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HomeMy WebLinkAboutExhibitDraft 05/16/06 PROFESSIONAL SERVICES AGREEMENT By and Between The City of Miami, Florida and Village Marketine Bureau, Inc. This Professional Services Agreement ("Agreement") is entered into this day f , 200_ (but effective as of , 200D ("Effective Date") by and between the City of Miami, a municipal corporation of the State of Florida, whose address is 444 S.W. 2" a Avenue, 10`" Floor, Miami, Florida 33130 ("City") and Village Marketing Bureau, Inc., a Florida corporation qualified to do business in Florida whose principal address is Courthouse Plaza 28 West Flagler Suite 305, Miami, Florida 33130 ("Provider"). RECITALS: A. The City is in need of a qualified professional(s) to provide professional services as identified in Exhibit "A" (hereinafter the "Services") for the rates, fees, and budgeted amount and for the schedule as identified in Exhibit "B" (hereinafter the "Compensation") in connection with developing a public participation, marketing, and community outreach strategy for the remaining three (3) Quadrants of the Miami 21 Project in support of the Miami 21 Initiative. B. Provider was previously identified and hired by the City to undertake similar services for the first Quadrant of the Miami 21 Project and Provider possesses all necessary qualifications and expertise to perform the Services for the remaining three (3) Quadrants and has been authorized by its Board of Directors to enter into this Agreement as indicated by its corporate resolution attached hereto as Exhibit "C". Draft 05/16/06 1 C. Pursuant to Section 18-85 of the City Code, as amended (the "Code"), the City Manager has found that it is most advantageous for the City to waive the competitive sealed bidding procedures and has recommended approving the selection of Provider to provide the Services and the purchase of Provider's Services in an amount not to exceed One Hundred and Twenty -Five Thousand Dollars and No/Cents ($125,000.00) including any renewal or extension of Services, and the City Commission, by the required four - fifths (4/5ths) affirmative vote after an advertised public hearing, pursuant to Resolution No. , adopted , 2006 has approved the award to Provider and authorized the City Manager to negotiate and to enter into this Agreement. D. The City wishes to engage the Services of Provider, and Provider wishes to perform the Services for the City. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Provider and the City agree as follows: TERMS: RECITALS AND INCORPORATIONS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The Services, including the Scope of Services, the Budget, Schedule, Compensation, and List of Sub -Consultants is hereby incorporated into, made a part of this Agreement, and attached hereto as Exhibit "A". Provider's maximum Compensation along with the budget, schedule, rates, and fees is hereby incorporated into, made a part of this Agreement, and attached hereto as Exhibit "B". Provider's Corporation Authorization is hereby incorporated into, made a part of this Agreement and attached hereto as Exhibit "C". The Insurance Requirements are hereby incorporated into, made a part of this Agreement and attached hereto as Exhibit Draft 05/16/06 2 "D". The City Manager's Findings pursuant to Section 18-85 of the Code and City Commission Resolution No. are hereby incorporated into and made a part of this Agreement and attached hereto as Composite Exhibit E. 2. TERM: The term of this Agreement shall commence on the Effective Date and shall terminate twenty-four (24) months after the Effective Date, being 200_ (the "Expiration Date"). In the event that Provider is engaged in any Services on the Expiration Date, then this Agreement shall remain in effect until completion or termination of said Services. No new Work Orders for new or additional services at increased cost to the City shall be issued after the Expiration Date; however, the twenty- four (24) month term of the Agreement may be extended, modified, or amended by the sole authority of the City Manager by written agreement of the City and Provider in order for Provider to complete the Services at the same cost to the City. Any new or additional Services that would increase the costs for the City beyond the One Hundred and Twenty - Five Thousand Dollars and No/Cents ($125,000.00) amount provided in Section 18-85(h) of the Code shall require City Commission approval in order to extend, modify, or amend this Agreement. 3. SCOPE OF SERVICES: A. Provider agrees to provide the Services as specifically described, and subject to the special terms, conditions, budget and schedule set forth in Exhibits "A" and "B", in the Scope of Services hereto (Exhibit "A"), which by this reference is incorporated into and made a part of this Agreement. All formats for the Services are to be as directed in writing from time to time by the City's Project Administrator. Draft 05/16/06 3 B. Provider represents to the City that: (i) it possesses all qualifications, licenses and expertise required for the performance of the Services, including but not limited to full qualification to do business in Florida; (ii) it is not delinquent in the payment of any sums due the City, including payment of permits, fees, occupational licenses, etc., nor in the performance of any obligations to the City, (iii) all personnel assignedto perform the Services are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; (iv) the Services will be performed in the manner, at such times, and for the budgeted amounts described in Exhibit "A", and (v) each person executing this Agreement on behalf of Provider has been duly authorized to so execute the same and fully bind Provider as a party to this Agreement. C. Provider's contact person for the Services shall be Silvia Morales Cejas. Provider shall give at least thirty (30) days advance written notice to City of any intent to change the Project contact and shall provide at that time to City pertinent information about the new Project contact. In the event that the Provider changes the Project contact, it is the intent of the parties to this Agreement that the City should not be penalized by such change and that Provider will work with the City for a smooth transition that will not interrupt the Services to be provided pursuant to this Agreement. D. Provider shall at all times provide fully qualified, competent and physically capable employees to perform the Services under this Agreement. City may require Provider to remove any employee the City deems careless, incompetent, insubordinate, or otherwise objectionable and whose continued 4 Draft 05/16/06 Services under this Agreement are not in the best interest of the City. Each of Provider's employees shall have and wear proper identification. E. It is the intent of the parties that Provider will not be using any subcontractors or subconsultants for the Services being provided to City pursuant to this Agreement. Should Provider request that any subcontractor or subconsultant provide any portion of the Services, City reserves the right to accept or reject any proposed subconsultant or subcontractor. Provider shall give at least thirty (30) days advance written notice to City of any intent to have any subcontractor or subconsultant perform any Services hereunder and shall provide at that time to City pertinent information about the subcontractor or subconsultant. It is the intent of the parties that City shall not be penalized by any such change and that Provider will work with the City for a smooth transition that will not interrupt the Services to be provided pursuant to this Agreement. 4. COMPENSATION: A. The amount of compensation payable by the City to Provider shall be based on the fees, rates, budget, and schedules described in Exhibit "B" hereto, which by this reference is incorporated into this Agreement; provided, however, that in no event shall the total amount of compensation for the Scope of Services referenced in Exhibit "A" exceed One Hundred and Twenty -Five Thousand Dollars and No/Cents ( 125 000.00 . Absent an amendment to this Agreement, additional services and expenses are not included in this compensation and shall only be provided upon a written amendment entered into by the City and Provider and approved by the City Commission. The City shall not be liable for any costs, fees, expenses, or charges 5 Draft 05/16/06 beyond the total amount of compensation and approved expenses, if any, specified in this subsection for the Scope of Services referenced in Exhibit "A." The City shall not be liable for any cost, fee, reimbursement, expense, or other liability beyond .the stated maximum amount of One Hundred Twenty -Five Thousand Dollars and No Cents ($125,000.00). The maximum of One Hundred and Twenty -Five Thousand Dollars and No Cents ($125,000.00) will be the upper limit of liability of the City for all fees of the Provider, its subconsultants, agents, or representatives, and inclusive of costs, reimbursable expenses, if any, and any other approved expenditure relating to Provider's performance of the Services. B. Payment shall be made in arrears based upon work performed to the satisfaction of the City within forty-five (45) days after receipt of Provider's invoice for Services performed, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the' City require one to be performed. Invoices shall be sufficiently detailed so as to comply with the "Florida Prompt Payment Act", §218.70. - 218.79, Florida Statutes, and other applicable laws. No advance payments shall be made at any time. C. Provider is not entitled to reimbursement of any expenses under this Agreement. D. Provider agrees and understands that (i) any and all subconsultants and/or subcontractors providing Services related to this Agreement shall be paid through Provider and not paid directly by the City, and (ii) any and all liabilities regarding payment to or use of subconsultants and/or subcontractors for any of the Services related to this Agreement shall be borne solely by Provider. 6 Draft 05/16/06 E. Neither Provider nor any of its employees nor its subconsultants or subcontractors shall perform any work unless duly authorized by the Project Administrator or his/her designated representative. Provider shall not be paid (i) for any work performed outside the Scope of Services for this Agreement, or (ii) for any work performed by any of Provider's employees or subconsultants or subcontractors not otherwise previously authorized. 5. OWNERSHIP OF DOCUMENTS: Provider understands and agrees that any information, document, report or any other material whatsoever ("Information") which is given by the City to Provider, its employees, or any subconsultant, or which is otherwise obtained or prepared by Provider pursuant to or under the terms of this Agreement, is and shall at all times remain the property of the City. Provider agrees not to use any such information, document, report or material for any other purpose whatsoever without the written consent of the City Manager, which may be withheld or conditioned by the City Manger in his sole discretion. Provider is permitted to make and to maintain duplicate copies of the files, records, documents, etc. if Provider is determines copies of such records are necessary subsequent to the termination of this Agreement; however, in no way shall the confidentiality as permitted by applicable law be breached. The City shall maintain and retain ownership of any and all documents which result upon the completion of the work and Services under this Agreement. 6. AUDIT AND INSPECTION RIGHTS AND RECORDS RETENTION: Provider agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, and records of Provider which are directly pertinent to this Agreement, for the purpose of audit, examination, excerpts, and Draft 05/16/06 7 transcripts. The City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by the City to Provider under this Agreement, audit and inspect, or cause to be audited and inspected, those books, documents, papers, and records of Provider which are related to Provider's performance under this Agreement. Provider agrees to maintain any and all such books, documents, papers, and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement and all other pending matters are closed. Provider's failure to adhere to, or refuse to comply with, this condition shall result in the immediate cancellation of this Agreement by the City. 7. AWARD OF AGREEMENT: Provider represents to the City that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the receipt of an award of this Agreement. 8. PUBLIC RECORDS: Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City Agreements, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable laws. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by, the City. 9. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Provider understands that agreements with local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of Draft 05/16/06 8 interest, record keeping, etc. City and Provider agree to comply with and observe all such applicable federal, state and local laws, rules, regulations, codes and ordinances, as they may be amended from time to time. Provider further agrees to include in all of Provider's agreements with subconsultants for any Services related to this Agreement this provision requiring subconsultants to comply with and observe all applicable federal, state, and local laws rules, regulations, codes and ordinances, as they may be amended from time to time. 10. INDEMNIFICATION: Provider shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the Services contemplated by this Agreement (whether active or passive) of Provider or its employees, agents, subcontractors, or subconsultants (collectively referred to as "Provider") which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive or in strict liability) of the Indemnities, or any of them, or (ii) the failure of the Provider to comply materially with any of the requirements herein, or the failure of the Provider to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement. Provider expressly agrees to indemnify, defend, and hold harmless the Indemnitees, or any of them, from and against all liabilities which may Draft 05/16/06 be asserted by an employee or former employee of Provider, or any of its subconsultants or subcontractors, as provided above, for which the Provider's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. Provider further agrees to indemnify, defend, and hold harmless the Indemnitees form and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, in any way related, directly or indirectly, to Provider's performance under this Agreement, compliance with which is left by this Agreement to provider, and (ii) any and all claims, andlor suits for labor and materials furnished by Provider or utilized in the performance of this Agreement or otherwise. This section shall be interpreted to comply with . Sections 725.06 andlor 725.08, Florida Statutes. Provider's obligations to indemnify, defend, and hold harmless the Indemnitees shall survive the termination of this Agreement. Provider understands and agrees that any and all liabilities regarding the use of any subconsultant or subcontractor for Services related to this Agreement shall be borne solely by Provider throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. 11. DEFAULT: If Provider fails to comply materially with any term or condition of this Agreement, or fails to perform in any material way any of its obligations hereunder, and fails to cure such failure after reasonable notice from the City, then Provider shall be in default. • Upon the occurrence of a default hereunder the City Manager, in addition to all remedies available to City by law, may immediately, upon written notice to Provider, terminate this Agreement. All payments, advances, or other compensation and expenses 10 Draft 05/16/06 paid by the City to Provider for Services rendered by Provider after receipt of such termination notice, shall be immediately returned to the City. Provider understands and agrees that termination of this Agreement under this section shall not release Provider from any obligation accruing prior to the effective date of termination. Should Provider be unable or unwilling to commence to perform the Services within the time provided or contemplated herein, then, in addition to the foregoing, Provider shall be liable to the City for all expenses incurred by the City in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by the City in the re -procurement of the Services. 12. RESOLUTION OF AGREEMENT DISPUTES: Provider understands and agrees that all disputes between Provider 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 Provider being entitled to seek judicial relief in connection therewith. In the event that the amount of compensation hereunder exceeds Twenty -Five Thousand Dollars and No/Cents ($25,000), the City Manager's decision shall be approved or disapproved by the City Commission. Provider 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 the amount of compensation hereunder exceeds Twenty -Five Thousand Dollars and No/Cents ($25,000), 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 (ninety (90) days if 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 instruments, signed by the City Manager. Draft 05/16/06 11 13. CITY'S TERMINATION RIGHTS: A. The City, acting by and through its City Manager, shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to Provider at least five (5) business days prior to the effective date of such termination. In such event, the City shall pay to Provider compensation for Services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable to Provider for any additional compensation and expenses incurred, other than that provided herein, or for any consequential or incidental damages. B. The City Manager shall have the right to terminate this Agreement, without notice or liability to Provider, upon the occurrence of an event of a material default hereunder. In such event, the City shall not be obligated to pay any amounts to Provider for services rendered by Provider after Provider's receipt of the notice of termination. 14. INSURANCE: Please`Notes R s C Management will need Scope'of Services to order to assess thres1iold A. Provider shall, at all times during the term hereof maintain such insurance coverage(s) as may be required by the City. The insurance coverage(s) required as of the Effective Date of this Agreement are attached hereto as Exhibit "C" and incorporated herein by this reference. The City competitive bid number and title of the bid solicitation must appear on each certificate of insurance. The Provider shall add the City of Miami as an additional named insured to its commercial general liability and auto policies and as a named certificate holder on all policies. Provider shall correct any insurance certificates as requested by the City's Risk Management Administrator. All Draft 05/16/06 12 such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and shall be furnished to the City Risk Management Administrator on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled, modified, or changed during the performance of the Services under this Agreement without thirty (30) calendar days prior written notice to the City Risk Management Administrator. Completed Certificates of Insurance shall be filed with the City prior to the performance of Services hereunder, provided, however, that Provider shall at any time upon request file duplicate copies of the policies of such insurance with the City. B. If, in the reasonable judgment of the City, prevailing conditions in the insurance marketplace warrant the provision by Provider of additional One Million Dollars ($1,000,000) of professional liability insurance coverage, the City reserves the right to require the provision by Provider of up to such additional amount of professional liability coverage, and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the Provider fail or refuse to satisfy the requirement of additional coverage within thirty (30) days following the City's written notice, this Agreement shall be considered terminated on the date the required change in policy coverage would otherwise take effect. C. Provider understands and agrees that any and all liabilities regarding the use of any of Provider's employees or any of Provider's subconsultants for Services related to this Agreement shall be borne solely by Provider throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. Provider further understands and agrees that insurance for each employee of Provider and Draft 05/16/06 13 each subconsultant providing Services related to this Agreement shall be maintained in good standing and approved by the City Risk Management Administrator throughout the duration of this Agreement. D. Provider shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, Provider shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Administrator at a minimum of ten (10) calendar days in advance of such expiration. In the event that expired certificates are not replaced, with new or renewed certificates which cover the term of this Agreement and any extension thereof: (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City' s Risk Management Administrator; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek re -procurement damages from Provider in conjunction with the violation of the terms and conditions of this Agreement. E. Compliance with the foregoing requirements shall not relieve Provider of its liabilities and obligations under this Agreement. 15. NONDISCRIMINATION: Provider represents to the City that Provider does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Provider's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. 14 Draft 05/16/06 Provider 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. 16, MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM: The City has established a Minority and Women Business Affairs and Procurement Program (the "M/WBE Program") designed to increase the volume of City procurement and Agreements with Blacks, Hispanic and Women -owned businesses. The M/WBE Program is found in Ordinance No. 10062, a copy of which has been delivered to, and receipt of which is hereby acknowledged by, Provider. Provider understands and agrees that the City shall have the right to terminate and cancel this Agreement, without notice or penalty to the City, and to eliminate Provider from consideration and participation in future City Agreements if Provider, in the preparation and/or submission of the Proposal, submitted false of misleading information as to its status as Black, Hispanic and/or Women owned business and/or the quality and/or type of minority or women owned business participation. 17. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, and Provider shall not assigned any part of its operations, without the prior written consent of the City, which may be withheld or conditioned, in the City's sole discretion through the City Manager. Provider may not change or replace sub -contractors performing work under the Scope of Services identified in Exhibit "A" without the prior written consent from the City Manager. Draft 05/16/06 15 18. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO PROVIDER: Silvia Morales Cejas Principal & Project Manager Village Marketing Bureau, Inc. Courthouse Plaza 28 West Flagler 305 Miami, Florida 33130 With Copies to: Jorge L. Fernandez City Attorney Office of the City Attorney 444 SW 2" Avenue, 9th Fl Miami, Fl 33130 305 416-1800 TO THE CITY: Joe Arriola, City Manager City Manager's Office 444 SW 2" Avenue, 10th Floor Miami, Florida 33130 305 416-1025 Ana Gelabert-Sanchez Director & Project Administrator Department of Planning 444 SW 2"d Avenue, 3r Fl. Miami, Fl 33130 305 416-147.0 c/o Frank Gomez Risk Management 444 SW 2" Avenue, 9th Floor Miami, Florida 33130 305 416-1700 19. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any proceedings between the parties shall be in Miami- Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives 16 Draft 05/16/06 any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. Provider shall comply with all applicable laws, rules and regulations in the performance of this Agreement, including but not limited to licensure, and certifications required by law for professional service providers. F. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto, Except as otherwise Draft 05/16/06 17 set forth in Section 2 above, the City Manager shall have the sole authority to extend, to amend or to modify this Agreement on behalf of the City. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 21. INDEPENDENT CONTRACTORS: 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. Accordingly, neither Provider, nor its employees, nor any subconsultant or subcontractor hired by Provider to provide any Services under this Agreement shall 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. Provider further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Provider, its employees, or any subconsultant or subcontractor hired by Provider to provide any Services hereunder, and Provider agrees to provide or to require subconsultant(s) or subcontractor(s) to provide, as applicable, workers' compensation insurance for any employee or agent of Provider rendering Services to the City under this Agreement. Provider further understands and agrees that Provider's or subconsultants' or subcontractors' use or entry upon City properties shall not in any way change its or their status as an independent contractor. 22. 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 written notice. Draft 05/16/06 18 23. FORCE MAJEURE. A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted. 24. CITY NOT LIABLE FOR DELAYS: Provider hereby understands and agrees that in no event shall the City be liable for, or responsible to Provider or any subconsultant or subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no control. 25. USE OF NAME: Provider understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. No Draft 05/16/06 19 advertising, sales promotion, or other publicity materials containing information obtained in connection with the solicitation for competitive bids for this Agreement are to be mentioned by Provider, its employees, or its subconsultants or subcontractors providing Services related to this Agreement, or imply the name of the City, without prior express written permission of the City Manager or the City Commission. 26. NO CONFLICT OF INTEREST: Pursuant to City of Miami Code Section 2- 611, as amended ("City Code"), regarding conflicts of interest, Provider hereby certifies to City that individual member of Provider, no employee, no subcontractor, and no subconsultant under this Agreement nor any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Provider hereby represents and warrants to the City that throughout the term of this Agreement, Provider, its employees. Its subcontractors, and its subconsultants will abide by this prohibition of the City Code. 27. NO THIRD -PARTY BENEFICIARY: No persons other than the Provider and the City (and their successors and assigns) shall have any rights whatsoever under this Agreement. 28. SURVIVAL: All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination. 29. TRUTH -IN -NEGOTIATION CERTIFICATION, REPRESENTATION AND WARRANTY: Provider hereby certifies, represents and warrants to City that on the date of Provider's execution of this Agreement and so long as this Agreement shall 20 Draft 05/16/06 remain in fu11 force and effect, the wage rates and other factual unit costs supporting the compensation to Provider under this Agreement are and will continue to be accurate, complete, and current. Provider understands, agrees and acknowledges that the City shall adjust the amount of the compensation and any additions thereto to exclude any significant sums by which the City determines the contract price of compensation hereunder was increased due to inaccurate, incomplete, or non -current wage rates and other factual unit costs. All such contract adjustments shall be made within one (1) year of the end of this Agreement, whether naturally expiring or earlier terminated pursuant to the provisions hereof. 30. COUNTERPARTS: This Agreement may be executed in three or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. 31. INSURANCE REQUIREMENTS: Attached as Exhibit "C" hereto and incorporated herein. 32. REPRESENTATIONS AND WARRANTEES: Provider represents and warrants to City (1) that its Services and the product(s) used therefore are fit for the particular purposes of the Services being required by the City and (2) against defects in workmanship and installation. The parties agree that these express warrantees and any statutory or equitable warrantees available under Florida law shall apply to the Services and products being provided by Provider and any of its employees, agents, subcontractors and/or subconsultants to City. 33. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly Draft 05/16/06 21 set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. "City" CITY OF MIAMI, a municipal ATTEST: corporation By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager ATTEST: "Provider" Village Marketing Bureau, Inc. a Florida corporation, qualified to do business in Florida By: Print Name: Print Name: Title: Title: (Corporate Seal) (Authorized Corporate Officer) APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIRE Jorge L. Fernandez City Attorney Risk Management Administrator 22 Draft 05/16/06 Draft 05/16/06 23