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2001-24328 RESO RESOLUTION NO. 2001-24328 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY AND ZYSCOVICH, INC., PURSUANT TO RFQ NO. 1- 00/01, TO CONDUCT A SITE UTILIZATION ANALYSIS AND TO DEVELOP A CONCEPT PLAN FOR THE 17TH STREET AND WASHINGTON AVENUE SURFACE PARKING LOTS, INCORPORATING THE PROPOSED EXPANSION OF THE NEW WORLD SYMPHONY, FOR FEES NOT TO EXCEED $195,000 (COMPRISING $100,000 IN BASE FEES AND EXPANDED SERVICES NOT TO EXCEED $95,000, SUBJECT TO PRIOR APPROVAL BY THE CITY MANAGER); AND APPROPRIATING SAID FUNDING FROM CITY CENTER TAX INCREMENT FUNDS AND THE PARKING ENTERPRISE FUND. WHEREAS, on February 21, 2001, the Mayor and City Commission authorized the Administration to enter into contract negotiations with Zyscovich, Inc. (Consultant), the top ranked firm selected pursuant to RFQIRFP No. 1-00/01 undertake a site utilization analysis to develop a concept plan for the 17th Street and Washington Avenue surface parking lots (the Project); and WHEREAS, even though a contract is not in place as of yet, the Consultant has begun working on the Project; collecting historical and current data pertaining to the site and the study area; and conducting interviews with key individuals from the Administration, the Miami Beach Convention Center, and the New World Symphony; and WHEREAS, based on this preliminary research and pursuant to prior direction from the Mayor and City Commission, to evaluate the site in the context of its importance to the surrounding core area of the City, the Consultant developed an extremely extensive scope of work encompassing a span of almost eleven months, and an estimated cost in excess of $500,000; and WHEREAS, while the Administration recognizes the need to undertake such a comprehensive analysis of the site, timing issues involving the expansion plans for the New World Symphony and determining the location for the lntermodal Center have resulted in the streamlining ofthe scope into two phases and a revised fee proposal from the Consultant; and WHEREAS, the Consultant's revised estimate to undertake the Phase I scope totaled $195,000, comprised of$145,000 in base contract fees, plus $50,000 in reimbursable expenses; and WHEREAS, in an effort to further reduce the cost of the Project, the Consultant was asked to propose a modified Phase I with a reduced scope of services and a fee structure not to exceed $100,000; and WHEREAS, on April 18, 2001, the City Commission recognized the need for a full scope of services as originally proposed by the Consultant and authorized the Administration to spend up to $195,000 for expanded services at the discretion of the City Manager; and WHEREAS, a description of the proposed scope, delineating specific tasks and estimated timeframes is included in Attachment "A" hereto; and WHEREAS, Phase I will be comprise of a study/utilization analysis and development of a preliminary concept design, addressing alternative use scenarios and recommendations by the Consultant, to be submitted by the end of August, 2001 for presentation to the City Commission in September; and WHEREAS, the draft Agreement included herein, between the City and Zyscovich, Inc., contemplates undertaking the modified Phase I scope, for a fee not to exceed $100,000; and WHEREAS, to further reduce costs associated with the Project, the Agreement allows the City to contract directly for certain services recommended by the Consultant, through the City's rotating list of service providers; and WHEREAS, the second phase, which is contingent upon the City Commission's selection of the preferred development concept and approval to proceed, will involve updating the City Center Master Plan and conducting the necessary pre-development work to prepare for the Project's implementation; and WHEREAS, the first phase ofthe Project will be funded through a combination of Parking Enterprise funds and City Center revenues. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission herein accept the recommendation of the Administration and authorize the Mayor and City Clerk to execute a Professional Services Agreement between the City and Zyscovich, Inc., pursuant to RFQ No. 1-00/01, to develop a concept plan for the 17th Street and Washington Avenue surface parking lots, incorporating the proposed expansion ofthe New World Symphony, for fees not to exceed $195,000 (comprising $100,000 in base fees and expanded services not to exceed $95,000, subject to prior approval by the City Manager); and appropriating said funding from City Center Tax Increment revenues and the Parking Enterprise Fund. /11 ! PASSED AND ADOPTED this 18th day of April. 2001.1P jy;, MAYOR ~p~ CITY CLERK APPROWDAS TO FORM & LANGUAGE a FOR EXECUTION JMG/CMC/rar T:\AGENDA\2001\FEB2101\REGULAR\I7NWS.RES 1if tkk-~- U-r7/ ( Date. CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 www.ci.miami-beach.fl.us To: From: Subject: MEMORANDUM NO. ~S,;2-01 Mayor Neisen O. Kasdin and Date: April 18, 2001 Members of the City Commission Jorge M. Gonzalez \ I ' ~~ City Manager a ~ A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY AND ZYSCOVICH, INC., PURSUANT TO RFQ NO. 1-00/01, TO CONDUCT A SITE UTILIZATION ANALYSIS AND TO DEVELOP A CONCEPT PLAN FOR THE 17TH STREET AND WASHINGTON AVENUE SURFACE PARKING LOTS, INCORPORATING THE PROPOSED EXPANSION OF THE NEW WORLD SYMPHONY; FOR A FEE NOT TO EXCEED $100,000; AND APPROPRIATING SAID FUNDING FROM CITY CENTER TAX INCREMENT FUND AND THE PARKING ENTERPRISE FUND. ADMINISTRATION RECOMMENDATION Adopt the Resolution. ANALYSIS On February 21,2001, the City Commission authorized the Administration to enter into contract negotiations with Zyscovich, Inc., (Consultant), the top ranked firm selected to undertake a site utilization analysis to develop a concept plan for the 17'" Street and Washington Avenue surface parking lots. The Administration has since been meeting with the Consultant on a weekly basis to define the objective and scope of the assignment. Even though a contract is not in place as of yet, the Consultant has begun working on the project, conecting historical and current data pertaining to the site and the study area and conducting interviews with key individuals from the Administration, the Convention Center and the New World Symphony. Agenda Item P.7 j( Date q- /~-O/ Based on the Consultant's preliminary research and pursuant to prior direction from the City Commission, to evaluate the site in the context of its importance to the surrounding core area of the City, the Consultant developed an extremely extensive scope of work encompassing a span of almost eleven months, at an estimated cost in excess of $500,000. Even though there is a need to undertake such a comprehensive analysis ofthe site, timing issues involving the expansion plans of the New World Symphony, determining the location of the Intermodal Center and budgetary concerns, resulted in staff asking the Consultant to streamline the scope into two phases and revising the fee structure accordingly. The Consultant's initial revised estimate to undertake the phase I scope totaled $195,000, ($145,000 in base contract fees plus $50,000 in reimbursable expenses). In a further effort to reduce the cost of the project, the consultant was asked to propose a modified Phase I with a reduced scope of services and a fee structure not to exceed $100,000. The Consultant has subsequently developed a revised scope, focusing primarily on the surface lots and giving less attention to addressing area-wide needs and concerns. It should be noted that the modified Phase I scope will involve less primary research and ancillary studies/tasks as well as less community/public outreach. Assumptions will be based primarily on existing studies/information as well as the Consultant's experience in the area. A description of the proposed project phases is as follows. A schedule delineating specific tasks and estimated timeframes is attached to this memorandum Phase I: Site study/utilization analysis and development of a preliminary concept design: - This phase will result in a site utilization report, preliminary concept plans addressing alternative use scenarios and recommendations by the Consultant, to be submitted by the end of August 2001, for presentation to the City Commission in September. The scope of work in Phase I will include the following: ~ Recommend optimal programming for the site that takes into account the needs of the Convention Center and the and the New World Symphony (NWS). ~ Conduct meetings to obtain input from NWS, the Convention Center, community/stakeholders and the City Administration. ~ Provide a range of options that consider varying and optimal programmed uses, specific to the needs of the NWS and the Convention Center ~ Incorporate the proposed expansion of the New World Symphony into the site and identify optimal site location and configuration, either in the east or west lots ~ Consider existing information and/or studies to evaluate and determine parking requirements for proposed uses of the site. No additional/ancillary studies are contemplated as part of the modified Phase I scope. ~ Develop a conceptual design that complements the adjacent urban relationships and historic district and respects a certain amount of open public (plaza) space. ~ Identify opportunities for gateway entrance features, recognizing these important entryways from this site to the government/convention/civic center area. Phase II: Master Plan development, community consensus building and development of an implementation strategy: -The second phase, which is contingent up the City Commission's selection of the preferred development concept and approval to proceed, will involve updating the City Center Master Plan and conducting the necessary pre-development work to prepare for the project's implementation. To this end, the Consultants will focus more in detail on the steps delineated in Phase I; evaluate potential growth and future urban needs for the City's office market, hospitality, entertainment, arts and cultural industries and any other viable uses and identify potential components that will enhance the economic viability and long term sustainability of the surrounding area. This process will involve additional subsconsultants in fields including, but not limited to, parking, hospitality, traffic/transportation, landscaping and finance. The work performed in Phase II will result in preliminary schematics and drawings, identifying complimentary uses for the site, in order for the City to proceed with identification of funding and preparation of construction drawings to begin implementation of the project. The second phase will also include extensive community/stakeholder outreach and consensus building, with the objective of creating an updated Master Plan for the area as well as an implementation strategy. While the proposed fee structure may seem high, it should be noted that the Consultant will be dedicating extensive resources and manpower to undertake the project, in addition to the two subconsultants identified in its proposal. Furthermore, while most consulting firms will assign project managers to direct a project, Bernard Zyscovich, the firm's founder and lead principal, will spearhead the proj ect. Also, in an effort to reduce costs associated with the project, the Agreement allows the City to contract directly for certain services recommended by the Consultant, through the City's rotating list of service providers. Such services may include appraisals, environmental audits and investigation of underground utilities. The first phase of the project will be funded through a combination of Enterprise Parking funds and City Center TIP revenues. At this time, the New World Symphony is not contributing to the cost of this study and is expending its resources on having the "Soundspace" design consultant's work with the City's consultant, representing the New World Symphony's interests, in Phase I of the study. Fees to undertake the second phase of the project will be negotiated upon conclusion of the first phase assignment and upon the authorization of the City Commission. At that time, the collaborative efforts of the City and the New World Symphony and the respective resources to be dedicated to the second phase will be determined going forward. Since the 17th Street surface lots have been the subject of much discussion relative to increased parking needs, enhanced transportation linkages, urban design issues, historic district considerations, entertainment industry needs, convention center staging uses and other potential development proposals, including the New World Symphony and the Intermodal Center, the Administration recommends approving the proposed Agreement with Zyscovich, Inc., to conduct a site analysis and to develop a concept plan that will address these complex issues in a complex and timely manner, for a fee not to exceed $100,000. Pursuant to the City Commission's direction, the Administration will finalize the Agreement for execution by the Mayor and City Clerk. JMG/C~/K.OB/r~ ~ ...: ~..*c.;-~ ".'J:. ~ ~ 0;;< ~~ 2 _ "" "'.. t.rr.-., ";,'~ ,. _ ~ en .~..~~. ;,..,..' ;ii:,::~ ".':q;;,. --, -_. ~ ~ > p~ u:<::; ~:'.', ~ .." Q ~; V1 0( : ;~~'.,- ~~ (~ 0> ;"'1- -2 ~ ~ . ,. ,~ VI <t .s ~ "'- ~.. 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'r ;!i '. :~ :~ :~ :~ ia c , , , a i$ :S ~..~:~ ~ :~ :~ ~ :~ '~ ' .i ,','i :.'~ ;r :~ : ~ I- !_! ,. :.: \'. :; >:.-'i:.'-!i"'-~'; .a . (. ,'" ~',e'i' I: :~ ~ ill. (Q : a :1'1 :"1 :-:: : '.; .. ---1--;'TF.-:-t-c ' ., , ~ :!~ 1 1 'f:, ' : i tl. I : I 'I [ : q; " I,: i, 1: ,ji i~:l1 ~ :~ ',I:i ii :] DS :0: :c 'Ul ~ :i ' : g ;.S ~ ~~ : 0 :15 ~i i~ j ;i : I ~ :! \~ ~ i~ :i ~ i:~ ! \~ ~i ~ ! !~ , I[ ! I ) i J j ! i : l ~ it !! 11 ~ ~ i i i :~ :~ ,- ~ 1 [I:"; ~:.." .;.:{ :{.:. + ':;::: ~ o ! ~ i ~ i ~ <r.i a: ~ '-Il ,0 I:i '1 ".\ ~if: ~: l'~ i oJ :g, ~ ~ In a.. E ~ I! ~ ~ a; 5 ~ '2_ ::~ ~~ ~~ ~t. L. i.;~ ui - ~ HJI00JSAZ 1ZS17""SSB[ . . . ' AGREEMENT BETWEEN CITY OF MIAMI BEACH AND ZYSCOVICH, INC. FOR PROFESSIONAL SERVICES SERVICES TO CONDUCT A SITE UTILIZATION ANALYSIS AND DEVELOPMENT OF A CONCEPT PLAN FOR THE 17TH STREET SURFACE PARKING LOTS APRIL 2001 '1/1(3/0/ RI}G -' " 17TH Street Surface Parking Lots Site Utilization Analysis ;' TABLE OF CONTENTS DESCRIPTION PAGE ARTICLE 1 DEFINITIONS 2 1.1 City 2 1.2 City Commission 2 1.3 City Manager 2 1.4 Proposal Documents 2 1.5 Consultant 2 1.6 City's Project Coordinator 3 1.7 Basic Services 3 1.8 Project 3 1.8.1 The Project Cost 3 1.8.2 The Project Scope 4 1.9 Force Majeure 4 1.10 Services 4 1.11 Additional Services 5 1.12 Contractor/Contractors 5 1.13 Contract Documents 5 1.14 Contract Amendments 5 1.15 Schedules 6 1.16 Scope of Services 6 ARTICLE 2. BASIC SERVICES 6 2.1 Notice to Proceed 6 2.2 Scope of Services 7 2.5 Additional Services 8 2.6 Responsibility for Claims and Liabilities 8 2.7 Time 8 ARTICLE 3. THE CITY'S RESPONSIBILITIES 13 ARTICLE 4. ADDITIONAL SERVICES 17 ARTICLE 5. REIMBURSABLE EXPENSES 18 ii 17TH Street Surfuce Parking Lots Site Utilization Analysis ARTICLE 6. COMPENSATION FOR SERVICES 19 ARTICLE 7. CONSULTANT'S ACCOUNTING RECORDS 21 ARTICLE 8. OWNERSIDP AND USE OF DOCUMENTS 22 ARTICLE 9. 9.1 9.2 9.3 9.4 9.5 9.6 TERMINATION OF AGREEMENT Termination for Lack of Funds Termination for Cause Termination for Convenience Termination by Consultant Implementation of Termination Non-Solicitation 22 22 22 23 24 24 24 ARTICLE 10. INSURANCE 25 ARTICLE 11. INDEMNIFICATION 26 ARTICLE 12. VENUE 27 ARTICLE 13. LIMITATION OF LIABILITY 27 ARTICLE 14. MISCELLANEOUS PROVISIONS 28 ARTICLE 15. NOTICE 30 SCHEDULES 33 SCHEDULE "A" - SCOPE OF SERVICES SCHEDULE "B" - CONSULTANT COMPENSATION SCHEDULE "c" - HOURLY BILLING RATE SCHEDULE SCHEDULE "D" - PROJECT SCHEDULE iii 17'IH Street Surface Parking Lots Site Utilization Analysis ~ TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ZYSCOVICH, INC. FOR PROFESSIONAL SERVICES This Agreement made and entered into this 18th day of April, 2001, by and between the CITY OF MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida (hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and ZYSCOVICH, INC., 100 North Biscayne Blvd, 27th Floor, Miami, Florida, 33 13 2 (hereinafter referred to as Consultant). WITNESSETH: WHEREAS, the City intends to undertake a project within the City of Miami Beach, which is more particularly described in Schedule "A", attached hereto (the Project), and wishes to engage the Consultant to provide planning, urban design, architectural and/or engineering services for the Project at the agreed fees as set forth in this Agreement; and WHEREAS, the Consultant desires to contract with the City to provide professional services relative to the Project, as hereinafter set forth, including: planning, urban design, architectural and/or engineering services, all as hereinafter stipulated. NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and agreements herein contained, agree as follows: 1 ," 17TH Street Surface Parking Lots Site Utilization Analysis .' ARTICLE 1. DEFINITIONS 1.1 CITY The "City" shall mean the City of Miami Beach, a Florida municipal corporation having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139. 1.2 CITY COMMISSION "City Commission" shall mean the govermng and legislative body of the City. 1.3 CITY MANAGER The "City Manager" shall mean the chief administrative officer of the City. The City Manager shall be construed to include any duly authorized designees, including a Project Coordinator, and shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. 1.4 PROPOSAL DOCUMENTS "Proposal Documents" shall mean the REQUEST FOR QUALIFICATIONS (RFQ) NO. 1-00/01, FOR A SITE UTILIZATION ANALYSIS AND DEVELOPMENT OF A CONCEPT PLAN FOR THE 17TH STREET SURFACE PARKING LOTS, issued by the City in contemplation of this Agreement, together with all amendments thereto, if any, and the Consultant's proposal in response thereto (Proposal), which is incorporated by reference in this Agreement and made a part hereof; provided, however, that in the event of an express conflict between the Proposal and this Agreement, this Agreement shall prevail. 1.5 CONSULTANT The "Consultant" is herein defined as Zyscovich, Inc., 100 North Biscayne Blvd, 2711> Floor, Miami, Florida, 33132. When the term "Consultant" is used in this Agreement it shall be deemed to include any sub-consultants and any other person or entity acting under the direction or control of Consultant. Any subconsultants 2 -" 17TH Street Surface Parking Lots Site Utilization Analysis . retained by Consultant pursuant to this Agreement and the Project shall be subject to prior written approval of the City. The following subconsultants were included in the Consultant's Proposal and are hereby approved for the Project, to the extent that the subconsultants' scopes are approved by the City's Project Coordinator, prior to the commencement oftheir respective services for the project.: Kimley-Hom & Associates 420 Lincoln Road, Suite 353 Miami Beach, Florida 331139 Hanscomb 2500 Maitland Center, Suite 300 Mailtand, Florida 32751 Additional subconsultants may be retained as needed for the Project, subject to the prior written approval of the City. The City also reserves the right to contract directly for certain services through its list of rotating contractors, for services that otherwise would be contracted for by the Consultant in connection with this Project. 1.6 CITY'S PROJECT COORDINATOR The "City's Project Coordinator" shall mean the individual appointed by the City Manager who shall be the City's authorized representative to coordinate, direct, and review on behalf of the City, all matters related to the Project, except as otherwise provided herein. 1.7 BASIC SERVICES "Basic Services" shall include the architectural and/or engineering services, as required, for the planning, design, bidding/award, and construction administration for the Project, as described in Article 2 herein and in Schedule "A" entitled "Scope of Services", attached hereto. 1.8 PROJECT The "Project" shall mean that City Project that has been approved by the City Commission and as described in Schedule "A" attached hereto. 1.8.1 PROJECT COST The "Project Cost", for the Project shall mean the sum which is the total cost or estimated cost to the City of all elements of the 3 -' 17TH Street Surface Parking Lots Site Utilization Analysis f Project designed or specified by the Consultant and approved by the City, including, at current market rates (with a reasonable allowance for overhead and profit), the cost of labor and materials and any equipment which has been designed, specified, selected or specifically provided for by the Consultant and approved by the City, and including a contingency allowance for unforeseen conditions, not to exceed ten percent (10%) of the construction cost for new construction, or twenty (20%) of construction cost for rehabilitation of historic buildings, and not including the compensation of the Consultant and any subconsu1tants, the cost ofland, rights-of-way, surveys, testing, or Reimbursable Expenses. For work not constructed, the Construction Cost shall be the same as the lowest bona fide bid or competitive bid received and accepted from a responsible bidder or proposer for any and all such Work. 1.8.2 PROJECT SCOPE The "Project Scope" or "Scope of Services" shall mean the description of the Project contained in Schedule A attached hereto. 1.9 FORCE MAJEURE "Force Majeure" shall mean any delay occasioned by superior or irresistible force occasioned by violence in nature without the interference of human agency such as hurricanes, tornadoes, floods, loss caused by fire and other similar unavoidable casualties; or by changes in federal, state or local laws, ordinances, codes or regulations, enacted after the date of this Agreement and having a substantial impact on the Project; or other causes beyond the parties' control, or by any other such causes which the Consultant and the City decide in writing justify the delay; provided, however, that market conditions, labor conditions, construction industry price trends and similar matters which normally impact on the bidding process shall not be considered a Force Majeure. 1.10 SERVICES, "Services" shall mean the services to be performed on the Project by the Consultant pursuant to this Agreement, whether completed or partially completed, and includes other labor and materials, equipment and services provided, or to be provided, by Consultant to fulfill its obligations herein. 4 -' 17TH Street Surface Parking Lots Site Utilization Analysis 1.11 ADDITIONAL SERVICES "Additional Services" shall mean those services described in Article 4 herein, which have been duly authorized in writing by the City Manager prior to commencement of same. 1.12 CONTRACTOR/CONTRACTORS "Contractor" or "Contractors shall mean those persons or entities responsible for performing the Work or providing the deliverables, materials, supplies and/or equipment identified in the bid proposal, the Scope of Services and/or the Project Schedule. 1.13 CONTRACT DOCUMENTS "Contract Documents" shall mean this Agreement, and the Consultant Service Order issued hereunder. A Modification is one of the following: (1) a written amendment to the Agreement signed by both parties and/or (2) a written order for a minor change in Services issued by the Consultant. 1.14 CONTRACT AMENDMENTS "Contract Amendment" shall mean the written order to the Consultant approved by the City, as specified in this Agreement, and signed by the City's duly authorized representative, authorizing a change to the Project or the method and manner of performance thereof, or an adjustment in the fees and/or completion dates, as applicable. Contract Amendments shall be approved by the City Commission, if they exceed twenty-five thousand dollars ($25,000.00) or the City Manager if they are twenty-five thousand dollars ($25,000.00) or less in amount (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). Even for Contract Amendments for less than twenty-five thousand dollars ($25,000.00), the City Manager shall retain the right to seek and obtain concurrence of the City Commission for the approval of any such Contract Amendment. 5 " 17TH Street Surface Parking Lots Site Utilization Analysis 1.15 SCHEDULES "Schedules" shall mean the various schedules attached to this Agreement and referred to as follows: Schedule A - Scope of Services. Schedule B - Consultant Compensation: The schedule of compensation to the Consultant for Basic Services, and for Reimbursable Expenditures, as defined, plus any Additional Services, as submitted by the Consultant and approved by the City. Schedule C - Hourly Billing Rate Schedule: The schedule of Hourly Compensation Rates to the Consultant as submitted by the Consultant and approved by the City. Schedule D - Project Schedule. 1.16 SCOPE OF SERVICES "Scope of Services" shall mean the Project Scope as described in Schedule "A", together with the Basic Services and any Additional Services approved by the City as described in Article 2 herein. ARTICLE 2. BASIC SERVICES 2.1 NOTICE TO PROCEED The Consultant shall provide Basic Services for the Project as set forth hereafter. The Services for this Project will be performed by the Consultant upon receipt of an initial written Notice to Proceed issued by the City Manager. Consultant shall countersign the Notice to Proceed. Note that a separate Notice to Proceed is required for commencement of each Phase, as discussed in attached Schedule "A" entitled "Scope of Services". 6 " 17TH Street Surface Parking Lots Site Utilization Analysis 2.2 BASIC SCOPE OF SERVICES The Consultant's Basic Scope of Services shall be divided into phases as follows: Phase I: Site Study and Preliminary Concept Plan Phase II: Community consensus, Master Plan Development and Implementation Plan A detailed scope of work for Phases I and II is set forth in Exhibit "A", "Scope of Services." All work assignments beyond or in addition to Phase I, as defined in Exhibit "A", shall be requested as an Additional Service, in accordance with the provisions set forth in Article 4 of this Agreement. Such additional Project authorizations shall be delineated in future exhibits. 2.3 The Services to be provided by the Consultant and its subconsultants shall conform to all applicable building codes and regulations. Consultant, as it relates to its Services, represents and acknowledges to the City that it is knowledgeable of codes, rules and regulations applicable in the jurisdictions in which the Project is located, including without limitation, local ordinances and codes (City of Miami Beach and Miami-Dade County), Florida Laws, rules and regulations and Federal laws, rules and regulations. The Consultant agrees to comply with all such laws, codes, rules, and regulations now in effect, and as may be amended or adopted at any time during the term of this Agreement, and shall further take into account all known pending changes to the foregoing, of which it should reasonably be aware. The Consultant shall insert the provisions of all required codes into its Contract Documents. 2.4 The Consultant expressly agrees that all of its duties, services and responsibilities under this Agreement shall be performed in accordance with the standard of care normally exercised in the design of projects of this nature in South Florida. In addition, Consultant represents that it is experienced and fully qualified to perform the Services contemplated by this Agreement, and that it is properly licensed pursuant to the applicable laws, rules and regulations to perform such Services. Consultant warrants that it shall be responsible for the technical accuracy of it Contract Documents. 7 " 17TH Street Surface Parking Lots Site Utilization Analysis .' 2.5 ADDITIONAL SERVICES Consultant may provide additional services as provided for in Section 1.11 and Article 4 of this Agreement. 2.6 RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Approval by the City shall not constitute nor. be deemed a release of the responsibility and liability of the Consultant, its employees, subcontractors, agents and consultants for the accuracy and competency of their designs, working drawings, specifications or other documents and services; nor shall such approval be deemed to be an assumption of such responsibility by the City for a defect, error or omission in designs, working drawings, specifications or other documents prepared by the Consultant, its employees, subcontractors, agents and consultants. However, the Consultant shall be entitled to reasonably rely upon the accuracy and validity of decisions and approvals rendered by the City and its employees. 2.7 TIME It is understood that time is of the essence in the completion of this Project, and in this respect the parties agree as follows: 2.7.1 The Consultant shall perform the Services as expeditiously as is consistent with the standard of professional skill and care required by this Agreement and the orderly progress of the Work. 2.7.2 The parties agree that the Consultant's Services during all phases of this Project will be performed in a manner that shall conform with the approved Project Schedule, which is attached to this Agreement as Schedule "D". The Consultant may submit requests for an adjustment to the Project Schedule, made necessary by undue time taken by the City to approve the Consultant's submissions, and/or excessive time taken by the City to approve the Services or parts of the Services. The City shall not unreasonably refuse to approve such adjustment(s) to the Project Schedule if the request is made in a timely manner 8 .' 17TH Street Surface Parking Lots Site Utilization Analysis and is fully justified. 2.7.3 In providing the Services described in this Agreement, the Consultant shall use its best efforts to maintain, on behalf of the City, a constructive, professional, cooperative working relationship with the Project Coordinator, Contractor(s}, and others that have been contracted to perform Services and / or Work pertaining to the Project. While the Services to be provided by Consultant under this Agreement will be provided under the general direction of the City's Project Coordinator, it is the intent of this Agreement to allow the Consultant to coordinate the performance of all aspects of the Scope of Services to the extent such coordination by the Consultant is permitted by the Contract Documents. 2.7.4 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be responsible to the City for any failure in its performance except to the extent that acts, errors or omissions by the City or others make such performance impossible. 2.7.5 Whenever during the term of this Agreement, others are required to verify, review, or consider any work performed by the Consultant, including but not limited to the design professionals, Contractors, and other consultants retained by the City, the intent of such requirement is to enable the Consultant to receive input from others' professional expertise to identify any discrepancies, errors or omissions that are inconsistent with industry standards for design or construction of comparable public projects; or which are inconsistent with applicable laws, codes, ordinances and regulations; or which are inconsistent with standards or decisions to provided in writing by the City's Project Coordinator. Consultant will use reasonable care and skill in accordance with and consistent with customary professional standards in responding to items identified as discrepancies, errors and omissions by others. Consultant shall receive comments 9 ,^ 17TH Street Surface Parking Lots Site Utilization Analysis from reviewers in writing and/or vIa a set of marked-up drawings and specifications. Consultant shall address comments forwarded to it in a timely manner. The term "timely" shall be construed to mean as soon as possible under the circumstances, taking into account the requirements of the Project Schedule. 2.8 City shall have the right at any time, and in its sole and absolute discretion, to submit for review to consulting engineers or consulting architects or other consultants, engaged by the City at its own expense for that purpose, any or all parts of the work performed by the Consultant, and the Consultant shall cooperate fully in such review at the City's request. 2.9 Consultant agrees that, when the Services to be provided hereunder relate to a professional service which, under Florida Statutes, requires a license, certification of authorization, or other form of legal entitlement to practice such services, it shall employ and/or retain only qualified personnel to provide such services. 2.1 0 Consultant agrees to employ and designate in writing, within five (5) calendar days after receiving its initial Notice to Proceed, a qualified licensed professional to serve as the Consultant's project manager (herein after referred to a Project Manager"). The Project Manager shall be authorized and responsible to act on behalf of Consultant with respect to directing, coordinating and administrating all aspects of Services to be provided and performed under this Agreement. The person selected by Consultant to serve as Project Manager shall be subject to approval and acceptance by City. Replacement of said Project Manager shall not be made without the prior written approval of the City. 2.11 Consultant agrees, within fourteen (14) calendar days ofreceipt of written notice to do such from City, to promptly remove and replace Project Manager, or any other personnel employed or retained by Consultant, or any subconsultant or subcontractors engaged by Consultant, which request may be made by City with or without stating its 10 " 17TH Street Surface Parking Lots Site Utilization Analysis cause. 2.12 Consultant herein represents to City that it has expertise in the type of professional services that will be performed and pursuant to this Agreement. Consultant agrees that all services to be provided by Consultant pursuant to this Agreement shall be subject to City's review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with all published laws, statutes, ordinances, codes, rules, regulations and requirements of any governmental agencies having jurisdiction over the Project or the Services to be performed by Consultant hereunder. In the event of any conflicts in these requirements, Consultant shall notifY City of such conflict and utilize its best professional judgement to advise City regarding resolution of each such conflict. 2.13 Consultant agrees not to divulge, furnish or make available to any third person, firm or organization, with City's prior written consent, or unless incident to the proper performance of Consultant's obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non- public information concerning Services to be rendered by Consultant hereunder, and Consultant shall require its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. 2.14 The City and Consultant acknowledge that the Scope of Services does not delineate every detail and minor work task required to be performed by Consultant to complete the Project. If, during the course of the performance of the Services contemplated in this Agreement, Consultant determines that work should be performed to complete the Project which is, in the Consultant's opinion, outside the level of effort originally anticipated, whether or not the Scope of Services identifies the work items, Consultant shall notifY the City's Project Coordinator, in writing, in a timely manner, and obtain said Project Coordinator's written consent, before proceeding with the work. The City's Project Coordinator must comply with Contract Amendment processing 11 17TH Street Surface Parking Lots Site Utilization Analysis requirements as outlined in Article 1.14, prior to issuance of any written authorization to proceed with additional Services to Consultant. If Consultant proceeds with additional Services without notifying and obtaining the consent of the City's Project Coordinator, said work shall be deemed to be within the original level of effort, and deemed included as a Basic Service herein, whether or not specifically addressed in the Scope of Services. Notice to the City's Project Coordinator does not constitute authorization or approval by the City to perform the work. Performance of work by Consultant outside the originally anticipated level of effort without the prior written consent of the City shall be at Consultant's sole risk. 2.15 Consultant shall establish and maintain files of documents, letters, reports, plans, etc. pertinent to the Project. Consultant shall provide City with a copy of applicable Project correspondence for City to file in its filing system. In addition, Consultant shall provide electronic Project documents files to the City, at the completion of the Project. 2.16 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be responsible to the City for any failure in its performance except to the extent that acts or omissions by the City or others make such performance impossible. 2.17 In the event Consultant is unable to timely complete the Project because of delays resulting from untimely review by City or other governmental authorities having jurisdiction over the Project or such delays which are caused by factors outside the control of Consultant, Consultant shall provide City with immediate written notice stating the reason for such delay and a revised anticipated schedule of completion. City, upon review of Consultant's submittal and such other documentation as the City may require, may grant a reasonable extension of time for completion of the Project and may provide reasonable compensation, if appropriate. 12 17TH Street Surface Parking Lots Site Utilization Analysis 2.18 The Consultant covenants with the City to furnish its Services hereunder properly, in accordance with the standards of its profession and in conformance with all construction, building and health codes and other applicable Federal, State and local rules, regulations and laws, of which it should reasonably be aware, throughout the term of this Agreement. The City's participation in the design and construction of any Project in no way relieves the Consultant of its professional duties and responsibilities under applicable law and under the Contract Documents . ARTICLE 3. THE CITY'S RESPONSIBILITIES 3.1 The City shall designate in writing a project coordinator to act as the City's representative with respect to services to be rendered under this Agreement (herein after referred to as Project Coordinator). The Project Coordinator shall have authority to transmit instructions, receive information, interpret and define City policies and decisions with respect to Consultant's Services on this Project. However, the Project Coordinator is not authorized to issue any verbal or written orders or instructions to Consultant that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatsoever, unless approved by the City Manager and/or City Commission in compliance with Article 1.14 requirements; unless approved by the City Manager and/or the City Commission, including but not limited to the following: a} The Scope of Services to be provided and performed by Consultant hereunder; b) The time the Consultant is obligated to commence and complete all such Services; or c) The amount of compensation the City is obligated or committed to pay Consultant. 13 17TH Street Surface PaTking Lots Site Utilization Analysis 3.2 The City shall assist Consultant by placing at ConsultantOs disposal all information City has available pertinent to the Project, including previous reports and any other data relative to design or construction of the Project. It shall be fully understood that City, in making such reports, site information, and documents available to the Consultant is in no way certifying representing and/or warranting as to the accuracy or completeness of such data, including any information provided in the City's Request for Qualifications and backup documentation thereto. Any conclusions or assumptions drawn through examination thereof shall be the sole responsibility of the Consultant and subject to whatever measure it deems necessary to final verification essential to its performance under this Agreement. 3.3 The City has established a Budget for implementation of the Project, as stated in Schedule "A". 3.4 In the City's sole discretion, the City may furnish legal, accounting and insurance counseling services as may be required at any time for the Project, including such auditing services as the City may require to verify the Consultant's applications for payment or to ascertain how or for what purposes the Consultant uses the monies paid by or on behalf of the City. 3.5 If the City observes or otherwise becomes aware of any fault or defect in the Project or non-conformance with the Contract Documents, the City shall give prompt written notice thereofto the Consultant. 3.6 The City shall furnish required information and services and render approvals and decisions in writing as expeditiously as necessary for the orderly progress of the Consultant's Services and of the Work. No approvals required by the City during the various phases of the Project shall be umeasonably delayed or withheld; provided that the City shall at all times have the right to approve or reject any proposed submissions of Consultant for any reasonable basis. 14 17111 Street Surface Parking Lots Site Utilization Analysis 3.7 The City Commission shall be the final authority to do or to approve the following actions or conduct by passage of an enabling resolution or amendment to this Agreement. 3.7.1 The City Commission shall be the body to consider, comment upon, or approve any amendments or modifications to this Agreement, except when noted otherwise (i.e., where delegated to the City Manager or his designee) in this Agreement. 3.7.2 The City Commission shall be the body to consider, comment upon, or approve any assignment, sale, transfer or subletting of this Agreement or any interest therein and any subcontracts made pursuant to this Agreement. Assignment and transfer shall be defined to include sale of the majority of the stock of a corporate Consultant. 3.7.3 All required City Commission approvals and authorizations shall be expressed by passage of an appropriate enabling resolution and, if an amendment, by the execution of an appropriate amendment to this Agreement. 3.7.4 The City Commission shall hear appeals from the administrative decision of the City Manager's appointed designee(s}, upon the Consultant's written request, in which case the Commission's decision shall be final. 3.7.5 The City Commission shall approve or consider all Contract Amendments that exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). 15 17TH Street Surface Parking Lots Site Utilization Analysis 3.8 The City Manager or his designee(s) shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. These authorizations shall include, without limitation: reviewing, approving, or otherwise commenting upon the schedules, plans, reports, estimates, contracts and other documents submitted to the City by the Consultant. 3.8.1 The City Manager shall decide, in his professional discretion, matters arising pursuant to this Agreement which are not otherwise expressly provided for in this Agreement, and shall attempt to render administrative decisions promptly to avoid unreasonable delay in the progress of the Consultant's services. The City Manager, in his administrative discretion, may consult with the City Commission concerning disputes or matters arising under this Agreement regardless of whether such matters or disputes are enumerated herein. 3.8.2 The City Manager shall be authorized, but not required, at the request of the Consultant, to reallocate monies already budgeted toward payment of the Consultant, provided, however, that the Consultant's compensation or other budgets established by this Agreement cannot be increased. 3.8.3 The City Manager, or his designee, shall be the sole representative of the City authorized to issue a Notice to Proceed, as referenced in attached Schedule "A" entitled "Scope of Services". 3.8.4 The City Manager may approve Contract Amendments which do not exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Purchasing Ordinance, as amended) and which do not increase any of the budgets established herein. 16 ... 17TH Street Surface Parking Lots Site Utilization Analysis 3.8.5 The City Manager may, in his sole discretion, form a committee or committees, or inquire of or consult with persons for the purpose of receiving advice and recommendations relating to the exercise of his powers, duties and responsibilities under this Agreement. ARTICLE 4. ADDITIONAL SERVICES 4.1 Additional Services for this Project will only be performed by the Consultant following receipt of a written authorization by the City Manager or his designee prior to commencement of same. Such authorization shall contain a description of the Services required; an hourly fee, as provided in Schedule "c" with an "Not to Exceed" amount on additional Reimbursable Expenses (if any); the amended Project Budget (if applicable); and an amended completion date for the Project (if any). "Not to Exceed" shall mean the maximum cumulative hourly fees allowable, which the Consultant shall not exceed without specific written authorization from the City. The "Not to Exceed" amount is not a guaranteed maximum cost for the services requested by the City and all costs applied to such shall be verifiable through time sheet and reimbursable expense reviews. 4.2 The term "Additional Services" includes services involving the Consultant or any subconsultants whether previously retained for the Services or not, or whether participating as members with Consultant or not, subject to the City's right to previously approve any change in the Consultants as set forth in this Agreement. 4.3 Additional Services may consist of the following: 4.3.1 Serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding unless such preparation has arisen from the failure of the Consultant to meet the Standard of Care set forth in Article 2. 17 17TH Street Surface Parking Lots Site Utilization Analysis 4.3.2 Providing such other professional services to the City relative to the Project which arise from subsequent circumstances and causes (excluding circumstances and causes resulting from error, inadvertence or omission of the Consultant) which do not currently exist or which are not contemplated by the parties at the time of execution of this Agreement. ARTICLE 5. REIMBURSABLE EXPENSES 5.1 Reimbursable Expenses are in addition to the compensation for Basic and Additional Services and include actual expenditures made by the Consultant and the Consultant's employees and consultants in the interest of the Project. All Reimbursable Expenses pursuant to this Article, in excess of $500, must be authorized in advance by the City Manager. Invoices or vouchers for Reimbursable Expenses shall be submitted by the Consultant to the City, along with supporting receipts, and other back-up material reasonably requested by the City, and Consultant shall certifY as to each such invoice that the amounts and items claimed as reimbursable are "true and correct and in accordance with the Agreement" , 5.2 Expenses subject to reimbursement in accordance with the above procedures may include the following: 5.2.1 The cost of testing for certain site conditions, including but not limited to, appraisals, environmental audits and investigation of underground utilities, if authorized in writing by the City's Project Coordinator prior to commencement of same. 5.2.2 Long-distance telephone, courier, postage, the cost of testing or investigation of underground utilities, if authorized by the City's Project Coordinator in writing, and travel related expenses including but not limited to, airfare and/or auto-travel, hotels and meals, provided however, that all travel 18 17TH Street Surtace Parking Lots Site Utilization Analysis related expenses shall be in accordance with the Runzheimer' Index, prior to Consultant incurring same and as authorized in writing by the City's Project Coordinator. 5.2.3 Fees for all necessary pennits shall be paid directly by City. Expense of reproduction, postage and handling of drawings, specifications and other documents, excluding reproductions for the office use of the Consultant and sub-consultants. Courier and postage between the Consultant and its sub-consultants are not reimbursable. 5.2.5 Expenses for reproduction, hourly rates for labor, and the preparation of graphics for connnunity workshops and hearings ARTICLE 6. COMPENSATION FOR SERVICES 6.1 The Consultant shall be compensated for Phase I Basic Scope of Services, identified in Exhibit A, in a lump sum fee of $100,000, which shall include compensation for all labor, overhead, profit and direct expenses of the Consultant in perfonning the Basic Scope of Services. Payments for Basic Services shall be made within thirty (30) calendar days of receipt and approval of an acceptable invoice by the City's Project Coordinator. Note that payments shall be made in proportion to the services performed in each Phase so that the payments for Basic Services for each Phase shall not exceed the progress percentage noted in the Consultant's progress schedule, submitted with each invoice. No markup shall be allowed on subcontracted Basic Services. 6.2 Additional Services authorized pursuant to Article 4 will be compensated using the hourly rates forth in Schedule "C". Request for payment of Additional Services shall be included with the monthly Basic Services payment request noted in Article 6.1 above. All Additional Services must be approved by the City's Project Coordinator prior to 19 17TH Street Surface Parking Lots Site Utilization Analysis commencement of same as noted in Article 4. Under no circumstances shall the "Not to Exceed" amount noted in Schedule "B" be exceeded without prior written approval from the City's Project Coordinator. No markup shall be allowed on subcontracted Additional Services. 6.3 Reimbursable Expenses, as defined in Article 5, shall be paid up to the "Not to Exceed" amount noted in Schedule "B". Request for payment of Reimbursables shall be included with the monthly Basic Services payment request noted in Article 6. Proper backup must be submitted with all reimbursable requests. No markup or administrative charges shall be allowed on Reimbursable Expenses. 6.4 The City and the Consultant agree in accordance with the terms and conditions of this Agreement that: 6.4.1 If the scope of the Project or the Consultant's Services is changed substantially and materially, the amount of compensation may be equitably adjusted by mutual agreement of the parties. 6.4.2 Commencing on October 1, 2001, the Hourly Billing Rate Schedule shown in Exhibit "C" may be adjusted annually based upon the Miami - Fort Lauderdale Consumer Price Index issued by the U.S. Department of Labor, Bureau of Labor Statistics. Such adjustment shall be calculated by multiplying the ratio of the April index divided by the previous year's index by the Hourly Rate Schedule to define the new Hourly Rate Schedule; 6.5 No deduction shall be made from the Consultant's compensation on account of sums withheld from payments to Contractors. 6.6 Method of Bi1linil and Payment With respect to all Services, Consultant shall submit billings on a monthly basis in a timely manner, reflecting the nature of the work 20 17TH Street Surface Parking Lots Site Utilization Analysis performed In the event subconsultant work is accomplished utilizing the lump sum method, the percentage of completion shall be identified. Billings shall also itemize and surmnarize Reimbursables by category. Where written approval of the City is required for Reimbursables, a copy of said approval shall accompany the billing for such Reimbursable. When requested, Consultant shall provide backup for past and current invoices that records hours for all Services by employee category and reimbursable by category. 6.7 The City shall pay Consultant within thirty (30) calendar days from receipt of Consultant"s proper statement. 6.8 Final payment of the Consultant upon Project completion must be approved by the Mayor and City Connnission. ARTICLE 7. CONSULTANT'S ACCOUNTING RECORDS 7.1 Consultant shall keep such records and accounts and require any and all Consultant and subconsultants to keep such records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to the Project, and any expenses for which Consultant expects to be reimbursed. All books and records relative to the Project will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for City's disallowance of any fees or expenses based upon such entries. All books and records which are considered public records shall, pursuant to Chapter 119, Florida Statutes, be kept by Consultant in accordance with such statutes. 21 17TH Street Surface Parking Lots Site Utilization Analysis ARTICLE 8. OWNERSHIP AND USE OF DOCUMENTS 8.1 Electronic files of all documents, including, but not limited to, tracings, drawings, estimates, specifications, investigations and studies completed or partially completed, shall become the property of the City upon completion, termination, or abandonment of the Project. Consultant shall deliver the above documents to the City within thirty (30) days of completion of the Project, or termination of this Agreement, or termination or abandonment of the Project. (Reference attached Schedule "A" entitled "Scope of Services" for additional requirements). 8.2 Any re-use of documents by City without written verification or adaptation by Consultant for the specific purpose intended will be without liability to Consultant. ARTICLE 9. TERMINATION OF AGREEMENT 9.1 TERMINATION FOR LACK OF FUNDS The City is a governmental entity and is subject to the appropriation of funds by its legislative body in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this Agreement. In the event there is a lack of adequate funding for the Project, the Project may be abandoned or terminated, and the City may cancel this Agreement as provided for herein without further liability to the City. 9.2 TERMINATION FOR CAUSE The City may terminate this Agreement for cause in the event that the Consultant (1) violates any provisions of this Agreement; or (2) performs same in bad faith; or (3) umeasonably delays the performance of the Services, upon notice to the Consultant, in writing, seven (7) days prior to termination. 9.2.1 In the event this Agreement is terminated by the City for cause, the City, at its sole option and discretion, may take over the Services and complete them by contracting with another consultant( s) or otherwise. In such event, the Consultant 22 17TH Street Surface Parking Lots Site Utilization Analysis shall be liable to the City for any additional cost incurred by the City due to such termination. "Additional Cost" is defined as the difference between the actual cost of completion of such incomplete Services, and the cost of completion of such Services which would have resulted from payments to the Consultant hereunder had the Agreement not been terminated. 9.2.2 Payment only for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of a Notice of Termination, shall be made in accordance with Article 6 herein and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 7. 9.2.3 Upon receipt of a written Notice of Termination, the Consultant shall promptly assemble and submit to the City, as provided herein or as required in the written notice, all documents, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by such termination. 9.2.4 In the event of a termination for cause, no payments to the Consultant shall be made (I) for Services not satisfactorily performed and (2) for assembly of submittal of documents, as provided above. 9.3 TERMINATION FOR CONVENIENCE The City, in addition to the rights and options to Terminate for Cause, as set forth herein, or any other provisions set forth in this Agreement, retains the right to terminate this Agreement, at its sole option, at any time, for convenience, without cause and without penalty, when in its sole discretion it deems such termination is in the best interest of the City, upon notice to Consultant in writing fourteen (14) days prior to termination. In the event City terminates Consultant's services for its convenience, as provided herein, Consultant shall be compensated for all Services rendered up to the time of receipt of said written termination notice, and for the assembly and submittal to the City of documents for the Services performed, in accordance with Article 6 herein, and the City shall have no further liability for 23 17Tfi Street Surface Parking Lots Site Utilization Analysis compensation, expenses or fees to the Consultant, except as set forth in Article 6. 9.4 TERMINATION BY CONSULTANT The Consultant may only terminate this Agreement for cause in the event that the City willfully violates any provisions of this Agreement or umeasonably delays payment for the Services, upon written notice to the City, thirty (30) days prior to termination. In that event, payment for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of a Notice of Termination shall be made in accordance with Article 6 herein. In the case of termination by Consultant for cause, the City shall be granted a thirty (30) day cure period after receipt of written notice from the Consultant. 9.4.1 The Consultant shall have no right to terminate this Agreement for convenience ofthe Consultant. 9.5 IMPLEMENTATION OF TERMINATION In the event of termination, either for cause or for convenience, the Consultant, upon receipt of the Notice of Termination, shall (l) stop the performance of Services under this Agreement on the date and to the extent specified in the Notice of Termination; (2) place no further orders or subcontracts except for any that may be authorized, in writing, by the City, prior to their occurrence; (3) terminate all orders and subcontracts to the extent that they relate to the performance of the Services terminated by the Notice of Termination; (4) promptly assemble and submit, as provided herein, all documents for the Services performed, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by the termination; and (5) complete performance of any Services as shall not have been terminated by the Notice of Termination, and as specifically set forth therein. 9.6 NON-SOLICITATION The Consultant warrants that it has not employed or retained any company or person, other than an employee working solely for the Consultant, to solicit or secure this Agreement; and that it has not paid, nor agreed to pay 24 17TH Street Surface Parking Lots Site Utilization Analysis any company or other person any fee, commission, gift or other consideration contingent upon the execution of this Agreement. For breach or violation of this warranty, the City has the right to terminate this Agreement without liability to the Consultant for any reason whatsoever. ARTICLE 10. INSURANCE 10.1 The Consultant shall comply throughout the term of this Agreement with the insurance requirements stipulated herein. It is agreed by the parties that the Consultant shall not commence with work on this Project until satisfactory proof of the following insurance coverage has been furnished to the City. The Consultant will maintain in effect the following insurance coverage: (a) Architects and Engineers Professional Liability Insurance in the amount of Two Million ($2,000,000.00) Dollars per occurrence, with a maximum deductible of $150,000 per occurrence, $450,000 aggregate. Consultant shall notify City in writing within thirty (30) days of any claims filed or made against the Professional Liability Insurance Policy. (b) Comprehensive General Liability Insurance III the amount of $1,000,000.00 Single Limit Bodily Injury and Property Damage coverage for each occurrence, which will include products, completed operations, and contractual liability coverage. The City must be named as an additional insured on this policy. (c) Worker's compensation and employer's liability coverage within the statutory limits ofthe State of Florida. 25 17TH Street Surface Parking Lots Site Utilization Analysis 10.2 The Consultant must give thirty (30) days prior written notice of cancellation or of substantial modifications in the insurance coverage, to the City Manager. All liability policies required herein shall name the City as an additional insured. 10.3 The insurance must be furnished by an insurance company rated B+:VI or better, or its equivalent, according to Bests' Guide Rating Book and must additionally be furnished by insurance companies duly authorized to do business in the State of Florida and countersigned by the company's Florida resident agent. 10.4 Consultant shall provide to City a Certificate of Insurance or a copy of all insurance policies required above. City reserves the right to require a certified copy of such policies upon request. All certificates and endorsements required herein shall state that the City shall be given thirty (30) days notice prior to expiration or cancellation of the policy. ARTICI,E 11. INDEMNIFICATION 11.1 In consideration ofa separate and specific consideration of$lO.OO and other good and valuable consideration the receipt of which is hereby acknowledged, the Consultant hereby agrees to indemnify, defend and hold the City and its employees, agents and authorized representatives harmless with respect to any and all costs, claims, damages and liability which may arise out of the performance of this Agreement as a result of any negligent acts, errors or omission of the Consultant, or the Consultant's subconsultants, or any other person or entity under the direction or control of Consultant. The Consultant shall pay all claims and losses arising out of Consultant's negligent acts, errors or omissions and shall defend all suits, in the name of the City, its employees, agents and authorized representatives when applicable, including appellate proceedings, and shall pay all costs, judgments and attorneys' fees which may issue thereon. 26 17TH Street Surface Parking Lots Site Utilization Analysis ARTICI,E 12. VENUE 12.1 This Agreement shall be enforceable in Miami-Dade County, Florida, and iflegal 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 Miami-Dade County, Florida. ARTICLE 13. LIMITATION OF LIABILITY 13.1 The City desires to enter into this Agreement only if in so doing the City can place a limit on City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the amount of the fees for Services agreed upon under the terms of the Agreement, less any amount(s) paid to Consultant thereunder. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the fee for Services agreed upon under the terms of the Agreement, less the amount of all funds actually paid by the City to the Consultant Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to Consultant for damages in an amount in excess of the amount of fee under any this Agreement, which amount shall be reduced by the amount actually paid by the City to Consultant for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Section 768.28, Florida Statutes. 27 17TH Street Surface Parking Lots Site Utilization Analysis ARTICLE 14. MISCELLANEOUS PROVISIONS 14.1 The laws ofthe State of Florida shall govern this Agreement. 14.2 Terms in this Agreement which have not been defined in Article 1 shall have the same meaning as those in AlA Document A20l, General Conditions of the Contract for Construction, current as ofthe date of this Agreement. 14.3 Equal Opportunity Em.vloyment and SDBE Goals: Consultant agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin, disability or sexual orientation and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to sexual orientation, race, color, religion, sex, age, national origin, or disability. This provision shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment advertising, layoff or compensation; and selection for training, including apprenticeships. Consultant agrees to furnish City with a copy of its Affirmative Action Policy. 14.4 Public Entity Crimes Act: In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes), a person or affiliate who is a consultant, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not bids or leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or subconsultant under a contract with the City, and may not transact business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for Category Two for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this 28 17TH Street Surface Parking Lots Site Utilization Analysis Section by Consultant shall result III cancellation and may result in ConsultantOs debarment. 14.5 No Contin~ent Fee: Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm other than a bona fide employee working solely for Consultant any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, City shall have the right to terminate the Agreement without liability at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 14.6 The Consultant represents that it has made and will make reasonable investigation of all subconsultants to be utilized in the performance of work under this Agreement to determine that they possess the skill, knowledge and experience necessary to enable them to perform the services required. Nothing in this Agreement shall relieve the Consultant of its prime and sole responsibility for the performance of the work under this Agreement. 14.7 The Consultant, its consultants, agents and employees and sub contractors, shall comply with all applicable Federal, State and County laws, the Charter, related laws and ordinances of the City of Miami Beach, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies as they relate to this Project. 14.8 This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered by Consultant, under any circumstances, without the prior written consent of City. 29 17TH Street Surface Parking Lots Site Utilization Analysis 14.9 This document incorporates and includes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein; and the parties agree that there are no commitments, agreements or understandings conceming the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. ARTICLE 15. NOTICE 15.1 All written notices given to City by Consultant shall be addressed to: City Manager c/o Assistant City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: Project Coordinator C/o The Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 and 30 17TH Street Surface Parking Lots Site Utilization Analysis Office of the City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 All written notices given to the Consultant from the City shall be addressed to: Zyscovich, Inc., 100 North Biscayne Blvd, 27th Floor Miami, Florida, 33132 All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. 31 17TH Street Surface Parking Lots Site Utilization Analysis IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be signed in their names by their duly authorized officers and principals, attested by their respective witnesses and City Clerk on the day and year first hereinabove written. Attest CITY OF MIAMI BEACH ~~f~~ 1/1! CITY CLERK MAYOR Witness CONSULTANT ~'i. ature ~~ Print Name ~4rU):o, Sr:,VI&-fI' Print Name and Title t--\MLi~ A. (2.{)cANPLL.cr" Witness ~~ g ature 5'TAC Y Print Name t /( /-tJl/ / ~J~ ~fZ.. Print Name and Title APPR(Jl..a6 AI 10 FORM a LANGUAGE .fOR EXECUTION 32 . ~(/J.-C) I ~ 17TH Street Surface Parking Lots Site Utilization Analysis SCHEDULE A PROFFESIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ZYSCOVICH. INC. SCOPE OF SERVICES SITE UTILIZATION ANALYSIS AND DEVELOPMENT OF A CONCEPT PLAN FOR THE 17TH STREET SURFACE PARKING LOTS OBJECTIVE To conduct a site analysis to identify development/programming opportunities for the two (2) City-owned parking lots located on 17th Street between Washington and Pennsylvania Avenues ("17th Street Site"). The City seeks to identify potential opportunities that will co-locate and complement the site's proximity to the cultural/convention/government civic center nucleus of the City, while being neighborhood friendly and enhancing the area's quality of life, and that specifically incorporate the New World Symphony's expansion plan. SCOPE OF SERVICES Phase I: Site Study and Preliminary Concept Prepare Site Analysis that incorporates the following: I. Evaluate current needs that could be accommodated on the site. 2. Recommendations on optimal programming for the site that takes into account surrounding developments, as well as government, convention and civic center needs. 3. Provide a range of options that consider varying and optimal programmed uses. 4. Incorporate the proposed expansion of the New World Symphony into the site and identify optimal site location and configuration, either in the east or west lots. 5. Conduct an preliminary parking analysis to evaluate parking requirements for proposed uses of the site, impact on displaced parking during build-out of site, and provide recommendations for increasing the existing supply and address current deficiencies, as well as the new parking requirements for new-programmed uses. 6. Develop a conceptual design that complements the adjacent urban relationships and historic district and respects a certain amount of open public (plaza) space. 7. Develop preliminary cost estimates. 8. Create and recommend optimal linkage between Espanola Way, Lincoln Road, the 17th Street Site and TOP AlConvention Center, along Washington Avenue, Drexel Avenue and Pennsylvania Avenue and focus on creating an enhanced pedestrian way from the new Espanola Plaza to the Convention Center. 9. Identify opportunities for gateway entrance features, recognizing these important entryways from this site to the government/convention/civic center area, as well as Lincoln Road and Espanola way. 33 17TH Street Surface Parking Lots Site Utilization Analysis 10. Revalidate and update Convention Village Plan, as applicable. Phase II: Community Consensus, Master Plan Development and Implementation Plan 1. Evaluate potential growth and the future urban needs for the City's office market, hospitality, entertainment, arts and cultural industries, or any other viable us.es. Identify potential components that will enhance the economic viability and long term sustainability of the surrounding area. 2. Conduct an analysis of parking that will increase the existing supply and address current deficiencies, as well as the new parking requirements for new-programmed uses. Identify impact on Parking System to satisfy Bond covenants. Develop a conceptual design that complements the adjacent urban relationships and historic district and respects a certain amount of open public (plaza) space. 3. Develop preliminary cost estimates. 4. Create and recommend optimal linkage between Espanola Way, Lincoln Road, the 17th Street Site and TOPNConvention Center, along Washington Avenue, Drexel Avenue and Pennsylvania Avenue and focus on creating an enhanced pedestrian way from the new Espanola Plaza to the Convention Center. 5. Identify opportunities for gateway entrance features, recognizing these important entryways from this site to the government/convention/civic center area, as well as Lincoln Road and Espanola way. 6. Revalidate and update Convention Village Plan, as applicable. 7. Conduct community/stakeholder consensus-building meetings and discussions. 8. Develop an implementation plan/strategy. 34 17TI1 Street Surface Parking Lots Site Utilization Analysis SCHEDULE B PROFFESIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ZVSCOVICH. INe. CONSULTANT COMPENSATION Fee Schedule: Basic Services as described in Article 2: $100,000 Additional Services and allowance for Reimbursable Expenditures: $ 95,000 Total Phase I Fees - Up to: $195,000 Additional Services, as described in Section 2.5, will be billed in accordance with the hourly rates in Schedule "C". Any Additional Services shall be approved in advance by written authorization from the City Manager and/or contracted for directly by the City as provided for in Section 1.5 of the Agreement. Reimbursable Expenditures shall be incurred in accordance with Article 5 of the Agreement. 35 17TH Street Surface Parking Lots Site Utilization Analysis SCHEDULE C PROFFESIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ZYSCOVICH. INC. HOURLY BILLING RATE SCHEDULE EMPLOYEE I HOURLY RATE I PRINCIPAL $230 PROJECT MANAGER $230 PLANNER $125 CADD OPERATOR $65 36 17TH Street Surface Parking Lots Site Utilization Analysis SCHEDULE D PROFFESIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ZYSCOVICH. INe. 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