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HomeMy WebLinkAboutExhibit 1LITTLE HAITI PLANTING — GRANT PROJECT, B-30260 By and Between CITY OF MIAMI AND SFM SERVICES/ TECHNO, J.V. CONTRACT THIS IS A CONTRACT, dated as of the day of ,. 2006 (but effective as of , 2006 (the "Effective Date"), by and between the City of Miami, a political subdivision of the State of Florida, whose principal address is 444 S.W. 2nd Avenue, 10th Floor, Miami, Florida 33130 hereinafter referred to as City, and SFM Services! Techno, J.V., a Florida corporation, whose principal address is 9700 N.W. 97 Avenue, Miami, Florida 33016, (hereinafter collectively called the "Contractors). RECITAL WHEREAS, the City Commission, or the City Manager, as applicable, has awarded the Contract to the Contractor for the Project entitled: Project Name(s): Little Haiti Planting — Grant Contract Project/Bid Numbers: Project B-30260, Bid No. 05-06-048 (hereinafter referred to as "Project") pursuant to Resolution No.R-06-0406, adopted June 22, 2006 (a copy of which is attached hereto as Attachment 1 and made a part hereof by this reference);and WHEREAS, by resolution of its joint venture partners and by corporate resolutions of each (attached hereto as "Composite Attachment 2" and made a part hereof by this reference) Contractor has authorized its designated representatives to enter into this Contract on behalf of Contractor and to fulfill their responsibilities and obligations hereunder, NOW, THEREFORE, in consideration of the foregoing recitals (ail of which are adopted as an integral part of this Contract), and the promises and covenants contained herein, and other good and valuable consideration, the receipt of which are hereby acknowledged, the parties hereto mutually agree as follows: ARTICLE 1 SCOPE OF WORK Contractor hereby agrees to furnish all of the labor, materials, equipment, services and incidentals necessary to perform all of the Work described in the Contract Documents and related thereto for the Work. 06-993 1 ARTICLE 2 CONTRACT TERM 2.1 Contractor shall be issued a Notice of Award by the Contract Administrator. Contractor shall commence scheduling activities, permit applications and other pre -commencement Work within five (5) calendar days after receipt of the Notice of Award. The Notice to Proceed and Purchase Order will not be issued until Contractor's submission to City of all required documents (including but not limited to: Payment and Performance Bonds, and Insurance Certificate) and after execution of the Contract by both parties. 2.1.1 The receipt of all necessary permits by Contractor and acceptance of the maintenance schedule in accordance with the Contract Documents is a condition precedent to the issuance of the Notice to Proceed and commencement of the physical Work. The Contractor shall submit all necessary documents required Contract Documents required for issuance of a Notice to Proceed within fifteen (15) calendar days of the issuance of the Notice of Award. 2.2 The initial term covering the Grant funding part of the Contract shall be seventy five (75) working days for the area covering Little Haiti Neighborhood as described in the BASE BID of the proposal and shall commence three (3) calendar days after a Notice to Proceed, but the total term of the Contract shall not exceed one (1) year without further approval of the City Commission. ARTICLE 3 NO DAMAGES FOR DELAY In the event of any delays to the Work, the Contractor's sole remedy shall be to seek an extension of time to perform the Work in accordance with the terms of the Contract. The City shall not be liable for any delay damages or damages attributable to performing Work out of sequence, acceleration claims or other similar type claims, incurred by Contractor arising out of or in any way associated with the performance of this Contract. ARTICLE 4 THE CONTRACT SUM 4.1 The TOTAL BID is a Fixed Price. not to Exceed Contract with payments based on line item pricing. The total amount of this Contract shall riot exceed One Hundred Seventy Two Thousand Four Hundred Seventy Five dollars and no cents ($172,475.00). 4.2 Payment shall be paid based on the line item prices stated in the Contract for Work actually performed. Payments shall be full compensation for all costs, including overhead and profit, associated with completion of all the Work in full conformity with the requirements as stated or shown, or both, in the Contract Documents. The cost of any item of Work not covered by a definite Contract line item price should be included in the line item price to which the item is most applicable. 06-993 2 ARTICLE 5 PROGRESS PAYMENTS 5.1 Contractor may make Application for Payment for Work completed during the prior month. Contractor's Application for payment shall show a complete breakdown of the Work tasks completed by site, the amount due for each task, together with such supporting evidence as may be required by City. Each Application for Payment shall be submitted in triplicate to the Project Manager for approval. City shall make payment to Contractor within thirty (30) days after approval by the City of Contractor's Application for Payment. 5.2 Contractor shall submit load tickets and release of liens from subcontractors with the Applications for Payment. Failure to include such documents will result in the reject of line item payment within the Application for Payment rejection of the entire Application for Payment. 5.3 City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from loss on account of: 5.3.1 Rejected Work not remedied. 5.3.2 Claims filed or reasonable evidence indicating probable fling of claims by other parties against Contractor or City because of Contractor's performance. 5.3.3 Failure of Contractor to make payments properly to Subcontractors or for material or labor. 5.3.4 Damage to another contractor not remedied. 5.3.5 Failure of Contractor to provide any and all documents required by the Contract Documents. When the above grounds are removed or resolved satisfactory to the Contract Administrator, payment shall be made in whole or in part. ARTICLE 6 CONTRACT HEIRARCHY 6.1 This Contract is part of, and incorporated in, the Contract Documents as defined herein. Accordingly, all of the documents incorporated by the Contract Documents shall govern this Project. 6.2 Where there is a conflict between any provision set forth within the Contract Documents and a more stringent state or federal provision which is applicable to the Contract Documents, the more stringent provision shall prevail. The order of hierarchy within the Contract Documents shall be the Contract, Scope of Work, Supplemental Conditions, General Conditions, and last shall be the Instructions to Bidders. 3 06-993 ARTICLE 7 INSURANCE REQUIREMENTS AND ADDITIONAL BOND: 7.1 A. To be reviewed by Risk Management: Contractor 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 Contract are attached hereto as Exhibit D and incorporated herein by this reference. The City Competitive BID number and title of the BID must appear on each certificate of insurance. The Contractor 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. Contractor shall correct any insurance certificates as requested by the City's Risk Management Administrator. All 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 Contract 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 Contractor 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 upon any extension of the Contract or additions to the Scope of Services, prevailing conditions in the insurance marketplace warrant the provision by Contractor of additional One Million Dollars ($1,000,000) of professional liability insurance coverage, the City reserves the right to require the provision by Contractor 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 Contractor fail or refuse to satisfy the requirement of additional coverage within thirty (30) days following the City's written notice, this Contract shall be considered terminated on the date the required change in policy coverage would otherwise take effect. C. Contractor understands and agrees that any and all liabilities regarding the use of any of Contractor's employees or any of Contractor's subconsultants for Services related to this Contract shall be borne solely by Contractor throughout the term of this Contract and that this provision shall survive the termination of this Contract. Contractor further understands and agrees that insurance for each employee of Contractor and each subconsultant providing Services related to this Contract shall be maintained in good standing and approved by the City Risk Management Administrator throughout the duration of this Contract. D. Contractor shall be responsible for assuring that the insurance certificates required under this Contract remain in full force and effect for the duration of this Contract, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Contract and any extension hereof, Contractor 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 Contract and any extension thereof: (i) the City shall suspend this Contract until such time as the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Administrator; or 06-993 4 (ii) the City may, at its sole discretion, terminate the Contract for cause and seek re -procurement damages from Contractor in conjunction with the violation of the terms and conditions of this Contract. E. Compliance with the foregoing requirements shall not relieve Contractor of its liabilities and obligations under this Contract. 7.2. It is further mutually agreed between the parties hereto, that if, at any time after the execution of this Contract and the Performance Bond hereto attached and incorporated herein as Attachment "3", when required for its faithful performance, the City shall deem the surety or sureties upon such bond to be unsatisfactory, or if, for any reason, in the opinion of the Engineer; such bond ceases to be adequate to cover the performance of the work, the Contractor shall, at his expense, within five (5) days after receipt of notice from the Engineer so to do, furnish an additional bond or bonds in such form and amount, and with such surety or sureties as shall be satisfactory to the City. In such event, no further payment to the Contractor shall be deemed to be due under this Contract until such new or additional security for the faithful performance of the work shall be furnished in manner and form satisfactory to the City. ARTICLE 8 PUBLIC ENTITY CRIMES In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, Consultant or other Contractor, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or Consultant under a contract with the City, and may not transact any business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section by Contractor shall result in cancellation of the City purchase order and may result in Contractor debarment. ARTICLE 9 INDEPENDENT CONTRACTOR Contractor is an independent contractor under this Contract. Services provided by Contractor pursuant to this Contract shall be subject to the supervision of Contractor. In providing such services, neither Contractor nor its agents nor any of its subcontractors shall act as officers, employees, or agents of the City. This Contract shall not constitute or make the parties a partnership or joint venture. 06-993 5 ARTICLE 10 NO THIRD PARTY BENEFICIARIES Neither Contractor nor City intends to directly or substantially benefit a third party by this Contract. Therefore, the parties agree that there are no third party beneficiaries to this Contract and that no third party shall be entitled to assert a claim against either of them based upon this Contract. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Contract. ARTICLE 11 NOTICES Whenever either party desires to give notice to the other, such notice must be in writing, sent by certified United States Mail, postage prepaid, return receipt requested, or by hand -delivery with a request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is intended at the place last specified. The place for giving notice shall remain the same as set forth herein until changed in writing in the manner provided in this section. For the present, the parties designate the following: For City: Stephanie Grindell, P.E. Director of Public Works 444 SW 2nd Avenue 8th Floor Miami, FL 33130 With copies to: Elyrosa Estevez, PE III Department of Public Works City of Miami 444 SW 2,d Ave., 8th Floor Miami, Florida 33130 For Contractor: ARTICLE 12 ASSIGNMENT AND PERFORMANCE 11.1 Neither this Contract nor any interest herein shall be assigned, transferred, or encumbered by either party. In addition, Contractor shall not subcontract any portion of the Work required by this Contract except as authorized by Article 32 of the General Conditions. Contractor represents that all persons delivering the services required by this Contract have the knowledge and skills, either by 06-993 6 training, experience, education, or a combination thereof, to adequately and competently perform the duties, obligations, and services set forth in the Scope of Work and to provide and perform such services to City's satisfaction for the agreed compensation. 11.2 Contractor shall perform its duties, obligations, and services under this Contract in a skillful and respectable manner. The quality of Contractor's performance and all interim and final product(s) provided to or on behalf of City shall be comparable to the best local and national standards. ARTICLE 13 MATERIALITY AND WAIVER OF BREACH 12.1 City and Contractor agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Contract and, therefore, is a material term hereof. 12.2 City's failure to enforce any provision of this Contract shall not be deemed a waiver of such provision or modification of this Contract. A waiver of any breach of a provision of this Contract shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Contract. 06-993 ARTICLE 14 SEVERANCE In the event a portion of this Contract is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless City or Contractor elects to terminate this Contract. An election to terminate this Contract based upon this provision shall be made within seven (7) days after the finding by the court becomes final. ARTICLE 15 APPLICABLE LAW AND VENUE This Contract shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. By entering into this Contract, Contractor and City hereby expressly waive any rights either party may have to a trial by jury or to file permissive counterclaims in any civil litigation related to, or arising out of the Project. Contractor shall specifically bind all subcontractors to the provisions of this Contract. Each party shall bear their own attorney's fees. 7 ARTICLE 16 INDEMNIFICATION: Contractor shall indemnify, defend and hold harmless the City and its officials, employees and its designated third -party administrator for claims (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including reasonable 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 Contract (whether active or passive) of Contractor or its employees, agents or subconsultants (collectively referred to as "Contractor") 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 Contractor to comply materially with any of the requirements herein, or the failure of the Contractor 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 Contract. Contractor expressly agrees to indemnify, defend, and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Contractor, or any of its subconsultants, as provided above, for which the Contractor's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. Contractor 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 Contractor's performance under this Contract, compliance with which is left by this Contract to Contractor, and (ii) any and all claims, and/or suits for labor and materials furnished by Contractor or utilized in the performance of this Contract or otherwise. In the event that any third party asserts claims against the Contractor and/or the Indemnitees for which Contractor is defending the Indemnitees relating to the Services, Contractor shall have the right to select its legal counsel for such defense, 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 Contractor 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 allocation of payment of such rates. In the event that the third party claim for which Contractor has provided or paid Indemnitees defense results in a finding of fault on the part of the Indemnitees, then the City shall reimburse Contractor the cost of the Indemnitees defense to the extent of such finding of fault. 06-993 8 This section shall be interpreted to comply with Sections 725.06 and/or 725.08, Florida Statutes. Contractor's obligations to indemnify, defend, and hold harmless the Indemnitees shall survive the termination of this Contract. Contractor understands and agrees that any and all liabilities regarding the use of any subconsultant for Services related to this Contract shall be borne solely by Contractor throughout the duration of this Contract and that this provision shall survive the termination of this Contract. ARTICLE 17 AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Contract and executed by the City Manager and Contractor. ARTICLE 18 PRIOR CONTRACTS This document incorporates and includes all prior negotiations, correspondence, conversations, Contracts, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, Contracts or understandings concerning the subject matter of this Contract that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or Contracts, whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless set forth in writing in accordance with the terms and conditions hereof. ARTICLE 19 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. ARCTICLE 20 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 A6-993 9 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. ARTICLE 21 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 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. IN WITNESS WHEREOF, the parties have set their hands and seals on the day and year first above written. "City" City Of Miami, a municipal ATTEST: corporation By: Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager 06-993 10 ATTEST: (Public Notary) "Contractor" a Florida By: By: Print Name: Print Name: Title: Title: By: By: Print Name: Print Name: Title: Title: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Jorge L. Fernandez, City Attorney LeeAnn Brehm, Risk Management Administrator APPROVED AS OF ENGINEERING: Stephanie N. Grindell, P.E. Director Public Works Department Resolution No. R-06-0406, adopted June 22, 2006 THE CITY REQUIRES FOUR (4) FULLY -EXECUTED CONTRACTS, fOR DISTRIBUTION. 06-993 11 DRAFT LITTLE HAITI PLANTING — GRANT PROJECT, B-30260 By and Between CITY OF MIAMI AND SFM SERVICES/ TECHNO, J.V. CONTRACT THIS IS A CONTRACT;.. dated as of the day of ,. 2006 (but effective as of , 2006 (the "Effective Date"), by and between the City of Miami, a political subdivision of the State/Of Florida, whose principal address is 444 S.W, 2" Avenue, 101h Floor, Miami, Florida 33130 hereinafter referred to as City, and SFM Services/ Techno, J1V., a Horida corporation, whose principal address is 9700 NM, 97 Avenue, Miami, Florida 33016, (hereinafter collectively called the "Contractor'). RECITAL WHEREAS, the City Commission,or the City Manager, as applicable, has awarded the Contract to the Contractor for the Project entitled: Project Name(s): Little Haiti Planting — Grant Contract Project/Sid Numbers: Project B-30260, Bid Na. 06-06-048 (hereinafter referred to as "Project") pursuant to Resolution No. , adopted 2006 (a copy of which is attached hereto as Attachment 1 and made a part hereof by this reference):and WHEREAS, by resolution of its joint venture partners and by corporate resolutions of each (attached hereto as "Composite Attachment 2" and made as part hereof by this reference) Contractor has authorized its designated representatives to enter into this Contract on behalf of Contractor and to fulfill their responsibilities and obligations hereunder, NOW, THEREFORE, in consideration of the foregoing recitals (all of which are adopted as an integral part of this Contract), and the promises and covenants:,., contained herein, and other good and valuable consideration, the receipt of which are hereby acknowledged, the parties hereto mutually agree as follows: ARTICLE 1 SCOPE OF WORK Contractor hereby agrees to furnish all of the labor, materials, equipment, services and incidentals necessary to perform all of the Work described in the Contract Documents and related thereto for the Work. ARTICLE 2 CONTRACT TERM 2.1 Contractor shall be issued a Notice of Award , by the Contract Administrator. Contractor shall commence scheduling activities, permit applications and other pre -commencement Work within five (5) calendar days after receipt of the Notice of Award. The Notice to Proceed and Purchase Order will not be issued until Contractor's submission to City of all required documents (including but not limited to: Payment and Performance Bonds, and Insurance Certificate) and after execution of the Contract by both parties. 2.1.1The receipt of all necessary permits by Contractor and acceptance of the maintenance schedule in accordance with the Contract Documents is a condition precedent to the issuance of the Notice to Proceed and. commencement of the physical Work. The Contractor shall submit all necessary documents required Contract Documents required for issuance of a Notice to Proceed within fifteen (15) calendar days of the issuance of the Notice of Award. 2.2 The initial term covering the Grant funding part of the Contract shall be seventy five (75) working days for the area covering Little Haiti Neighborhood as described in the BASE BID of the proposal and shall commence three (3) calendar days after a Notice to Proceed. The City, at its sole discretion, may opt to renew (OTR) the Contract for planting at locations citywide outside the Grant Area for four (4) additional one year terms pending on the availability of funding and contractor's performance. ARTICLE 3 NO DAMAGES FOR DELAY In the event of any delays to the Work, the Contractor's sole remedy shall be to seek an extension of time to perform the Work in accordance with the terms of the Contract. The City shall not be liable for any delay damages or damages attributable to performing Work out of sequence, acceleration claims or other similar type claims, incurred by Contractor arising out of or in any way associated with the performance of this Contract. ARTICLE 4 THE CONTRACT SUM 4.1 The TOTAL BID is a Fixed Price, not to Exceed Contract with payments based an line item pricing. The total amount of this Contract shall not exceed One Hundred Seventy Two Thousand Four Hundred Seventy Five dollars and no cents (5172,475.00). Draft 2 4.2 Payment shall be paid based on the line item prices stated in the Contract for Work actually performed, Payments shall be full compensation for all costs, including overhead and profit, associated with completion of all the Work in full conformity with the requirements as stated or shown, or both, in the Contract Documents. The cost of any item of Work not covered by a definite Contract line item price should be included in the line item price to which the item is most applicable. ARTICLE 5 PROGRESS PAYMENTS 5.1 Contractor may make Application for Payment for Work completed during the prior month. Contractor's Application for payment shall show a complete breakdown of the Work tasks completed by site, the amount due for each task, together with such supporting evidence as may be required by City. Each Application for Payment shall be submitted in triplicate to the Project Manager for approval. City shall make payment to Contractor within thirty (30) days after approval by the City of Contractor's Application for Payment. 5.2 Contractor shall submit Toad tickets and release of liens from subcontractors with the Applications for Payment. Failure to include such documents will result in the reject of line item payment within the Application for Payment rejection of the entire Application for Payment. 5,3 City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from Toss on account of: 5.3.1 Rejected Work not remedied. 5,3.2 Claims filed or reasonable evidence indicating probable filing of claims by other parties against Contractor or City because of Contractor's performance. 5.3.3 Failure of Contractor to make payments properly to Subcontractors or for material or labor. 5.3.4 Damage to another contractor not remedied. 5.3.5 Failure of Contractor to provide any and all documents required by the Contract Documents. When the above grounds are removed or resolved satisfactory to the Contract Administrator, payment shall be made in whole or in part. ARTICLE 6 CONTRACT HEIRARCHY 6.1 This Contract is part of, and incorporated in, the Contract Documents as defined herein. Accordingly, all of the documents incorporated by the Contract Documents shall govern this Project. 6.2 Where there is a conflict between any provision set forth within the Contract Documents and a more stringent state or federal provision which is applicable to the Contract Documents, the more stringent provision shall prevail. The order of Draft 3 hierarchy within the Contract Documents shall be the Contract, Scope of Work, Supplemental Conditions, General Conditions, and last shall be the Instructions to Bidders, ARTICLE 7 INSURANCE REQUIREMENTS AND ADDITIONAL BOND: 7,1 A. To be reviewed by Risk Management Contractor 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 Contract are attached hereto as Exhibit D and incorporated herein by this reference... The City Competitive BID number and title of the BID must appear on each certificate of insurance. The Contractor 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. Contractor shall correct any insurance certificates as requested by the City's Risk Management Administrator. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and snail 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 he canceled, modified, or changed during the performance of the Services under this Contract 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 Contractor 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 upon arty extension of the Contract or additions to the Scope of Services, prevailing conditions in the insurance marketplace warrant the provision by Contractor of additional One Million Dollars ($1,000,000) of professional liability insurance coverage, the City reserves the right to require the provision by Contractor 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 Contractor fail or refuse to satisfy the requirement of additional coverage within thirty (30) days following the City's written notice, this Contract shall be considered terminated on the date the required change in policy coverage would otherwise take effect. C. Contractor understands and agrees that any and ail liabilities regarding the use of any of Contractor's employees or any of Contractor's subconsultants for Services related to this Contract shall be borne solely by Contractor throughout the term of this Contract and that this provision shall survive the termination of this Contract. Contractor further understands and agrees that insurance for each employee of Contractor and each subconsuitant providing Services related to this Contract shalt be maintained in good standing and approved by the City Risk Management Administrator throughout the duration of this Contract, D. Contractor shall be responsible for assuring that the insurance certificates required under this Contract remain in full force and effect for the duration of this Contract, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Contract and any extension hereof, Contractor shall be responsible for submitting new or renewed insurance certificates to the City's Risk Drab 4 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 Contract and any extension thereof: (i) the City shall suspend this Contract 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 Contract for cause and seek re -procurement damages from Contractor in conjunction with the violation of the terms and conditions of this Contract, E. Compliance with the foregoing requirements shall not relieve Contractor of its liabilities and obligations under this Contract. 7.2. It is further mutually agreed between the parties hereto, that if, at any time after the execution of this Contract and the Performance Bond hereto attached and incorporated herein as Attachment "3" when required for its faithful performance, the City shall deem the surety or sureties upon such bond to be unsatisfactory, or if, for any reason, in the opinion of the Engineer; such bond ceases to be adequate to cover the performance of the work, the Contractor shall, at his expense, within five (5) days after receipt of notice from the Engineer so to do, furnish an additional bond or bonds in such form and amount, and with such surety or sureties as shall be satisfactory to the City. In such event, no further payment to the Contractor shall be deemed to be due under this Contract until such new or additional security for the faithful performance of the work shall be furnished in manner and form satisfactory to the City. ARTICLE 8 PUBLIC ENTITY CRIMES In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, Consultant or other Contractor, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or Consultant under a contract with the City, and may not transact any business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed an the convicted vendor list. Violation of this section by Contractor shall result in cancellation of the City purchase order and may result in Contractor debarment. ARTICLE 9 INDEPENDENT CONTRACTOR Contractor is an independent contractor under this Contract, Services provided by Contractor pursuant to this Contract shall be subject to the supervision of Contractor, In providing such services, neither Contractor nor its agents nor any of its subcontractors shall act as officers, employees, or agents of the City. This Contract shall not constitute or make the parties a partnership or joint venture. Oran 5 ARTICLE 10 NO THIRD PARTY BENEFICIARIES Neither Contractor nor City intends to directly or substantially benefit a third party by this Contract. Therefore, the parties agree that there are no third party beneficiaries to this Contract and that no third party shall be entitled to assert a claim against either of them based upon this Contract. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Contract. ARTICLE 11• NOTICES Whenever either party desires to give notice to the other, such notice must be in writing, sent by certified United States Mail, postage prepaid, return receipt requested, or by hand -delivery with a request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is intended at the place last specified. The place for giving notice shall remain the same as set forth herein until changed in writing in the manner provided in this section. For the present, the parties designate the following: For City: Stephanie Grindell, P.E. Director of Public Works 444 SW 2nd Avenue 8th Floor Miami, FL 33130 With copies to: Elyrosa Estevez, PE III Department of Public Works City of Miami 444 SW 2nd Ave., 8'h Floor Miami, Florida 33130 For Contractor: ARTICLE 12 ASSIGNMENT AND PERFORMANCE 11.1 Neither this Contract nor any interest herein shall be assigned, transferred, or encumbered by either party. In addition, Contractor shall not subcontract any portion of the Work required by this Contract except as authorized by Article 32 of the General Conditions. Contractor represents that all persons delivering the services required by this Contract have the knowledge and skills, either by Draft 6 training, experience, education, or a combination thereof, to adequately and competently perform the duties, obligations, and services set forth in the Scope of Work and to provide and perform such services to City's satisfaction for the agreed compensation, 11.2 Contractor shall perform its duties, obligations, and services under this Contract in a skillful and respectable manner, The quality of Contractor's performance and all interim and final product(s) provided to or on behalf of City shall be comparable to the best local and national standards. ARTICLE 13 MATERIALITY AND WAIVER OF BREACH 12.1 City and Contractor agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Contract and, therefore, is a material term hereof. 12.2 City's failure to enforce any provision of this Contract shall not be deemed a waiver of such provision or modification of this Contract. A waiver of any breach of a provision of this Contract shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Contract, Dra tt ARTICLE 14 SEVERANCE In the event a portion of this Contract is found by a court of competent jurisdiction to be invalid_ the remaining provisions shall continue to be effective unless City or Contractor elects to" terminate this Contract. An election to terminate this Contract based upon this provision shall be made within seven (7) days after the finding by the court becomes final. ARTICLE 15 APPLICABLE LAW AND VENUE This Contract shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. By entering into this Contract, Contractor and City hereby expressly waive any rights either party may have to a trial by jury or to file permissive counterclaims in any civil litigation related to, or arising out of the Project. Contractor shall specifically bind all subcontractors to the provisions of this Contract. Each party shall bear their own attorney's fees. 7 ARTICLE 16 INDEMNIFICATION: Contractor shall indemnify, defend and hold harmless the City and its officials, employees and its designated third -party administrator for claims (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including reasonable 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 Contract (whether active or passive) of Contractor or its employees, agents or subconsultants (collectively referred to as "Contractor") 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 Contractor to comply materially with any of the requirements herein, or the failure of the Contractor 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 Contract. Contractor expressly agrees to indemnify, defend, and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Contractor, or any of its subconsultants, as provided above, for which the Contractor's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. Contractor 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 Contractor's performance under this Contract, compliance with which is left by this Contract to Contractor, and (ii) any and all claims, and/or suits for labor and materials furnished by Contractor or utilized in the performance of this Contract or otherwise. In the event that any third party asserts claims against the Contractor and/or the Indemnitees for which Contractor is defending the Indemnitees relating to the Services, Contractor shall have the right to select its legal counsel for such defense, 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 Contractor 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 allocation of payment of such rates. In the event that the third party claim for which Contractor has provided or paid Indemnitees defense results in a finding of fault on the part of the Indemnitees, then the City shall reimburse Contractor the cost of the Indemnitees defense to the extent of such finding of fault. ©raft 8 This section shall be interpreted to comply with Sections 725.06 and/or 725.08, Florida Statutes. Contractor's obligations to indemnify, defend, and hold harmless the Indemnitees shall survive the termination of this Contract. Contractor understands and agrees that any and all liabilities regarding the use of any subconsultant for Services related to this Contract shall be borne solely by Contractor throughout the duration of this Contract and that this provision shall survive the termination of this Contract. ARTICLE 17 AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Contract and executed by the City Manager and Contractor. ARTICLE 18 PRIOR CONTRACTS This document incorporates and includes all prior negotiations, correspondence, conversations, Contracts, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, Contracts or understandings concerning the subject matter of this Contract that are not contained in this document, Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or Contracts, whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless set forth in writing in accordance with Article — above. ARTICLE 19 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. ARCTICLE 20 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 Drals 9 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. ARTICLE 21 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 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 deiay(s) for any cause over which the City has no control. IN WITNESS WHEREOF, the parties have set their hands and seals on the day and year first above written. "City" City Of Miami, a municipal ATTEST: corporation By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager ATTEST: (Public Notary) Dra IR "Contractor" 10 a corporation By: Print Name: Print Name: Title: Title: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Jorge L. Fernandez, City Attorney LeeAnn Brehm, Risk Management Administrator APPROVED AS OF ENGINEERING: Stephanie N. Grindell, P.E. Director Public Works Department Resolution No. THE CITY REQUIRES FOUR (4) FULLY -EXECUTED CONTRACTS, FOR DISTRIBUTION, Drell 11