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HomeMy WebLinkAboutExhibitCity OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS PROGRAM PROFESSIONAL SERVICES AGREEMENT Service Category Contract Type Consultant Transportation Program Support Services for the Transportation and Transit Program, RFQ No 06-07-038 Continuing Services for the Transportation Program HNTB Corporation TABLE OF CONTENTS ARTICLE 1 DEFINITIONS 5 ARTICLE 2 GENERAL CONDITIONS 6 2.01 TERM• 6 2.02 OPTION TO EXTEND 6 2.03 SCOPE OF SERVICES 6 2.04 COMPENSATION 6 ARTICLE 3 PERFORMANCE 7 3.01 PERFORMANCE AND DELEGATION 7 3.02 REMOVAL OF UNSATISFACTORY PERSONNEL 7 3.03 CONSULTANT KEY STAFF 7 3.04 TIME FOR PERFORMANCE 7 ARTICLE 4 SUB -CONSULTANTS 7 4.01 GENERAL 7 4.02 SUB -CONSULTANT RELATIONSHIPS 7 4.03 CHANGES TO SUB -CONSULTANTS 7 ARTICLE 5 DEFAULT 8 5.01 GENERAL 8 5.02 CONDITIONS OF DEFAULT 8 5.03 TIME TO CURE DEFAULT - FORCE MAJEURE 8 ARTICLE 6 TERMINATION OF AGREEMENT 8 6.01 CITY'S RIGHT TO TERMINATE 8 6.02 CONSULTANT'S RIGHT TO TERMINATE 8 6.03 TERMINATION DUE TO UNDISCLOSED LOBBYIST OR AGENT 8 ARTICLE 7 DOCUMENTS AND RECORDS 9 7.01 OWNERSHIP OF DOCUMENTS ' 9 7.02 DELIVERY UPON REQUEST OR CANCELLATION 9 7.03 RE -USE BY CITY 9 7.04 NONDISCLOSURE 9 7.05 MAINTENANCE OF RECORDS 9 ARTICLE 8 INDEMNIFICATION 9 ARTICLE 9 INSURANCE 10 9.01 COMPANIES PROVIDING COVERAGE 10 9.02 VERIFICATION OF INSURANCE COVERAGE 10 9.03 FORMS OF COVERAGE 10 9.04 MODIFICATIONS TO COVERAGE 10 ARTICLE 10 MISCELLANEOUS 10 10.01 AUDIT RIGHTS 10 10.02 ENTIRE AGREEMENT 10 10.03 SUCCESSORS AND ASSIGNS 11 10.04 TRUTH -IN -NEGOTIATION CERTIFICATE 11 10.05 APPLICABLE LAW AND VENUE OF LITIGATION 11 IA- 7'N TABLE OF CONTENTS (CONTINUED) 10.06 NOTICES 11 10.07 INTERPRETATION 11 10.08 JOINT PREPARATION 12 10.09 PRIORITY OF PROVISIONS 12 10.10 MEDIATION - WAIVER OF JURY TRIAL 12 10.11 PERFORMANCE EVALUATIONS 12 10.12 TIME 12 10.13 COMPLIANCE WITH LAWS 12 10.14 NO PARTNERSHIP 13 10.15 DISCRETION OF DIRECTOR 13 10.16 RESOLUTION OF CONTRACT DISPUTES: 13 10.17 INDEPENDENT CONTRACTOR. 13 ATTACHMENT A - SCOPE OF WORK 17 ARTICLE Al GENERAL 17 A1.01 RANGE OF SERVICES 17 A1.02 COOPERATIVE WORK 17 A1.03 NON-EXCLUSIVE RIGHT 17 A1.04 PAYMENTS 17 ARTICLE A2 OVERVIEW OF TRANSPORTATION PROGRAM SUPPORT SERVICES 18 A2.01 PRIMARY SERVICES 18 A2.02 SPECIALTY SERVICES 18 ARTICLE A3 PRIMARY SERVICES 18 A3.01 ADMINISTRATIVE PROGRAM MAN-AGEMENT 18 A3.02 PRODUCTION MANAGEMENT SERVICES 18 ARTICLE A4 STREETCAR PROJECT Error! Bookmark not defined. A4.01 STREETCAR PROJECT Error! Bookmark not defined. ARTICLE A5 STAFFING 19 A5.01 CORE PROGRAM STAFF 19 A5.02 SUPPLEMENTAL AND SPECIALTY STAFF 20 A5.03 STAFFING CHANGES 20 ARTICLE A6 ASSIGNMENT OF WORK 20 A6.01 ANNUAL WORK PROGRAM 20 A6.02 WORK ORDERS 21 SCHEDULE Al. - Consultant Team 22 SCHEDULE A2. - KEY STAFF 23 ATTACHMENT B - COMPENSATION AND PAYMENTS 40 ARTICLE B1 METHOD OF COMPENSATION 40 B1.01 COMPENSATION LIMITS 40 81.02 CONSULTANT NOT TO EXCEED 40 ARTICLE B2 WAGE RATES 40 B2.01 FEE BASIS 40 B2.02 EMPLOYEES AND JOB 40 CLASSIFICATIONS Error! Bookmark not defined. B2.03 MULTIPLIER 40 B2.04 CALCULATION 40 B2.05 ESCALATION 40 ARTICLE B3 COMPUTATION OF FEES AND COMPENSATION 2 B3.01 LUMP SUM. 2 B3.02 HOURLY RATE FEES 2 B3.03 COST PLUS FIXED FEE 3 B3.04 REIMBURSABLE EXPENSES 3 B3.05 FEES for SPECIALTY SERVICES 3 B3.06 PAYMENT EXCLUSIONS 3 B3.07 FEES RESULTING FROM PROJECT SUSPENSION 3 ARTICLE B4 PAYMENTS TO CONSULTANT 3 B4.01 PAYMENTS GENERALLY 3 B4.02 MONTHLY PROGRESS REPORT 4 TABLE OF CONTENTS (CONT HUED) ARTICLE B5 REIMBURSABLE EXPENSES: 4 B5.01 GENERAL 4 B5.02 TYPES OF REIMBURSABLE EXPENSES 4 B5.03 AUTHORIZATION 4 B5.04 DEFINITIONS and CATEGORIES 4 B5.05 REIMBURSEMENTS TO SUB -CONSULTANTS 6 ARTICLE B6 COMPENSATION FOR REUSE OF WORK PRODUCT 6 B6.01 GENERAL 6 SCHEDULE B1 - WAGE RATES SUMMARY Error! Bookmark not defined. SCHEDULE B-4.2 EXPENSE VOUCHER 7 City OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS PROGRAM PROFESSIONAL SERVICES AGREEMENT Service Category Contract Type Consultant Consultant Office Location City Authorization Transportation Program Support Services for the Transportation Program, RFQ No 06-07-038 Continuing Services for the Transportation Program HNTB Corporation 8700 West Flagler Street, Suite 200, Miami, FL 33174 Resolution Number THIS AGREEMENT made this _ day of in the year 2008 by and between THE City OF MIAMI, FLORIDA, hereinafter called the "City," and (Consultant's Name), hereinafter called the "Consultant." RECITAL A. The City issued a Request for Proposals ("RFP") No. 06-07-038 on November 5, 2007 for the provision of Transportation Program Support Services for the Transportation Program ("Program or Services") and Consultant's proposal ("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 Manager and/or the City Commission, as applicable, has selected the Consultant in accordance with 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: PROFESSIONAL SERVICES AGREEMENT ARTICLE 1 DEFINITIONS 1.01 Annual Work Program means a comprehensive report of goals, strategies, tasks, activities, personnel, and costs to be undertaken by the Program Manager for a given year under this Agreement. 1.02 Attachments mean 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 City Commission means the legislative body of the City of Miami. 1.04 City Manager means the duly appointed chief administrative officer of the City of Miami. 1.05 City or Owner means the City of Miami, Florida, a Florida municipal corporation, the public agency which is a party hereto and for which this Agreement is to be performed. In all respects hereunder, City's performance is pursuant to City's position as the Owner of the Project. In the event the City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, codes, laws and ordinances shall be deemed to have occurred pursuant to City's authority as a governmental body and shall not be attributable in any manner to City as a party to this Agreement. The City of Miami shall be referred to herein as "City". For the purposes of this Agreement, "City without modification shall mean the City Manager. 1.06 Consultant means a corporation association, joint venture, or any combination thereof, of skilled and qualified transportation professionals, administrative, technical, and other support, and duly registered professional architects, landscape architects and/or engineers, which has entered into this Agreement to provide Professional Services to the City. 1.07 Contractor means 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. 1.08 Core Program Staff means Staff positions assigned on a full time basis to the Program by the Program Coordinator with the Director or designee's approval, to serve as an extension of the City's staff typically working inside the City's Miami Riverside Center (MRC) or other requested City facility. 1.09 Director means the Chief Operating Officer of the City who has the authority and responsibility for managing the specific Program or Projects covered under this Agreement. The Director, in his/her sole discretion, shall have the authority to delegate responsibilities herein to staff of the Capital Improvements and Transportation offices and shall do so in writing. 1.10 Inspector means 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. 1.11 Notice to Proceed means a written letter or directive issued by the Director, designee, or Project Manager acknowledging that all conditions precedent have been met and/or directing that Consultant may begin Work on a particular Program assignment, Project, or a specific task of a Project as outlined in the Annual Work Program, the Capital Plan, or a Work Order. 1.12 Primary Services means those Services considered by City to be fundamental to the successful management of the Program as stated in the RFP, and in Attachment A of this Agreement. 1.13 Professional Services means those Services provided by the Consultant to assist the City in the execution and implementation of the City's Transportation Program, including, without limitation, all administrative, technical, and management activities undertaken as part of Primary Service or Specialty Services. 1.14 Program means the City's multi -year Capital Improvements and Transportation Programs, prepared on an annual basis that details the planned financial resources and implementation schedule and strategies for the City's capital and transportation projects over a five (5) year period. 1.15 Project means the specific Scope of Services contained in a Work Order or Work Order Proposal. The Project(s) shall be further defined in the Scope of Services and/or Work Order issued pursuant to this Agreement. 1.16 Project Manager means an employee or representative of the City assigned by the Director or designee to manage and monitor the Program Manager's Work to be performed under this Agreement. 1.17 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 loss for the City. 1.18 Scope of Service(s) or Services means 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. PROFESSIONAL SERVICES AGREEMENT 1.19 Specialty Services means those Services which may not be directly tied to the overall management of the Transportation Program but to some unique, critical, and/or possibly large scale, element of the Transportation Program that requires expertise that is unavailable from within the City's personnel resources. 1.20 Sub -Consultant means a person or organization that has entered into a written agreement with the Consultant to furnish specified Professional Services for a Project or Program task. 1.21 Supplemental Program Staff means Staff of Program Manager and/or Sub -Consultant, whom are not part of the Core Staff, who are assigned to the Program on a limited full-time or long term part-time basis. May also be referred to as "Supplemental Staff". 1.22 Transportation Program Support Services or TPSS means Services provided by the Consultant including, without limitation, all administrative, technical, and management activities associated with supporting the City as determined by the Director or designee in the execution and implementation of the City's Transportation and Transit Program. 1.23 Wage Rates means the effective direct expense to Consultant and/or Sub -Consultant, on an hourly rate basis as reported to the Internal Revenue Service, 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. 1.24 Work Order means a written document approved by the Director or designee authorizing the performance of Services. 1.25 Work also known as the Scope of Work means the tasks and activities generally identified in the Annual Work Program or the task(s) and activities 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 with the option to extend as stipulated in Article 2.02. This specified term is intended for administrative and budget control purposes and is not to be considered or interpreted as a lime limitation_ During the term of this Agreement the Consultant is precluded from entering into anti other contracts or agreements with the City to provide Services related to or contained in the Transportation Program. Where the Consultant has existing contracts or agreements the Consultant shall be precluded from providing TPSS for such contracts or agreements 2.02 OPTION TO EXTEND The City shall have the option to extend the term for two (2) additional period(s) of one (1) year each, subject to continued satisfactory performance of Program Manager as determined by the Director or designee, and to the availability and appropriation of funds. The City Manager is authorized to execute extensions of this Agreement unless otherwise provided by, amendment or legislation. 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 City makes no assurances that any Work Orders will be issued to the Consultant. The maximum amount of compensation payable by the City to Consultant will be a not to exceed fee, based on any monthly fee for Core Program Staff and on the rates and schedules established in this Agreement for Supplemental Staff. In no event shall the amount of compensation not to exceed Eight Hundred Fifty Thousand dollars $850,000.00 in total for Primary and Specialty over the initial 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 methodologies. 2.04-2 Payments Unless otherwise specifically provided in Attachment B, payment shall be made within forty-five (45) days after receipt of Consultant's invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should City require one to be performed. If Consultant is entitled to reimbursement of travel expenses, then all bills for travel expenses shall be submitted in accordance with Section 112.061, Florida Statutes. Consultant shall utilize standard invoice provided by City for the submission of invoices. PROFESSIONAL SERVICES AGREEMENT 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, in writing by the Director or designee. 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 any personnel of any such Sub - Consultants 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. Such request shall solely relate to said employees work under this Agreement and to their employment with the City. 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 or under contract. Consultant will obtain prior written acceptance of Director or designee to change Key Staff. Consultant shall provide Director, or designee with such information as necessary to determine the suitability of proposed new Key Staff. Director or designee will act reasonably in evaluating Key Staff qualifications. Such acceptance shall not constitute any responsibility or liability for the individual's ability to perform or continued employment with the Consultant or Sub-Consultant(s). 3.04 TIME FOR PERFORMANCE The City shall have the sole right to determine which aspects of the Services, Work, Work Orders, or Projects the Consultant shall proceed on and in what order. Time is of the essence with respect to performance of this Agreement. The Consultant agrees to start all Work hereunder upon receipt of a Notice to Proceed issued by the Director and to complete each assignment, task or phase within the time stipulated in the Notice to Proceed. The City's written approval of an Annual Work Program as provided herein shall be considered as a Notice to Proceed. A reasonable extension of the time for completion of various assignments, tasks or phases may 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, or in the event that circumstances beyond the reasonable control of the Consultant delay the Consultant's performance. Such extension of time shall not be cause for any claim by the Consultant for extra compensation except to the extent mutually agreed upon by the City and the Consultant. ARTICLE 4 SUB -CONSULTANTS 4.01 GENERAL 4.01-1 A Sub -Consultant is a firm that was identified as part of the Consultant's team in the competitive selection process by which Consultant was chosen to perform the Services under this Agreement, and has entered into an agreement with the Consultant to perform such Services. Said Sub -Consultants are 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 or designee, entered into a written agreement with the Consultant to furnish unique and/or specialized Professional Services necessary for a Project or the Work. Such Specialty Sub -Consultant shall be in addition to those identified in Schedule Al. Work Orders for Specialty Services shall identify all Sub -Consultants who shall perform said Services under the Work Order. 4.02 SUB -CONSULTANT RELATIONSHIPS 4.02-1 All Services provided by the Sub -Consultants 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 Sub -Consultants. The Consultant acknowledges that Sub -Consultants are entirely under his direction, control, supervision, retention and/or discharge. 4.03 CHANGES TO SUB -CONSULTANTS The Consultant shall not add or modify or change any Sub -Consultant listed in Schedule Al without prior written approval by the Director or designee, in response to a written request from the Consultant stating the reasons for any proposed substitution. PROFESSIONAL SERVICES AGREEMENT ARTICLE 5 DEFAULT 5,01 GENERAL If Consultant fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Consultant shall be in default. Upon the occurrence of a default hereunder the City, in addition to all remedies available to it by law, may immediately upon written notice to Consultant, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Consultant while Consultant was in default shall be immediately returned to the City. Consultant understands and agrees that termination of this Agreement under this section shall not release Consultant from any obligation accruing prior to the effective date of termination. In the event of termination due to default, in addition to the foregoing, Consultant shall be liable to the City for all expenses incurred by the City in preparing and negotiating this Agreement, as well as all costs and expenses incurred by the City in the re -procurement of the Services, including consequential and incidental damages. In the event of Default, City may also suspend or withhold reimbursements from Consultant until such time as the actions giving rise to default have been cured. A termination for default that is subsequently determined to be in error may be then automatically considered to be a termination for convenience in accordance with Article 6. 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 or maintain 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 Services within the time provided or contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement. 5.03 TIME TO CURE DEFAULT - FORCE MAJEURE City through the Director or designee shall provide written notice to Consultant as to a finding of default, and Consultant shall take all necessary action to cure said default within time stipulated in said notice, after which time the City may terminate the Agreement. The Director or designee at his/her 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 the 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, including the Director or designee has the right to terminate this Agreement for any reason or no reason, upon ten (10) days' written notice (Termination for Convenience). Upon termination of this Agreement, all charts, sketches, studies, drawings, and other documents, including all electronic copies related to Work authorized under this Agreement, whether finished or not, must be turned over to the Director or designee. The Consultant shall be paid in accordance with provisions of Attachment B, provided that said documentation is turned over to Director or designee 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 Director or designee. 6.01-1 Consultant shall have no recourse or remedy from a termination made by the City except to retain or receive as applicable, the fees earned as compensation for the Services that were performed in complete compliance with the Agreement, as full and final settlement of any claim, action, demand, cost, charge or entitlement it may have, or will have against the City, its officials or employees. 6.02 CONSULTANT'S RIGHT TO TERMINATE The Consultant shall have the right to terminate this agreement, in writing, following breach by the City, if breach of contract has not been corrected within sixty (60) days from the date of the City's receipt of a 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. PROFESSIONAL SERVICES 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 ' With the exception of previously existing proprietary items that are subject to licensing, all Work products, including, without limitation, all reports, studies, forms drawings, specifications, maps, and computer files, including all draft documents, prepared or obtained under this Agreement, as well as all data collected, together with summaries and charts derived there from, including all electronic digital copies will be considered works made for hire and are, provided Consultant has received payment for said documents, the property of the City, without restriction or limitation on their use, and will be made available, on request, to City at any time during the performance of 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 Consultant at any time. The Consultant shall be permitted to retain copies, including reproducible copies, solely for information and reference Use of the Work product produced under this Agreement by the Consultant requires the prior written consent of the City. 7.02 DELIVERY UPON REQUEST OR CANCELLATION Failure of the Consultant to promptly deliver all such documents, both hard copy and digital, to the Director or designee 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. 7.03 RE -USE BY CiTY With the exception of previously existing proprietary items that are subject to licensing, it is understood that all Consultant Work products, at the City's sole option, may be used by the City for any reasons or purpose and by virtue of signing this Agreement Consultant agrees to such re -use without the necessity of further approvals, compensation or fees and without recourse for such re -use. The Consultant will not be liable for re -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 Consultant agrees that it shall make no statements, press releases or publicity releases concerning this Agreement or its subject matter or otherwise disclose or permit to be disclosed, any of the data or other information obtained or furnished by the Consultant as part of or under this Agreement during the period of this Agreement without the prior written consent of the Director or designee. Such prior written consent shall be required unless such action is necessary for 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, or if it is reasonably necessary for the Consultant to defend itself against any suit or claim. Consultant shall require all of its employees, agents, Sub - Consultants and subcontractors to comply with the provisions of this Article. Consultant shall also have the right to include information about the Work performed under this Agreement in its marketing and business development materials. 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 five (5) 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 five (5) 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'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. This article shall survive the termination or expiration of the Agreement. PROFESSIONAL SERVICES AGREEMENT 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. AU companies shall have a Florida resident agent and be rated at least A(X), as per A.M. Best Company's Key Rating Guide, latest edition. 9.02 VERIFICATION OF INSURANCE COVERAGE The Consultant shall furnish certificates of insurance to the Risk Administrator for review and approval prior to the execution of this Agreement, The Certificates shall clearly indicate that the Consultant has obtained insurance of the type, amount and classification required by these provisions, in excess of any pending claims at the time of contract award to the Consultant. Consultant shall maintain coverage with equal or better rating as identified herein for the term of this contract. Consultant shall provide written notice to the City's Department of Risk Management of any material change, cancellation and/or notice of non -renewal of the insurance within 30 days of the change. Consultant shall furnish a copy of the insurance policy or policies upon request of the Risk Administrator. Consultant shall furnish copies of insurance policies pertaining to this Agreement to Risk Administrator within ten (10) days of a written request. 9.03 FORMS OF COVERAGE 9.03-1 Comprehensive General Liability and Automobile Liability Coverage shall have minimum limits of $1,000,000 per Occurrence, Combined single Limit Bodily Injury Liability and Property Damage Liability. General Aggregated Limit shall have a minimum limit of $2,000,000. This shall include Premises and Operations, Independent Contractors, Broad Form Property Damage, 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 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 commensurate with their specific level of involvement or responsibility on the overall Program, as determined by Risk Administrator. 9.04 MODIFICATIONS TO COVERAGE The Risk Administrator or his/her authorized designee reserve 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 Article 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 five (5) years after final payment under this Agreement. The Consultant agrees to furnish copies of any records necessary, in the opinion of the Director or designee, 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. PROFESSIONAL SERVICES 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, or 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 formsatisfactory 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 The Consultant hereby certifies by execution of this Agreement that the wage rates and other factual unit costs supporting the compensation to be paid under this Agreement are accurate, complete, and current. The TPSS fees and any addition thereto will be adjusted to exclude any significant sums by which the City determines the Project price was increased due to inaccurate, incomplete or non -current wage rates and other factual unit costs. All such price adjustments will be made within 1 year following the end of the Agreement. 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: Bill Anido Chief Operating Officer City of Miami Office of Transportation 444 S.W. 2nd Ave., - 10th FI Miami, Florida 33130 With copies to: City Attorney City of Miami 444 S.W. 2nd Ave., - 9Fl Miami, Florida 33130-1910 Gary Fabrikant Assistant Director City of Miami Department of Capital Improvements 444 S.W. 2nd Ave., - 8`" FI Miami, Florida 33130-1910 For HNTB Alan Brick -Turin, PE 8700 West Flagler Street Suite 200 Miami, Florida 33174 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 PROFESSIONAL SERVICES AGREEMENT reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Ail personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section, unless the reference is made to a particular subsection or subparagraph of such Section or Article. 10.08 JOINT PREPARATION Preparation of this Agreement has been a joint effort of the City and Consultant and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than any other. 10.09 PRIORITY OF PROVISIONS If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, or provision of this Agreement, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given effect. 10.10 MEDIATION - WAIVER OF JURY TRIAL In an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and /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 Sub -Consultants 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 PERFORMANCE EVALUATIONS Consultant's performance shall be evaluated on a continual basis as well as through a formal annual review. Informal performance evaluations will occur whenever the Director or designee has concerns regarding the performance of the Services provided under this Agreement. OFFICE OF TRANSPORTATION will provide the Consultant with a copy of any performance evaluation and discuss areas of concern and how they should be addressed. The Director or designee at their discretion, may require the Consultant to provide a corrective action plan for addressing any issues or concerns. 10.12 TIME Time is of the essence in this Agreement. 10.13 COMPLIANCE WiTH LAWS Consultant shall comply with ail applicable laws, codes, ordinances, rules, regulations and resolutions including, without limitation, the Americans with Disabilities Act ("ADA"), as amended, and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement. The Consultant represents and warrants that there shall be no unlawful discrimination as provided by law in connection with the performance of this agreement. 10.13-1 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. 10.13-2 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. PROFESSIONAL SERVICES AGREEMENT 10.13.3 ADA COMPLIANCE Consultant shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City, including Titles I & 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. 10.14 NO PARTNERSHIP Consultant is an independent contractor. This Agreement does not create a joint venture, partnership or other business enterprise between the parties. The Consultant has no authority_ to. .bind the City to any promise, debt, default, or undertaking of the Consultant. 10.15 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 designee. 10.16 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 for resolution in the following manner. The initial step shall be for the Consultant to notify the City representatives identified in Article 10.06, Notices, in writing of the dispute and submit a copy to the City of Miami personnel identified in Article 10.06, Notices. Should the Consultant and the Office of Transportation representative designated in Article 10.06 fail to resolve the dispute, the Consultant shall submit their dispute in writing within five calendar days to the Director. Failure to submit such appeal of the written finding shall constitute acceptance of the finding by the Consultant. Upon receipt of said notification, the Director shall review the issues relative to the dispute and issue a written finding. Consultant must submit any further appeal in writing within five calendar days to the City Manager. Failure to submit such appeal of the written finding shall constitute Consultant's acceptance of the finding. Appeal to the City Manager for his/her resolution, is required prior to Consultant being entitled to seek judicial relief in connection therewith. Should -the -amount of compensation hereunder exceed $500,000, the City Manager's decision shall be approved or disapproved by the City Commission. Consultant shall not be entitled to seek judicial relief.unless: _ (i) it has first received City Manager's written decision, approved by the City Commission if applicable, or (ii) a period of sixty (60) days has expired after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation, or a period of (90) days has expired where City Manager's decision is subject to City Commission approval; or (iii) City has waived compliance with the procedure set forth in this section by written instrument(s) signed by the City Manager. Should the Consultant fail to follow the requirements of this Article in submitting a dispute, such dispute shall be rejected until such time as said dispute is submitted in accordance with the provisions of this Article. 10.17 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. 10.18 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. 10.19 THIRD PARTY BENEFICIARY Consultant and the City agree that it is not intended that any provision of this Agreement establishes a third party beneficiary giving or allowing any claim or right of action whatsoever by any third party under this Agreement. PROFESSIONAL SERVICES AGREEMENT IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. WITNESS/ATTEST Consultant, HNTB Corporation Signature Signature Print Name, Title Print Name, Title of Authorized Officer or Official ATTEST: (Corporate Seal) Consultant Secretary (Affirm Consultant Seal, if available) ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida Priscilla Thompson, City Clerk Pedro G. Hernandez, P.E., City Manager - APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: LeeAnn Brehm, Director Julio O. Bru, City Attorney Risk Management Department PROFESSIONAL SERVICES AGREEMENT CERTIFICATE OF AUTHORITY (IF CORPORATION) 1 HEREBY CERTIFY that at a meeting of the Board of Directors of , a corporation organized and existing under the laws s of the State of , held on the day of , a resolution was duly - passed -and- adopted authorizing (Name) as (Title) of the corporation to execute agreements on behalf of the corporation and providing that his/her execution thereof, attested by the secretary of the corporation, shall be the official act and deed of the corporation. I further certify that said resolution remains in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand this , day of , 20 Secretary: Print: CERTIFICATE OF AUTHORITY (IF PARTNERSHIP) I HEREBY CERTIFY that at a meeting of the Board of Directors of , a partnership organized and existing under the laws of the State of , held on the _day of - - -- a resolution was - duly_ passed and adopted authorizing (Name) as (Title) of the partnership to execute agreements on behalf of the partnership and provides that his/her execution thereof, attested by a partner, shall be the official act and deed of the partnership. I further certify that said partnership agreement remains in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand this , day of 20 Partner: Print: Names and addresses of partners: Name Street Address City State Zip PROFESSIONAL SERVICES AGREEMENT CERTIFICATE OF AUTHORITY (IF JOINT VENTURE) Joint ventures must submit a joint venture agreement indicating that the person signing this bid is authorized to signbid documents on behalf of the_ joint venture.If _ there is no joint venture agreement each member of the joint venture must sign the bid and submit the appropriate Certificate of Authority (corporate, partnership, or individual). CERTIFICATE OF AUTHORITY (IF INDIVIDUAL) I HEREBY CERTIFY that, I (Name) , individually and doing business as (d/b/a) (If Applicable) have executed and am bound by the terms of the Agreement to which this attestation is attached. IN WITNESS WHEREOF, I have hereunto set my hand this day of 20 Signed: Print: NOTARIZATION STATE OF ) ) SS: COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 , by who is personally known to me or who has produced as identification and who (did / did not) take an oath. SIGNATURE OF NOTARY PUBLIC STATE OF FLORIDA PRINTED, STAMPED OR TYPED NAME OF NOTARY PUBLIC