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HomeMy WebLinkAboutExhibit 2PROFESSIONAL. SERVICES AGREEMENt ARTICLE 1 DEFINITIONS 1.01 Additional Services means any Work defined as such in a Work Order, secured in compliance with Florida Statutes and City Code. 1.02 Architect or AIE means the professional architectural firm selected by the the City and awarded a contract for the architectural and engineering services required for the renovation of the Orange Bowl Stadium. 1.03 Attachments means the attachments to this Agreement that are expressly incorporated by reference and made a part of this Agreement as if set forth herein in full. 1.04 Base Fee means the amount of compensation mutually agreed upon for the completion of Basic Services. 1.05 Basic Services means those services designated as such in this Agreement, including the Attachments. 1.06 City Commission means the legislative body of the City of Miami. 1.07 City Manager means the duly appointed chief administrative officer of the City of Miami. 1.08 City means the City of Miami, Florida, a Florida municipal corporation, the public agency which is a party hereto and for which this Agreement is to be performed. In all 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 Agreement. For the purposes of this Agreement, "City" without modification shall mean the City Manager or Director, as applicable. 1.09 CONSTRUCTION OBSERVER means 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. 1.10 Program Manager means the individual, partnership, corporation, association, joint venture, or any combination thereof, which has entered into this Agreement to provide professional services to the City. 1.11 Contractor means an individual, partnership, corporation, association, joint venture, or any combination thereof, which has entered into a contract with the City for services required for the renovation of the Orange Bowl Stadium. 1.12 Core Project Staff means staff of the Program Manager or Sub -Program Managers assigned on a full time basis to the Project by the Program Manager. Program Manager shall be paid for the services of the Core Project Staff on a lump sum basis based on the staffing requirements for each phase of the Services. 1.13 Director means the Director of the City Department designated herein who has the authority and responsibility for managing the Project. For the purpose of this Agreement, the Director is the top administrator of the Department of Capital Improvements and Transportation or designee. 1.14 Master Project Schedule means the schedule developed by the Program Manager and approved by the City that shall be utilized to track the progress of the Project. 1.15 Notice To Proceed means 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 the Project. 1.16 PM Project Manager means an employee or Program Manager who shall be responsible for the day to day management of the Services under this Agreement. 1.17 Project Manager means an employee or representative of the City assigned by the Director to manage and monitor the Work to be performed under this Agreement and the construction of the Project as a direct representative of the City, 1.18 Project means the construction, alteration, renovation and/or repair, and all other services and incidentals thereto, of the Orange Bowl Stadium, as contemplated and budgeted by the City. The Project(s) shall be further defined in the Scope Of Services section of this Agreement. 1.19 Project Participants means the City, Program Manager, A/E, Contractor and other firms or companies that may be involved in the Project. 1.20 Professional Services Those services provided by the Program Manager to lead and support the City in the renovation of the Orange Bowl Stadium, including, without limitation, all administrative, technical, and management activities undertaken as part of the Scope of Services. May also be referred to herein as Program Management. 1.21 Risk Administrator means 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. 1.22 Scope Of Services or Services means a comprehensive description of the activities, tasks, PROFESSIONAL SERIVCES AGREEMENT design features, objectives, deliverables and milestones required for the completion of the Project as defined herein. 1.23 Sub -Program Manager means a person, firm or organization that has entered into a written agreement with the Program Manager to furnish specified professional services for this Project. 1.24 Supplemental Program Staff means staff of Program Manager and/or Sub -Program Manager assigned to the Project 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. Supplemental Program Staff may also be added to the Core Staff. 1.25 Wage Rates means 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 categories assigned to provide services under this Agreement that justify and form the basis for professional fees regardless of actual manner of compensation. 1.26 Work Order means a written document issued by the City to the Program Manager authorizing the performance of Additional Services, including identification of the tasks, deliverables, time for completion, and the amount of compensation authorized for such Additional Services. ARTICLE 2 GENERAL CONDITIONS 2.01 TERM: 2.01-1 Commencement The term of this Agreement shall commence upon execution of this Agreement and conclude upon the completion and acceptance of the Services by the Director, unless terminated earlier as provided herein. 2.02 SCOPE OF SERVICES The Project includes, but is not limited to, the redevelopment of the existing structure to include a reduction in the seat count to approximately 63,000 seats, the addition of approximately 14 suites, a total of 1,000 indoor club seats, a total of 750 outdoor club seats, a new club lounge and press box, new concessions, toilets and service facilities, The Project means all work required to complete the renovation of the Orange Bowl Stadium,, including specifically, but not limited to, all the Architect's Work and the Contractor's Work, and includes all labor, materials, equipment and services provided or to be provided by the A/E and Contractor to fulfill their respective obligations under their respective contracts. Program Manager shall be responsible for the management of all aspects of the Project and for providing support and assistance to the City for other services and contracts necessary for the completion of the Project. The Program Manager shall be responsible for managing, monitoring, and reporting to the City with respect to the performance of all Project Participants and the progress of the work in accordance with the approved Master Project Schedule. Program Manager agrees to provide the Services as specifically described in Attachement A to this Agreement, including the special terms and conditions set forth in Attachment "A", which by this reference are incorporated into and made a part of this Agreement. The Program Manager shall serve as the City's Representative for the design, construction and post -construction Services required under this Agreement. 2.03 COMPENSATION 2.03.1 Compensation Limits The maximum amount of compensation payable by the City to Program Manager as a not to exceed fee, is $6,500,000, based on a base fee of $,688,747, $300,000 in additional services fees,and $511,253 in reimbursable services and fees. This amount is based on the rates and schedules established in Attachment B and Schedule B1, which are incorporated into this Agreement. In no event shall the amount of compensation exceed said total amount unless explicitly approved by action of the City Manager or the City Commission, as may be applicable pursuant to Section 18-87 of the City Code, and put into effect by written amendment to this Agreement. 2.03-2 Payments, Payment shall be made within thirty (30) days after receipt of an acceptable invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail (Standard invoice template to be provided by City), to allow a proper audit of expenditures, should the City require one to be performed in accordance with the terms of this Agreement. If Program Manager is entitled to reimbursement of travel expenses, then copies of ail bills for travel expenses shall be submitted in accordance with Section 112.061, Florida Statutes. ARTICLE 3 PROGRAM MANAGER'S PERFORMANCE 3.01 Limitations on Responsibility of the Program Manager The Program Manager is not responsible or liable for the design services provided by the NE, including, without limitation, architecture, design, and engineering, which shall be the responsibility of the NE and its sub -consultants. The Program Manager is not responsible or liable for the construction contractor's work, including, without limitation, the construction means, methods, techniques, sequences, procedures, and safety programs and precautions which shall be carried out by the Contractor under the construction contract. Notwithstanding the foregoing, if the PM Project Manager observes or otherwise becomes aware of any fault or defect in the AIE's work or Contractor's work, nonconformity of the Contractor's work with the PROFESSIONAL SERIVCES AGREEMENT contract documents, or noncompliance with applicable law, the Program Manager shall take commercially reasonable steps to protect the City's interests by giving prompt written notice thereof to the City, A/E and Contractor and direct the NE and Contractor to take appropriate corrective action. The foregoing shall not release the NE or the Contractor from their responsibilities under their respective contracts.The City recognizes and acknowledges that the Architect is responsible for designing the Project within the financial limitations of the City as identified in the Fixed Construction Budget as accepted to by the City. The Program Manager shall have responsibility to the City for ensuring that the design documents prepared by the Architect are consistent with the Fixed Construction Budget. 3.02 PERFORMANCE AND DELEGATION The Professional Services to be performed hereunder shall be performed by the Program Manager's own staff and the Sub -Program Managers identified in this Agreement, unless otherwise approved in writing by the City. Said approval shall not be construed as constituting an agreement between the City and said other person(s) or firm. 3.03 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 any personnel of any such Sub -Program Managers engaged by the Program Manager to provide and perform Services pursuant to the requirements of this Agreement stating the reason for such request. The Program Manager shall respond to City within five (5) working 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. All decisions involving personnel will be made by Program Manager. 3.04 PROGRAM MANAGER KEY STAFF The parties acknowledge that Program Manager was selected by the City, in part, on the basis of qualifications of particular staff identified in Program Manager's Submittals, hereinafter referred to as "Key Personnel". Program Manager shall ensure that Key Personnel as detailed in Schedule A-2 are available for Work hereunder as long as said Key Personnel are in Program Manager's or Sub -Program Manager's employ. Program Manager will obtain prior written approval of Director or designee to change Key Personnel. Program Manager shall provide Director, or designee, with such information as necessary to determine the suitability of proposed new Key Personnel. Director will act reasonably in evaluating Key Personnel qualifications. 3.05 TIME FOR PERFORMANCE The Program Manager agrees to start all Services hereunder upon receipt of a Notice to Proceed issued by the Director and contiue to perorm such Services until all Services have been performed and accepted by the City. Time is of the essence with respect to performance of this Agreement. 3.06 DESIGN RESPONSIBILITIES 3.06-1 Errors and Ommissions The Program Manager shall not be responsible for errors and ommissions of the NE. 3.06-2 Nonconforming Work The Program Manager shall promptly give notice to the City of any defective or nonconforming work of the A/E or Contractor or any other Project participant whenever discovered by the Program Manager and whether before or after the date of Final Completion of the Contractor's work. 3.07 Meetings The Program Manager and the City will work jointly to determine the need for meetings and their frequency during each phase of the Project. ARTICLE 4 SUB -PROGRAM MANAGERS 4.01 GENERAL 4.01-1 A Sub -Program Manager is a person, firm or organization who has entered into a written agreement with the Program Manager to furnish Professional Services under this Agreement, that was identified as part of the Program Manager's team in the competitive selection process by which Program Manager was chosen to perform the Services under this Agreement or subsequently approved by the Director, and as such, is identified and listed in Schedule Al attached hereto. 4.02 SUB -PROGRAM MANAGER RELATIONSHIPS 4.02-1 All services provided by the Sub - Program 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. Sub -Program Managers shall not be authorized or permitted to further subcontract any Work. 4.02-2 Nothing contained in this Agreement shall create any contractual or business relationship between the City and the Sub - Program Managers. The Program Manager acknowledges that Sub -Program Managers are entirely under its direction, control, supervision, retention and/or discharge. 4.03 CHANGES TO SUB -PROGRAM MANAGERS The Program Manager shall not change any Sub - Program Managers listed in Schedule Al without prior PROFESSIONAL SERIVCES AGREEMENT written approval by the Director. Such approval shall not be unreasonably withheld, conditioned, or delayed by the Director. ARTICLE 5 DEFAULT 5.01 GENERAL If Program Manager fails to comply with any term or condition of this Agreement, 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 , upon fifteen (15) days written notice to Program Manager, given subsequent to the expiration of any applicable cure period, terminate this Agreement. 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. Upon such termination the City and the Prorgram Manager shall determine the time to be provided to the Program Manager to demobilize. All costs incurred as a result of such demobilization shall be at the Program Manager's sole expense. In the event of termination due to default, in addition to the foregoing, Program Manager shall be liable to the City for expenses, capped at $6,000, 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, including consequential and incidental damages. In the event of default, the City may also suspend or withhold reimbursements from Program Manager until such time as the actions giving rise to default have been cured. 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, beyond the specified period allowed to cure such default. 5.02-3 Program Manager fails to commence the Services within the time provided or contemplated herein. 5.03 TIME TO CURE DEFAULT: FORCE MAJEURE City shall provide written notice to Program Manager as to a finding of default, and Program Manager shall take all necessary action to cure said default within of the time specified in said notice, which shall be thirty (30) days except where the delay impacts the critical path or creates an emergency conditions. Under such circumstances the City may specify a timeframe that is less than the stipulated Thirty (30) days. Failure to cure the default in the stipulated timeframe may result in the City Manager or designee terminating this Agreement. The City Manager or Director may, in their sole discretion, extend In writing the timeframe for curing said default. 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 the City may allow an extension of time reasonably commensurate with the cause of such failure to perform or cure. if the Program Manager is delayed in performing any obligation under this Agreement due to a force majeure condition, the Program Manager shall request a time extension from the City within two (2) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Program Manager for extra compensation unless Additional Services are required. ARTICLE 6 TERMINATION OF AGREEMENT 6.01 CITY'S RIGHT TO TERMINATE 6.01-1 The City has the right to terminate this Agreement for any reason or no reason, upon sixty (60) days' written notice. Upon termination of this Agreement, all reports, charts, sketches, studies, drawings, and other documents or electronic media 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 Article B4 of Attachment B, upon delivery of all such documents, materials and information. 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. 6.01-2 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 thirty (30) days from the date of the City's receipt of a written notice from Program Manager specifying the City's 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 PROFESSIONAL SERIVCES AGREEMENT Manager to 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 an 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 for ARTICLE 7 DOCUMENTS AND RECORDS 7.01 OWNERSHIP OF DOCUMENTS All work products, including but not limited to; plans, specifications, maps, computer files, models and/or reports prepared or obtained under this Agreement, as well as all data collected, together with summaries and charts derived therefrom, willl be considered "work for hire "as such phrase is defined in Section 101 of Title 17 of the United States Code (Public Law 94-533 and all title, ownership and copyright privileges are and at all times shall be the property of the City without restriction or limitation on their use, and will be made available, on request, to the City at any time during the performance of such services and/or upon completion or termination of this Agreement. Program Manager and its Sub -Program Managers' electronic files, drawings tapes, disks, and similar items remain the property of the City. The Program Manager will provide these electronic items upon the request of the City or upon completion/termination of this Agreement. The Program Manager shall provide documents to others at the direction of the City consistent in content and format with normal document production as determined by the City. The City understands that the use and conversion of Electronic Data to an alternate format may not be accomplished without the potential for introduction of anomalies or errors and that changes or modifications by anyone other than the Program Manager may result in adverse consequences that Program Manager can neither predict nor control. Accordingly, the City agrees that Program Manager shall not be liable for and hereby waives all claims arising out of or connected with (a) the use, modification or misuse by the City of such Electronic Data; or (b) the decline of accuracy or readability of the Electronic Data due to storage conditions, the passage of time, or otherwise; or (c) any use of said electronic data by any third parties receiving the electronic data from the City. The Program Manager will not be liable for use by the City of plans, documents, studies, or other data for any purpose other than that intended by the terms and conditions of this Agreement. Notwithstanding anything contained herein to the contrary, Program Manager shall retain all right, title, and interest in intellectual property: (i) created by Program Manager prior to this Agreement, including (without limitation) Program Manager's proprietary software programs and processes for providing services and (il) created by Program Manager during the term of this Agreement in the normal course of business for Program Manager's clients generally. Program Manager shall not copyright any material and products or patent any invention developed under this Agreement. The City shall have the right to access/inspect the offices of the Program Manager for inspection of the Services and the products of Program Manager at any time. The Program Manager shall be permitted to retain copies, including reproducible copies, solely for information and reference in connection with the City's use and occupancy of the Project. 7.02 DELIVERY UPON REQUEST OR CANCELLATION Failure of the Program Manager to promptly deliver all Project records to the Director within thirty (30) days of cancellation, or within thirty (30) 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 documents. 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 for completion or continuation of this Project by others. 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, and Sub -Program Managers to comply with the provisions of this Article. 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 Project is completed, PROFESSIONAL SERIVCES AGREEMENT 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 at the Program Manager's local office and not more than once per year. ARTICLE 8 INDEMNIFICATION 8.01 The Program Manager shall hold harmless, indemnify and defend the City, at Program Manager's own cost and expense, City officials and employees from any and all third party 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 Article shall not be limited in any way by the agreed upon compensation, 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 Manager, its agents, servants, representatives or Sub -Program Managers. This Article shall survive the termination or expiration of this Agreement. ARTICLE 9 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(V), 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 acceptance 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. Program Manager shall maintain coverage with equal or better rating as identified herein for the term of this Agreement. Program Manager's certificates of insurance shall provide that insurers will endeavor to provide written notice to the City's Department of Risk Management of any, cancellation and/or notice of non -renewal of the insurance within 30 days of the change. Program Manager shall make a copy of the insurance policy or policies available to view in its Risk Management office in Chicago upon request of the Risk Administrator. 9.03 FORMS OF COVERAGE 9.03-1 Comprehensive General Liability and Automobile Liability Coverage shall have minimum limits of $1,000,000 per Occurrence, Combined single Limit Bodily Injury Liability and Property Damage Liability. General Aggregated Limit shall have a minimum limit of $2,000,000. This shall include Personal and Advertising Injury and Products/Completed Operagtions each with a minimum limt of $1,000,000. Required endorsements include; Employees included as insured, Contractual Liability, and Independent Contractors Coverage. Automobile coverage for any auto 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. 9.03-2 Professional 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, combined single limits, providing for all sums 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. The deductible shall not exceed $100,000 This insurance shall be maintained for at least one year after completion of the construction and acceptance of the Project covered by this Agreement. 9.03-3 Worker'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. Waiver of Subrogatrion shall be included. 9.03-4 Excess Liability The Program Manager shall maintain Excess Liability insurance in a minimum amount of $3,000,000 for the following; Bodily Injury and Property Damage for each occurance and in the aggregate. 9.03-5 Employer's Libility The Program Manager shall maintain Employer's Liability in a minimum amount of $500,000 for bodily injury caused by an accident, each accident, and for bodily injury caused by disease, each employee and policy limit. 9.03-6 Cancellation PROFESSIONAL SERIVCES AGREEMENT The certificates evidencing the above policies shall include that the insurer will endeavor to provide the City with written notice of cancellation or material changes from the insurer not less than thirty (30) days prior to any such cancellationor material change. 9.03-7 Sub -Program Manager Compliance Program Manager shall ensure that all Sub - Program Managers comply with these same insurance requirements. 9.03-9 Waiver of Liability. The City shall:include in all subsequent contracts with third parties for' the Project contractual language that will .limit the lability of tie Program Manager la those actions for, which the Project fnanager is; liable'under this Agreement. The City will also require that the Program Manager be named as an additional insured under all such contracts. Language shall be included that clearly indicates that the Program Manager's insurance is not the primary insurance for all of the work to be performed under this Project. 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 compensation for reimbursement of any additiional costs from the City. 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 to furnish copies of any records necessary, in the commercially reasonable 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 written approval. The Program Manager's services are unique in nature and any transference without City 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 Program Manager, by executing this Agreement, certifies 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 Project price and any addition thereto will be adjusted to exclude any significant sums by which the City determines the Project price was increased due to inaccurate, incomplete or non -current wage rates and other factual unit costs. All such price adjustments will be made within 1 year following the end of the Project. 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 attorney's fees except in actions arising out of Program Manager's duties to indemnify the City under ARTICLE 8 where Program Manager shall pay the City's reasonable attorney's fees or in the case of claims covered under Section 10.13 where the City shall pay the Program Manager's expenses and legal fees. 10.06 NOTICES Whenever either party desires to give notice unto the other, such notice must be in writing, sent by PROFESSIONAL SERIVCES AGREEMENT registered United States mail, or electonic mail, 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: Gary Fabrikant City of Miami Department of Capital Improvements (CIP) 444 S.W. 2"d Ave., - 8' FI Miami, Florida 33130 With a copy to: Gary Farbrikant Procurement Supervisor Department of Capital Improvements (CIP) 444 S.W. 2" Ave., - 8"' FI Miami, Florida 33130 For Program Manager: Vivian Mumaw Chief Operating Officer 200 E. Randolph Drive Chicago, Illinois 60601 With a copy to: John A. Paccione Senior Vice President 200 East Robinson Street Suite 525 Orlando, Florida 32801 And Delores Schroeder General Counsel 200 E. Robinson Drive Chicago, Illinois 60601 10.07 INTERPRETATION Preparation of this Agreement has been a joint effort. 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 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. 10.09 COMPLIANCE WITH LAWS Program Manager shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions including, without limitation, OSHA, the Americans with Disabilities Act ("ADA"), as amended, and ail 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. 10.09-1 Non -Discrimination Program Manager 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. 10.10 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. 10.11 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 in dispute hereunder exceed $500,000, 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 PROFESSIONAL SERIVCES AGREEMENT (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. 10.12 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, and/or following the completion of the Project 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 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 a certified mediator on a 50)50 basis. The Program Manager agrees to include such similar contract provisions with all Sub -Program Managers retained for the Project, 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 or to file permissive counterclaims in any action arising under this Agreement. 10.13 THIRD PARTY CLAIMS In the event that any third party asserts claims against the Program Manager relating to the Project, then, provided (i) Program Manager's insurer fails or refuses to provide Program Manager with legal representation, (ii) the claims do not involve matters for which the Program Manager has an obligation pursuant to Article 8 of this Agreement to indemnify the City, or (iii) the claims do not involve matters for which the City has a good -faith basis to assert claims against the Program Manager, the City agrees to pay Program Manager reasonable compensation for the time and expenses of the Program Manager's personnel involved in the analysis of, response to, and resolution of such claims and the reasonable cost of the Program Manager's defense of such claims, including reasonable fees of legal counsel, any expert witnesses and other essential defense costs ("Program Manager's Defense"). The Program Manager shall have the right to select its legal counsel, subject to the approval of the City, which approval shall not be unreasonably withheld. It is understood and agreed that in the event that counsel selected by Program Manager charges rates greater than those customarily paid by the City at the time that such claim is asserted, but in no event less than $250.00 per hour, the parties shall, in good faith, attempt to agree upon such rates or upon an allocated payment of such rates. if the City and Program Manager disagree on the City's obligation to pay for Program Manager's Defense, then the City shall not be required to do so, but shall reimburse the Program Manager the cost of the Program Manager's Defense If, at the conclusion of the claim, it is determined that Program Manager was not at fault, or that the City's assertion of a claim against the Program Manager or the City's decision not to provide the defense contemplated herein, was not in good faith. In the event that the third party claim for which the City has provided or paid the Program Manager's Defense results in a finding of fault on the part of the Program Manager, then the Program Manager shall reimburse the City the cost of Program Manager's Defense to the extent of such finding of fault. For purposes of this provision, a settlement agreement without the City's approval shall be deemed a finding of fault on the part of Program Manager. The City agrees that it will not withhold its approval of a proposed settlement only for the purpose of avoiding its obligations under this Article. The City shall be relieved of its obligation to pay Program Manager's Defense in the event that, at any time during the defense of the third party claim, (i) any insurance carrier provides Program Manager with legal representation, (ii) the City has a good -faith basis to assert a claim or claims against the Program Manager involving matters for which the Program Manager has an obligation to indemnify the Citypursuant to Article 8, (iii) the Program Manager takes a position adverse to the City other than in response to discovery requests or testimony or in good faith in the evaluation of any claim by or against the City, or (iv) claims are asserted by or between the City and Program Manager with respect to either party's performance under this Agreement. 10.14 INDEPENDENT CONTRACTOR: Provider 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. 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, 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 Program Manager agrees to provide workers' compensation insurance for any employee or agent of the Program Manager rendering Services to the City under this Agreement. PROFESSIONAL SERIVCES AGREEMENT 10.15 PERFORMANCE EVALUATION Program Manager is hereby advised that during the performance of Services under this Agreement, upon completion of the Project and/or at any other time deemed appropriate by the City a performance evaluation report may be completed by the City The performance evaluations will be kept in City files for use on future solicitations. 10.16 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. 10.17 LIMITATION ON LIABILITY Notwithstanding anything else contained herein to the contrary, each party shall look solely to the assets of the other party for satisfaction of any liabilities or obligations relating to this engagement, and no officer, director, employee, partner, affiliate, shareholder or agent of either party shall be personally responsible for any such liabilities or obligations. In addition, each party waives any claims for punitive, consequential, speculative or exemplary damages, including, without limitation, lost revenue or profit, even if a party has knowledge of the possibility of such damages; and, except for Program Manager's liability under Section 8 above, in no event shall Program Manager's liability to the City with respect to this Agreement exceed an amount equal to the greater of total annual fees paid or three Million Dollars. PROFESSIONAL SERIVCES AGREEMENT IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. WITNESS/ATTEST PROGRAM MANAGER, .ZONES LANG LASALLE AMERICAS, INC. Signature Signature Print Name, Title John A. Paccione, Senior Vice President ATTEST: (Corporate Seal) Program Manager Secretary Delores Reep 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 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: CERTIFICATE OF AUTHORITY (IF PARTNERSHIP) l HEREBY CERTIFY that at a meeting of the Board of Directors of , a partnership 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 partnership to execute agreements on behalf of the partnership and provides that his/her execution thereof, attested by a partner, shall be the official act and deed of the partnership. I further certify that said partnership agreement remains in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand this , day of 20 Partner: Print: Names and addresses of partners: Name Street Address City State Zip PROFESSIONAL SERVICES AGREEMENT CERTIFICATE OF AUTHORITY (IF JOINT VENTURE) Joint ventures must submit a joint venture agreement indicating that the person signing this bid is authorized to sign bid documents on behalf of the joint venture. If there is no joint venture agreement each member of the joint venture must sign the bid and submit the appropriate Certificate of Authority (corporate, partnership, or individual). CERTIFICATE OF AUTHORITY (IF INDIVIDUAL) individually and doing oing l HEREBY CERTIFY that, 1 (Name) , in Applicable) doing business as (d/b/a) have executed and am bound by the terms of the Agreement to which this attestation is attached. 20— 1N WITNESS WHEREOF, 1 have hereunto set my hand this day of Signed: Print: NOTARIZATION STATE OF ) ) SS: COUNTY OF ) The foregoing instrument was acknowledged 20 , by known to me or who has produced (did / did not) take an oath. SIGNATURE OF NOTARY PUBLIC STATE OF FLORIDA PRINTED, STAMPED OR TYPED NAME OF NOTARY PUBLIC before me this day of , who is personally as identification and who