obligation under this article 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.
4.8
INSURANCE REOUIREMENTS
The Consultant shall not commence any work pursuant to
this Agreement until all insurance required under this Section has
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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 this project the following insurance:
1.
Consultant
Professional
Liability
in
the
amount
of
$1,000,000.00. For a claims made policy, the Consultant agrees
to carry five (5) years tail coverage after work is completed,
or maintain a comparable policy for five (5) years, provided
that such comparable policy shall include coverage for prior
acts effective from the date of execution of this Agreement.
A certified copy of the Consultant's (and any subconsultants')
Insurance Policy must be filed and approved by the Risk
Manager prior to commencement.
2. Workers Compensation & Employers Liability as required per
Florida statutes.
3. Thirty (30) days written notice of cancellation or substantial
modification in the insurance coverages must be given to the
City by the Consultant and his insurance company.
4. 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.
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S. Original certificates of insurance for the above coverages
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.
6. The Consultant is responsible for obtaining and submitting all
insurance certificates for their consultants.
All insurance policies must be issued by companles 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 Section 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
coverages.
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Endorsements
All of Consultant's certificates, above, shall contain
endorsements providing that written notice shall be given to the
4.8.1
City at least thirty (30) days prior to termination, cancellation
or reduction in coverage in the policy.
4.8.2
Certificates
unless directed by the City otherwise, the Consultant
shall not commence any services pursuant to this Agreement until
the City has received and approved, in writing, certificates of
insurance showing that the requirements of this Section (in its
entirety) have been met and provided for.
4.9
FINAL ACCEPTANCE
When the Consultant's Services have been completed, the
Consultant shall so advise the City in writing. Final Acceptance
shall not constitute a waiver or abandonment of any rights to
remedies available to the City under any other Section of this
Agreement.
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4.10
TERMINATION. SUSPENSION AND SANCTIONS
Termination for Default
If through any cause within the reasonable control of the
Consultant, the Consultant shall fail to fulfill in a timely
4.10.1
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 by giving written notice to the Consultant of such
termination which shall become effective upon receipt by the
Consultant of the written termination notice.
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 delivered to the City and the City
shall compensate the Consultant in accordance with Section 3 for
all Services performed by the Consultant prior to Termination.
Notwithstanding the above, the Consultant shall not be
relieved of liability to the City for damages sustained by the City
by virtue of any breach of the Agreement by the Consultant and the
City may reasonably withhold payments to the Consultant for the
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purposes of set off until such time as the exact amount of damages
due the City from the Consultant is determined.
4.10.2
Termination for Convenience of City
The City may, for its convenience, terminate the Services
then remaining to be performed at any time by giving written notice
to Consultant of such termination, which shall become effective
seven (7) days following receipt by Consultant of the written
termination notice.
In that event, all finished or unfinished
documents and other materials as described in Section 2 shall be
properly delivered to the City. If the Agreement is terminated by
the City as provided in this Section, the City shall compensate the
Consultant in accordance with Section 2 for all Services actually
performed by the Consultant and reasonable direct costs of
Consultant for assembling and delivering to City all documents.
Such payments shall be the total extent of the City's liability to
the Consultant upon a Termination as provided for in this Section.
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
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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 Agreement 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,
termination or
suspension of the Services, in whole or in part. In the event the
City cancels or terminates the Services pursuant to this Section
the rights and obligations of the parties shall be the same as
provided in Section 4.10.2.
Changes and Additions
Each such change shall be directed by a written Notice
signed by the duly authorized representatives of the Consultant.
4.10.5
Said Notices shall provide an equitable adjustment ln the time of
performance, a reallocation of the task budget and, if applicable,
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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
ASSIGNMENT, TRANSFER OR SUBCONTRACTING
The Consultant shall not subcontract, assign, or transfer
his/her rights or obligations under this Agreement without the
written consent of the City. When applicable and upon receipt of
such consent in writing, the Consultant shall cause the names of
the individuals or consulting firms responsible for the major
portions of each separate specialty of the work to be inserted into
the pertinent documents or data. The Consultant shall include in
such subcontracts the appropriate versions of the Sections of this
Agreement as are necessary to carry out the intent of this
Agreement, as instructed by the City.
4.12
EOUAL EMPLOYMENT OPPORTUNITY
In connection with the performance of this Agreement, the
Consultant shall not discriminate against any employee or applicant
for employment because of age, ancestry, citizenship or intending
ci tizenship status, color, disability, gender, marital status,
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national origin, place of birth, race, religion, or sexual
orientation.
The Consultant shall take affirmative action to
ensure that applicants are employed and that employees are treated
during their employment without regard to their age, ancestry,
ci tizenship or intending citizenship status, color, disability,
gender, marital status, national origin, place of birth, race,
religion, or sexual orientation. Such action shall include, but not
be limited to th~ following: employment, upgrading, demotion, or
termination; recruitment or recruitment advertising; layoff or
termination; rates of payor other forms of compensation; and
selection for training, including apprenticeship.
4.13
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
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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.
4.14
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.
4.15
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
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shall be designated promptly upon commencement of the Services.
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:
BURROUGHS AND ROCKHILL, INC.
1757 West Broadway Street, Suite 5
Oviedo, FL 32765
(407) 365-7244
TO CITY: City Manager
City of Miami Beach
City Hall, 4th Floor
1700 Convention Center Drive
Miami Beach, FL 33139
(305) 673-7010
WITH COPIES TO:
Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Notices hereunder shall be effective:
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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.
4.16
LITIGATION JURISDICTION
Any litigation between the parties, arising of, or ln
connection with ,this Agreement, shall be initiated either in the
court system of the State of Florida or the United States District
Court for the Southern District of Florida.
4.17
ENTIRETY OF AGREEMENT
This writing, the Request For Proposals, and Consultant's
Proposal 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 Request For Proposal and the Consultant's Proposal are hereby
incorporated by reference into this Agreement to the extent that
the terms and conditions contained in the Request For Proposal and
the Consultant's Proposal are consistent with the Agreement. To
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the extent that any term in the Request For Proposal or
Consultant's Proposal is inconsistent with this Agreement, this
Agreement shall prevail.
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, regardless of where executed, shall be
governed by and construed according to the laws of the State of
Florida.
4.18
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 the City's liability for any such
breach never exceeds the sum of One Hundred Twenty Four Thousand
Nine Hundred Dollars and nO/100 ($124,900.00).
Consultant hereby
expresses its willingness to enter into this Agreement with
Consul tant 's recovery from the City for any damage action for
breach of contract to be limited to a maximum amount of $124,900.00
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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 $124,900.00 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
Ci ty by this Agreement. Nothing contained in this section 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.
4.19
ARBITRATION
Any controversy or claim for money damages arising out of
or relating to this Agreement, or the breach hereof, shall be
settled by arbitration
in accordance
wi th the
Commercial
Arbitration Rules of the American Arbitration Association, and the
arbitration award shall be final and binding upon the parties
hereto and subject to no appeal, and shall deal with the question
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of the costs of arbitration and all matters related thereto. In
that regard, the parties shall mutually select one arbitrator, but
to the extent the parties cannot agree upon the arbitrator, then
the American Arbitration Association shall appoint one. Judgement
upon the award rendered may be entered into any court having
jurisdiction, or application may be made to such court for an order
of enforcement. Any controversy or claim other than a controversy
or claim for money damages arising out of or relating to this
Agreement, or the breach hereof, including any controversy or claim
relating to the right to specific performance, shall be settled by
litigation and not arbitration.
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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:
CITY OF MIAMI BEACH
By:
By:
ROCKHILL,
ATTEST:
FOR CONSULTANT:
WITNESS:
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Consultant
By:
GPL:ses
FORM APPROVED
Legal Dept.
By ~jIt~/L-.
Date \tl\)'a\C\S"
I:humarovm/contracs/polib&ri
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