HomeMy WebLinkAboutAgreementovi OF
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CITY OF MIAMI
DEPARTMENT OF CAPITAL IMPROVEMENTS
PROGRAM
PROFESSIONAL SERVICES AGREEMENT
Service Category
Contract Type
Project (if applicable)
CONSULTANT
Architectural and Landscape Architectural Design Services
Continuing Services for Miscellaneous Projects
Roberto Clemente Park Community Center, B-30172
Astorino
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 4
ARTICLE 2 GENERAL CONDITIONS 5
2.01 TERM' 5
2.02 OPTION TO EXTEND: 5
2.03 SCOPE OF SERVICES 5
2.04 COMPENSATION 5
ARTICLE 3 PERFORMANCE 5
3.01 PERFORMANCE AND DELEGATION 5
3.02 REMOVAL OF UNSATISFACTORY PERSONNEL 5
3.03 CONSULTANT KEY STAFF 5
3.04 TIME FOR PERFORMANCE 6
ARTICLE 4 SUBCONSULTANTS 6
4.01 GENERAL 6
4.02 SUB -CONSULTANT RELATIONSHIPS 6
4.03 CHANGES TO SUBCONSULTANTS 6
ARTICLE 5 DEFAULT 6
5.01 GENERAL 6
5.02 CONDITIONS OF DEFAULT 6
5.03 TIME TO CURE DEFAULT; FORCE MAJEURE 7
ARTICLE 6 TERMINATION OF AGREEMENT 7
6.01 CITY'S RIGHT TO TERMINATE 7
6.02 CONSULTANT'S RIGHT TO TERMINATE 7
6.03 TERMINATION DUE TO UNDISCLOSED LOBBYIST OR AGENT 7
ARTICLE 7 DOCUMENTS AND RECORDS 7
7.01 OWNERSHIP OF DOCUMENTS ' 7
7.02 DELIVERY UPON REQUEST OR CANCELLATION 7
7.03 RE -USE BY CITY 8
7.04 NONDISCLOSURE 8
7.05 MAINTENANCE OF RECORDS 8
ARTICLE 8 INDEMNIFICATION 8
ARTICLE 9 INSURANCE 8
9.01 COMPANIES PROVIDING COVERAGE 8
9.02 VERIFICATION OF INSURANCE COVERAGE 8
9.03 FORMS OF COVERAGE 8
9.03-2 Professional Liability Insurance 9
9.03-3 Worker's Compensation Insurance 9
9.03-4 Sub -Consultant Compliance 9
9.04 MODIFICATIONS TO COVERAGE 9
ARTICLE 10 MISCELLANEOUS 9
10.01 AUDIT RIGHTS 9
10.02 ENTIRE AGREEMENT 9
10.03 SUCCESSORS AND ASSIGNS 9
CIP Contract No. 07-749 Page 1
TABLE OF CONTENTS (CONTINUED)
10.05 APPLICABLE LAW AND VENUE OF LITIGATION 10
10.06 NOTICES 10
10.07 INTERPRETATION 10
10.08 JOINT PREPARATION 10
10.09 PRIORITY OF PROVISIONS 10
10.10 MEDIATION - WAIVER OF JURY TRIAL 10
10.11 TIME 10
10.12 COMPLIANCE WITH LAWS 11
10.12-1 Non -Discrimination 11
10.13 NO PARTNERSHIP 11
10.14 DISCRETION OF DIRECTOR 11
10.15 RESOLUTION OF CONTRACT DISPUTES: 11
10.16 INDEPENDENT CONTRACTOR: 11
ATTACHMENT A - SCOPE OF WORK 15
ARTICLE Al GENERAL 15
A1.01 WORK ORDERS 15
A1.02 SCOPE OF SERVICES 15
A1.03 NON EXCLUSIVE RIGHT 16
A1.04 PAYMENTS 16
ARTICLE A2 ARCHITECTURAL AND ENGINEERING SERVICES 16
SCHEDULE Al. - SUBCONSULTANTS 27
SCHEDULE A2. - KEY STAFF 27
SCHEDULE A3 - RESERVED 28
ATTACHMENT B - COMPENSATION AND PAYMENTS 40
ARTICLE B1 METHOD OF COMPENSATION 40
B1.01 COMPENSATION LIMITS 40
B1.02 CONSULTANT NOT TO EXCEED 40
ARTICLE B2 WAGE RATES 40
B2.01 FEE BASIS 40
B2.02 EMPLOYEES AND JOB CLASSIFICATIONS 40
82.03 MULTIPLIER 40
B2.04 CALCULATION 40
B2.05 EMPLOYEE BENEFITS AND OVERHEAD 40
B2.06 ESCALATION 40
ARTICLE 83 COMPUTATION OF FEES AND COMPENSATION 2
B3.01 LUMP SUM: 2
B3.02 HOURLY RATE FEES 2
B3.03 PERCENTAGE OF CONSTRUCTION COST: 2
133.04 REIMBURSABLE EXPENSES 3
B3.05 FEES FOR ADDITIVE or DEDUCTIVE ALTERNATES: 3
B3.06 FEES for ADDITIONAL SERVICES 3
B3.07 PAYMENT EXCLUSIONS 3
B3.08 FEES RESULTING FROM PROJECT SUSPENSION 3
ARTICLE B4 PAYMENTS TO THE CONSULTANT 3
B4.01 PAYMENTS GENERALLY 3
B4.02 FOR COMPREHENSIVE BASIC SERVICES 3
B4.03 BILLING - HOURLY RATE 4
B4.04 PAYMENT FOR ADDITIONAL SERVICES & REIMBURSABLE EXPENSES 4
B4.05 DEDUCTIONS 4
ARTICLE B5 REIMBURSABLE EXPENSES: 4
B5.01 GENERAL 4
B5.02 REIMBURSEMENTS TO SUB -CONSULTANTS 4
ARTICLE B6 COMPENSATION FOR REUSE OF PLANS AND SPECIFICATIONS 5
B6.01 GENERAL 5
SCHEDULE 81 - WAGE RATES SUMMARY 6
Page 2
.1l'OF
`.77 CITY OF MIAMI
,,, DEPARTMENT OF CAPITAL IMPROVEMENTS PROGRAM
PROFESSIONAL SERVICES AGREEMENT
fC0_ rt°
Service Category Architectural Design Services
Contract Type Continuing Services for Miscellaneous Projects
Project (if applicable) Roberto Clemente Park Community Center, 8-30172
CONSULTANT Astorino, Inc.
Consultant Office Location
Golden Bear Plaza
11770 US Highway One Suite 205
Palm Beach Gardens, Florida 33408
City Authorization Resolution Number 07-0379
THIS AGREEMENT made this 1tlh day of I•eCernber in the year 2007 by and
between THE CITY OF MIAMI, FLORIDA, a Municipal Corporation of the State of Florida,
hereinafter called the "CITY," and Astorino, Inc., a for profit Corporation of the State of Florida,
hereinafter called the "CONSULTANT."
RECITAL
A. The City issued a Request for Qualifications ("RFQ") No. 06-07-010 on April 18,
2007 for the provision of Architectural Design Services
on a continuing basis for miscellaneous projects ("Services") and CONSULTANT's proposal
("Proposal"), in response thereto, was selected as one of the most qualified for the provision of
said Services. The RFQ and the Proposal are sometimes referred to herein, collectively, as the
Solicitation Documents, and are by this reference expressly incorporated into and made a part
of this Agreement as if set forth in full
B. WHEREAS, the City, through action of the City Manager and/or the City
Commission, as applicable, has selected the CONSULTANT in accordance with Section
287.055, Florida Statutes, (Consultants' Competitive Negotiation Act), and the applicable
provisions of the City Procurement Ordinance, to provide the professional services as described
herein.
WITNESSETH, that the CITY and the CONSULTANT, for the considerations herein set
forth, agree as follows:
Page 3
ARTICLE 1 DEFINITIONS
1.01 ADDITIONAL SERVICES: Any Work
defined as such in a Work Order, secured in
compliance with Florida Statutes and City Code.
1.02 ATTACHMENTS: The Attachments to this
Agreement are expressly incorporated by reference
and made a part of this Agreement as if set forth in
full
1.03 BASE FEE: The amount of compensation
mutually agreed upon for the completion of 'Basic
Services.
1.04 BASIC SERVICES: Those services
designated as such in a Work Order.
1.05 CITY COMMISSION: The legislative body of
the City of Miami.
1.06 CITY MANAGER: The duly appointed chief
administrative officer of the City of Miami.
1.07 CITY OR OWNER: The City of Miami,
Florida, a Florida municipal corporation, the public
agency which is a party hereto and for which this
contract is to be performed. In all respects
hereunder, City's performance is pursuant to City's
position as the OWNER of the project. In the event
the City exercises its regulatory authority as a
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 contract. The
City of Miami may be referred to herein as "OWNER"
or "CITY". For the purposes of this Agreement,
"CITY" without modification shall mean the CITY
MANAGER.
1.08 CONSULTANT: The individual, partnership,
corporation, association, joint venture, or any
combination thereof, of properly registered
professional architects, landscape architects and/or
engineers, which has entered into the Agreement to
provide professional services to the CITY.
1.09 CONTRACTOR: An individual, partnership,
corporation, association, joint venture, or any
combination thereof, which has entered into a
contract with the CITY for construction of City
facilities and incidentals thereto.
1.10 DIRECTOR: The Director of the City
Department designated herein who has the authority
and responsibility for managing the specific project or
projects covered under this Agreement. Unless
otherwise specified herein or in a Work Order, for the
purpose of this Agreement, the Director is the top
PROFESSIONAL SERVICES AGREEMENT
administrator of the Department of Capital
Improvements and Transportation or designee.
1.11 INSPECTOR: An employee of the City or of a
consulting firm hired by the City and assigned by the
CITY to make observations of Work performed by a
Contractor.
1.12 NOTICE TO PROCEED: Same as
"Authorization to Proceed? A duly authorized written
letter or directive issued by the Director or Project
Manager acknowledging that all conditions precedent
have been met and/or directing that CONSULTANT
may begin work on a Project or a specific task of a
Project as outlined in the SCOPE of WORK of a
WORK ORDER.
1.13 PROJECT MANAGER: An employee or
representative of the CITY assigned by the Director to
manage and monitor the Work to be performed under
this Agreement and the construction of a project as a
direct representative of the CITY.
1.14 PROJECT: The construction, alteration and/or
repair, and all services and incidentals thereto, of a
City facility as contemplated and budgeted by the
CITY. The PROJECT or PROJECTS shall be further
defined in the SCOPE OF SERVICES and/or Work
Order issued pursuant to this Agreement.
1.15 PROFESSIONAL SERVICES: Those
services within the scope of the practice of
architecture, professional engineering, landscape
architecture, or registered surveying and mapping, as
applicable, as defined by the laws of the State of
Florida, or those performed by any architect,
professional engineer, landscape architect, or
registered surveyor or mapper in connection with his
or her professional employment or practice. These
services may be abbreviated herein as "architectural/
engineering services" or "professional services", as
applicable, which are within this definition.
1.16 RISK ADMINISTRATOR: The City's Risk
Management Administrator, or designee, or the
individual named by the City Manager to administer
matters relating to insurance and risk of loss for the
City.
1.17 SCOPE OF WORK: A comprehensive
description of the activities, tasks, design features,
objectives, deliverables and milestones required for
the completion of Project or an assignment with
sufficient detail to allow a reasonably accurate
estimation of resources necessary for its completion.
1.18 SUBCONSULTANT: A person or
organization of properly registered professional
architects, landscape architects, engineers,
registered surveyor or mapper, and/or other
professional specialty that has entered into a written
Page 4
agreement with the CONSULTANT to furnish
specified professional services for a Project or task.
1.19 WAGE RATES: The effective direct expense
to CONSULTANT and/or SUB -CONSULTANT, on an
hourly rate basis, for employees in the specified
professions and job categories assigned to provide
services under this Agreement that justify and form
the basis for professional fees regardless of actual
manner of compensation.
1.20 WORK ORDER: A written document issued
by the CITY to the CONSULTANT authorizing the
performance of specific professional services for a
defined Project or Projects providing sufficient detail
of the Scope of Work, including the identified tasks,
deliverables, time for completion, and the amount of
compensation authorized for such services. The
Work Order form provided herein may be amended
by the CITY during the term of this Agreement.
1.21 WORK: also known as the Scope of Work, the
task(s) identified in a Work Order
ARTICLE 2 GENERAL CONDITIONS
2.01 TERM:
The term of this Agreement shall be for two (2)
year(s) commencing on the effective date hereof.
This specified term is intended for administrative and
budget control purposes and is not to be considered
or interpreted as a time limitation.
2.02 OPTION TO EXTEND:
The CITY, by action of the CITY MANAGER, shall
have the option to extend the term for 2 additional
period(s) of one (1) year(s) each, subject to continued
satisfactory performance as determined by the
Director, and to the availability and appropriation of
funds. City Commission authorization of this
Agreement includes delegation of authority to the
CITY MANAGER to administratively approve said
extensions provided that the compensation limits set
forth in 2.04 are not exceeded.
2.03 SCOPE OF SERVICES
CONSULTANT agrees to provide the Services as
specifically described and under the special terms
and conditions set forth in Attachment "A" hereto,
which by this reference is incorporated into and made
a part of this Agreement.
2.04 COMPENSATION
2.04-1 Compensation Limits The amount of
compensation payable by the CITY to
CONSULTANT shall generally be a lump
sum or not to exceed fee, based on the rates
and schedules establised in Attachment B
hereto, which by this reference is
incorporated into this Agreement; provided,
however, that in no event shall the amount
PROFESSIONAL SERVICES AGREEMENT
of compensation exceed ($ $500,000 )
in total over the term of the Agreement and
any extension(s), unless explicitly approved
by action of the CITY COMMISSION and put
into effect by written amendment to this
Agreement. The City may, at its sole
discretion use other compensation
methdologies.
2.04-2 Payments
Unless otherwise specifically provided in Attachment
B, payment shall be made within thirty (30) days after
receipt of CONSULTANT'S invoice, which shall be
accompanied by sufficient supporting documentation
and contain sufficient detail, to allow a proper audit of
expenditures, should City require one to be
performed. If CONSULTANT is entitled to
reimbursement of travel expenses, then all bills for
travel expenses shall be submitted in accordance
with Section 112.061, Florida Statutes.
ARTICLE 3 PERFORMANCE
3.01 PERFORMANCE AND DELEGATION
The services to be performed hereunder shall be
performed by the CONSULTANT`s own staff, unless
otherwise provided in this Agreement, or approved by
the CITY. Said approval shall not be construed as
constituting an agreement between the CITY and said
other person or firm.
3.02 REMOVAL OF UNSATISFACTORY
PERSONNEL
DIRECTOR or designee may make written request to
CONSULTANT for the prompt removal and
replacement of any personnel employed or retained
by the CONSULTANT, or any Sub-CONSULTANTs or
subcontractors, or any personnel of any such Sub-
CONSULTANTs or subcontractors engaged by the
CONSULTANT to provide and perform services or
Work pursuant to the requirements of this
Agreement. The CONSULTANT shall respond to
CITY within fourteen (14) calendar days of receipt of
such request with either the removal and replacement
of such personnel or written justification as to why
that may not occur. All decisions involving personnel
will be made by CONSULTANT.
3.03 CONSULTANT KEY STAFF
The parties acknowledge that CONSULTANT was
selected by CITY, in part, on the basis of
qualifications of particular staff identified in
CONSULTANT's response to CITY's solicitation,
hereinafter referred to as "Key Staff". CONSULTANT
shall ensure that Key Staff are available for Work
hereunder as long as said Key Staff Is in
CONSULTANT's employ. CONSULTANT will obtain
prior written approval of Director or designee to
change Key Staff. CONSULTANT shall provide
Director, or designee with such information as
Page 5
necessary to determine the suitability of proposed
new Key Staff. Director will act reasonably in
evaluating Key Staff qualifications.
3.04 TIME FOR PERFORMANCE
The CONSULTANT agrees to start all Work
hereunder upon receipt of an Notice to Proceed
issued by the DIRECTOR and to complete each
assignment, task or phase within the time stipulated
in the Notice to Proceed. Time is of the essence with
respect to performance of this Agreement.
A reasonable extension of the time for completion of
various assignments, tasks or phases will be granted
by the CITY should there be a delay on the part of the
CITY in fulfilling its obligations under this Agreement
as stated herein. Such extension of time shall not be
cause for any claim by the CONSULTANT for extra
compensation.
ARTICLE 4 SUBCONSULTANTS
4.01 GENERAL
4.01-1 A SUB -CONSULTANT is a person or
organization of properly registered professional
architects, landscape architects, engineers,
registered surveyors or mapper, and/or other
qualified professional who has entered into a
written agreement with the CONSULTANT to
furnish professional services under this
Agreement, that was identified as part of the
consulting team in the competitive selection
process by which CONSULTANT was chosen to
perform the services under this Agreement, and
as such, is identified and listed in Schedule Al
attached hereto and incorporated by reference.
4.01-2 A Specialty SUB -CONSULTANT is a
person or organization that has, with the consent
of the DIRECTOR, entered into a written
agreement with the CONSULTANT to furnish
unique and/or specialized professional services
necessary for a project or task described under
Additional Services. Such Specialty Sub -
Consultant shall be in addition to those identified
in Schedule Al.
4.02 SUB -CONSULTANT RELATIONSHIPS
4.02-1 All services provided • by the
SUBCONSULTANTS shall be performed
pursuant to appropriate written agreements
between the CONSULTANT and the SUB-
CONSULTANTs, which shall contain provisions
that preserve and protect the rights of the CITY
under this Agreement.
4.02-2 Nothing contained in this Agreement
shall create any contractual or business
relationship between the CITY and the
PROFESSIONAL SERVICES AGREEMENT
SUBCONSULTANTS. The CONSULTANT
acknowledges that SUBCONSULTANTS are
entirely under his direction, control, supervision,
retention and/or discharge.
4.03 CHANGES TO SUBCONSULTANTS
The CONSULTANT shall not change any SUB -
CONSULTANT listed in Schedule Al without prior
written approval by the Director, in response to a
written request from the CONSULTANT stating the
reasons for any proposed substitution. Such
approval shall not be unreasonably withheld,
conditioned, or delayed by the Director.
ARTICLE 5 DEFAULT
5.01 GENERAL
If CONSULTANT fails to comply with any term or
condition of this Agreement, or fails to perform any of
its obligations hereunder, then CONSULTANT shall
be in default. Upon the occurrence of a default
hereunder the CITY, in addition to all remedies
available to it by law, may immediately, upon written
notice to CONSULTANT, terminate this Agreement
whereupon all payments, advances, or other
compensation paid by the CITY to CONSULTANT
while CONSULTANT was in default shall be
immediately returned to the City. CONSULTANT
understands and agrees that termination of this
Agreement under Tis section shall not release
CONSULTANT from any obligation accruing prior to
the effective date of termination.
In the event of termination due to default, in addition
to the foregoing, CONSULTANT shall be liable to the
City for all expenses incurred by the CITY in
preparing and negotiating this Agreement, as well as
all costs and expenses incurred by the CITY in the re -
procurement of the Services, including consequential
and incidental damages. In the event of Default,
CiTY may also suspend or withhold reimbursements
from CONSULTANT until such time as the actions
giving rise to default have been cured.
5.02 CONDITIONS OF DEFAULT
A finding of Default and subsequent termination for
cause may include, without limitation, any of the
following:
5.02-1 CONSULTANT fails to obtain the
insurance or bonding herein required.
5.02-2 CONSULTANT fails to comply, in a
substantial or material sense, with any of its
duties under this Agreement, with any terms or
conditions set forth in this Agreement or in any
agreement it has with the CITY, beyond the
specified period allowed to cure such default.
5.02-3 CONSULTANT fails to commence
the WORK within the time provided or
Page 6
contemplated' herein, or fails to complete the
WORK in a timely manner as required by this
Agreement and/or stated in a WORK ORDER
issued pursuant to this Agreement.
5.03 TIME TO CURE DEFAULT; FORCE
MAJEURE
CITY shall provide written notice to CONSULTANT as
to a finding of default, and CONSULTANT shall take
all necessary action to cure said default within thirty
(30) days of receipt of said notice, after which time
the CITY shall terminate the Agreement. The CITY at
its sole discretion, may allow additional days to
perform any required cure if CONSULTANT provides
written justification deemed reasonably sufficient.
Should any such failure on the part of CONSULTANT
be due to a condition of Force Majeure as that term is
interpreted under Florida law, then CITY may allow an
extension of time reasonably commensurate with the
cause of such failure to perform or cure.
ARTICLE 6 TERMINATION OF
AGREEMENT
6.01 CITY'S RIGHT TO TERMINATE
The 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 the CITY. The CONSULTANT shall be paid in
accordance with provisions of Attachment B, provided
that said documentation is tumed over to CITY within
ten (10) business days of termination. Failure to
timely deliver the documentation shall be cause to
withhold any payments due without recourse by
CONSULTANT until all documentation is delivered to
the CITY.
6.01-1 This Agreement may be cancelled
when, in the opinion of the City Commission,
termination is necessary to protect the interests
of public health, safety or general welfare.
6.01-2 CONSULTANT shall have no
recourse or remedy from a termination made by
the CITY except to retain the fees already
disbursed as compensation for the WORK that
was performed in complete compliance with the
Agreement, as full and final settlement of any
claim, action, demand, cost, charge or
entitlement it may have, or will, have against the
CITY, its officials or employees.
6.02 CONSULTANT'S RIGHT TO TERMINATE
The CONSULTANT shall have the right to terminate
this agreement, in writing, following breach by the
City, if breach of contract has not been corrected
PROFESSIONAL SERVICES AGREEMENT
within sixty (60) days from the date of the City's
receipt of a written statement from CONSULTANT
specifying its breach of its duties under this
agreement.
6.03 TERMINATION DUE TO
UNDISCLOSED LOBBYIST OR AGENT
CONSULTANT warrants that it has not employed or
retained any company or person, other than a bona
fide employee working solely for the CONSULTANT
to solicit or secure this Agreement and that he or she
has not paid or agreed to pay any person, company,
corporation, individual, or firm, other than a bona fide
employee working solely for the CONSULTANT any
fee, commission, percentage, gift, or other
consideration contingent upon or resulting from the
award or making of this Agreement.
For the breach or violation of this provision, the CITY
shall have the right to terminate the agreement
without liability and, at its discretion, to deduct from
the contract price, or otherwise recover, the full
amount of such fee, commission, percentage, gift, or
consideration.
ARTICLE 7 DOCUMENTS AND
RECORDS
7.01 OWNERSHIP OF DOCUMENTS '
All tracings, plans, drawings, specifications, maps,
computer files, and/or reports prepared or obtained
under this Agreement, as well as all data collected,
together with summaries and charts derived
therefrom, willl be considered works made for hire
and will become the property of the CITY upon
completion or termination of the Agreement without
restriction or limitation on their use, and will be made
available, on request, to CITY at any time during the
performance of such services and/or upon completion
or termination of this Agreement. CONSULTANT shall
not copyright any material and products or patent
any invention developed under this Agreement. The
CITY shall have the right to visit the site for inspection
of the work and the products of CONSUTLANT at any
time. The CONSULTANT shall be permitted to retain
copies, including reproducible copies, solely for
information and reference in connection with the
CITY's use and occupancy of the Project
7.02 DELIVERY UPON REQUEST OR
CANCELLATION
Failure of the CONSULTANT to promptly deliver all
such documents to the Director within ten (10) days
of cancellation, or within ten (10) days of request by
the CITY, shall be just cause for the CITY to withhold
payment of any fees due CONSULTANT until
CONSULTANT delivers all such documents.
CONSULTANT shall have no recourse from these
requirements.
Page 7
7.03 RE -USE BY CfTY
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 the CITY's sole
option, and by virtue of signing this agreement
CONSULTANT agrees to such re -use in accordance
with this provision without the necessity of further
approvals, compensation, fees or documents being
required and without recourse for such re -use. The
CONSUTLANT will not be liable for use by the CITY
of plans; documents, studies, or other data for any
purpose other than that intended by the terms and
conditions of this Agreement
7.04 NONDISCLOSURE
To the extent allowed by law, CONSULTANT agrees
not to divulge, furnish or make available to any third
person, firm or organization, without CITY's prior
written consent, or unless incident to the proper
performance of the CONSULTANT's obligations
hereunder, or in the course of judicial or legislative
proceedings where such information has been
properly subpoenaed, any non-public information
concerning the services to be rendered by
CONSULTANT hereunder, and CONSULTANT shall
require all of its employees, agents, sub-
CONSULTANTs and subcontractors to comply with
the provisions of this paragraph.
7.05 MAINTENANCE OF RECORDS
CONSULTANT will keep adequate records and
supporting documentation, which concern or reflect
its services hereunder. Records subject to the
provisions of Public Record Law, Florida Statutes
Chapter 119, shall be kept in accordance with statute.
Otherwise, the records and documentation will be
retained by CONSULTANT for a minimum of three (3)
years from the date of termination of this Agreement
or the date the Project is completed, whichever is
later. CITY, or any duly authorized agents or
representatives of CITY, shall have the right to audit,
inspect, and copy all such records and
documentation as often as they deem necessary
during the period of this Agreement and during the
three (3) year period noted above; provided, however
such activity shall be conducted only during normal
business hours.
ARTICLE 8 INDEMNIFICATION
The CONSULTANT shall hold harmless, indemnify
and defend the CITY, its officials and employees
harmless from any and all claims, losses and causes
of actions which may arise out of the performance of
this Agreement as a result of any act of negligence or
negligent omission, recklessness, or intentionally
wrongful conduct of the CONSULTANT or the Sub-
CONSULTANTs. The CONSULTANT shall pay all
claims and losses of any nature whatsoever in
connection therewith and shall defend all project
related suits, in the name of the CITY when
PROFESSIONAL SERVICES AGREEMENT
applicable, and shall pay all costs, including without
limitation reasonable attorneys and appellate
attomey's fees, and judgments which may issue
thereon. The CONSULTANT'S obligation under this
paragraph shall not be limited in any way by the
agreed upon contract price, or the CONSULTANT'S
limit of, or lack of, sufficient insurance protection and
shall apply to the full extent that it is caused by the
negligence, act, omission, recklessness or intentional
wrongful conduct of the CONSULTANTS, its agents,
servants, or representatives.
ARTICLE 9 INSURANCE
The CONSULTANT shall not start Work under this
Agreement until the CONSULTANT has obtained all
insurance required hereunder and the CITY's Risk
Manager has approved such insurance.
9.01 COMPANIES PROVIDING COVERAGE
All insurance policies shall be issued by companies
authorized to do business under the laws of the State
of Florida and satisfactory to the Risk Administrator.
All companies shall have a Florida resident agent and
be rated at least A(X), as per A.M. Best Company's
Key Rating Guide, latest edition.
9.02 VERIFICATION OF INSURANCE
COVERAGE
The CONSULTANT shall furnish certificates of
insurance to the Risk Administrator for review and
approval prior to the execution of this Agreement. The
Certificates shall clearly indicate that the
CONSULTANT has obtained insurance of the type,
amount and classification required by these
provisions, in excess of any pending claims at the
time of contract award to the CONSULTANT.
CONSULTANT shall maintain coverage with equal or
better rating as identified herein for the term of this
contract. CONSULTANT shall provide written notice
to the City's Department of Risk Management of any
material change, cancellation and/or notice of non -
renewal of the insurance within 30 days of the
change. CONSULTANT shall fumish a copy of the
insurance policy or policies upon request of the Risk
Administrator,
CONSULTANT shall furnish copies of insurance
policies pertaining to this Agreement to RiSK
ADMINISTRATOR within ten (10) days of written
request.
9.03 FORMS O.F COVERAGE
9.03-1 Comprehensive General Liability and
Automobile Liability
Coverage shall have minimum limits of
$1,000,000 per Occurrence, Combined single
Limit Bodily injury Liability and Property Damage
Liability. General Aggregated Limit shall have a
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minimum limit of $2,000,000. This shall include
Premises and Operations, Independent
Contractors, Products and Completed
Operations, Broad Form Property Damage, XCU
Coverage, and Contractual Liability. Automobile
coverage including hired, borrowed or non -
owned autos, limits of Liability, Bodily injury,
Damage Liability for any one accident
$1,000,000. The City of Miami shall be named
an additional insured on both of these
coverages.
9.03-2 Professional Liability Insurance
The CONSULTANT shall maintain Professional
Liability Insurance including Errors and
Omissions coverage in the minimum amount of
$1,000,000 per occurrence, combined single
limits, providing for all sums which the
CONSULTANT shall be legally obligated to pay
as damages for claims arising out of the services
performed by the CONSULTANT or any person
employed by the CONSULTANT in connection
with this Agreement. This insurance shall be
maintained for at least one year after completion
of the construction and acceptance of any project
covered by this Agreement.
9.03-3 Worker's Compensation Insurance
The CONSULTANT shall maintain Worker's
Compensation Insurance in compliance with
Florida Statutes, Chapter 440, as amended, and
Employee's Liability with a minimum limit of
$500,000 each occurrence.
9.03-4 Sub -Consultant Compliance
CONSULTANT shall ensure that all Sub-
CONSULTANTs comply with these same
insurance requirements.
9.04 MODIFICATIONS TO COVERAGE
The RISK ADMINISTRATOR or his/her authorized
designee reserves the right to require modifications,
increases, or changes in the required insurance
requirements, coverage, deductibles or other
insurance obligations by providing a thirty (30) day
written notice to the Consultant in accordance with
§10.06 herein. CONSULTANT shall comply with such
requests unless the insurance coverage is not then
readily available in the national market, and may
request additional consideration from City
accompanied by justification.
ARTICLE 10 MISCELLANEOUS
10.01 AUDIT RIGHTS
The CITY reserves the right to audit the
CONSULTANT's accounts during the performance of
this Agreement and for three (3) years after final
payment under this Agreement. The CONSULTANT
agrees to furnish copies of any records necessary, in
PROFESSIONAL SERVICES AGREEMENT
the opinion of the Director, to approve any requests
for payment by the CONSULTANT.
10.02 ENTIRE AGREEMENT
This Agreement, as it may be amended from time to
time, represents the entire and integrated agreement
between the CITY and the CONSULTANT and
supersedes all prior negotiations, representations or
agreements, written or oral. This Agreement may not
be amended, changed, modified, or otherwise altered
in any respect, at any time after the execution hereof,
except by a written document executed with the same
formality and equal dignity herewith. Waiver by either
party of a breach of any provision of this Agreement
shall not be deemed to be a waiver of any other
breach of any provision of this Agreement.
10.03 SUCCESSORS AND ASSIGNS
The performance of this Agreement shall not be
transferred pledged, sold, delegated or assigned, in
whole or in part, by the CONSULTANT without the
written consent of the CiTY, acting by and through its
City Commission. It is understood that a sale of the
majority of the stock or partnership shares of the
CONSULTANT, a merger or bulk sale, an assignment
for the benefit of creditors shall each be deemed
transactions that would constitute an assignment or
sale hereunder requiring prior City approval.
The CONSULTANT's services are unique in nature
and any transference without CITY COMMISSION
approval shall be cause for the CITY to cancel this
Agreement. The CONSULTANT shall have no
recourse from such cancellation. The City may
require bonding, other security, certified financial
statements and tax retums from any proposed
Assignee and the execution of an Assignment/
Assumption Agreement in a form satisfactory to the
City Attorney as a condition precedent to considering
approval of an assignment.
The CONSULTANT and the CITY each binds one
another, their partners, successors, legal
representatives and authorized assigns to the other
party of this Agreement and to the partners,
successors, legal representatives and assigns of
such party in respect to all covenants of this
Agreement.
10.04 TRUTH -IN -NEGOTIATION
CERTIFICATE
In compliance with the CONSULTANT'S Competitive
Negotiation Act, for any Project to be compensated
under the Lump Sum method, the CONSULTANT
shall certify that wage rates and other factual unit
costs supporting the compensation are accurate,
complete, and current at the time of Notice to
Proceed. The original Project price and any addition
thereto will be adjusted to exclude any significant
sums by which the CITY determines the project price
was increased due to inaccurate, incomplete or non-
current wage rates and other factual unit costs. All
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such price adjustments will be made within 1 year
following the end of the Project.
10.05 APPLICABLE LAW AND VENUE OF
LITIGATION
This agreement shall be interpreted and construed in
accordance with and governed by the laws of the
State of Florida. Any suit or action brought by any
party, concerning this agreement, or arising out of
this agreement, shall be brought in Miami -Dade
County, Florida. Each party shall bear its own
attorney's fees except in actions arising out of
CONSULTANT's duties to indemnify the City under
ARTICLE 8 where CONSULTANT shall pay the City's
reasonable attorney's fees.
10.06 NOTICES
Whenever either party desires to give notice unto the
other, such notice must be in writing, sent by
registered United States mail, return receipt
requested, addressed to the party for whom it is
intended at the place last specified; and the place for
giving of notice shall remain such until it shall have
been changed by written notice in compliance with
the provisions of this paragraph. For the present, the
parties designate the following as the respective
places for giving of notice:
FOR City OF Miami:
Mr. Gary Fabrikant
Assitant Director
City of Miami
Department of Capital Improvements Program
(CIP)
444 S.W. 2nd Ave., - 8th FI
Miami, Florida 33130
With a copy to:
Mr. David Mendez
Assistant Director
Department of Capital Improvements Program
(CIP)
444 S.W. 2nd Ave., - 8th FI
Miami, Florida 33130
For Consultant:
Mr. James Centanni, Principal
Astorino
Golden Bear Plaza
11770 US Highway One Suite 205
Palm Beach Gardens, Florida 33408
10.07 INTERPRETATION
The language of this Agreement has been agreed to
by both parties to express their mutual intent and no
rule of strict construction shall be applied against
either party hereto. The headings contained in this
Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of
this Agreement. All personal pronouns used in this
Agreement shall include the other gender, and the
PROFESSIONAL SERVICES AGREEMENT
singular shall include the plural, and vice versa,
unless the context otherwise requires. Terms such
as "herein," "hereof," "hereunder," and "hereinafter"
refer to this Agreement as a whole and not to any
particular sentence, paragraph, or section where they
appear, unless the context otherwise requires.
Whenever reference is made to a Section or Article of
this Agreement, such reference is to the Section or
Article as a whole, including all of the subsections of
such Section, unless the reference is made to a
particular subsection or subparagraph of such
Section or Article.
10.08 JOINT PREPARATION
Preparation of this Agreement has been a joint effort
of the City AND CONSULTANT and the resulting
document shall not, solely as a matter of judicial
construction, be construed more severely against one
of the parties than any other. -
10.09 PRIORITY OF PROVISIONS
If there is a conflict or inconsistency between any
term, statement, requirement, or provision of any
exhibit attached hereto, any document or events
referred to herein, or any document incorporated into
this Agreement by reference and a term, statement,
requirement, or provision of this Agreement, the term,
statement, requirement, or provision contained in this
Agreement shall prevail and be given effect.
10.10 MEDIATION - WAIVER OF JURY TRIAL
In an effort to engage in a cooperative effort to
resolve conflict which may arise during the course of
the design and /or construction of the subject
project(s), and/or following the completion of the
projects(s), the parties to this Agreement agree all
disputes between them shall be submitted to non-
binding mediation prior to the initiation of litigation,
unless otherwise agreed in writing by the parties. A
certified Mediator, who the parties find mutually
acceptable, will conduct any Mediation Proceedings
in Miami -Dade County, State of Florida. The parties
will split the costs of a certified mediator on a 50/50
basis. The CONSULTANT agrees to include such
similar contract provisions with all
SubCONSULTANTs and/or independent contractors
and/or CONSULTANTs retained for the project(s),
thereby providing for non -binding mediation as the
primary mechanism for dispute resolution.
In an effort to expedite the conclusion of any litigation
the parties voluntarily waive their right to jury trial or
to file permissive counterclaims in any action arising
under this Agreement.
10.11 TIME
Time is of the essence in this Agreement.
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10.12 COMPLIANCE WiTH LAWS
CONSULTANT shall comply with all applicable laws,
codes, ordinances, rules, regulations and resolutions
including, without limitation, the Americans with
Disabilities Act ("ADA"), as amended, and all
applicable guidelines and standards in performing its
duties, responsibilities, and obiigations related to this
Agreement. The CONSULTANT represents and
warrants that there shall be no unlawful discrimination
as provided by law in connection with the
performance of this agreement.
10.12-1 Non -Discrimination
CITY warrants and represents that it does not
and will not engage in discriminatory practices
and that there shall be no discrimination in
connection with CONSULTANT's performance
under this Agreement on account of race, color,
sex, religion, age, handicap, marital status or
national origin. CONSULTANT further covenants
that no otherwise qualified individual shall, solely
by reason of his/her race, color, sex, religion,
age, handicap, marital status or national origin,
be excluded from participation in, be denied
services, or be subject to discrimination under
any provision of this Agreement.
10.12-2 OSHA COMPLIANCE
The CONSULTANT warrants that it will comply
with all safety precautions as required by federal,
state or local laws, rules, regulations and
ordinances. The CITY reserves the right to
refuse CONSULTANT access to CITY property,
including project jobsites, if CONSULTANT
employees are not properly equipped with safety
gear in accordance with OSHA regulations or if a
continuing pattern of non-compliance with safety
regulations is exhibited by CONSULTANT.
10.12-3 ADA COMPLIANCE
CONSULTANT shall affirmatively comply with all
applicable provisions of the Americans with
Disabilities Act CADA") in the course of providing
any work, labor or services funded by the City,
including Titles I & II of the ADA (regarding
nondiscrimination on the basis of disability) and
all applicable regulations, guidelines and
standards. Additionally -the CONSULTANT shall
take affirmative steps to -insure nondiscrimination
in employment of disabled persons.
10.13 NO PARTNERSHIP
CONSULTANT is an independent contractor. This
Agreement does not create a joint venture,
partnership or other business enterprise between the
parties. The CONSULTANT has no authority to bind
the City to any promise, debt, default, or undertaking
of the CONSULTANT.
PROFESSIONAL SERVICES AGREEMENT
10.14 DISCRETION OF DIRECTOR
Any matter not expressly provided for herein dealing
with the CITY or decisions of the CITY shall be within
the exercise of the reasonable professional discretion
of the Director or the Director's authorized designee.
10.15 RESOLUTION OF CONTRACT
DISPUTES:
CONSULTANT understands and agrees that all
disputes between it and the City based upon an
alleged violation of the terms of this Agreement by
the City shall be submitted to the City Manager for
his/her resolution, prior to CONSULTANT being
entitled to seek judicial relief in connection therewith.
Should the amount of compensation hereunder
exceed $500,000, the City Manager's decision shall
be approved or disapproved by the City Commission.
CONSULTANT shall not be entitled to seek judicial
relief unless:
(i) it has first received City Manager's written
decision, approved by the City Commission
if applicable, or
(ii) a period of sixty (60) days has expired after
submitting to the City Manager a detailed
statement of the dispute, accompanied by alt
supporting documentation, or a period of
(90) days has expired where City Manager's
decision is subject to City Commission
approval; or
(Ili) City has waived compliance with the
procedure set forth in this section by written
instrument(s) signed by the City Manager.
10.16 INDEPENDENT CONTRACTOR:
Consultant has been procured and is being engaged
to provide services to the City as an independent
contractor, and not as an agent or employee of the
City. Accordingly, Consultant shall not attain, nor be
entitled to, any rights or benefits under the Civil
Service or Pension Ordinances of the City, nor any
rights generally afforded classified or unclassified
employees. Consultant further understands that
Florida Workers' Compensation benefits available to
employees of the City are not available to Consultant,
and agrees to provide workers' compensation
insurance for any employee or agent of Consultant
rendering services to the City under this Agreement.
10.17 CONTINGENCY CLAUSE:
Funding for this Agreement is contingent on the
availability of funds and continued authorization for
program activities and the Agreement is subject to
amendment or termination due to lack of funds,
reduction of funds and/or change in regulations, upon
thirty (30) days notice.
Page 11
PROFESSIONAL SERVICES AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
WITNESS/ATTEST
ATTEST:
CONSULTANT Secretary
(Affirm CONSULTANT Seal, if available)
ATTEST:
1,52
Priscilla Thompson, City Clerk
APPROVED AS TO INSURANCE
RE O EM
LeAnn Brehm, Director
Risk Management Department
CONSULTANT
ASTORINO
Ce,a1N•qt •
James G. Centanni, AIA, Principal
CITY OF MIA
State of Florida
(Corporate Seal)
a municipal corporation of the
edro G. Herna#".E., City Manager
APPROVED AS TO LEGAL FORM AND
CORRECTNESS:
Jorge L. Fern ndez, City Attorney
, j
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