HomeMy WebLinkAboutR-2008-161 CDM Amendment #2 RESOLUTION NO. 2008-161
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, RELATING TO THE STATE REVOLVING FUND LOAN
PROGRAM; MAKING FINDINGS; APPROVING AMENDMENT NO. 2 TO
CONTINUE TO PROVIDE FOR ENGINEERING SERVICES DURING
CONSTRUCTION RELATED TO THE GROUND STORAGE AND HIGH
SERVICE PUMPS PROJECT WITH CAMP, DRESSER AND MCKEE IN THE
AMOUNT OF $35,011.00; AUTHORIZING THE CITY MANAGER TO
EXECUTE THE WORK ORDER; PROVIDING ASSURANCES; PROVIDING
FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Commission previously adopted Resolution 2002-120 approving
the Water, Wastewater and Stormwater Facilities Plan. The Plan defines future capital
infrastructure needs for the water, sewer and stormwater systems in the City and recommends
improvements to each system based on current deficiencies, anticipated growth demands and
compliance with federal and state environmental mandates; and
WHEREAS, the installation of a new water tank and accompanying high service pumps
was one of the major projects to be constructed in the Plan to address water quality and supply
needs for the future; and
WHEREAS, on February 24, 2006, the City received bids for the Water Tank and High
Service Pumps project and awarded the bid shortly thereafter, along with a work authorization to
Camp, Dresser and McKee for construction services; and
WHEREAS, as a part of the project start-up, the contractor was delayed as a result of
permit issues, and the contractor was granted an extension of time to cover these delays, but
during the time extension Camp, Dresser and McKee performed several value-added tasks at the
request of the CITY which were not part of the original scope of services or Amendment No. 1
and have not been compensated for additional time on the project as a result; and
WHEREAS, the City has requested a second amendment to the original work
authorization from Camp, Dresser and McKee for services during construction;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF DANIA BEACH, FLORIDA,AS FOLLOWS:
Section 1. That the foregoing findings are incorporated by reference and made a part
of this Resolution.
Section 2. That the City Manager is authorized to execute Amendment No. 2 to the
original Work Authorization for construction services in the lump sum of $35,011.00, to be
funded from the State Revolving Loan.
Section 3. That the City Manager is authorized to delegate responsibility to
appropriate City staff to carry out technical, financial, and administrative activities associated
with the work order.
Section 4. That all resolutions or part of Resolutions in conflict with any of the
provisions of this Resolution are repealed.
Section 5. That this Resolution shall become effective retroactive to February 1,
2008.
PASSED AND ADOPTED on September 23, 2008.
LOUISE STILSON, CMC ALBERT C. JONE
CITY CLERK MAYOR-COMMIS NER
APPROVED AS TO FU CORRECTNESS:
C
THOMA'9 J. ATABliCLACITY ATTORNEY
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AGREEMENT
THIS IS AN AGREEMENT (the "Agreement") entered into on September 10, 2008,
between: THE CITY OF DANIA BEACH, FLORIDA, a municipal corporation, (the "City") and
Camp Dresser&McKee 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:
1. Scope of Services. The Consultant agrees to perform consultant services for the
City in accordance with the scope of services described in Exhibit "One", a copy of which is
attached and made a part of this Agreement by this reference. The Parties acknowledge and
agree that services commenced on February 1, 2008 and 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, an agreed upon lump sum amount of Thirty-Five Thousand and Eleven
Dollars ($35,011 (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, 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"One", 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
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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 agrees to indemnify and hold harmless the City for all costs,
losses and expenses including, but not limited to, damages to persons or property including, but
not limited to,judgments and attorneys' fees arising out of the negligent acts, errors or omissions
or the willful misconduct of the Consultant, its agents, servants or employees in the performance
of services under this Agreement. If called upon by the City, the Consultant shall assume and
defend not only itself, but also the City, in connection with any suit or cause of action arising out
of the foregoing, and such defense shall be at no cost or expense whatsoever to the City. This
indemnification does not extend to acts of third parties who or which are wholly unrelated to
Consultant. The covenants and representations relating to this indemnification provision shall
survive the term of this Agreement and continue in full force and effect as to Consultant's
responsibility to indemnify the City.
B. It is specifically understood and agreed that the consideration inuring to
the Consultant for the execution of this Agreement consists of the promises, payments,
covenants, rights and responsibilities contained in this Agreement.
C. The execution of this Agreement by the Consultant shall obligate the
Consultant to comply with the foregoing indemnification provision; however, the collateral
obligation of providing insurance must be also complied with as set forth below.
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
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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.
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 Jonathan Z.
Goldman, one of Consultant's principals, 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 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 (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
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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 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 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.
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
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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 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
100 West Dania Beach Blvd.
Dania Beach, Florida 33004
Consultant: Jonathan Z. Goldman, P.E., BCEE
Camp Dresser&Mckee Inc.
6365 N.W. 6ch Way, Suite 200
Fort Lauderdale, Florida 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 of 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.
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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 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. All agents, employees and subcontractors of the
Consultant retained to perform services pursuant to this Agreement shall comply with all laws of
the United States concerning work eligibility.
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 fimds
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
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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 first above written.
CITY:
CITY OF DANIA BEACH,
a Florida Municipal Corporation
ATTEST:
LOUISE STILSON, CMC
CITY CLERK
IVAN PATO, CITY MANAGER
APPROVED FOR FORM APPROVED AS TO "SCOPE OF
AND CORRECTNESS SERVICES"
THOMAS J. ANSBRO DOMINIC ORLANDO
CITY ATTORNEY DIRECTOR OF PUBLIC SERVICES
9 RESOLUTION#2008-161
CONSULTANT:
CAMP DRESSER&MCKEE INC.
WITNESSES:
Signature Signature
Jonathan Z. Goldman, Associate
Print Name Print Name/Title
Signature
Print Name
STATE OF FLORIDA
COUNTY OF BROWARD
The foregoing instrument was acknowledged before me on
2008, by , as of
a corporation, on behalf of the
corporation. He/she is personally known to me or produced as
identification and did(did not) take an oath.
NOTARY PUBLIC, State of Florida
My commission expires:
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