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AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND
URS CORPORATION -SOUTHERN FOR PROGRAM MANAGEMENT SERVICES TO
MANAGE CONSTRUCTION PROJECTS FOR FACILITIES AND PARKS PURSUANT
TO REQUEST FOR QUALIFICATIONS (RFQ) NO. 111-99/00
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THIS AGREEMENT, dated as of the o�7 day of 7U '1J6 , 2001, by and
between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation duly organized and
existing under the laws of the State of Florida (CITY), URS CORPORATION -SOUTHERN, a
California corporation having offices at Eastern Financial Building, Suite 1000, 700 South Royal
Poinciana Boulevard, Miami Springs, Florida 33166 (CONSULTANT).
WITNESSETH:
WHEREAS, on March 28, 2001, the Mayor and City Commission authorized the issuance
of Request for Qualifications No. 111-99/00, to provide Program Management Services to Manage
Construction Projects for Facilities and Parks (the RFQ); and
WHEREAS, pursuant to the ensuing competitive selection process, the Mayor and City
Commission have approved the firm of URS Corporation -Southern (URS or, in the alternative,
Consultant), and further authorized the Administration to enter into negotiations with the firm for
an Agreement to provide Program Management Services pursuant to the RFQ; and
WHEREAS, accordingly, the City and Consultant have negotiated the foregoing Agreement
for Program Management Services to Manage Construction Projects within the City.
NOW, THEREFORE, the parties hereto, and in consideration of the mutual promises,
covenants, agreements, terms, and conditions herein contained, and other good and valuable
consideration, the respect and adequacy are hereby acknowledged, do agree as follows.
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ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the terms defined in Article I shall have the following
meanings and the other provisions of this Article I shall apply:
1,1 City:
The "City" (or "Owner") shall mean the City of Miami Beach, a Florida
municipal corporation, having its principal offices at 1700 Convention Center
Drive, Miami Beach, Florida, 33139. The City, as a governmental entity, is
subject to the availability of funds and annual appropriation of funds by its
legislative body and other governmental authorities or sources of revenue, in
an amount to allow continuation of its performance under this Agreement.
In the event of lack of funding for this Agreement, or a project subject to this
Agreement, this Agreement may be terminated by the City pursuant to the
procedures set forth in Article 9.
1.2 City
Commission: "City Commission" shall mean the governing and legislative body of the City.
The City Commission shall be the final authority to do or to approve the
following actions or conduct by passage of an enabling resolution or
amendment to this Agreement.
1.2.1 The City Commission shall be the body to consider, comment upon, or
approve of any amendments or modifications to this Agreement.
1.2.2 The City Commission shall be the body to consider, comment upon, or
approve any assignment, sale, transfer or subletting of this Agreement or any
interest therein, or any subcontracts made pursuant to this Agreement.
Assignment .
1.2.3 All City Commission approvals and authorizations shall be expressed by
passage of an appropriate enabling resolution and, as determined by the City
if applicable or required, by the execution of an appropriate amendment to
this Agreement.
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1.2.4 The City Commission shall hear appeals from the Administrative decision of
the City Manager upon the Consultant's written request, in which case the
Commission's decision shall be final.
1.2.5 The City Commission shall approve or consider all contract amendments
which exceed the sum of Twenty -Five Thousand Dollars and 00/100
($25,000.00), or such other amount as may be specified by the City of Miami
Beach Code in its Procurement Ordinance, as same may be amended from
time to time.
1.3 City
Manager: The "City Manager" shall mean the Chief Administrative Officer of the City.
.• The City Manager shall be construed to include any duly authorized
designees, including, a Program Coordinator, and shall serve as the City's
representative to whom administrative requests for approval shall be made
and who shall issue authorizations exclusive of those authorizations reserved
to the City Commission, to the Consultant. These authorizations shall
include, without limitation: reviewing, approving, or otherwise commenting
upon the schedules, plans, reports, estimates, contracts and other documents
submitted to the City by the Consultant pursuant to the Scope of Services set
forth in this Agreement, as same may be amended from time to time.
1.3.1 The City Manager shall decide, in his professional discretion, matters arising
pursuant to this Agreement, which are not otherwise expressly provided for
in this Agreement, and he shall attempt to render Administrative decisions
promptly to avoid unreasonable delay in the progress of the Consultant's
work.
1.3.2 The City Manager shall additionally be authorized, but not required, at the
request of the Consultant, to reallocate monies already budgeted toward
payment of the Consultant; provided, however, that he cannot increase the
ConsuItant's compensation or other budgets established by this Agreement.
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1.3.3 The City Manager, in his administrative discretion, may consult with the City
Commission concerning disputes or matters arising under this Agreement
regardless of whether such matters or disputes are enumerated herein.
1.3.4 The City Manager shall additionally be the sole representative of the City
authorized to issue a Notice to Proceed as referenced in Article 6.2 herein.
The City Manager may consider, comment upon, or approve modifications
in accordance with applicable laws and ordinances.
1.3.5 The City Manager may approve contract amendments which shall not exceed
the sum of Twenty -Five Thousand Dollars and 00/100 ($25,000.00), or such
other amount as may be specified by the City of Miami Beach Code, in its
Procurement Ordinance, as same may be amended from time to time.
The City' Manager -may, 'in his sole discretion, form a committee or
committees, or inquire of or consult with persons for the purpose of receiving
advice and recommendations relating to the exercise of his powers, duties and
responsibilities under this Agreement.
1.4 Proposal
Documents: "Proposal Documents" shall mean Request for Qualifications No. 111-99/00
entitled, "Program Management Services to Manage Construction Projects
for Facilities and Parks" (the RFQ), issued by the City in contemplation of
this Agreement, together with all amendments thereto, if any, and the
Consultant's proposal in response thereto (Proposal), which is incorporated
by reference in this Agreement and made a part hereof; provided, however,
that in the event of an express conflict between the proposal and this
Agreement, this Agreement shall prevail.
1.5 Consultant: "Consultant" is herein defined as URS Corporation -Southern, a California
corporation having offices at Eastern Financial Building, Suite 1000, 700
South Royal Poinciana Boulevard, Miami Springs, Florida 33166.
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1.5.1 As part of the services to be provided by the Consultant pursuant to this
Agreement, the parties contemplate that Consultant may be required to
perform general engineering services. To that end, all engineers required in
order to fulfill the services contemplated by this Agreement, shall be duly
licensed and certified by the State of Florida to engage in the practice of
engineering in this State. Similarly, any and all special inspectors, as and if
required pursuant to this Agreement, shall be duly certified, licensed and
registered under Chapter 471, Florida Statutes, as an engineer, or under.
Chapter 481, as an architect, and shall additionally possess the requisite
occupational license from the City and the County. Project Field,
Representatives are not special inspectors as the term is utilized in this
Paragraph.
1.5.2 The Consultant shall be liable for the Consultant's services, responsibilities
and liabilities under this Agreement, as well as the services, responsibilities
and liabilities of any subconsultants, and any other person or entity acting
under the direction or control of the Consultant. When the term "Consultant"
is used in this Agreement, it shall be deemed to include any subconsultants
and any other person or entity acting under the direction or control of
Consultant. Any subconsultants retained by Consultant pursuant to this
Agreement and the Program, must receive the prior written approval of the
City.
1.6 City's
Program
Coordinator: The "City's Program Coordinator" shall mean the individual appointed by the
City Manager who shall be the City's authorized representative to coordinate,
direct, and review on behalf of the City, all matters related to this Agreement,
except as otherwise provided herein.
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1.7 The Program: The estimated $75 million Program for Capital Facilities and Parks Projects
undertaken and to be completed by the City over an estimated period of fifty-
nine (59) months; said Program consisting of the Projects identified in
Exhibit A.
1.8 The Projects: Each of the individual improvements to be constructed or installed in
connection with the Program, which may include, without limitation, capital
improvements, as well as a variety of enhancement projects. A listing of
anticipated Projects to be performed under the scope of this Agreement is
included as Exhibit A, attached hereto and made a part hereof.
1.9 Force
Majeure: "Force Majeure" shall mean any delay occasioned by superior or irresistible
force(s) occasioned by violence in nature without the interference of human
agency such as hurricanes, tornados, flood and loss caused by fire and other
similar unavoidable casualties; changes in federal law, state or local laws,
ordinances, codes or regulations, enacted after the date of this Agreement and
having a substantial impact on the Program, or any of the Projects therein;
other causes beyond the parties control; or by any other such causes which
the City and the Consultant decide in writing justify the delay. Provided,
however, that market conditions, labor conditions, construction industry price
trends, and similar matters which normally impact on the bidding process
shall not be considered a Force Majeure.
1.10 Contractor: "Contractor" or "Contractors" shall mean those persons or entities responsible
for performing the construction work or providing the materials, supplies and
equipment identified in the bid and contract documents for the Program, or
any of the Projects included and contemplated therein.
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1.11 Contract
Amendment: "A Contract Amendment" shall mean the written order to the Project Manager
approved by the City, as specified in this Agreement, and signed by the
City's duly authorized representative, authorizing a change in a Project or the
method and manner of performance thereof, or an adjustment in the fees or
completion dates, as applicable. Contract Amendments shall be approved by
the City Commission if they exceed Twenty -Five Thousand Dollars and
00/100 ($25,000.00), or by the City Manager if they are Twenty -Five
Thousand Dollars and 00/100 ($25,000.00) or less in amount (or such other
amount as may be specified by the City of Miami Beach Code, in its
Procurement Ordinance, as same may be amended from time to time). Even
for Contract A.rnendmPnts for less than Twenty -Five Thousand Dollars and.
00/100 ($25,000.00) the City Manager shall retain the right to seek and
obtain concurrence of the City Commission for approval of any such Contract
Amendments. Additionally, all Contract Amendments shall be reported as
informational items to the General Obligation Bond Oversight Committee
and, whenever possible, prior to their submittal for consideration by either the
City Manager or the Mayor and City Commission, as prescribed herein.
1.12 Design
Professionals: The consulting engineers, architects, and other consultants retained by the
City to provide for the design of the improvements to be constructed under
the Program, and design related services during construction of the Projects.
(Note: As used in Exhibit B to this Agreement, the terms "A/E", and/or "A/E
Consultant," shall be deemed to refer to Design Professionals, as defined
herein and as the term may be used in the body of this Agreement).
1.13 Program
Completion: "Program Completion" shall be defined as that date which is fifty-nine (59)
months from the issuance of the first Notice to Proceed by the City, as
provided in Article 6.2, and shall also refer to the date of the end of the initial
term of this Agreement, as provided in Article 4.1.
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ARTICLE 2
SCOPE OF SERVICES
2.1 In General
The Consultant will generally provide the services necessary to implement the series of
Capital Infrastructure Projects that together comprise the Program. The initial Projects to be included
under the Scope of this Agreement are attached and incorporated to the Scope of Services attached
and incorporated hereto as Exhibit A. It is recognized that Consultant's work effort and manpower
summary are based upon a fifty-nine (59) month Program duration and the Project listing presented
in Exhibits A and C, respectively. The parties recognize that additional Projects may subsequently
be identified that fall within the Program, due to scheduling or other requirements. If the City
-deterniines,'iti its•Soie and exclusive discretion, that such Projects May be included within the Scope
of this Agreement then, subject to negotiation and agreement of the parties as to the terms thereof,
any such additional Projects shall be reflected in an amendment to this Agreement.
Generally, Program Management Services shall be provided by the Consultant for a variety
of administrative duties including, General Program Management; Planning Phase Program
Management; Design Phase Program Management; Construction Phase Program Management;
Construction Observation; and miscellaneous (upon request) support services. Each of these types
of services shall be provided by the Consultant, working in concert with the City, the City's Design
Professionals, and Contractors.
2.2 Basic Services
The Basic Services to be performed by Consultant are as set forth in this Article 2, and as
more specifically set forth in Exhibit B, attached and incorporated hereto (collectively, "Scope of
Services" or "Basic Services"). The Basic Services include, but are not limited to, General Program
Management Services; Planning Phase Program Management Services; Design Phase Program
Management Services; Construction Phase Program Management Services; and Field Observation
Program Management Services.
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2.2.1. It is the intent of the parties that the Program, consisting of several separate Projects,
be administrated and implemented in a cost effective and time efficient manner. The construction
process shall have minimal impact on the City, its residents and visitors, and the completed Project
shall meet the aesthetic, functional and maintenance criteria established by the City, and in the
manner consistent with comparable public Infrastructure Projects.
2.2.2 The Consultant shall be responsible for administering the City's contracts with the
Design Professionals and Contractors for the Projects, and for complete coordination of all design
efforts and construction so as to result in a unified, finished product and minimum interference
between Projects.
2.2.3 The Consultant shall provide complete documentation and control of documents to
effect timely performance by all entities and support for defense of claims and litigation.
2.2.4 The Consultant is expected to provide professional support in areas such as, but not
limited to, contract scoping, plan reviews, evaluation of completeness of submittals, payment
submittals, etc., as would be typical for management of any program of this magnitude.
2.3 Basic Services to be Primarily Performed by Key Personnel
Consultant shall provide the Basic Services, including any necessary, incidental and related
activities and services required by the Basic Services and contemplated in Consultant's level of
effort. The parties acknowledge that is it intended that the Key Personnel, identified in Exhibit C,
attached and incorporated hereto, shall be primarily responsible for providing the Basic Services.
Specific or daily services to be performed by Consultant may be identified in directives or
instructions of the City's Program Coordinator. The Consultant must receive the prior written
consent of the City's Program Coordinator before utilizing any personnel, other than those named
in Exhibit C, to provide Basic Services. The Consultant shall use its best efforts at all times to cause
the work.to be performed in the best and soundest way and in the most expeditious and economical
manner consistent with the interests of the City. All Basic Services will be provided to monitor
whether design and construction work will be generally consistent with the Program and the specific
Projects contemplated therein.
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2.4 The design management and design review services of the Consultant will include design
work. The construction contracts that are required in connection with the Program will be separately
entered into by the City, utilizing the procurement procedures under applicable state law as well as
pursuant to the Miami Beach City Code, in its Procurement Ordinance, as same may be amended
from time to time.
2.5 The City and Consultant acknowledge that the Scope of Services does not delineate every
detail and minor work task required to be performed by Consultant to complete the Program. If,
during the course of the performance of the Services contemplated in this Agreement, Consultant
determines that work should be performed to complete the Program which is in the Consultant's
opinion, outside the level of effort originally anticipated, whether or not the Scope of Services
identifies the work items, Consultant shall notify the City's Program Coordinator, in writing, in a
timely manner, and obtain said Program Coordinator's consent, before proceeding with the work.
If Consultant proceeds with said work without notifying and obtaining the consent of the City's
Program Coordinator, said work shall be deemed to be within the original level of effort, and deemed
included as a Basic Service herein, whether or not specifically addressed in the Scope of Services.
Notice to the City's Program Coordinator does not constitute authorization or approval by the City
to perform the work. Performance of work by Consultant outside the originally anticipated level of
effort without the prior written consent of the City shall be at Consultant's sole risk.
2.6 Staffing/Program Management Services.
2.6.1 Due to the nature of the services included in this Agreement, and to ensure the timely
completion of the Program, Consultant shall provide a dedicated level of effort through the staffing
of the Key Personnel identified herein. Consultant's Key Personnel are identified by name in Exhibit
C, attached and incorporated herein. The Key Personnel indicated in Exhibit C, shall provide
services for the Program for the duration of this Agreement and shall be committed to the execution
of the services required for the Program, unless changed, removed, or replaced by the City as
provided in Articles 2.6.4 and 2.6.5. The Key Personnel identified in Exhibit C, shall reside in the
South Florida area for the term of their assignment on the Program.
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2.6.2 Consultant shall at all times furnish sufficient and adequate personnel, as may be
required and approved by the City, to perform or assist in performing all required functions in the.
quantities, specialty areas, and job classifications and for such duration as may be necessary for the
performances of all services under this Agreement and in accordance with the staffing schedule
(Manpower Summary) shown in Exhibit C, attached and incorporated hereto. It is the intent of the
parties that Exhibit C shall be amended, if necessary, and as may be directed or approved in writing
by the City, to reflect the level of effort contemplated for subsequent contract years, as may be
reflected in amendments establishing compensation for such subsequent contract years.
2.6.3 The parties acknowledge that at certain times (such as phase -in of the Program,
phase -out, and certain interim periods) the staffing levels may need to be increased or decreased.
Therefore, the staffing schedule in Exhibit C may be increased or decreased based upon the written
instructions of the City's Program Coordinator, which shall take into account Program status and
work load. The Consultant's duties and Basic Services described in this Agreement and Exhibit(s)
hereto shall be primarily performed from the Consultant's Office. If required, Consultant, in
consultation with the City, shall also establish and staff such other temporary field offices within the
City as are required to facilitate construction for each of the Projects, such as trailers co -located with
the various Contractors. It is understood that any temporary field offices will be supplied by others.
2.6.4 The Parties acknowledge that it is their intent, absent special circumstances, that the
Key Personnel shall be designated to the Program for the duration of this Agreement. Consultant
will provide the Key Personnel identified by name in Exhibit C for the Program as long as said
personnel are in Consultant's employment. The Key Personnel identified in Exhibit C will not be
changed, removed, or replaced, without the prior written approval of the City. The City shall not
unreasonably withhold approval of replacement staff. In the event the City shall give approval for
the replacement, change or removal of any Key Personnel, the Consultant shall bear the costs of all
relocation expenses associated with such event. Consultant shall provide the City with such
information as is necessary to determine the suitability of proposed new Key Personnel, including
without limitation, evidence of its ability to continue to render unimpaired services under this
Agreement, including quality and schedules.
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2.6.5 Other than as set forth in Section 2.6.1, above, pertaining to Key Personnel, the City
shall have the right to require replacement of any of Consultant's staff with persons that have been
approved by the City. In such event, the Consultant shall bear the costs of all relocation expenses.
If the City desires to request removal of any of Consultant's staff, the City shall first meet with
Consultant and provide reasonable justification for said removal.
2.7 Codes/Regulations
Consultant, as it relates to its work, represents and acknowledges to the City that it is
knowledgeable of codes, rules and regulations applicable in the jurisdictions in which the Program
is located, including without limitation, local ordinances and codes (City of Miami Beach arid
Miami -Dade County), Florida Laws, rules and regulations and Federal laws, rules and regulations.
The Consultant agrees to comply with such applicable laws, codes, rules, and regulations now in
effect and as may be amended or adopted at any time during the term of this Agreement, and shall
further take into account known pending changes to the foregoing. The Consultant shall review all
Program construction contract documents and require that the Design Professionals insert the
required City, County, State, and Federal requirements.
2.8 Information
Consultant is responsible for dissemination of all Program information to all applicable City
personnel, departments, agencies, boards, and committees, as designated by the City's Program
Coordinator, including, without limitation, the General Obligation Bond Oversight Committee, and
the Mayor and City Commission at such designated regularly scheduled City Commission meetings.
This shall include, but not be limited to, copies of all estimates, proposals, accounts, reports, and
other written information required by the City's Program Coordinator to be disseminated in
connection with the Program. With respect to the Support Services identified in the Scope of
Services attached and incorporated as Exhibit B hereto, relating to the Community Involvement and
Public Information Program, such shall include provision of information to the general public,
visitors and business owners regarding the Program and the individual Projects.
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2.9 Changes
Consultant shall not have authority, without first consulting with and obtaining the written
approval of the Program Coordinator, to order a material change in the drawings or specifications
for any Project, or take any action or approve any change which increases the cost of the Program
or any Project, or the time of performance of any work.
2.10 Oualifications and Licensing
Consultant represents that it is experienced and fully qualified to perform the services
contemplated by this Agreement, and that it is properly licensed pursuant to the applicable laws,
rules and regulations to perform such services.
2.11 Technical Accuracy
Design Professionals shall be responsible for the technical accuracy of their respective
documents. Notwithstanding the preceding sentence, Consultant shall be responsible for the
coordination of all services furnished under this Agreement, and therefore shall be responsible to the
City for the technical review of all documents, particularly including but not limited to, the contract
agreements and scope of services with Design Professionals, for completeness and potential conflicts
and ambiguities, as noted in the Scope of Services and in accordance with the standards of its
profession. Accordingly, Consultant shall direct any necessary corrections or revisions pursuant to
its review of said documents including, but not limited to, errors or deficiencies in cost estimates,
selection of materials, systems and equipment, construction administration, and other services, as
noted in Exhibit B.
2.I2 Program Filing System
Consultant shall establish and maintain files of documents, letters, reports, plans, etc.
pertinent to the Program. Consultant shall provide City with a copy of applicable Program
correspondence for City to file in its filing system. In addition, Consultant shall provide electronic
files of all final Primavera P3 and Prologue software files to the City throughout the Program. The
Consultant shall provide City, through the City's contracts with the Design Professionals, with a
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detailed set of "as built" plans, and specifications and approved shop drawings for each Project,
including mylar reproducible "record" drawings, and a Compact Disc containing electronic AutoCad
record drawing files, in a format compatible with City established standards.
2.13 Technical Library
Consultant shall assemble and maintain a technical library that will include design drawings
for all phases of design, specifications, site base maps, design standards, reference standards and
literature, building codes; and other relevant governmental regulations and policies useful for
expeditious design and construction of the Program.
ARTICLE 3
RELATIONSHIP OF THE PARTIES
3.1 The City shall enter into separate agreements with one or more Design Professionals to
provide for the design of the Projects, as well as provide design -related services during the
construction of the Projects. The City shall also enter into separate agreements with one or more
Contractors to provide for the construction of the Projects. Finally, the City may enter into separate
agreements for any other aspects of work associated with the Program (referred collectively to as the
Program Contracts). The City's Program Contracts shall be administrated, as specified pursuant to
the Scope of Services herein, by Consultant, subject to the directions and approvals of the City, as
required by this Agreement.
3.2 The City and the Consultant mutually agree that the City retains final and ultimate
responsibility for its independently contracted Program Contracts.
3.3 The Consultant covenants with the City to furnish its services hereunder properly, in
accordance with the applicable standards of profession care in the performance of such services and
in conformance with applicable construction, building and health codes and other applicable Federal,
State and local rules, regulations and laws, throughout the term of this Agreement. The City's
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participation in the design and construction of the Program or any Project in no way relieves the
Consultant of its professional duties and responsibilities under applicable law and under the contract
documents.
3.4 In providing the Program Management Services described in this Agreement, the Consultant:
shall use its best efforts to maintain, on behalf of the City, a constructive, professional, cooperative
working relationship with the Design Professionals, Contractors, and others that have been
contracted to perform work pertaining to the Program. While the services to be provided by
Consultant under this Agreement will be provided under the general direction of the City's Program
Coordinator, it is the intent of this Agreement to allow the Consultant to coordinate the performance
of all design and construction work to the extent such coordination by the Consultant is permitted
by the contracts for the design and construction work. The Consultant has no authority to direct the
means and methods of design and construction and has no authority over jobsite safety. Consultant
shall not be responsible for the acts or omissions of other parties engaged by the City nor for their
construction means, methods, techniques, sequences, or procedures, or their health and safety
precautions and programs. It is further the intent of this Agreement that the Consultant shall perform
its duties under this Agreement in a competent, timely and professional manner and that it shall be
responsible to the City for any failure in its performance except to the extent that acts or omissions
by the City or others make such performance impossible.
3.5 Nothing in this Agreement shall be construed to mean that the Consultant assumes any of the
responsibilities, obligations or duties of the Design Professionals or Contractors. The Contractors
shall be responsible for construction of the Projects in accordance with their construction contracts
with the City. The Design Professionals are responsible for the design requirements and meeting the
design criteria as established by the City upon advice from the Consultant for the Projects and shall
perform in accordance with their professional services agreements with the City. Except as set forth
in this Agreement, the Consultant will be entitled to rely upon the Contractors and Design
Professionals for the proper performance of services undertaken pursuant to their contracts with the
City. The Consultant is responsible for the overall management of the Program, and the Projects to
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be constructed as part of the Program, in accordance with this Agreement.
3.6 Whenever during the term of this Agreement, Consultant is required to verify, review, or
consider any work performed by others, including but not limited to the Design Professionals,
Contractors, and other consultants retained by the City, the intent of such requirement is to enable
the Consultant to use its professional expertise to identify any discrepancies or omissions that are
inconsistent with industry standards for design or construction of comparable public projects; or
which are inconsistent, with applicable laws, codes, ordinances, and regulations; or which are
inconsistent with standards or decisions provided in writing by the City's Program Coordinator.
Consultant will use reasonable care and skill in accordance with and consistent with customary
professional standards to identify discrepancies and omissions. Consultant shall timely notify
respective Design Professionals of such discrepancies and omissions via a set of marked -up drawings
and specifications. Should the Design Professional fail to properly address comments forwarded to
it, Consultant shall notify Program Coordinator, in writing, in a timely manner, and provide a
recommended course(s) of action to rectify the subject discrepancy and/or omission. The
Consultant's obligation to "timely report" to the City's Program Coordinator shall mean that
Consultant shall report the discrepancies and omissions as soon as possible under the circumstances,
taking into account the requirements of the Program schedule and the individual Project schedules.
3.7 The City shall have the right at any time, and in its sole and absolute discretion, to submit
for review to consulting engineers or consulting architects or other consultants, engaged by the City
at its own expense for that purpose, any or all parts of the work performed by the Consultant, and
the Consultant shall cooperate fully in such review at the City's request.
ARTICLE 4
TIME FOR PERFORMANCE
4.1 The initial term of this Agreement shall be for fifty-nine (59) months; said initial term
commencing upon the issuance of the first Notice to Proceed, pursuant to Article 6.2. The City, at
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its sole option and discretion, may renew the Agreement, under the same terms and conditions
provided herein, for an additional one (1) year term, said option to be exercised by the City, upon
thirty (30) days written notice to Consultant prior to the expiration of the initial term; provided
further, that either party shall have the right to terminate this Agreement as set forth in Section 9.
Any extension of this Agreement beyond the initial term and the one-year renewal term
provided herein shall be subject to further City Commission approval. It is further provided that this
Agreement shall automatically terminate should funds for the payment of Consultant not be
budgeted and made available by the City Commission during any corresponding City Fiscal Year
throughout the term provided herein, including any renewal term(s). In that event, the compensation
to Consultant shall be the same as provided in Article 9. Notwithstanding the preceding, this
Agreement shall only commence, and the first Notice to Proceed shall only be issued, upon approval
by the Mayor and City Commission and execution by both parties hereto.
4.2 In the event Consultant is unable to timely complete any Project because of delays resulting
from untimely review by City or other governmental authorities having jurisdiction over the Project;
and such delays which are caused by factors outside the control of Consultant, Consultant shall
provide City with immediate written notice stating the reason for such delay and a revised
anticipated schedule of completion. City, upon review of Consultant's submittal and such other
demonstration as the City may require, shall grant a reasonable extension of time for completion
of the Project and may provide reasonable compensation, if appropriate. It shall be the responsibility
of Consultant to notify City promptly in writing whenever a delay in approval by a governmental '
agency is anticipated or experienced, and to inform City of all facts and details related to the delay.
4.3 In the event any Design Professional fails to complete plans for a Project or any Contractor
fails to substantially complete a Project on or before the substantial completion date specified in its
agreement with the City, or if a Design Professional or Contractor is granted an extension of time
beyond said substantial completion date, 'through no fault of Consultant, and Consultant's services
are required beyond the substantial completion date, then Consultant's services shall be extended
and Consultant shall be compensated in accordance with Article 6 for all services rendered by
Consultant beyond the initial substantial completion date.
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ARTICLE 5
AUTHORIZATION OF WORK
5.1 Basic Services
It is the intent of the parties that the Projects shall be completed generally within the time
periods specified in the Master Program Schedule. The Schedule shall be completed by the
Consultant and reviewed and updated thereafter on a monthly basis throughout the term of this
Agreement. The parties acknowledge that due to the nature and complexity of the Program, the
Master Program Schedule may also require revision based on subsequent circumstances, subject to
the provisions of Article 4 herein. The Basic Services shall be the primary responsibility of the Key
Personnel. The prior written consent of the City's Program Coordinator must be obtained before lam,
individual other than the Key Personnel are used to provide Basic Services.
5.2 Support Services
The Support Services identified in Task 7 of Exhibit B (Scope of Services). Such Services
may only be authorized in writing by the City, in its sole and absolute discretion, prior to
commencement of same.
ARTICLE 6
COMPENSATION AND METHOD OF PAYMENT
6.1 Basic Services (and Other Direct Costs)
6.1.I For Basic Services performed by Consultant following the commencement of this
Agreement, and through Program Completion, as same is defined in Article 1.13, the City agrees to
pay Consultant utilizing an hourly billing rate method, as hereinafter described, up to a maximum
amount not -to -exceed $4,831,149 and to reimburse Consultant for Other Direct Costs, defined as
direct non -salary or out-of-pocket expenses directly attributable to the work and including mileage
allowance, communications (radio/cell phones), software costs, hardware costs, reproductions
services, postage, and office supplies, up to a maximum amount not to exceed $143,376, for a total
amount maximum amount not -to -exceed $4,974,525 as set forth in Exhibit D, attached hereto and
incorporated herein. The City agrees to pay the Consultant a maximum amount which shall not
exceed the total amount budgeted and approved by the City for Basic Services to be performed under
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this Agreement. as set forth in Exhibit D attached hereto and incorporated herein. At the completion
of each fiscal year, the annual budgeted amount shall be submitted and considered by the Mayor and
City Commission pursuant to the City's annual budget review approval process.
6.1.2 For Basic Services performed under this Agreement during City Fiscal Year 2001,
commencing upon issuance of the first Notice -to -Proceed, through September 30, 2001, the City
agrees to pay Consultant utilizing an hourly billing rate method, as hereinafter described, up to a
maximum amount not -to -exceed $464,410 (this amount is inclusive of all interim services provided
by Program Manager prior to execution of this Agreement), and to reimburse Consultant for Other
Direct Costs, defined as direct non -salary or out-of-pocket expenses directly attributable to the work
and including mileage allowance, communications (radio/cell phones), software costs, hardware
costs, reproduction services, postage and office supplies (all as more specifically defined in Task 6
of Exhibit B), up to a maximum amount not to exceed) $42,493, for a total maximum amount not -to -
exceed $506,903, as set forth in Exhibit E, attached hereto and incorporated herein.
6.1.3 The maximum amounts set forth in subsections 6.1.1 and 6.1.2 may not be exceeded
in the absence of a written amendment to this Agreement, said amendment to be approved by the
Mayor and City Commission. However, it is recognized that the City has the right to require the
Consultant to increase its level of services during any year, and that the projected schedule of design
and construction upon which the annual budgets are based upon are likely to be amended and/or
modified during the course of that year. Accordingly, it is agreed and understood that unless the
budgeted and approved amount for such year is amended, the Consultant shall not be required to
provide services which, but for the budget limit established for such year, would otherwise entitle
it to compensation.
6.2 Notice -to -Proceed
Prior to initiating the performance of any services under this Agreement, Consultant must
receive a Notice -to -Proceed from the City's Program Coordinator. It is recognized that, following
the issuance of the first Notice to Proceed, the City's Program Coordinator will thereafter issue a.
separate Notice -to -Proceed authorizing work to commence and establishing not to exceed budget
amounts at the beginning of each fiscal year.
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6.3 Hourly Billing Rate Method
6.3.1 The term Hourly Billing Rate Method with respect to Consultant and its Key
Personnel and certain identified subconsultants, shall mean the hourly billing rates as shown in
Exhibit F, attached and incorporated hereto, and which includes the actual direct labor cost rate and
overhead rate plus a margin on the direct labor costs. Commencing on October 1, 2001, the Hourly
Billing Rate Schedule shown in Exhibit F, may be adjusted annually based upon the lesser of three
percent (3%) or the Miami Fort Lauderdale Consumer Price Index issued by the U.S. Department
of Labor, Bureau of Labor Statistics. Such adjustment shall be calculated by multiplying the ratio
of the April index by the previous year's index by the hourly billing rates to define the new hourly
billing rates. Notwithstanding the preceding, in no event shall the total maximum not -to -exceed
mcunt cf the Agreement, as sct-forth iri Article 6.1.1, be exceeded or increased by any such annual
adjustments based upon the increase in schedule of fees and charges.
6.3.2 Payments made on the Hourly Billing Rate Method shall be paid only for time
directly attributable to the Program and shall not include daily travel time to and from the City.
Travel time within the City, or special travel outside the City on City business, shall be compensable.
A breakdown of these costs shall be kept current and easily accessible to City. The Key Personnel
and other employees shall keep daily time sheets, showing a breakdown of each workday, which
shall be provided on a monthly basis to the City's Program Coordinator, upon request, with each
invoice.
6.4 Reimbursables
6.4.1 Direct non -salary expenses, entitled Reimbursables, directly attributable to the
Program, will be charged at actual costs. Reimbursables shall be submitted for payment by
Consultant in accordance with City procedures. Reimbursables covered hereby, in excess of the
aggregate sum of $3,000, must have the prior written approval of the City's Program Coordinator
prior to payment of same. Reimbursables payable hereunder shall include, but not be limited to, the
following:
A. Identifiable transportation expenses in connection with the Program as
defined in Task 6.1 of Exhibit B. Transportation expenses to locations
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outside the Miami -Dade, Broward, Palm Beach County area or from
locations outside the Miami -Dade, Broward, Palm Beach County area will
not be reimbursed unless specifically pre -authorized in writing by the City's
Program Coordinator.
B. Identifiable per diem, meals and lodgings, taxi fares and miscellaneous travel -
connected expenses for Consultant's personnel subject to the limitations of
Section 112.061 Florida Statues. Reimbursables covered hereby must have
the written approval of the City's Program Coordinator prior to being
incurred.
C. Identifiable communication expenses including cellular telephones for office
and resident project representative staff as defined in Task 6.2 of Exhibit El.
D. Software costs for the field office Management Information System as
defined in Task 6.3 of Exhibit B.
E. Hardware costs for the field office as defined in Task 6.4 of Exhibit B.
F. Cost of printing, reproduction or photography as defined in Task 6.6 of
Exhibit B.
G. All office supplies, computer hardware and other equipment which are
purchased as a Reimbursable shall become the property of City after
reimbursement to Consultant and shall be delivered and ownership
transferred, if required, to City within ten (10) days after receipt of written
notice requiring such transfer. All licenses, warranties, maintenance, and
service contracts (including without limitations those pertaining to software)
shall be transferred into the City's name at the same time. City shall incur all
costs to maintain the licenses, warranties and service contracts in effect upon
receipt from Consultant.
6.4.2 A detailed statement of expenses must accompany any request for reimbursement..
Expenses other than auto travel must be documented by copies of paid receipts, checks or other
evidence of payment.
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6.5 Method of Billing and Payment
6.5.1 With respect to Basic Services, Consultant shall submit billings on a monthly basis
in a timely manner. These billings shall identify the nature of the work performed; the total hours
of work performed by employee category and the respective hourly billing rate associated with the
employee category. In the event subconsultant work is accomplished utilizing the lump sum method,
the percentage of completion shall be identified. Billings shall also itemize and summarize
Reimbursables by category. Where written approval of the City is required for Reimbursables, a
copy of said approval shall accompany the billing for such Reimbursable. When requested,
Consultant shall provide backup for past and current invoices that records hours for Basic Services
by employee category and Reimbursables by category so that total hours and costs by neighborhood
may be determined.
6.5.2 The City shall pay Consultant undisputed portions of billings within (30) calendar
days from receipt of Consultant's statement.
6.5.3 With respect to payment for Support Services, unless a different method of payment
is specified by the City, the City shall pay Consultant one hundred percent (100%) of the total shown
to be due on its statement, following completion of the services described. Payment will be made
within thirty (30) calendar days following the City's review and approval of the deliverables set forth
in the invoice submitted with the Consultant's statement.
6.5.4 Final payment of the Consultant upon Program completion must be approved by the
Mayor and City Commission.
6.5.5 Payment will be made to Consultant at:
URS Corporation
Eastern Financial Building
Suite 1000
700 Royal Poinciana Boulevard
Miami Springs, Florida 33166
Attn: Account Receivables
ARTICLE 7
ADDITIONAL SERVICES AND CHANGES IN SCOPE OF SERVICES
7.1 City or Consultant may request changes that would increase, decrease, or otherwise modify
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the Scope of Services to be provided under this Agreement. Such changes roust be approved by the
City Manager or the Mayor and City Commission, depending on the scope and amount of the
change, and must be contained in a written amendment, executed by the parties hereto, with the same
formality and of equal dignity herewith, prior to any deviation from the terms of this Agreement,
including the initiation of any Additional Services. City shall compensate Consultant for such
Additional Services, together with any applicable Reimbursables, as provided in Article 6. The
Consultant shall be compensated on the basis of the hourly rates set forth in Exhibit F. Said hourly
rates are to be only for the time directly attributable to work authorized under this Agreement.
ARTICLE 8
CITY'S RESPONSIBILITIES
8.1 The City shall assist Consultant by placing at Consultant's disposal all information City has
available pertinent to the Program, including previous reports and any other data relative to design
or construction of the Program. It shall be fully understood that City, in making such reports, site
information and documents available to the Consultant is in no way certifying as to the accuracy or
completeness of such data, including any information provided in the City's Request for
Qualifications No. 1 1 1-99/00, and backup documentation thereto. Any conclusions or assumptions
drawn through examination thereof shall be the sole responsibility of the Consultant and subject to
whatever measure it deems necessary to final verification essential to its performance under this
Agreement.
8.2 The City shall arrange for access to, and make all provisions for, Consultant to enter upon
public and private property as required for Consultant to perform its services.
8.3 City shall review any itemized deliverables/documents identified in the Scope of Services
that are presented by Consultant and shall respond as it deems necessary, in its sole judgment and
discretion, with any comment within the time set forth therein.
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8.4 The City shall give prompt written notice to Consultant whenever City observes or otherwise
becomes aware of any development that affects the Scope or timing of Consultant's services.
8.5 The City shall provide Consultant with parking decals for Program staff. It is anticipated
that up to 17 decals will be required through the duration of the Program. Consultant shall return
decals to City at Program completion.
8.6 The City shall diligently respond to any and all items requiring approval by the City Manager
and/or the Mayor and the City Commission.
ARTICLE 9
TERMINATION
9.1 Termination for Cause
The City may terminate this Agreement for cause in the event that the Consultant (1) violates
any provisions of this Agreement or performs same in bad faith; or (2) unreasonably delays the
performance of the Services, and Consultant fails to cure same within thirty (30) days following
written notice to Consultant. In that event, such termination shall become effective upon seven (7)
days written notice to Consultant.
9.1.1 In the event this Agreement is terminated by the City for cause, the City, at its sole
option and discretion, may take over the Services and complete them by contracting with another
consultant(s) or otherwise. In such event, the Consultant shall be liable to the City for any additional
cost incurred by the City due to such termination. "Additional Cost" is defined as the difference
between the reasonable actual cost of completion of such incomplete services, and the cost of
completion of such Services which would have resulted from payments to the Consultant hereunder
had the Agreement not been terminated.
9.1.2 Payment only for Services satisfactorily performed by the Consultant and accepted
by the City prior to receipt of a Notice of Termination for Cause, shall be made in accordance with
Article 6 herein and the City shall have no further liability for compensation, expenses or fees to the
Consultant, except as set forth in Article 6.
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9.1.3 Upon receipt of a written Notice of Termination, the Consultant shall promptly
assemble and submit to the City, as provided herein or as required in the written notice, all
documents, including drawings, calculations, specifications, correspondence, and all other relevant
materials affected by such termination.
9.1.4 In the event of a termination for cause, no payments to the Consultant shall be made
(1) for Services not satisfactorily performed, as same shall be determined at the City's option and
discretion; and (2) for assembly of submittal of documents, as provided above.
9.2 Termination for Convenience
The City, in addition to the rights and options to Terminate for Cause, as set forth above, or
any other provisions set forth in this Agreement, retains the right to terminate this Agreement at its
sole option, at any time, for convenience, without cause and without penalty, when in its sole
discretion it deems such termination is in the best interest of the City, upon notice to Consultant, in
writing, fourteen (14) days prior to termination.
9,2.1 In the event the City terminates the Consultant's services for its convenience, as
provided herein, the Consultant shall be compensated for all Services rendered up to the time of
receipt of said written termination notice, and for the assembly and submittal to the City of
documents for the Services performed, in accordance with Article 6 herein, and the City shall have
no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article
6.
9.3 Termination by Consultant
The Consultant may only suspend or terminate this Agreement for cause in the event that the
City willfully violates any provisions of this Agreement or unreasonably delays payment for the
Services, and has failed to cure same within thirty (30) days following written notice from the
Consultant. In that event, Consultant may suspend services until payment(s) are current, or
terminate this Agreement upon written notice to the City, which termination shall become effective
thirty (30) days from the date of said Notice. In that event, payment for Services satisfactorily
performed prior to the date of termination shall be made in accordance with Article 6 herein.
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9.3.1 The Consultant shall have no right to terminate this Agreement for convenience of
the Consultant.
9.4 Implementation of Termination
In the event of termination, either for cause or for convenience, the Consultant, upon receipt
of the Notice of Termination, shall (1) stop the performance of Services under this Agreement on
the date and to the extent specified in the Notice of Termination; (2) place no further orders or
subcontracts except for any that may be authorized, in writing, by the City, prior to their occurrence;
(3) terminate all orders and subcontracts to the extent that they relate to the performance of the
Services terminated by the Notice of Termination; (4) promptly assemble and submit, as provided
herein, all documents for the services performed, including drawings, calculations, specifications,
correspondence, and all other affected by the termination; (5) complete
performance of any Services as shall not have been terminated by the Notice of Termination and as
specifically set forth therein, unlessadditional services are directed by the City, in which case the
City will pay the consultant fees associated with the additional directed services.
9.5 Non -solicitation
The Consultant warrants that it has not employed or retained any company or person, other
than an employee working solely for the Consultant, to solicit or secure this Agreement; and that it
has not paid, nor agreed to pay any company or other person any fee, commission, gift or other
consideration contingent upon the execution of this Agreement. For breach or violation of this
warranty, the City has the right to terminate this Agreement without liability to the Consultant for
any reason whatsoever.
10.1 Ownership of Documents
ARTICLE 10
MISCELLANEOUS
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Upon the City meeting its payment obligations to Consultant, all finished or unfinished
documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared or
provided by Consultant in connection with this Agreement shall become the property of the City,
whether the Program or the Projects for which they are made is completed or not, and shall be
delivered by Consultant within ten (10) days after receipt of written notice. Any re -use of documents
by City on any extension of the contemplated project, or on a different project, without written
verification or adaptation by Consultant for the specific purpose intended, will be without liability
to Consultant, and at the City's sole risk.
10.2 . Records
Consultant shall keep such records and accounts and require any and all Consultant and
subconsultants to keep such records and accounts as may be necessary in order to record complete
and correct entries as to personnel hours charged to the Program, and to each individual Project
therein, and any expenses for which Consultant expects to be reimbursed. All books and records
relative to the Program will be available at all reasonable times for examination and audit by City
and shall be kept for a period of three (3) years after the completion of all work to be performed
pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be
grounds for City's disallowance of any fees or expenses based upon such entries. A1I books and
records which are considered public records shall, pursuant to Chapter 119, Florida Statutes, be kept
by Consultant in accordance with such statutes.
10.3 Equal Opportunity Employment
10.3.1 Consultant agrees that it will not discriminate against any employee or applicant for
employment for work under this Agreement because of race, color, religion, sex, age, national origin,
disability or sexual orientation and will take affirmative steps to ensure that applicants are employed
and employees are treated during employment without regard to sexual orientation, race, color,
religion, sex, age, national origin, or disability. This provision shall include, but not be limited to,
the following: employment upgrading, demotion or transfer; recruitment advertising, layoff or
compensation; and selection for training, including apprenticeships. Consultant agrees to furnish
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City with a copy of its Affirmative Action Policy.
10.4 Public Entity Crimes Act
In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes), a
person or affiliate who is a consultant, who has been placed on the convicted vendor list following;
a conviction for a public entity crime may not submit a bid on a contract to provide any goods or
services to the City, may not submit a bid on a contract with the City for the construction or repair
of a public building or public work, may not bid on leases of real property to the City, may not be
awarded or perform work as a contractor, supplier, subcontractor, or subconsultant under a contract
with the City, and may not transact business with the City in excess of the threshold amount
provided in Section 287.017, Florida Statutes, for Category Two for a period of 36 months from the
date of being placed on the convicted vendor list. Violation of this Section by Consultant shall result
in cancellation and may result in Consultant's debarment.
10.5 No Contingent Fee
Consultant warrants that it has not employed or retained any company or person, other than
a bona fide employee working solely for Consultant, to solicit or secure this Agreement and that it
has not paid or agreed to pay any person, company, corporation, individual or firm other than a bona
fide employee working solely for Consultant any fee, commission, percentage, gift, or other
consideration contingent upon or resulting from the award or making of this Agreement. For the
breach or violation of this provision, City shall have the right to terminate the Agreement without
liability at its discretion, to deduct from the contract price, or otherwise recover, the full amount of
such fee, commission, percentage, gift, or consideration.
10.6 Subconsultants
10.6.1 Consultant shall obtain prior written approval of the City prior to changing or
modifying the subconsultants, and other professional associates (collectively Subconsultants)
identified in Exhibit C. Any such services performed by any Subconsultants shall be passed through
to City without additional charge by the Consultant, with the exception of the Project Field
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Representative categories as shown on Exhibit F. Such categories will be invoiced at the Hourly
Billing Rate identified. All such work shall be itemized on invoices from such Subconsultants,
showing work performed and charges incurred.
10.6.2 The Consultant represents that it has made and will make reasonable investigation
of all Subconsultants to be utilized in the performance of work under this Agreement to determine
that they possess the skill, knowledge and experience necessary to enable them to perform the
services required. Nothing in this Agreement shall relieve the Consultant of its prime and sole
responsibility for the performance of the work under this Agreement.
10.6.3 All rates, multipliers and any other fees charged by any Subconsultants shall be not
more than those rates, multipliers and other fees in any contracts that any such Subconsultants may
have either with the City directly or as a Subconsultant under some other City agreement.
10.6.4. Consultant shall bind each and every approved Subconsultant to the terms stated in
this Section and shall require the proper licensing of such Subconsultants.
10.6.5 If any of the services outlined in this Agreement are furnished by Consultant by
obtaining the services of Subconsultants, Consultant shall provide City with proposals and contracts
between the Subconsultants and Consultant outlining the services to be performed and the charges
for same, together with any other documentation required by City.
10.7 The Consultant hereby certifies that this Agreement is made in good faith, and without fraud,
collusion of any kind with any other consultant for the same work, and that the Consultant is acting
solely on its own behalf without connection with, or obligation to, any undisclosed person or firm.
10.8 Assignment
This Agreement, or any interest herein, shall not be assigned, transferred or otherwise
encumbered by Consultant, under any circumstances, without the prior written consent of City.
10.9 Indemnification of City
Subject to the applicable comparative negligence law in the State of Florida, Consultant
agrees to the following indemnification provisions:
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10.9.1 Consultant shall, at all times hereafter, indemnify, hold harmless and defend the City,
its agents, servants and employees from and against any claim, demand or cause of action of any
kind or nature to the extent arising out of, and in proportion to, the negligent act, error, or omission
of Consultant, its agents, servants or employees in the performance of services under this Agreement.
10.9.2 Consultant shall, at all times hereafter, indemnify, hold harmless and defend the City,
its agents, servants and employees from and against any claim, demand or cause of action of any
kind or nature to the extent arising out of, and in proportion to, any willful misconduct of Consultant,
its agents, servants or employees in the performance of services under this Agreement not included
in subsection 9.10.1 above.
10.9.3 In the event that Consultant materially breaches this Agreement which results in
termination by City. Consultant shall indemnify, hold harml.esc anal defend the City, its agents,
servants and employees against any loss to the extent caused by, and in proportion to, the material
breach.
10.9.4 Consultant hereby affirms that it shall be responsible for the acts, errors and
omissions of its Subconsultants and it shall indemnify, defend and save harmless the City, its agents,
servants and employees from any and all claims by third parties which may arise on account of the
negligent acts, errors, or omissions, willful misconduct, or material breach of conduct in the
performance of services rendered by Consultant's Subconsultants.
10.9.5 The provisions of this Section shall survive the expiration or earlier termination of
this Agreement.
10.10 Insurance
Consultant shall provide, pay for and maintain in force at all times during the services to be
performed, such insurance, including Professional Liability Insurance, Worker's Compensation
Insurance, Comprehensive General or Commercial Liability Insurance, Business Automobile
Liability Insurance and Employer's Liability Insurance. In the event Consultant is self insured, with
respect to any of the foregoing required insurance coverages, Consultant shall provide such evidence
of coverage comparable to that set forth herein, to the satisfaction of the City's Risk Manager.
Such policy or policies shall be issued by companies authorized to do business in the State
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of Florida with an A.M. Best's Insurance Guide (latest edition) rating acceptable to the City's Risk
Manager and having agents upon whom service of process may be made in the State of Florida.
Consultant shall specifically protect the City by naming the City of Miami Beach as an additional
insured under all Commercial General Liability and Automobile policies required by this action.
10.10.1 Professional Liability Insurance with the limits of liability provided by such
policy to be no less than Two Million Dollars ($2,000,000) per occurrence .
10.10.2 Commercial General Liability with the limits of liability provided by such
policy to be no less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars
($2,000,000) in the aggregate.
10.10.3 Business Automobile Liability Insurance with minimum limits of One Million
Dollars ($1,000,000) per occurrence combined single limit for Bodily Injury Liability and Property
Damage Liability. Coverage must include owned vehicles and hired and non -owned vehicles.
10.10.4 Consultant shall provide to City a Certificate of Insurance or a copy of all
insurance policies required by this Section. City reserves the right to require a certified copy of such
policies upon request. All certificates and endorsements required herein shall state that City shall
be given thirty (30) days written notice prior to expiration or cancellation of the policy. Should
Consultant fail to obtain, maintain, or renew the policies of insurance referred to herein, in the
required amounts, the City agrees to give Consultant written notice, and 10 days to comply, and then
may, at its sole discretion, obtain such insurance, and any sums expended by the City in obtaining
same shall be repaid by Consultant to City, plus ten percent (10%) of the amount of premiums paid
to compensate City for its administrative costs. If Consultant does not repay City's expenditures
within fifteen (15) days of demand, the total sum owed shall accrue interest at the rate of twelve
percent (12%) until paid, and such failure shall be deemed an event of default hereunder.
10.11 Representative of City and Consultant
10.11.1 The parties recognize that questions in the day-to-day conduct of the Program
will arise. The City's Program Coordinator, upon Consultant's request, shall advise Consultant in
writing of one (1) or more City employees to whom all communications pertaining to the day-to-day
conduct of the Program shall be addressed.
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10.11.2 Consultant shall inform the City's Program Coordinator in writing of
Consultant's representative to whom matters involving the conduct of the Program shall be
addressed.
10.12 No Conflicts
10.12.1 Consultant, its Subconsultants, and the subsidiaries and personnel of the
Consultant and its Subconsultants shall not be eligible for any of the design or construction contracts
or other Program contracts that will be awarded by the City in connection with the Program after the
execution of this Agreement. Subsequent to the execution of this Agreement, Consultant, its
Subconsultants, and the subsidiaries and personnel of the Consultant and its Subconsultants shall not
propose on, bid for, or otherwise compete for or participate in any contracts for Program design or
Program construction or any other Program Contracts. Consultant, its Subconsultants, and the
subsidiaries and personnel of the Consultant and its Subconsultants shall not participate in or receive
any financial or other benefit, in any manner whatsoever, from any of the design contracts or
construction contracts or other Program Contracts that will be awarded by the City in connection
with the Program subsequent to the execution of this Agreement.
10.12.2 Consultant, its Subconsultants, and the subsidiaries and personnel of the
Consultant and its Subconsultants shall not be engaged or perform services where a conflict of
interest exists, such as being associated with the sale or promotion of equipment or material which.
may be used on the Program; the sale or lease of land around the Program which is to be acquired
by the City; or participation in design or construction services contracts on any other Program
Contracts. In addition, Consultant, its Subconsultants, and the subsidiaries and personnel of the
Consultant and its Subconsultants shall not be engaged in or perform any legal or other services in
connection with or in any way related to any Program Contracts (other than services to be rendered
to Consultant under a SubconsuItants Agreement).
10.12.3 Consultant, its Subconsultants, and the subsidiaries and personnel of the
Consultant and its Subconsultants shall not serve as an adverse or hostile witness against the City
in any Iegal or administrative proceeding of whatsoever nature or subject matter related to the
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Program, nor shall any of them give sworn testimony or issue a report or writing, as an expression
of opinion, which is adverse or prejudicial to the interests of Miami Beach in any pending or
threatened legal or administrative proceeding of whatsoever nature or subject matter related to the
Program. The Iimitations of this Section shall not preclude any such party from testifying truthfully
in pursuing its rights against the city, or representing itself as a defendant in any action or in any
administrative or legal proceeding, or from complying with a subpoena, or from testifying truthfully
if subpoenaed.
10.12.4 Consultant, its Subconsultants, and the subsidiaries and personnel of the
Consultant and its Subconsultants shall not solicit or accept compensation, work, a promise for
future compensation or work, or other consideration in exchange for Consultant's or
Subconsultants's recommendation for the City's award of a professional services agreement,
construction contract, equipment or materials contract or any other Program Contract.
10.12.5 Consultant shall include the foregoing provisions in all agreements between
the Consultant and its Subconsultants.
10.13 All Prior Agreements Superseded/amendments
This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements or understandings applicable to the matters contained herein; and the
parties agree that there are no commitments, agreements or understandings concerning the subject
matter of this Agreement that are not contained in this document. Accordingly, the parties agree that
no deviation from the terms hereof shall be predicated upon any prior representations or agreements
whether oral or written.
It is further agreed that no modification, amendment or alteration in the terms or conditions
contained herein shall be effective unless contained in a written document executed with the same;
formality and of equal dignity herewith.
10.14 Notices
Whenever either party desires to give notice unto the other, such notice must be in writing,
sent by registered United States mail, return receipt requested, addressed to the party for whom it
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is intended at the place last specified; and the place for giving of notice shall remain such until it
shall have been changed by written notice in compliance with the provisions of this paragraph. For
the present, the parties designate the following as the respective places for giving of notice:
FOR CITY OF MIAMI BEACH:
Timothy Hemstreet, Special Assistant to the City Manager
City's Program Coordinator
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
with a copy to:
Murray H. Dubbin, City Attorney
City of Miami Beach
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
FOR CONSULTANT:
Todd D. Osborn, RA
URS Construction Services
Eastern Financial Bldg., Suite I000
700 S. Royal Poinciana Blvd.
Miami Springs, Florida 3316'6
10.15 Truth -in -negotiation Certificate
Signature of this Agreement by Consultant shall act as the execution of a truth -in -negotiation
certificate stating that wage rates and other factual unit costs supporting the compensation of this
Agreement are accurate, complete, and current at the time of contracting. The original contract price
and any additions thereto shall be adjusted to exclude any significant sums by which City determines
the contract price was increased due to inaccurate, incomplete, or noncurrent wage rates and other
factual unit costs. All such contract adjustments shall be made within one (1) year following the end
of this Agreement.
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10.16 Interpretation
The language of this Agreement has been agreed to by both parties to express their mutual
intent and no rule of strict construction shall be applied against either party hereto. The headings
contained in this Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall
include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein,"
"hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular
sentence, paragraph, or section where they appear, unless the context otherwise requires. Whenever
reference is made to a Section or Article of this Agreement, such reference is to the Section or
Article as a whole, including all of the subsections of such Section, unless the reference is made to
a particular subsection or subparagraph of such Section or Article.
10.17 Protection of Records
Consultant shall protect from harm and damage all data, drawings, specifications, designs,
models, photographs, reports, surveys and other data created or provided in connection with this
Agreement (collectively, City Property), while such data and materials are in Consultant's
possession. Such duty may include, but is not limited to, making back-up copies of all data stored
by electronic device on any media, taking reasonable actions to prevent damage by impending flood
or storm (including, but not limited to, removing the City Property to a safe location), and
establishing and enforcing such security measures as are reasonably available, considering the
customary practice within Consultant's trade or possession.
10.18 Restrictions on Lobbying
The Consultant agrees that no federal appropriated funds have been paid or will be paid by
or on behalf of the Consultant, to any person for influencing or attempting to influence any officer
or employees of any federal agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with the awarding of any federal contract, the
making of any federal grant, the making of any federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment or modification of any federal
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contract, grant, loan or cooperative agreement.
If any funds other than federal appropriated funds have been paid by the Consultant to any
person for influencing or attempting to influence any officer or employee of any federal agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with this Agreement, the undersigned shall complete and submit Standard Form-LLL,
"Disclosure Form to Report Lobbying," in accordance with its instructions.
10.19 Exhibits and Attachments
In the event of conflict between the terms contains in this Agreement and the terms contained
in any of the documents attached or incorporated herein, the terms of this Agreement shall control
and shall be given full effect.
10.20 Observance of Laws
Throughout the term of this Agreement, the Consultant shall keep fully informed of all
federal, state and local laws, ordinances, codes, rules, and regulations, and all orders and decrees of
bodies or tribunals having jurisdiction or authority which, in any manner, affect work authorized
under the terms of this Agreement, and shall further take into account all known pending changes
to the foregoing of which it should be reasonably aware. The Consultant shall at all times observe
and comply with all such laws, ordinances, regulations, orders, and decrees.
10.21 Agreement Severable; No Waiver
In the event any provisions of this Agreement shall be held to be invalid and unenforceable,
the remaining provisions shall be valid and binding upon the parties. One or more waivers by either
party of any provision, term, condition or covenant shall not be construed by the other party as a
waiver of a subsequent breach of the same by the other party.
10.22 The City reserves the right to perform construction and operations related to the Program
with the City's own forces, and to award contracts in connection with the Program which are not part
of the Consultant's responsibilities under this Agreement.
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10.23 Venue
This Agreement shall be enforceable in Miami -Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida.
10.24 Limitation of Liability
10.24.1 The City desires to enter into this Agreement only if in so doing the City can place
a limit on City's liability for any cause of action for money damages brought by Consultant other
than payment for services due to an alleged breach by the City of this Agreement, so that its liability
for any such breach never exceeds the amount of Five Hundred Thousand Dollars ($500,000).
Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery
from the City for any damage action for breach of contract to be limited to a maximum of Five
Hundred Thousand Dollars ($500,000).
10.24.2 Accordingly, and notwithstanding any other term or condition of this Agreement;
Consultant hereby agrees that the City shall not be liable to Consultant for damages in an amount
in excess of One Million Dollars ($I,000,000), for any action or claim for breach of contract brought
by Consultant other than payment for services arising out of performance or non performance of any
obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph or
elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon
City's liability as set forth in Section 768.28, Florida Statutes.
10.25 No Third Party Rights. This Agreement shall not create any rights or benefits to
parties other than the City and Consultant.
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IN WITNESS WHEREOF, the parties have set their hands and seals the. day and.year. first
above written.
ATTEST:
,Robert Parcher, City Clerk
ATTEST:
-Secretary
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