HomeMy WebLinkAboutExhibit 2 SUBTHIS AGREEMENT made this _ day of in the year 2006 by and
between City of Miami, Florida, hereinafter called the "City," and HNTB Architecture, Inc., a
Delaware corporation, hereinafter called the "Consultant."
RECITAL
A. City issued a Request for Qualifications ("RFQ") No. 05-06-089 on June 23, 2006
for the provision of Archirtectural and Engineering Services for the design of the Orange Bowl
Stadium Redevelopment 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, coHectively, 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, City, through action of City Manager and/or City Commission, as
applicable, has selected Consultant in accordance with Section 287.055, Florida Statutes,
(Consultants' Competitive Negotiation Act), and the applicable provisions of City Procurement
Ordinance, to provide the professional services as described herein.
WITNESSETH, that City and Consultant, for the considerations herein set forth, agree
as follows:
THIS DOCUMENT IS A SUBSTITUTION TO
ORIGINAL BACKUP. ORIGINAL CAN BE
SEEN AT END OF THIS DOCUMENT
City Contract No.
Consultant's Initials
A Ii /_) ^ ', ` i '"1 ems` r l a
Page 1
ARTICLE 1 DEFINITIONS
1.01 Actual Construction Cost
1.02 Additional Services means any Work
defined as such in a Work Order, secured in
compliance with Florida Statutes and City Code.
1.03 Attachments means the attachments to
this Agreement which are expressly incorporated by
reference and made a part of this Agreement as if set
forth in full.
1.04 Base Fee means the amount of
compensation mutually agreed upon for the
completion of Basic Services.
1.05 Basic Services means those services
designated as such in this Agreement, including the
Attachments hereto.
1.06 City Commission means the legislative
body of City of Miami.
1.07 City Manager means the duly appointed
chief administrative officer of City of Miami.
1.08 City means City of Miami, Florida, a Florida
municipal corporation, the public agency which is a
party hereto and for which this Agreement is to be
performed. In all respects hereunder, City's
performance is pursuant to City's position as the
owner of the Project. In the event City exercises its
regulatory authority as a govemmental 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 govemmental body
and shall not be attributable in any manner to City as
a party to this Agreement. For the purposes of this
Agreement, "City" without modification shall mean
City Manager or Director, as applicable.
1.09 Construction Cost
1.10 Consultant means 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 this Agreement to
provide professional services to City.
1.11 Contractor means an individual,
partnership, corporation, association, joint venture, or
any combination thereof, which has entered into a
contract with City for construction of City facilities and
incidentals thereto.
1.12 Director means the Director of City
Department designated herein who has the authority
and responsibility for managing the specific Project or
projects covered under this Agreement. For the
purpose of this Agreement, the Director is the top
PROFESSIONAL SERVICES AGREEMENT
administrator of the Department of Capital
Improvements and Transportation or Agent.
1.11 Early Construction Items means the
work generally described in Section A2.01-6 of
Attachemnet A hereto, which shall be further defined
in a document, to be attached to this Agreement as
Attachment 'A4" wherupon it shall be incorporated
into, and made a part of, this Agreement.
1.12 Inspector means an employee of City or of
a consulting firm hired by City and assigned by City to
make observations of Work performed by a
Contractor.
1.13 Notice To Proceed means a duly
authorized written letter or directive issued by the
Director or Program 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 the Project as outlined in the Scope of
Work.
1.14 Pre -Construction Manager means an
entity hired to provide cost, scheduling,
constructability reviews and other services. Project
Management firm may be engaged to provide
Construction Management Services.
1.15 Project Manager means an employee or
representative of City assigned by the Director to
manage and monitor the Work to be performed under
this Agreement and the construction of the Project as
a direct representative of City. Jones Lang LaSalle,
Inc. has been engaged as Program Manager to fulfill
the role of Project Manager.
1.16 Project means the construction, alteration
and/or repair, and all services and incidentals thereto,
of a City facility known as the Orange Bowl Stadium,
as contemplated and budgeted by City. The Project
shall be further defined in the Scope Of Services
section of this Agreement.
1.17 Professional Services means 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.
1.18 Reimburseable Expenses
1.19 Risk Administrator means City's Risk
Management Administrator, or designee, or the
individual named by City Manager to administer
matters relating to insurance and risk of loss for City.
1.20 Scope Of Work or Work means a
comprehensive description of the activities, tasks,
THIS DOCUMENT IS A SUBSTITUTION Tr'
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Consultant'sIrASEEN AT END OF THIS DOCUMENT
milestones required for the completion of the Project
as defined herein.
1.21 Sub -consultant means 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 agreement
with Consultant to furnish specified professional
services for the Project or task.
1.22 Hourly Rates means 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.
ARTICLE 2 GENERAL CONDITIONS
_2.01 TERM
2.01-1 Commencement
The term of this Agreement shall commence upon
execution of this Agreement and conclude upon the
completion and acceptance of the Work by the
Director unless terminated earlier as provided herein.
2.01-2 Time
Time is of the essence in this Agreement.
2.02 SCOPE OF SERVICES
Consultant agrees to provide the Services as
specifically described and under the terms set forth in
this Agreement, including the special terms and
conditions set forth in Attachment °A", as same may
be supplemented by mutual agreement of the parties,
which by this reference is incorporated into and made
a part of this Agreement.
2.03 COMPENSATION
2.03-1 Compensation Limits
The maximum amount of compensation payable by
City to Consultant, excluding only reimburseable
expenses,i s a lump sum -not to exceed fee of
$4,500,000. The Compensation Amount is based on
fixed fees of $1,850,000 for Phases I and II; and
$2,650,000 for the Critical Early Components of
Phase III. The remainder of the Phase III work shall
be subject to City Commission approval after the
parties have determined the amount of compensation
in accordance with the fee schedule set forth in Article
B.1.
2.03-2 Payments
Payment shall be made within thirty (30) days after
receipt of an acceptable invoice, which shall be
accompanied by sufficient supporting documentation
and contain sufficient detail, to allow a proper audit of
expenditures, should City require one to be
i.diit
perfo r UN EN T IS A SUBSTITUTION TO
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PROFESSIONAL SERIVCES AGREEMENT
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 Professional Services to be performed hereunder
shall be performed by Consultants own staff and the
Sub -consultants identified in this. Agreement, unless
otherwise approved in writing by City. Said approval
shall not be construed as constituting an agreement
between City and said other person(s) 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 Consultant, or any
Sub -consultants, or any personnel of any such Sub -
consultants engaged by Consultant to provide and
perform services or Work pursuant to the
requirements of this Agreement. Consultant shall
respond to City within five (5) working days of receipt
of such request with either the removal and
replacement of such personnel or written justification
as to why that may not occur. ' All decisions involving
personnel will be made by 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
Personnel'. Consultant shall ensure that Key
Personnel as detailed in Schedule A-2 are available
for Work hereunder as long as said Key Personnel
are in Consultant's or Sub -consultant's employ.
Consultant will obtain prior written approval of Director
or Agent to change Key Personnel. Consultant shall
provide Director or Agent with such information as
necessary to determine the suitability of proposed
new Key Personnel Director will act reasonably in
evaluating Key Personnel qualifications.
3.04 TIME FOR PERFORMANCE
City .
Consu
Consultant agrees to start all Work hereunder upon
receipt of a Notice to Proceed issued by the Director
and to complete each assignment, task or phase
within the time stipulated in the Notice to Proceed
based on the schedule set forth in Section A2.06.
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 City should there be a delay on the part of City in
fulfilling its obligations under this Agreement as stated
herein. Such extension of time shall not be cause for
any claim by Consultant for extra compensation.
3 05 DESIGN RESPONSIBILITIES
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,SEEN AT END OF THIS DOCUMENT
3.054 Errors and Omissions
Consultant shall be responsible to promptly make
corrections to Consultants Work when Consultant's
Work is found to contain discrepancies, errors or
omissions.
To the extent that such discrepancies, errors or
omissions are the fault of Consultant, costs associated
with corrections of Consultants Services, and delays
and/or costs of the construction work resulting from,
loss of use, increased costs of construction, cost for
correction or replacement of construction work already
performed, and damages associated with the
Contractor's Work or the work of other Project
participants, resulting from such discrepancies, errors
or omissions shall be bome by Consultant.
3.05-2 Nonconforming Work
Consultant shall promptly give notice to City of any
defective or nonconforming Work of the Contractor or
any other Project participant whenever discovered by
Consultant and whether before or after the date of
Substantial Completion of the Contractor's Work. All
Work is to be in compliance with applicable codes.
3.06 MEETINGS
During the design phase, Consultant shall schedule,
at a minimum, bi-weekly meetings with City. At such
meetings, Consultant will discuss schedule, budget,
scope and any specific design issues needing
attention. Consultant shall keep meeting minutes and
action item lists for all such meetings. Special
meetings may be required on a more frequent basis
to address specific design issues.
During Construction Administration, Consultant shall
schedule, at a minimum, weekly meetings with
Contractor. At each of these meetings, Consultant
and Contractor shall review the Project's budget,
schedule, and scope along with Consultant's progress
to date on the respective phases of the Project and
any special problems related to the continuing
progress of the Project including but not limited to any
outstanding Request For Information (RFIs),
Construction Progress Report (CPRs), and change
orders. Consultant shall prepare and distribute all
meeting minutes to participant present at the
meetings.
ARTICLE 4 SUB -CONSULTANTS
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 that
has, with the consent of the Director, entered into a
written agreement with Consultant to fumish
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 or subsequently by the Director, and as
such, is identified and listed in Schedule Al attached
hereto.
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 Consultant to
furnish unique and/or specialized Professional
Services necessary for the 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 Sub -consultants
shall be performed pursuant to appropriate written
agreements between Consultant and the Sub -
consultants, which shall contain provisions that
preserve and protect the rights of City under this
Agreement. Sub -consultants shall not be authorized
or permitted to further subcontract any Work.
4.02-2 Nothing contained in this Agreement shall
create any contractual or business relationship
between City and the Sub -consultants. Consultant
acknowledges that Sub -consultants are entirely under
its direction, control, supervision, retention and/or
discharge.
4.03 CHANGES TO SUB -CONSULTANTS
Consultant shall not change any Sub -consultants
listed in Schedule Al without prior written approval by
the Director, in response to a written request from
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
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 City to
Consultant while Consultant was in default shall be
immediately returned to 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 of
Consultant, in addition to the foregoing, Consultant
shall be liable to City for reasonable and immitigable
costs and expenses incurred by City in the re -
procurement of the Services. 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.
City Contract No.
Consultant's Initials
Page 4
THIS DOCU' ,a,� ,�,t �. STITUTI b
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5.02 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 fifteen
(15) days of receipt of said notice. Failure to cure the
default in the stipulated timeframe may result in City
Manager terminating this Agreement. City Manager or
Director may, in their sole discretion, extend in writing
the timeframe for curing said default.
If any such failure on the part of Consultant is 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.
If Consultant is delayed in performing any obligation
under this Agreement due to a force majeure
condition, then Consultant shall . request a time
extension from City within two (2) working days of
said force majeure occurrence. Any time extension
shall be subject to mutual agreement and shall not be
cause for any claim by Consultant for extra
compensation unless Additional Services are
required.
ARTICLE 6 TERMINATION OF
AGREEMENT
6.01 CITY'S RIGHT TO TERMINATE
6.01-1 City has the right to terminate this
Agreement for any reason or no reason, upon ten (10)
days' written notice. Upon termination of this
Agreement, all charts, sketches, studies, drawings,
and other documents related to Work authorized
under this Agreement, whether finished or not, must
be turned over to City. If the termination is without
cause, the Consultant shall be paid in accordance
with provisions of Attachment B, 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 City.
6.01-2 Consultant shall have no recourse or remedy
from a termination made by City except to retain the
fees already disbursed or owing 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 City, its officials or
employees.
6.02 CONSULTANT'S RIGHT TO
TERMINATE
Consultant shall have the right to terminate this
agreement, in writing, following breach by City, if
breach of contract has not been corrected within sixty
(60) days from the date of City's receipt of a written
notice from Consultant specifying City's 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 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 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, City shall
have the right to terminate the Agreement without
compensation.
ARTICLE 7 DOCUMENTS AND
RECORDS
7.01 OWNERSHIP OF DOCUMENTS
All tracings, plans, drawings, specifications, maps,
computer files, models and/or reports prepared or
obtained under this Agreement, as well as all data
collected, together with summaries and charts derived
therefrom, will) be considered "work for hire' as such
phrase is defined in Section 101 of Title 17 of the
United States Code (Public Law 94-533) and all title,
ownership and copyright privileges are and at all
times shall be the property of City 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 and its
Sub -consultants' electronic CADD (Computer
Assisted Design and Drafting) files, tapes, disks, and
similar items remain the property of City. Consultant
will provide these electronic items upon the request of
City or upon. completion/termination of this
Agreement. Consultant shall provide documents to
others at the direction of City consistent in content
and format with normal document production as
determined by City. City understands that the use and
conversion of Electronic Data to an alternate format
may not be accomplished without the potential for
introduction of anomalies or errors and that changes
or modifications by anyone other than Consultant may
result in adverse consequences that Consultant can
neither predict nor control. Accordingly, City agrees
that Consultant shall not be liable for and hereby
waives all claims arising out of or connected with
(a) the use, modification or misuse by City of such
Electronic Data; or (b) the decline of accuracy or
readability of the Electronic Data due to storage
conditions, the passage of time, or otherwise; or
.(c) any use of said electronic data by any third parties
receiving the electronic data from City.
City Contract No.
Consultant's Initials
Page 5
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City agrees that the aesign auunnenw
by Consultant will contain certain standard Consultant
component design details from Consultants Best
Practices Detail Library, which standard component
details shall remain the property of Consultant. These
details are repetitive in nature, not project -specific,
function rather than form -oriented, and were not
developed for or identifiable with the Work. Continued
use by Consultant will not compromise the complete
transfer to City of the unique features of the design for
the Work and will not result in a compromise of City's
absolute right, title and ownership to the work product
and design documents herein.
Consutlant will not be liable for use by City of plans,
documents, studies, or other data for any purpose
other than that intended by the terms and conditions
of this Agreement.
Consultant shall not copyright any material and
products or patent any invention developed under this
Agreement. City shall have the right to visit the site for
inspection of the Work and the products of Consultant
at any time. Consultant shall be permitted to retain
copies, including reproductible copies, solely for
information and reference in connection with City's
use and occupancy of the Project.
7.02 DELIVERY UPON REQUEST OR
CANCELLATION
Failure of Consultant to promptly deliver all such
documents to the Director within ten (10) days of
cancellation, or within ten (10) days of request by
City, shall be just cause for City to withhold payment
of any fees due Consultant until Consultant delivers
all such documents. Consultant shall have no
recourse from these requirements.
7.03 RE -USE BY CITY
It is understood that all 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 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. Consultant will not be liable for use by
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, fumish or make available to any third
person, firm or organization, without City's prior
written consent, or unless incident to the proper
performance of 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,
THIS DOCUMENT IS A SUBSTITUTION TO
s r O i t t ik SERCAIET E
T�1
-8-DOCUMENT emolw�ees,
agents, and Sub -consultants to comply with the
provisions of this Article.
7.05 MAINTENANCE OF RECORDS
Consultant will keep adequate records and supporting
documentation, which concem or reflect its Work
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.
7.06 DOCUMENTS PROVIDED BY CITY
City does not warrant the accuracy of any existing
documentation relative to the existing facility. All
conditions shall be field verified. Consultant shall be
responisble to field verify all conditions. Consultant
shall notify City, in writing, of any errors in existing
documentation as soon as such error is discovered. In
no way shall City be liable for existing field
conditions.
ARTICLE 8 INDEMNIFICATION
Consultant shall hold harmless, indemnify and defend
City, its officials and employees 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
Consultant or its Sub -consultants. 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 City when applicable, and
shall pay all costs, including without limitation
reasonable attomey's and appellate attomey's fees,
and judgments which may issue thereon. Consultant's
obligation under this Article shall not be limited in any
way by the agreed upon compensation, or
Consultant's limit of, or lack of, sufficient insurance
protection and shall apply to the full extent that it is
caused by the negligent act or omission, recklessness
or intentional wrongful conduct of Consultant, its
agents, servants, representatives or Sub -consultants.
ARTICLE 9 INSURANCE
9.01 COMPANIES PROVIDING COVERAGE
All insurance policies shall be issued by companies
authorized to do business under the laws of the State
of Florida and satisfactory to the Risk Administrator.
All companies shall have a Florida resident agent and
City Contract No. Page 6
Consultant's kiitials
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be rated at least A(X), as per A.M. Best Company's
Key Rating Guide, latest edition.
9.02 VERIFICATION OF INSURANCE
COVERAGE
Consultant shall fumish certificates of insurance to the
Risk Administrator for review and approval prior to the
execution of this Agreement. The Certificates shall
clearly indicate that Consultant has obtained
insurance of the type, amount and classification
required by these provisions. Consultant shall
maintain coverage with equal or better rating as
identified herein for the term of this Agreement.
Consultant shall provide written notice to City's
Department of Risk Management of any material
change, cancellation and/or notice of non -renewal of
the insurance within thirty (30) days of the change.
Consultant shall furnish a copy of the insurance policy
or policies upon request of the Risk Administrator.
Consultant shall fumish copies of insurance policies
pertaining to this Agreement to the Risk Administrator
within ten (10) days of written request.
9.03 FORMS OF COVERAGE
9.03-1 Minimum Insurance Coverage
The following requirements illustrate the minimum
coverages required by the City. The City reserves the
right to request higher coverage amounts once the
Consultants Scope of Work is negotiated. Prior to
contract execution or at anytime thereafter, the
required coverages may change as a result of a
change in the Scope of Work. Should additional
insurance be required by the City, Consultant may be
reimbursed by the City for the actual cost of such
insurance.
9.03-2 Comprehensive General Liability and
Automobile Liability
Coverage shall have minimum limits of $1,000,000
per Occurrence, $2,000,000 aggregate for Bodily
Injury Liability and Property Damage Liability. This
shall include Premises and Operations, Independent
Contractors and Contractual Liability. Automobile
coverage including owned, hired, borrowed or non -
owned autos, with a combined single limit of at least
$1,000,000 Bodily Injury and. Property Damage
Liability for any one accident. City of Miami and Jones
Lang LaSalle, Inc. shall be named an additional
insured on both of these coverages.
9.03-3 Professional Liability Insurance
Consultant shall maintain Professional Liability
coverage with limits of at least $10,000,000
aggregate, providing for all sums which Consultant
shall be legally obligated to pay as damages for
claims arising out of the services performed by
Consultant or any person employed by Consultant in
connection with this Agreement. This insurance shall
be maintained for at least two (2) years after
completion of the construction and acceptance of the
Project covered by this Agreement.
9.03-4 Worker's Compensation Insurance
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.
9.03-5 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 its 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
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
compensation for reimbursement of any additional
costs from City.
ARTICLE 10 MISCELLANEOUS
10.01 AUDIT RIGHTS
City reserves the right to audit Consultant's accounts
during the performance of this Agreement and for
three (3) yearsafter final payment under this
Agreement. Consultant agrees to fumish copies of
any records necessary, in the opinion of the Director,
to approve any requests for payment by Consultant.
10.02 ENTIRE AGREEMENT
This Agreement, as it may be amended from time to
time, represents the entire and integrated agreement
between City and 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 Consultant without the written
consent of City, acting by and through its City
Commission. It is understood that a sale of the
majority of the stock or partnership shares of
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 written approval.
City Contract No. Page 7
Consultant's Initials
THIS DOCU:\iL„ 6 SUBSTITUTION TO
ORIGINAL BACKUP. ORIGINAL CAN BE
SEEN AT END OF THIS DO N:N�ESAGREEMENT
Consultant's services are unique in nature and any
transference without City approval shall be cause for
City to cancel this Agreement. Consultant shall have
no recourse from such cancellation. City may require
bonding, other security, certified financial statements
and tax retums from any proposed assignee and the
execution of an Assignment/Assumption Agreement
in a form satisfactory to City Attorney as a condition
precedent to considering approval of an assignment.
Consultant and 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 Consultant's Competitive
Negotiation Act, for any project to be compensated
under the Lump Sum method, 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
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 one (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 govemed by the laws of the
State of Florida. Any suit or action brought by any
party, conceming this Agreement, or arising out of this
Agreement, shall be brought in Miami -Dade County,
Florida. Each party shall bear its own attomey's fees
except in actions arising out of Consultant's duties to
indemnify City under ARTICLE 8 where Consultant
shall pay City's reasonable attomey'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 or electonic mail, addressed to the party
for whom it is intended at the place last specified; and
the place for giving of notice shall remain such until it
shall have been changed by written notice in
compliance with the provisions of this paragraph. For
the present, the parties designate the following as the
respective places for giving of notice:
For City Of Miami: Ms. Mary H. Conway,
Chief of Operations
Dept. of Capital Improvements &
Transportation (CIT)
With
to:
City of Miami
444 S.W. 2nd Avenue -10th FI
Miami, Florida 33130
copies Mr. Jorge Fernandez, City Attorney
City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, FI. 33130-1910
Mr. Gary Farbrikant, Assistant Director
CIT Department
City of Miami
444 S.W. 2nd Avenue - 8th FI
Miami, Florida 33130
Mr. John Paccione, Sr. Vice President
Jones Lang LaSalle
200 East Robinson Street, Suite 525
Orlando, FL 32801
For Ms. Becky Cotton
Consultant: Senior Vice President
HNTB Architecture Inc.
715 Kirk Drive
Kansas City, MO 64105
10.07 INTERPRETATION
Preparation of this Agreement has been a joint effort.
The language of this Agreement has been agreed to
by both parties to express their mutual intent and no
rule of strict construction shall be applied against
either party hereto. The headings contained in this
Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of
this Agreement. All personal pronouns used in this
Agreement shall include the other gender, and the
singular shall include the plural, and vice versa,
unless the context otherwise requires. Terms such as
"herein," "hereof,' "hereunder," and hereinafter refer
to this Agreement as a whole and not to any particular
sentence, paragraph, or section where they appear,
unless the context otherwise requires. Whenever
reference is made to a Section or Article of this
Agreement, such reference is to the Section or Article
as a whole, including all of the subsections of such
Section, unless the reference is made to a particular
subsection or subparagraph of such Section or
Article.
10.08 PRIORITY OF PROVISIONS
If there is a conflict or inconsistency between any
term, statement, requirement, or provision of any
exhibit attached hereto, any document or events
referred to herein, or any document incorporated into
this Agreement by reference and a term, statement,
requirement, or provision of this Agreement, the term,
statement, requirement, or provision contained in this
Agreement shall prevail and be given effect.
City Contract No. Page 8
Consultant's Initials
THIS DOCUMENT IS A SUBSTITUTION TO
ORIGINAL BACKUP. ORIGINAL CAN BE
SEEN AT END OF THIS D O COKRITES AGREEMENT
10.09 COMPLIANCE WITH LAWS
Consultant shall comply with all applicable laws,
codes, ordinances, rules, regulations and resolutions
including, without limitation, OSHA, the Americans
with Disabilities Act ("ADA"), as amended, and all
applicable guidelines and standards in performing its
duties, responsibilities, and obligations related to this
Agreement. Consultant represents and warrants that
there shall be no unlawful discrimination as provided
by law in connection with the performance of this
agreement.
10.09-1 Non -Discrimination
Consultant 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 thatnootherwise 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.
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 City, including Titles
I & II of the ADA (regarding nondiscrimination on the
basis of disability) and all applicable regulations,
guidelines and standards. Additionally, Consultant
shall take affirmative steps to insure nondiscrimination
in employment of disabled persons.
10.10 DISCRETION OF DIRECTOR
Any matter not expressly provided for herein dealing
with City or decisions of City shall be within the
exercise of the reasonable professional discretion of
the Director or the Director's authorized designee.
10.11 CONTRACT DISPUTE RESOLUTION
Consultant understands and agrees that all disputes
between it and City based upon an alleged violation of
the terms of this Agreement by City shall be submitted
to City Manager for his/her resolution, prior to
Consultant being entitled to seek judicial relief in
connection therewith. Should the amount of
compensation hereunder exceed $500,000, City
Manager's decision shall be approved or disapproved
by City Commission. Consultant shall not be entitled
to seek judicial relief unless: i) it has first received City
Manager's written decision, approved by City
Commission if applicable, or ii) a period of sixty (60)
days has expired after submitting to City Manager a
detailed statement of the dispute, accompanied by all
supporting documentation, or a period of ninety {90)
days has expired where City Manager's decision is
subject to City Commission approval; or iii) City has
waived compliance with the procedure set forth in this
section by written instrument(s) signed by City
Manager.
10.12 MEDIATION -WAIVER OF JURY TRIAL
In an effort to engage in a cooperative effort to
resolve conflict which may arise during the course of
the design and/or construction of the Project, and/or
following the completion of the Project the parties to
this Agreement agree all disputes between them shall
be submitted to non -binding mediation prior to the
initiation of litigation, unless otherwise agreed in
writing by the parties. A certified Mediator, who the
parties find mutually acceptable, will conduct any
mediation proceedings in Miami -Dade County, State
of Florida. The parties will split the costs of a certified
mediator on an equal basis. Consultant agrees to
include such similar contract provisions with all Sub-
consultants retained for the Project, thereby providing
for non -binding mediation as the primary mechanism
for dispute resolution.
In an effort to expedite the conclusion of any litigation
the parties voluntarily waive their right to jury trial or to
file permissive counterclaims in any action arising
under this Agreement.
10.13 INDEPENDENT CONTRACTOR
Consultant has been procured and is being engaged
to provide services to City as an independent
contractor, and not as an agent or employee of City.
This Agreement does not create a joint venture,
partnership or other business enterprise; between the
parties. Consultant has no authority to bind City to
any promise, debt, default, or undertaking of
Consultant. Consultant shall not attain, nor be entitled
to, any rights or benefits under the Civil Service or
Pension Ordinances of City, nor any rights generally
afforded classified or unclassified employees.
Consultant further understands that Florida Workers'
Compensation benefits available to employees of City
are not available to Consultant, and agrees to provide
workers' compensation insurance for any employee or
agent of Consultant rendering services to City under
this Agreement.
10.14 PERFORMANCE EVALUATION
Consultant is hereby advised that during the
performance of Work under this Agreement, upon
completion of the Project and/or at any other time
deemed appropriate by City, a performance
evaluation report may be completed by City. The
performance evaluations will be kept in City files for
use on future solicitations.
10.15 CONTINGENCY CLAUSE
Funding for this Agreement is contingent upon 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.
City Contract No.. Page 9
Consultant's Initials
THIS DOCUMENT IS A SUBSTITUTION TT
ORIGINAL BACKUP. ORIGINALEFGANEE43L
SEEN AT END OF THIS DOCUMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
WITNESS/ATTEST
CONSULTANT
HNTB Architecture, Inc., a Delaware corporation,
Douglas Kuster, Senior Project Manager Becky Cotton, Sr. Vice President
ATTEST:
Consultant Secretary
(Corporate Seal)
ATTEST: CITY OF MIAMI, a municipal corporation of the
State of Florida
Priscilla Thompson, City Clerk Pedro G. Hernandez, City Manager
APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND
REQUIREMENTS: CORRECTNESS:
Lee Ann Brehm, Administrator
Risk Management Department
Jorge L. Fernandez, City Attorney
City Contract No.
Consultant's Initials
Page 10
THIS REEMENT made this _ day of in the year 2006 by and
between City of i, Florida, hereinafter called the "City," and To Be Determined, hereinafter
called the "Consultant.
RECITAL
A. City issued a Request for •ualifications ("RFQ") No. 05-06-089 on June 23, 2006 for the
provision of Archirtectural and Engin 'ng Services for the design of the Orange Bowl Stadium
Redevelopment and Consultant's propos ("Proposal"), in response thereto, was selected as
one of the most qualified for the provision • aid Services. The RFQ and the Proposal are
sometimes referred to herein, collectively, as Solicitation Documents, and are by this
reference expressly incorporated into and made a pa this Agreement as If set forth in full.
B. WHEREAS, City, through action of City Man •er and/or City Commission, as
applicable, has selected Consultant in accordance with Se• 'on 287.055, Florida Statutes,
(Consultants' Competitive Negotiation Act), and the applicable pr• '-ions of City Procurement
Ordinance, to provide the professional services as described herein.
WITNESSETH, that City and Consultant, for the considerations herein et forth, agree
as follows:
SU
City Contract No.
Consultant's Initials
TITUTED
Page 1
ARTICL 1 DEFINITIONS
1.01 Add onal Services means any Work
defined as su In a Work Order, secured In
compliance with ' rids Statutes and City Code.
1.02 Attachme means the attachments to
thls Agreement are expressly incorporated by
reference and made a p- , of this Agreement as if set
forth in full.
1.03 Base Fee mea = the amount of
compensation mutually ag =d upon for the
completion of Basic Services.
1.04 Basic Services means' those services
designated as such in this Agreeme Including the
Attachments hereto.
1.05 Clty Commission means the=gislative,
body of Clty of Miami.
1.06 City Manager means the duly app•' ted
chief administrative officer of City of Miami.
1.07 City means City of Miami, Florida, a Florid
municipal corporation, the public agency which is a
party hereto and for which this Agreement is to be
performed. In all respects hereunder, City's
performance Is pursuant to City's position as the
owner of the Project. In the event City exercises its
regulatory authority as a govemmental body, the
exercise of such regulatory authority and the
enforcement of any rules, regulations, codes, laws
and ordinances shall be deemed to have occurred
pursuant to City's authority as a governmental body
and shall not be attributable in any manner to City as
a party to this Agreement. For the purposes of this
Agreement, "City" without modification shall mean
City Manager or Director, as applicable.
1.08 Consultant means 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 thls Agreement to
provide professional services to City.
1.09 Contractor means an Individual,
partnership, corporation, association, Joint venture, or
any combination thereof, which has entered into a
contract with City for construction of Clty facilities and
incidentals thereto.
1.10 Director means the Director of City
Department designated herein who has the authority
and responsibility for managing the specific Project or
projects covered under this Agreement. For the
purpose of this Agreement, the Director is the top
administrator of the Department of Capital
Improvements and Transportation or Agent.
1.11 Inspector means an employee of City or of
a consulting firm hired by City and assigned by City to
City Contract No.
Consultant's Initials
PROFESSIONAL SERVICES AGREEMENT
make observations of Work performed by a
Contractor.
1.12 Notice To Proceed means a duly
authorized written letter or directive Issued by the
Director or Program 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 the Project as outlined in the Scope of
Work.
1.13 Pre -Construction Manager means an
entity hired to provide cost, scheduling,
constructability reviews and other services. Protect
Management firm may be engaged to provide
Construction Management Services.
1.14 Project Manager means an employee or
representative of Clty assigned by the Director to
manage and monitor the Work to be performed under
this Agreement and the construction of the Project as
a direct representative of City. Jones Lang LaSalle
has been engaged as Program Manager to fulfill the
role of Project Manager.
1.15 Project means the construction, alteration
and/or repair, and all services and incidentals thereto,
of a City facility as contemplated and budgeted by
City. The Project shall be further defined in the
cope Of Services section of this Agreement.
1. ;6 Professional Services means those
se es within the scope of the practice of
arch ture, professional engineering, landscape
archit= re, or registered surveying and mapping, as
appilcab as defined by the laws of the State of
Florida, those performed by any architect,
professional engineer, landscape architect, or
registered su yor or mapper in connectlon with his
or her professio 1 employment or practice.
1.17 Risk +.inistrator means City's Risk
Management Admi trator, or designee, or the
individual named by ity Manager to administer
matters relating to insur= e and risk of Toss for City.
1.18 Scope Of Wo or Work means a
comprehensive description the activities, tasks,
design features, objective;' ., deliverables and
milestones required for the come =tIon of the Protect
as defined herein.
1.19 Sub -consultant means person or
organization of properly registered ,professional
architects, landscape architects, engineers,
registered surveyor or mapper, an •r other
professional specialty that has entered into written
agreement with Consultant to furnish s' cified
professional services for the Project or task.
1.20 Wage Rates means the effective dir
expense to Consultant and/or Sub -consultant, on a
hourly rate basis, for employees In the specified
professions and Job categories assigned to provide
IiiJTED
service- under this Agreement that justify and form
the basis for professional fees regardless of actual
manner of . • mpensation.
ARTICLE GENERAL CONDITIONS
2.01 TERM
2.01.1 Commen - nt
The term of this Agra • ent shall commence upon
execution of this Agree nt and conclude upon the
completion and accepts of the Work by the
Director unless terminated e ier as provided herein.
2.01-2 Time
Time Is of the essence in this Agr: ; ent,
2.02 SCOPE OF SERVICES
Consultant agrees to provide the ervices as
specifically described and under this ,reement,
Including the special terms and conditions forth in
Attachment "A", which by are incorporated o and
made a part of this Agreement.
2.03 COMPENSATION
2.03-1 Compensation Limits
The maximum amount of compensation payable by
City to Consultant as a lump sum or not to exceed
fee, is (to be determined) based on a base fee of (to
be determined) and (to be determined) 1n additional
services fees. This amount is based upon the rates
and schedules established in Attachment B and
Schedule 131, which are Incorporated into this
Agreement. In no event shall the amount of
compensation exceed said total amount unless
explicitly approved by action of City Manager or City
Commission, as may be applicable pursuant to.
Section 18-87 of City Code, and put into effect by
written amendment to this Agreement.
2.03-2 Payments
Payment shall be made within thirty (30) days after
receipt of an acceptable invoice, which shall be.
accompanied by sufficient supporting documentation
and contain sufficient detail, 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 bilis for travel expenses
shall be submitted in accordance with Section
112.061, Florida Statutes.
ARTICLE 3 PERFORMANCE
3.01 PERFORMANCE AND DELEGATION
The Professional Services to be performed hereunder
shall be performed by Consultant's own staff and the
Sub -consultants identified In thls Agreement, unless
otherwise approved in writing by City. Said approval
shall not be construed as constituting an agreement
between City and said other person(s) or firm.
City Contract No.
Consultant's initials
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PROFESSIONAL SERIVCES AGREEMENT
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 Consultant, or any
Sub -consultants, or any personnel of any such Sub -
consultants engaged by Consultant to provide and
perform services or Work pursuant to the
requirements of this Agreement. Consultant shall
respond to City within five (5) working days of receipt
of such request with either the removal and
replacement of such personnel or written Justification
as to why that may not occur. All decisions involving
personnel will be made by 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
Personnel". Consultant shall ensure that Key
Personnel as detailed in Schedule A-2 are available
for Work hereunder as long as said Key Personnel
are in Consultant's or Sub -consultant's employ.
Consultant will obtain prior written approval of
Director or Agent to change Key Personnel.
Consultant shall provide Director, or Agent with such
information as necessary to determine the suitability
of proposed new Key Personnel Director will act
easonabiy in evaluating Key Personnel
allfications.
3. . TIME FOR PERFORMANCE
Consu nt agrees to start all Work hereunder upon
receipt • a Notice to Proceed Issued by the Director
and to c' , plete each assignment, task or phase
within the t e stipulated in the Notice to Proceed.
Time is of the .=sence with respect to performance of
this Agreement.
A reasonable exto =ion of the time for completion of
various assignment- tasks or phases will be granted
by City should there • a delay on the part of City In
fulfilling Its obligation under this Agreement as
stated herein. Such ext- Sion of time shall not be
cause for any claim b Consultant for extra
compensation.
3.05 DESIGN RESPONS LITIES
3.05-1 Errors and Omissions
Consultant shall be responsible to 'romptly make
corrections to Consultant's Work whe Consultant's
Work is found to contain discrepancie- errors or
omissions.
All costs assocated with corrections In Con Itant's
Work, delays to the Work, Including, but not Iirn •d to,
loss of use, increased costs of construction, - nd
damages associated with the Contractor's Work or
work of other Protect participants, resulting from suc
UTED
g
dlscr= 'ancies, errors or omissions shall be borne by
Consu nt.
3.05.2 ' nconforming Work
Consultant s •II promptly give notice to City of any
defective or no • forming Work of the Contractor or
any other Proje : rticipant whenever discovered by
Consultant and er before or after the date of
Substantial Completi• of the Contractor's Work. Ali
Work Is to be In compile «: with applicable codes.
3.06 MEETINGS
During the design phase, Co ultant shall schedule,
at a minimum, bi-weekly meets 's with City. At such
meetings, Consultant will discus schedule, budget,
scope and any specific design ssues needing
attention. Consultant shall keep mee minutes and
action Item lists for all such mee 1's. Special
meetings may be required on a more fr; , uent heals
to address specific design issues.
During Construction Administration, Consulta shall
schedule, at a minimum, weekly meetings th
Contractor. At each of these meetings, Consul
and Contractor shall review the Project's budge
schedule, and scope along with Consultant's
progress to date on the respective phases of the
Project and any special problems related to the
continuing progress of the Project including but not
limited to any outstanding Request For Information
(RFIs), Construction Progress Report (CPRs), and
change orders. Consultant shall prepare and
distribute all meeting minutes to participant present at
the meetings.
ARTICLE 4 SUB -CONSULTANTS
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 that
has, with the consent of the Director, entered Into a
written agreement with 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 or subsequently by the Director, and as
such, Is Identified and listed In Schedule Al attached
hereto.
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
Consultant to fumish unique and/or specialized'
Professional Services necessary for the 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
City Contract No.
Consultant's Initials
SU
PROFESSIONAL SERIVCES AGREEMENT
4.02.1 All services provided by the Sub -consultants
shall be performed pursuant to appropriate written
agreements between Consultant and the Sub -
consultants, which shall contain provisions that
preserve and protect the rights of City under this
Agreement. Sub -consultants shall not be authorized
or permitted to further subcontract any Work.
4.02.2 Nothing contained in this Agreement shall
create any contractual or business relationship
between City and, the Sub -consultants. Consultant
acknowledges that Sub -consultants are entirely under
its direction, control, supervision, retention and/or
discharge.
4.03 CHANGES TO SUB -CONSULTANTS
Consultant shall not change any Sub -consultants
listed In Schedule Al without prior written approval by
the Director, In response to a written request from
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 falls to perform any of
its obligations hereunder, then Consultant shall be in
efauit. Upon the occurrence of a default hereunder
, in addition to all remedies available to It by law,
mat .Immediately, upon written notice to Consultant,
terms to this Agreement whereupon all payments,
advan =, or other compensation paid by Clty to
Consults while Consultant was in default shall be
immediate returned to Clty. Consultant understands
and agrees " =t termination of this Agreement under
this section s - II not release Consultant from any
obligation accru prior to the effective date of
termination.
In the event of termin tion due to default, in addition
to the foregoing, Cons : nt shall be liable to City for
all expenses Incurred City in preparing and
negotiating this Agreemen , as well as all costs and
expenses incurred by Clty i he re -procurement of
the Work, Including consequtial and incidental
damages. In the event of def: It, City may also
suspend or withhold relmbursemenfrom Consultant
until such time as the actions givin, se to default
have been cured.
5.02 TIME TO CURE DEFAULT: FORCE
MAJEURE
City shall provide written notice to Consultant a = to a
finding of default, and Consultant shall take all
necessary action to cure said default within fifte
(15) days of receipt of said notice. Failure to cure th
default in the stipulated timeframe may result in City
Manager terminating this Agreement. City Manager or
Director may, In their sole discretion, extend in writing
the timeframe for curing said default.
TITUT
E
f any such failure on the part of Consultant is due to
condition of force majeure as that term is
In•reted under Florida law, then City may allow an
exte Ion of time reasonably commensurate with the
cause - such failure to perform or cure.
If Consul . t Is delayed in performing any obligation
under this greement due to a force majeure
condition, th= o Consultant shall request a time
extension from ity within two (2) working days of
said force majeu occurrence. Any time extension
shall be subject to tual agreement and shall not be
cause for any cis by Consultant for extra
compensation unless Additional Services are
required.
ARTICLE 6 TERMIN ' iON OF
A REEM T
9.01 CITY'S RIGHT TO TER NATE
8.01-1 City has the right to t Inate this
Agreement for any reason or no rea_ • upon ten
(10) days' written notice. Upon terminate: of this
Agreement, all charts, sketches, studies, wings,
and other documents related to Work aut 'zed
under this Agreement, whether finished or not, st
be turned over to Clty. Consultant shall be paid
accordance with provisions of Attachment 8, provide
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 City,
8.01-2 Consultant shall have no recourse or
remedy from a termination made by Clty except to
retain the fees already disbursed or owing 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 City, Its officials or employees.
6.02 CONSULTANT'S RIGHT TO
TERMINATE
Consultant shall have the right to terminate this
agreement, in writing, following breach by City. If
breach of contract has not been corrected within sixty
(80) days from the date of City's receipt of a written
notice from Consultant specifying City's breach of Its
duties under this Agreement.
9.03 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 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 Consultant any fee,
City Contract No.
Consultant's Initials
PROFESSIONAL SERIVCES AGREEMENT
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, City shall
have the right to terminate the Agreement without
compensation.
ARTICLE 7 DOCUMENTS AND
RECORDS
7.01 OWNERSHIP OF DOCUMENTS
All tracings, plans, drawings, specifications, maps,
computer files, models andlor reports prepared or
obtained under this Agreement, as well as all data
collected, together with summaries and charts
derived therefrom, willl be considered "work for hire"
as such phrase Is defined in Section 101 of Title 17 of
the United States Code (Public Law 94-533 and all
title, ownership and copyright privileges are and at all
times shall be the property of City without restriction
or limitation on their use, and will be made available,
on request, to Clty at any time during the
performance of such services and/or upon completion
or termination of this Agreement. Consultant and its
Sub -consultants' electronic CADD (Computer
Assisted Design and Drafting) files, tapes, disks, and
similar items remain the property of City. Consultant
will provide these electronic Items upon the request of
City or upon completion/terminatlon of this
Agreement. Consultant shall provide documents to
there at the direction of City consistent in content
format with normal document production as
de Ined by City. City understands that the use and
con sion of Electronic Data to an altemate format
may n be accomplished without the potential for
introduc of anomalies or errors and that changes
or modlfi ,one by anyone other than Consultant
may result I •verse consequences that Consultant
can neither • diet nor control. Accordingly, Clty
agrees that Co ` Itant shall not be liable for and
hereby waives all =lms arising out of or connected
with (a) the use, trio ,iflcation or misuse by Clty of
such Electronic Data; b) the decline of accuracy or
readability of the Ele ' *nic Data due to storage
conditions, the passage time, or otherwise; or
(c) any use of said electronl • ata by any third parties
receiving the electronic data fr• . City.
City agrees that the design docu is to be provided
by Consultant will contain certain st; 'dard Consultant
component design details from Co ultant's Best
Practices Detail Library, which stands `: component
details shall remain the property of Consu = nt. These
details are repetitive In nature, not proje pecific,
function rather than form-orlented, and not
developed for or identifiable with the Work. Con `' ed
use by Consultant will not compromise the comp e
transfer to City of the unique features of the desig`
for the Work and will not result In a compromise of
City's absolute right, title and ownership to the work
product and design documents herein.
STITUTED
Con: tient will not be liable for use by City of plans,
documts, studies, or other data for any purpose
other the , that Intended by the terms and conditions
of this Agr• :ment.
Consultant all not copyright any material and
products or pa t any Invention developed under this;
Agreement. City hall have the right to visit the site
for Inspection of he Work and the products of
Consultant at any ti :. Consultant shall be permitted
to retain copies, inclu• g reproductible copies, solely.
for information and refe ce in connection with City's
use and occupancy of the roject.
7.02 DELIVERY UPO - EQUEST OR
CANCELLATION
Failure of Consultant to prompdeliver all such
documents to the Director within =n (10) days of
cancellation, or within ten (10) da of request by
City, shall be Just cause for City to wit 'old payment
of any fees due Consultant until Consu : nt delivers
all such documents. Consultant shall ave no
recourse from these requirements.
7.03 RE -USE BY CITY
it is understood that all Consultant agreements an• •r
Work Orders for new work will Include the provisio
for the re -use of plans and specifications, including
construction drawings, at City's sole option, and by
virtue of signing this Agreement Consultant agrees to
such re -use in accordance with thls provision without
the necessity of further approvals, compensation,
fees or documents being required and without
recourse for such re -use. Consultant will not be liable
for use by 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 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, and Sub -consultants to comply with the
provisions of this Article.
7.05 MAINTENANCE OF RECORDS
Consultant will keep adequate records and
supporting documentation, which concern or reflect
its Work 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
City Contract No.
Consultant's Initials
PROFESSIONAL SERIVCES AGREEMENT
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.
7.06 DOCUMENTS PROVIDED BY CITY
City does not warrant the accuracy of any existing
documentation relative to the existing facility. All
conditions shall be field verified. Consultant shall be
responisble to field verify all conditions. Consultant
shall notify City, in writing, of any errors In existing
documentation as soon as such error is discovered.
In no way shall City be liable for existing field
conditions.
ARTiiCLE 8 INDEMNIFICATION
Consultant shall hold harmless, indemnify and defend
City, its officials and employees 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
Consultant or its Sub -consultants. Consultant shall
pay all claims and losses of any nature whatsoever in
connection therewith and shall defend all Project
related sults, in the name of City when applicable,
and shall pay all costs, including without limitation
reasonable attomey's and appellate attomey's fees,
nd judgments which may Issue thereon.
nsultant's obligation under this Article shall not be
Iim = • In any way by the agreed upon compensation,
or C sultant's limit of, or lack of, sufficient Insurance
protec •n and shall apply to the full extent that it is
caused " by the negligent, act or omission,
recklessn= s or intentional wrongful conduct of
Consultant, s agents, servants, representatives or
Sub-consuita s.
ARTICLE 9 NSUR NCE
9.01 COMP S PROVIDING COVERAGE
All Insurance policies all be Issued by companies
authorized to do busine= under the laws of the State
of Florida and satisfacto o the Risk Administrator.
All companies shall have a •ride resident agent and
be rated at least A(X), as pe A.M.,Best Company's
Key Rating Guide, latest edition.
9.02 VERIFICATION OF IN RANCE
COVERAGE
Consultant shall furnish certificates o nsurance to
the Risk Administrator for review and app 'val prior to
the execution of this Agreement. The ; rtlficates
shall clearly indicate that Consultant has `'btained
insurance of the type, amount and class ation
required by these provisions, in excess o any
pending claims at the time of award of Is
Agreement to Consultant. Consultant shall main
ITUT
E
cove •e with equal or better rating as identified
herein •r the term of thls Agreement. Consultant
shall prde written notice to City's Department of
Risk Ma =gement of any material change,
cancellation nd/or notice of non -renewal of the
insurance wi In thirty (30) days of the change.
Consultant eh furnish a copy of the Insurance
policy or polic s upon request of the Risk
Administrator.
Consultant shall fum h copies of insurance policies
pertaining to this Agre ent to the Risk Administrator
within ten (10) days of w' en request.
9.03 FORMS OF CO RAGE
9.03-1 Minimum Insurance overage
The following requirements lllu' rate the minimum
coverages required by the City. T '' City reserves the
right to request higher coverage a ounts once the
Consultant's Scope of Work Is negated. Prior to
contract execution or at anytime t reafter, the
required coverages may change as aesuit of a
change in the Scope of Work. Should dditional
insurance be required by the City, Consulta may be
reimbursed by the City for the actual cost such
Insurance.
9.03-2 Comprehensive General Liability
Automobile Liability
Coverage shall have minimum limits of $1,000,000'
per Occurrence, $2,000,000 aggregate for Bodily
Injury Liability and Property Damage Liability. This
shall Include Premises and Operations, Independent
Contractors and Contractual Liability. Automobile.
coverage including owned, hired, borrowed or non -
owned autos, with a combined single limit of at least
$1,000,000 Bodily Injury and Property Damage
Liability for any one accident. City of Miami and Jones
Lang LaSalle shall be named an additional insured on
both of these coverages.
9.03-3 Professional Liability Insurance
Consultant shall maintain Project Specific
Professional Liability coverage with limits of at least
$10,000,000 per claim, $20,000,000 aggregate,
providing for all sums which Consultant shall be
legally obligated to pay as damages for claims arising
out of the services performed by Consultant or any
person employed by Consultant in connection with
this Agreement. This Insurance shall be maintained
for at least two (2) years after completion of the
construction and acceptance of the Project covered
by this Agreement. Consultant, at its option, and with
approval of City, may provide a Protect specific
policy. Such policy shall comply with all of the terms,
conditions and limits stated above.
9.03.4 Worker's Compensation Insurance
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.
City Contract No.
Consultant's initials
SU
PROFESSIONAL SERIVCES AGREEMENT
9.03-5 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 its 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
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
compensation for reimbursement of any additional
costs from City.
ARTICLE 10 MISCELLANEOUS
10.01 AUDIT RIGHTS
City reserves the right to audit Consultant's accounts
during the performance of this Agreement and for
three (3) years after final payment under this
Agreement. Consultant agrees to furnish copies of
any records necessary, In the opinion of the Director,
to approve any requests for payment by Consultant.
10.02 ENTIRE AGREEMENT
This Agreement, as It may be amended from time to
time, represents the entire and Integrated agreement
between City and Consultant and supersedes all prior
negotiations, representations or agreements, written
r oral. This Agreement may not be amended,
anged, modified, or otherwise altered in any
re :•ect, at any time after the execution hereof, except
by `= written document executed with the same
form and equal dignity herewith. Waiver by either
party o a breach of any provision of thls Agreement
shall no •e deemed to be a waiver of any other
breach of :ry provision of this Agreement.
10.03 SU \ESSORS AND ASSIGNS
The performan►`- of this Agreement shall not be
transferred, pledg ., sold, delegated or assigned, In
whole or In part, Consultant without the written
consent of City, a ng by and through its City
Commission. It Is u '� =rstood that a sale of the
majority of the stock ``•r partnership shares of
Consultant, a merger or b k sale, an assignment for
the benefit of creditors •.\all each be deemed
transactions that would cons lute an assignment or
sale hereunder requiring prior written approval.
Consultant's services are unique nature and any
transference without City approval s .: II be cause for
City to cancel this Agreement. Consu >- nt shall have
no recourse from such cancellation. C ay require
bonding, other security, certified financial tements
and tax returns from any proposed assign :nd the
execution of an Assignment/Assumption Agr- ment
in a form satisfactory to City Attomey as a con on
precedent to considering approval of an assignme
T'ITUTED
Consult: •t and City each binds one another, their
partners, uccessors, legal representatives and
• authorized ssIgns to the other party of this
Agreement a • to the partners, successors, legal
representative: • nd assigns of such party in respect
to all covenants • this Agreement.
10.04 TRUTH -I NEGOTIATION
CERTIFIC E
In compliance with `.Consultant's Competitive
Negotiation Act, for any ject to be compensated
under the Lump Sum meth• Consultant shall certify
that wage rates and othfactual unit costs
supporting the compensation a accurate, complete,
and current at the time of Not to Proceed. The
original Protect price and any add '•n thereto will be
adjusted to exclude any significan '=ums by which
City determines the Project price wa ncreased due
to Inaccurate, incomplete or non-curre wage rates
and other factual unit costs. All ch price
adjustments will be made within one ',1) year
following the end of the Protect.
10.08 APPLICABLE LAW AND VENU OF
LITIGATION
This Agreement shall be interpreted and construed
accordance with and governed by the laws of the
State of Florida. Any suit or action brought by any
party, concerning this Agreement, or arising out of
this Agreement, shall be brought in Miami -Dade
County, Florida. Each party shall bear Its own
attorneys fees except In actions arising out of
Consultant's duties to Indemnify City under ARTICLE
8 where Consultant shall pay City's reasonable
attomey's fees.
10.08 NOTICES
Whenever either party desires to give notice unto the
other, such notice must be In wilting, sent by
registered United States mall, retum receipt
requested or electonic mall, 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:
Ms. Mary H. Conway
Director
Department of Capital Improvements (CIP)
City of Miami
444 S.W. 2nd Avenue - 101' FI
Miami, Florida 33130
With a copy to:
Mr. Jorge Fernandez
City Attomey
City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, FI. 33130-1910
City Contract No.
Consultant's Initials
S
PROFESSIONAL SERIVCES AGREEMENT
Mr. Gary Farbrikant
Assistant Director
Department of Capital improvements (CIP)
City of Miami
444 S.W. 2nd Avenue - 8e FI
Miami, Florida 33130
Mr. John Pacclone
Senior Vice President
Jones Lang LaSalle
200 East Robinson Street, Suite 525
Orlando, FL 32801
For Consultant:
(To Be Determined)
10.07 INTERPRETATION
Preparation of this Agreement has been a joint effort.
The language of this Agreement has been agreed to
by both parties to express their mutual Intent and no
rule of strict construction shall be applied against
either party hereto. The headings contained In this
Agreement are for reference purposes only and shall
not affect In any way the meaning or interpretation of
this Agreement. All personal pronouns used In this
Agreement shall include the other gender, and the
singular shall include the plural, and vice versa,
unless the context otherwise requires. Terms such as
"herein,* "hereof," "hereunder," end "hereinafter refer
to this Agreement as a whole and not to any
particular sentence, paragraph, or section where they
pear, unless the context otherwise requires.
enever referdnce Is made to a Section or Article of
thi: ,Agreement, such reference is to the Section or
Artic as a whole, including all of the subsections of
such ' : ction, unless the reference Is made to a
particul: •, subsection or subparagraph of such
Section o rticle.
10.08 PR ! RITY OF PROVISIONS
If there is a filet or inconsistency between any
term, statement, requirement, or provision of any
exhibit attached reto, any document or events
referred to herein, ony document Incorporated Into
this Agreement by re -fence and a term, statement,
requirement, or provisio ,of this Agreement, the term,
statement, requirement, • ,,provision contained In this
Agreement shall prevail anbe given effect.
10.09 COMPLIANCE WI , LAWS
Consultant shall comply with -ll applicable laws,
codes, ordinances, rules, regulati. s and resolutions
Including, without limitation, OSH the Americans
with Disabilities Act ("ADA"), as a :nded, and all
applicable guidelines and standards in .erforming its
duties, responsibilities, and obligations ated to this
Agreement. Consultant represents and w : nts that
there shall be no unlawful discrimination a •rovided
by law in connection with the performance of this
agreement.
10.09-1 Non -Discrimination
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1
C • sultant warrants and represents that It does not
an• II not engage in discriminatory practices and
that t re shall be no discrimination in connection
with Co ultant's performance under this Agreement
on acco t of race, color, sex, religion, age,
handicap, • arital status or national origin.
Consultant ► . er covenants that no otherwise
qualified indivl • • = I shall, solely by reason of his/her
race, color, sex, eligion, age, handicap, marital
status or natio origin, be excluded from
participation In, be d:', ed services, or be subject to
discrimination under an ,.• r°vision of this Agreement.
Consultant shall affirm = vely comply with all
applicable provisions of ` e Americans with
Disabilities Act ("ADA") in the rse of providing any
work, labor or services funded by ity, including Titles
I & 11 of the ADA (regarding nondi mination on the
basis of disability) and all appti = e regulations,
guidelines and standards. Additiona —Consultant
shall take affirmative steps insure
nondiscrimination in employment of disableersons.
10.10 DISCRETION OF DIRECTOR
Any matter not expressly provided for herein de
with City or decisions of City shall be within t
exercise of the reasonable professional discretion o
the Director or the Director's authorized designee.
10.11 RESOLUTION OF CONTRACT
DISPUTES
Consultant understands and agrees that all disputes
between It and City based upon an alleged violation
of the terms of this Agreement by City shall be
submitted to City Manager for his/her resolution, prior
to Consultant being entitled to seek judicial relief In
connection therewith. Should the amount of
compensation hereunder exceed $500,000, City
Manager's decision shall be approved or disapproved
by City Commission. Consultant shall not be entitled
to seek judicial relief. unless: I) it has first received
City Manager's written decision, approved by City
Commission If applicable, or II) a period of sixty (60)
days has expired after submitting to City Manager a
detailed statement of the dispute, accompanied by all
supporting documentation, or a period of ninety (90)
days has expired where City Manager's decision Is
subject to City Commission approval; or III) City has
waived compliance with the procedure set forth in this
section by written instrument(s) signed by City
Manager.
10.12 MEDIATION -WAIVER OF JURY
TRIAL
9
In an effort to engage in a cooperative effort to
resolve conflict which may arise during the course of
SU
City Contract No.
Consultant's Initials
PROFESSIONAL SERIVCES AGREEMENT
the design and/or construction of the subject Project,
and/or following the completion of the Project the
parties to this Agreement agree all disputes between
them shall be submitted to non -binding mediation
prior to the initiation of litigation, unless otherwise
agreed in writing by the parties. A certified Mediator,
who the parties find mutually acceptable, will conduct
any mediation proceedings In Miami -Dade County,
State of Florida. The parties will split the costs of a
certified mediator on an equal basis. Consultant
agrees to include such similar contract provisions
with all Sub -consultants retained for the Project,
thereby providing for non -binding mediation as the
primary mechanism for dispute resolution.
In an effort to expedite the conclusion of any litigation
the parties voluntarily waive their right to jury trial or
to file permissive counterclaims in any action arising
under this Agreement.
10.13 INDEPENDENT CONTRACTOR
Consultant has been procured and Is being engaged
to provide services to City as an Independent
contractor, and not as an agent or employee of City.
This Agreement does not create a joint venture,
partnership or other business enterprise between the
parties. Consultant has no authority to bind City to
any promise, debt, default, or undertaking of
Consultant. Consultant shall not attain, nor be entitled
to, any rights or benefits under the Civil Service or
enslon Ordinances of City, nor any rights generally
a •rded classified or unclassified employees.
Co' Rant further understands that Florida Workers'
Coma nsation benefits available to employees of City
are no °' valfabte to Consultant, and agrees to provide
workers' ? ..mpensatlon Insurance for any employee.
or agent Consultant rendering services to City
under this Aement.
10.14 PERF MANCE EVALUATION
Consultant Is he •y advised that during the
performance of Wo \under this Agreement, upon
completion of the Pro and/or at any other time
deemed appropriate City, a performance
evaluation report may be ompleted by City. The
performance evaluations will = kept in City files for
use on future solicitations.
10.16 CONTINGENCY CLAUSE
Funding for this Agreement Is continge ` upon the
availability of funds and continued autho ion for
program activities and the Agreement Is = ' ect to
amendment or termination due to lack of nds,
reduction of funds and/or change in regulations, ',• n
thirty (30) days notice.
TITUTED
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PROFESSIONAL SERIVCES AGREEMENT
I ITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first a ve written.
WITNESS/ATT., T CONSULTANT
Signature Signature
Print Name, Titre
Print Name, Title of Authorized Officer or Official
ATTEST: (Corporate Seal)
Consultant Secretary
ATTEST: CITY OF MIAMI, a municipal corporation of the
State of Florida
Priscilla Thompson, City Clerk City Manager
APPROVED AS TO INSURANCE
REQUIREMENTS:
Lee Ann Brehm, Administrator
Risk Management Department
City Contract No.
Consultant's Initials
APPROVE ' ' S TO LEGAL FORM AND
CORRECTN . S:
Jorge L. Fernandez, ty Attorney
TIT . T
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