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HomeMy WebLinkAboutExhibit 1CITY OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS PROFESSIONAL SERVICES AGREEMENT Service Category Contract Type PROGRAM MANAGER ARTICLE 1 DEFINITIONS ARTICLE 2 GENERAL CONDITIONS 2.01 TERM: 2.02 OPTION TO EXTEND: Professional Program Management Services for the Capital and Transportation Improvement Program Continuing Services for Program Management HDR Engineering, Inc. TABLE OF CONTENTS 5 6 6 7 7 7 7 7 7 7 7 7 7 8 8 8 8 8 9 9 9 9 9 9 9 9 10 10 10 10 10 10 10 11 11 11 11 11 11 12 2.03 SCOPE OF SERVICES 2.04 COMPENSATION ARTICLE 3 PERFORMANCE 3.01 PERFORMANCE AND DELEGATION 3.02 REMOVAL OF UNSATISFACTORY PERSONNEL 3.03 PROGRAM MANAGER KEY STAFF 3.04 TIME FOR PERFORMANCE ARTICLE 4 SUB -PROGRAM MANAGERS 4.01 GENERAL 4.02 SUB -PROGRAM MANAGER RELATIONSHIPS 4.03 CHANGES TO SUBPROGRAM MANAGERS ARTICLE 5 DEFAULT 5.01 GENERAL 5.02 CONDITIONS OF DEFAULT 5.03 TIME TO CURE DEFAULT; FORCE MAJEURE ARTICLE 6 TERMINATION OF AGREEMENT 6.01 CITY'S RIGHT TO TERMINATE 6.02 PROGRAM MANAGER'S RIGHT TO TERMINATE 6.03 TERMINATION DUE TO UNDISCLOSED LOBBYIST OR AGENT ARTICLE 7 DOCUMENTS AND RECORDS 7.01 OWNERSHIP OF DOCUMENTS' 7.02 DELIVERY UPON REQUEST OR CANCELLATION 7.03 RE -USE BY CITY 7.04 NONDISCLOSURE 7.05 MAINTENANCE OF RECORDS ARTICLE 8 INDEMNIFICATION ARTICLE 9 INSURANCE 9.01 COMPANIES PROVIDING COVERAGE 9.02 VERIFICATION OF INSURANCE COVERAGE 9.03 FORMS OF COVERAGE 9.04 MODIFICATIONS TO COVERAGE ARTICLE 10 MISCELLANEOUS 10.01 AUDIT RIGHTS 10.02 ENTIRE AGREEMENT 10.03 SUCCESSORS AND ASSIGNS 10.04 TRUTH -IN -NEGOTIATION CERTIFICATE 10.05 APPLICABLE LAW AND VENUE OF LITIGATION CfP Contract No. K -05-00453 ps 4 o"z /ag_o Page 1 TABLE OF CONTENTS (CONTINUED) 10.06 NOTICES 12 10.07 INTERPRETATION 12 10.08 JOINT PREPARATION 12 10.09 PRIORITY OF PROVISIONS 12 10.10 MEDIATION - WAIVER OF JURY TRIAL 12 10.11 TIME 13 10.12 COMPLIANCE WITH LAWS 13 10.13 NO PARTNERSHIP 13 10.14 DISCRETION OF DIRECTOR 13 10.15 RESOLUTION OF CONTRACT DISPUTES• 13 10.16 INDEPENDENT CONTRACTOR: 13 ATTACHMENT A - SCOPE OF WORK 1 ARTICLE Al GENERAL 1 A1.01 RANGE OF SERVICES 1 A1.02 COOPERATIVE WORK 1 A1.03 NON-EXCLUSIVE RIGHT 1 A1.04 PAYMENTS 2 ARTICLE A2 OVERVIEW OF PROGRAM MANAGEMENT SERVICES 2 A2.01 PRIMARY SERVICES 2 A2.02 SPECIALTY SERVICES 2 ARTICLE A3 PRIMARY SERVICES 2 A3.01 ADMINISTRATIVE PROGRAM MAN-AGEMENT 2 A3.02 PRODUCTION MANAGEMENT SERVICES 3 A3.03 CONSTRUCTION ADMINISTRATION 4 ARTICLE A4 SPECIALTY SERVICES 5 ARTICLE A5 STAFFING 5 A5.02 SUPPLEMENTAL STAFF 5 A5.03 SPECIALTY STAFF 5 A5.04 STAFFING CHANGES 5 ARTICLE A6 ASSIGNMENT OF WORK 6 A6.01 ANNUAL WORK PROGRAM 6 A6.02 WORK ORDERS FOR SPECIALTY SERVICES 6 SCHEDULE Al. - PROGRAM MANAGEMENT TEAM 7 SCHEDULE A2. - KEY STAFF 1 SCHEDULE A3 - WORK ORDER FORM 2 ATTACHMENT B - COMPENSATION AND PAYMENTS 1 ARTICLE B1 MANNER of COMPENSATION 1 B1.01 COMPENSATION LIMITS 1 B1.02 PROGRAM MANAGER NOT TO EXCEED 1 ARTICLE B2 WAGE RATES 1 B2.01 FEE BASIS 1 B2.02 EMPLOYEES AND JOB CLASSIFICATIONS 1 B2.03 CALCULATION 1 B2.04 EMPLOYEE BENEFITS AND OVERHEAD 1 B2.05 ESCALATION 2 ARTICLE B3 COMPUTATION OF FEES AND COMPENSATION 2 B3.01 LUMP SUM 2 B3.02 HOURLY RATE FEES 2 B3.03 SUB -PROGRAM MANAGER FEES 2 B3.04 FEES FOR SPECIALTY SERVICES 3 B3.05 FEES RESULTING FROM PROJECT SUSPENSION 3 ARTICLE B4 PAYMENTS 3 B4.01 PAYMENTS GENERALLY 3 B4.02 MONTHLY PROGRESS REPORT 3 ARTICLE B5 REIMBURSABLE EXPEN-SES 3 B5.01 GENERAL 3 B5.02 TYPES OF REIMBURSABLE EXPENSES 3 B5.03 AUTHORIZATION 4 B5.04 DEFINITIONS and CATEGORIES 4 CITY Contract No. K -05-00453 Page 2 TABLE OF CONTENTS (CONTINUED) B5.05 REIMBURSEMENTS TO SUB -PROGRAM MANAGERS 5 ARTICLE B6 COMPENSATION for REUSE OF PLANS AND SPECIFICATIONS 5 B6.01 GENERAL 5 SCHEDULE B1 - WAGE RATES SUMMARY 1 SCHEDULE B2 - LABOR ADJUSTMENT FACTORS 1 SCHEDULE B3 - ESTIMATE OF REIMBURSABLE EXPENSE 1 SCHEDULE B-4.1 - TRAVEL APPROVAL 3 SCHEDULE B-4.2 EXPENSE VOUCHER 4 SCHEDULE B-5 - SUMMARY OF TOTAL COMPENSATION 5 CITY Contract No. K -05-00453 Page 3 CITY OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS PROFESSIONAL SERVICES AGREEMENT Service Category Contract Type PROGRAM MANAGER Program Manager Office Location City Authorization Professional Program Management Services for the Capital Improvement & Transportation Program Continuing Services for Program Management HDR Engineering, Inc. 15450 New Barn Road, Suite 304, Miami Lakes, FL 33014-2169 Resolution Number THIS AGREEMENT made this — day of in the year 2005 and effective AUGUST 1, 2005 by and between THE CITY OF MIAMI, FLORIDA, hereinafter called the "CITY," and HDR Engineering, Inc., a for profit Florida corporation hereinafter called the "PROGRAM MANAGER." RECITAL A. The City issued a Request for Proposals ("RFP") No. 04-05-019 on February 15, 2005 for the provision of Professional Program Management Services for the Capital Improvement & Transportation Program ("Services") and PROGRAM MANAGER'S proposal ("Proposal"), in response thereto, was selected as the most qualified for the provision of said Services. The RFP and PROGRAM MANAGER's Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, and are by this reference expressly incorporated into and made a part of this Agreement as if set forth in full. B. WHEREAS, the City, through action of the City Manager and/or the City Commission, as applicable, has selected the PROGRAM MANAGER in accordance with applicable provisions of the City Procurement Ordinance, to provide the professional services as described herein. WITNESSETH, that the CITY and the PROGRAM MANAGER, for the considerations herein set forth, agree as follows: CITY Contract No. K -05-00453 Page 4 ARTICLE 1 DEFINITIONS 1.01 ANNUAL WORK PROGRAM: a comprehensive report of goals, strategies, tasks and activities to be undertaken by the Program Manager for a given year under this Agreement, along with a detailed analysis of projected costs, personnel and other resources required to accomplish same for that period. 1.02 ATTACHMENTS: The Attachments to this Agreement are expressly incorporated by reference and made a part of this Agreement as if set forth in full. 1.03 CITY COMMISSION: The legislative body of the City of Miami. 1.04 CITY MANAGER: The duly appointed chief administrative officer of the City of Miami. 1.05 CITY OR OWNER: The City of Miami, Florida, a Florida municipal corporation, the public agency which is a party hereto and for which this contract is to be performed. In ail respects hereunder, City's performance is pursuant to City's position as the OWNER of the project. In the event the City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, codes, laws and ordinances shall be deemed to have occurred pursuant to City's authority as a governmental body and shall not be attributable in any manner to City as a party to this contract. The City of Miami may be referred to herein as "OWNER" or "CITY". For the purposes of this Agreement, "CITY" without modification shall mean the CITY MANAGER. 1.06 CONSTRUCTION OBSERVER: An employee of the City or of a consulting firm hired by the CITY and assigned by the CITY to make observations of construction Work performed by a Contractor. Also referred to as "Consruction Engineering Observer" or "CEO". 1.07 CONTRACTOR: An individual, partnership, corporation, association, joint venture, or any combination thereof, which has entered into a contract with the CITY for construction of City facilities and incidentals thereto. 1.08 CORE PROGRAM STAFF: Staff positions assigned on a full time basis to the Program by the PROGRAM MANAGER with the DIRECTOR'S approval, to serve as an extension of the City's staff working inside the City's Miami Riverside Center or other requested City facility and covered by the Lump Sum portion of compensation under this Agreement. PROFESSIONAL SERVICES AGREEMENt 1.09 DEPARTMENT: shall mean the City's office of Capital Improvements and Transportation unless otherwise directed by the City Manager in writng. 1.10 DIRECTOR: The DIRECTOR of the CITY's Capital Improvements and Transportation office designated herein as having the authority and responsibility for managing the specific program and projects covered under this Agreement. . The DIRECTOR, in his/her sole discretion, shall have the authority to delegate responsibilities herein to staff of the Capital Improvements and Transportation office and shall do so in writing. 1.11 HORIZONTAL PROJECTS: capital projects that generally consist of new construction, repair and/or reconstruction of roadways, rights -of - way and streetscape improvements (roads, sidewalks and swaie areas) including, without limitation, street grading, pavement milling, paving, curb and gutter installation, striping, sidewalks, pavers, irrigation systems, lighting and landscaping, hardscaping and waterway improvements and maintenance, and underground storm and/or sanitary sewer systems and components such as pump stations, force mains, injection wells and disposal outfalls. 1.12 NOTICE TO PROCEED: Same as "Authorization to Proceed." A duly authorized written letter or directive issued by the Director or Project Manager acknowledging that all conditions precedent have been met and/or directing that PROGRAM MANAGER may begin work on a particular PROGRAM assignment, Project, or a specific task of a Project as outlined in the ANNUAL WORK PROGRAM, or a WORK ORDER. 1.13 PRIMARY SERVICES: Those services considered by CITY to be fundamental to the successful management of the overall CITP as stated in the RFP, and in Attachment A of this Agreement. 1.14 PROFESSIONAL SERVICES: Those services provided by the PROGRAM MANAGER to lead and support the City in the execution and implementation of the City's Capital Improvement and Transportation Program (CITP), including, without limitation, all administrative, technical, and management activities undertaken as part of Primary Service or Specialty Services. May also be referred to herein as PROGRAM MANAGEMENT. 1.15 PROGRAM: The City's multi -year Capital Improvement and Transportation Program (CITP), generally prepared on an annual basis, that details the planned financial resources and implementation schedule and strategies for the City's capital projects over a five (5) to six (6) year period, consisting of both expeditures and purchases of capital goods and equipment and of the planning, design, and CITY Contract No. K -05-00453 Page 5 PROFESSIONAL SERIVCES AGREEMENT construction of physical improvements and/or modifications to buildings, facilities, parks, streets, infrastructure and other capital assets of CITY. 1.16 PROGRAM MANAGEMENT: Professional Services provided by the PROGRAM MANAGER including, without limitation, all administrative, technical, and management activities associated with leading and/or supporting the City as determined by the Director in the execution and implementation of the City's Capital Improvement and Transportation Program (CITP). 1.17 PROGRAM MANAGER: HDR Engineering, Inc., a corporation of skilled and qualified capital improvement program managers, administratrative, technical, and other support, and duly registered professional architects, landscape architects and/or engineers, which has entered into the Agreement 10 provide professional services to the CITY. As used throughout this Agreement, generally refers to the PROGRAM MANAGEMENT team including SUB -PROGRAM MANGERS. 1.18 PROJECT: The construction, alteration and/or repair, and all services and incidentals thereto, of a City facility as contemplated and budgeted by the CITY. The PROJECT or PROJECTS shall be further defined in the SCOPE OF SERVICES and/or Work Order Issued pursuant to this Agreement. 1.19 PROJECT MANAGER: An employee or representative of the CITY or PROGRAM MANAGER assigned to manage and monitor the Work of a particular PROJECT, including, without limitiation, the planning, design and construction, as a direct representative of the CITY. 1.20 RISK ADMINISTRATOR: The City's Risk Management Administrator, or designee, or the individual named by the City Manager to administer matters relating to insurance and risk of loss for the City. 1.21 SCOPE OF WORK: A comprehensive description of the activities, tasks, design .features, objectives, deliverables and milestones required for the completion of Project, Program Management, or an assignment with sufficient detail to allow a reasonably accurate estimation of resources necessary for its completion. 1.22 SPECIALTY SERVICES: sometimes referred to as Additional Services, shall mean those services which are not directly tied to the overall management of the CITP but to some unique, critical, and/or possibly large scale, element of the CITP that requires expertise that is unavailable from within the C1TY's personnel resources. The assignment of Work as Specialty Services shall be made solely at the discretion of the City, by the Director, with the approval of the City Manager and/or the City Commission as applicable, and will be accomplished by a Work Order issued pursuant to this agreement. Compensation for any SPECIALTY SERVICES shall be separately negotiated and may be lump sum, hourly rate -based or other method as deemed appropriate by the parties. 1.23 SUB -PROGRAM MANAGER: A person or organization of properly qualified registered professional architects, landscape architects, engineers, registered surveyor or mapper, and/or other professional specialty that has entered into a written agreement with the PROGRAM MANAGER to furnish specified professional services for a Project or Program Management task. 1.24 SUPPLEMENTAL PROGRAM STAFF: Staff of PROGRAM MANAGER and/or SUB- PROGRAM MANAGER assigned to the Program on a limited full-time or long term part-time basis and generally covered by the Hourly Rate portion of compensation under this Agreement, with the approval of the DIRECTOR. Individual tasks may be assigned to SUPPLEMENTAL PROGRAM STAFF for which Lump Sum Compensation may be negotiated. 1.25 VERTICAL PROJECTS: capital projects that generally consist of new construction, repair, renovation, and/or expansion of park and recreational facilities, community and day care centers, administrative offices and facilities, fire stations and support facilities, police facilities, stadiums, exhibition center(s), other performance venues, marinas, or any other projects identified by the Director. 1.26 WAGE RATES: The effective direct expense to PROGRAM MANAGER and/or SUB- PROGRAM MANAGER, on an hourly rate basis, for employees in the specified professions and job classifications assigned to provide services under this Agreement that justify and form the basis for compensatory professional fees regardless of actual manner of compensation. 1.27 WORK ORDER: A written document issued by the CITY to the PROGRAM MANAGER authorizing the performance of specific professional services for a defined Project(s), or Program Management assignment providing sufficient detail of the Scope of Work, including the identified tasks, deliverables, time for completion, and the amount of compensation authorized for such services. 1.28 WORK: also known as the Scope of Work, is the tasks and activities generally identified in the ANNUAL WORK PROGRAM or the task(s) and activities identified in a WORK ORDER ARTICLE 2GENERAL CONDITIONS 2.01 TERM: The term of this Agreement shall be for three (3) year(s) commencing on the effective date hereof. This specified term is intended for administrative and budget control purposes and is not to be considered or interpreted as a time limitation. CITY Contract No. K -05-00453 Page 6 PROFESSIONAL SERIVCES AGREEMENT 2.02 OPTION TO EXTEND: The CITY, by action of the CITY MANAGER, shall have the option to extend the term for 3 additional period(s) of one (1) year(s) each, subject to continued satisfactory performance as determined by the Director, and to the availability and appropriation of funds. City Commission authorization of this Agreement includes delegation of authority to the CITY MANAGER to administratively approve said extensions. However, any increase in compensation above the limits set forth in 2.04-1 shall require the approval of the City Commission. 2.03 SCOPE OF SERVICES PROGRAM MANAGER agrees to provide the Services as specifically' described and under the special terms and conditions set forth in Attachment "A" hereto, which by this reference is incorporated into and made a part of this Agreement. 2.04 COMPENSATION 2.04-1 Compensation Limits The amount of compensation payable by the CITY to PROGRAM MANAGER shall generally be a lump sum or not to exceed fee, based on the rates and schedules established in Attachment B and specifically Schedule B-5 hereto, which by this reference is incorporated into this Agreement; provided, however, that in no event shall the amount of compensation exceed Twenty -Three Million Eight Hundred Nine Thousand Dollars ($23,809,000.00) for PRIMARY SERVICES and Five Million Nine Hundred Sixty -Seven Thousand Dollars ($5,967,000.00) for SPECIALTY SERVICES in total over the term of the Agreement and any extension(s), unless explicitly approved by action of the CITY COMMISSION and put into effect by written amendment to this Agreement. 2.04-2 Payments Unless otherwise specifically provided in Attachment B, payment shall be made within thirty (30) days after receipt of an acceptable PROGRAM MANAGER invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should City require one to be performed. If PROGRAM MANAGER is entitled to reimbursement of travel expenses, then all bills for travel expenses shall be submitted following applicable provisions of Section 112.061, Florida Statutes. ARTICLE 3 PERFORMANCE 3.01 PERFORMANCE AND DELEGATION The services to be performed hereunder shall be performed by the PROGRAM MANAGER's own staff, unless otherwise provided in this Agreement, or approved by the CITY. Said approval shall not be construed as constituting an agreement between the CITY and said other person or firm. 3.02 REMOVAL OF UNSATISFACTORY PERSONNEL DIRECTOR may make written request to PROGRAM MANAGER for the prompt removal and replacement of any personnel employed or retained by the PROGRAM MANAGER, or any Sub -PROGRAM MANAGERS or subcontractors for cause. The. PROGRAM MANAGER shall respond to CITY within fourteen (14) calendar days of receipt of such request with either the removal and replacement of such personnel or written justification as to why that may not occur. The CITY shall make the final determination as to the removal of unsatisfacotry personnel from work assigned by CITY. 3.03 PROGRAM MANAGER KEY STAFF The parties acknowledge that PROGRAM MANAGER was selected by CITY, in part, on the basis of qualifications of particular staff identified in PROGRAM MANAGER's response to CITY's solicitation, hereinafter referred to as "Key Staff'. PROGRAM MANAGER shall ensure that Key Staff are available for Work hereunder as long as said Key Staff is in PROGRAM MANAGER'S employ or under contract. PROGRAM MANAGER will obtain prior approval of DIRECTOR to change Key Staff, which approval may not be unreasonably withheld. PROGRAM MANAGER shall provide Director with such information as necessary to determine the suitability of proposed new Key Staff. 3.04 TIME FOR PERFORMANCE The PROGRAM MANAGER agrees to start all Work hereunder upon receipt of a Notice to Proceed issued by the DIRECTOR and to complete each assignment, task or Phase within the time stipulated in the Notice to Proceed. The C1TY's approval of an ANNUAL WORK PROGRAM as provided herein, or the issuance of a purchase order for an ANNUAL WORK PROGRAM or a WORK ORDER shall be considered a Notice to Proceed.Time is of the essence with respect to performance of this Agreement. A mutually .agreeable extension of the time for completion of various assignments, tasks or phases will be granted by the CITY should there be a delay on the part of the CITY in fulfilling its obligations under this Agreement as stated herein. Such extension of time shall not be cause for any claim by the PROGRAM MANAGER for extra compensation. ARTICLE 4SUB-PROGRAM MANAGERS 4.01 GENERAL 4.01-1 A SUB -PROGRAM MANAGER is a person or organization of properly registered CITY Contract No. K-05-00453 Page 7 PROFESSIONAL SERIVCES AGREEMENT professional architects, landscape architects, engineers, registered surveyors or mapper, and/or other qualified professional with required expertise who has entered into a written agreement with the PROGRAM MANAGER to furnish PRIMARY or SPECIALTY SERVICES under this Agreement. Particular SUB- PROGRAM MANAGERS were identified as part of the consulting team in the competitive selection process by which PROGRAM MANAGER was chosen to perform the services under this Agreement, and, subject to modifications resulting from the negotiation of thie Agreement and to the approval of the CITY, are identified and listed in Schedule Al attached hereto and incorporated by reference. 4.01-2 A SPECIALTY SUB -PROGRAM MANAGER is a person or organization that has, with the consent of the DIRECTOR, entered into a written agreement with the PROGRAM MANAGER to furnish unique and/or specialized professional services necessary for a project or PROGRAM task described under SPECIALTY SERVICES. Such Specialty Sub -Program Manager may be in addition to those identified in Schedule Al and are to be identified in the related WORK ORDER for said services. 4.02 SUB -PROGRAM MANAGER RELATIONSHIPS 4.02-1 All services provided by the SUBPROGRAM MANAGERS shall be performed pursuant to appropriate written agreements between the PROGRAM MANAGER and the SUB -PROGRAM MANAGERS, which shall contain provisions that preserve and protect the rights of the CITY under this Agreement. 4.02-2 Nothing contained in this Agreement shall create any contractual or business relationship between the CITY and the SUBPROGRAM MANAGERS. The PROGRAM MANAGER acknowledges that SUBPROGRAM MANAGERS are entirely under his direction, control, supervision, retention and/or discharge. 4.03 CHANGES TO SUBPROGRAM MANAGERS The PROGRAM MANAGER shall not change, add or remove any SUB -PROGRAM MANAGER listed in Schedule Al without prior written approval by the DIRECTOR, in response to a written request from the PROGRAM MANAGER stating the reasons for any proposed addition, removal and/or substitution. Such approval shall not be unreasonably withheld, conditioned, or delayed by the Director. ARTICLE 5DEFAULT 5.01 GENERAL if PROGRAM MANAGER fails to comply with any term or condition of this Agreement or of any other agreement it has with the CITY, or fails to perform any of its obligations hereunder, then PROGRAM MANAGER shall be in default. Upon the occurrence of a default hereunder the CITY, in addition to all remedies available to it by law, may immediately, subject to §5.03 herein, upon written notice to PROGRAM MANAGER, terminate this Agreement whereupon all payments, advances, or other compensation paid by the CITY to PROGRAM MANAGER while PROGRAM MANAGER was in default shall be immediately returned to the City. PROGRAM MANAGER understands and agrees that termination of this Agreement under this section shall not release PROGRAM MANAGER from any obligation accruing prior to the effective date of termination. In the event of termination due to default, in addition to the foregoing, PROGRAM MANAGER shall be liable to the City for all expenses incurred by the CITY in preparing and negotiating this Agreement, as well as all costs and expenses incurred by the CITY In the re -procurement of the Services. In the event of Default, CITY may also suspend or withhold reimbursements from PROGRAM MANAGER until such time as the actions giving rise to default have been cured. A termination for default that is subsequently determined to be in error shall be then automatically considered to be a termination for convenience in accordance with ARTICLE 6. 5.02 CONDITIONS OF DEFAULT A finding of Default and subsequent termination for cause may include, without limitation, any of the following: 5.02-1 PROGRAM MANAGER fails to obtain the insurance herein required. 5.02-2 PROGRAM MANAGER fails to comply, in a substantial or material sense, with any of its duties under this Agreement, with any terms or conditions set forth in this Agreement or in any agreement it has with the CITY, beyond the specified period allowed to cure such default. 5.02-3 PROGRAM MANAGER fails to commence the WORK within the time provided or contemplated herein, or fails to complete the WORK in a timely manner as required by this Agreement and/or stated in an ANNUAL WORK PROGRAM or a WORK ORDER issued pursuant to this Agreement. 5.03 TIME TO CURE DEFAULT; FORCE MAJEURE CITY shall provide written notice to PROGRAM MANAGER as to a finding of default, and PROGRAM CITY Contract No. K -05-00453 Page 8 PROFESSIONAL SERIVCES AGREEMENT MANAGER shall take all necessary action to cure said default within the time stipulated in such notice, after which time the CITY may terminate the Agreement. The CITY MANAGER may, in his sole discretion, grant one extension of time to perform any required cure if PROGRAM MANAGER provides written justification deemed reasonably sufficient by CITY MANAGER. Should any such failure on the part of PROGRAM MANAGER be due to a condition of Force Majeure as that term is interpreted under Florida law, then CITY may allow an extension of time reasonably commensurate with the cause of such failure to perform or cure. ARTICLE 6TERMINATION OF AGREEMENT 6.01 CITY'S RIGHT TO TERMINATE The CITY has the right to terminate this Agreement for any reason or no reason, upon ten (10) days' written notice. Upon termination of this Agreement, all charts, sketches, studies, drawings, reports and other documents related to Work authorized under this Agreement, whether finished or not, must be turned over to the CITY. The PROGRAM MANAGER shall be paid in accordance with provisions OF Attachment B, provided that said documentation is turned over to CITYs within ten (10) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by PROGRAM MANAGER until all documentation is delivered to the CITY. 6.01-1 This Agreement may be cancelled when, in the opinion of the City Commission, termination is necessary to protect the interests of public health, safety or general welfare. 6.01-2 If CITY terminates for convenience when PROGAM MANAGER is not in default, PROGRAM MANAGER shall have no recourse or remedy from such termination made by the CITY except to retain and/or receive, as applicable, the fees already disbursed or owing as compensation for the WORK that was performed in compliance with the Agreement prior to termination, as full and final settlement of any claim, action, demand, cost, charge or entitlement it may have, or will, have against the CITY, its officials or employees. 6.02 PROGRAM MANAGER'S RIGHT TO TERMINATE The PROGRAM MANAGER shall have the right to terminate this agreement, in writing, following breach by the City, if breach of contract has not been corrected within sixty (60) days from the date of the City's receipt of a statement from PROGRAM MANAGER specifying its breach of its duties under this agreement. 6.03 TERMINATION DUE TO UNDISCLOSED LOBBYIST OR AGENT PROGRAM MANAGER warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the PROGRAM MANAGER 10 solicit or secure this Agreement and that he or she has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the PROGRAM MANAGER 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, the CITY shall have the right to terminate the agreement without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. ARTICLE 7DOCUMENTS AND RECORDS 7.01 OWNERSHIP OF DOCUMENTS With the exception of previously existing proprietary items that are subject to licensing, all work products, including, without limitation, reports, forms, drawings and specifications, are considered instruments of service are and shall become the property of the CITY regardless of whether the program, Project or activity for which they were made is contracted or constructed. The PROGRAM MANAGER shall be permitted to retain copies, including reproducible copies, of work products solely for information and reference in connection with the CITY's use. 7.02 DELIVERY UPON REQUEST OR CANCELLATION Failure of the PROGRAM MANAGER to promptly deliver all such work products to the Director within ten (10) days of cancellation, or within ten (10) days of request by the CITY, shall be just cause for the CITY to withhold payment of any fees due PROGRAM MANAGER until PROGRAM MANAGER delivers all such work products. PROGRAM MANAGER shall have no recourse from these requirements. 7.03 RE -USE BY CITY With the exception of previously existing proprietary items that are subject to licensing, all work products may be used by the CITY on other projects, or for completion or continuation of this program by others. Work products for which the City has secured CITY Contract No. K -05-00453 Page 9 PROFESSIONAL SERIVCES AGREEMENT licenses shall be used by CITY in accordance with the terms of the license granted. Submission or distribution to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the PROGRAM MANAGER's rights. 7.04 NONDISCLOSURE To the extent allowed by law, PROGRAM MANAGER agrees not to divulge, furnish or make available to any third person, firm or organization, without CITY's prior written consent, or unless incident to the proper performance of the PROGRAM MANAGER'S obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the services to be rendered by PROGRAM MANAGER hereunder, and PROGRAM MANAGER shall require all of its employees, agents, sub -PROGRAM MANAGERs and subcontractors to comply with the provisions of this paragraph. 7.05 MAINTENANCE OF RECORDS PROGRAM MANAGER will keep adequate records and supporting documentation, which concern or reflect its services hereunder. Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with statute. Otherwise, the records and documentation will be retained by PROGRAM MANAGER for a minimum of three (3) years from the date of termination of this Agreement or the date the Program is completed, whichever is later. CITY, or any duly authorized agents or representatives of CITY, shall have the right to audit, inspect, and copy all such records and documentation as often as they deem necessary during the period of this Agreement and during the three (3) year period noted above; provided, however such activity shall be conducted only during normal business hours. ARTICLE 8INDEMNIFICATION The PROGRAM MANAGER shall hold harmless, indemnify and defend the CITY, at PROGRAM MANAGER'S own cost and expense, CITY officials and employees harmless from any and all claims, losses and causes of actions which may arise out of the performance of this Agreement as a result of any act of negligence or negligent omission, recklessness, or intentionally wrongful conduct of the PROGRAM MANAGER or the Sub -PROGRAM MANAGERs. The PROGRAM MANAGER shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all project related suits, in the name of the CITY when applicable, and shall pay all costs, including without limitation reasonable attorney's and appellate attorney's fees, and judgments which may issue thereon. The PROGRAM MANAGER'S obligation under this paragraph shall not be limited in any way by the agreed upon contract price, or the PROGRAM MANAGER'S limit of, or lack of, sufficient insurance protection and shall apply to the full extent that it is caused by the negligent act or omission, recklessness or intentional wrongful conduct of the PROGRAM MANAGERS, its agents, servants, or representatives. This article shall survive the termination or expiration of the Agreement. ARTICLE 9INSURANCE The PROGRAM MANAGER shall not start Work under this Agreement until the PROGRAM MANAGER has obtained all insurance required hereunder and the CITY's Risk Manager has approved such insurance. 9.01 COMPANIES PROVIDING COVERAGE All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and satisfactory to the Risk Administrator. All companies shall have a Florida resident agent and be rated at least A(X), as per A.M. Best Company's Key Rating Guide, latest edition. 9.02 VERIFICATION OF INSURANCE COVERAGE The PROGRAM MANAGER shall furnish certificates of insurance to the Risk Administrator for review and approval prior to the execution of this Agreement. The Certificates shall clearly indicate that the PROGRAM MANAGER has obtained insurance of the type, amount and classification required by these provisions, in excess of any pending claims at the time of contract award to the PROGRAM MANAGER. PROGRAM MANAGER shall maintain coverage with equal or better rating as identified herein for the term of this contract. PROGRAM MANAGER shall provide written notice to the City's Department of Risk Management of any material change, cancellation and/or notice of non -renewal of the insurance within 30 days of the change. PROGRAM MANAGER shall furnish a copy of the insurance policy or policies upon request of the Risk Administrator. PROGRAM MANAGER shall furnish copies of insurance policies pertaining to this Agreement to RISK ADMINISTRATOR within ten (10) days of written request. 9.03 FORMS OF COVERAGE 9.03-1Comprehensive General Liability and Automobile Liability Coverage shall have minimum limits of $1,000,000 per Occurrence, Combined single CITY Contract No. K-05-00453 Page 10 PROFESSIONAL. SERIVCES AGREEMENT Limit Bodily Injury Liability and Property Damage Liability. General Aggregated Limit shall have a minimum limit of $2,000,000, This shall include Premises and Operations, Independent Contractors, Products and Completed Operations, Broad Form Property Damage, XCU Coverage, and Contractual Liability. Automobile coverage including hired, borrowed or non - owned autos, limits of Liability, Bodily Injury, Damage Liability for any one accident $1,000,000. The City of Miami shall be named an additional insured on both of these coverages. 9.03-2Professional Liability Insurance The PROGRAM MANAGER shall maintain Professional Liability Insurance including Errors and Omissions coverage in the minimum amount of $1,000,000 per claim, providing for all sums up to said limit which the PROGRAM MANAGER shall be legally obligated to pay as damages for claims arising out of the services performed by the PROGRAM MANAGER or any person employed by the PROGRAM MANAGER in connection with this Agreement. This insurance shall be maintained for at least one year after completion of the services hereunder. 9.03-3Worker's Compensation Insurance The PROGRAM MANAGER shall maintain Worker's Compensation Insurance in compliance with Florida Statutes, Chapter 440, as amended, and Employee's Liability with a minimum limit of $500,000 each occurrence. 9.03-4Sub-Program Manager Compliance PROGRAM MANAGER shall ensure that ail Sub - PROGRAM MANAGERS comply with the insurance requirements commensurate with their specific level of involvement or responsibility on the overall Program, as determined by Risk Management. 9.04 MODIFICATIONS TO COVERAGE The RISK ADMINISTRATOR or his/her authorized designee reserves the right to require modifications, increases, or changes in the required insurance requirements, coverage, deductibles or other insurance obligations by providing a thirty (30) day written notice to the Program Manager in accordance with §10,06 herein. PROGRAM MANAGER shall comply with such requests unless the insurance coverage is not then readily available in the national market, and may request additional consideration from City accompanied by justification. ARTICLE 10 MISCELLANEOUS 10.01 AUDIT RIGHTS The CITY reserves the right to audit the PROGRAM MANAGER'S accounts during the performance of this Agreement and for three (3) years after final payment under this Agreement. The PROGRAM MANAGER agrees 10 furnish copies of any records necessary, in the opinion of the Director, to approve any requests for payment by the PROGRAM MANAGER. 10.02 ENTIRE AGREEMENT This Agreement, as it may be amended from time to time, represents the entire and integrated agreement between the CITY and the PROGRAM MANAGER and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may not be amended, changed, modified, or otherwise altered in any respect, at any time after the execution hereof, except by a written document executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach of any provision of this Agreement. 10.03 SUCCESSORS AND ASSIGNS The performance of this Agreement shall not be transferred, pledged, sold, delegated or assigned, in whole or in part, by the PROGRAM MANAGER without the written consent of the CITY, acting by and through its City Commission. It is understood that a sale of the majority of the stock or partnership shares of the PROGRAM MANAGER, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. The PROGRAM MANAGER's services are unique in nature and any transference without CITY COMMISSION approval shall be cause for the CITY to cancel this Agreement. The PROGRAM MANAGER shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed Assignee and the execution of an Assignment) Assumption Agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. The PROGRAM MANAGER and the CITY each binds one another, their .partners, successors, legal representatives and authorized assigns to the other party of this Agreement and to the partners, successors, legal representatives and assigns of such party in respect to all covenants of this Agreement. 10.04 TRUTH -IN -NEGOTIATION CERTIFICATE For any Project or activity to be compensated under the Lump Sum method, the PROGRAM MANAGER shall certify that wage rates and other factual unit costs supporting the compensation are accurate, complete, and current at the time of Notice to Proceed. The original PROGRAM MANAGEMENT fee and any addition thereto will be adjusted to CITY Contract No. K -05-00453 Page 11 PROFESSIONAL SERIVCES AGREEMENT exclude any significant sums by which the CITY determines the fee was increased due to inaccurate, incomplete or non -current wage rates and other factual unit costs. All such price adjustments will be made within one (1) year following the end of the Project. or activity. 10.05 APPLICABLE LAW AND VENUE OF LITIGATION This agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this agreement, or arising out of this agreement, shall be brought in Miami -Dade County, Florida. Each party shall bear its own attorneys fees except in actions arising out of PROGRAM MANAGER'S duties to indemnify the City under ARTICLE B where PROGRAM MANAGER shall pay the City's reasonable attorney's fees. 10.06 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 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: City Manager City of Miami, City Hall 3500 Pan American Drive Miami, FL 33133 AND Director City of Miami, Department of Capital Improvements & Transportation 444 S.W. 2nd Ave., - 8th FI Miami, Florida 33130 With a copy 1o: City Attorney City of Miami 444 S.W. 2nd Ave., Suite 945 Miami, FI. 33130-1910 FOR PROGRAM MANAGER: HDR Engineering, Inc. ATTN: Paul Bowdoin, PE, Senior Vice President 2202 N. West Shore Blvd., Suite 250 Tampa, FL 33607 10.07 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 other gender, and the singular 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. 10.08 JOINT PREPARATION Preparation of this Agreement has been a joint effort of the City AND PROGRAM MANAGER and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than any other. 10.09 PRIORITY OF PROVISIONS If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, or provision of this Agreement, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given effect. 10.10 MEDIATION - WAIVER OF JURY TRIAL in an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and /or construction of the subject project(s), and/or following the completion of the projects(s), the parties to this Agreement agree all disputes between them shall be submitted to non- binding mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties. A certified local mediator, who the parties find mutually acceptable, will conduct any Mediation Proceedings in Miami -Dade County, State of Florida. The parties will split the costs of the mutually acceptable certified mediator on a 50/50 basis. The PROGRAM MANAGER agrees to include such similar contract provisions with all SubPROGRAM MANAGERs and/or independent contractors and/or PROGRAM MANAGERS retained for the project(s), thereby providing for non -binding mediation as the primary mechanism for dispute resolution. In an effort to expedite the conclusion of any litigation the parties voluntarily waive their right to jury trial in any action arising under this Agreement. CITY Contract No. K -05-00453 Page 12 PROFESSIONAL_ SERIVCES AGREEMENT 10.11 TIME Time is of the essence in this Agreement. 10.12 COMPLIANCE WITH LAWS PROGRAM MANAGER shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions including, without limitation, the Americans with Disabilities Act ("ADA"), as amended, and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement. The PROGRAM MANAGER represents and warrants that there shall be no unlawful discrimination as provided by law in connection with the performance of this agreement. 10.12-1 Non -Discrimination CITY warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with PROGRAM MANAGER'S performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. PROGRAM MANAGER further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 10.12-2 OSHA Compliance and Jobsite Safety The PROGRAM MANAGER warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. The CITY reserves the right to refuse PROGRAM MANAGER access to CITY property, including project jobsites, if PROGRAM MANAGER employees are not properly equipped with safety gear in accordance with OSHA regulations or if a continuing pattern of non- compliance with safety regulations is exhibited by PROGRAM MANAGER. Jobsite safety is the sole responsibility of the Contractor. However, all parties, including PROGRAM MANAGER, should serve notice to the Contractor and CITY if a condition or situation is observed that presents a hazard to PROGRAM MANAGER'S employees. 10.12-3 ADA Compliance PROGRAM MANAGER shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City, including Titles I & 11 of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally —the PROGRAM MANAGER shall take affirmative steps to -insure nondiscrimination in employment of disabled persons. 10.13 NO PARTNERSHIP PROGRAM MANAGER is an independent contractor. This Agreement does not create a joint venture, partnership or other business enterprise between the parties. The PROGRAM MANAGER has no authority to bind the City to any promise, debt, default, or undertaking of the PROGRAM MANAGER. 10.14 DISCRETION OF DIRECTOR Any matter not expressly provided for herein dealing with the CITY or decisions of the CITY shall be within the exercise of the reasonable professional discretion of the DIRECTOR or the DIRECTOR'S authorized designee. 10.15 RESOLUTION OF CONTRACT DISPUTES: PROGRAM MANAGER understands and agrees that all disputes between it and the City based upon an alleged violation of the terms of this Agreement by the City shall be submitted to the City Manager for his/her resolution, prior to PROGRAM MANAGER being entitled to seek judicial relief in connection therewith. Should the amount of compensation hereunder exceed $50,000, the City Manager's decision shall be approved or disapproved by the City Commission. PROGRAM MANAGER shall not be entitled to seek judicial relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if applicable, or (ii) a period of sixty (60) days has expired after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation, or a period of (90) days has expired where City Manager's decision is subject to City Commission approval; or (iii) City has waived compliance with the procedure set forth in this section by written instrument(s) signed by the City Manager. 10.16 INDEPENDENT CONTRACTOR: PROGRAM MANAGER has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. Accordingly, the PROGRAM MANAGER shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the CITY, nor any rights generally afforded classified or unclassified employees. PROGRAM MANAGER further understands that Florida Workers' Compensation benefits available to employees of the City are not available to PROGRAM MANAGER, and agrees to provide workers' compensation insurance for any employee or agent of PROGRAM MANAGER rendering services to the City under this Agreement. CITY Contract No. K -05-00453 Page 13 PROFESSIONAL SERIVCES AGREEMENT 10.17 CONTINGENCY CLAUSE: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days notice. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. WITNESS/ATTEST PROGRAM MANAGER, HDR Engineering, Inc., a for profit Florida corporation Signature Signature Print Name, Title Print Name, Title of Authorized Officer or Official ATTEST: (Corporate Seal) PROGRAM MANAGER Secretary (Affirm PROGRAM MANAGER Seal, if available) ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida Priscilla Thompson, City Clerk Joe Arriola, City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: Dania Carrillo, Administrator Risk Management Department Jorge L. Fernandez, City Attorney CITY Contract No. K -05-00453 Page 14 PROFESSIONAL SERVICES AGREEMENT CERTIFICATE OF AUTHORITY (IF CORPORATION) I HEREBY CERTIFY that at a meeting of the Board of Directors of , a corporation organized and existing under the laws of the State of , held on the ,day of , a resolution was duly passed and adopted authorizing (Name) as (Title) of the corporation to execute agreements on behalf of the corporation and providing that his/her execution thereof, attested by the secretary of the corporation, shall be the official act and deed of the corporation. I further certify that said resolution remains in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand this , day of 20 Secretary: Print: NOTARIZATION STATE OF ) SS: COUNTY OF ) The foregoing instrument was acknowledged before me this day of 20 , by , who is personally known to me or who has produced as identification and who (did / did not) take an oath. SIGNATURE OF NOTARY PUBLIC STATE OF FLORIDA PRINTED, STAMPED OR TYPED NAME OF NOTARY PUBLIC CITY Contract No. K -05-00453 Page 15