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HomeMy WebLinkAboutExhibitCity OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS PROFESSIONAL SERVICES AGREEMENT Service Category Contract Type Project (if applicable) Consultant Comprehensive Architectural and Engineering Project Specific Fire Station No. 1 Renovation RO Architects & Planners, Inc. TABLE OF CONTENTS ARTICLE 1 DEFINITIONS 3 ARTICLE 2 GENERAL CONDITIONS 4 2.01 TERM: 4 2.02 SCOPE OF SERVICES 4 2.03 COMPENSATION 4 ARTICLE 3 PERFORMANCE 5 3.01 PERFORMANCE AND DELEGATION 5 3.02 REMOVAL OF UNSATISFACTORY PERSONNEL 5 5 3.04 TIME FOR PERFORMANCE 5 3.05 DESIGN RESPONSIBILITIES 5 ARTICLE 4 SUBConsultantS 5 4.01 GENERAL 5 4.02 SUB -CONSULTANT RELATIONSHIPS 6 4.03 CHANGES TO SUBConsultantS 6 ARTICLE 5 DEFAULT 6 5.01 GENERAL 6 5.02 TIME TO CURE DEFAULT: FORCE MAJEURE 6 ARTICLE 6 TERMINATION OF AGREEMENT 6 6.01 City'S RIGHT TO TERMINATE 6 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 8 7.03 RE -USE BY City 8 7.04 NONDISCLOSURE 8 7.05 MAINTENANCE OF RECORDS 8 ARTICLE 8 INDEMNIFICATION 8 ARTICLE 9 INSURANCE 9 9.01 COMPANIES PROVIDING COVERAGE 9 9.02 VERIFICATION OF INSURANCE COVERAGE 9 9.03 FORMS OF COVERAGE 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 10 10.04 TRUTH -IN -NEGOTIATION CERTIFICATE 10 10.05 APPLICABLE LAW AND VENUE OF LITIGATION 10 10.06 NOTICES 10 10.07 INTERPRETATION 11 10.08 PRIORITY OF PROVISIONS 11 10.09 COMPLIANCE WITH LAWS 11 10.10 DISCRETION OF DIRECTOR 11 3.03 Consultant KEY STAFF Page 1 10.11 RESOLUTION OF CONTRACT DISPUTES 11 10.12 MEDIATION - WAIVER OF JURY TRIAL 11 10.13 INDEPENDENT CONTRACTOR 11 10.14 PERFORMANCE EVALUATION 11 10.15 CONTINGENCY CLAUSE 11 10.16 NO THIRD PARTY BENEFICIARY 12 ATTACHMENT A - SCOPE OF WORK 8 ARTICLE Al GENERAL 8 A1.01 RANGE OF SERVICES 8 A1.02 NON-EXCLUSIVE RIGHT 8 A1.03 PAYMENTS 8 ARTICLE A2 BASIC SERVICES 8 A2.01 Phase I - Programming and Schematic Design' 8 A2.02 Phase II - Design Development: 9 A2.03 Phase III - Construction Document Development 9 ARTICLE A3 ADDITIONAL SERVICES: 14 A3.01 GENERAL 14 ARTICLE A4 REIMBURSABLE EXPENSES 15 A4.01 GENERAL 15 A4.02 SUBConsultant REIMBUREMENTS 16 ARTICLE A5 CITY'S RESPONSIBILITIES 16 A5.01 PROJECT & SITE INFORMATION 16 A5.02 PROJECT MANAGEMENT 16 A5.03 CONSTRUCTION MANAGEMENT 16 A5.04 LEGALAND OTHER SERVICES 17 SCHEDULE Al - PROJECT DESCRIPTION 18 SCHEDULE A2 - SUBCONSULTANTS 19 SCHEDULE A3 - KEY STAFF 19 ATTACHMENT B - COMPENSATION AND PAYMENTS 1 ARTICLE B1 COMPENSATION FOR SERVICES 1 B1.01 COMPENSATION LIMITS 1 ARTICLE B2 WAGE RATES 1 B2.01 FEE BASIS 1 82.02 EMPLOYEES AND JOB CLASSIFICATIONS 1 B2.03 MULTIPLIER 1 B2.04 CALCULATION 1 ARTICLE B3 COMPUTATION OF FEES AND COMPENSATION 1 B3.01 LUMP SUM 1 B3.02 HOURLY RATE FEES 2 B3.03 REIMBURSABLE EXPENSES 2 B3.04 FEES FOR ADDITIVE or DEDUCTIVE ALTERNATES 2 B3.05 FEES for ADDITIONAL SERVICES 3 B3.06 PAYMENT EXCLUSIONS 3 B3.07 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 PAYMENT FOR ADDITIONAL SERVICES & REIMBURSABLE EXPENSES 4 ARTICLE B5 COMPENSATION FOR REUSE 4 B5.01 GENERAL 4 SCHEDULE B1 - WAGE RATES 4 Page 2 PROFESSIONAL SERVICES AGREEMENt City OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS PROFESSIONAL SERVICES AGREEMENT Service Category Contract Type Project (if applicable) Consultant Consultant Office Location City Authorization Comprehensive Architectural and Engineering Project Specific Fire Station No. 1 Renovation RO Architects & Planners, Inc Marina Lakes Business Park, 7310 SW 48th Street, Miami, Florida 33155 City Code Section 18-87 THIS AGREEMENT made this _ day of in the year 2006 by and between The City of Miami, Florida, hereinafter called the "City," and RO Architects, hereinafter called the "Consultant." In consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, the City of Miami and RO Architects & Planners, Inc. agree as follows: ARTICLE 1 DEFINITIONS 1.01 Additional Services means any Work defined as such in a Work Order, secured in compliance with Florida Statutes and City Code. 1.02 Attachments means 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 means the amount of compensation mutually agreed upon for the completion of Basic Services. 1.04 Basic Services means those services designated as such in this Agreement, including the Attachments hereto. 1.05 City Commission means the legislative body of the City of Miami. 1.06 City Manager means the duly appointed chief administrative officer of the City of Miami. 1.07 City 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 mariner to City as a party to this Agreement. For the purposes of this Agreement, "City" without modification shall mean the City Manager or Director, as applicable. 1.08 Consultant means the individual, partnership, corporation, association, joint venture, or any combination thereof, of properly registered professional architects, landscape architects and/or engineers, which has entered into this Agreement to provide professional services to the City. 1.09 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. 1.10 Director means 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. For the purpose of this Page 3 PROFESSIONAL SERIVCES AGREEMENT Agreement, the Director is the top administrator of the Department of Capital Improvements and Transportation or designee. 1.11 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. 1.12 Notice To Proceed means 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. 1.13 Project Manager means an employee or representative of the City assigned by the Director to manage and monitor the Work to be performed under this Agreement and the construction of the Project as a direct representative of the City. 1.14 Project means 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(s) shall be further defined in the Scope Of Services section of this Agreement. 1.15 Professional Services means those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as applicable, as defined by the laws of the State of Florida, or those performed by any architect, professional engineer, landscape architect, or registered surveyor or mapper in connection with his or her professional employment or practice. 1.16 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. 1.17 Scope Of Work or Work means a comprehensive description of the activities, tasks, design features, objectives, deliverables and milestones required for the completion of the Project as defined herein. 1.18 Subconsultant means a person or organization of properly registered professional architects, landscape architects, engineers, registered surveyor or mapper, and/or other professional specialty that has entered into a written agreement with the Consultant to furnish specified professional services for a Project or task. 1.19 Wage Rates means the effective direct expense to Consultant and/or Subconsultant, on an hourly rate basis, for employees in the specified professions and job categories assigned to provide services under this Agreement that justify and form the basis for professional fees regardless of actual manner of compensation. ARTICLE 2 GENERAL CONDITIONS 2.01 TERM: 2.01-1 Commencement The term of this Agreement shall commence upon execution of this Agreement and conclude upon the completion and acceptance of the Work by the Director unless terminated earlier as provided herein. 2.01-2 Time Time is of the essence in this Agreement. 2.02 SCOPE OF SERVICES Consultant agrees to provide the Services as specifically described and under this Agreement, including the special terms and conditions set forth in Attachment "A", which by are incorporated into and made a part of this Agreement. 2.03 COMPENSATION 2.03-1 Compensation Limits The maximum amount of compensation payable by the City to Consultant as a lump sum or not to exceed fee, is $241,165.61 based on a base fee of $176,652.61, reimberable Expenses of $30,000.00and $35,000.00 in additional services fees. This amount is based on the rates and schedules established in Attachment B and Schedule B1, which are incorporated into this Agreement. In no event shall the amount of compensation exceed said total amount unless explicitly approved by action of the City Manager or the City Commission, as may be applicable pursuant to Section 18-87 of the City Code, and put into effect by written amendment to this Agreement. 2.03-2 Payments Payment shall be made within thirty (30) days after receipt of an acceptable invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the 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. Page 4 PROFESSIONAL SERIVCES AGREEMENT ARTICLE 3 PERFORMANCE 3.01 PERFORMANCE AND DELEGATION The Professional Services to be performed hereunder shall be performed by the Consultant's own staff and the Subconsultants identified in this Agreement, unless otherwise approved in writing by the City. Said approval shall not be construed as constituting an agreement between the City and said other person(s) or firm. 3.02 REMOVAL OF UNSATISFACTORY PERSONNEL Director may make written request to Consultant for the prompt removal and replacement of any personnel employed or retained by the Consultant, or any Subconsultants, or any personnel of any such Subconsultants 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 five (5) working days of receipt of such request with either the removal and replacement of such personnel or written justification as to why that may not occur. All decisions involving personnel will be made by Consultant. 3.03 CONSULTANT KEY STAFF The parties acknowledge that Consultant was selected by the City, in part, on the basis of qualifications of particular staff identified in Consultant's response to City's solicitation, hereinafter referred to as "Key Personnel". Consultant shall ensure that Key Personnel as detailed in Schedule A-2 are available for Work hereunder as long as said Key Personnel are in Consultant's or Subconsultant's employ. Consultant will obtain prior written approval of Director or designee to change Key Personnel. Consultant shall provide Director, or designee with such information as necessary to determine the suitability of proposed new Key Personnel Director will act reasonably in evaluating Key Personnel qualifications. 3,04 TIME FOR PERFORMANCE 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. 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. 3.05 DESIGN RESPONSIBILITIES 3.05-1 Errors and Ommissions The Consultant shall be responsible to promptly make corrections to the Consultant's Work when the Consultant's Work is found to contain discrepancies, errors or omissions. All costs associated with corrections in the Consultant's Work, delays to the Work, including, but not limited to, loss of use, increased costs of construction, and damages associated with the Contractor's Work or the work of other Project participants, resulting from such discrepancies, errors or omissions shall be borne by the Consultant. 3.05-2Nonconforming Work The Consultant shall promptly give notice to the City of any defective or nonconforming Work of the Contractor or any other Project participant whenever discovered by the Consultant and whether before or after the date of Substantial Completion of the Contractor's Work. All Work is to be in compliance with applicable codes. 3.06 Meetings The Consultant shall schedule at a minimum weekly meetings with the Contractor, At each of these meetings, the Consultant and Contractor shall review the Project's budget, schedule, and scope along with the Consultant's progress to date on the respective phases of the Project and any special problems related to the continuing progress of the Project including but not limited to any outstanding RFIs, CPRs, and change orders. Consultant shall prepare and distribute all meeting minutes to participant present at the meetings. ARTICLE 4 SUBCONSULTANTS 4.01 GENERAL 4.01-1 A Subconsultant 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 Agreementa or subsequently by the Director, and as such, is identified and listed in Schedule Al attached hereto, 4.01-2 A Specialty Subconsultant 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 Page 5 PROFESSIONAL SERIVCES AGREEMENT necessary for the Project or task described under Additional Services. Such Specialty Sub -Consultant shall be in addition to those identified in Schedule Al. 4.02 SUBCONSULTANT RELATIONSHIPS 4.02.1 All services provided by the Subconsultants shall be performed pursuant to appropriate written agreements between the Consultant and the Subconsultants, which shall contain provisions that preserve and protect the rights of the City under this Agreement and which require all Subconsultants to comply with all applicable terms and conditions of the RFQ and all applicable federal, state, county, and local laws, rules, regulations, and ordinances. Subconsultants shall not be authorized or permitted to further subcontract any Work. 4.02.2 Nothing contained in this Agreement shall create any contractual or business relationship between the City and the Subconsultants. The Consultant acknowledges that Subconsultants are entirely under its direction, control, supervision, retention and/or discharge. 4.03 CHANGES TO SUBCONSULTANTS The Consultant shall not change any Subconsultants listed in Schedule Al without prior written approval by the Director, in response to a written request from the Consultant stating the reasons for any proposed substitution. Such approval shall not be unreasonably withheld, conditioned, or delayed by the Director. ARTICLE 5 DEFAULT 5.01 GENERAL If Consultant fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Consultant shall be In default. Upon the occurrence of a default hereunder the City, in addition to all remedies available to it by law, may immediately, upon written notice to Consultant, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Consultant while Consultant was in default shall be immediately returned to the City. Consultant understands and agrees that termination of this Agreement under this section shall not release Consultant from any obligation accruing prior to the effective date of termination. In the event of termination due to default, in addition to the foregoing, Consultant shall be liable to the City for ail 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 Work, including consequential and incidental damages. In the event of default, the City may also suspend or withhold reimbursements from Consultant until such time as the actions giving rise to default have been cured. 5.02 TIME TO CURE DEFAULT: FORCE MAJEURE City shall provide written notice to Consultant as to a finding of default, and Consultant shall take all necessary action to cure said default within fifteen (15) days of receipt of said notice. Failure to cure the default in the stipulated timeframe may result in the City Manager terminating this Agreement. The City Manager or Director may, in their sole discretion, extend in writing the timeframe for curing said default. 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. If the Consultant is delayed in performing any obligation under this Agreement due to a force majeure condition, the Consultant shall request a time extension from the City within two (2) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and shall not be cause for any claim by the Consultant for extra compensation unless Additional Services are required. ARTICLE 6 TERMINATION OF AGREEMENT 6.01 City'S RIGHT TO TERMINATE 6.01-1 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 turned over to City within ten (10) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Consultant until all documentation Is delivered to the City. 6.01.2 Consultant shall have no recourse or remedy from a termination made by the City except to retain the fees already disbursed or owing as compensation for the Work that was performed in complete compliance Page 6 PROFESSIONAL SERIVCES AGREEMENT 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 notice from Consultant specifying the City's breach of its duties under this Agreement. 6.03 TERMINATION DUE TO UNDISCLOSED LOBBYIST OR AGENT Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for 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. 6.04 NO CONFLICT OF INTEREST Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Consultant hereby certifies to City that no individual member of Consultant, no employee, and no Subconsultant assisting Consultant under this Agreement nor any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Consultant hereby represents and warrants to the City that throughout the term of this Agreement, Consultant, its employees and its Subconsultants will abide by this prohibition of the City Code. For the breach or violation of this provision, the City shall have the right to terminate the Agreement without delay. ARTICLE 7 DOCUMENTS AND RECORDS 7.01 OWNERSHIP OF DOCUMENTS All tracings, plans, drawings, specifications, maps, computer files, models and/or reports prepared or obtained under this Agreement, as well as all data collected, together with summaries and charts derived therefrom, wilt) be considered "work for hire "as such phrase is defined in Section 101 of Title 17 of the United States Code (Public Law 94-533 and all title, ownership and copyright privileges are and at all times shall be the property of the City without restriction or limitation on their use, and will be made available, on request, to the City at any time during the performance of such services and/or upon completion or termination of this Agreement. Consultant and its Subconsultants' electronic CADD (Computer Assisted Design and Drafting) files, tapes, disks, and similar items remain the property of the City. The Consultant will provide these electronic items upon the request of the City or upon completion/termination of this Agreement. The Consultant shall provide documents to others at the direction of the City consistent in content and format with normal document production as determined by the City. The City understands that the use and conversion of Electronic Data to an alternate format may not be accomplished without the potential for introduction of anomalies or errors and that changes or modifications by anyone other than the Consultant may result in adverse consequences that Consultant can neither predict nor control. Accordingly, the City agrees that Consultant shall not be liable for and hereby waives all claims arising out of or connected with (a) the use, modification or misuse by the City of such Electronic Data; or (b) the decline of accuracy or readability of the Electronic Data due to storage conditions, the passage of time, or otherwise; or (c) any use of said electronic data by any third parties receiving the electronic data from the City. The City agrees that the design documents to be provided by Consultant will contain certain standard Consultant component design details from the Consultant's Best Practices Detail Library, which standard component details shall remain the property of the Consultant. These details are repetitive in nature, not project -specific, function rather than form -oriented, and were not developed for or identifiable with the Work. Continued use by the Consultant will not compromise the complete transfer to the City of the unique features of the design for the Work and will not result in a compromise of the City's absolute right, title and ownership to the work product and design documents herein. 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. 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. Page 7 PROFESSIONAL SERIVCES AGREEMENT 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. 7.03 RE -USE BY CITY It is understood that all Consultant agreements and/or Work Orders for new work will include the provision for the re- use of plans and specifications, including construction drawings, at 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, and Subconsultants to comply with the provisions of this Article. 7.05 MAINTENANCE OF RECORDS Consultant will keep adequate records and supporting documentation, which concern or reflect its Work hereunder. Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with statute. Otherwise, the records and documentation will be retained by Consultant for a minimum of three (3) years from the date of termination of this Agreement or the date the Project is completed, whichever is later. City, or any 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 Consultant shall indemnify, defend and hold harmless the City, the Trust, and their officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including reasonable attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the Services contemplated by this Agreement (whether active or passive) of Consultant or its employees, agents, representatives, servants or Subconsultants (collectively referred to as "Consultant") which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive or in strict liability) of the Indemnities, or any of them, or (ii) the failure of the Consultant to comply materially with any of the requirements herein, or the failure of the Consultant to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement. Consultant expressly agrees to indemnify and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Consultant, or any of its Subconsultants, as provided above, for which the Consultant's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. Consultant further agrees to indemnify, defend and hold harmless the Indemnitees from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, in any way related, directly or indirectly, to Consultant's performance under this Agreement, compliance with which is left by this Agreement to Consultant, (ii) for any errors in the provisions of Services and for any fines which may result from the fault of Consultant, and (ill) any and all claims, and/or suits for labor and materials furnished by Consultant or utilized in the performance of this Agreement or otherwise. 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 Trust and the City when applicable, and shall pay all costs, including without limitation reasonable attorney's and appellate attorney's fees, and judgments which may issue thereon. The Consultant's obligation under this Agreement shall not be limited in any way by the agreed upon compensation, 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 negligent, act or omission, recklessness or intentional wrongful conduct of the Consultant, its agents, servants, representatives, or Subconsultants. Page 8 PROFESSIONAL SERIVCES AGREEMENT This section shall be interpreted to comply with Sections 725.06 and/or 725.08, Florida Statutes. Consultant's obligations to indemnify, defend, and hold harmless the lndemnitees shall survive the termination of this Agreement. Consultant understands and agrees that any and all liabilities regarding the use of any Subconsultant for Services related to this Agreement shall be borne solely by Consultant throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. ARTICLE 9 INSURANCE 9.01 COMPANIES PROVIDING COVERAGE All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and satisfactory to the Risk Administrator. All companies shall have a Florida resident agent and 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 award of this Agreeement to the Consultant. Consultant shall maintain coverage with equal or better rating as identified herein for the term of this Agreement. 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 the Risk Administrator within ten (10) days of 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 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 claim, 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 the 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 compensation for reimbursement of any additiional costs from the City. ARTICLE 10 MISCELLANEOUS 10.01 AUDIT RIGHTS The City reserves the right to audit the Consultant's accounts during the performance of this Agreement and for three (3) years after final payment under this Agreement. The Consultant agrees to furnish copies of any records necessary, in the opinion of the Director, to approve any requests for payment by the Consultant. 10.02 ENTIRE AGREEMENT Page 9 PROFESSIONAL SERIVCES 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 written approval. The Consultant's services are unique in nature and any transference without City approval shall be cause for the City to cancel this Agreement. The Consultant shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed assignee and the execution of an Assignment/ Assumption Agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. The Consultant and the City each binds one another, their partners, successors, legal representatives and authorized assigns to the other party of this Agreement and to the partners, successors, legal representatives and assigns of such party in respect to all covenants of this Agreement. 10.04 TRUTH -IN -NEGOTIATION CERTIFICATE In compliance with the Consultant's Competitive Negotiation Act, for any Project to be compensated under the Lump Sum method, the Consultant shall certify that wage rates and other factual unit costs supporting the compensation are accurate, complete, and current at the time of Notice to Proceed. The original Project price and any addition thereto will be adjusted to exclude any significant sums by which the City determines the project price was increased due to inaccurate, incomplete or non -current wage rates and other factual unit costs. All such price adjustments will be made within 1 year following the end of the Project. 10.05 APPLICABLE LAW AND VENUE OF LITIGATION This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out of this Agreement, shall be brought in Miami -Dade County, Florida. Each party shall bear its own attorney's fees except in actions arising out of Consultant's duties to indemnify the City under ARTICLES 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 or electonic mail, addressed to the party for whom it is intended at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as the respective places for giving of notice: FOR City OF Miami: Mary H. Conway Director City of Miami Department of Capital Improvements (CIP) 444 S.W. 2nd Ave., - 10' FI Miami, Florida 33130 With a copy to: City Attorney City of Miami 444 S.W. 2nd Ave., Suite 945 Miami, FI. 33130-1910 Gary Farbrikant Procurement Supervisor Department of Capital Improvements (CIP) 444 S.W. 2"d Ave., - S`h FI Miami, Florida 33130 Page 10 PROFESSIONAL SERIVCES AGREEMENT FOR Consultant: ........ ........ (to be; inserted) 10.07 INTERPRETATION Preparation of this Agreement has been a joint effort. The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section, unless the reference is made to a particular subsection or subparagraph of such Section or Article. 10.08 PRIORITY OF PROVISIONS If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, or provision of this Agreement, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given effect. 10.09 COMPLIANCE WITH LAWS Consultant shall comply and shall require each of its Sub -consultants to comply with all applicable laws, codes, ordinances, rules, regulations and resolutions including, without limitation, OSHA, the Americans with Disabilities Act ("ADA"), as amended, and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement. The Consultant represents and warrants and shall require its Subconsultants to represent and warrant that there shall be no unlawful discrimination as provided by law in connection with the performance of this Agreement. 10.09-1 Non -Discrimination Consultant warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Consultant's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Consultant further covenants 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. 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. 10.10 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. 10.11 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 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. 10.12 MEDIATION- WAIVER OF JURY TRIAL In an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and /or construction of the subject Project, and/or following the completion of the Project the parties to this Agreement agree all disputes between them shall be submitted to non -binding mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties, A certified Mediator, who the parties find mutually acceptable, will conduct any mediation proceedings in Miami -Dade County, State of Florida, The parties will split the costs of a certified Page 11 PROFESSIONAL_ SERIVCES AGREEMENT mediator on a 50/50 basis. The Consultant agrees to include such similar contract provisions with all Subconsultants retained for the Project, thereby providing for non -binding mediation as the primary mechanism for dispute resolution. In an effort to expedite the conclusion of any litigation the parties voluntarily waive their right to jury trial or to file permissive counterclaims in any action arising under this Agreement. 10.13 INDEPENDENT CONTRACTOR: Provider has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. 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. 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 Provider rendering services to the City under this Agreement. 10.14 PERFORMANCE EVALUATION Consultant is hereby advised that during the performance of Work under this Agreement, upon completion of the Project and/or at any other time deemed appropriate by the City a performance evaluation report may be completed by the City The performance evaluations will be kept in City files for use on future solicitations. 10.15 CONTINGENCY CLAUSE: Funding for this Agreement is contingent 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. 10.16. NO THIRD -PARTY BENEFICIARY No persons other than the Consultant and the City shall have any rights whatsoever under this Agreement. Page 12 PROFESSIONAL SERIVCES AGREEMENT IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. WITNESS/ATTEST Signature CONSULTANT, (to be inserted) Signature Print Name, Title Print Name, Title of Authorized Officer or Official ATTEST: (Corporate Seal) Consultant Secretary ATTEST: City OF MIAMI, a municipal corporation of the State of Florida Priscilla Thompson, City Clerk City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: Administrator Risk Management Department Jorge L. Fernandez, City Attorney Page 13 PROFESSIONAL SERVICES AGREEMENT CERTIFICATE OF AUTHORITY (IF CORPORATION) I HEREBY CERTIFY that at a meeting of the Board of Directors of , a corporation 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 corporation to execute agreements and to undertake the responsiblities and obligations upon the terms and conditions as set forth therein 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 and to undertake the responsiblities and obligations upon the terms and conditions as set forth therein 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 Page 14 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 sign bid 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 and to undertake the responsiblities and obligations upon the terms and conditions as set forth therein 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 1 did not) take an oath. SIGNATURE OF NOTARY PUBLIC STATE OF FLORIDA PRINTED, STAMPED OR TYPED NAME OF NOTARY PUBLIC Page 15