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HomeMy WebLinkAboutCRA-R-24-0056 Exhibit BEXHIBIT "B" PROFESSIONAL SERVICES AGREEMENT Miscellaneous Architectural Services THIS AGREEMENT made this day of in the year 2024 by and between the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes ("SEOPW CRA") and LEO A. DALY COMPANY, a Foreign Limited Liability Company ("Consultant"). RECITALS A. WHEREAS, the SEOPW CRA is responsible for carrying out community redevelopment activities and projects within its Redevelopment Area in accordance with the 2018 Southeast Overtown/Park West Community Redevelopment Plan Update ("Plan"); and B. WHEREAS, on April 28, 2014, the Board of Commissioners, by Resolution No. CRA- 14-0035, accepted the property located at 1611 N.W. 3" Avenue, Miami, Florida 33136 from the City of Miami for the purpose providing architectural services for a 5-story, 24-unit affordable residential development with ground floor commercial space of developing affordable housing; and C. WHEREAS, the SEOPW CRA issued a Request for Qualifications ("RFQ") No. 15-04 on April 7, 2015, for the provision of miscellaneous architectural services, in accordance with Section 287.055, Florida Statutes, (Consultants' Competitive Negotiation Act, hereinafter referred to as "CCNA") for SEOPW CRA owned properties ("Services") and the Consultant's proposal ("Proposal"), in response thereto, was accepted as one of the most qualified for the provision of said Services, by Resolution No. CRA-15-0030; and D. WHEREAS, the SEOPW CRA requires architectural plans in order to develop the property located at 1611 N.W. 3' Avenue, Miami, FL ("Project"); and E. WHEREAS, the Board of Commissioners, by Resolution No. CRA-R-15-0052, attached hereto as Attachment "A," passed and adopted on November 16, 2015, authorized the SEOPW CRA, Executive Director to enter into an agreement with Consultant to perform the Project; and F. WHEREAS, the SEOPW CRA has selected the Consultant in accordance with Section 287.055, Florida Statutes, (Consultants' Competitive Negotiation Act, hereinafter referred to as "CCNA") to provide the professional services as described herein. WITNESSETH, that the City and the Consultant, for the considerations herein set forth, agree as follows: 1 ARTICLE 1 GENERAL CONDITIONS 1.01 TERM The term of this Agreement shall be for one (1) year commencing on the effective date hereof. This specified term is intended for administrative and budget control purposes and is not to be considered or interpreted as a time limitation. This Agreement shall be in place until completion of the Project. 1.01-1 Extension of Expiration Date In the event the Consultant is engaged in any Work on the Agreement expiration date, then this Agreement shall remain in effect until completion or termination of said Work. No new Work Orders shall be issued after the expiration date. 1.02 SCOPE OF SERVICES The Consultant agrees to provide the Services as specifically described and under the special terms and conditions set forth in Attachment "B" hereto, which by this reference is incorporated into and made a part of this Agreement. 1.03 COMPENSATION 1.03-1 Compensation Limits The amount of compensation payable by the SEOPW CRA to the Consultant shall be a lump sum fee, based on the rates and schedules established in Attachment "C" hereto, which by this reference is incorporated into this Agreement; provided, however, that in no event shall the amount of compensation exceed Three Hundred Thirty Thousand Eight Hundred Eighty Dollars And Zero Cents ($330,880.00) in total over the term of the Agreement. The SEOPW CRA shall not have any liability nor will the Consultant have any recourse against the SEOPW CRA for any compensation, payment, reimbursable expenditure, cost or charge beyond the compensation limits of this Agreement, as it may be amended from time to time. 1.03-2 Payments Unless otherwise specifically provided in Attachment "C", payment shall be made in accordance with Florida Statute Chapter 218, Part VII, Local Government Prompt Payment Act, after receipt of the Consultants invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to constitute a "proper invoice" as defined by§ 218.72, Fla. Stat., and to allow a proper audit of expenditures, should the SEOPW CRA require one to be performed. If the Consultant is entitled to reimbursement of travel expenses, then all bills for travel expenses shall be submitted in accordance with Section 112.061, Florida Statutes. ARTICLE 2 PERFORMANCE 2.01 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 SEOPW CRA. Said approval shall not be construed as constituting an agreement between the SEOPW CRA and said other person or firm. 2.02 REMOVAL OF UNSATISFACTORY PERSONNEL The Executive Director or designee may make written request to the Consultant for the prompt removal and replacement of any personnel employed or retained by the Consultant, or any Sub- Consultants or subcontractors, or any personnel of any such Sub -Consultants or sub- contractors engaged by the Consultant to provide and perform services or Work pursuant to the requirements of this Agreement. The Consultant shall respond to the SEOPW CRA 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 the Consultant. Such request shall solely relate to said employees work under this Agreement. 2.03 TIME FOR PERFORMANCE The Consultant agrees to start all Work hereunder upon receipt of a Notice to Proceed issued by the 2 SEOPW CRA Staff 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 may be granted by the SEOPW CRA should there be a delay on the part of the SEOPW CRA 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. 2.04 STANDARD OF CARE Consultant represents that it will perform its services under the Agreement in conformance with, at minimum, the care and skill ordinarily exercised by similar members of the profession providing similar services, practicing under similar conditions at the same time and in the same or similar locality. No other express warranty of any kind is made by the rendition of Consultants services under the Agreement. Consultant is solely responsible for the technical accuracy and quality of their Services. Consultant shall perform all Services in compliance with Florida Administrative Code Rule 61G15- 19.001(4) and Section 471.033(1) of the Florida Statutes, as amended. Consultant shall perform due diligence, in accordance with best industry practices, in gathering information and inspecting a Project site prior to the commencement of design. Consultant shall be responsible for the professional quality, technical accuracy and coordination of all design, drawings, specification, and other Services furnished by the Consultant under this Agreement. Consultant shall, without additional compensation, correct or revise any errors omissions, and/or deficiencies in its designs, drawings, specification or other Services. Consultant shall also be liable for claims for delay costs, and any increased costs in construction, including but not limited to additional work, demolition of existing work, rework, etc., resulting from any negligent acts, errors, omissions, and/or deficiencies in its designs, drawings, specification or other Services performed by the Consultant or its Sub -consultants. ARTICLE 3 SUB -CONSULTANTS 3.01 GENERAL 3.01-1 A Sub -Consultant, as defined in Article 1.18 is a firm that was identified as part of the consulting team in the competitive selection process by which the Consultant was chosen to perform the services under this Agreement, and as such, is identified and listed in Schedule Al attached hereto and incorporated by reference. 3.01-2 A Specialty Sub -Consultant is a person or organization that has, with the consent of the Executive Director or designee, entered into a written agreement with the Consultant to furnish unique and/or specialized professional services necessary for a project or task described under Additional Services. Such Specialty Sub -Consultant shall be in addition to those identified in Schedule A l . 3.02 SUB -CONSULTANT RELATIONSHIPS 3.02-1 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. 3.02-2 Nothing contained in this Agreement shall create any contractual or business relationship between the SEOPW CRA and the Sub -Consultants. The Consultant acknowledges that the Sub - Consultants are entirely under his direction, control, supervision, retention and/or discharge. 3.03 CHANGES TO SUB -CONSULTANTS The Consultant shall not add or modify change any Sub -Consultant listed in Schedule Al without prior written approval by the Executive Director or designee, in response to a written request from the Consultant stating the reasons for any proposed substitution. ARTICLE 4 DEFAULT 3 4.01 GENERAL If the Consultant fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then the Consultant shall be in default. Upon the occurrence of a default hereunder the SEOPW CRA, in addition to all remedies available to it by law, may immediately, upon written notice to the Consultant, terminate this Agreement whereupon all payments, advances, or other compensation paid by the SEOPW CRA to the Consultant while the Consultant was in default shall be immediately returned to the SEOPW CRA. The Consultant understands and agrees that termination of this Agreement under this section shall not release the 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, the Consultant shall be liable to the SEOPW CRA for all expenses incurred by the SEOPW CRA in preparing and negotiating this Agreement, as well as all costs and expenses incurred by the SEOPW CRA in the re -procurement of the Services, including consequential and incidental damages. In the event of Default, the City may also suspend or withhold reimbursements from the Consultant until such time as the actions giving rise to default have been cured. 4.02 CONDITIONS OF DEFAULT A finding of Default and subsequent termination for cause may include, without limitation, any of the following: 4.02-1 The Consultant fails to obtain or maintain the professional engineering certification/ licensure, insurance or bonding herein required. 4.02-2 The 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. 4.02-3 The Consultant fails to commence or complete the Services within the mutually agreed to schedule as provided herein, as required by this Agreement. 4.03 TIME TO CURE DEFAULT; FORCE MAJEURE The SEOPW CRA through the Executive Director shall provide written notice to the Consultant as to a finding of default, and the Consultant shall take all necessary action to cure said default within time stipulated in said notice, after which time the SEOPW CRA may terminate the Agreement. The SEOPW CRA at its sole discretion, may allow additional days to perform any required cure if the Consultant provides written justification deemed reasonably sufficient. If the Default has not been corrected by the Consultant within the time specified the Agreement shall be automatically terminated on the last day of the time stipulated in said notice, without the necessity of any further action by the SEOPW CRA. Should any such failure on the part of the Consultant be due to a condition of Force Majeure as that term is interpreted under Florida law, then the SEOPW CRA may allow an extension of time reasonably commensurate with the cause of such failure to perform or cure. ARTICLE 5 TERMINATION OF AGREEMENT 5.01 SEOPW CRA RIGHT TO TERMINATE The SEOPW CRA 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, including all electronic copies related to Work authorized under this Agreement, whether finished or not, must be turned over to the Executive Director. The Consultant shall be paid in accordance with provisions of Attachment "B", provided that said 4 documentation is turned over to Executive Director within ten (10) business days of termination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by the Consultant until all documentation is delivered to the Executive Director. 5.01-1 The Consultant shall have no recourse or remedy from any termination made by the SEOPW CRA except to retain the fees, and allowable costs or reimbursable expenses, earned compensation for the Services that was performed in complete compliance with the Agreement, as full and final settlement of any claim, action, demand, cost, charge or entitlement it may have, or will, have against the SEOPW CRA or employees. 5.02 CONSULTANT'S RIGHT TO TERMINATE The Consultant shall have the right to terminate this agreement, in writing, following breach by the SEOPW CRA, if breach of contract has not been corrected within sixty (60) days from the date of the SEPOW CRA receipt of a written statement from the Consultant specifying its breach of its duties under this Agreement. ARTICLE 6 DOCUMENTS AND RECORDS 6.01 OWNERSHIP OF DOCUMENTS All tracings, plans, drawings, specifications, maps, computer files, and/or reports prepared or obtained under this Agreement, as well as all data collected, together with summaries and charts derived there from, including all electronic digital copies will be considered works made for hire and will, based on incremental transfer wherein the above shall become the property of the SEOPW CRA upon payments made to the Consultant or termination of the Agreement without restriction or limitation on their use, and will be made available, on request, to the SEOPW CRA at any time during the performance of such services and/or upon completion or termination of this Agreement. Notwithstanding the foregoing the documents shall not be reused by another outside Architect engaged for the same project by the SEOPW CRA without the new Architect obtaining the Consultant's written consent which may involve an agreed upon reasonable additional compensation payable once to the Consultant. The Consultant shall not unreasonably withhold, condition, or delay his consent to such reuse by another Architect. In all respects the SEOPW CRA will be the sole Owner of the documents it has paid for under the terms of this Agreement. The Consultant shall not copyright any material and products or patent any invention developed under this Agreement. The SEOPW CRA shall have the right to visit the site for inspection of the work and the products of the Consultant at any time. The Consultant shall be permitted to retain copies, including reproducible copies, solely for information and reference in connection with the SEOPW CRA use and occupancy of the Project. 6.02 DELIVERY UPON REQUEST OR CANCELLATION Failure of the Consultant to promptly deliver all such documents, both hard copy and digital, to the Executive Director or designee within ten (10) days of cancellation, or within ten (10) days of request by the SEOPW CRA, shall be just cause for the SEOPW CRA to withhold payment of any fees due the Consultant until the Consultant delivers all such documents. The Consultant shall have no recourse from these requirements. 6.03 RE -USE BY THE SEOPW CRA 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 SEOPW CRA sole option, and by virtue of signing this agreement the 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 Consultant will not be liable for re -use by the SEOPW CRA of plans, documents, studies, or other data for any purpose other than that intended by the terms and conditions of this Agreement. 6.04 NONDISCLOSURE To the extent allowed by law, the Consultant agrees not to divulge, furnish ,or make available to any third 5 person, firm or organization, without Executive Director'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 the Consultant hereunder, and the Consultant shall require all of its employees, agents, Sub- Consultants, and subcontractors to comply with the provisions of this paragraph. 6.05 MAINTENANCE OF RECORDS; PUBLIC RECORDS The Consultant will keep adequate records and supporting documentation, which concern or reflect its services hereunder. Records subject to the provisions of the Public Records Law, Florida Statutes Chapter 119, shall be kept in accordance with the applicable statutes. Otherwise, the records and documentation will be retained by the 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. The SEOPW CRA, or any duly authorized agents or representatives of the SEOPW CRA, 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. Consultant shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and maintain public records that ordinarily and necessarily would be required by the SEOPW CRA to perform this service; (2) provide the public with access to public records on the same terms and conditions as the SEOPW CRA would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; 3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the SEOPW CRA all public records in its possession upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; and, (5) provide all electronically stored public records to the SEOPW CRA in a format compatible with the SEOPW CRA information technology systems. ARTICLE 7 INDEMNIFICATION The Consultant shall indemnify, defend,hold harmless the SEOPW CRA and the City of Miami, its officers, agents, directors, and/or employees, from liabilities, damages, losses, judgments, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness, negligent act or omission, or intentional wrongful misconduct of Consultant and persons employed or utilized by Consultant in the performance of this Contract. Consultant shall, further, hold the SEOPW CRA and the City of Miami, its officials and/or employees, harmless for, and defend the SEOPW CRA and the City of Miami, its officials and/or employees against, any civil actions, statutory or similar claims, injuries or damages arising or resulting from the permitted work, even if it is alleged that the SEOPW CRA and the City of Miami, its officials and/or employees were negligent, unless such injuries or damages are ultimately proven to be the result of grossly negligent or willful acts or omissions on the part of the SEOPW CRA and the City of Miami, its officials and/or employees. These indemnifications shall survive the term of this Contract. In the event that any action or proceeding is brought against the SEOPW CRA and the City of Miami by reason of any such claim or demand, the Consultant shall, upon written notice from the SEOPW CRA and the City of Miami, resist and defend such action or proceeding by counsel satisfactory to the SEOPW CRA and the City of Miami. The Consultant expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Consultant shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, agents and instrumentalities as herein provided. The indemnification provided above shall obligate the Consultant to defend, at its own expense, to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at the SEOPW CRA and the City of Miami's option, any and all claims of liability and all suits and actions 6 of every name and description which may be brought against the SEOPW CRA and the City of Miami whether performed by the Consultant, or persons employed or utilized by Consultant. This indemnity will survive the cancellation or expiration of the Agreement. This indemnity will be interpreted under the laws of the State of Florida, including without limitation and interpretation, which conforms to the limitations of §725.06 and/or §725.08, Florida Statutes, as applicable. The Consultant shall require all Sub -Consultant agreements to include a provision that they will indemnify the SEOPW CRA. The Consultant agrees and recognizes that the SEOPW CRA shall not be held liable or responsible for any claims which may result from any actions or omissions of the Consultant in which the SEOPW CRA participated either through review or concurrence of the Consultant's actions. In reviewing, approving or rejecting any submissions by the Consultant or other acts of the Consultant, the City in no way assumes or shares any responsibility or liability of the Consultant or Sub- Consultant under this Agreements. Ten dollars ($10) of the payments made by the SEOPW CRA constitute separate, distinct, and independent consideration for the granting of this Indemnification, the receipt and sufficiency of which is voluntarily and knowingly acknowledged by the Consultant. ARTICLE 8 INSURANCE The Consultant shall not start Services under this Agreement until the Consultant has obtained all insurance required hereunder and the SEOPW CRA, Risk Management Administrator or his/her authorized designee, has approved such insurance. 8.01 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. 8.02 VERIFICATION OF INSURANCE COVERAGE Consultant shall, at all times during the term hereof, maintain such insurance coverage as provided in Attachment "D" attached hereto and incorporated herein. All such insurance, including renewals, shall be subject to the approval of the SEOPW CRA, or the City of Miami (which approval shall not be unreasonably withheld) for adequacy of protection and evidence of such coverage shall be furnished to the SEOPW CRA on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled, or materially changed during the performance of the Project under this Agreement without thirty (30) calendar days prior written notice (or in accordance to policy provisions) to the SEOPW CRA. Completed Certificates of Insurance shall be filed with the SEOPW CRA, to the extent practicable, prior to the performance of Services hereunder, provided, however, that Grantee shall at any time upon request by the SEOPW CRA file duplicate copies of the policies of such insurance with the SEOPW CRA. If, in the reasonable judgment of the SEOPW CRA, prevailing conditions warrant the provision by Consultant of additional liability insurance coverage or coverage which is different in kind, th e SEOPW CRA reserves the right to require the provision by Consultant of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should Consultant fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following SEOPW CRA written notice, this Agreement shall be considered terminated on the date the required change in policy coverage would otherwise take effect. Upon such termination, SEOPW CRA shall pay Consultant expenses incurred for the Project, prior to the date of termination but shall not be liable to Consultant for any additional compensation, or for any consequential or incidental 7 damages. 8.03 MODIFICATIONS TO COVERAGE The Risk Management 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 §9.06 herein. The 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 the SEOPW CRA accompanied by justification. ARTICLE 9 MISCELLANEOUS 9.01 AUDIT RIGHTS The SEOPW CRA 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 Executive Director, to approve any requests for payment by the Consultant. 9.02 ENTIRE AGREEMENT This Agreement, as it may be amended from, time to time, represents the entire and integrated agreement between the SEOPW CRA 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. 9.03 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 SEOPW CRA. 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 SEOPW CRA approval. The Consultant's services are unique in nature and any assignment, sale transference without SEOPW CRA approval shall be cause for the SEOPW CRA to cancel this Agreement. The Consultant shall have no recourse from such cancellation. The SEOPW CRA 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 SEOPW CRA as a condition precedent to considering approval of an assignment. The Consultant and the SEOPW CRA 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. 9.04 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 SEOPW CRA determines the project price was increased due to inaccurate, incomplete or non- current wage rates and other factual unit costs. All such price adjustments will be made within one (1) year following the end of the Project. 9.05 APPLICABLE LAW AND VENUE OF LITIGATION This agreement shall be interpreted and construed in accordance with and governed by the laws of 8 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 the Consultant's duties to indemnify the City under Article 8 herein where the Consultant shall pay the SEOPW CRA reasonable attorney's fees. 9.06 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: To the SEOPW CRA: James McQueen, Executive Director Southeast Overtown/Park West Community Redevelopment Agency 819 N.W. 2nd Avenue, 3rd Floor Miami, FL 33136 Email: JMcQueen@miamigov.com With copy to: Vincent T. Brown, Esq., Staff Counsel Email: VTBrown@miamigov.com To Consultant: Rafael Sixta, Vice President, Managing Principal Leo A. Daly Company 5200 Blue Lagoon Drive, Suite 700 Miami, FL 33126 Email: rsixto@leoadaly.com 9.07 INTERPRETATION The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the 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. 9.08 JOINT PREPARATION Preparation of this Agreement has been a joint effort of the SEOPW CRA and the 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. 9.09 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. 9 9.10 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 the Consultants retained for the project(s), thereby providing for non -binding mediation as the primary mechanism for dispute resolution. Each party will bear their own attorney's fees. 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. 9.11 TIME Time is of the essence in this Agreement. 9.12 COMPLIANCE WITH LAWS The Consultant shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions including, without limitation, the Americans with Disabilities Act ("ADA"), as amended, and all applicable guidelines and standards in performing its duties, responsibilities, and 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. 9.12-1 NON-DISCRIMINATION The SEOPW CRA warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with the Consultant's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. The 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. 9.12-2 OSHA COMPLIANCE The Consultant warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. The SEOPW CRA reserves the right to refuse the Consultant access to the SEOPW CRA property, including project jobsites, if the 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 the Consultant. 9.12-3 ADA COMPLIANCE The 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 SEOPW CRA, 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. 9.13 NO PARTNERSHIP The 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 SEOPW CRA to any promise, debt, default, or undertaking of the Consultant. 9.14 RESOLUTION OF CONTRACT DISPUTES Consultant understands and agrees that all disputes between Consultant and the SEOPW CRA based upon an alleged violation of the terms of this Agreement by the SEOPW CRA shall be submitted to 10 the SEOPW CRA, Executive Director for resolution, prior to Consultant being entitled to seek judicial relief in connection therewith. In the event the dispute involves the expenditure of funds in excess of Four Thousand Five Hundred Dollars and No Cents ($4,500.00), the decision of the SEOPW CRA, Executive Director shall be approved or disapproved by the SEOPW CRA Board of Commissioners. Consultant shall not be entitled to seek judicial relief unless: (i) it has first received the SEOPW CRA, Executive Director's written decision, approved by the SEOPW CRA Board of Commissioners if the amount of compensation hereunder exceeds $4,500.00; or (ii) a period of sixty (60) days has expired, after Consultants submission of a detailed statement of the dispute, accompanied by all supporting documentation, to the SEOPW CRA, Executive Director (ninety (90) days if the SEOPW CRA, Executive Director's decision is subject to the SEOPW CRA, Boards' approval); or (iii) SEOPW CRA's Board of Commissioners has waived compliance with the procedure set forth in this section by formal resolution of the Board. 9.15 INDEPENDENT CONTRACTOR The 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, the 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. The Consultant further understands that Florida Workers' Compensation benefits available to employees of the City are not available to the Consultant, and agrees to provide workers' compensation insurance for any employee or agent of the Consultant rendering services to the City under this Agreement. 9.16 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. 9.17 THIRD PARTY BENEFICIARY The Consultant and the SEOPW CRA 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. 9.18 OPINION OF PROBABLE COSTS Consultant's opinion of probable total project costs and/or construction costs, if any, provided as part of the services under the Agreement are made on the basis of Consultant's knowledge, experience and qualifications and represent Consultant's judgment as an experienced professional engineer, architect and/or scientist, as the case may be. Consultant does not guarantee that proposals, bids, or actual total project costs or total construction costs will not vary from the opinions provided by the Consultant. 11 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized as of the day and year above written. ATTACHMENT "A" RESOLUTION NO. CRA-R-15-0052 ATTACHMENT "B" SCOPE OF SERVICES ATTACHMENT "C" COMPENSATION ATTACHMENT "D" INSURANCE REQUIREMENTS