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11South Miami To: The Honorable Mayor & Members of the City ommission Via: Hector Mirabile; Ph.D, City Manager 1 4 From: Alfredo Riverol, Finance Director Date: September 15, 2010 Agenda Item No.:� A Resolution of the Mayor and City Commission of the City of South Miami, Florida relating to the budget; authorizing a transfer of $4,980 Subject: from account No.001- 1320 -513 -4110, Communications and Freight Postage, settlements to account No.001- 1310 -513 -3450, City Managers Contractual Services; providing an effective date. Background: It is essential to provide sufficient funds for City Managers Contractual Services account to perform a preliminary energy improvements feasibility study Transfer Amount: $4,980 Transfer From: 001 - 1320 - 513 -41 10 Communications and Freight Postage; with a current balance of $8,129.26 Transfer To: 00 1 - 13 10-513-3450 City Managers Contractual Services; with a current balance of - $3,000 1 RESOLUTION NO. 2 A Resolution of the Mayor and City Commission of the City of South 3 Miami, Florida relating to the budget; authorizing a transfer of $4,980 4 from account No.001- 1320 -513 -4110, Communications and Freight 5 Postage, settlements to account No.001- 1310 -513 -3450, City Managers 6 Contractual Services; providing an effective date. 7 8 WHEREAS, it is requested that the budget for City Managers Contractual 9 Services be increased by $4,980 from account No.001- 1320 -513 -4110; and, 10 WHEREAS, it is essential to provide sufficient funds for City Managers 11 Contractual Services account to perform a preliminary energy improvements feasibility 12 study; and, 13 WHEREAS, the Mayor and City Commission desire to transfer sufficient funds 14 from account No.001- 1320 -513 -4110 Communications and freight postage, with a 15 current balance of $8,129.26, Settlements to account No.001- 1310 -513 -3450, City 16 Managers Contractual Services, with a current balance of - $3000. 17 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY 18 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA; 19 Section I. The Mayor and City Commission approve the transfer of $4,980 from 20 account No.001- 1320 -513 -4110, Settlements to account No.001- 1310 -513 -3450, City 21 Managers Contractual Services. 22 Section 2. This resolution shall take effect immediately upon approval. 23 24 25 26 27 28 29 30 31 32 33 34 35 PASSED AND ADOPTED this ATTEST: CITY CLERK READ AND APPROVED AS TO FORM: CITY ATTORNEY day of , 2010 APPROVED: MAYOR COMMISSION VOTE: Mayor Stoddard: Vice Mayor Newman: Commissioner Beasley: Commissioner Palmer: Commissioner Harris: 2 e consulting engineers August 16, 2010 City of South Miami Green Task Force 6130 Sunset Drive South Miami, FL 33143 Attn: Ms. Gray Read RE: City of South Miami Preliminary Energy Improvements Feasibility Study Dear Ms. Read: We are pleased to provide you with a proposal for engineering services, to include a preliminary feasibility study for Energy Efficiency Improvements at the below -named areas of the City of South Miami. We are looking forward to assisting the City of South Miami's Green Task Force in its endeavors and welcome the opportunity to review this proposal with you and answer any questions you may have. The scope of services is as follows: Preliminary Energy Improvements Feasibility Study for the existing City Hall and historic Planning Department buildings to include: • Analysis of existing lighting, air conditioning, and building envelope systems. • Feasibility study to determine potential areas of improvement • Preliminary cost - benefit analysis to determine effective improvement methods • Recommendations to include alteration of existing systems, in the most cost - effective manner possible, to achieve maximum energy savings • Calculation of projected energy savings from implementation of our recommendations. We propose to provide you with our engineering services, to include the above - mentioned scope of work for a fee in the amount of $4,980.00. Once approved we expect the work to be completed no more than 10 business days from the start date, provided there are no interruptions in our schedule for reasons beyond our control. The above - mentioned fee and work schedule are based on receipt of as -built drawings, provided by the City of South Miami, for the spaces included in the scope of work. Said as- built drawings may be provided in electronic (PDF) format in order to limit reproduction costs and environmental impact. 305 665 1700 /( telephone 305 665 1703 fi facsimile // www.m2econsulting.com - - 5815 SW 68th Street // Miami, Florida 33143 Ms. Gray Read August 13, 2010 Page 2 of 3' This Retainer Agreement and the accompanying General Provisions Statement set forth the terms, conditions and policies upon which this firm proposes to provide services to you and the basis upon which we expect to be compensated for such services. Our office welcomes any additional scope that the City of South Miami may wish to include after this agreement it executed. As per., our office policy, we will charge you for professional services in accordance with our hourly rates in effect at the time the services are provided. Presently, -these rates vary from $285.00 per hour for principals to approximately $145.00 per hour for staff engineers /inspectors. These rates do not include any taxes or other charges we may be required to collect by federal, state, or local regulatory agencies. The parties acknowledge that the services to be performed are analytical in nature. This firm will not be preparing any plans or drawings for construction; or performing any construction, remedial or other physical activities; this firm will not be supervising any acts relating to construction. The parties acknowledge that this firm is not responsible in any, sense, manner or way for any improper or defective construction that may exist. The City of South Miami is the sole beneficiary of the services performed by M2E Consulting Engineers. No third -party may be deemed a third -party beneficiary as that term is used in the law. The City of South Miami shall indemnify and hold harmless M2E Consulting Engineers, and all of its personnel, from and against any and all claims, damages, losses and expenses, including those brought by third parties arising out of or resulting from the performance of the services. M2E Consulting Engineers (hereinafter known as "Engineer "), as the receiving party of Confidential Information (as hereinafter defined) shall not, without the prior written consent of the City of South Miami (hereinafter known as "Client "), or court order (i) disclose the Confidential Information to any other person or entity, except to its own employees and its consultants, accountants, attorneys on a need to know basis in order to perform their responsibilities under this Agreement, or (ii) use the Confidential Information except only in order to perform its responsibilities under this Agreement. Engineer acknowledges that the unauthorized disclosure or use of the Confidential Information may cause irreparable injury to the Client as the owner of the Confidential Information for which money damages may be an inadequate remedy, and agrees, therefore, that equitable remedies are appropriate and should be granted to prohibit and prevent conduct by Engineer which would constitute a violation of Engineer's obligations. For purposes hereof, the term "Confidential Information" shall mean any and all information obtained by, or on behalf of Engineer, regarding the Project as a result of Engineer's engagement hereunder, including, without limitation, all information regarding the physical condition of any improvements constructed and /or any information regarding Client's development and /or operations of the project. Engineer may disclose such confidential information if required by any statute, ordinance, code, condition of Engineer's license, or if in Engineer's discretion, they are required, as a professional practicing in the locality in which the project is located, to make such disclosure to any public entity. Sometimes, the legal entity which is committing to pay for the engineering services and the legal entity for which the engineering services are being performed are not the same. Client agrees that in addition to the entity listed above, any other entity on whose behalf the Client is acting and for whom these engineering services are being provided is also Ms. Gray Read August 13, 2010 Page 3 of 3 responsible for the payment of fees and costs pursuant to this Retainer Agreement and accompanying General Provisions Statement. At the time the Client executes and returns an original of this Retainer Agreement to us, we would appreciate your furnishing Engineer with a retainer in the amount of $2,490.00. The retainer shall be credited against the final invoice. Please review the contents of this Agreement and the accompanying General Provisions Statement carefully and if the terms and conditions set forth are acceptable to Client, please execute this Retainer Agreement in the space below and return it to Engineer with the requested retainer amount. Once again, I thank you for choosing this firm for your engineering needs. We appreciate your confidence in us and will do our best to justify it. If this retainer agreement is not accepted within 30 days, it shall be considered null and void. Yours truly, M2E CONSULTING ENGINEERS /Miroslav MI denovic, PE President The terms and conditions of the above Retainer Agreement and the accompanying General Provisions Statement are ac eptable and are acknowledged, accepted and agreed to on / this day of �'r ei , 2010. By: Print Name: HeECTOZ MIi2.vt ;Le, )9� -'b. S: \CONTRACT AGREEMENTS \PROSPECTIVE 2010 \City of South Miami - Energy Audit \08110 City of South Miami Proposal.CE.doc hry2 e consulting engineers 2. M2E CONSULTING ENGINEERS General Provisions Authorization to Proceed Execution of this AGREEMENT by CLIENT will be authorization for M2E to proceed with the services, unless otherwise provided for in this AGREEMENT. Salary - Costs M2E's Salary Costs, when the basis of compensation are the amount of wages or salaries paid M2E employees for work directly performed on the Project, plus a percentage applied to all such wages or salaries to cover all payroll - related taxes, payments, premiums, and benefits. Per Diem Rates M2E's per Diem Rates, when the basis of compensation are those hourly or daily rates charged for work performed on the Project by M2E employees of the indicated. classifications. Our schedule of hourly rates for engineers and other members of the professional staff currently range from $145 to $285 per hour and are subject to change from time to time without advance notice. In the case of new clients or complex matters, we usually request that a retainer be paid against fees and disbursements. The amount varies depending on the nature of the matter. Unless otherwise agreed in writing, retainers are applied against our final invoice for fees and costs. Affiliated Companies and Preferred Subcontractors Work performed under this AGREEMENT may be performed using labor from affiliated companies and /or Preferred Subcontractor's of M2E. Such labor will be billed to CLIENT under the same billing terms applicable to M2E's employees. Subcontracts and Direct Expenses When SERVICES are performed on a cost reimbursement basis, a markup of 25 percent will be applied to subcontracts and outside services and a markup of 25 percent will be applied to Direct Expenses. For purposes of this AGREEMENT, Direct Expenses are defined to include those necessary costs and charges Incurred for the Project including, but not limited to: (1) the direct costs of transportation, meals, lodging, mall, shipping, equipment and supplies; (2) M2E's current standard rate charges for direct use of M2E's vehicles, laboratory test and analysis, printing and reproduction services, and certain field equipment; and (3) M2E's standard project charges for computing systems, special health and safety requirements of OSHA, and telecommunications services. All sales, use, value added, business transfer, gross receipts, or other similar taxes will be added to M2E's compensation when invoicing CLIENT. 305 665 1700 /f telephone 305 665 1703// facsimile // www.m2econsulhng.com 5815 SW 68th Street // Miami, Florida 33143 M2E CONSULTING ENGINEERS General Provisions Page 2 of 5 6. Cost Opinions Any cost opinions or Project economic evaluations provided by M2E, will be on a basis of experience and judgment, but, since M2E has no control over market conditions or bidding procedures, M2E, cannot warrant that bids, ultimate construction cost, or Project economics will not vary from these opinions. If M2E is retained to assist in a litigation matter the fees we charge and that are payable by CLIENT are not contingent upon the outcome of that matter. The outcome of the matter shall not be determinative of the amount owed by CLIENT to M2E or earned by M2E. CLIENT is liable to M2E for the payment of all fees and costs. 7. Termination This AGREEMENT may be terminated on thirty (30) days' written notice by M2E. M2E will be paid for all authorized work performed up to the termination date plus termination expenses, such as, but not limited to, reassignment of personnel, subcontract termination costs, and related close -out costs. Such payments shall be made in full within fifteen (15) days of the date of termination of this agreement pursuant of this provisions. 8. Payment to M2E Monthly invoices will be issued by M2E for all Services performed under this AGREEMENT. CLIENT shall pay each invoice within 10 days. Interest at a rate of 1 1/2 percent per month will be charged on all past -due amounts. CLIENT agrees to carefully review all statements for services rendered and costs advanced or incurred by this office and to promptly notify M2E, in writing, of any claimed errors or discrepancies in each billing statement within two (2) days from the date each billing statement is sent, plus five (5) additional business days for each billing statement to have reached CLIENT by mail. In the event CLIENT fails to notify M2E, it will be presumed that CLIENT agrees with the correctness, accuracy and fairness of any and all billing statements for which M2E is not timely notified. M2E reserves the right to withdraw from providing SERVICES and /or withhold work product to CLIENT at any time that any statements tendered to CLIENT for payment of our fees or costs are not timely paid. Should we deem it necessary to withdraw from providing services due to a lack of timely payments of fees or costs, then we shall have a right to a retaining, lien against documents until all sums due us are paid in full. If we must resort to the collection of amounts due us through legal process, you agree that we may garnish your wages, salary and commissions for any judgment we obtain. 9. Limitation of Liability M2E's liability for CLIENT'S damages will, in the aggregate, not exceed $25,000 in total, or its labor fee amount, whichever is the smaller amount. This Provision takes precedence over any conflicting Provision of this AGREEMENT or any document incorporated into it or referenced by it. All limitations of liability set forth in this provision shall survive the termination of this agreement for any reason whatsoever. CLIENT expressly agrees that, except as otherwise provided in this Agreement, M2E, shall not be liable for any direct, special, indirect,'' incidental, consequential, exemplary, extra - contractual, or punitive damages of any kind or nature whatsoever, including, reapplication, or damage to any substrate in the performance 305 665 1700 // telephone 305 665 1703// facsimile // www.m2econsulting.com 5815 SW 68th Street// Miami, Florida 33143 M2E CONSULTING ENGINEERS General Provisions Page 3 of 5 of the services, whether or not any party hereto had or has been advised of the possibility or probability thereof, and even if the remedies otherwise available fail of their essential purpose, such being expressly waived by CLIENT. CLIENT hereby acknowledges and expressly agrees that the liability of M2E, it officers, directors, employees and agents is limited in all respects to the sums paid to M2E, by CLIENT pursuant to this Agreement, and CLIENT hereby expressly waives and relinquishes all other claims, demands, actions suits, and damages (including, without limitation consequential damages), (i) arising from on in connection with M2E, performance of Services pursuant to this Agreement, or (ii) arising from or in connection with any negligence (including, without limitation, gross negligence) or acts or omissions of M2E, its officers, directors, shareholders, employees, agents, or subconsultants, of (iii) arising from any entry by M2E, its officers, directors, shareholders, employees, agents, or subconsultants into the Property, or (iv) made by any third parties against CLIENT or M2E, in connection with this Agreement. 10. Severability and Survival If any of the provisions contained in this AGREEMENT are held illegal, invalid or unenforceable, the other provisions shall remain in full effect. Limitations of liability shall survive termination of this AGREEMENT for any cause. 11. No Third Party Beneficiaries This AGREEEMENT gives no rights or benefits to anyone other than CLIENT and M2E and has no third party beneficiaries except as provided in paragraph 9. 12. Materials and Samples Any items, substances, materials or samples removed from the PROJECT site for testing, analysis, or other evaluation, shall be returned to the PROJECT site unless agreed by M2E to do otherwise. CLIENT recognizes and agrees that M2E is acting solely on behalf of the CLIENT and no time assumes ownership of any kind as to said items, substances, materials or samples. CLIENT agrees that M2E assumes no liability for a waste or hazardous waste site originated by anyone other than M2E. CLIENT agrees that upon conclusion of SERVICES, it is their responsibility to secure the return of their file and any records that you provided to M2E. If arrangements are not made for the return of their files within six (6) months following the conclusion of the matter, it will be destroyed. 13. Integration This AGREEMENT incorporates all previous communications and negotiations and constitutes the entire agreement of the parties. If CLIENT issues a Purchase Order in conjunction with performance of the Services, general or standard terms and conditions on the Purchase Order do not apply to this AGREEMENT. In any event, nothing shall be binding upon M2E unless the same is in writing and by M2E. 305 665 1700 // telophone 305 665 1703 1/ facsimile www,m2econsulting.com - -- 5815 SW 68th Street // Miami, Florida 33143 M2E CONSULTING ENGINEERS General Provisions Page 4 of S 14. Force Majeure If performance of the Services is affected by causes beyond M2E's reasonable control of the PROJECT schedule, said schedule shall be equitably adjusted. 15. Dispute Resolution The parties agree to mediation any and all claims by and between them as a condition to Arbitration. If mediation fails the parties agree to resolve all disputes by and between them in Arbitration in accordance with the rules of the American Arbitration Association, which arbitration decision shall be final and binding. The mediation and arbitration shall be located in Dade County, Florida. 16. Changes CLIENT may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect M2E's cost of or time required for performance of the services and equitable adjustment with be made through an amendment to this AGREEMENT. 17. Consequential Damages To the maximum extent permitted by law, M2E, and its affiliated corporations, officers, employees, and subcontractors shall not be liable to CLIENT for any special, indirect, or consequential damages, whether such damages arise out of breach of contract or warranty, tort, including negligence, strict or statutory liability, or any other cause of action. In order to protect M2E against indirect liability or third -party proceedings, CLIENT will indemnify M2E, in accordance with Article 19 of these General Provisions, for such damages for all third party claims asserted against it, including compensating M2E for any attorney's fees incurred in such defense. 18. Other Terms CLIENT agrees that the nature of this work may involve opinions by M2E, which may be sought by third parties not known at this time. The CLIENT will compensate M2E for these efforts in accordance with its standard hourly rates. If other parties refuse to do so, or if M2E is required to expend these efforts through court action or at hourly rates below those attached to this agreement then Client will reimburse /pay M2E at the rates indicated in this Agreement. Although we rarely need to seek collection of fees or costs by formal means, if such action is taken, jurisdiction and venue of any claim brought by the firm including unpaid fees and costs, shall be in the state courts of Miami -Dade County, Florida and M2E shall be entitled to payment of reasonable attorneys' fees together with our costs in the action. soy 665 1700 // 305 665 1703/1 // Www:m2econ: 5815 SW 68th Street // Miami, Florida 33143 M2E CONSULTING ENGINEERS General Provisions Page 5 of 5 19. Indemnification To the fullest extent permitted by law, the CLIENT agrees to indemnify and hold harmless M2E, its officers, directors, agents and employees (the "Indemnified Parties ") from liability, damages, losses and costs, including but not limited to, reasonable attorney's fees, at both the trial and appellate level, caused in whole or in part by any act, omission or default of the CLIENT or any of its agents or employees, third parties, or the Indemnified Parties arising from this Agreement or its performance. However, such indemnification shall not include claims of, or damages resulting from, gross negligence or willful, wanton or intentional misconduct of the Indemnified Parties or for statutory violations or punitive damages, except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the CLIENT, its contractors, subcontractors, sub - subcontractors, material men or agents of any tier or their respective employees. To the extent that the CLIENT's obligation to indemnify as set forth herein arises in whole or in part by the acts, omissions or defaults of the Indemnified Parties, such obligation shall be limited to One Million ($1,000,000.00) Dollars per occurrence, which sum the parties hereto acknowledge bears a reasonable commercial relationship to this Agreement and shall be deemed part of the Project specifications and bid documents, if any, In any and all claims against M2E by any employee or agent of the CLIENT or anyone for whose acts any of them may be liable, the indemnification obligation under this paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the CLIENT under Workmen's Compensation acts, disability benefit acts or other employee benefit acts. The provisions of this paragraph shall survive termination of this Agreement. Unless you advise us in writing to the contrary, you consent to this firm's usage of your name as a professional reference. We reserve the right to amend the General Provisions from time to time upon reasonable notice to you. We hope the foregoing explains our General Provisions but should you have any questions or desire further explanation, please do not hesitate to contact us. Your execution of the engagement letter confirms your receipt of a copy of our General Provisions, that you understand it, and your agreement to its terms. 5815 SW 68th Street 8 Miami, Florida. 33143