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HomeMy WebLinkAboutExhibit 2CITY OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS PROFESSIONAL SERVICES AGREEMENT Service Category Geotechnical and Construction Testing Services Contract Type Continuing Services for Miscellaneous Projects Protect (if applicable) CONSULTANT Consultant Office Location City Authorization Resolution Number THIS AGREEMENT made this day of in the year 2006 by and between THE CITY OF MIAMI, FLORIDA, a Florida Municipal Corporation, hereinafter called the "CITY," and (name of Consultant), a Florida Corporation. hereinafter called the "CONSULTANT." RECITAL A. The City, issued a Request for Qualifications ("RFQ") No. 05-06-077 on May 31, 2006 for the provision of Geotechnical and Construction Testing Services services on a continuing basis for miscellaneous projects ("Services") and CONSULTANT's proposal ("Proposal"), in response thereto, was selected as one of the most qualified for the provision of said Services. The RFQ and the Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, and are by this reference expressly incorporated into and made a part of this Agreement as if set forth in full. B. WHEREAS, the City, through action of the City Manager and/or the City Commission, as applicable, has selected the CONSULTANT in accordance with Section 287.055, Florida Statutes, (Consultants' Competitive Negotiation Act), and the applicable provisions of the City Procurement Ordinance, to provide the professional services as described herein. WITNESSETH, that the CITY and the CONSULTANT, for the considerations herein set forth, agree as follows: Page 4 ARTICLE I DEFINITIONS 1.01 ADDITIONAL. SERVICES: Any Work defined as such in a Work Order, secured in compliance with Florida Statutes and City Code. 1.02 ATTACHMENTS: The Attachments to this Agreement are expressly incorporated by reference and made a part of this Agreement as if set forth in full. 1.03 BASE FEE: The amount of compensation mutually agreed upon for the completion of Basic Services. 1.04 BASIC SERVICES: Those services designated as such in a Work Order. 1.05 CITY COMMISSION: The legislative body of the City of Miami. 1.06 CITY MANAGER: The duly appointed chief administrative officer of the City of Miami. 1.07 CITY OR OWNER: The City of Miami, Florida, a Florida municipal corporation, the public agency which is a party hereto and for which this contract is to be performed. In 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 contract. The City of Miami may be referred to herein as "OWNER" or "CITY". For the purposes of this Agreement, "CITY' without modification shall mean the CITY MANAGER. 1.08 CONSULTANT: The individual, partnership, corporation, association, joint venture, or any combination thereof, of properly registered professional architects, landscape architects and/or engineers, which has entered into the Agreement to provide professional services to the CITY. 1.09 CONTRACTOR: An individual, partnership, corporation, association, joint venture, or any combination thereof, which has entered into a contract with the CITY for construction of City facilities and incidentals thereto. 1.10 DIRECTOR: The Director of the City Department designated herein who has the authority and responsibility for managing the specific project or projects covered under this Agreement. Unless otherwise specified herein or in a Work Order, for the purpose of this Agreement, the Director is the top PROFESSIONAL SERVICES AGREEMENt administrator of the Department of Capital Improvements and Transportation or designee. 1.11 INSPECTOR: An employee of the City or of a consulting firm hired by the City and assigned by the CITY to make observations of Work performed by a Contractor. 1.12 NOTICE TO PROCEED: Same as "Authorization to Proceed." A duly authorized written letter or directive issued by the Director or Project Manager acknowledging that all conditions precedent have been met and/or directing that CONSULTANT may begin work on a Project or a specific task of a Project as outlined in the SCOPE of WORK of a WORK ORDER. 1.13 PROJECT MANAGER: 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 a project as a direct representative of the CITY. 1.14 PROJECT: The construction, alteration and/or repair, and all services and incidentals thereto, of a City facility as contemplated and budgeted by the CITY. The PROJECT or PROJECTS shall be further defined in the SCOPE OF SERVICES and/or Work Order issued pursuant to this Agreement. 1.15 PROFESSIONAL SERVICES: Those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as applicable, as defined by the laws of the State of Florida, or those performed by any architect, professional engineer, landscape architect, or registered surveyor or mapper In connection with his or her professional employment or practice. These services may be abbreviated herein as "architectural/ engineering services" or "professional services", as applicable, which are within this definition. 1.16 RISK ADMINISTRATOR: The City's Risk Management Administrator, or designee, or the individual named by the City Manager to administer matters relating to insurance and risk of loss for the City. 1.17 SCOPE OF WORK: A comprehensive description of the activities, tasks, design features, objectives, deliverables and milestones required for the completion of Project or an assignment with sufficient detail to allow a reasonably accurate estimation of resources necessary for its completion. 1.18 SUBCONSULTANT: A person or organization of properly registered professional architects, landscape architects, engineers, registered surveyor or mapper, and/or other professional specialty that has entered into a written Page 5 PROFESSIONAL SERIVCES AGREEMENT agreement with the CONSULTANT to furnish specified professional services for a Project or task. 1.19 WAGE RATES: The effective direct expense to CONSULTANT and/or SUB -CONSULTANT, 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. 1.20 WORK ORDER: A written document issued by the CITY to the CONSULTANT authorizing the performance of specific professional services for a defined Project or Projects providing sufficient detail of the Scope of Work, including the identified tasks, deliverables, time for completion, and the amount of compensation authorized for such services. The Work Order form provided herein may be amended by the CITY during the term of this Agreement. 1.21 WORK: also known as the Scope of Work, the task(s) identified in a Work Order ARTICLE 2 GENERAL CONDITIONS 2.01 TERM: The term of this Agreement shall be for two (2) year(s) commencing on the effective date hereof. This specified term is intended for administrative and budget control purposes and is not to be considered or interpreted as a time limitation. 2.02 OPTION TO EXTEND: The CITY, by action of the CITY MANAGER, shall have the option to extend the term for 2 additional period(s) of one (1) year(s) each, subject to continued satisfactory performance as determined by the Director, and to the availability and appropriation of funds. City Commission authorization of this Agreement Includes delegation of authority to the CITY MANAGER to administratively approve said extensions provided that the compensation limits set forth in 2.04 are not exceeded. 2.03 SCOPE OF SERVICES CONSULTANT agrees to provide the Services as specifically described and under the special terms and conditions set forth in Attachment "A" hereto,. which by this reference is incorporated Into and made a part of this Agreement. 2.04 COMPENSATION 2.04-1 Comnensation Limits The amount of compensation payable by the CITY to CONSULTANT shall be a stipulated lump sum or guaranteed not to exceed maximum fee, based on the rates and schedules establised in Attachment B hereto, which by this reference Is incorporated into this Agreement; provided, however, that in no event shall the amount of compensation exceed {$ ) in total over the term of the Agreement and inclusive of any extension(s), unless explicitly approved by action of the CITY COMMISSION and put into effect by written amendment to this Agreement. 2.04-2 Payments Unless otherwise specifically provided in Attachment B, payment shall be made within forty five (45) days after receipt of CONSULTANT'S invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should City require one to be performed. If CONSULTANT is entitled to reimbursement of travel expenses, then all bills for travel expenses shall be submitted in accordance with Section 112.061, Florida Statutes. ARTICLE 3 PERFORMANCE 3.01 PERFORMANCE AND DELEGATION The services to be performed hereunder shall be performed by the CONSULTANT's own staff, unless otherwise provided In this Agreement, or approved by the CITY. Said approval shall not be construed as constituting an agreement between the CITY and said other person or firm. 3.02 REMOVAL OF UNSATISFACTORY PERSONNEL, DIRECTOR may make written request to CONSULTANT for the prompt removal and replacement of any personnel employed or retained by the CONSULTANT, or any Sub-CONSULTANTs or subcontractors, or any personnel of any such Sub- CONSULTANTs or subcontractors engaged by the CONSULTANT to provide and perform services or Work pursuant to the requirements of this Agreement. The CONSULTANT shall respond to CITY within fourteen (14) calendar days of receipt of such request with either the removal and replacement of such personnel or written justification as to why that may not occur. All decisions involving personnel will be made by CONSULTANT. 3.03 CONSULTANT KEY STAFF The parties acknowledge that CONSULTANT was selected by CITY, in part, on the basis of qualifications of particular staff identified In CONSULTANT's response to CITY's solicitation, hereinafter referred to as "Key Staff'. CONSULTANT shall ensure that Key Staff are available for Work hereunder as long as said Key Staff is in CONSULTANT's employ. CONSULTANT will obtain prior written approval of Director or designee to change Key Staff. CONSULTANT shall provide Director, or designee with such information as necessary to determine the suitability of proposed new Key Staff. Director will act reasonably in evaluating Key Staff qualifications. Page 6 PROFESSIONAL SERIVCES AGREEMENT 3.04 TIME FOR PERFORMANCE The CONSULTANT agrees to start all Work hereunder upon receipt of an Notice to Proceed issued by the DIRECTOR and to complete each assignment, task or phase within the time stipulated in the Notice to Proceed. Time is of the essence with respect to performance of this Agreement. A reasonable extension of the time for completion of various assignments, tasks or phases will be granted by the CITY should there be a delay on the part of the CITY in fulfilling its obligations under this Agreement as stated herein. Such extension of time shall not be cause for any claim by the CONSULTANT for extra compensation. ARTICLE 4 SUBCONSULTANTS 4.01 GENERAL 4.01.1 A SUB -CONSULTANT is a person or organization of properly registered professional architects, landscape architects, engineers, registered surveyors or mapper, and/or other qualified professional who has entered into a written agreement with the CONSULTANT to furnish professional services under this Agreement, that was identified as part of the consulting team in the competitive selection process by which CONSULTANT was chosen to perform the services under this Agreement, and as such, is identified and listed in Schedule Al attached hereto and incorporated by reference. 4.01-2 A Specialty SUB -CONSULTANT is a person or organization that has, with the consent of the DIRECTOR, entered into a written agreement with the CONSULTANT to furnish unique and/or specialized professional services necessary for a project or task described under Additional Services. Such Specialty Sub - Consultant shall be in addition to those identified in Schedule Al. 4.02 SUB -CONSULTANT RELATIONSHIPS 4.02-1 All services provided by the SUBCONSULTANTS shall be performed pursuant to appropriate written agreements between the CONSULTANT and the SUB- CONSULTANTs, which shall contain provisions that preserve and protect the rights of the CITY under this Agreement. 4.02-2 Nothing contained in this Agreement shall create any contractual or business relationship between the CITY and the SUBCONSULTANTS. The CONSULTANT acknowledges that SUBCONSULTANTS are entirely under his direction, control, supervision, retention and/or discharge. 4.03 CHANGES TO SUBCONSULTANTS The CONSULTANT shall not change any SUB - CONSULTANT listed in Schedule Al without prior written approval by the Director, in response to a written request from the CONSULTANT stating the reasons for any proposed substitution. Such approval shall not be unreasonably withheld, conditioned, or delayed by the Director. ARTICLE 5 DEFAULT 5.01 GENERAL If CONSULTANT fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then CONSULTANT shall be in default. Upon the occurrence of a default hereunder the CITY, in addition to all remedies available to it by law, may immediately, upon written notice to CONSULTANT, terminate this Agreement whereupon all payments, advances, or other compensation paid by the CITY to CONSULTANT while CONSULTANT was in default shall be immediately returned to the City. CONSULTANT understands and agrees that termination of this Agreement under this section shall not release CONSULTANT from any obligation accruing prior to the effective date of termination. In the event of termination due to default, in addition to the foregoing, CONSULTANT shall be liable to the City for all expenses incurred by the CITY in preparing and negotiating this Agreement, as well as all costs and expenses incurred by the CITY in the re - procurement of the Services, including consequential and Incidental damages. In the event of Default, CITY may also suspend or withhold reimbursements from CONSULTANT 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 CONSULTANT fails to obtain the insurance or bonding herein required. 5.02-2 CONSULTANT fails to comply, in a substantial or material sense, with any of Its duties under this Agreement, with any terms or conditions set forth in this Agreement or in any agreement it has with the CITY, beyond the specified period allowed to cure such default. 5.02-3 CONSULTANT fails to commence the WORK within the time provided or contemplated herein, or falls to complete the WORK In a timely manner as required by this Agreement and/or stated in a WORK ORDER issued pursuant to this Agreement. Page 7 PROFESSIONAL SERIVCES AGREEMENT 5.03 TIME TO CURE DEFAULT; FORCE MAJEURE CITY shall provide written notice to CONSULTANT as to a finding of default, and CONSULTANT shall take all necessary action to cure said default within thirty (30) days of receipt of said notice, after which time the CITY shall terminate the Agreement. The CITY MANAGER may, in his sole discretion, grant one extension of not more than thirty (30) additional days in total to perform any required cure if CONSULTANT provides written justification deemed reasonably sufficient by CITY MANAGER. Should any such failure on the part of CONSULTANT be due to a condition of Force Majeure as that term is interpreted under Florida law, then CITY may allow an extension of time reasonably commensurate with the cause of such failure to perform or cure, ARTICLE 6 TERMINATION OF AGREEMENT 6.01 C1TY'S RIGHT TO TERMINATE The CITY has the right to terminate this Agreement for any reason or no reason, for convinience, upon ten (10) days' written notice. Upon termination of this Agreement, all charts, sketches, studies, drawings, and other documents related to Work authorized under this Agreement, whether finished or not, must be turned over to the CITY. The CONSULTANT shall be paid in accordance with provisions of Attachment 6, provided that said documentation is turned over to CITY within ten (10) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by CONSULTANT until all documentation is delivered to the CITY. 6.01-1 This Agreement may be cancelled when, in the opinion of the City Commission or the City Manager termination is necessary to protect the interests of public health, safety or general welfare. 6.01-2 CONSULTANT shall have no recourse or remedy from a termination made by the CITY except to retain the fees already disbursed as compensation for the WORK that was performed in complete compliance with the Agreement, as full and final settlement of any claim, action, demand, cost, charge or entitlement it may have, or will, have against the CITY, its officials or employees. 6.02 CONSULTANT'S RIGHT TO TERMINATE The CONSULTANT shall have the right to terminate this agreement, in writing, following breach by the City, if breach of contract has not been corrected within sixty (60) days from the date of the City's receipt of a statement from CONSULTANT specifying its breach of its duties under this agreement. 6.03 TERMINATION DUE TO UNDISCLOSED LOBBYIST OR AGENT CONSULTANT warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the CONSULTANT 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 a bona fide employee working solely for the CONSULTANT any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the CONSULTANT shall have the right to terminate the agreement without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. ARTICLE 7 DOCUMENTS AND RECORDS 7.01 OWNERSHIP OF DOCUMENTS' All tracings, plans, drawings, specifications, maps, computer files, data, 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 works made for hire and will become the property of the CITY upon completion or termination of the Agreement without restriction or limitation on their use, and will be made available, on request, to CITY at any time during the performance of such services and/or upon completion or termination of this Agreement. CONSULTANT shall not copyright any material and products or patent any inventiion developed under this Agreement. The CITY shall have the right to visit the site for inspection of the work and the products of CONSUTLANT at any time. The CONSULTANT shall be permitted to retain copies, including reproducible copies, solely for information and reference in connection with the CJTV's use and occupancy of the Project 7.02 DELIVERY UPON REQUEST OR CANCELLATION Failure of the CONSULTANT to promptly deliver all such documents to the Director within ten (10) days of cancellation, or within ten (10) days of request by the CITY, shall be just cause for the CITY to withhold payment of any fees due CONSULTANT until CONSULTANT delivers all such documents. CONSULTANT shall have no recourse from these requirements. Page 8 PROFESSIONAL SERIVCES AGREEMENT 7.03 RE -USE BY CITY It is understood that ail CONSULTANT agreements and/or Work Orders for new work will include the provision for the re -use of plans and specifications, including construction drawings, at the CITY's sole option, and by virtue of signing this agreement CONSULTANT agrees to such re -use in accordance with this provision without the necessity of further approvals, compensation, fees or documents being required and without recourse for such re -use. The CONSUTLANT 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. 7.04 NONDISCLOSURE To the extent allowed by law, CONSULTANT 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 CONSULTANT'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 CONSULTANT hereunder, and CONSULTANT shall require all of its employees, agents, sub- CONSULTANTs and subcontractors to comply with the provisions of this paragraph. 7.05 MAINTENANCE OF RECORDS CONSULTANT 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 CONSULTANT for a minimum of three (3) years from the date of termination of this Agreement or the date the Project is completed, whichever is later. CITY, or any duly authorized agents or representatives of CITY, shall have the right to audit, inspect, and copy all such records and documentation as often as they deem necessary during the period of this Agreement and during the three (3) year period noted above; provided, however such activity shall be conducted only during normal business hours. ARTICLE 8 INDEMNIFICATION The CONSULTANT shail hold harmless, indemnify and defend the CITY, Its officials and employees harmless from any and all claims, losses and causes of actions which may arise out of the performance of this Agreement as a result of any act of negligence or negligent omission, recklessness, or intentionally wrongful conduct of the CONSULTANT or the Sub- CONSULTANTs. The CONSULTANT 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 CONSULTANT'S obligation under this paragraph shall not be limited in any way by the agreed upon contract price, or the CONSULTANT'S limit of, or lack of, sufficient insurance protection and shall apply to the full extent that it is caused by the negligence, act, omission, recklessness or intentional wrongful conduct of the CONSULTANTS, its agents, servants, or representatives. Twenty-five dollar ($25.00) of the sums payable to CONSULTANT are given as specific and distinct consideration for this indemnification. ARTICLE 9 INSURANCE The CONSULTANT shall not start Work under this Agreement until the CONSULTANT has obtained all insurance required hereunder and the CITY's Risk Manager has approved such insurance. 9.01 COMPANIES PROVIDING COVERAGE All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and satisfactory to the Risk Administrator. All companies shall have a Florida resident agent and be rated at least A(X), as per A.M. Best Company's Key Rating Guide, latest edition. 9.02 VERIFICATION OF INSURANCE COVERAGE The CONSULTANT shall furnish certificates of insurance to the Risk Administrator for review and approval prior to the execution of this Agreement. The Certificates shall clearly indicate that the CONSULTANT has obtained insurance of the type, amount and classification required by these provisions, in excess of any pending claims at the time of contract award to the CONSULTANT. CONSULTANT shall maintain coverage with equal or better rating as identified herein for the term of this contract. CONSULTANT shall provide written notice to the City's Department of Risk Management of any material change, cancellation and/or notice of non - renewal of the insurance within 30 days of the change. CONSULTANT shall furnish a copy of the insurance policy or policies upon request of the Risk Administrator. CONSULTANT shall furnish copies of insurance policies pertaining to this Agreement to RISK ADMINISTRATOR within ten (10) days of written request. Page 9 PROFESSIONAL SERIVCES AGREEMENT 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 Premises and Operations, Independent Contractors, Products and Completed Operations, Broad Form Property Damage, XCU Coverage, and Contractual Liability. Automobile coverage including hired, borrowed or non - owned autos, limits of Liability, Bodily Injury, Damage Liability for any one accident $1,000,000. The City of Miami shall be named an additional insured on both of these coverages. 9.03-2 Professional Liability Insurance The CONSULTANT shall maintain Professional Liability Insurance including Errors and Omissions coverage in the minimum amount of $1,000,000 per occurrence, combined single limits, providing for ail sums which the CONSULTANT shall be legally obligated to pay as damages for claims arising out of the services performed by the CONSULTANT or any person employed by the CONSULTANT in connection with this Agreement. This insurance shall be maintained for at least one year after completion of the construction and acceptance of any project covered by this Agreement. 9.03-3 Worker's Compensation insurance The CONSULTANT shall maintain Worker's Compensation Insurance in compliance with Florida Statutes, Chapter 440, as amended, and Employee's Liability with a minimum limit of $500,000 each occurrence. 9.03.4 Sub -Consultant Compliance CONSULTANT shall ensure that all Sub- CONSULTANTs comply with these same insurance requirements. 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 Consultant in accordance with §10.06 herein. CONSULTANT shall comply with such requests unless the insurance coverage is not then readily available in the national market, and may request additional consideration from City accompanied by justification. ARTICLE 10 MISCELLANEOUS 10.01 AUDIT RIGHTS The CITY reserves the right to audit the CONSULTANT's accounts during the performance of this Agreement and for three (3) years after final payment under this Agreement. The CONSULTANT agrees to furnish copies of any records necessary, in the opinion of the Director, to approve any requests for payment by the CONSULTANT. 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 CONSULTANT 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 CONSULTANT 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 CONSULTANT, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. The CONSULTANT's services are unique in nature and any transference without CITY COMMISSION approval shall be cause for the CITY to cancel this Agreement. The CONSULTANT 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 CONSULTANT 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 In compliance with the CONSULTANT'S Competitive Negotiation Act, for any Project to be compensated Page 10 PROFESSIONAL SERIVCES AGREEMENT under the Lump Sum method, the CONSULTANT shall certify that wage rates and other factual unit costs supporting the compensation are accurate, complete, and current at the time of Notice to Proceed. The original 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 CONSULTANT's duties to indemnify the City under ARTICLE 8 where CONSULTANT shall pay the City's reasonable attorney's fees. 10.06 NOTICES Whenever either party desires to give notice unto the other, such notice must be in writing, sent by registered United States mail, return receipt requested, addressed to the party for whom it is intended at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as the respective places for giving of notice: FOR City OF Miami: Mary H. Conway City of Miami Department of Capital Improvements& Transportation (CIT) 444 S.W. 2"d Ave., - 10'h FI Miami, Florida 33130 With a copy to: City Attorney City of Miami 444 S.W. 2"d Ave., Suite 945 Miami, FI. 33130-1910 Gary Farbrikant Assistant Director Department of Capital improvements & Transportation (CIT) 444 S.W. 2"d Ave., - 81h FI Miami, Florida 33130 FOR Consultant: (to be inserted) 10.07 INTERPRETATION The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section, unless the reference is made to a particular subsection or subparagraph of such Section or Article. 10.08 JOINT PREPARATION Preparation of this Agreement has been a Joint effort of the City AND CONSULTANT and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than any other. 10.09 PRIORITY OF PROVISIONS If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, or provision of this Agreement, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given effect. 10.10 MEDIATION - WAIVER OF JURY TRIAL In an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and for construction of the subject project(s), and/or following the completion of the projects(s), the parties to this Agreement agree all disputes between them shall be submitted to non- binding mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties. A certified 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 CONSULTANT agrees to include such similar contract provisions with all SubCONSULTANTs and/or independent contractors and/or CONSULTANTs retained for the project(s), thereby providing for non -binding mediation as the primary mechanism for dispute resolution. In an effort to expedite the conclusion of any litigation the parties voluntarily waive their right to jury trial or Page 11 PROFESSIONAL SERIVCES AGREEMENT to file permissive counterclaims in any action arising under this Agreement. 10.11 TIME Time is of the essence in this Agreement. 10.12 COMPLIANCE WITH LAWS CONSULTANT shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions Including, without limitation, the Americans with Disabilities Act ("ADA"), as amended, and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement. The CONSULTANT represents and warrants that there shall be no unlawful discrimination as provided by law in connection with the performance of this agreement. 10.12-1 Non -Discrimination CITY warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with CONSULTANT's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. CONSULTANT further covenants that no otherwise qualified Individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation In, be denied services, or be subject to discrimination under any provision of this Agreement. 10.12.2 OSHA COMPLIANCE The CONSULTANT warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. The CITY reserves the right to refuse CONSULTANT access to CITY property, including project jobsites, if CONSULTANT employees are not properly equipped with safety gear In accordance with OSHA regulations or if a continuing pattern of non-compliance with safety regulations is exhibited by CONSULTANT. 10.12-3 ADA COMPLIANCE CONSULTANT shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City, including Titles I & it of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally -the CONSULTANT shall take affirmative steps to -insure nondiscrimination in employment of disabled persons. 10.13 NO PARTNERSHIP CONSULTANT is an independent contractor. This Agreement does not create a joint venture, partnership or other business enterprise between the parties. The CONSULTANT has no authority to bind the City to any promise, debt, default, or undertaking of the CONSULTANT. 10.14 DISCRETION OF DIRECTOR Any matter not expressly provided for herein dealing with the CITY or decisions of the CITY shall be within the exercise of the reasonable professional discretion of the Director or the Director's authorized designee. 10.15 RESOLUTION OF CONTRACT DISPUTES: CONSULTANT 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 hislher resolution, prior to CONSULTANT being entitled to seek judicial relief in connection therewith. Should the amount of compensation hereunder exceed $500,000, the City Manager's decision shall be approved or disapproved by the City Commission. CONSULTANT shall not be entitled to seek judicial relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if applicable, or (ii) a period of sixty (60) days has expired after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation, or a period of (90) days has expired where City Manager's decision is subject to City Commission approval: or (Ili) City has waived compliance with the procedure set forth in this section by written instrument(s) signed by the City Manager. 10.16 INDEPENDENT CONTRACTOR: 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, Provider 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. Provider further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Provider, and agrees to provide workers' compensation insurance for any employee or agent of Provider rendering services to the City under this Agreement. 10.17 CONTINGENCY CLAUSE: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days notice. Page 12 PROFESSIONAL SERIVCES AGREEMENT IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. WITNESS/ATTEST CONSULTANT Signature Signature Print Name, Title Print Name, Title of Authorized Officer or Official ATTEST: (Corporate Seal) CONSULTANT Secretary Signature (Affirm CONSULTANT Seal, if available) ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida Priscilla Thompson, City Clerk Pedro G. Hernancez, City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: , Administrator Risk Management Department Jorge L. Fernandez, City Attorney Page 13