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HomeMy WebLinkAboutR-02-0198J-02--164 2/14/02 RESOLUTION NO 0 2 " 198 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT FOR THE RETROFITTING OF A DRAINAGE SYSTEM IN THE PINEHURST NEIGHBORHOOD, WITH TERMS AND CONDITIONS AS MORE PARTICULARLY SET FORTH IN THE AGREEMENT. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manger is authorizedl� to execute an Agreement, in substantially the attached form, with the South Florida Water Management District for the retrofitting of a drainage system in the Pinehurst neighborhood, with terms and conditions as more particularly set forth in the agreement. The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter_ and Code provisions. 'lTy COWWS ' I3�s»�st4ioa� �:�va, 0'2-- 108 �J • Section 2. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. 2/ PASSED AND ADOPTED this 14th day of February , 2002. , e"Iz"-;e4eW�A�01 �1NUEL A. DIAZ, MAY e, ATTEST: • � r J SYLVIA SCHETDER ACTING CITY CLERK APPROVED.A'S" T FO , AND CORRECTNESS: EJ RO-IILA#f ELLO ATTORNEY 6016:LB 2/ If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes -this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 2 of 2 198 f 04' w FLORIDA WATERMANAGEMENT Yi'•, .t •aY AGREEMENT THE SOUTH FLORIDA WATER MANAGEMENT This number must appear on all Invoices and Correspondence DISTRICT (hereinafter referred to as DISTRICT) HEREBY ENTERS INTO THIS AGREEMENT WITH: Name: CITY OF MIAMI C-12410 PUBLIC WORKS M/WBE Goal: 0% Address: ' 444 SW 2nd Avenue, 10th Floor COST SHARING INFORMATION Miami, FL 33130 Project Manager: John Jackson, P.E. Total Project Cost: $1,500,000.00 Telephone No: (305) 416-1223 Fax No: ( ) - Hereinafter referred to as: CITY CITY Contribution: $ 1,050,000.00 PROJECT TITLE: PINEHURST STORMWATER RETROFIT — —� The following Exhibits are attached hereto and trade a part of this AGREEMENT: Exhibit "A" - Not Applicable Exhibit "H" - Not Applicable Exhibit 'B" - General Terms and Conditions Exhibit "I" - Not Applicable Exhibit "C" --Statement of Work Exhibit "J" - Not Applicable Exhibit "D" - Payment and Deliverable Schedule Exhibit "K" - Not Applicable Exhibit "E" - Not Applicable Exhibit "L" - Not Applicable Exhibit "F" - Not Applicable Exhibit "M" - Not Applicable Exhibit "G" - Not A2plicable TOTAL DISTRICT CONSIDERATION: $450,000.00 AGREEMENT TYPE: Not -to -Exceed Multi -Year Funding (If Applicable) Fiscal Year: Fiscal Year: Fiscal Year: Fiscal Year: Fiscal Year: Fiscal Year: *Subject to District Governing Board Annual Budget Approval AGREEMENT TERM: Three 3 Years EFFECTIVE DATE: Last Date of Execution by the Parities District Project Manager: Richard Alleman District Contract Administrator: Telephone No: (561) 682-6716 Jim Robinson (561) 682-6373 Fax No. ( ) - Fax No.: (561) 682-6397 or (561) 681-6275 SUBMIT INVOICES AND NOTICES TO THE DISTRICT AT: SUBMIT NOTICES TO THE CITY AT: CITY OF MIAMI South Florida Water Management District PUBLIC WORKS 3301 Gun Club Road 444 SW 2nd Avenue, IOth Floor West Palm Beach, Florida 33406 Attention: Procurement Division Miami, FL 33130 Attention: John Jackson, P.E. IN WITNESS WHEREOF, the authorized representative hereby executes this AGREEMENT on this date, and accepts all Terms and Conditions under which it is issued. CITY OF MIAMI SOUTH FLORIDA WATER MANAGEMENT DISTRICT PUBLIC WORKS BY ITS GOVERNING BOARD Accepted By: Accepted By: _ Signature of Authorized Representative Jessica J. Flathman, Interim Procurement Director Date: Title: Date: PR T APPROVED Date:_ 02- 198 SOUTH FARIDA WATER MANAGILENT DISTRICT 109 EXHIBIT "B" GENERAL TERMS AND CONDITIONS ARTICLE 1 - STATEMENT OF WORK 1.1 The CITY shall, to the satisfaction of the DISTRICT, fully and timely perform all work items described in the "Statement of Work," attached hereto as Exhibit "C" and made a part of this AGREEMENT. 1.2 As part of the services to be provided by the CITY under this AGREEMENT, the CITY shall substantiate, in whatever forum reasonably requested by the DISTRICT, the methodology, lab analytical examinations, scientific theories, data, reference materials, and research notes. The CITY shall also be required to substantiate any and all work completed, including but not limited to, work completed by subcontractors, assistants, models, concepts, analytical theories, computer programs and conclusions utilized as the basis for the final work product required by the AGREEMENT. This paragraph shall survive the expiration or termination of this AGREEMENT. 1.3 The parties agree that time is of the essence in the performance of each and every obligation under this AGREEMENT. ARTICLE 2 - COMPENSATION/ CONSIDERATION 2.1 The total consideration for all work required by the DISTRICT pursuant to this AGREEMENT shall not exceed the amount as indicated on Page 1 of this AGREEMENT. Such amount includes all expenses which the CITY may incur and therefore no additional consideration shall be authorized. 2.2 Notwithstanding the foregoing, the amount expended under this AGREEMENT shall be paid in -accordance with, and subject to the multi-year funding allocations for each DISTRICT fiscal year indicated on Page 1 of this AGREEMENT. Funding for each applicable fiscal year of this AGREEMENT is subject to DISTRICT Governing Board budgetary appropriation. In the event the DISTRICT does not approve funding for any subsequent fiscal year, this AGREEMENT shall terminate upon expenditure of the current funding, notwithstanding other provisions in this AGREEMENT to the contrary. The DISTRICT will notify the CITY in writing after the adoption of the final DISTRICT budget for each subsequent fiscal year if funding is not approved for this AGREEMENT. 2.3 The CITY assumes sole responsibility for all work which is performed pursuant to the Statement of Work, Exhibit "C". By providing funding hereunder, the DISTRICT does not make any warranty, guaranty, or any representation whatsoever regarding the correctness, accuracy, or reliability pf any of the work performed hereunder. 2.4 The CITY by executing this AGREEMENT, certifies to truth -in -negotiation, specifically, that wage rates and other factual unit costs supporting the consideration are accurate, complete, and current at the time of contracting. The CITY agrees that the DISTRICT may adjust the consideration for this AGREEMENT to exclude any significant sums by which the consideration was increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs. The DISTRICT shall make any such adjustment within one (1) year following the expiration or termination of this AGREEMENT. ARTICLE 3 - INVOICING AND PAYMENT 3.1 The CITY's invoices shall reference the DISTRIC:T's Contract Number and shall be sent to the DISTRIC:T's address specified on Page 1 of this AGREEMENT. The CITY shall not submit invoices to any other address at the DISTRICT. 3.2 The CITY shall submit the invoices on a completion of deliverable basis, pursuant to the schedule outlined in the Payment and Deliverable Schedule, attached hereto as Exhibit "D" and made a part of this AGREEMENT. In the event the schedule does not specify payment on a completion of deliverable basis, all invoices shall be substantiated by adequate supporting documentation to justify hours expended and expenses incurred within the not - to -exceed budget, including but not limited to, copies of approved timesheets, payment vouchers, expense reports, receipts and subcontractor invoices. Page 1 of 9, Exhibit "B" Contract FileXity.doc 04/23/01 02- 198 Q4 �� M 3 SOUTH &RIDA WATER MANAG?MENT DISTRICT O V" oEXHIBIT 111111 "+ 'ate 1 CONDITIONS 3.3 The DISTRICT shall pay the full amount of the invoice within thirty (30) days following DISTRICT acceptance of services and/or deliverable(s) required by this AGREEMENT. However, failure by the CITY to follow the foregoing instructions and submit acceptable services and or deliverables(s) may result in an unavoidable delay of payment by the DISTRICT. 3.4 Unless otherwise stated herein, the DISTRICT shall not pay for any obligation or expenditure made by the CITY prior to the commencement date of this AGREEMENT. ARTICLE 4 - PROJECT NIANAGEMENT/ NOTICE 4.1 The parties shall direct all technical matters arising in connection with the performance of this AGREEMENT, other than invoices and notices, to the attention of the respective Project Managers specified on Page i of the AGREEMENT for attempted resolution or action. The Project Managers shall be responsible for overall coordination and oversight relating to the performance of this AGREEMENT. The CITY shall direct all administrative matters, including invoices and notices, to the attention of the DISTRICT's Contract Administrator specified on Page I of the AGREEMENT. All formal notices between the parties under this AGREEMENT shall be in writing and shall be deemed received if sent by certified mail, return receipt requested, to the respective addresses specified on Page 1 of the AGREEMENT. The CITY shall also provide a copy of all notices to the DISTRICT's Project Manager. All notices required by this AGREEMENT shall be considered delivered upon receipt. Should either party change its address, written notice of such new address shall promptly be sent to the other party. All correspondence to the DISTRICT under this AGREEMENT shall reference the DISTRICT's Contract Number specified on Page I of the AGREEMENT. ARTICLE 5 - INSURANCE 5.1 The CITY assumes any and all risks of personal injury, bodily injury and property damage attributable to the negligent acts or omissions of the CITY and the officers, employees, servants, and agents thereof. The CITY warrants and represents that it is self-funded for Worker's compensation and liability insurance, covering at a minimum bodily injury, personal injury and property damage with protection being applicable to the CITY's officers, employees, servants and agents while acting within the scope of their employment during performance under this AGREEMENT. The CITY and the DISTRICT further agree that nothing contained herein shall be construed or interpreted as (1) denying to either party any remedy or defense available to such party under the laws of the State of Florida; (2) the consent of the State of Florida or its agents and agencies to be sued; or (3) a waiver of sovereign immunity of the State of Florida beyond the waiver provided in Section 768.28, Florida Statutes. 5.2 In the event the CITY subcontracts any part or all of the work hereunder to any third party, the CITY shall require each and every subcontractor to identify the DISTRICT as an additional insured on all insurance policies as required by the CITY. Any contract awarded by the CITY for work under this AGREEMENT shall include a provision whereby.' the CITY's subcontractor agrees to defend, indemnify, and pay on behalf, save and hold the DISTRICT harmless from all damages arising iri connection with the CITY's subcontract. ARTICLE 6 - TERMINATIONIREMEDIES 6.1 If either parry fails to fulfill its obligations under this AGREEMENT in a timely and proper manner, the other party shall have the right to terminate this AGREEMENT by giving written notice of any deficiency. The party in default shall then have ten (10) calendar days from receipt of notice to correct the deficiency. If the defaulting parry fails to correct the deficiency within this time, the non -defaulting party shall have the option to terminate this AGREEMENT at the expiration of the; ten (10) day time period. Page 2 of 9, Exhibit "B" Contract File:ICity.doc 04/23/01 02- 198 SOUTH ^RIDA WATER MANAGE ENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS Should the DISTRICT elect to terminate for default in accordance with this provision, the DISTRICT shall be entitled to recover reprocurement costs, in addition to all other remedies under law and/or equity. 6.2 The DISTRICT may terminate this AGREEMENT with or without cause at any time for convenience upon thirty (30) calendar days prior written notice to the CITY. The performance of work under this AGREEMENT may be terminated by the DISTRICT in accordance with this clause in whole, or from time to time in part, whenever the DISTRICT shall determine that such termination is in the best interest of the DISTRICT. Any such termination shall be effected by delivery to the CITY of a Notice of Termination specifying the extent to which performance of work under the AGREEMENT is terminated, and the date upon which such termination becomes effective. In the event of termination for convenience, the DISTRICT shall compensate the CITY for all authorized and accepted deliverables completed through the date of termination in accordance with Exhibit "C", Statement of Work. The DISTRICT shall be relieved of any and all future obligations hereunder, including but not limited to lost profits and consequential damages, under this AGREEMENT. The DISTRICT may withhold all payments to the CITY for such work until such time as the DISTRICT determines the exact amount due to the CITY. 6.3 If either party initiates legal action, including appeals, to enforce this AGREEMENT, the prevailing party shall be entitled to recover a reasonable attorney's fee, based upon the fair market value of the services provided. 6.4 In the event a dispute arises which the project managers cannot resolve between themselves, the parties shall have the option to submit to non-binding mediation. The mediator or mediators shall be impartial, shall be selected by the parties, and the cost of the mediation shall be borne equally by the parties. The mediation process shall be confidential to the extent permitted by law. 6.5 The DISTRICT may order that all or part of the work stop if circumstances dictate that this action is in the DISTRICT's best interest. Such circumstances may include, but are not limited to, unexpected technical developments, direction given by the DISTRICT's Governing Board, a condition of immediate danger to DISTRICT employees, or the possibility of damage to equipment or property. This provision shall not shift responsibility for loss or damage, including but not limited to, lost profits or consequential damages sustained as a result of such delay, from the CITY to the DISTRICT. If this provision is invoked, the: DISTRICT shall notify the CITY in writing to stop work as of a certain date and specify the reasons for the action, which shall not be arbitrary or capricious. The CITY shall then be obligated to suspend all work efforts as of the effective date of the notice and until further written direction from the DISTRICT is received. Upon resumption of work, if deemed appropriate by the DISTRICT, the DISTRICT shall initiate an amendment to this AGREEMENT to reflect any changes to Exhibit "C", Statement of Work and/or the project schedule. 6.6 The DISTRICT anticipates a total project cost as indicated on Page 1, with the balance of matching funds and/or in-kind services to be obtained from the CITY in the amount as specified on Page 1 of this AGREEMENT. In the event such CITY matching funding and/or in-kind services becomes unavailable, that shall be good and sufficient cause for the DISTRICT to terminate the AGREEMENT pursuant to Paragraph 6.2 above. ARTICLE 7 - RECORDS RETENTION/ OWNERSHIP 7.1 The CITY shall maintain records and the DISTRICT shall have inspection and audit rights as follows: A. Maintenance of Records: The CITY shall maintain all financial and non-financial records and reports directly or indirectly related to the negotiation or performance of this AGREEMENT including supporting documentation for any service rates, expenses, research or reports. Such records shall be maintained and made available for inspection for a Page 3 of 9, Exhibit "B" Contract File:NCity.doc 04/23/01 02- 198. SOUTH F96RIDA WATER MANAG ENT DISTRICT 01D EXHIBIT "B" GENERAL TERMS AND CONDITIONS period of five years from completing performance and receiving final payment under this AGREEMENT. B. Examination of Records: The DISTRICT or its designated agent shall have the right to examine in accordance with generally accepted governmental auditing standards all records directly or indirectly related to this AGREEMENT. Such examination may be made only within five years from the date of final payment under this AGREEMENT and upon reasonable notice, time and place. C. Extended Availability of Records for Legal Disputes: In the event that the DISTRICT should become involved in a legal dispute with a third party arising from performance under this AGREEMENT, the CITY shall extend the period of maintenance for all records relating to the AGREEMENT until the final disposition of the legal dispute, and all such records shall be made readily available to the DISTRICT. 7.2 The DISTRICT shall retain exclusive title, copyright and other proprietary rights in all work items, including but not limited to, all documents, technical reports, research notes, scientific data, computer programs, including the source and object code, which are developed, created or otherwise originated hereunder by the CITY, its subcontractor(s), assign(s), agent(s) and/or successor(s) as required by the Exhibit "C", Statement of Work (the "Work"). In consideration for the DISTRICT entering into this CONTRACT, and other good and valuable consideration the sufficiency and receipt in full of which is hereby acknowledged by the CITY, the CITY hereby assigns, transfers, sells and otherwise grants to the DISTRICT any and all rights it now has or may have in the Work (the "Grant"). This Grant shall be self -operative upon execution by the parties hereto, however the CITY agrees to execute and deliver to the DISTRICT any further assignments or other instruments necessary to evidence the Grant, without the payment of any additional consideration by the DISTRICT. The CITY may not disclose, use, license or sell any work developed, created, or otherwise originated hereunder to any third party whatsoever. This paragraph shall survive the termination or expiration of this CONTRACT. 7.3 The CITY represents and warrants that proprietary software, if any, to be provided to the DISTRICT by the CITY hereunder, as specifically identified in Exhibit "C", Statement of Work shall have been developed solely by or for the CITY, or lawfully acquired under license from a third party, including the right to sublicense such software. The CITY shall include copyright or proprietary legends in the software and on the label of the medium used to transmit the software. The CITY shall grant to the DISTRICT a perpetual, non -transferable, non- exclusive right to use the identified software without an additional fee. The DISTRICT acknowledges that title to the software identified in Exhibit "C" shall remain with the Licensor. 7.4 Any equipment purchased by the CITY with DISTRICT funding under this CONTRACT shall be returned and title transferred from the CITY to the DISTRICT immediately upon termination or expiration of this AGREEMENT upon the written request of the DISTRICT not less than thirty (30) days prior to AGREEMENT expiration or termination. Equipment is hereby defined as any non- consumable items purchased by the DISTRICT with a value equal to or greater than $500,00 and with a normal expected life of one (1) year or more. The CITY will maintain any such equipment in good working condition while in its possession and will return the equipment to the DISTRICT in good condition, less normal wear and tear. The CITY will use its best efforts to safeguard the equipment throughout the period of performance of this AGREEMENT. However the DISTRICT will not hold the CITY liable for loss or damage due to causes beyond the CITY's reasonable control. In the event of loss or damage, the CITY shall notify the DISTRICT in writing within five (5) working days of such occurrence, 7.5 The DISTRICT has acquired the right to use certain software under license from third parties. For purposes of this AGREEMENT, the DISTRICT may permit the CITY access to certain third party owned software on DISTRICT computer systems. The CITY acknowledges the proprietary nature of such software and agrees not to reproduce, distribute or disclose such software to any third party. Use of Page 4 of 9, Exhibit "B" Contract File:ICity.doc 04/23/01 UTH a?=1� z ,` , , a WATER MANAGItENT DISTRICT EXHIBIT "B"O �m S a GENERAL TERMS r�0 '17�r or access to such software shall be restricted to designated DISTRICT owned systems or equipment. Removal of any copy of licensed software is prohibited. ARTICLE 8 - STANDARDS OF COMPLIANCE 8.1 The CITY, its employees, subcontractors or assigns, shall comply with all applicable federal, state, and local laws and regulations relating to the performance of this AGREEMENT. The DISTRICT undertakes no duty to ensure such compliance, but will attempt to advise the CITY, upon request, as to any such -laws of which it has present knowledge. 8.2 The CITY hereby assures that no person shall be discriminated against on the grounds of race, color, creed, national origin, handicap, age, or sex, in any activity under this AGREEMENT. The CITY shall take all measures necessary to effectuate these assurances. 8.3 The laws of the State of Florida shall govern all aspects of this AGREEMENT. In the event it is necessary for either party to initiate legal action regarding this AGREEMENT, venue shall be in the Fifteenth Judicial Circuit for claims under state law and in the Southern DISTRICT of Florida for any claims which are justiciable in federal court. 8.4 The CITY, by its execution of this AGREEMENT, acknowledges and attests that neither it, nor any of its suppliers, subcontractors, or consultants who shall perform work which is intended to benefit the DISTRICT is a convicted vendor or, if the CITY or any affiliate of the CITY has been convicted of a public entity crime, a period longer than 36 months has passed since that person was placed on the convicted vendor list. The CITY further understands and accepts that this AGREEMENT shall be either void by the DISTRICT or subject to immediate termination by the DISTRICT, in the event there is any misrepresentation or lack of compliance with the mandates of Section 287.133, Florida Statutes. The DISTRICT, in the event of such termination, shall not incur any liability to the CITY for any work or materials furnished. 8.5 The CITY shall be responsible and liable for the payment of all of its FICA/Social Security and other applicable taxes resulting from this AGREEMENT. 8.6 The CITY warrants that it has not employed or retained any person, other than a bona fide employee working solely for the CITY, to solicit or secure this AGREEMENT. Further the CITY warrants that is has not paid or agreed to pay any person, other than a bona fide employee working solely for the CITY, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the awarding or making of this AGREEMENT. For breach of this provision, the DISTRICT may terminate this AGREEMENT without liability and, at its discretion, deduct or otherwise recover the full amount of such fee, commission, percentage, gift, or other consideration. 8.7 The CITY shall allow public access to all project documents and materials in accordance with the provisions of Chapter 119, Florida Statutes. Should the CITY assert any exemptions to the requirements of Chapter 119 and related Statutes, the burden of establishing such exemption, by way of injunctive or other relief as provided by law, shall be upon the CITY. 8.7.1 Pursuant to Sections 119.07(3)(0), and 240.241 Florida Statutes, data processing software obtained by an agency under a license AGREEMENT which prohibits its disclosure and which software is a trade secret, as defined in Sections 812.081(c), Florida Statutes is exempt from the disclosure provisions of the Public Records law. However, the parties hereto agree that if a request is made of the DISTRICT, pursuant to Chapter 119, Florida Statute, for public disclosure of proprietary property being licensed to the CITY (Licensee) hereunder, the DISTRICT shall advise the CITY (Licensee) of such request and, as between the DISTRICT and the CITY (Licensee), it shall be the CITY's (Licensee's) sole burden and responsibility to immediately seek and obtain such injunctive or other relief from the Courts and to immediately serve Page 5 of 9, Exhibit "B" Contract File:\City�o 04/23f SOUTH ARIDA WATER MANAG ME:NT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS notice of the same upon the Licensor to protect the Licensor's claimed exemption under the Statute. 8.9 The CITY shall make reasonable efforts to obtain any necessary federal, state, local, and other governmental approvals, as well as all necessary private authorizations and permits, prior to the commencement of performance of this AGREEMENT. A delay in obtaining permits shall not give rise to a claim by the CITY for additional compensation. If the CITY is unable to obtain all necessgry permits in a timely manner, either party may elect to terminate this AGREEMENT, each party to bear its own costs, notwithstanding other provisions of this AGREEMENT to the contrary. 8.9 Pursuant to Section 216.347, F.S., the CITY is prohibited from the expenditure of any funds under this AGREEMENT to lobby the Legislature, the judicial branch, or another state agency. 8.10 The DISTRICT is a governmental entity responsible for performing a public service and therefore has a legitimate interest in promoting the goals and objectives of the agency. The work under this AGREEMENT involves a project consistent with these goals and objectives. Consequently, the DISTRICT is desirous of satisfactorily completing and successfully promoting this project with the cooperation of its CITY. Therefore, as the DISTRICT'S CITY for this project, the CITY assures the DISTRICT that the CITY, its employees, subcontractors and assigns will refrain from acting adverse to the DISTRICT'S legitimate interest in promoting the goals and objectives of this project. The CITY agrees to take all reasonable measures necessary to effectuate these assurances. In the event the CITY determines it is unable to meet or promote the goals and objectives of the project, it shall have the duty to immediately notify the DISTRICT. Upon such notification the DISTRICT, in its discretion, may terminate this AGREEMENT. ARTICLE 9 - RELATIONSHIP BETWEEN THE PARTIES 9.1 The CITY shall be considered an independent contractor and neither party shall be considered an employee or agent of the other party. Nothing in this AGREEMENT shall be interpreted to establish any relationship other than that of independent contractor between the parties and their respective employees, agents, subcontractors, or assigns during or after the performance on this AGREEMENT. Both parties are free to enter into contracts with other parties for similar services. 9.2 It is the intent and understanding of the Parties that this AGREEMENT is solely for the benefit of the CITY and the DISTRICT. No person or entity other than the CITY or the DISTRICT shall have any rights or privileges under this AGREEMENT in any capacity whatsoever, either as third -party beneficiary or otherwise. 9.3 The CITY shall not assign, delegate, or otherwise transfer its rights and obligations as set forth in this AGREEMENT without the prior written consent of the DISTRICT. Any attempted assignment in violation of this provision shall be void. 9.4 The CITY shall not pledge the DISTRICT's credit or make the DISTRICT a guarantor of payment or surety for any AGREEMENT, debt, obligation, judgement, lien, or any form of indebtedness. 9.5 The DISTRICT assumes no duty with regard to the supervision of the CITY and the CITY shall remain solely responsible for compliance with all safety requirements and for the safety of all persons and property at the site of AGREEMENT performance. ARTICLE 10 - M/WBE PARTICIPATION - 10.1 The CITY hereby acknowledges that no Minority and Women Business Enterprises (M/WBE) participation goal has been established for this AGREEMENT; however, both parties agree to provide the other advance notice of competitive contracts that may result from this AGREEMENT along with timelines for public notice and award of such contracts. In the event subsequent competitive contract awards do result in M/WBE participation, such participation shall be reported to the other party. Both the CITY and the DISTRICT will ensure compliance with the provisions of their respective Page 6 of 9, Exhibit "B" Conisact File:\City.doc 04/23/01 on 19 SOUTH RIDA WATER MANAGE1IENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS program, laws, ordinances and policies and will support the other's initiatives to the extent allowed by law. ARTICLE 11 - YEAR 2000 COMPLIANCE In the event that the CITY's performance, as required by this AGREEMENT, involves the use and/or delivery of a software, firmware and/or hardware product of any kind, the following language in this Article 11 shall apply: 11.1 CITY represents and warrants that the software, firmware and/or hardware is designed to be used prior to, during, and after the calendar year 2000 A.D., and that the software, firmware and/or hardware will operate during each such time period without error relating to date data, specifically including any error relating to, or the product of, date data which represents or references multiple centuries. 11.2 Without limiting the generality of the foregoing, CITY further represents and warrants: 1) that the software, firmware and/or hardware will not abnormally end or provide invalid or incorrect results of date data, specifically including date data which represents or references multiple centuries; 2) that the software, firmware and/or hardware has been designed to ensure Year 2000 Compliance, including, but not limited to, date data century recognition, calculations which accommodate same century and multiple century formulas and date values, and date data interface values that reflect the century; and 3) that the software, firmware and/or hardware includes Year 2000 Compliance. For the purposes of this AGREEMENT, Year 2000 Compliance also means that the software, firmware and/or hardware will: (i) manage and manipulate data involving dates and leap year calculations, including single century formulas and multi -century formulas, and will not cause an abnormally ending scenario within the application or generate incorrect values or invalid results involving such dates; and (ii) provide that all date -related user interface functionalities and data fields include the indication of century. 11.3 Included as part of this Year 2000 Compliance Warranty, CITY shall provide to the DISTRICT, at no additional charge with, (i) fixes, corrections and updates to the software, firmware and/or hardware that are necessary to ensure Year 2000 Compliance as defined herein, and (ii) advice, consultation and assistance to use the software, firmware and/or hardware and diagnose and correct Year 2000 Compliance problems that may exist with either the software, firmware and/or hardware, (iii) and, if deemed necessary by the DISTRICT, replacement software, firmware and/or hardware which is compliant with this Year 2000 Compliance Warranty. 11.4 If this AGREEMENT involves the purchase and/or license and/or receipt of a software, firmware and/or hardware product of any kind previously developed by the CITY or other third party, and in the event fixes, corrections and updates of the software are not technically feasible, the CITY shall accept the return of the, software, firmware and/or hardware if this Year 2000 Compliance Warranty is breached, and terminate any and all applicable Schedules and/or License Agreements. Further, the CITY shall refund to the DISTRICT the full amount of the License Fee actually paid to the CITY for the software; and, in the case of hardware return, the CITY shall refund to the DISTRICT the full amount of the hardware actually paid to the CITY by the DISTRICT. In addition to the foregoing, the CITY shall refund to the DISTRICT all maintenance fees paid by the DISTRICT, if any, for on-going support, new software releases and product updates. All such refunds shall be made to the DISTRICT. Notwithstanding any other provision in the AGREEMENT to the contrary, the DISTRICT hereby reserves all rights to obtain all remedies to the fullest extent of the law, without any limitation whatsoever, as may be determined by a court of competent jurisdiction (including damages and equitable relief). 11.5 The term Year 2000 Compliance Warranty shall mean, collectively, the warranties set forth herein. This Article 11, in its entirety, shall survive the expiration or termination of this AGREEMENT. Page 7 of 9, Exhibit "B" Contract File:ICity.doc 04/23/01 02-U8 SOUTH #ORIDA WATER MANAGEMENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS ARTICLE 12 - GENERAL PROVISIONS 12.1 Notwithstanding any provisions of this AGREEMENT to the contrary, the parties shall not be held liable for any failure or delay in the performance of this AGREEMENT that arises from fires, floods, strikes, embargoes, acts of the public enemy, unusually severe weather, outbreak of war, restraint of Government, riots, civil commotion, force majeure, act of God, or for any other cause of the same character which is unavoidable through the exercise of due care and beyond the control of the parties. Failure to perform shall be excused during the continuance of such circumstances, but this AGREEMENT shall otherwise remain in effect. This provision shall not apply if the "Statement of Work" of this AGREEMENT specifies that performance by CITY is specifically required during the occurrence of any of the events herein mentioned. 12.2 In the event any provisions of this AGREEMENT shall conflict, or appear to conflict, the AGREEMENT, including all exhibits, attachments and all documents specifically incorporated by reference, shall be interpreted as a whole to resolve any inconsistency. 12.3 Failures or waivers to insist on strict performance of any covenant, condition, or provision of this AGREEMENT by the parties, their successors and assigns shall not be deemed a waiver of any of its rights or remedies, nor shall it relieve the other party from performing any subsequent obligations strictly in accordance with the terms of this AGREEMENT. No waiver shall be effective unless in writing and signed by the party against whom enforcement is sought. Such waiver shall be limited to provisions of this AGREEMENT specifically referred to therein and shall not be deemed a waiver of any other provision. No waiver shall constitute a continuing waiver unless the writing states otherwise. 12.4 Should any term or provision of this AGREEMENT be held, to any extent, invalid or unenforceable, as against any person, entity or circumstance during the term hereof, by force of any statute, law, or ruling of any forum of competent jurisdiction, such invalidity shall not affect any other term or provision of this AGREEMENT, to the extent that the AGREEMENT shall remain operable, enforceable and in full force and effect to the extent permitted by law. 12.5 This AGREEMENT may be amended only with the written approval of the parties hereto. 12.6 This AGREEMENT states the entire under- standing and AGREEMENT between the parties and supersedes any and all written or oral representations, statements, negotiations, or contracts previously existing between the parties with respect to the subject matter of this AGREEMENT. The CITY recognizes that any representations, statements or negotiations made by DISTRICT staff do not suffice to legally bind the DISTRICT in a contractual relationship unless they have been reduced to writing and signed by an authorized DISTRICT representative. This AGREEMENT shall inure to the benefit of and shall be binding upon the parties, their respective assigns, and successors in interest. ARTICLE 13 — SAFETY REQUIREMENTS 13.1 The CITY shall require appropriate personal protective equipment in all operations where there is exposure to hazardous conditions. 13.2 The CITY shall instruct employees required to handle or use toxic materials or other harmful substances regarding their safe handling and use, including instruction on the potential hazards; personal hygiene and required personal protective measures. A Material Safety Data Sheet (MSDS) shall be provided by the CITY to the DISTRICT on each chemical product used. 13.3 The CITY shall comply with the standards and regulations set forth by the Occupational Safety and Health Administration (OSHA), the Florida Department of Labor and Employment Security and all other appropriate federal, state, local or DISTRICT safety and health standards. 13.4 It is the CITY's sole duty to provide safe and healthful working conditions to its employees and Page 8 of 9, Exhibit "B" Contract File:\City.doc 44/23/41 02- 198 SOUTH GORIDA WATER MANARME NT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS those of the DISTRICT on and about the site of AGREEMENT performance. 135 The CITY shall initiate and maintain an accident prevention program which shall include, but shall not be limited to, establishing and supervising programs for the education and training of employees in the recognition, avoidance, and prevention of unsafe conditions and acts. 13.6 The CITY shall erect and maintain, as required by existing conditions and performance of the AGREEMENT, reasonable safeguards for safety and protection, including posting of danger signs and other warnings, against hazards. 13.7 The CITY shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury, or loss to: 13.7.1 employees on the work and other persons who may be affected thereby; including pedestrians, visitors, or traveling public; 13.7.2 the work, materials, and equipment to be incorporated therein; whether in storage on or off the site, under care, custody or control of the CITY, or the CITY's subcontractors; and 13.7.3 other properties at the site or adjacent thereto; such as trees, shrubs, lawns, walks, utilities, pavement, roadways, structures, building, vehicles, and equipment not designated for removal, relocation or replacement in the course of work. 13.8 The CITY shall provide first aid services and medical care to its employees. 13.9 The CITY shall develop and maintain an effective fire protection and prevention procedures and good housekeeping practices on the work site throughout the AGREEMENT. 13.10 Emergencies: In emergency affecting safety of persons or property on or about the site or as a result of the work; the CITY shall act, timely and with due diligence, to prevent threatened damage, injury, or loss. 13.11 Environmental: When the CITY, CITY's subcontractors, or subcontractors, use petroleum products, hazardous chemicals, or any other chemicals used on or about the site, the CITY shall be responsible for handling these chemical constituents in accordance with federal, state and local regulations during the terms of the AGREEMENT. For accidental discharges or releases onto the floor, air, ground, surface waters, ground waters, it shall be the CITY's sole responsibility to respond immediately to clean the site, at his expense, to the complete satisfaction of federal, state, local regulatory agencies and to the DISTRICT requirements. 13.12 The DISTRICT may order the CITY to halt operations under the AGREEMENT, at the CITY's expense, if a condition of immediate danger to the public and/or DISTRICT employees, equipment, or property exist. This provision shall not shift the responsibility or risk of loss for injuries or damage sustained from the CITY to the DISTRICT; and the CITY shall remain solely responsible for compliance with all federal, state and local safety requirements, provisions of this section, and safety of all persons and property on or about the site. Page 9 of 9, Exhibit "B" Contract FileACity.doc 04/23/01 02- 108 • EXHIBIT "C" STATEMENT OF WORK • CONSTRUCTION AND RETROFITTING THE DRAINAGE SYSTEM IN THE CITY OF MIAMI, PINEHURST NEIGHBORHOOD 1.0 INTRODUCTION The City of Miami is a partner with the District in implementing solutions to improve water quality in Wagner Creek. The Wagner Creek tributary of the Miami River was identified as a priority area in the 1995 Biscayne Bay SWIM plan for water quality remediation. After the completion of the SWIM plan, the District facilitated the development of a strategic action plan for the Upper Wagner Creek Basin to promote partnering and implementation of solutions. Among the solutions identified, is the retrofitting of urban stormwater systems to treat runoff into the creek to lower solids and nutrients. These solutions are key to the achievement of specific water quality performance measures that will restore and protect Biscayne Bay. 2.0 OBJECTIVE The objective of this project is to improve surface water quality, habitat value, and aesthetics in the Upper Wagner Creek. 3.0 SCOPE OF WORK The City shall be responsible for the satisfactory completion of all permitting and work effort hereunder and shall provide the District with the Deliverables as set forth herein. The City shall complete the retrofitting of the drainage system in the Pinehurst neighborhood (hydrologic unit no. 30, about 500 acres) that includes water quality treatment that meets or exceeds current District criteria for new construction. Final design shall include a series of best management practices such as exfiltration trenches, drainage wells, and pollution control boxes. 4.0 WORK BREAKDOWN STRUCTURE The work to be performed under this Agreement is set forth as Tasks below. Agreement execution refers to the last date of execution of this Agreement by the Parties: Task 1: Design/Specifications. The City shall be responsible for the design of the drainage system including a detailed layout of the design area, specifications, and construction schedule. Page 1 of 2, Exhibit "C", Agreement No, C-12410 02— 19 8 Trask I . Deliverables Within twelve (12) months of Agreement execution the City shall provide one (1) copy of the plans for the design and related specifications for the drainage system in the Pinehurst neighborhood. Task 2: Prepare and issue bid documents. The City shall prepare a complete set of bidder documents, advertise the project, select a bidder, and award a contract for the services required by the Pinehurst drainage system Task 2 Deliverables Within fifteen (1 S) months of Agreement execution the City shall provide one (1) copy of the bidder documents for the drainage system in the Pinehurst neighborhood. Task 3: Construct improvements. The City shall construct the improvements to the Pinehurst drainage system as required by the design and related specifications set forth under Task 1 above. Task 3 Deliverables Within thirty six (36) months of Agreement execution the City shall as -built drawings of the drainage system in the Pinehurst neighborhood. 5.0 SITE LOCATION The location for work under this agreement is in the upper Wagner Creek drainage area within the City of Miami. Page 2 of 2, Exhibit "C, Agreement No, C-12410 02— 19 Q . EXHIBIT "D" PAYMENT AND DELIVERABLE SCHEDULE CONSTRUCTION AND RETROFITTING THE DRAINAGE SYSTEM IN THE CITY OF MIAMI, PINEHURST NEIHBORHOOD • A summary deliverable and payment schedule for each task associated with this project is set forth below. • All deliverables shall be submitted to the District's Project Manager. The District's Project Manager will determine the successful completion of each task. All deliverables will be subject to District review and comment, and comments shall be incorporated by the City into revised deliverables for final District approval. r • All documents must be well written and clearly understood by District reviewers. • Specific deliverables associated with each task are in the summary table below. Due dates for all deliverables are based on the number of months following the date of Agreement execution. • The City agrees to provide the District all deliverables, data and information pursuant to this Agreement in a four -digit date format (Year 2000 compliant). Acceptability of all work will be based on the judgment of the District that the work is accurate, precise and timely and in compliance with all other aspects of the Agreement. • The District will pay up to 50% of the direct costs associated with construction and retrofitting of the stormwater system, but no more than the amount authorized by the South Florida Water Management District's Governing Board. • Payment shall be made following receipt and acceptance by the District of project deliverables in accordance with the schedule set forth below. Total payment by the District for all work completed hereunder shall not exceed the amount of $450,000.00. Funding in this amount has been authorized by the District for the fiscal year 2001. • Request for payment must be accompanied by adequate supporting cost documentation, including copies of invoices paid by the City. Note I All dates are referenced from the date of contract execution. Page 1 of 1, Exhibit "D", Agreement No. C-12410 02— 198 TASK DELIVERABLES DUE --I DATE' DISTRICT PAYMENT CITY COST -SHARE TOTAL L One copy of desi n/s eciftcations documents 12 months $0 $0 $0 2. One copy of bidder documents 15 months $0 $0 $0 2. One copy of as -built drawings 36 months $450,000 $1,050,000 $1,500,000 TOTAL $1,500,000.00 Note I All dates are referenced from the date of contract execution. Page 1 of 1, Exhibit "D", Agreement No. C-12410 02— 198