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HomeMy WebLinkAboutAgreement-3RE. 3 SOUTH FLORIDA WATER MANAGEMENT,���ti�`�, AGREEMENT l,1 �� i l71 CV 1� THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT (hereinafter referred to as DISTRICT) HEREBY ENTERS INTO THIS AGREEMENT WITH: Name: CITY OF MIAMI Address: 444 SW 2"d Avenue 8th Floor Miami, FL 33130 Project Manager: Dianne Johnson Telephone No: (305) 416-1285 Fax No: (305) 416- 2153 Hereinafter referred to as: CITY This number must appear on all Invoices and Correspondence OT040560 MBE PARTICIPATION: 0 % PROJECT TITLE: WAGNER CREEK RENOVATION PROJECT COST SHARING INFORMATION Total Project Cost: $ 4,350,000.00 CITY Contribution: $ 3,350,000.00 ut tuuuwirg Exhthits are attached hereto and made apart or :!L 2 c1�iKi t. 1Y:r Exhibit "A" - Special Provisions Exhibit "B" - General Terms and Conditions Exhibit "C" - Statement of Work Exhibit "D" - Payment and Deliverable Schedule Exhibit "E" - Not Applicable Exhibit "F" - Not Applicable Exhibit "G" - Not Applicable TOTAL DISTRICT CONSIDERATION: S1,000,000.00 Multi -Year Funding (If Applicable) Fiscal Year: Fiscal Year: Fiscal Year: *Subject to District Governing Board Annual Budget Approval AGREEMENT TERM: Thirt District Project Manager: Elizabeth Abbott Telephone No: (305) 377-7274 Ext. 7290 Fax No. (305) 377-7293 SUBMIT INVOICES AND NOTICES TO THE DISTRICT AT: South Florida Water Management District 3301 Gun Club Road West Palm Beach. Florida 33406 Attention: Procurement Department Exhibit "H" - Not Applicable Exhibit "I" - Not Applicable Exhibit "J" - Not Applicable Exhibit "K" - Not Applicable Exhibit "L" - Not Applicable Exhibit "M" - Not Applicable JaV a1111LLsflns AGi.'.EEMENT TYPE: Not -to -Exceed Fiscal Year: ?risea Year: Fi ;.al Year: v-six (36) months EFFECTIVE DATE: Last Date of Execution by Parties District Contrast Administrator: Rupert Giroux (561) 682-2532 Fax No.: (561) 681-6275 SUBMIT NOTICES TO THE CITY AT: CITY OF MIAMI C/O Dept. of Capital Improvement 444 SW 2nd Avenue 8th Flom. Miami, FL 33130 Attention: Dianne Johnson 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, a municipal corporation of the State of SOUTH FLORIDA WATER MANAGEMENT DISTRICT Florida BY ITS GOVERNING BOARD Accepted By: Attest: Joe Arriola, C:.y Manager 'Date Priscilla A. Thompson, City Clerk Date Approved as to Form & & Correctines. Alejandro Vilarello, City Attorney Date Accepted By: Date: SFWMD Frank Hayden, Procurement Director COL'NSE OVED PROCUREMENT APP7VED 4 Date: Date: fdiA/i7 .1 SOUTH FLORIDA WATER MANAGEMENT DISTRICT CONTRACT EXHIBIT "A" SPECIAL PROVISIONS The purpose of this Exhibit "A" is to delineate any and all changes, deletions and/or additions to the Exhibit "B" Genera. Terms & Conditions. In the event of any conflict between this Exhibit "A" and any other provision specified in this Contract, this Exhibit "A" shall take precedence. 1. A new Article 1.4 is hereby added as follows: H ►-3 "The CITY shall submit quarterly reports to the DISTRICT throughout the term of this AGREEMENT. Ana, requests for changes to the Exhibit "C" Statement of Work shall be submitted by the CITY in writing to they DISTRICT for approval, and the DISTRICT shall submit its comments/approval in writing to the CITY within ter-] (10) days after receipt of the request for change. The DISTRICT shall be responsible for initiating any amendment to this AGREEMENT, if required." 2. Article 2.4 is hereby deleted and replaced as follows: "The CITY shall submit quarterly financial statements to the DISTRICT providing a detailed accounting of va1r expenditures incurred hereunder throughout the term of this AGREEMENT. The CITY shall report and document the amount of funds expended per month during the quarterly reporting period and the AGREEMENT expenditure to date. The DISTRICT shall only be obligated to pay for a maximum no -to -exceed AGREEMENT funditl limitation of $1,000,000.00. In no event shall the DISTRICT be liable for any expenditures hereunder in excess off' $1,000,000.00." 3. A new Article 2.5 is hereby added as follows: "The CITY is hereby authorized to contract with third parties (subcontract) for engineering and construction services awarded through a competitive process comparable to Chapters 255 and 287, Florida Statutes. The CITY shall not subcontract, assign, or transfer any other work under this AGREEMENT without the prior written consent of the DISTRICT's Project Manger. The CITY agrees to be responsible for the fulfillment of all work elements included in any subcontract and agrees to be responsible for the payment of all monies due under any subcontract. It is understood and agreed by the CITY that the DISTRICT shall not be liable to any subcontractor for any expenses or liabilities incurred under the subcontract(s)." 4. Article 7.1 is hereby modified to add the following paragraph: "The CITY shall maintain books, records and documents directly pertinent to performance under this AGREEMENT as described above. The CITY shall similarly require each subcontractor to maintain and allow access to such records for audit purposes." 5. Article 7.2 is hereby deleted in its entirety and replaced as follows: "Both the DISTRICT and the CITY shall have joint ownership rights to 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 other party, its subcontractor(s), assign(s), agent(s) and/or successor(s) as required by the Exhibit "C", Statement of Work. Both parties' rights to deliverables received under this AGREEMENT shall include the unrestricted and perpetual right to use, reproduce, modify and distribute such deliverables at no additional cost to the other party. Notwithstanding the foregoing, ownership of all equipment and hardware purchased by the CITY under this AGREEMENT shall be deemed to be Exhibitt "A" Special Provisions Page 1 of 2 Cooperative Agreement Np. 0T040560 SOUTH FLORIDA WATER MANAGEMENT DISTRICT CONTRACT the property of the CITY upon termination of this AGREEMENT. All tangible property shall remain owned by CITY.,, 6. Articles 6.3, 7.3, 7.4, 7.5 and 11 are hereby deleted in their entirety. SFWMD • Jce of •unsel Approved By: Date: I By: ic PROCUREMENT APPROVED ► ,V Date: Exhibitt "A" Special Provisions Cooperative Agreement Np. 03040560 Page 2 of 2 SOUTH FLORIDA WATER MANAGEMENT DISTRICT 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 of 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 DISTRICT's Contract Number and shall be sent to the DISTRICT'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. 3.3 The DISTRICT shall pay the full amount of the invoice within thirty (30) days following DISTRICT Page 1 of 8, Exhibit "B" Contract File:\City.doc 10/01/03 SUBSTITUTE ATTACHMENT ITEM RE. 3 - 10/23/03 SOUTH FLORIDA WATER MANAGEMENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS 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 MANAGEMENT/ 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 1 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 1 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 1 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 in connection with the CITY's subcontract. ARTICLE 6 - TERMINATIONIREMEDIES 6.1 If either party 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 party 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. 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 Iaw and/or equity. 6.2 The DISTRICT may terminate this Page 2 of 8, Exhibit "B" Contract File:\City.doc 10/01/03 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/03 SOUTH FLORIDA WATER MANAGEMENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS 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 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 Page 3 of 8, Exhibit "B" Contract Fi!e:ICity.doc 10/01/03 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/03 SOUTH FLORIDA WATER MANAGEMENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS 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 'awfully 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 or access to such software shall be restricted to designated DISTRICT owned systems or equipment. Removal of any copy of licensed software is prohibited. Page 4 of 8, Exhibit "B" Contract File:\City.doc 10/01/03 SUBSTITUTE ATTACHMENT ITEM RE. 3-10123/03 SOUTH FLORIDA WATER MANAGEMENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS 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 Iaws 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)(o), 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 notice of the same upon the Licensor to protect the Licensor's claimed exemption under the Statute. 8.8 The CITY shall make reasonable efforts to obtain any necessary federal, state, local, and other governmental approvals, as well as all necessary Page 5 of 8, Exhibit "B" Contract File:\City.doc 10/01/03 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/03 SOUTH FLORIDA WATER MANAGEMENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS 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 necessary 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 - MBE PARTICIPATION 10.1 The CITY hereby acknowledges that no Minority Business Enterprises (MBE) 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 MAYBE 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 program, laws, ordinances and policies and will support the other's initiatives to the extent allowed by law. ARTICLE 11- YEAR 2000 COMPLIANCE Article 11 is hereby deleted. Page 6 of 8, Exhibit "B" Contract File:ICity.doc 10/01/03 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/03 SOUTH FLORIDA 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 7 of 8, Exhibit 'B" Contract File:\City.doc 10/01/03 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/03 SOUTH FLORIDA WATER MANAGEMENT DISTRICT EXHIBIT "B" GENERAL TERMS AND CONDITIONS those of the DISTRICT on and about the site of AGREEMENT performance. 13.5 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 8 of 8, Exhibit "B" Contract File:\City.doc 10/01/03 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/03 EXHIBIT "C" STATEMENT OF WORK WAGNER CREEK DREDGING PROJECT CITY OF MIAMI 1.0 Introduction As part of the City of Miami's (City) Capital improvement Plan, the City is planning to dredge some of the sediments (approximately 2 feet depth) in Wagner Creek to improve conveyance capacity within the waterway and alleviate potential flooding. While planning the project, soil, water and sediment samples were taken to characterize the project and to determine handling and disposal requirements for the sediment. The testing results identified the presence of contaminants including dioxin/furan compounds, heavy metals, such as mercury, lead and others, polynuclear aromatic hydrocarbons (PAHs), and pesticides in concentrations above target threshold levels. These results changed the priority, purpose and scope of the project, and will result in significant additional cost for the project. The project purpose now includes a high priority environmental cleanup element to remove all the sediments to bedrock (estimates vary up to 6 feet in depth), and to dry and dispose of the material in an approved Class I landfill. This effort will improve water quality and habitat within Wagner Creek and will result in water quality improvement in the adjoining water bodies (Seybold Canal, Miami River and Biscayne Bay). In 2003, the South Florida Water Management District (District) recognized the importance of implementing and completing the full scope of this project, despite the substantial additional costs anticipated. Accordingly, the District approved in its FY04 budget, funding to support the completion of this high priority project. 2.0 Objective The objective for this project is to alleviate flooding experienced during and after storm events and improve water quality in Wagner Creek. Completion of this project will improve the conveyance capacity of Wagner Creek, remove pollutants from the creek's bottom, and improve the water quality within the creek and downstream water bodies. 3.0 Scope of Work The scope of work for this agreement consists of the City of Miami implementing the Wagner Creek Renovation Project, Phase IV and V from NW 14th Avenue to NW 11t Street, as identified in the City's Capital Improvement Plan. The project consists of the design, permitting and implementation of the dredging and disposal of sediment material along approximately 4,400 linear feet of Wagner Creek. It also includes removal of debris along the creek and exotic tree removal from the banks. In addition, the creek banks shall be stabilized with concrete revetment mats to prevent erosion. All work shall be performed in accordance with the applicable permitting agencies' permit requirements. Exhibit "C" Statement of Work Page 1 of 4 0T040560 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/03 4.0 Work Breakdown Structure Project Management The CITY shall be responsible for the satisfactory completion of this project and may retain a consultant to provide the professional services needed to complete the dredging plans, specifications and permits, and to assist the CITY during construction. The CITY is responsible for project management, budget management and quality control. The CITY is responsible for reviewing and approving deliverables from the consultant to ensure that the project objectives are met. The following scope of work shall be performed: Task 1: Design/Permitting/Bidding Task 1 includes completion of the design, permitting, and bidding processes needed through issuance of the Notice -to -Proceed. Task 1 consists of the followiii activities. Design Permitting Bi. dding Research and Data Gathering Surveying Geotechnical Investigation Preparation and Evaluation of Design Alternatives Preliminary Plan Development Preliminary and Updated Project Cost Estimates Preparation of Construction Drawings and Specifications Project Management Processing Permits Through Required Government Agencies Development of a Preliminary Characterization Sampling Plan and a Corrective Action Plan as required by Miami -Dade County DERM Identification of Temporary Drying Site Sediment and Water Testing Responses to Requests for Additional Information Advertising/Distribution of Bid Specifications Bid Specification Addendums Bid Opening Bid Technical/Commercial Review Selection of Contractor(s) Authorization of Contractor(s) Insurance Requirements Exhibit "C" Statement of Work Page 2 of 4 OT040560 SUBSTITUTE ATTACHMENT ITEM RE. 3-1.0/23/03 • Issuance of Notice -to -Proceed Deliverable: Copy of County Permit and Copy of Notice -to -Proceed. Task 2: Construction Task 2 includes construction, disposal of sediment and other waste products, engineering oversight, and project management of the construction activities as identified below. Construction Implementation of Wagner Creek Renovation Project, Phases IV and V in accordance with approved plans, specifications and permit requirements Dredging approximately 4,400 linear feet of Wagner Creek from NW 14th Avenue to NW 11'h Street Preparation of temporary storage site, including, as required, grading, construction of berm, placement of watertight lining, filter fabric and/or similar containment methods Temporary storage of sediment Drying and hauling of sediment and other waste products Disposal of sediment and other waste products per permit requirements Bank stabilization with concrete revetment mats from NW 14th Avenue to NW 11t Street Removal of exotic trees on canal banks from NW 14th Avenue to NW 11th Street Implementation of permit special requirements including turbidity control measures and manatee protection requirements Progress and final surveying • Water quality and sediment testing, as required Construction area access control Community outreach on project status with area residents Other construction activities that are directly and appropriately associated with achieving the project objectives or completing the project scope Engineering Oversight and Project Management Addendums or revisions to design plans and specifications Site Visits Inspection and Testing Construction Observation Final Certification Project Management Deliverable: Copy of the Construction Final Acceptance Certification (PAC) for project Exhibit "C" Statement of Work Page 3 of 4 OT040560 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/03 EXHIBIT "D" PAYMENT AND DELIVERABLES SCHEDULE Total payment by the District shall not exceed the amount of $1,000,000.00. All invoices shall be accompanied by adequate documentation to support actual expenditures incurred by the City within the not -to -exceed amounts specified below in accordance with Article 3.2 of the Agreement. Payment by the District is further subject to receipt of quarterly progress reports from the City with documentation to demonstrate completion of each task in accordance with Exhibit "C" Statement of Work requirements. The City is responsible for reviewing and approving deliverables from the consultant to ensure that project objectives are met. The City is also responsible for project management, budget management and quality control with the consultant. Task Task 1: Design/Permitting Bidding Task 2: Construction Deliverable Copy of County Permit Notice -to -Proceed Construction Final Acceptance Certification (FAC) Not -to Exceed Total Payment Due Date* (Estimated) 12 months 1b,months 32 months Status reports and pay requests for this task shall be submitted on a quarterly basis. DISTRICT Not -to Exceed Payment** $50,000.00 $50,000.00 $900,000.00 $1,000,000.00** * All dates are referenced from the date of execution of this agreement and are estimated. ** The District shall only be obligated to pay for documented actual expenditures within the not - to -exceed amounts specified above. In the event actual expenditures by the City are less than the not -to -exceed for a particular task, the City shall have the right to apply the unexpended balance towards a subsequent task. The City shall provide written notice of its decision to exercise this right. In no event shall the District's total obligation exceed $1,000,000.00 as specified above. The City is responsible for any additional funds either through local revenues, grants, other appropriations, and/or other funding sources. Exhibit "D" Payment and Deliverable Schedule o'r040560 SUBSTITUTE ATTACHMENT ITEM RE. 3-10/23/93