HomeMy WebLinkAboutExhibitDraft for Review and Comment 08-324
03/31/08
SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
[Town Planning/Urban Design Services]
This Second Amendment ("Second Amendment") is entered
into this day of , 2008, (but effective as of
the day of 2008 the "Effective Date") by
and between The CITY of Miami, a Municipal Corporation of
the State of Florida, (the "CITY") and Duany Plater-Zyberk
& Company, LLC, a Florida limited liability company ("DPZ
LLC"), and hereby incorporates and amends the original
Professional Services Agreement, dated as of March 13,
2003, by and between the CITY and Duany Plater-Zyberk &
Company, Inc., a Florida corporation ("DPZ. Inc.") (the
"Original Agreement")as previously amended by the First
Amendment, dated September 14, 2005, (but effective as of
the llth day of April 2005), by and between the CITY, and
DPZ Inc. and DPZ, LLC (DPZ Inc. and DPZ LLC being
collectively referred to as the "PRINCIPAL"),as follows:
WITNESSETH:
WHEREAS, the CITY previously scheduled a substantial
number of Projects for fiscal years 2002, 2003 and 2004
(the "Projects") that require professional Town
Planning/Urban Design services; and
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WHEREAS, the Commission of the CITY of Miami (the
"City Commission"), by Resolution No.02-19 adopted on
January 10, 2002 (the "Original Resolution"), approved the
selection through a competitive process of four (4) firms
to provide Town Planning/Urban Design services
(collectively, the "Services") for the Projects during the
planning, design and construction phases thereof and
authorized the CITY Manager to negotiate the terms of and
execute professional services agreements, each in an amount
not to exceed $600,000, with said firms for the provision
of the Services; and
WHEREAS, PRINCIPAL is one of the firms selected to
provide Town Planning/Urban Design services and the
PRINCIPAL and the CITY executed the Original Agreement to
set forth the terms and conditions of the engagement for a
first Work Order for the FEC Railway Corridor Study in an
amount not to exceed Two Hundred and Fifty Thousand Dollars
and No Cents ($250,000), with payments made totaling Two
Hundred Twenty Three Thousand Eight Hundred Sixteen Dollars
and No Cents ($223,816.00); and
WHEREAS, it became necessary for the CITY to continue
the previously scheduled Projects that require professional
Town Planning/Urban Design Services into the 2005 fiscal
year with foreseeable needs for such Services for future
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fiscal years, subject to contingencies and budgetary
approvals; and
WHEREAS, pursuant to Resolution 04-0348, adopted May
25, 2004 (the "First Amending Resolution"), the City
Commission amended the Original Resolution regarding the
Projects such that the scope of Services under the Original
Agreement with Principal would be amended to include a
second Work Order for the project entitled "Miami Master
Plan" (hereinafter referred to as "Miami 21") and to
increase the total amount for the Services and expenses for
the second Work Order for Miami 21 in an amount not to
exceed $1.7 million to be incurred by the City from Capital
Improvements Program ,Project No. 311047 entitled
"Efficiency Improvement Studies"
exceed $1.2 available to be used
appropriating an amount not to
Fiscal Year 2005 budget; and
WHEREAS, DPZ Inc. informed the City of its intent to
reconstitute itself as a Florida limited liability company,
by statutory merger, originally to have been effective in
March 2005, and to this end, the owners of DPZ Inc.
organized DPZ LLC but deferred completing the intended
merger until January 2006; and
with
an
in Fiscal
amount
not
to
Year 2004, and
exceed $500,000, in
the
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WHEREAS, DPZ LLC joined in the First Agreement with
DPZ Inc. so as to more fully evidence its obligations as
Principal thereunder upon consummation of the intended
merger; and
WHEREAS, Principal provided notice to the City upon
consummation of the intended merger in the manner
prescribed under Florida law, whereupon the Principal
thereunder became DPZ LLC only, as the surviving entity;
and
WHEREAS, the same persons who owned the stock of DPZ
Inc. also own the membership interests of DPZ LLC, as
confirmed in an Incumbency Certificate and. Minutes of
Resolutions provided to the City by each of DPZ Inc. and
DPZ LLC in connection with the First Amendment; and
WHEREAS, Principal (as a corporation and/or a limited
liability company) is not a governmental entity, and
pursuant to the Original Resolution, the Amending
Resolution, the Original Agreement, the First Amendment,
and any other amendments thereto, Principal has been acting
and continues to act solely as an outside, independent
consultant to the City for such Services; and
WHEREAS, the City has not and cannot delegate to
Principal any governmental authority regarding the
Services, and Principal shall not have control over and
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shall not be responsible for the governmental enactment of
zoning or other legislation or amendment to existing
legislation as may be considered or approved by the City;
and
WHEREAS, additional Town Planning, public meetings and
Urban Design Services are necessary under the second Work
Order to complete the Citywide Miami 21 Master Plan project
which require the authorized amount of the second Work
Order to be increased by an amount not to exceed Five
Hundred and Ten Thousand Dollars ($510, 000) to a new total
second Work Order authorized amount not to exceed Two
Million, Two Hundred and Ten Thousand Dollars ($2,210,000);
and
WHEREAS, pursuant to Resolution 08-
adopted
, 2008 (the "Second Amending Resolution"),
the City Commission amended the Original Agreement and the
First Amendment regarding the second Work Order for the
Miami 21 project such that the Scope of Services under the
second Work Order with Principal would be amended by Five
Hundred and Ten Thousand Dollars ($510,000) to increase the
total amount for the Services and expenses for the second
Work Order for Miami 21 in an amount not to exceed Two
Million, Two Hundred and Ten Thousand Dollars ($2,210,000)
to be incurred by the City from Capital Improvements
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Program Project No. 311047 entitled "Efficiency Improvement
Studies" with funding to be appropriated from General Fund
Account NO. 00001.980000.891000.0000.00000, allocating to
Planning Department Account NO.
310000.351000.531000.0000.00000,with an amount not to
exceed Two Million Two Hundred Ten Thousand
($2,210,000.00), available to be used in Fiscal Year 2008,
and to extend, continue and amend the second Work Order and
the Original Agreement as further amended by the First
Amendment and this Second Amendment through December 31,
2009; and
WHEREAS, the First Amending Resolution and the Second
Amending Resolution authorized the City Manager to execute
amendments to the Original Agreement with Principal to
accomplish the foregoing, and the CITY and the Principal
wish to enter into the terms and conditions of this Second
Amendment as follow:
NOW, THEREFORE, in consideration of the mutual
covenants set forth herein, the CITY and the PRINCIPAL
agree as follows:
TERMS:
1. Recitals and Incorporations. The foregoing recitals
and all statements contained therein are hereby
incorporated into and made a part of this Second Amendment.
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All terms and conditions of the Original Agreement and the
First Amendment are incorporated herein and remain in full
force and effect except as otherwise specifically amended
by this Second Amendment. The Original Agreement, the First
Amendment, and the Second Amendment shall be referred to
collectively hereinafter as "this Agreement". The City's
RFQ, Resolution No. 02-019, Resolution No. 04-0348, and
Resolution No. 08-
and the Original Agreement and
the First Amendment are hereby incorporated into and made a
part of this Agreement and attached hereto as Composite
Attachment A. The amendment to the second Work Order and
the Scope of Services including amended Budget and Schedule
are hereby incorporated into and made -a part of this
Agreement and attached hereto as Amended Composite Exhibit
A. Provider's corporate authorization is hereby
incorporated into and made a part of this Agreement and
attached hereto as Exhibit B. Provider's updated insurance
requirements are incorporated into and made a part of this
Agreement and attached hereto as Exhibit C.
2. Term. The last sentence of Section 2 of the Original
Agreement as amended previously by Section two of the First
Amendment regarding the right to. extend the Term thereof is
hereby amended to read as follows:
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The CITY has the right at any time before the
Expiration Date to extend the term hereof for an
additional period of thrcc (3) ycar3 to end on
December 31, 2009 subject to the approval in writing
of the CITY Manager.
All of the other language, terms and conditions of Section
2 of the Original Agreement and the First Amendment shall
remain the same.
3. Scope of Work. The first sentence of Section 6 of the
Original Agreement as amended by the First Amendment
regarding the Scope of Work, Budget, and Schedule is hereby
amended to read as follows:
Scope of Work consists of complete professional
town planning/urban design services for any or all of
the five (5) Phases described in Sections A through E
below, as such Scope of Work is further amended by the
Composite Amended Exhibit A including amended budget
and amended schedule for the further amended Scope of
Services for the Miami 21 Project.
Section 6 of the Original Agreement shall be further
amended to add a new Phase V and Subsection E as follows:
E. Phase V -Miami 21 Project: Attached hereto as
Composite Amended Exhibit A and incorporated
herein by reference is the further amended Scope
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of Services for the Miami 21 Project, including
the amended budget and amended schedules for such
Project.
All of the other language, terms and conditions of Section
6 of the Original Agreement as previously amended by the
First Amendment shall remain the same.
4. Compensation. The third and fourth sentences of
Section 10 of the Original Agreement as previously amended
by the First Amendment regarding Compensation are hereby
amended to read as follows:
Notwithstanding anything herein to the contrary, the
CITY and the PRINCIPAL agree that the total
compensation on a cumulative basis permitted for all
Work Orders under this Agreement shall not exceed a
guarantccd total authorized maximum of Two Million,
Thfee Hundred Thousand Dollars and No Cents
($2,300,000) Two Million, Four Hundred and Sixty
Thousand Dollars and No Cents ($2,460,000), being the
total sum of the original $ 600,000 $250,000
authorized by the Original Resolution original Work
Order and plus the increase in an amount not to
exceed $1.7 million authorized by the First Amending
Resolution for the second Work Order, plus the
increase in an amount not to exceed $510,000
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authorized by the Second Amending Resolution for the
second Work Order. The sum of Two Million, Thrcc Four
Hundred and Sixty Thousand Dollars and No Cents
( 1 $2,460,000) shall be a guarantccd the
authorized maximum for all work performed under this
Agreement, as amended from time to time. The City
shall not be liable for any cost, fee, reimbursement
expense or other liability beyond the stated
guaranteed maximum amount of Two Million, Thrcc Four
Hundred and Sixty Thousand Dollars and No Cents
($2,300,000 $2,460,000).
The sixth sentence of Section 10 of the Original Agreement
as previously amended by the First Amendment regarding
Compensation is hereby amended to read as follows:
The guarantccd authorized maximum of Two Million,
Three Hundred Thouoand Dollars and No Ccnt3
($2,300,000) Two Million, Four Hundred and Sixty
Thousand Dollars and No Cents ($2,460,000) will be
the upper limit of liability to the CITY for all fees
of the PRINCIPAL, its Sub -consultants, agents, or
representatives, and inclusive of costs, reimbursable
expenses and any other expenditure relating to
Principal's performance of the work.
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All of the other language, terms and conditions of Section
10 of the Original Agreement as previously amended by the
First Amendment shall remain the same.
5. Exercise of Option to Extend Term of Original
Agreement As Previously Amended by the Fist Amendment.
Subject to the Contingency Clause, Extension of Expiration
Date, Termination and Suspension provisions of the Original
Agreement, the CITY hereby exercises its one (1) option to
extend the Term of the .Original Agreement as previously
amended by the Second Amendment so that the original Term
ends on February 3, 2006, the final term begins on February
4, 2006 and the final Term ends on Fcbruary 33 December 31,
2009 as the final Expiration Date of this Agreement. Any
further extension of the Original Agreement beyond Fcbruary
4 December 31, 2009 shall require approval by the City
Commission.
IN WITNESS WHEREOF, the parties hereto have, through
their proper corporate officials, executed this Amendment
to the Original Agreement, the day and year first above
set forth, intending this Agreement to become effective
as of the Effective Date set forth above.
ATTEST/SEAL:
By:
Name:
Title:
Date:
Duany Plater-Zyberk &
Company, LLC a Florida
limited
liability company
By:
Elizabeth Plater-Zyberk
President
Date:
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ATTEST/SEAL:
Priscilla A. Thompson
City Clerk
Date:
APPROVED AS TO CONTENT:
Ana Gelabert-Sanchez, Director
Department of Planning
Date:
CITY OF MIAMI, a municipal
corporation of the State of
Florida
By:
Pedro G. Hernandez
City Manager
Date:
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
Julie 0. Bru
City Attorney
Date:
LeeAnn Brehm
Risk Management Director
Date:
Attachment A - City's RFQ, Authorizing Resolutions,
Original Agreement and First Amendment
Composite Amended Exhibit A - Amended Scope of Services for
Miami 21 Project including Amended Budget and Amended
Schedules
Exhibit B -LLC Resolutions authorizing
Duany Plater-Zyberk & Company, LLC to enter
into Second Amendment and updated
documentation regarding change of status
from corporation to limited liability
company
Exhibit C - Update Insurance Certificates for Duany Plater
& Company, LLC
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ATTACHMENT A
CITY'S RFP, AUTHORIZING RESOLUTIONS,
ORIGINAL AGREEMENT AND FIRST AMENDMENT
To be attached upon document execution
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AMENDED EXHIBIT A
SCOPE OF SERVICES FOR MIAMI 21 PROJECT
INCLUDING
BUDGET AND SCHEDULES
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