R20-102 1 RESOLUTION NO. R20-102
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA,APPROVING THE NEGOTIATED COST FOR RFQ#
5 035-2413-19/MFD FOR SE 1ST STREET SIDEWALK
6 IMPROVEMENTS DESIGN AND CONSULTING
7 SERVICES AND AUTHORIZE THE CITY MANAGER TO
8 ENTER INTO AN AGREEMENT WITH KIMLEY-HORN FOR
9 THE AMOUNT OF$253,976.00 PLUS A 10%CONTINGENCY OF
10 $25,397.60 FOR UNFORESEEN CONDITIONS FOR A TOTAL
11 ESTIMATED EXPENDITURE OF $279,343.60; AND
12 PROVIDING AN EFFECTIVE DATE.
13
14 WHEREAS, on September 5, 2019, the City Commission approved the
15 recommendation from the evaluation committee to enter into negotiations with Kimley-
16 Horn for the SE 1st Street Sidewalk Improvements Design and Consulting Services and
17 authorized staff to negotiate an Agreement; and
18 WHEREAS, The City of Boynton Beach received an award for the Palm Beach
19 Transportation Planning Agency's Transportation Alternative Program Grant and the
20 terms of the grant require the plan to be designed in 2020 and constructed in 2022; and
21 WHEREAS, approving the negotiated cost and entering into an agreement with
22 Kimley-Horn will allow for the Design Improvements to be completed and to take
23 advantage of the Grants being provided; and
24 WHEREAS, the City Commission of the City of Boynton Beach upon
25 recommendation of staff, deems it to be in the best interest of the citizens and residents to
26 approve the negotiated cost for RFQ # 035-2413-19/MFD for SE 1st Street Sidewalk
27 Improvements Design and Consulting Services and Authorize the City Manager to enter
28 in an agreement with Kimley-Horn for the amount of$253,976.00 plus a 10%contingency
29 of$25,397.60 for unforeseen conditions for a total estimated expenditure of$279,343.60.
30 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
31 OF THE CITY OF BOYNTON BEACH,FLORIDA,THAT:
32 Section 1. The foregoing"Whereas"clauses are hereby ratified and confirmed
33 as being true and correct and are hereby made a specific part of this Resolution upon
34 adoption.
35 Section 2. The City Commission of the City of Boynton Beach, Florida,
S:\CA\RESO\Agreements\Agreement With Kimley Horn(SE 1st Street Sidewalk)-Reso.Docx
36 hereby approves the negotiated cost for RFQ # 035-2413-19/MFD for SE 1st Street
37 Sidewalk Improvements Design and Consulting Services and authorizes the City Manager
38 to enter into an agreement with Kimley-Horn for the amount of$253,976.00 plus a 10%
39 contingency of$25,397.60 for unforeseen conditions for a total estimated expenditure of
40 $279,343, a copy of the Agreement is attached hereto and incorporated herein as Exhibit
41 "A".
42 Section 3. That this Resolution shall become effective immediately.
43 PASSED AND ADOPTED this 15th day of September, 2020.
44 CITY OF BOYNTON BEACH, FLORIDA
45 YES NO
46
47 Mayor—Steven B. Grant
48
49 Vice Mayor—Ty Penserga
50
51 Commissioner—Justin Katz t�
52
53 Commissioner—Woodrow L. Hay
54
55 Commissioner—Christina L. Romelus
56
57 VOTE S:10
58 ATTEST:
59
60
61 C tal Gibson,MMC
62 City Clerk
63
64 _.
65 C(gorporate Seal)
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SE 1ST STREET SIDEWALK IMPROVEMENTS DESIGN CONSULTING SERVICES
THIS AGREEMENT is entered into between the CITY of Boynton Beach, hereinafter
referred to as "CITY", and Kimley-Horn and Associates, Inc., hereinafter referred to as
"CONSULTANT", in consideration of the mutual benefits, terms, and conditions
hereinafter specified.
WHEREAS, pursuant to Section 287.055, Florida Statutes, the CITY of
Boynton Beach solicited proposals for a non-exclusive Contract to perform professional
planning services with a qualified firm for required services, and
WHEREAS, THE CITY issued a Request for Qualifications for SE 1ST STREET
SIDEWALK IMPROVEMENTS DESIGN CONSULTING SERVICES RFQ No. 035-2413-
19/MFD; and
WHEREAS, RFQ No. 035-2413-19/MFD defined Scope of Services as Sidewalk
Improvement Design Consulting Services; and
WHEREAS, the CITY determined that CONSULTANT was qualified for
appointment to perform the scope of services set forth in the Request for Qualifications;
and
WHEREAS, the CITY Commission on September 5, 2019, determined that
CONSULTANT was qualified for appointment to perform the scope of services set forth
in the Request for Qualifications; and
WHEREAS, the CITY Manager, through her administrative staff, has successfully
negotiated an Agreement with CONSULTANT defining terms and conditions for the
performance of consulting and surveying services within the scope of the Request for
Qualifications.
NOW, THEREFORE, in consideration of the mutual covenants expressed herein,
the parties agree as follows:
ARTICLE 1 - SERVICES
CONSULTANT agrees to perform Sidewalk Improvement Design Consulting
Services by way of individual task orders, at the request of the CITY during the term of
this Agreement, including the provision of all labor, materials, equipment and supplies.
The specified project which may be assigned to CONSULTANT is set forth in Exhibit "A"
RFQ # 035-2413-19/MFD for SE 1st Street Sidewalk Improvements Design and
Consulting Services and Exhibit "B" Kimley-Horn Submittal for RFQ 035-24130 1st Street
Sidewalk Improvements Design Consulting Service, which is made a part of this
agreement.
The CITY's Representative during the performance of this Contract shall be Gary
Dunmyer, City Engineer, telephone (561) 742-6231, Email: DunmverG(a�bbfl.us. Or his
deignee.
ARTICLE 2 - TERM
2.1 The terms of the grant require the plan to be designed in 2020 and
constructed in 2022.
2.2 In the event that services are scheduled to end either by contract expiration
or by termination by the CITY (at the CITY's discretion), the CONSULTANT
shall continue the services, if requested by the CITY, or until task or tasks
is/are completed. At no time shall this transitional period extend more than
one-hundred and eighty (180) calendar days beyond the expiration date of
the existing contract. The CONSULTANT will be reimbursed for this service
at the rate in effect when this transitional period clause was invoked by the
CITY.
ARTICLE 3 - TIME OF PERFORMANCE
Work under this Contract shall commence upon the giving of written notice by the
CITY to the CONSULTANT by way of an executed task order. CONSULTANT shall
perform all services and provide all work product required pursuant to this Agreement and
the specific task order, unless an extension of time is granted in writing by the CITY.
ARTICLE 4 - PAYMENT
The CONSULTANT shall be paid by the CITY for completed work and for services
rendered under this agreement as follows:
a. Payment for the work provided by CONSULTANT shall be made for a
maximum fee of $253,976.00 as provided on Exhibit "C" — Kimley Horn
Negotiated Price Agreement, dated January 8, 2020 attached hereto.
b. The CONSULTANT may submit vouchers to the CITY once per month during
the progress of the Work for partial payment for project completed to date.
Such vouchers will be checked by the CITY, and upon approval thereof,
payment will be made to the CONSULTANT in the amount approved.
c. Final payment of any balance due the CONSULTANT of the total contract price
earned will be made promptly upon its ascertainment and verification by the
CITY after the completion of the Work under this Agreement and its acceptance
by the CITY.
d. Payment as provided in this section shall be full compensation for work
performed, services rendered and for all materials, supplies, equipment and
incidentals necessary to complete the work.
ARTICLE 5 - OWNERSHIP AND USE OF DOCUMENTS
All documents, drawings, specifications and other materials produced by the
CONSULTANT in connection with the services rendered under this agreement shall be
the property of the CITY whether the project for which they are made is executed or not.
The CONSULTANT shall be permitted to retain copies, including reproducible copies, of
drawings and specifications for information, reference and use in connection with
CONSULTANT's endeavors. Any use of the documents for purposes other than as
originally intended by this Agreement, without the written consent of CONSULTANT, shall
be at the CITY's sole risk.
ARTICLE 6 - FUNDING
This Agreement shall remain in full force and effect only as long as the
expenditures provided in the Agreement have been appropriated by the CITY in the
annual budget for each fiscal year of this Agreement, and is subject to termination based
on lack of funding.
ARTICLE 7 - WARRANTIES AND REPRESENTATIONS
CONSULTANT represents and warrants to the CITY that it is competent to engage
in the scope of services contemplated under this Agreement and that it will retain and
assign qualified professionals to all assigned projects during the term of this Agreement.
CONSULTANT's services shall meet a standard of care for professional surveying and
mapping and related services equal to or exceeding the standard of care for surveying
professionals practicing under similar conditions. In submitting its response to the RFQ,
CONSULTANT has represented to CITY that certain individuals employed by
CONSULTANT shall provide services to CITY pursuant to this Agreement. CITY has
relied upon such representations. Therefore, CONSULTANT shall not change the
designated Project Manager for any project without the advance written approval of the
CITY, which consent may be withheld in the sole and absolute discretion of the CITY.
ARTICLE 8 - COMPLIANCE WITH LAWS
CONSULTANT shall, in performing the services contemplated by this service
Agreement, faithfully observe and comply with all federal, state and local laws, ordinances
and regulations that are applicable to the services to be rendered under this Agreement.
ARTICLE 9 - INDEMNIFICATION
CONSULTANT shall indemnify, defend and hold harmless the CITY, its offices,
agents and employees, from and against any and all claims, losses or liability, or any
portion thereof, including attorneys fees and costs, arising from injury or death to persons,
including injuries, sickness, disease or death to CONSULTANT's own employees, or
damage to property occasioned by a negligent act, omission or failure of the
CONSULTANT. Neither party to this Agreement shall be liable to any third party claiming
directly or through the other respective party, for any special, incidental, indirect or
consequential damages of any kind, including but not limited to lost profits or use that my
result from this Agreement or out of the services or goods furnished hereunder.
ARTICLE 10 - INSURANCE
10.1 During the performance of the services under this Contract, CONSULTANT
shall maintain the following insurance policies, and provide originals or
certified copies of all policies, and shall be written by an insurance company
authorized to do business in Florida.
10.1.1 Worker's Compensation Insurance: The CONSULTANT shall
procure and maintain for the life of this Contract, Worker's
Compensation Insurance covering all employees with limits meeting
all applicable state and federal laws. This coverage shall include
Employer's Liability with limits meeting all applicable state and
federal laws. This coverage must extend to any sub-CONSULTANT
that does not have their own Worker's Compensation and
Employer's Liability Insurance. The policy must contain a waiver of
subrogation in favor of the CITY of Boynton Beach, executed by the
insurance company.
10.1.2 Comprehensive General Liability: The CONSULTANT shall procure
and maintain for the life of this Contract, Comprehensive General
Liability Insurance. This coverage shall be on an "Occurrence" basis.
Coverage shall include Premises and Operations; Independent
Contractors, Products Completed Operations and Contractual
Liability with specific reference of Article 7, "Indemnification" of this
Agreement. This policy shall provide coverage for death, personal
injury or property damage that could arise directly or indirectly from
the performance of this Agreement. CONSULTANT shall maintain a
minimum coverage of $1,000,000 per occurrence and $1,000,000
aggregate for personal injury/ and $1,000.000 per
occurrence/aggregate for property damage. The general liability
insurance shall include the CITY as an additional insured and shall
include a provision prohibiting cancellation of the policy upon thirty
(30) days prior written notice to the CITY.
10.1.3 Business Automobile Liability: The CONSULTANT shall procure and
maintain, for the life of this Contract, Business Automobile Liability
Insurance. The CONSULTANT shall maintain a minimum amount of
$1,000,000 combined single limit for bodily injury and property
damage liability to protect the CONSULTANT from claims for
damage for bodily and personal injury, including death, as well as
from claims for property damage, which may arise from the
ownership, use of maintenance of owned and non-owned
automobile, included rented automobiles, whether such operations
be by the CONSULTANT or by anyone directly or indirectly employed
by the CONSULTANT.
10.1.4 Professional Liability (Errors and Omissions) Insurance: The
CONSULTANT shall procure and maintain for the life of this Contract
in the minimum amount of$1,000,000 per occurrence.
10.2 It shall be the responsibility of the CONSULTANT to ensure that all sub-
contractors comply with the same insurance requirements referenced
above.
10.3 In the judgment of the CITY, prevailing conditions warrant the provision by
the CONSULTANT of additional liability insurance coverage or coverage
which is different in kind, the CITY reserves the right to require the provision
by CONSULTANT of an amount of coverage different from the amounts or
kind previously required and shall afford written notice of such change in
requirements thirty (30) days prior to the date on which the requirements
shall take effect. Should the CONSULTANT fail or refuse to satisfy the
requirement of changed coverage within the thirty (30) days following the
CITY's written notice, the CITY, at its sole option, may terminate the
Contract upon written notice to the CONSULTANT, said termination taking
effect on the date that the required change in policy coverage would
otherwise take effect.
10.4 CONSULTANT shall, for a period of two (2) years following the termination
of the Agreement, maintain a "tail coverage" in an amount equal to that
described above for Comprehensive Liability Insurance on a claims-made
policy only
ARTICLE 11 - INDEPENDENT CONTRACTOR
11.1 The CONSULTANT and the CITY agree that the CONSULTANT is an
independent CONSULTANT with respect to the services provided pursuant
to this Agreement. Nothing in this Agreement shall be considered to create
the relationship of employer and employee between the parties hereto.
Neither CONSULTANT nor any employee of CONSULTANT shall be
entitled to any benefits accorded CITY employees by virtue of the services
provided under this Agreement. The CITY shall not be responsible for
withholding or otherwise deducting federal income tax or social security or
for contributing to the state industrial insurance program, otherwise
assuming the duties of an employer with respect to CONSULTANT, or any
employee of CONSULTANT.
11.2 CONSULTANT acknowledges and understands that, as an independent
CONSULTANT pursuant to this Agreement, CONSULTANT shall comply
with Chapter 119, Florida Statutes, as amended (Public Records).
CONSULTANT's obligation includes, but is not limited to CONSULTANT's
obligation to preserve public records and make public records available to
third parties in addition to the CITY.
ARTICLE 12 - COVENANT AGAINST CONTINGENT FEES
The CONSULTANT warrants that he has not employed or retained any company
or person, other than a bonafide employee working solely for the CONSULTANT, to solicit
or secure this Agreement, and that he has not paid or agreed to pay any company or
person, other than a bonafide employee working solely for the CONSULTANT, any fee,
commission, percentage, brokerage fee, gifts, or any other consideration contingent upon
or resulting from the award or making of this Agreement. For breach or violation of this
warranty, the CITY shall have the right to annul this Agreement without liability or, in its
discretion to deduct from the contract price or consideration, or otherwise recover, the full
amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee.
ARTICLE 13 — TRUTH-IN-NEGOTIATION CERTIFICATE
13.1 Execution of this Agreement by the CONSULTANT shall act as the
execution of a truth-in-negotiation certificate certifying that the wage rates
and costs used to determine the compensation provided for in this
Agreement is accurate, complete, and current as of the date of the
Agreement and no higher than those charged the CONSULTANT's most
favored customer for the same or substantially similar service.
13.2 The said rates and cost shall be adjusted to exclude any significant sums
should the CITY determine that the rates and costs were increased due to
inaccurate, incomplete, or non-current wage rates or due to inaccurate
representations of fees paid to outside CONSULTANTs. The CITY shall
exercise its rights under this "Certificate" within one (1) year following
payment.
ARTICLE 14 - DISCRIMINATION PROHIBITED
The CONSULTANT, with regard to the work performed by it under this Agreement,
will not discriminate on the grounds of race, color, national origin, religion, creed, age, sex
or the presence of any physical or sensory handicap in the selection and retention of
employees or procurement of materials or supplies.
ARTICLE 15 - ASSIGNMENT
The CONSULTANT shall not sublet or assign any of the services covered by this
Agreement without the express written consent of the CITY.
ARTICLE 16 - NON-WAIVER
A waiver by either CITY or CONSULTANT of any breach of this Agreement shall
not be binding upon the waiving party unless such waiver is in writing. In the event of a
written waiver, such a waiver shall not affect the waiving party's rights with respect to any
other or further breach. The making or acceptance of a payment by either party with
knowledge of the existence of a default or breach shall not operate or be construed to
operate as a waiver of any subsequent default or breach.
ARTICLE 17 — TERMINATION
17.1 Termination for Convenience: This Agreement may be terminated by the
CITY for convenience, upon ten (10) days of written notice by the
terminating party to the other party for such termination in which event the
CONSULTANT shall be paid its compensation for services performed to
termination date, including services reasonably related to termination. In
the event that the CONSULTANT abandons the Agreement or causes it to
be terminated, CONSULTANT shall indemnify the CITY against loss
pertaining to this termination.
17.2 Termination for Default: In addition to all other remedies available to the
CITY, this Agreement shall be subject to cancellation by the CITY for cause,
should the CONSULTANT neglect or fail to perform or observe any of the
terms, provisions, conditions, or requirements herein contained, if such
neglect or failure continue for a period of thirty (30) days after receipt by
CONSULTANT of written notice of such neglect or failure.
ARTICLE 18 - DISPUTES
Any dispute arising out of the terms or conditions of this Agreement shall be
adjudicated within the courts of Florida. Further, this Agreement shall be construed under
Florida Law.
ARTICLE 19 — UNCONTROLLABLE FORCES
19.1 Neither the CITY nor CONSULTANT shall be considered to be in default of
this Agreement if delays in or failure of performance shall be due to
Uncontrollable Forces, the effect of which, by the exercise of reasonable
diligence, the non-performing party could not avoid. The term
"Uncontrollable Forces" shall mean any event which results in the
prevention or delay of performance by a party of its obligations under this
Agreement and which is beyond the reasonable control of the non-
performing party. It includes, but is not limited to fire, flood, earthquakes,
storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions.
19.2 Neither party shall, however, be excused from performance if non-
performance is due to forces which are preventable, removable, or
remediable, and which the non-performing party could have, with the
exercise of reasonable diligence, prevented, removed, or remedied with
reasonable dispatch. The non-performing party shall, within a reasonable
time of being prevented or delayed from performance by an uncontrollable
force, give written notice to the other party describing the circumstances
and uncontrollable forces preventing continued performance of the
obligations of this Agreement.
ARTICLE 20 - NOTICES
Notices to the CITY of Boynton Beach shall be sent to the following address:
CITY of Boynton Beach
Attn: Lori LaVerriere, City Mgr.
P.O. Box 310
Boynton Beach, FL 33425-0310
Notices to CONSULTANT shall be sent to the following address:
Kimley-Horn and Associates, Inc.
1920 Wekiva Way, Suite 200
West Palm Beach, FL 33411-2410
Telephone No.: 561.845.0665
ARTICLE 21 - INTEGRATED AGREEMENT
This Agreement, together with the RFQ/RFP and any addenda and/or
attachments, represents the entire and integrated agreement between the CITY and the
CONSULTANT and supersedes all prior negotiations, representations, or agreements
written or oral. This Agreement may be amended only by written instrument signed by
both CITY and CONSULTANT.
ARTICLE 22 - SOVEREIGN IMMUNITY
22.1 CITY is a political subdivision of the State of Florida and enjoys sovereign
immunity. Nothing in the Agreement is intended, nor shall be construed or
interpreted, to waive or modify the immunities and limitations on liability
provided for in Section 768.28, Florida Statute, as may be emended from
time to time, or any successor statute thereof. To the contrary, all terms
and provisions contained in the Agreement, or any disagreement or dispute
concerning it, shall be construed or resolved so as to insure CITY of the
limitation from liability provided to any successor statute thereof. To the
contrary, all terms and provision contained in the Agreement, or any
disagreement or dispute concerning it, shall be construed or resolved so as
to insure CITY of the limitation from liability provided to the State's
subdivisions by state law.
22.2 In connection with any litigation or other proceeding arising out of the
Agreement, the prevailing party shall be entitled to recover its own costs
and attorney fees through and including any appeals and any post-judgment
proceedings. CITY's liability for costs and attorney's fees, however, shall
not alter or waive CITY's entitlement to sovereign immunity, or extend
CITY's liability beyond the limits established in Section 768.28, Florida
Statutes, as amended.
1. Claims, disputes or other matters in question between the parties to this
Agreement arising out of or relating to this Agreement shall be in a court
of law. The CITY does not consent to mediation or arbitration for any
matter connected to this Agreement.
2. The parties agree that any action arising out of this Agreement shall take
place in Palm Beach County, Florida.
ARTICLE 23 — FLORIDA'S PUBLIC RECORDS LAW
The City is a public agency subject to Chapter 119, Florida Statutes. The Contractor
shall comply with Florida's Public Records Law. Specifically, the Contractor shall:
23.1 Keep and maintain public records required by the CITY to perform the
service;
23.2 Upon request from the CITY's custodian of public records, provide the CITY
with a copy of the requested records or allow the records to be inspected
or copied within a reasonable time at a cost that does not exceed the cost
provided in Chapter 119, Florida Statue or as otherwise provided by law;
23.3 Ensure that public records that are exempt or that are confidential and exempt
from public record disclosure requirements are not disclosed except
as authorized by law for the duration of the contact term and, following
completion of the contract, Contractor shall provide copies of such
confidential and exempt records remaining in its possession once the
Contractor transfers the records in its possession to the City; and,
23.4 Upon completion of the contract, Contractor shall transfer to the CITY, at
no cost to the CITY, all public records in Contractor's possession. All
records stored electronically by Contractor must be provided to the CITY,
upon request from the CITY's custodian of public records, in a format that
is compatible with the information technology systems of the CITY.
23.5 IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS:
CRYSTAL GIBSON, CITY CLERK
100 E. OCEAN AVE. BOYNTON
BEACH, FLORIDA, 33435
561-742-6061
GIBSONC@BBFL.US
ARTICLE 24. SCRUTINIZED COMPANIES 287.135 and 215.473.
By submission of this Bid, Proposer certifies that Proposer is not participating in a boycott
of Israel. Proposer further certifies that Proposer is not on the Scrutinized Companies that
Boycott Israel list, not on the Scrutinized Companies with Activities in Sudan List, and not
on the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or
has Contractor been engaged in business operations in Syria. Subject to limited
exceptions provided in state law, the City will not contract for the provision of goods or
services with any scrutinized company referred to above. Submitting a false certification
shall be deemed a material breach of contract. The City shall provide notice, in writing, to
Contractor of the City's determination concerning the false certification. Contractor shall
have five (5) days from receipt of notice to refute the false certification allegation. If such
false certification is discovered during the active contract term, Contractor shall have
ninety (90) days following receipt of the notice to respond in writing and demonstrate that
the determination of false certification was made in error. If Contractor does not
demonstrate that the City's determination of false certification was made in error then the
City shall have the right to terminate the contract and seek civil remedies pursuant to
Section 287.135, Florida Statutes, as amended from time to time.
Solicitation responses of $1 million or more must include the attached Scrutinized
Companies form to certify that the Proposer is not on either of those lists.
IN WITNESS WHEREOF, the parties hereto have executed this Contract in multiple
copies, each of which shall be considered an original on the following dates:
DATED this. day of , 20,2'2,0.
CITY OF BOYNTON BEACH
CITY Manager
Attest/Authenticated:
Title
CWY Clerk
Approved as to Form:
Office of the CITY Attorney
KIMLEY-HORN & ASSOCIATES INC.
--- 14-4111_
CONSULTANT
(Corporate Seal)
Attest/Authenticated:
v Stant Secretary- Kinnley-Horn
Exhibit "A"
RFQ # 035-2413-19/MFD
for
SE 1st Street Sidewalk
Improvements Design and
Consulting Services
Exhibit " B "
Kimley-Horn Submittal
for
RFQ 035-24130 1st Street Sidewalk
Improvements Design Consulting
Service
Exhibit " C "
Kimley Horn
Negotiated Price Agreement, dated
January 8, 2020