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HomeMy WebLinkAboutAgreementCITY OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS PROFESSIONAL SERVICES AGREEMENT SERVICE CATEGORY: CONTRACT TYPE: PROJECT NAME: PROJECT No.: CONSULTANT: CONSULTANT'S OFFICE: CITY AUTHORIZATION: CITY CONTRACT No.: ENVIRONMENTAL SERVICES PROJECT SPECIFIC VIRGINIA KEY ENVIRONMENTAL REMEDIATION B-35002 INTERCOUNTY LABORATORIES - USL, INC. D/B/A BUREAU VERITAS NORTH AMERICA, INC. 11860 WEST SR 84, SUITE 1 FT. LAUDERDALE, FLORIDA 33325 FACSIMILE (954) 236-8268 RESOLUTION No. 07-0032 B-35002-USL THIS AGREEMENT, made and entered into this -1.D day off y 2007 by and between the City of Miami, Florida, a municipal corporation, hereinafter called th'e City, and Intercounty Laboratories-USL, Inc. d/b/a Bureau Veritas North America, Inc. a Delaware Corporation, hereinafter called Contractor. WITNESSETH: A. The City issued a Request for Proposals ("RFP") No. 04-05-109 on June 27, 2005 for the provision of Environmental Services for the Virginia Key Landfill and Contractor's proposals ("Proposal"), in response thereto, was selected as one of the most qualified for the provision of said services. The RFP 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 Commission, has selected the Contractor in accordance with the applicable provisions of the City Procurement Ordinance, to provide the services as described herein by Resolution No. 06-0050, adopted January 26, 2006 and authorized the City Manager to negotiate this Agreement C. WHEREAS, the City, through action of the City Commission, by Resolution No. 07-0032, adopted January 11, 2007, has authorized the City Manager to execute this Agreement NOW THEREFORE, in consideration of the mutual covenants and compensation set forth herein the City and Contractor agree as follows: Section 1 - Terms and Conditions 1. DEFINITIONS Whenever the following terms or pronouns in place of them appear in the Agreement, the intent and meaning shall be interpreted as follows: Agreement means this document, the Request for Proposals, Proposal addenda, and the Contractor's Proposal, all Attachments, the record of the award by the City Commission, any required Performance Bond and Payment Bond, the Notice of Award, the Contract, the Notice(s) to Proceed, the Purchase Order, Change Orders any contract options (Supplemental Agreements) exercised by the City, the Environmental Assessment Proposal dated November 15, 2006, Field Orders, Supplemental Instructions, and any additional documents the submission of which is required by the Agreement, are the documents which are collectively referred to as the Agreement. Change Order means a written document ordering a change in the Contract Price or Contract Time or a material change in the Work. A change order must comply with the Agreement and the Procurement Ordinance of the City. City means the City of Miami, Florida, a Florida municipal corporation. In all respects hereunder, City's performance is pursuant to the City's capacity as 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 Consultant's Initials City's Initials Page 2 of 32 City Convey No. B-35002 not be attributable in any manner to the City as a party to this Agreement. For the purposes of this Agreement, "City" without modification shall mean the City Manager or Director, as applicable. City Commission means the governing and legislative body of the City. City Manager means the Chief Administrative Officer of the City. Construction Change Directive means a written directive to effect changes to the Work, issued by the City. Agreement Price means the original amount negotiated and award by the City, as may be amended by an eligible and authorized Change Order. Contractor Principal In Charge and Project Manager mean the people designated by Contractor as its lead representatives to the City. The Contractor Principal in Charge shall have the authority to obligate and bind Contractor and to act on all matters on behalf of Contractor. Agreement Time means the time period defined in this Agreement for the Contractor to complete Phase I of the Project. Contractor means the person, firm, or corporation with whom the City has contracted and who is responsible for the acceptable performance of the Work and for the payment of all legal debts pertaining to the Work. All references in the Agreement to third parties under contract or control of Contractor shall be deemed to be a reference to Contractor. Cure means the action taken by the Contractor promptly after receipt of written notice from the City of a breach of the Agreement for the Work, which shall be performed at no cost to the City, to repair, replace, correct, or remedy all material, equipment, or other elements of the Work or the Agreement affected by such breach, or to otherwise make good and eliminate such breach, including, without limitation, repairing, replacing or correcting any portion of the Work or the Project site disturbed in performing such cure. Cure Period means the period of time in which the Contractor is required to remedy deficiencies in the Work or compliance with the Agreement after receipt of written notice to Cure from the City identifying the deficiencies and the time to Cure. DERM means the Miami -Dade County Department of Environmental Resource Management. Director means the Director of the Department of Capital Improvements and Transportation or designee, who has the authority and responsibility for managing the Project under this Agreement. EAP means the Contractor's Environmental Assessment Proposal dated November 15, 2006, attached hereto as Attachment "A and made a part of this Agreement. Field Directive means a written approval for the Contractor to proceed with Work requested by the City, which is minor in nature and should not involve additional cost. Final Completion means the date certified by City in the Final Certificate of Payment upon which all conditions and requirements of any permits and regulatory agencies have been satisfied; any documents required by the Agreement have been received by City; any other documents required to be provided by Contractor have been received by City; and to the best of City's knowledge, information and belief the Work defined herein has been fully completed in accordance with the terms and conditions of the Agreement. Inspector means an authorized representative of City assigned to make necessary inspections of materials furnished by Contractor and of the work performed by Contractor. onsultant's Initials City's Initials Page 3 of 32 City Contract No. B35002 Materials means goods or equipment incorporated in this Project, or used or consumed in the performance of the Work. Notice To Proceed means a written letter or directive issued by the Director or City's Project Manager acknowledging that all conditions precedent have been met and directing that the Contractor may begin Work on the Project or a specific task of the Project. Project means the Work described in the Agreement. Project Initiation Date means the date upon which the Agreement Time commences. City's Project Manager means an employee or representative of the City assigned by the Director to manage and monitor the Work to be performed under this Agreement. Punch List means a compilation of items of Work required to be performed by, or through the Contractor prior to Final Completion and payment. Request For Information (RFI) means a request from the Contractor seeking an interpretation or clarification relative to the Agreement and/or the Work Risk Administrator means the City's Risk Management Administrator, or designee, or the individual named by the City Manager to administer matters relating to insurance and risk of Toss for the City. Subcontractor means a person, firm or corporation having a direct contract with Contractor including one who furnishes material worked to a special design according to the Agreement, but does not include one who merely furnishes Materials not so worked. Submittals mean documents prepared by the Contractor or those working on its behalf to show required by the City or other regulatory agencies necessary for the completion of the Work under this Agreement. Work means the services required by the Agreement, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by Contractor to fulfill Contractor's obligations. The Work may constitute the whole or a part of the Project. 2.SCOPE OF WORK Contractor hereby agrees to furnish all labor, materials, equipment, services and incidentals necessary to complete tasks one through ten (1-10) toward the development and approval by DERM of a Contamination Assessment Plan (CAP) and a Site Assessment Report (SAR) for the Virginia Key Landfill as described for Phase I in the Request for Proposal (RFP), and more specifically defined in Contractor's EAP included as Attachment "A". The location where the Work is to be performed is identified in the RFP and the Contractor's EAP. The Contractor shall perform the first ten tasks as described in the Contractor's Environmental Assessment Proposal (EAP) dated November 15, 2006 as a result of the final negotiations. Should a conflict in terms arise between the terms and conditions of this Agreement and the EAP, the EAP shall control. 3. CONTRACT OPTIONS The City at its sole discretion may exercise options for the completion of tasks eleven through fifteen (11-15) of the Phase I EAP Proposal dated November 15, 2006 as well as Phase 11 and • Consultants Initials Page 4 of 32 City Contract No. B-35002 City's Initial Phase III as detailed in the RFP. Should the City elect to exercise the option to complete Phase I, the City and Contractor have negotiated the attached Amendment No. 1 (Attachment 8) for this purpose and may enter into the Amendment pursuant to the authority granted to the City Manager by Resolution No. 07- 00 34 adopted on January 11, 2007 subject to the availability of grant funds to be received by Miami Dade County. If the City desires to exercise the Phase 11 or Phase Ili options, the City may enter into negotiations with the Contractor for the purposes of entering into a supplemental agreement to this Agreement which shall include additional contractual terms and conditions specific to each supplemental agreement, increase the Scope of Work to reflect the requirements of each Phase, and itemize the cost for each Phase. Such negotiations will be reflected in the supplemental agreement(s) to the Agreement, which will be subject to the approval of the City Manager and the City Commission. 4. INTENTION OF CITY It is the intent of City to describe in this Agreement the Project to be completed in accordance with the Agreement and in accordance with all codes and regulations governing all the Work to be performed under this Project. Any work, materials or equipment that may reasonably be inferred from the Agreement as being required to produce the intended result shall be supplied by Contractor whether or not specifically called for. When words, which have a well-known technical or trade meaning, are used to describe work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of opening of bids and Contractor shall comply therewith. City shall have no duties other than those duties and obligations expressly set forth within the Agreement. 5. CONTRACT TIME The Director shall issue a Notice of Award to the Contractor upon approval of the award by the City Commission and execution of the Agreement by the City Manager. Contractor acknowledges that certain tasks of its EAP will require permits. Contractor shall not commence any Work under this Agreement until the City has issued a Notice to Proceed (NTP), and permits as required are obtained by the Contractor for each task of the Project. The Contractor shall notify the City and DERM forty-eight (48) hours prior to the commencement of Work. Time is of the essence throughout this Agreement. The Work shall be completed four hundred eighty (480) calendar days (16 months) from the issuance of the Notice to Proceed. The contract time is based on fourteen (14) months of field and professional services to complete the ten tasks identified in the EAP, plus two, 30-day regulatory reviews. Should DERM take greater than 30 days per review, Contractor will notify City of said condition within five (5) business days. In the event the City and Contractor enter into Amendment No. 1, the Contractor agrees to perform tasks eleven through fifteen (11-15) as set forth in the Amendment. 6. CONTRACT VALUE Contractor will perform the above Scope of Work for an aggregate Fixed Fee by Task of Six Hundred Fifty Thousand dollars ($650,000). The task detail shall serve as the Schedule of Values for the project and milestones for monthly billing and payment for completion of specific tasks will Consultant's Initials Page 5 of 32 City Contract No. 8-35002 City's Initials be based upon mutually agreeable percentage completion for each task. A breakdown of the fee by task is presented below: 1. Project Initiation and Kick-off Meeting $12,870 2. Historical Records Review, Research and Interviews $17,055 3. Site Specific Health and Safety Plan $5,110 4. Program Management $24,260 5. Land Survey $116,289 6. Contamination Assessment Plan and DERM Approval $48,412 7. Wetlands Survey $68,390 8. Characterization of Waste and Horizontal Delineation $128,730 9. Vertical Waste Delineation $122,578 10. Installation of Landfill Gas Probes $84,182 Subtotal $627,876 Owner's Contingency $22,124 Total $650,000 This shall be a Firm Fixed Price and the Contractor shall not be entitled to any additional compensation for any requirements necessary to obtain the approvals of the CAP and those elements in Tasks one through ten (1-10), above of the EAP dated November 15, 2006 unless such requirements are mandated by DERM, the City or other regulatory agency, or where the City makes changes in the Scope of Work or the Contract Terms and Conditions. Payments shall be made for Work based on Article 9, Progress Payments. 8. LABOR AND MATERIALS Contractor shall provide and pay for all materials, labor, water, tools, equipment, light, power, transportation and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. Contractor shall at all times enforce strict discipline and good order among its employees and subcontractors at the Project site and shall not employ on the Project any unfit person or anyone not skilled in the work to which they are assigned. 9. PROGRESS PAYMENTS Contractor shall make monthly Application for Payment for Work completed during the Project based on the percent complete of each of the tasks identified in the EAP. Billing will be done monthly based on percent complete of all tasks underway in a given month. A 10% retainage on the final fixed fee will be held until approval that all tasks have been completed to the City's satisfaction. Contractor's Application for Payment shall include a partial release of liens relative to the Work, which is the subject of the Application for Payment and any other information required by the City. Contractor shall also submit an updated Project Schedule reflecting the current status against the accepted baseline Project Schedule. Each Application for Payment shall be submitted in triplicate to City's Project Manager for approval. Consultant's Initials City's Initi ........„.Consultant's -� Page 6 of 32 City Contract No. 8-35002 City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from Toss on account of: 10. • Defective Work not remedied. • Claims filed or reasonable evidence indicating probable filing of claims by other parties against Contractor or City because of Contractor's performance. • Failure of Contractor to make payments properly to Sub -Contractors for materials, equipment, or labor. • Failure of Contractor to provide any and all documents required by the Agreement by DERM. PAYMENTS Payment of an approved Application for Payment approved by the City shall be made within thirty (30) days after receipt of Contractor's Application for Payment by the City, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. 11. SUPERINTENDENCE AND SUPERVISION Contractor shall keep on the Project during its progress, a full-time competent English speaking Principal in Charge and Project Manager and any necessary assistants. The Contractor's Principal in Charge and Project Manager shall not be changed except with the written consent of City, unless the Contractor's Project Manager proves to be unsatisfactory to Contractor or ceases to be in its employ. The Contractor's Principal in Charge and Project Manager shall represent Contractor and all directions given to the Contractor's Project Manager shall be as binding as if given to Contractor and will be confirmed in writing by the Contractor's Principal in Charge. Contractor shall give efficient supervision to the Work, using its best skill and attention. The City shall be provided telephone number(s) for the Contractor's Project Manager where the superintendent can be contacted during normal working hours as well as after hours for emergencies. Contractor's Project Manager shall record, at a minimum, the following field information in a bound log: the day; date; weather conditions and how any weather condition affected progress of the Work; time of commencement of work for the day; the work being performed; materials, labor, personnel, equipment and subcontractors at the Project site; visitors to the Project site, including representatives of the City, regulatory representatives; any special or unusual conditions or occurrences encountered; and the time of termination of work for the day. All information shall be recorded in the daily field log in indelible ink. The daily log shall be kept on the Project site and shall be available at all times for inspection and copying by City. Contractor and the City's Project Manager shall hold progress meetings as deemed necessary by the City to ensure the timely completion of the Work. The Contractor shall publish, keep, and distribute minutes and any comments thereto of each such meeting as detailed in the EAP. Contractor shall supervise and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Agreement. Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of construction associated with the Work. 12. NOTICES Whenever either party desires to give notice to the other, such notice must be in writing, sent by certified United States Mail, postage prepaid, return receipt requested, electronic r :11, or by onsultant's Initials City's initials Page 7 of 32 City Contract No. 8-35002 hand -delivery with a request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is intended at the place last specified. The place for giving notice shall remain the same as set forth herein until changed in writing in the manner provided in this section. For the present, the parties designate the following: For City: Gary Fabrikant Assistant Director -Capital Improvement Program/Transportation Office of the City Manager 444 SW 2nd Avenue, 10th Floor Miami, FL 33130 With copies to: (PM's name to be inserted) Department of Capital Improvements and Transportation City of Miami 444 SW 2nd Ave., 8th Floor Miami, Florida 33130 For Contractor: Mark E. Lynch, Jr. Chief Operations Officer Intercounty Laboratories-USL, Inc. d/b/a Bureau Veritas North America 11860 West SR 84, Suite 1 Suite 1, Ft. Lauderdale, Florida 33325 Facsimile (954) 236-8108 With copies to: Richard Tong, Esq., General Counsel & Executive Vice President Intercounty Laboratories-USL, Inc. d/b/a Bureau Veritas North America 11860 West SR 84, Suite 1 Suite 1, Ft. Lauderdale, Florida 33325 Facsimile (954) 236-8268 13. 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 attorney's and Consultant's Initials City's Initials Page 8 of 32 City Contract No. B-35002 appellate attorney'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. 14. INSURANCE Contractor agrees to comply with the provisions of Exhibit 1, attached hereto and incorporated herein prior to the commencement of the work hereunder. 15. MODIFICATIONS TO COVERAGE The City through its Risk Administrator or authorized designee reserves the right to require modifications, increases, or changes in the required insurance requirements, coverage, deductibles or other insurance obligations and shall provide a thirty (30) day written notice to the Contractor. In that event Contractor 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. All additional cost will be born by the City. 16. 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. 17. AUTHORITY OF THE CITY'S PROJECT MANAGER The Director hereby authorizes the City's Project Manager to determine or answer, all questions of any nature whatsoever arising out of, under or in connection with, or in any way relating to or on account of the Work, and/or as to the interpretation of the Work to be performed. The Contractor shall be bound by all determinations or orders of the City's Project Manager and shall promptly respond to requests of the Project Manager, including the withdrawal or modification of any previous order, and regardless of whether the Contractor agrees with the Project Manager's determination or requests. Where requests are made orally, the Project Manager will follow up in writing, within 24 hours. The Project Manager shall have authority to act on behalf of the City to the extent provided by the Agreement, unless otherwise modified in writing by the City. All instructions to the Contractor shall be issued in writing. All instructions to the Contractor shall be issued through the Director or designee or the Project Manager. The Project Manager shall have access to the Project Site during normal work hours, unless access in required by the City due to health, safety or welfare of the City or the public. The Project Manager will make periodic visits to the Work Site to become generally familiar with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Agreement. The Project Manager will not be responsible for the Contractor's means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and will not be responsible for the Contractor's failure to carry out the Work in accordance with the Agreement. Consultant's Initials City's Initials Page 9 of 32 City Contract No. 13-35002 The Project Manager will have authority to reject Work that does not conform to the Agreement requirements of the Agreement. Whenever, in his or her opinion, it is considered necessary or advisable to insure the proper implementation of the Agreement, the Project Manager will have authority to require special inspections or testing of the Work. Neither the Project Manager's authority to act under this Article, nor any decision made by him/her in good faith either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of the Project Manager to the Contractor, any Sub -Contractor, supplier or any of their agents, employees, or any other person performing any of the Construction Work. All interpretations and recommendations of the Project Manager shall be consistent with the intent of the Agreement. The Project Manager will not be responsible for the acts, errors or omissions of the Contractor, or anyone employed or contracted directly or indirectly by the Contractor including any Sub - Contractor, or any of their agents or employees, or any other persons performing any of the Work. 19. CONSTRUCTION SIGNAGE The City shall provide the Contractor the wording and layout for the signs at the pre -construction conference. The Contractor shall furnish the two City of Miami signs at the Project Site as follows: The first sign must be manufactured by Image 2000, 45 East 9th Court, Hialeah, Florida (305) 884-2240 or approved equal. The sign shall be 4 feet wide and 8 feet high and constructed of pressure sensitive 2 mil cast vinyl overmounted with 3 mil mylar and mounted to 1 MDO with painted back. The sign shall be mounted on 4 inch square wood or perforated "U" channel metal posts painted white, and be readable at eye level. The colors to be used on the sign are as follows: the background shall be white with blue lettering; the seal shall be white and gold with blue lettering form. The second sign shall reflect other funding sources for the project and shall reflect the Project information. The sign shall be 4 feet wide by 8 feet high by '/. inch (thick) exterior plywood, suitably mounted and readable at eye level. The colors shall be blue and white. The background shall be white and all lettering shall be blue Helvetica. All paint shall be rated outdoor enamel. The City will provide the City Seal in decal form. The Contractor shall also post appropriate construction site warning signs at the Work Site. Such signs shall be posted to warn pedestrian and vehicle traffic. Signage shall also be placed waterside to alert boater to the construction zone, requiring idle speed and a minimum clearance distance. Contractor shall provide drawings for the signage, which shall be subject to approval by the Consultant. The City shall approve the locations for all signage 20. CONTRACTOR'S RESPONSIBILITY FOR UTILITY PROPERTIES AND SERVICE Where the Contractor's operation could cause damage or inconvenience to telephone, fiber optic, television, electrical power, oil, gas, water, sewer, or irrigation systems, the Contractor shall make all arrangements necessary for the protection of these utilities and services or any other known utilities. Notify all utility companies that are affected by the construction operation at least 48 hours in advance. Under no circumstance expose any utility without first obtaining permission from the appropriate agency. Once permission has been granted, locate, expose, and provide temporary support for all existing underground utilities and utility poles where necessary. Consultant's Initials City's Initials Page 10 of 32 City Contract No. BJ5002 The Contractor and his Subcontractors shall be solely and directly responsible to the owner and operators of such properties for any damage, injury, expense, Toss, inconvenience, delay, suits, actions, or claims of any character brought because of any injuries or damage which may result from the construction operations under this Agreement. Neither the City nor its officers or agents shall be responsible to the Contractor for damages as a result of the Contractor's failure to protect utilities encountered in the Work. In the event of interruption to domestic water, sewer, storm drain, or other utility services as a result of accidental breakage due to construction operations, promptly notify the proper authority. Cooperate with said authority in restoration of service as promptly as possible and bear all costs of repair. In no event shall interruption of any utility service be allowed unless granted by the owner of the utility. In the event water service lines that interfere with trenching are encountered, the Contractor may, by obtaining prior approval of the water utility, cut the service, dig through, and restore the service with similar and equal materials at the Contractor's expense and as approved by the City's Project Manager. Replace, with material approved by the City's Project Manager, at Contractor's expense, any and all other laterals, existing utilities or structures removed or damaged during construction, unless otherwise provided for in the Agreement and as approved by the Consultant. Replace with material approved by the City's Project Manager, at Contractor's expense, any existing utilities damaged during the Work 21. PROJECT SITE FACILITIES To the extent necessary for completion of the Work, Contractor may elect to arrange for Project - site facilities as necessary to enable the Contractor and the City to perform their respective duties and to accommodate any representatives of the City which the City may choose to have present at the Project. Project -site facilities, include, but are not limited to such things as trailers, toilets, typewriters, computers and any other equipment necessary to carry on the Construction Work. The Contractor shall provide and maintain at his own expense, in a sanitary condition, such accommodations for the use of his employees as is necessary to comply with the requirements including Chapter 46 of the Building Code and regulations of the State of Florida Department of Health and Rehabilitative Services or Dade County Health Department. The Contractor, his employees or his Subcontractors shall commit no public nuisance or use any facilities that have not been specifically provided for use by the Contractor. The Contractor shall furnish an adequate supply of drinking water for his and his Sub -Contractors' employees. There shall be adequate provisions made by the Contractor to ensure all disposable materials are properly disposed of and do not create a nuisance to the City or the public. The location of the temporary facilities shall be subject to the approval of the City's Project Manager The Contractor shall be required to obtain all necessary permits required for any Project site facilities. Contractor shall also be responsible to maintain such facilities in a safe and working condition. All such facilities remain the property of the Contractor and the Contractor shall be responsible for removal and disposal of such facilities prior to Final Acceptance. 22. SECURITY The site where the Work is to be performed is not a secure site and the public has access to the site. The Contractor shall have sole responsibility for the security of all materials, tools, equipment and Work at the site. The City shall not be liable for any damage or loss to such materials, tools, equipment and Work. 23. STOP WORK ORDER C ultant's Initials Page 11 of 32 City Contract No. B-35002 City's Initials The City may, at any time, by written order to the Contractor, require the Contractor to stop all, or any part, of the Work for a period of up to ninety (90) days (or any lesser period), commencing no sooner than the date the order is delivered to the Contractor, and for any further period to which the parties may agree. Any such order shall be specifically identified as a "Stop Work Order" issued pursuant to this paragraph. Within the period of ninety (90) days (or the lesser period specified) after a Stop Work Order is delivered to the Contractor, or within any extension to which the parties have agreed the City shall either cancel the Stop Work Order; or terminate the Work covered by such order as provided in Right to Terminate. If a Stop Work Order issued under this Article is canceled or the period of the order or any extension thereof expires, the Contractor shall resume the Work without compensation to the Contractor for such suspension other than extending the time for Substantial Completion to the extent that, in the opinion of the City, the Contractor may have been delayed by such suspension. In the event the Consultant determines that the suspension of Work was necessary due to Contractor's defective or incorrect Work, unsafe Work conditions caused by the Contractor or any other reason caused by Contractor's fault or omission, the Contractor shall not be entitled to an extension of time as a result of the issuance of a Stop Work Order. 24. HURRICANE PRECAUTIONS During such periods of time as are designated by the United States Weather Bureau as being a hurricane warning or alert, the Contractor, at no cost to the City, shall take all precautions necessary to secure the Project site in response to all threatened storm events, regardless of whether the City has given notice of same. Compliance with any specific hurricane warning or alert precautions will not constitute additional work. Additional work relating to hurricane warning or alert at the Project site will be addressed by a Change Order. Suspension of the Work caused by a threatened or actual storm event, regardless of whether the City has directed such suspension, will entitle the Contractor to additional Contract Time as non-compensable, excusable delay, and shall not give rise to a claim for compensable delay. 25. CLEANING UP; CITY'S RIGHT TO CLEAN UP Contractor shall at all times keep the premises free from accumulation of waste materials or rubbish caused by its operations. At the completion of the Project, Contractor shall remove all its waste materials and rubbish from and about the Project as well as its tools, construction equipment, machinery and surplus materials. If Contractor fails to clean up during the prosecution of the Work or at the completion of the Work, City may do so and the cost thereof shall be charged to Contractor. If a dispute arises between Contractor and separate contractors as to their responsibility for cleaning up, City may clean up and charge the cost thereof to the contractors responsible therefore as Consultant shall determine to be just. All large quantities of stored combustible waste materials, shall be removed from the Project at the end of each day. Cleaning operations should be controlled to limit dust. 26. REMOVAL OF EQUIPMENT In case of termination of this Agreement before completion for any cause whatsoever, Contractor, if notified to do so by City, shall promptly remove any part or all of Contractor's equipment and supplies from the property of City. If the Contractor to comply with City's order, the City shall have the right to remove such equipment and supplies at the expense of the Contractor. 27. PROJECT RECORDS Consultant's Initials Page 12 of 32 City Contract No. BJ5002 City's Initials City shall have the right to inspect and copy, at City's expense, the books and records and accounts of Contractor which relate in any way to the Project, and to any claim for additional compensation made by Contractor, and to conduct an audit of the financial and accounting records of Contractor which relate to the Project and to any claim for additional compensation made by Contractor. Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise Contractor shall retain and make available to City all such books and records and accounts, financial or otherwise, which relate to the Project and to any claim for a period of three (3) years following Final Completion of the Project. During the Project and the three (3) year period following Final Completion of the Project, Contractor shall provide City access to its books and records upon seventy-two (72) hours written notice. 28. SUBCONTRACTS A Sub -Contractor is any person or entity that is performing, furnishing, supplying or providing any portion of the Construction Work pursuant to a contract with Contractor. Contractor shall be solely responsible for and have control over the Sub -Contractors. All subcontracts shall (1) require each Sub -Contractor to be bound to the Contractor to the same extent Contractor is bound to the City by the terms of the Agreement. 29. KEY PERSONNEL The Contractor acknowledges that it was selected by the City, in part, on the basis of qualifications of particular staff identified in Contractor's response to the RFP, hereinafter referred to as "Key Personnel". Contractor shall ensure that Key Personnel as detailed in the Attachments are available for Work hereunder as long as said Key Personnel are in Contractor's or Subcontractor's employ. Contractor will obtain prior written approval of Director or designee to change Key Personnel. Contractor shall provide Director, or designee with such information as necessary to determine the suitability of proposed new Key Personnel. Director will act reasonably in evaluating Key Personnel qualifications. 30. REMOVAL OF UNSATISFACTORY PERSONNEL The City may make written request to Contractor for the prompt removal and replacement of any personnel employed or retained by the Contractor, or any Subcontractors, or any personnel of any such Subcontractors engaged by the Contractor to provide and perform services or Work pursuant to the requirements of this Contract. The Contractor shall respond to the 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. The Project Manager shall make the final determination as to the removal of unsatisfactory personnel from the Work. Such decision shall not be construed as directing the Contractor to terminate any employees' employment with the Contractor. 31. WORKER'S IDENTIFICATION The Contractor's employees, who include any subcontractor, shall wear an identification card provided by the Contractor. The identification card shall bear the employee's picture, name, title and name of the employer. Failure by a Contractor's employee to wear such identification may result in his removal from the Work until such time as the identification card is obtained and worn. Such removal shall not act as a basis for the Contractor to submit a claim for an extension of time. 32. CONTINUING THE WORK onsultant's Initials City's Initials Page 13 of 32 City Contract No. B-35002 Contractor shall carry on the Work and adhere to the Project schedule during all disputes or disagreements with City, including, without limitation, disputes or disagreements concerning a request for a Change Order, the Contract timeframe for completion of the Work. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. All disputes shall be resolved in accordance with Article 57, Resolution of Contract Disputes and Article 57 Mediation -Waiver of Jury Trial. 33. PUBLIC ENTITY CRIMES In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, or subcontractor, under a contract with the City, and may not transact any business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section by Contractor shall result in cancellation of the City purchase and may result in Contractor's debarment. 34. NONDISCRIMINATION. EQUAL EMPLOYMENT OPPORTUNITY. AND AMERICANS WITH DISABILITIES ACT Contractor warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Contractor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Contractor 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. Contractor shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Contractor shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. 35. AUDIT RIGHTS Contractor 's records which shall include but not be limited to accounting records, payroll time sheets, cancelled payroll checks, W-2's, 1099's, written policies and procedures, computer records, disks and software, videos, photographs, subcontract files (including proposals of successful and unsuccessful bidders), originals estimates, estimating worksheets, correspondence, change order files (including documentation covering negotiated settlements), and any other supporting evidence necessary to substantiate charges related to this Agreement (all the foregoing hereinafter referred to as "records") shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by City's agent or its authorized representative to the extent necessary to adequately permit evaluation and verification of any invoices, payments or claims submitted by the Contractor or any of his payees pursuant to the execution of the Agreement. Such records subject to examination shall also include, but not be limited to, those records necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Agreement. onsuRant's Initials City's Initials Page 14 of 32 City Contract No. 8-35002 Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City's agent or authorized representative shall have access to said records from the effective date of this Agreement, for the duration of the Work, and until 5 years after the date of final payment by the City to Contractor pursuant to this Agreement. The City's agent or its authorized representative shall have access to the Contractor's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this provision. The City or its authorized representative shall give auditees reasonable advance notice of intended audits. if an audit inspection or examination in accordance with this Article discloses overcharges in excess of 1 % except negotiated fees by the Contractor to the City, the actual cost of the City's audit shall be paid by the Contractor. If the audit discloses contract billing or charges to which Contractor is not contractually entitled, Contractor shall pay over to the City said sum within 20 days of receipt of a written demand unless otherwise agreed to by both parties in writing. 36. SAFETY PRECAUTIONS Contractor and its Subcontractors shall comply with Occupational Safety and Health Administration (OSHA) and all other applicable federal, state and local health and safety regulations. The Contractor will also be responsible to have a site specific safety plan. The safety plan will be designed to protect the health and safety of local residents, local businesses, City employees and all persons performing Work under this Agreement. The safety plan shall be consistent with the requirements of: • OSHA Safety and Health Standards 29 CFR 1910 (General Industry), US Department of Labor, Occupations Safety and Health Administration • OSHA 29 CFR 1910.120 Hazardous Waste Operations and Emergency Response, US Department of Labor, Occupations Safety and Health Administration • OSHA Safety and Health Standards 29 CFR 1926 {Construction Industry), US Department of Labor, Occupations Safety and Health Administration • Standard of Operating Safety Guidelines, USEPA, Environmental Response Branch, Hazardous Response Support Division, Office of Emergency and Remedial Response. • Occupational Safety and Health Guidance Manual for Hazardous Waste Site Activities, US Department of Health and Human Services, Public Health Service, Center for Disease Control, National Institute of Occupational Safety and Health All personnel either in or adjacent to the Project Site, at a minimum, wear the protective equipment corresponding to the level of protection stated in the Contractor's safety plan. The appropriate levels of protection and safety protection and safety procedures for Contractor's personnel will be clearly stated in the Contractor's safety plan. The Contractor, its employees and subcontractors shall implement and maintain these procedures prior to and during the performance of the Work. It is the Contractor's responsibility to make safety and health inspections and take whatever actions that may be necessary to prevent loss, enforce safety procedures, detect and eliminate hazardous conditions and comply with all federal, state, and local laws and rules and regulations concerning safety and health. 37. PERMITS, AND LICENSES Consultant's Initials City's Initials Page 15 of 32 City Contract No. 8-35002 Except as otherwise provided within the Agreement, all permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the Work undertaken by Contractor pursuant to this Agreement shall be secured and paid for by Contractor. It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency, valid for the Work to be performed and valid for the jurisdiction in which the Work is to be performed for all persons working on the Project for whom a Certificate of Competency is required. 38. TAXES Contractor shall pay all applicable sales, consumer, use and other taxes required by law. Contractor is responsible for reviewing the pertinent state statutes involving state taxes and complying with all requirements. 39. COMPLIANCE WITH LAWS Contractor shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement. 40. NO DAMAGES FOR DELAY In the event of any delays to the Project that are caused by actions or events that are out of the control of the City or entities hired or control by the City, the Contractor's sole remedy shall be to seek an extension of time in accordance with the terms of the Agreement. The City shall not be liable for any delay damages or damages attributable to performing Work out of sequence, acceleration claims or other similar type claims, incurred by Contractor arising out of or in any way associated with the performance under this Agreement. The Time for Completion will be extended in an amount equal to time lost on critical Work items due to delays beyond the control of and through no fault or negligence of Contractor if a claim is made therefore as herein. Such delays shall include, but not be limited to, acts or neglect by any separate contractor employed by City, fires, floods, epidemics, abnormal weather conditions or acts of God. 41. EXCUSABLE DELAY Excusable Delay is (i) caused by circumstances beyond the control of Contractor, its Sub - Contractors, suppliers and vendors, or (ii) is caused jointly or concurrently by Contractor or its Sub -Contractors, suppliers or vendors and by the City. Contractor is entitled to a time extension of the Construction Work Time for Completion for each day the Construction Work is delayed due to Excusable Delay. Contractor shall document its claim for any time extension as provided in Article 42 hereof. Where Contractor determines that the City is liable for payment of cost due to an Excusable delay any request for additional compensation must be submitted in accordance with Article 42. Contractor shall furnish to the City's Project Manager all documentation supporting its claim, including, details of the claim, a description of the work affected and the actual costs resulting from the delay. Where the City agree to an excusable delay and the Work is being performed by a Sub - Contractor, the Contractor shall be paid for actual costs associated with the delay plus 5% for indirect and overhead costs. Where the City agrees to an excusable delay and the Work is being performed by the Contractor's own forces the Contractor shall be reimbursed for actual costs burdened by the nt's Initials Page 16 of 32 City Contrail No. 8-35002 City's Initials Contractor's current Florida Department of Transportation audited overhead rate plus 5% profit associated with the delay. The Contractor agrees that the above constitutes its sole and exclusive remedies for an excusable delay. Failure of Contractor to comply with Article 42 hereof as to any particular event of delay shall be deemed conclusively to constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay. 42. NOTIFICATION AND CLAIM FOR DELAY Any claim for a change in the Time for Completion, shall be made by written notice by Contractor to the Project Manager within fifteen (15) calendar days of the commencement of the event giving rise to the claim and stating the general nature and cause of the claim. Thereafter, within twenty (20) calendar days of the termination of the event giving rise to the claim, written notice of the extent of the claim with supporting information and documentation shall be provided unless the Project Manager allows an additional period of time to ascertain more accurate data in support of the claim and such notice shall be accompanied by Contractor 's written notarized statement that the adjustment claimed is the entire adjustment to which the Contractor has reason to believe it is entitled as a result of the occurrence of said event. 43. INTENTIONALLY OMITTED 44. FORCE MAJEURE: Should any failure to perform on the part of Contractor be due to a condition of force majeure as that term is interpreted under Florida law, then the City may allow an extension of time reasonably commensurate with the cause of such failure to perform or cure. If the Contractor is delayed in performing any obligation under this Agreement due to a force majeure condition, the Contractor shall request a time extension from the City within five (5) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Contractor for extra compensation unless additional services are required. Does Not Include inclement weather except as permitted by Florida law and may not include the acts or omissions of Subcontractors. 45. FIELD DIRECTIVES The City's Project Manager may at times issue Field Directives to the Contractor based on visits to the Project site. Such Field Directives shall be issued in writing and the Contractor shall be required to comply with such directive. Where the Contractor believes that the directive is outside the scope of the Work, the Contractor shall, within 48 hours, notify the City's Project Manager that the Field Directive is outside the scope of the Work. At that time the Field Directive may be rescinded or the Contractor may be required to submit a request for a Change Order proposal. Where the Contractor is notified of the City's position that the Field Directive is within the scope and the Contractor disagrees, the Contractor shall notify the City's Project Manager that the Contractor reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Contractor refuse to comply with the directive. Failure to comply with the directive may result in a determination that the Contractor is in default of the Agreement. 46. CHANGE ORDERS Changes in the Work of the Project which are not properly the subject of Field Directives, including all changes resulting in changes in the contract price, time or use of the Contingency shall be authorized only by Change Orders approved in advance and issued in accordance with the provisions of the City. i Itant's Initials City's Initialsii Page 17 of 32 City Contract No. B35002 All changes to Construction Work must be approved in advance in accordance with the value of the Change Order or the calculated value of the time extension. All Change Orders, excluding those issued against the contingency, increasing the value of the Agreement by $50,000 or more shall be approved in advance by the City Commission. All Change Orders increasing the value of the Agreement, excluding those issued against the contingency by less than $50,000 shall be approved in advance by the City Manager or his designee. All Change Orders issued against the contingency shall be approved by the Director or designee. 47. VALUE OF CHANGE ORDER WORK The value of any Work to be covered by a Change Order, or for any claim for an increase or decrease in the Agreement, shall be negotiated by the Contractor and the City. 48. INSPECTION OF WORK The City shall at all times have access to the Work during normal work hours. Inspectors shall have no authority to permit deviations from, nor to relax any of the provisions of the Agreement nor to delay the Work by failure to inspect the materials and Work with reasonable promptness without the written permission or instruction of the Project Manager. The payment of any compensation, whatever may be its character or form, or the giving of any gratuity or the granting of any favor by Contractor to any inspector, directly or indirectly, is strictly prohibited, and any such act on the part of Contractor will constitute a breach of this Agreement. 49. DOCUMENTS AND RECORDS All documents, reports, including laboratory reports, drawings, 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 the City without restriction or limitation on their use, and will be made available, on request, to the City at any time during the performance of such services and/or upon completion or termination of this Agreement. Contractor shall provide hard all such information electronically as well as in hard copy. 50. SUBMITTALS The Contractor shall be responsible for submittals as may be required for each Task authorized by the City. The Contractor shall be responsible for the professional quality, technical accuracy and the coordination of all submittals required to complete the Work and as required by the Agreement. The Contractor shall, without additional compensation, correct, revise the submittals as required to obtain the approval of DERM. During the progress of the Work, the Contractor shall submit copies of all reports, permits, and other documents required by DERM and/or by goveming authorities, this Agreement, or necessary for the Project. 51. REQUESTS FOR INFORMATION (RFI) The Contractor shall submit in writing a Request for Information (RFI) to the City's Project Manager. The RFI, which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or item(s) requiring clarification or interpretation and why the response is needed. The RFI must set forth the Contractor's interpretation or understanding of the document(s) in C nsultant's Initials City's Initials Page 18 of 32 City Contract No. B-35002 question, along with the reason for such understanding and the implications (time and cost) the cost of any proposed action by the Contractor. 52. CITY'S RIGHT TO TERMINATE The City has the right to terminate this Agreement for any reason or no reason, upon thirty (30) days Written Notice. Such Written Notice shall state the date upon which Contractor shall cease all Work under this Agreement and vacate the Project site. Upon termination of this Agreement, all charts, sketches, studies, drawings, reports and other documents, including electronic documents, related to Work authorized under this Agreement, whether finished or not, must be turned over to the City. Upon termination for reasons other than Contractor's default, the Contractor shall be paid in accordance with provisions of this Agreement, provided that said documentation is turned over to City within fifteen (15) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Contractor until all documentation is delivered to the City. In the event of termination, Contractor shall be paid in full for services performed on behalf of City within thirty days of receipt of an acceptable final invoice. 53. TERMINATION FOR DEFAULT If Contractor fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Contractor shall be in default. Upon the occurrence of a default which is not cured within the Cure Period, in addition to all remedies available to it by law, the City may immediately, upon written notice to Contractor, terminate this Agreement whereupon all advances paid by the City to Contractor while Contractor was in default shall be immediately returned to the City. The City may also suspend any payment or part thereof or order a Work stoppage until such time as the issues concerning compliance are resolved. Contractor understands and agrees that termination of this Agreement under this Article shall not release Contractor from any obligation accruing prior to the effective date of termination. In the event of termination due to default, in addition to the foregoing Contractor shall be liable for all costs and expenses incurred by the City in the re -procurement of the Work under this Agreement. In the event of Default, the City may also issue a Notice to Cure and suspend or withhold payments to Contractor until such time as the actions giving rise to default have been cured. • A finding of default and subsequent termination for cause may include, without limitation, any of the following: • Contractor fails to obtain the insurance required herein required. • Contractor fails to comply with any of its duties under this Agreement, with any terms or conditions set forth in this Agreement beyond the specified period allowed to cure such default. • Contractor fails to commence the Work within the timeframes provided or contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement. The City shall provide Written Notice to Cure to Contractor as to a finding of default, and Contractor shall take all necessary action to Cure said default within such time as stipulated in the Written Notice. Such time to Cure shall be at the sole discretion of the City. The City may extend the Cure Period at its sole discretion or terminate the Agreement upon failure of the Contractor to cure such default in the specified timeframe. 54. CONTRACTOR'S RIGHT TO TERMINATE onsuitant's Initials City's Initials Page 19 of 32 City Contract No. B35002 The Contractor shall have the right to terminate this Agreement for cause, in writing, following breach by the City, if breach of contract has not been corrected within thirty (30) days from the date of the City's receipt of a written notice from Contractor specifying the City's breach of its duties under this Agreement. 55. MATERIALITY AND WAIVER OF BREACH City and Contractor agree that each requirement, duty, and obligation set forth in these Agreement is substantial and important to the formation of this Agreement. City's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 56. ACCEPTANCE AND FINAL PAYMENT Upon receipt of written notice from Contractor that the Work is ready for final inspection and acceptance, Project Manager shall, within ten (10) working days, make an inspection thereof. If City's Project Manager find the Work acceptable, the requisite documents have been submitted and the requirements of the Agreement fully satisfied, and all conditions of the permits and regulatory agencies have been met, a Final Certificate for Payment (Exhibit 2) shall be issued by City's Project Manager, over its signature, stating that the requirements of the Agreement have been performed and the Work is ready for acceptance under the terms and conditions thereof. Before issuance of the Final Certificate for Payment, Contractor shall deliver to City's Project Manager a complete release of all liens arising out of this Agreement, or receipts in full in lieu thereof; an affidavit certifying that all suppliers and Sub -Contractors have been paid in full and that all other indebtedness connected with the Work has been paid, and a consent of the surety to final payment; and Application for Payment. Contractor shall deliver the written approval by DERM of the Contractor's Site Assessment Report and Contamination Assessment Plan. The acceptance of final payment shall constitute a waiver of all claims by Contractor, except those previously made in strict accordance with the provisions of the Agreement and identified by Contractor as unsettled at the time of the application for final payment. 57. RESOLUTION OF CONTRACT DISPUTES Contractor 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 initially submitted to the Director for resolution. Upon receipt of the submittal from the Contractor, the Director shall render a decision within fourteen (14) calendar days. Where a mutually satisfactory resolution cannot be reached the Contractor may submit the dispute to the City Manager or his/her designee for resolution. Where a mutual resolution cannot be reached between the Contractor and the City Manager or designee, the Contractor, prior to being entitled to seek judicial relief shall comply with Article 58 of this Agreement, 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. Contractor shall not be entitled to seek judicial relief unless: • it has first received City Manager's written decision, approved by the City Commission if applicable, or • a period of thirty (30) days has expired after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation, or - period of ultant's Initials City's Initials Page 20 of 32 City contract No. 8-35002 (75) days has expired where City Manager's decision is subject to City Commission approval; and • mediation of the dispute, as stipulated in Article 58, has not resulted in a mutual resolution; or • City has waived compliance with the procedure set forth in this Article by written instrument(s) signed by the City Manager. 58. 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 unresolved 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 share the costs of a certified Mediator on a 50/50 basis. The Contractor agrees to include such similar contract provisions with all Sub -Contractors retained for the Work, 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. 59. 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 Contractor's duties to indemnify the City under this Agreement where Contractor shall pay the City's reasonable attorney's fees. 60. INDEPENDENT CONTRACTOR Contractor is an independent contractor under this Agreement. Services provided by Contractor pursuant to this Agreement shall be subject to the supervision of Contractor. In providing such services, neither Contractor nor its agents shall act as officers, employees, or agents of the City. Contractor further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Contractor, and agrees to provide workers' compensation insurance for any employee, or entity working for the Contractor rendering services to the City under this Agreement. This Agreement shall not constitute or make the parties a partnership or joint venture. 61. SUCCESSORS AND ASSIGNS The performance of this Agreement shall not be transferred pledged, sold, delegated or assigned, in whole or in part, by the Contractor without the written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Contractor, 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 Contractor's services are unique in nature and any transference without City Commission approval shall be cause for the City to nullify this Agreement. Any assignment without the City's consent shall be null and void. The Contractor shall have no recourse from such cancellation. The 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 ultant's Initials City's Initials Page 21 of 32 City Contract No. 8-35002 satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. The Contractor 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. 62. THIRD PARTY BENEFICIARIES Neither Contractor nor the City intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. 63. JOINT PREPARATION- 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, article, 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 or Article, unless the reference is made to a particular 64. AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City Manager and Contractor. 65. SEVERABILITY In the event the any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights of either party, such party may elect, at its option, to terminate this Agreement in its entirety. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 66. ENTIRE AGREEMENT This Agreement, as it may be amended from time to time, represents the entire and integrated agreement between the City and the Contractor 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 suttant's Initials City's Initials Page 22 of 32 City Contract No. 835002 67. 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. IN WITNESS WHEREOF, the parties have set their hands and seals on the day and year first above written. "City" City Of Miami, a municipal ATTEST: corporation 7a a-a3 -off it yPriscilla A. Thompson, City Clerk ATTEST: Print Name: 13.)r'kov�L` Title: Corp 0 rr_ke- cr APPROVED AS TO FORM AND Pedro G. Herna dez, P.E., City Manager / "Contractor" Intercounty Laboratories-USL, Inc. a Delaware corporation By: Print Name: Mark E. Lynch, J Title: Chief Operations Officer -PPROVED AS TO INSURANCE CO • RECTNESS: REQUIREMENTS: Q.l ernandez LeeAnn Brehm ney Risk Management Administrator THE CITY REQUIRES THREE (3) FULLY -EXECUTED AGREEMENTS, FOR DISTRIBUTION. nsultant's Initials Page 23 of 32 City Contract No. 9-35002 City's initials ATTACHMENT A Environmental Assessment Proposal Dated November 15, 2006 Consultant's Initials City's Initials Page 24 of 32 City Contract No. B_ vn2