HomeMy WebLinkAboutR-2007-036 Kimley-Horn SE 5th Ave-DBB Traffic Light RESOLUTION NO. 2007-036
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, RELATING TO THE APPROVAL OF A WORK
AUTHORIZATION FOR KIMLEY-HORN AND ASSOCIATES, INC., IN THE
AMOUNT NOT TO EXCEED $24,750.00 FOR CONSTRUCTION PHASE
SERVICES FOR INSTALLATION OF MAST ARM TRAFFIC SIGNAL AT
THE INTERSECTION OF DANIA BEACH BOULEVARD AND SE 5TH
AVENUE; AUTHORIZING FUNDS; AUTHORIZING THE PROPER CITY
OFFICIALS TO EXECUTE THE AGREEMENT; DESIGNATING
AUTHORIZED REPRESENTATIVES; PROVIDING FOR CONFLICTS;
FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the attached Work Authorization was requested from Kimley-Horn and
Associates for the construction phase services for installation of mast arm traffic signal at the
intersection of Dania Beach Boulevard and SE 5`h Avenue; and
WHEREAS, the City solicited a proposal from Kimley-Horn and Associates to complete
the construction phase services at a cost not to exceed $24,750.00; and
WHEREAS, the attached Work Authorization is for construction phase services as
outlined in the detailed Scope of Work as attached in Exhibit "A" for services for the mast arm
traffic light;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF DANIA BEACH, FLORIDA:
Section 1. That the foregoing findings are incorporated by this reference.
Section 2. That the City Commission approves a Work Authorization for Kimley-
Horn and Associates to provide construction phase services for installation of mast arm traffic
signal at the intersection of Dania Beach Boulevard and SE 51h Avenue, at a cost not to exceed
$24,750.00.
Section 3. That funding for the contract is from the Capital Projects Fund.
Section 4. That the City Manager shall be authorized to delegate responsibility to
appropriate City staff to carry out technical, financial, and administrative activities associated
with the agreement.
Section 5. That all resolutions or part of Resolutions in conflict with any of the
10 provisions of this Resolution are repealed.
Section 6. That if any Section or portion of a Section of this Resolution proves to be
invalid, unlawful, or unconstitutional, it shall not be held to invalidate or impair the validity,
force or effect of any other Section or part of this Resolution.
Section 7. That this Resolution shall become effective immediately upon its passage
and adoption.
PASSED AND ADOPTED on February 14,2007.
PATRICIA FLURY
MAYOR—COMMISSIONER
AT EST:
LOUISE STILSON, CMC
CITY CLERK
APPROVED AS TO FORM AND CORRECTNESS:
BY: '
N'P
THOM J. XNSBRO
CITY ATTORNEY
2 RESOLUTION#2007-036
AGREEMENT
THIS IS AN AGREEMENT (the "Agreement") entered into on W`�V' 1 "t , 2007,
between: the City of Dania Beach, Florida, a municipal corporation, (the "City") and Kimley-Horn
and Associates, Inc. (the "Consultant").
In consideration of the mutual covenants,terms and conditions contained in this Agreement,
and other good and valuable consideration,the adequacy and receipt of which are acknowledged,the
parties agree as follows:
l. Scope of Services. The Consultant agrees to perform consultant services for the City
in accordance with the scope of services described in Exhibit"A", a copy of which is attached and
made a part of this Agreement by this reference. The Parties acknowledge and agree that services are
to commence onFWU%j o , S6G-7 and that that date is the effective date and commencement
date of the services.
2. Subcontracts. Consultant may subcontract certain items of work. It is expressly
agreed by the parties, however,that the City shall approve in advance in writing any subcontractors
and the fees to be paid them by Consultant prior to any such subcontractor proceeding with any such
work.
3. Payment for Services.
A. City agrees to pay Consultant for services provided by Consultant, as
described in Section 1, a not to exceed amount of Twenty Four Thousand, Seven Hundred Fifty
Dollars (S24,750.00)(the"Fee"). The Fee includes full payment,including all labor,overhead and
other costs. No travel and meal costs are reimbursable unless incurred outside of Miami-Dade,
Broward and Palm Beach Counties,and approved in writing in advance by the City.Any such costs
are payable at the City reimbursement rate.
B. Any necessary additional work, as determined by City, which is not covered
by the scope of services described in the attached Exhibit "A", shall not be undertaken without a
written amendment to this Agreement to that effect, executed in advance by both parties.
C. Consultant shall submit its invoices in the format and with supporting
documentation as may be required by City.
D. City shall pay Consultant monthly for services rendered within thirty (30)
calendar days from date of approval of each of Consultant's invoices by the City Manager. If any
errors or omissions are discovered in any invoice, City will inform Consultant and request revised
copies of all such documents. If any disagreement arises as to payment of any portion of an invoice,
City agrees to pay all undisputed portions and the parties agree to cooperate by promptly conferring
to resolve the disputed portion.
E. Any invoice which is not timely paid as prescribed above will be subject to the
accrual of interest at the statutory rate prescribed by applicable Florida law.
4. Indemnification of City.
A. Consultant shall indemnify and hold harmless City,its officers,employees and
agents (collectively, the "City"),. from liabilities, damages, losses, and costs, including, but not
limited to reasonable attorney fees,to the extent caused by the negligence,recklessness or intentional
wrongful misconduct of Consultant and persons employed or utilized by Consultant in the
performance of this Agreement, including any Subconsultant and Subcontractor.
B. To the extent considered necessary by City any sums due Consultant under
this Agreement may be retained by City until all of City's claims for indemnification pursuant to this
Agreement have been settled or otherwise resolved,and any amount withheld shall not be subject to
payment of interest by City.
C. To the extent this indemnification clause does not comply with Florida law
this provision and all aspects of this Agreement shall be interpreted as the parties' intention for the
indemnification provisions and this Agreement to comply with Florida law applicable to
indemnification.
5. Insurance. Consultant shall provide,pay for and maintain in force at all times during
the term of this Agreement, such insurance, including professional liability insurance, Workers'
compensation insurance and comprehensive general liability insurance as stated below:
A. Professional liability insurance with minimum limits of liability of One
Million Dollars ($1,000,000.00) to assure the City of coverage of the
indemnification specified in this Agreement.
B. Workers' Compensation insurance to apply for all employees in compliance
with the "Workers' Compensation Law" of the State of Florida and all
applicable federal laws, for the benefit of the Consultant's employees.
C. Comprehensive general liability insurance, including contractual, with
minimum limits of One Million Dollars ($1,000,000.00) per occurrence,
combined single limit for bodily injury liability and property damage liability.
The City is to be included as an "additional insured" with respect to any
claims arising out of this Agreement.
D. Automobile Liability with minimum limit of One Million Dollars
($1,000,000.00) combined single limit.
Page 2 of 8
E. If Consultant hires a subcontractor for any portion of any work, then such
subcontractor shall provide general liability insurance with minimum limits
of liability of One Million Dollars ($1,000,000.00).
F. The Consultant shall provide the Risk Manager of the City Certificates of
Insurance for coverages and policies required by this Agreement. All
certificates shall state that the City shall be given thirty (30) days' advance
notice prior to expiration or cancellation of any policy. Such policies and
coverages shall not be affected by any other policy of insurance which the
City may carry in its own name.
6. Assignment of Agreement.
A. It is understood and agreed by both parties that this Agreement,in whole or in
part, cannot be assigned,sublet or transferred by the Consultant without the prior written consent of
City. The City is relying upon the apparent qualifications and expertise of Joliette Woodson, P.E.,
one of Consultant's associates, and such person's familiarity with the City's circumstances and
desires. In the event Consultant wishes to re-assign or replace such individual,the Consultant shall
tender one or more substitutes acceptable to City. In the event the City is not, for any reason or no
reason at all, satisfied with such substitute, Consultant shall be considered in breach of this
Agreement. Violation of the terms of this paragraph shall constitute a breach of Agreement by
Consultant and City may,at its discretion,terminate this Agreement for cause and all rights,title and
interest of Consultant in this Agreement shall then cease and terminate.
B. The Consultant acknowledges, understands and agrees that its performance
under this Agreement is or may be contingent upon the City receiving timely services from other
consultants whose subcontracts must be approved by City as specified in Paragraph 2, above (the
"Supporting Consultants"). The Consultant agrees to use its best efforts to coordinate its services
with the services of the Supporting Consultants and further agrees that in the event the rendition of
any services of any of the Supporting Consultants is delayed, such delay will not entitle the
Consultant to any additional compensation or payment of any kind. Furthermore, the Consultant
shall not be entitled to an increase in compensation,or be entitled to payment of any kind from the
City,for damages or expenses incurred which are direct,indirect or consequential or other costs and
lost profits of any kind including, but not limited to, costs of acceleration, inefficiency or extended
overhead,arising because of any other delay,disruption,interruption,interference or hindrance from
any cause whatsoever,whether such delay,disruption or interference be reasonable or unreasonable,
foreseeable or unforeseeable, or avoidable or unavoidable; provided, however, that this provision
shall not preclude recovery of damages by the Consultant for hindrances or delays caused solely by
fraud,bad faith or active malicious interference on the part of the City. The Consultant shall only be
entitled to extensions of time for performance as the exclusive and sole remedy for delay.
7. Examination of Records. Consultant shall maintain books, records, documents and
other evidence directly pertinent to performance of work under this Agreement in accordance with
generally accepted accounting principles and practices. The Consultant shall also maintain the
financial information and data used by the Consultant in the preparation of support of any claim for
Page 3 of 8
reimbursement for any out-of-pocket expense or cost. The City shall have access to such books,
records, documents and other evidence for inspection, audit and copying during normal business
hours. The Consultant will provide proper facilities for such access and inspection. Audits
conducted under this section shall observe generally accepted auditing standards and established
procedures and guidelines of the City. The Florida Public Records Act, Chapter 119 of the Florida
Statutes,may have application to records or documents pertaining to this Agreement and Consultant
acknowledges that such laws have possible application and agrees to comply with all such laws.
8. Termination.
A. Termination of Agreement for Convenience. It is expressly understood and
agreed that the City may terminate this Agreement at any time for any reason or no reason at all by
giving the Consultant written notice by certified mail, return receipt requested, directed to the
principal office of the Consultant,thirty(30) days in advance of the termination date. In the event
that the Agreement is terminated pursuant to this provision, the Consultant shall be entitled to be
compensated for the services rendered from the effective-date of execution of the Agreement up to
the date of receipt of Notice of termination. Such compensation shall be based on the percentage of
work completed, as fairly and reasonably determined by City after conferring with Consultant.
B. Termination of Agreement for Cause. If City elects to terminate the
Agreement for cause, City will provide Consultant five (5) days' advance written notice. If
Consultant promptly cures the matter giving rise to the cause within that time,this Agreement shall
continue. If not timely cured,the Agreement will stand terminated and the City will pay Consultant
for work completed less any costs, expenses and damages incurred by City as a result of such
termination. If a court of competent jurisdiction determines that the termination was not authorized
under the circumstances then the termination shall be deemed to be a termination for convenience
and the City will not be neittled to any additional costs, expenses and damages as a result of
termination.
9. Ownership of Documents. All correspondence, studies, data,analyses, documents,
instruments, applications, memorandums and the like, including drawings and specifications
prepared or furnished by Consultant (and Consultant's independent professional subcontractors or
subconsultants)pursuant to this Agreement shall become owned by and be the property of the City
and the City shall consequently obtain ownership of them by any statutory common law and other
reserved rights, including copyright; however, such documents are not intended or represented by
Consultant to be suitable for reuse by City on extensions of the work or on any other work or project.
Any such reuse, modification or adaptation of such document without written verification or
permission by Consultant for the specific purpose intended will be at City's sole risk and without
liability or legal exposure to Consultant or to Consultant's independent professional subconsultants.
If City alters any such documents, City will expressly acknowledge same so that no third party will
be in doubt as to the creation or origination of any such document.
10. Notices. Except as provided above,whenever either party desires to give notice to the
other, it must be given by written notice, sent by certified U.S. mail,with return receipt requested,
addressed to the party for whom it is intended, at the place last specified and the place for giving of
Page 4 of 8
notice in compliance with the provisions of this paragraph. For the present,the parties designate the
following as the respective persons and places for giving of notice:
City: Ivan Pato, City Manager
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
With a copy to: Thomas J. Ansbro, City Attorney
City of Dania Beach
100 West Dania Beach Blvd.
Dania Beach, Florida 33004
Consultant: John J. McWilliams, P.E.
Kimley-Horn and Associates, Inc.
5200 NW 33rd Avenue, Suite 109
Ft. Lauderdale, FL 33309
11. Consent to Jurisdiction. The parties agree that the jurisdiction for any legal action
arising out of or pertaining to this Agreement shall be the Circuit Court for the Seventeenth Judicial
Circuit in and for Broward County, Florida,or the federal District Court in the Southern District of
the United States. Each party further agrees that venue for any action to enforce this Agreement shall
be in Broward County, Florida.
12. Governing Law. The parties agree that this Agreement shall be construed in
accordance with and governed by the laws of the State of Florida.
13. Attorneys' Fees and Costs. If City or Consultant incurs any expense in enforcing the
terms of this Agreement, whether suit is brought or not, each party shall bear its own costs and
expenses including, but not limited to, court costs and reasonable attorneys' fees.
14. Headings. Headings in this document are for convenience of reference only and are
not to be considered in any interpretation of this Agreement.
15. Exhibits. Each exhibit referred to in this Agreement forms an essential part of this
Agreement. Each such exhibit is a part of this Agreement and each is incorporated by this reference.
16. Severability. If any provision of this Agreement or the application of it to any person
or situation shall to any extent be held invalid or unenforceable, the remainder of this Agreement,
and the application of such provisions to persons or situations other than those as to which it shall
have been held invalid or unenforceable,shall not be affected, shall continue in full force and effect,
and shall be enforced to the fullest extent permitted by law.
17. All Prior Agreements Superseded. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements and understandings applicable to the
matters contained in this Agreement and the parties agree that there are no commitments,agreements
Page 5 of 8
or understandings concerning the subject matter of this Agreement that are not contained in this
document. Accordingly, it is agreed that no deviation from the terms of this Agreement shall be
predicated upon any prior representations or agreements, whether oral or written.
18. Consultant and its employees and agents shall be and remain independent contractors
and not employees of City with respect to all of the acts and services performed by and under the
terms of this Agreement. This Agreement shall not in any way be construed to create a partnership,
association or any other kind of joint undertaking, enterprise or venture between the parties to this
Agreement.
19. The Consultant understands and agrees that the City, during any fiscal year, is not
authorized to expend money, incur any liability, or enter into any contract which, by its terms,
involves the expenditure of money in excess of the amounts budgeted as available for expenditure
during such fiscal year and that any contract,verbal or written,made in violation of this subsection is
null and void and that consequently, no money may be paid on such contract beyond such limits.
Nothing contained in this Agreement shall prevent the making of contracts for periods exceeding one
(1)year,but any contract so made shall be executory only for the value of the services to be rendered
or agreed to be paid for in succeeding fiscal years. Consultant shall not proceed with services under
this Agreement without City's written verification that the funds necessary for Consultant
compensation and other necessary expenditures are budgeted as available within the appropriate
fiscal year budget.
20. Consultant warrants and represents that no elected official,officer,agent or employee
of the City has a financial interest,directly or indirectly,in this Agreement or the compensation to be
paid under it and, further, that no City employee who acts in the City of Dania Beach as a
"purchasing agent"as defined in Chapter 112,Florida Statutes,nor any elected or appointed officer
of the City of Dania Beach,nor any spouse or child of such purchasing agent,employee or elected or
appointed officer, is a partner, officer, director or proprietor of the Consultant and, further, that no
such City employee,purchasing agent,City elected or appointed officer,or the spouse or child of any
of them, alone or in combination, has a material interest in the Consultant. Material interest means
direct or indirect ownership of more than five percent(5%)of the total assets or capital stock of the
Consultant.
21. Consultant shall comply with all federal, state and City laws applicable to the
Consultant services and specifically those covering Equal Opportunity Employment,the Americans
With Disabilities Act ("ADA") eligibility to perform services as specified in the Florida Public
Entity Crime law and the Florida Building Code. The Consultant is expected to fully comply with all
provisions of all laws and the City reserves the right to verify the Consultant's compliance with
them. Failure to comply with any laws will be grounds for termination of the Agreement for cause.
22. In the event of any conflict between any provisions of this Agreement and any
provision in any attached Exhibit, the parties agree that the provisions of this Agreement are
controlling (including, but not limited to, all terms and provisions governing compensation).
IN WITNESS OF THE FOREGOING,the parties have set their hands and seals the day and
year fist above written.
Page 6 of 8
CITY:
CITY OF DANIA BEACH,
a Florida Municipal Corporation
ATTEST:
LOUISE STILSON, CMC PATRICIA FLURY
CITY CLERK MAYOR-COMMISSION'E
/
r'
IVAN PX O�CITY MANAGER
APPROVED FOR FORM APPROVED AS TO "SCOPE OF
AND CORRECTNESS: SERVICES"
THOM �. ANSBRO OMINIC ORLATqbO, P.E.
CITY ATTORNEY PUBLIC SERVICES DIRECTOR
Page 7 of 8
CONSULTANT:
Signed, sealed and delivered Kimley-Horn Associates, Inc.
in the presence of.
By:
Witn s,
/L
Witness Print Name
PC-)
Title
STATE OF FLORIDA
COUNTY OF BROWARD
The—fore goin instrument was ackno o e me on 2007, by
ss � 1Ja1�6 as � I � , of Kimley-Horn and
Associates, Inc., a Florida corporation, on behalf of the corporation. He (She) is personally known
me or has produced as identification and did (did not) take an
oath.
40TLARY-WBL4C, Mate" of Florida
y o im es: _
SHANDA BUTTON LAYNE
MY COMMISSION 0 DO 496474
r EXPIRES. 614,2010
Rf h 6u M firu NMY Loo urorwars
Page 8 of 8
Kimley-Horn
and Associates, Inc.
EXHIBIT"A"
a
December 4, 2006
Suite 109
5200 N.W.33rd Avenue
Mr. Dominic F. Orlando, RE Ft.Lauderdale,Florida
City of Dania Beach 33309
100 West Dania Beach Boulevard
Dania Beach, FL 33004
Re: Dania Beach Boulevard/SE 51h Avenue Traffic Signal Installation
Construction Phase Services
Dear Mr. Orlando:
Kimley-Horn and Associates, Inc. ("KHA" or "the Consultant") is pleased to
submit this letter agreement (the "Agreement") to the City of Dania Beach ("the
Client") for providing construction phase services to observe the installation of a
traffic signal at the intersection of Dania Beach Boulevard and SE 5`" Avenue.
Our project understanding, scope of services, schedule, and fee are below.
Project Understanding
The implementation of the traffic signalization design, at the above referenced
intersections, is to begin shortly. The Client has requested KHA to prepare a
Scope of Services for providing limited construction phase services to the City of
Dania Beach for this project.
Scope of Services
Task 1 — Construction Phase Services
The Consultant shall provide bidding assistance to the Client for this project. This
work may include assistance in preparation of bid documents, written
specifications, attendance at pre-bid meeting, and the distribution of bid
documents.
The Consultant shall attend a pre-construction meeting and onsite meetings as
needed during the construction of the project. The Consultant, or a designated
representative, shall make visits to the site at intervals appropriate to the various
stages of construction as the Consultant deems necessary in order to observe, as an
experienced and qualified design professional, the progress and quality of the
various aspects of Contractor's work preformed after the effective date of the
agreement. It should be noted that this project is being constructed under a permit
issued by FDOT; however Broward County will be the maintaining agency. We
■
TEL 954 535 5100
FAX 954 739 2247
Kimley-Horn Mr. Dominic F. Orlando,P.1 .,December 4, 2006,Pg. 2
and Associates, Inc.
will coordinate with both these agencies for the duration of the project, so that
they may have a representative present at the site during key work elements
should they elect to attend. We would estimate the project will be substantially
complete in approximately 90 days (12 weeks) beginning at the end of the
procurement process and expect our staff will be devoting an average of
approximately 12 hours per week during a 90 day period to this project for site
observation. Based on information obtained during such visits and on such
observations, the Consultant shall endeavor to determine in general if the
Contractor's work is proceeding in accordance with the Contract Documents and
Consultant shall keep the Client informed of the progress of the work.
During site visits and on the basis of such observations, the Consultant may
recommend to the Client that Contractor's work be disapproved or rejected while
it is in progress. If, on the basis of such observations, the Consultant believes that
such work will not produce a completed project that conforms generally to the
Contract Documents or that is will prejudice the integrity of the design concept of
the Project as reflected in the Contract Documents.
The Consultant shall not have authority to direct or have control over the
Contractor. The Consultant shall not have authority over or responsibility for the
means, methods, techniques, sequence or procedures of construction methods
selected by Contractor, for safety precautions and programs incident to the work
of the Contractor, for any failure of the Contractor to comply with laws, rules,
regulations, ordinances codes or orders applicable to Contractors furnishing or
performing their work. Accordingly, the Consultant can neither guarantee the
performance of the construction contracts by the contractor nor assume
responsibility for Contractor's failure to furnish and perform their work in
accordance with the Contract Documents.
The Consultant shall evaluate and determine the acceptability of substitute
materials and equipment proposed by the Contractor. We will review shop
drawings, samples and other data which the Contractor is required to submit, but
only for conformance with the design concept of the Contract Documents. Such
review shall not extend to means, methods, techniques, sequences or procedures
of construction or to safety precautions and programs incident thereto. We will
forward these shop drawings to FDOT for final approval. The Consultant shall
receive and review all certificates of inspection, and testing results provided by
the Contractor's testing lab and undertaken after the effective date of this
agreement and to determine generally that their content complies with
requirements of, and the results certified indicate compliance with the Contract
Documents.
The Consultant shall report to the Client when clarifications and interpretations of
the Contract Documents are needed and transmit to Contractor clarifications and
interpretations as issued by the Client.
Kimley-Horn Mr. Dominic F. Orlando,P.E.,December 4,2006,Pg. 3
and Associates, Inc.
The Consultant shall have authority, as the Client's representative, to require
special inspection or testing of the work, and shall receive and review all
certificates of inspections, testing and approvals undertaken after the effective
date of this agreement as required by laws, rules, regulation, and ordinance, codes,
orders, or the Contract Documents (but only to determine generally that their
content complies with the requirements of, and the results certified indicate
compliance with, the Contract Documents).
The Consultant will assist in the review of the pay applications if requested by the
Client.
The Consultant shall not be responsible for the acts or omissions of Contractor or
any subcontractor or supplier at the site or otherwise furnishing or performing any
of the Contractor's work. Consultant shall not have the authority or responsibility
to stop the work of any Contractor.
After notice from Contractor that Contractor considers the entire work ready for
its intended use, in company with City and Contractor, the Consultant shall
conduct a site visit to determine if the work is substantially complete. Work will
be considered substantially complete following satisfactory completion of all
items with the exception of those identified on a final punch list. If after
considering any objections of City, the Consultant considers the Work
substantially complete, the Consultant shall notify City and Contractor.
At the conclusion of the project the Consultant shall participate in a final Field
Review in the company of the Client and Contractor to determine if the completed
work of the Contractor is acceptable so that the Consultant can recommend final
payment to the Contractor. The Client shall issue certification letters, as required,
upon completion of the work.
Additional Services
Any services not specifically provided for in the above scope will be considered
additional services and can be performed at our then current hourly rates.
Schedule
We will provide our services as expeditiously as practicable to meet a mutually
agreed upon schedule.
Kimley-Horn Mr. Dominic F. Orlando,P.E., December 4, 2006,Pg. 4
and Associates, Inc.
Fee and Billing
KHA will provide the Scope of Services on a labor fee plus expense basis at our
currently hourly rates with a limiting amount of$24,750.00. KHA will not exceed
this budget without prior authorization from the Client. Direct reimbursable
expenses such as express delivery services, fees, air travel, and other direct
expenses will be billed at 1.15 times cost. An amount will be added to each
invoice to cover certain other expenses such as in-house duplicating, local
mileage, telephone calls, facsimiles, postage, and word processing.
Administrative time related to the project may be billed hourly. Technical use of
computers for design, analysis, GIS, and graphics, etc. will be billed at$25.00 per
hour. All permitting, application, and similar project fees will be paid directly by
the Client.
Fees will be invoiced monthly based on the actual amount of service performed
and expenses incurred. Payment will be due within 25 days of your receipt of the
invoice.
Closure
In addition to the matters set forth herein, our Agreement shall include and be
subject to, and only to, the terms and conditions in the attached Standard
Provisions, which are incorporated by reference. As used in the Standard
Provisions, the term "the Consultant" shall refer to Kinley-Horn and Associates,
Inc., and the term "the Client" shall refer to the City of Dania Beach.
[THIS SPACE LEFT INTENTIONALLY BLANK]
Kimley-Horn
Mr. Dominic F.Orlando,P.E., December 4,2006,Pg. 5
and Associates, Inc.
If you concur in all the foregoing and wish to direct us to proceed with the services,
please have authorized persons execute both copies of this Agreement in the spaces
provided below, retain one copy, and return the other to us. Fees and times stated in
this Agreement are valid for sixty(60) days after the date of this letter.
We appreciate the opportunity to provide these services to you. Please contact me if
you have any questions.
Very truly yours,
K Y- AND ASSOCIATES, INC.
R. Russ e Barnes, III, P.E. 9J7McWilliams, P.E.
Principal Project Manager
Attachment—Standard Provisions
Agreed to this I? day of AWC / 0? b
City if Dania Beach,
A Florida Municipality
Corporation
ATTEST:
LOUISE SLSON, C C TI PATRICIA FI'URYY
CITY CLERK MAYOR
IVAN✓f ATO
CITY MANAGER
APPROVED FOR FORM APPROVED AS TO "SCOPE
AND COR . T SS OF SERVICES"
TH MAIS` . A BRO DOMINIC F. 0
6RLANDO, P.E.
PUBLIC SERVICES DIRECTOR
Official Seal: -
0AMcVADama Beaclffemp SignaKEI\I2 04 06 orlarido Itn DOC
KIMLEY-HORN AND ASSOCIATES, INC.
STANDARD PROVISIONS
(1) Consultant's Scope of Services and Additional Services. The Consultant's undertaking to perform professional
services extends only to the services specifically described in this Agreement. However, if requested by the Client and
agreed to by the Consultant, the Consultant will perform additional services ("Additional Services"), and such Additional
Services shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant
for the performance of any Additional Services an amount based upon the Consultant's then-current hourly rates plus an
amount to cover certain direct expenses including in-house duplicating, local mileage, telephone calls, postage, and word
processing. Other direct expenses will be billed at 1.15 times cost. Technical use of computers for design, analysis, GIS,
and graphics,etc., will be billed at$25.00 per hour.
(2) Client's Responsibilities. In addition to other responsibilities described herein or imposed by law,the Client shall:
(a) Designate in writing a person to act as its representative with respect to this Agreement, such person having complete
authority to transmit instructions,receive information,and make or interpret the Client's decisions.
(b) Provide all information and criteria as to the Client's requirements,objectives,and expectations for the project including
all numerical criteria that are to be met and all standards of development,design,or construction.
(c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data
reasonably necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact
assessments or statements, zoning or other land use regulations,etc., upon all of which the Consultant may rely.
(d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services.
(e) Review all documents or oral reports presented by the Consultant and render in writing decisions pertaining thereto
within a reasonable time so as not to delay the services of the Consultant.
(f) Furnish approvals and permits from governmental authorities having jurisdiction over the project and approvals and
consents from other parties as may be necessary for completion of the Consultant's services.
(g) Cause to be provided such independent accounting, legal, insurance, cost estimating and overall feasibility services as
the Client may require or the Consultant may reasonably request in furtherance of the project development.
(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the
scope and tinning of the Consultant's services or any defect or noncompliance in any aspect of the project.
(i) Bear all costs incident to the responsibilities of the Client.
(3) Period of Services. Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed
copy of this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of
conditions permitting continuous and orderly progress through completion of the services. Times for performance shall be
extended as necessary for delays or suspensions due to circumstances that the Consultant does not control. If such delay or
suspension extends for more than six months (cumulatively),Consultant's compensation shall be renegotiated.
(4) Method of Payment. Compensation shall be paid to the Consultant in accordance with the following provisions:
(a) Invoices will be submitted periodically, via regular mail or email, for services performed and expenses incurred.
Payment of each invoice will be due within 25 days of receipt. The Client shall also pay to the Consultant all transaction
taxes, if any, whether state, local, or federal, levied with respect to amounts paid hereunder, including but not limited to
sales tax. The Consultant shall be compensated in U.S. dollars. Interest will be added to accounts not paid within 25 days
at the maximum rate allowed by law. If the Client fails to make any payment due the Consultant under this or any other
agreement within 30 days after the Consultant's transmittal of its invoice, the Consultant may, after giving notice to the
Client, suspend services under this Agreement until all amounts due are paid in full.
(b) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of
the invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing.
(c) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The Consultant
may negotiate payment of any check tendered by the Client, even if the words "in full satisfaction" or words intended to
have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and
without prejudicing any right of the Consultant to collect additional amounts from the Client.
(5) Use of Documents. All documents, including but not limited to drawings, specifications,reports, and data or programs
stored electronically, prepared by the Consultant are related exclusively to the services described in this Agreement, and
may be used only if the Client has satisfied all of its obligations under this Agreement. They are not intended or represented
to be suitable for use, partial use or reuse by the Client or others on extensions of this project or on any other project. Any
modifications made by the Client to any of the Consultant's documents, or any use, partial use or reuse of the documents
without written authorization or adaptation by the Consultant will be at the Client's sole risk and without liability to the
Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and
rev 08/06 1
a.ia. ✓vaaia aa�.1 ValuaaU_, , �\.L Vlll Vl.l Y,LVVV, 1 }�'. G
expenses, including but not limited to attorneys' fees, resulting therefrom. Any authorization or adaptation will entitle the
Consultant to further compensation at rates to be agreed upon by the Client and the Consultant. Any electronic files not
containing an electronic seal are provided only for the convenience of the Client, and use of them is at the Client's sole risk.
In the case of any defects in the electronic files or any discrepancies between them and the hardcopy of the documents
prepared by the Consultant, the hardcopy shall govern. Only printed copies of documents conveyed by the Consultant may
be relied upon. Because data stored in electronic media format can deteriorate or be modified without the Consultant's
authorization, the Client has 60 days to perform acceptance tests, after which it shall be deemed to have accepted the data.
(6) Opinions of Cost. Because the Consultant does not control the cost of labor, materials, equipment or services
furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as
to costs, including but not limited to opinions as to the costs of construction and materials, shall be made on the basis of its
experience and represent its judgment as an experienced and qualified professional, familiar with the industry. The
Consultant cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinions of cost. If the
Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator. Consultant's
services required to bring costs within any limitation established by the Client will be paid for as Additional Services.
(7) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon
seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms
hereof through no fault of the terminating party, or upon thirty days' written notice for the convenience of the terminating
party. If any material change occurs in the ownership of the Client, the Consultant shall have the right to immediately
terminate this Agreement. In the event of any termination, the Consultant shall be paid for all services rendered and
expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result
of such termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional
amount of the total fee based on the ratio of the amount of the services performed, as reasonably determined by the
Consultant, to the total amount of services which were to have been performed.
(8) Insurance. The Consultant carries Workers' Compensation insurance, professional liability insurance, and general
liability insurance. If the Client directs the Consultant to obtain increased insurance coverage, the Consultant will take out
such additional insurance, if obtainable, at the Client's expense.
(9) Standard of Care. In performing its professional services, the Consultant will use that degree of care and skill
ordinarily exercised, under similar circumstances,by reputable members of its profession in the same locality at the time the
services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its
performance of services,and it is agreed that the Consultant is not a fiduciary with respect to the Client.
(10) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to both the Client and
the Consultant, the risks have been allocated such that the Client agrees, to the fullest extent of the law,and notwithstanding
any other provisions of this Agreement or the existence of applicable insurance coverage, that the total liability, in the
aggregate, of the Consultant and the Consultant's officers, directors, employees, agents, and subconsultants to the Client or
to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever arising out
of, resulting from or in any way related to the services under this Agreement from any cause or causes, including but not
limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express or
implied, of the Consultant or the Consultant's officers, directors, employees, agents, and subconsultants, shall not exceed
twice the total compensation received by the Consultant under this Agreement or $50,000, whichever is greater. Higher
limits of liability may be negotiated for additional fee. Under no circumstances shall the Consultant be liable for lost profits
or consequential damages, for extra costs or other consequences due to changed conditions,or for costs related to the failure
of contractors to perform work in accordance with the plans and specifications. This Section 10 is intended solely to limit
the remedies available to the Client,and nothing in this Section 10 shall require the Client to indemnify the Consultant.
(11) Certifications. The Consultant shall not be required to execute certifications or third-party reliance letters that are
inaccurate, that relate to facts of which the Consultant does not have actual knowledge, or that would cause the Consultant
to violate applicable rules of professional responsibility.
(12) Dispute Resolution. All claims by the Client arising out of this Agreement or its breach shall be submitted first to
mediation in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a
condition precedent to litigation. Any mediation or civil action by Client must be commenced within one year of the accrual
of the cause of action asserted but in no event later than allowed by applicable statutes.
rev 08106 2
�� . LU,iuuw P. viianuo, Uecemeer 4, LUUb, Yg. 3
(13) Hazardous Substances and Conditions.
(a) Services related to determinations involving hazardous substances or conditions, as defined by federal or state law, are
limited to those tasks expressly stated in the scope of services. In any event, Consultant shall not be a custodian,
transporter, handler, arranger, contractor, or remediator with respect to hazardous substances and conditions. Consultant's
services will be limited to professional analysis, recommendations, and reporting, including, when agreed to, plans and
specifications for isolation, removal,or remediation.
(b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated in the scope of services
of which the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected
portions of its services until the hazardous substance or condition is eliminated. The parties shall decide if Consultant is to
proceed with its services and if Consultant is to conduct testing and evaluations, and the parties may enter into further
agreements as to the additional scope, fee, and terms for such services.
(14) Construction Phase Services.
(a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant is not
retained to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for
construction observation, and the Client waives any claims against the Consultant in any way connected thereto.
(b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor's
means, methods, techniques, equipment choice and usage, sequence, schedule,safety programs, or safety practices, nor shall
Consultant have any authority or responsibility to stop or direct the work of any contractor. The Consultant's visits will be
for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed work of its
contractors will generally conform to the construction documents prepared by the Consultant. Consultant neither guarantees
the performance of contractors, nor assumes responsibility for any contractor's failure to perform its work in accordance
with the contract documents.
(c) The Consultant is not responsible for any duties assigned to the design professional in the construction contract that are
not expressly provided for in this Agreement. The Client agrees that each contract with any contractor shall state that the
contractor shall be solely responsible for job site safety and for its means and methods; that the contractor shall indemnify
the Client and the Consultant for all claims and liability arising out of job site accidents; and that the Client and the
Consultant shall be made additional insureds under the contractor's general liability insurance policy.
(15) No Third-Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or benefits to
anyone other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement
will be for the sole benefit of the Client and the Consultant. The Client shall not assign or transfer any rights under or
interest in this Agreement,or any claim arising out of the performance of services by Consultant, without the written consent
of the Consultant. The Consultant reserves the right to augment its staff with subconsultants as it deems appropriate due to
project logistics, schedules, or market conditions. If the Consultant exercises this right, the Consultant will maintain the
agreed-upon billing rates for services identified in the contract, regardless of whether the services are provided by in-house
employees,contract employees,or independent subconsultants.
(16) Confidentiality. The Client consents to the use and dissemination by the Consultant of photographs of the project and
to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If,
however, any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant
shall use reasonable care to maintain the confidentiality of that material.
(17) Miscellaneous Provisions. This Agreement is to be governed by the law of the State of Florida. This Agreement
contains the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneous
negotiations, representations, agreements or understandings, whether written or oral. Except as provided in Section 1, this
Agreement can be supplemented or amended only by a written document executed by both parties. Provided, however, that
any conflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expressly
rejected by the Consultant. Any provision in this Agreement that is unenforceable shall be ineffective to the extent of such
unenforceability without invalidating the remaining provisions. The non-enforcement of any provision by either party shall
not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this
Agreement.
rev 08/06 3