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07-31-07 Item 10South Miami baftld AIWMeriNCRY r N -�� CITY OF SOUTH MIAMI � INCORPORATED OFFICE OF THE CITY MANAGER INTER- OFFICE MEMORANDUM 2001 To: The Honorable Mayor & Members of the City Commission Via: Yvonne S. McKinley, City Manager From: W. Ajibola Balogun, REM, CFEA, Director Public Works & Engineering Department Date: July 31, 2007 Agenda Item No.: Subject: Approval of Professional Service Work Order. Request: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AUTHORIZING THE CITY MANAGER TO ISSUE A WORK ORDER TO KIMLEY -HORN & ASSOCIATES, INC. (KHA) FOR A NEIGHBORHOOD TRAFFIC MANAGEMENT PLAN IN AN AMOUNT OF $23,100.00 TO BE CHARGED TO ACCOUNT NUMBERS 001- 1790 - 519 -3100 AND 001 - 1790 - 519 -3450; PROVIDING FOR AN EFFECTIVE DATE Request: Authorizing the City Manager to approve a professional service work order for Neighborhood Traffic Management Plan. Reason/Need: KHA will provide transportation planning and traffic engineering services within the study area, which is bound by the CSX Railroad Corridor on the West, Ludlum Road (SW 67th Avenue) on the East, Davis Drive (SW 80th Street on the South and Sunset Drive (SW 72nd Street) on the North. KHA's scope of work will include: • Data Collection Cost: • Data Analysis • Conceptual Improvement Plan • Host Stakeholders Meetings & Presentation to the City Commission • Coordination with Miami -Dade County Public Works Department • Preparation of Final Report. The purpose of this study is to assess the magnitude of cut - through traffic in the neighborhood, which has been identified as a problem particularly when traffic accesses Ludlam Elementary School. Attached is a map of the study area. We intend to "piggyback" on the City of Miami Gardens Professional Engineering Services agreement with KHA for this service. $23,100.00 Funding Source: Account number 001 - 1790 - 519 -3100 will fund $19,000 and $4,100 will be funded from account number 001 - 1790 - 519 -3450. The current account balances are: • 001- 1790 -519 -3100 - $19,038 • 001-1790-519-3450- $16,732 Page 2 of 2 Prof. Services Work Order July 31, 2007' Backup Documentation: ❑ Proposed Resolution ❑ KHA's Work Order for Professional Services ❑ KHA's agreement with City of Miami Gardens Page 2 of 2 RESOLUTION NO.: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, AUTHORIZING THE CITY MANAGER TO ISSUE A WORK ORDER TO KIMLEY -HORN & ASSOCIATES, INC. FOR NEIGHBORHOOD TRAFFIC MANAGEMENT PLAN IN AN AMOUNT OF $23,100.00 TO BE CHARGED TO ACCOUNT NUMBERS 001 - 1790 - 519 -3100 AND 001 - 1790 - 519 -3450; PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the Mayor and City Commission wishes to provide transportation planning and traffic engineering services within the study area, which is bound by the CSX Railroad Corridor on the West, Ludlum Road (SW 67th Avenue) on the East, Davis Drive (SW 80th Street on the South and Sunset Drive (SW 72 "d Street) on the North; and WHEREAS, the Mayor and City Commission wishes to secure the services of KHA for profession engineering services for the Neighborhood Traffic Management Plan; and WHEREAS, the City intend to "piggyback" on the City of Miami Gardens Professional Engineering Services agreement with KHA and fund the project from account numbers 001- 1790 -519- 3100 and 001 -1790- 519 -3450. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OT THE CITY OF SOUTH MIAMI, FLORIDA THAT: Section 1: The City Commission authorizes the City Manager to execute a professional service work order with KHA in an amount of $23,100.00 for the Neighborhood Traffic Management Plan. Section _2: The City intend to "piggyback" on the City of Miami Gardens Professional Engineering Services agreement with KHA and fund the project from account numbers 001- 1790 -519- 3100 and 001 -1790- 519 -3450, with account balances of $19,038 and $16,732, respectively. Section 33: The attached exhibit is incorporate by reference into this resolution. PASSED'AND ADOPTED this ATTEST: CITY CLERK READ AND APPROVED AS TO FORM CITY ATTORNEY day of , 2007. APPROVED: MAYOR COMMISSION VOTE:: Mayor Feliu: Vice Mayor Wiscombe: Commissioner Palmer: Commissioner Birts: Commissioner Beckman: Kimley -Horn and Associates, Inc. July 23, 2007 Mr. Ajibola Balogun City of South Miami Public Works Director 4795 SW 75h Avenue South Miami, FL 33155 Re: Neighborhood Traffic Management Plan South Miami Dear Mr. Balogun: Kimley -Horn and Associates, Inc. ( "KHA ") is pleased to submit this letter agreement ( "Agreement ") to the City of South Miami ( "the Client ") for transportation planning and traffic engineering services. The purpose of this study is to assess the magnitude of cut - through traffic in the neighborhood, which has been identified as a problem particularly when traffic accesses Ludlam Elementary School. We have developed a scope of services based on our understanding of your needs for transportation planning and traffic engineering services within the study area, which is bound by the CSX Railroad Corridor on the west, Ludlam Road (SW 67'h Avenue) on the east, Davis Drive (SW 80!' Street) on the south, and Sunset Drive (SW 72d Street) on the north. Our proposed scope of services, schedule, and fee are as follows: SCOPE OF SERVICES Task I — Stakeholder Kick -Off Meetin A stakeholder kick -off meeting will be organized by the City with neighborhood residents. The purpose of this meeting will be to provide the residents an opportunity to identify the existing traffic issues within the study area, to provide direction for the study's focus. This meeting will be held in a City facility and, if necessary, any public notification will be performed by the City of South Miami. Task II — Data Collection Traffic data will be collected to measure the existing traffic conditions at key locations within the study area. The traffic data collection effort will include TEL 954 535 5100 FAX 954 739 2247 ■ Suite 109 5200 N.W. 33rd Avenue Ft Lauderdale, Florida 33309 Kimley -Horn W Aitbuta Batogun, July 23, 2007, Page 2 ■.J and Associates, Inc. A.M. and P.M. peak hour turning movement counts and 24 -hour roadway volume counts. The counts will be collected when schools are in session. The following data may be collected: 24 -Hour Daily Volume • SW 72nd Street west of SW 68h Avenue • SW 68h Court south of SW 72 °d Street • SW 68h Avenue north of SW 74'" Street • SW 74`" Street east of SW 68`h Avenue • SW 75`h Terrace east of SW 68`� Avenue • SW 76`h Terrace east of SW 68d' Avenue • SW 77`h Terrace east of SW 68'h Avenue • SW 78`h Terrace east of SW 68`h Avenue • SW 69`h Avenue north of SW 8e Street • SW 68" Avenue north of SW 80'h Street • SW 80`h Street east of SW 68'h Avenue • SW 67`h Avenue south of SW 74`h Street A.M. and P.M. Peak Period Turning Movement Counts • SW 67'" Avenue at SW 72°d Street • SW 68"' Avenue at SW 72nd Street • SW 67`h Avenue at SW 74'h Street • SW 67``' Avenue at SW 80'h Street • SW 68'h Avenue at SW 80`h Street • SW 690hAvenue at SW 80'h Street If additional locations for improvements are identified in the stakeholder kick -off meeting, additional traffic data collection maybe necessary. Any additional traffic data collection will be considered an additional service and require additional fee. In addition to the above listed traffic data, a field review of the study area will be conducted to help identify operational issues related to cut - through traffic. Task III — Data Analysis Results from the data collection efforts will be summarized and evaluated to determine (1) the existing traffic conditions including the magnitude of cut - through traffic and such routes and (2) the future traffic conditions considering the proposed traffic management strategies developed in this study. Operational analyses, using a methodology consistent with the 2000 Highway Capacity Manual, will be performed at the six (6) intersections where turning movement count data is collected to assess the impacts of traffic flow modifications. :2= Kimley-Horn Mr. Ajibola Balogun, July 23, 2007, Page 3 mn and Associates, Inc, Task IV — Concentual Improvement Plan Based on the outcome of the data collection and analysis, and input from City staff and neighborhood representatives, a neighborhood traffic management plan will be developed. A graphic will be prepared to illustrate the conceptual plan. Task V — Stakeholder Meeting /Commission Presentation One (1) stakeholder meeting will be conducted with the City staff and neighborhood stakeholders to present the results of data collection and analysis, and the conceptual improvement plan. This meeting will be organized by the City. Based on the outcome of this meeting, the conceptual plan may be refined. At the conclusion of the study, one (1) presentation will be made to the City Commission to summarize the results and recommendations. Task VI - Renort A report will be prepared summarizing the data collection, data analysis, and proposed conceptual improvement plan. The report will also include summaries of the meetings conducted during the development of the neighborhood traffic management plan. The Consultant will update the report and analysis based on one (1) round of the Client's comments. Ten (10) bound copies and one (1) unbound set of originals of the final report will be provided. Task VII — Miami -Dade County Public Works Coordination. A maximum of two (2) meetings will be held with City staff and the Miami -Dade County Public Works Department to present the study methodology, findings, and recommendations. The purpose of these meetings will be to answer questions from the County staff to expedite the implementation of the proposed neighborhood traffic management plan. Task VIII — Additional Services We will provide, as requested and authorized by you, additional services that require analyses beyond those described in Tasks I through VII. These additional services may include, but not be limited to: - Attendance at additional meetings and public hearings. Additional traffic data collection. - Design services. - Permitting and regulatory assistance. - Forensic (expert witness) services. - Site/Civil Engineering. - Landscape Architecture services. C]= M n and Associates, Inc. SCHEDULE We will provide our services expeditiously as practical to meet a mutually agreed upon schedule. We anticipate that the project can be completed in approximately three (3) months after authorization and notice to proceed. FEE AND BILLING KHA will perform the services described in Tasks I through VIII of the Scope of Services for a lump sum fee of $23,100.00. KHA will perform the services described in Task VIII of the Scope of Services on a labor fee plus expense basis. Labor fees will be billed based upon hourly rates in effect at the time the services are provided. Direct reimbursable expenses such as express mail, fees, air travel, out-of -town mileage, and other direct expenses will be billed at 1.15 times cost. An amount equal to 5.85% of the labor fee will be added to each invoice to cover certain other expenses such as in- house duplicating, local mileage, telephone calls, facsimiles, postage, and word processing computer time. Administrative time related to the project may be billed hourly. Technical use of computers for design, analysis, and graphics, etc. will be billed at $25.00 per hour. All permitting, application, and similar project fees will be paid directly by the Client. Fees will be invoiced monthly based upon the percentage of services completed as of the invoice date for lump sum services, or based on the arnount of services performed and expenses incurred through the invoice date for labor fee plus expense tasks. Payment will be due within 25 days of the date of invoice. CLOSURE In addition to the matters set forth herein, our Agreement shall include, and be subject to our currently existing contract. The term "the Consultant" shall refer to Kimley -Horn and Associates, Inc., and the term "the Client" shall refer to the City of South Nflami. If you concur in all the foregoing and wish to direct us to proceed with the services, pleased have authorized persons execute this Agreement in the spaces provided below and return the letter to us. Fees and times stated in this Agreement are valid for sixty (60) days after the date of this letter. - Klmley-Horn Mr. Ajibola Balogun, July 23, 2007, Page 5 and Associates, Inc. We are excited about working with you and the team on this project. Please call Greg Kyle if you have any questions. Very truly yours, KIMLEY -HORN AND ASSOCIATES, INC. Gregory S. Kyle, AICP Associate Attachments: Standard Provisions Agreed to this day of , 2007. City of South Miami By: Title: Witness: _ o: %miw� �,uth Miftmvmposaux KIMLEY -HORN AND ASSOCIATES, INC. STANDARD PROVISIONS (1) Consultant's Scope of Services and Additional Services. The Consultant's undertaking to perform professional services extends only to the services specifically described in this Agreement. However, if requested by the Client and agreed to by the Consultant, the Consultant will perform additional services ( "Additional Services "), and such Additional Services shall be governed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant for the performance of any Additional. Services an amount based upon the Consultant's then- current hourly rates plus an amount to cover certain direct expenses including in -house duplicating, local mileage, telephone calls, postage, and word processing. Other direct expenses will be billed at 1.15 times cost. Technical use of computers for design, analysis, GIS, and graphics, etc., will be billed at $25.00 per hour. (2) Client's Responsibilities. In addition to other responsibilities described herein or imposed by law, the Client shall: (a) Designate in writing a person to act as its representative with respect to this Agreement, such person having complete authority to transmit instructions, receive information, and make or interpret the Client's decisions. (b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project including all numerical criteria that are to be met and all standards of development, design, or construction. (c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the project and all new data reasonably necessary in the Consultant's opinion, such as site survey and engineering data, environmental impact assessments or statements, zoning or other land use regulations, etc., upon all of which the Consultant may rely. (d) Arrange for access to the site and other private or public property as required for the Consultant to provide its services. (e) Review all documents or oral reports presented by the Consultant and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of the Consultant. (I) Fumish approvals and permits from governmental authorities having jurisdiction over the project and approvals and consents from other parties as may be necessary for completion of the Consultant's services. (g) Cause to be provided such independent accounting, legal, insurance, cost estimating and overall feasibility services as the Client may require or the Consultant may reasonably request in furtherance of the project development. (h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the scope and timing of the Consultant's services or any defect or noncompliance in any aspect of the project. (i) Bear all costs incident to the responsibilities of the Client. (3) Period of Services. Unless otherwise stated herein, the Consultant will begin work timely after receipt of an executed copy of this Agreement and will complete the services in a reasonable time. This Agreement is made in anticipation of conditions permitting continuous and orderly progress through completion of the services. Times for performance shall be extended as necessary for delays or suspensions due to circumstances that the Consultant does not control. If such delay or suspension extends for more than six months (cumulatively), Consultant's compensation shall be renegotiated. (4) Method of Payment. Compensation shall be paid to the Consultant in accordance with the following provisions: (a) Invoices will be submitted periodically, via regular mail or email, for services performed and expenses incurred. Payment of each invoice will be due within 25 days of receipt. The Client shall also pay any applicable stales tax. All retainers will be held by the Consultant for the duration of the project and applied against the final invoice. Interest will be added to accounts not paid within .25 days at the maximum rate allowed by law. If the Client fails to make any payment due the Consultant under this or any other agreement within 30 days after the Consultant's transmittal of its invoice, the Consultant may, after giving notice to the Client, suspend services until all amounts due are paid in full. (b) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of the invoice or the Client's objections will. be waived, and the invoice shall conclusively be deemed due and owing. (c) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The Consultant may negotiate payment of any check tendered by the Client, even if the words "in full satisfaction" or words intended to have similar effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and without prejudicing any right of the Consultant to collect additional amounts from the Client (5) Use of Documents. All documents, including but not limited to drawings; specifications, reports, and data or programs stored electronically, prepared by the Consultant are related exclusively to the services described in this Agreement, and may be used only if the Client has satisfied all of its obligations under this Agreement. They are not intended or represented to be suitable for use, partial use or reuse by the Client or others on extensions of this project or on any other project. Any modifications made by the Client to any of the Consultant's documents, or any use, partial use or reuse of the documents without written authorization or adaptation by the Consultant will be at the Client's sole risk and without liability to the Consultant, and the Client shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting therefrom. Any authorization or adaptation will entitle the Consultant to further rev 07107 compensation at rates to be agreed upon by the Client and the Consultant. Any electronic files not containing an electronic seal are provided only for the convenience of the Client, and use of them is at the Client's sole risk. In the case of any defects in the electronic files or any discrepancies between them and the hardcopy of the documents prepared by the Consultant, the hardeopy shall govern. Only printed copies of documents conveyed by the Consultant may be relied upon. Because data stored in electronic media format can deteriorate or be modified without the Consultant's authorization;; the Client has 60 days to perform acceptance tests, after which it shall be deemed to have accepted the data. (6) Opinions of Cost. Because the Consultant does not control the cost of labor, materials, equipment or services furnished by others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs, including but not limited to opinions as to the costs of construction and materials, shall be made on the basis of its experience and represent its judgment as an experienced and qualified professional, familiar with the industry. The Consultant cannot and does not guarantee that proposals, bids or actual costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost estimator. Consultant's services required to bring costs within any limitation established by the Client will be paid for as Additional Services. (7) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party, or upon thirty days' written notice for the convenience of the terminating party. it any material change occurs in the ownership of the Client, the Consultant shall have the right to immediately terminate this Agreement. In the event of any termination, the Consultant shall be paid for all services rendered and expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result of such termination. If the Consultant's compensation is a fixed fee, the amount payable for services will be a proportional amount of the total fee based on the ratio of the amount of the services performed, as reasonably determined by the Consultant, to the total amount of services which were to have been performed. (8) Insurance. The Consultant carries Workers' Compensation insurance, professional liability insurance, and general liability insurance. If the Client directs the Consultant to obtain increased insurance coverage, the Consultant will take out such additional insurance, if obtainable, at the Client's expense. (9) Standard of Care. In performing its professional services, the Consultant will use that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the services are provided. No warranty, express or implied, is made or intended by the Consultant's undertaking herein or its performance of services, and it is agreed that the Consultant is not a fiduciary with respect to the Client. (10) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to both the Client and the Consultant, the risks have been allocated such that the Client agrees, to the fullest extent of the law, and notwithstanding any other provisions of this Agreement or the existence of applicable insurance coverage, that the total liability, in the aggregate, of the Consultant and the Consultant's officers, directors, employees, agents, and subconsultants to the Client,or to anyone claiming by, through or under the Client, for any and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the services under this Agreement from any cause or causes, including but not limited to, the negligence, professional errors or omissions, strict liability or breach of contract or any warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agents, and subconsultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000, whichever is greater. Higher limits of liability maybe negotiated for additional. fee. Under no circumstances shall the Consultant be liable for lost profits or consequential damages, for extra costs or other consequences due to changed conditions, or for costs related to the failure of contractors to perform work in accordance with the plans and specifications. This Section 10 is intended solely to limit the remedies available to the Client, and nothing in this Section 10 shall require the Client to indemnify the Consultant. (11) Certifications. The Consultant shall not be required to execute certifications or third -party reliance letters that are inaccurate, that relate to facts of which the Consultant does not have actual knowledge, or that would cause the Consultant to violate applicable rules of professional responsibility. (12) Dispute Resolution. All claims by the Client arising out of this Agreement or its breach shall be submitted first to mediation in accordance with the Construction Industry Mediation Rules of the American Arbitration Association as a condition precedent to litigation. Any mediation or civil action by Client must be commenced within one year of the accrual of the cause of action asserted but in no event later than allowed by applicable statutes. (13) Hazardous Substances and Conditions. (a) Services related to determinations involving hazardous substances or conditions, as defined by federal or state law, are rev 07(07 2 limited to those tasks expressly stated in the scope of services. In any event, Consultant shall not be a custodian, transporter, handler, arranger, contractor, or remediator with respect to bazardous substances and conditions. Consultant's services will be limited to professional analysis, recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. (b) The Consultant shall notify the Client of hazardous substances or conditions not contemplated in the scope of services of which the Consultant actually becomes aware. Upon such notice by the Consultant, the Consultant may stop affected portions of its services until the hazardous substance or condition is eliminated. The parties shall decide; if Consultant is to proceed with its services and if Consultant is to conduct testing and evaluations, and the parties may enter into further agreements as to the additional scope, fee, and terms for such services. (14) Construction Phase Services. (a) If the Consultant's services include the preparation of documents to be used for construction and the Consultant is not retained to make periodic site visits, the Client assumes all responsibility for interpretation of the documents and for construction observation, and the Client waives any claims against the Consultant in any way connected thereto. (b) If the Consultant provides construction phase services, the Consultant shall have no responsibility for any contractor's means, methods, techniques, equipment choice and usage, sequence, schedule, safety programs, or safety practices, nor shall Consultant have any authority or responsibility to stop or direct the work of any contractor. The Consultant's visits will be for the purpose of endeavoring to provide the Client a greater degree of confidence that the completed work of its contractors will generally conform to the construction documents prepared by the Consultant. Consultant neither guarantees the performance of contractors, nor assumes responsibility for any contractor's failure to perform its work in accordance with the contract documents. (c) The Consultant is not responsible for any duties assigned to the design professional in the construction contract that are not expressly provided for in this Agreement. The Client agrees that each contract with any contractor shall state that the contractor shall be solely responsible for job site safety and for its means and methods; that the contractor shall indemnify the Client and the Consultant for all claims and liability arising out of job site accidents; and that the Client and the Consultant shall be made additional insureds under the contractor's general liability insurance policy. (15) No Third -Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or benefits to anyone other than the Client and the Consultant, and all duties and responsibilities undertaken puc•suant to this Agreement will be for the sole benefit of the Client and the Consultant. The Client shall not assign or transfer any rights under or interest in this Agreement, or any claim arising out of the performance of services by Consultant, without the written consent of the Consultant. The Consultant reserves the right to augment its staff with subconsultants as it deems appropriate due to project logistics, schedules, or market conditions. If the Consultant exercises this right, the Consultant will maintain the agreed -upon billing rates for services identified in the contract, regardless of whether the services are provided by in -house employees, contract employees, or independent subconsultants. (16) Confidentiality. The Client consents to the use and dissemination by the Consultant of photographs of the project and to the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If, however, any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant shall use reasonable care to maintain the confidentiality of that material. (17) Miscellaneous Provisions. This Agreement is to be governed by the law of the State of Florida. This Agreement contains the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneous negotiations, representations, agreements or understandings, whether written or oral. Except as provided in Section 1, this Agreement can be supplemented or amended only by a written document executed by both parties. Provided, however, that any conflicting or additional terms on any purchase order issued by the Client shall be void and are hereby expressly rejected by the Consultant. Any provision in this Agreement that is unenforceable shall be ineffective to the extent of such unenforceability without invalidating the remaining provisions. The non- enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it affect the enforceability of that provision or of the remainder of this Agreement. rev Q7 /07 CITY OF M AMI GARDENS NONEXCLUSIVE CONTINUING PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is entered into this-3— day of , 2005 between. the City of Miami Gardens, a Florida municipal corporation, (City), and Kimley -Hom and Associates, Inc., a Florida for profit Corporation (Consultant). L.liliR I -5,W) M: WHEREAS, the City desires to hire the Consultant on a continuing, nonexclusive basis to provide Transportation Engineering services and other related services (Services) as expressed in the City's Request for Qualifications No.04 -05 -003, which was advertised on November 25, 2004 and to which Consultant responded a copy of which is also incorporated herein by reference and as more particularly described below; and 'WHEREAS, the Consultant has expressed the capability and desire to perform the Services described in Exhibit "1" attached hereto and by this reference incorporated herein as described in the City's Request for Qualifications and Consultant's response thereto; and 'WHEREAS, the City's Request for Qualifications No. Oaf- 05-003 was undertaken in accordance with Section 287.055, Florida Statutes, Florida's Consultant Competitive Negotiation Act and the parties hereto have complied with all the requirements therein. 'WHEREAS, the Consultant and City desire to enter into the foregoing Agreement. NOW, THEREFORE, in consideration of the mutual terms and conditions, the Parties agree as follows: ARTICLE 1 1.1 The following documents are incorporated and made part of this Agreement: If any language in the documents noted below conflict with this Agreement, the language in this Agreement prevails. ■ Specifications prepared by the City in its Request for Qualifications No. 04-05 -003 (Exhibit 1). • Proposal for the City prepared by the Consultant dated December 30, 2004 (Exhibit 2). • The above Recitals are incorporated herein by reference. 1.2 All exhibits may also be collectively referred to as the "Documents ". In the event of any conflict between the Documents or any ambiguity or missing specification or instruction, the following priority is established: -1- ■ Specific direction from the City Director of Environmental Services (or designee). ■. This Agreement and any attachments. ■ Exhibit 1 ■ Exhibit 2 ARTICLE 2 SERVICES AND RESPiNSIBiLHUS 2.1 General 2.1.1 The Consultant agrees, upon issuance of a written work authorization, to perform for the benefit of the City part or all of the Services set forth and described in this Agreement and as provided for in Sections 2 through S and the Documents including, but not limited to, traffic, environmental, architectural, civil engineering services, surveying and landscape architectural services, on various projects within the City. Consultant shall perform the Services in accordance with standard industry practice. The Consultant shall guard against defects in its work or its consultants or sub - consultants work. 2.2 Preliminary Services 2.2.1 The Consultant shall, when. so directed and authorized by the City, prepare preliminary studies and reports, feasibility studies, ,utility rate studies, financial and fiscal studies and evaluation of existing facilities; preparation of schematic layouts and sketches where required; opinions of Construction Cost, and shall consult and confer with the City as may be necessary for the City to reach decisions concerning the subject matter. The Consultant shall attend meetings with the City Council and City staff as may be required. During this phase, the Consultant shall advise the City, based on Consultant's professional opinion and the current project conditions and reasonably foreseeable conditions, of the completeness of existing data and its suitability for the intended Purposes of the project; advise the City on the necessity to obtain data from other sources; identify and analyze requirements of governmental authorities having jurisdiction to approve the design of the project; provide analyses of the City's needs for surveys, site evaluations and comparative studies of prospective sites and solutions; and prepare and finnish six (b) copies of a report setting forth the Consultant's findings and recommendations. 2.2.2 Preliminary design services to be performed by the Consultant shall include consultation and advice concerning the extent and scope of proposed work and preparation of preliminary design documents consisting of design criteria, -2- preliminary drawings, and outline specifications as well as preliminary estimates of probable Construction Costs. This phase will also include preparation of a preliminary site plan or schematic drawings when appropriate. Up to six (6) copies of the preliminary design documents shall be furnished to the City, the exact number needed shall be determined by the City. ;2.2.3 Upon authorization of the City, the Consultant will provide advice and assistance relating to operation and maintenance of project or other systems; evaluate and report on operations; assist the City in matters relating to regulatory agency operations review or operating permit noncompliance; assist with startup and operator training for newly installed or modified equipment and processes, and in the preparation of operating, maintenance and staffing manuals for the project. 2.3 ]Basic Services 2.3.1 The Consultant shall, when so directed and authorized by the City, consult and advise the City in the following manner: specifying the extent and scope of the work to be performed; preparing detailed construction drawings and specifications; revising and updating, where .necessary, previously designed construction plans and specifications, whether in whole or in part, to be incorporated into the proposed work, and preparing contract documents and a final estimate of Construction Cost. The final design services shall be provide in an electronic fonnat, and shall also include finnishing up to (6) copies of plans and specifications to the City; the exact number needed shall be determined by the City. Final design services shall also include preparation of permit applications as may be required by such agencies as have legal: review, authority over the project. These applications shall include, but not be limited to site plan approvals, driveway pemnits or other permits and work efforts and shall also consist of meeting at the staff level and meetings with the appropriate governing body and the City. Unless specifically provided for under the final design phase, permit application services do not include applications requiring environmental impact statements or environmental assessments, consumptive use permits or landfill permits. 2.3.2 The Consultant, based upon the approved Design Documents and any adjustments authorized by the City in each Project, project schedule or construction budget, shall prepare, for approval by the City, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of each Project's architectural, structural, mechanical and electrical systems and any other requirements or systems, materials and such other elements as may be appropriate. The Consultant shall also advise the City of any adjustments to the preliminary estimate of Construction Costs. -3- :2.3.3 The Consultant, based upon City approved Design Development Documents and any further adjustments in the scope or quality of each Project or in the construction budget, shall prepare Construction Documents within the number of calendar days specified within any notice issued by the City. The Construction Documents shall consist of Drawings and Specifications setting forth in detail the requirements for the construction of each Project. 23.4 The Consultant shall assist the City in the preparation of the necessary proposal information and forms. 2.3.5 The Consultant shall advise the City of any adjustments to previous preliminary estimates of Construction Costs indicated by changes in requirements or general market conditions. 2.3.+6 The Consultant shall submit to the City, for each project, electronic format and six (6) copies of the Construction Documents, and a further revised estimate of total Construction Cost. 2.x.7 Consultant shall include in the Construction Documents a requirement that the Construction Contractor shall provide a final as-built survey of each Project by a Registered Surveyor, and provide marked up construction drawings to Consultant so that the Consultant can prepare and deliver to the City the record drawings in the form required by the City and as required. 2.3.8 Prior to final approval of the Construction Documents by the City, the Consultant shall conduct a preliminary check of any Work Products to ensure compliance with requirements of any local, state or federal agency from which a permit or other approval is required. The Consultant shall insure that all necessary approvals have taken place. 2.3.9 The Consultant shall signify responsibility for the Construction Documents and drawings prepared pursuant to this Agreement by axing a signature, date and seal as required by Chapters 471 and 481, Florida Statutes, if applicable. The Consultant shall comply with all of its governing laws, rules, regulations, codes, directives and other applicable federal, state and local requirements. 2.4 The Consultant, following the City's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall, when so directed and authorized by the City, assist the City in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction. 2.4.1 The Consultant shall review and analyze the proposals received by the City, and shalt make a recommendation for any award based on the City's Procurement Ordinance. -4- 2.4.2 Should the lowest responsible, responsive proposal, as recommended by Consultant, exceed the Estimated Total Construction Cost of the Final Design Plan by less than 25% for small projects (equal to or less than $1 million) or lfl% for large projects (more than $1 million), Consultant„ at no additional cost to the City, shall meet with the City's representatives to identify ways to reduce costs to bring the Project cost to within the Estimated Total Construction Cost of the Final, Design Plan. Should the lowest responsible, responsive proposal, as recommended by Consultant, exceed 25% for small :projects or 10% on large projects, Consultant shall, meet with the City to identify ways to reduce costs to bring the Project cost within the Estimated Total Construction Cost, and if after meeting with the City it is determined that the Consultant made an error or omission when preparing the Estimated Total Construction Cost of the Final Design Plan, Consultant will be required to redesign portions of the Project to bring the cost of the Project within the Estimated Total Construction Cost of the Final Design Plan, at no additional expense to the City. If the Project is not advertised for bids within, 3 months after delivery of Final Design Plans, through no fault of Consultant or if industry -wide prices are changed because of unusual or unanticipated events affecting the general level of prices or times of delivery in the construction industry, the established Construction Cost limit may be adjusted as determined by the City's representative and as approved by the City if necessary. If a Project scope of work is expanded by the City after the Consultant renders the Estimated Construction Cost of the Final Design Plans, the Consultant shall not be responsible for any redesign without compensation which shall be mutually agreed to by the parties hereto. Under no circumstances shall the Consultant be held liable for damages or be required to perform any services without compensation if the lowest responsive proposal is less than the Estimated Total Construction Cost of the Final Design Plan. 2.4.3 The Consultant shall provide the City with a list of recommended, prospective bidders. 2.4.4 The Consultant shall attend all pre- proposal conferences. 2-4.5 The Consultant shall recommend any addenda, through the City's representative, as appropriate to clarify, correct, or change Proposal Documents. 2.4.6 If Pre - Qualification of bidders is required as set forth in the Request for Proposal, Consultant shall assist the City, if requested, in developing qualification criteria, review qualifications and recommend acceptance or rejection of the bidders. 2.4.7 If requested, Consultant shall evaluate proposals and bidders, and make recommendations regarding any award by the City. 2.5 The City shall make decisions on all claims regarding interpretation of the Construction Documents, and on all other matters relating to the execution and progress of the Work after receiving a recommendation from the Consultant. The Consultant shall check and approve samples, schedules, shop drawings and other submissions for conformance with -5- the concept of each Project, and for compliance with the information given, by the Construction Documents. The Consultant shall also prepare Change Qrders, assemble written guarantees required of the Contractor, and approve progress payments to the Contractor based on each Project Schedule of Values and the percentage of Work completed. 2.5.1 The City shall maintain a record of all change orders which shall be categorized according to the various types, causes, etc. that it may be determined are useful and necessary for its purpose. Among those shall be change orders which are identified as architectural/engineering errors or omissions. An error determined to 'be caused solely by the Consultant and the costs of which would not otherwise have been a necessary expense to the City for the project, shall be considered for purposes of this agreement to be an additional cost to the City which would not be incurred without the error. If the Consultant is not the Construction Manager for the construction, the City shall notify the Consultant within 3 days of the discovery of any architectural /engineering error or omission so that the Consultant can be part of the negotiations resolving the claim between the City and the Contractor. So long as the total additional cost of construction for all errors caused solely by the Consultant remain less than Five Percent (5 %) of the total consiraction cost of the project, the City shall not look to the Consultant and/or its insurer for reimbursement for additional costs caused by errors and omissions. However, the Consultant shall be required to provide, at no cost to the City, services including redesign if necessary to resolve the error or omission. Should the sum of the additional construction costs for errors in total exceed Five Percent (5 %) of the total construction cost, the City shall be entitled to recover the full and total additional cost to the City as a result of Consultant errors and omissions from the Consultant. To obtain such recovery, the City shall deduct from the Consultant's fee a sufficient amount to recover all such additional cost to the City up to the amount of the Consultant's insurance deductible. Should additional costs incurred by the City exceed. the Consultant's insurance deductible, the City shall look to the Consultant and the Consultant's insurer for the remaining amount of additional construction costs incurred by the City. T be recovery of additional costs to the City under this paragraph shall not limit or preclude recovery for other separate and/or additional damages which the City may otherwise incur. 2.6 The Consultant shall carefully review and examine the Contractor's Schedule of Values, together with any supporting documentation. The purpose of such review and examination will be to protect the City from an unbalanced Schedule of Values which allocates greater value to certain elements of each Project than is indicated by industry standards, supporting documentation, or data. If the Schedule of Values is not found to be appropriate, it shall be returned to the Contractor for revision or supporting documentation. After making such examination, when the Schedule of Values is found -6- to be appropriate, the Consultant shall sign the Schedule of Values indicating informed 'belies'; that the Schedule of Values constitutes a reasonable, balanced basis for payment of the Contract price to the Contractor. 2.7 The Consultant shall perform on -site construction observation of each Project based on 'the Construction Documents in accordance with Paragraph 2.12 of this Agreement. The Consultant's observation shall determine the progress and quality of the work, and whether the work is proceeding in accordance with the Construction Documents. The Consultant will provide the City with a written report of each site visit in order to inform the City of the progress of the Work. The Consultant shall endeavor to guard the City against defects and deficiencies in the work of Contractors, and make written recommendation to the City where the Work fails to conform to the Construction ]Documents. Based on such observation and the Contractor's Application for Payment, the Consultant shall determine the amount due to the Contractor and shall issue Certificates for Payment in such amount. These Certificates will constitute a representation to the City, based on such observations and the data comprising the Application for Payment, that the work has progressed to the point indicated. By issuing a Certificate for Payment, the Consultant will also represent to the City that, to the best of its information and belief, based on what its observations have revealed, the work is in accordance with the Construction Documents. The Consultant shall conduct observations to determine the dates of substantial and final completion and issue a recommendation for final Payment. 2.8 The Consultant shall revise the Construction Drawings and submit record or corrected drawings to the City to show those changes made during the construction process, based on the marked up prints, drawings and other data furnished by the Contractor. 2.9 The Consultant shalt attend regularly scheduled progress meetings on site. 2.10 The Consultant shall prepare construction Change Orders for the City's approval. Consultant shall not authorize any changes in the work or time, no matter how minor, without prior written approval of City. 2.11 Each project's construction or demolition shall be considered complete upon compilation of a punch list by Consultant, written notification to Contractor by Consultant of all releases of lien and written recommendation by Consultant of final payment to the Contractor, which shall be the sole decision of the City. 2.12 Resident Project Services. During the construction progress of any work the Consultant will, if authorized by the City, provide resident project inspection services to be performed by one or more authorized employees "Resident Project Representative) of the Consultant. Resident project representatives shall provide extensive inspection services at the project site during construction. The Resident Project Representative will endeavor to provide protection for the City against defects and deficiencies in the work of -7- the Contractor(s). Resident project inspection services shall include, but is not limited to, the following: ❑ Conducting all preconstroction conferences; ❑ Conducting all necessary construction progress meetings,; ❑ Observation of the work in progress, to the extent authorized by the City, Receipt, review coordination and disbursement of shop drawings and other submittals; Q Maintenance and preparation of progress reports; ❑ Field inspection and approval of materials for conformance to the specifications; ❑ Field observation and verification of quantities of equipment and materials installed; ❑ Verification of contractors' and subcontractors' payrolls and records for compliance with applicable contract requirements; ❑ Maintenance at each Project site, on a current basis, of all drawings, specifications, contracts, samples, permits, and other Project related documents, and at the completion of each Project, deliver all such records to the City; C] Preparation, update and distribution of a Project Budget with each Project Schedule; C] Notification to the City immediately if it appears that either each Project Schedule or each Project Budget will not be met; D Scheduling and conducting monthly progress meetings, at which City, ]Engineer, General Contractor, Trade Contractor, Utilities Representative, Suppliers, can jointly discuss such matters as procedures, progress, problems and scheduling; CI Recommending courses of action, and enforcing courses selected by the City, if so directed by the City, if the General and/or Trade cantynctors are not meeting the requirements of the plans, specifications, and construction contract; El Development and implementation of a system for the preparation, review, and processing of Change Orders; ❑ Maintenance of a daily log of each Project; -8- ❑ Recording the progress of each Project, and submission of written monthly progress reports to the City, including information on the Contractors' work, and the percentage of completion; ❑ Determination of substantial and final completion of work and preparation of a list of incomplete or unsatisfactory iteyns and a schedule for their completion; ❑ Securing and transmitting to the City required guarantees, affidavits, releases, key manuals, record drawings, and maintenance stocks; and ❑ Providing artwork, models, or renderings as requested by the City. 'The Resident Project Representative shall also investigate and report on complaints and unusual occurrences that may affect the responsibility of the Consultant or the City in connection with the Work. The Resident Project Representative shall be a person acceptable to the City, and the City shall have the right to employ personnel to inspect the work in progress, provided, however, that such personnel as are employed by the City and such personnel will be responsible directly to the City in the performance of work that would otherwise be assumed and performed by the Consultant. ARTICLE 3 ADDITIONAL SERVICES 3.1 When authorized pursuant to a written Work Authorization, the Consultant shall finish the following additional services: 13 Preparation of applications and supporting documents Ifor private or governmental grants, loans or advances in connection with any particular project. ❑ Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by or to the City. C] Services resulting from significant changes in the general scope, extent or character of any particular project or its design including, but not limited to, changes in size, complexity, the City's schedule, character of construction or method of financing, and revising previously accepted studies, reports, design documents or Construction Contract Documents when such revisions are required by changes in laws, rules, regulations, ordinances, codes or orders enacted subsequent to the preparation of such studies, reports or documents, or are due to any other causes beyond the Consultant's control. El Providing renderings or models for the City's use. -9- I] Preparing documents for alternate bids requested by the City for work which is not executed or documents for out -of- sequence work. 17 Investigations and studies involving, but not limited to, detailed consideration of operations, maintenance and overhead expenses; providing value engineering during the course of design, the preparation of feasibility studies, cash flow and economic evaluations, rate schedules and appraisals; assistance in obtaining financing for a project; evaluating processes available for licensing and assisting the City in obtaining process licensing; detailed quantity surveys of material, equipment and labor, and audits or inventories required in connection with construction performed by the City. [] Assistance in connection with bid/proposal protests, rebidding or renegotiating contracts for construction, materials, equipment or services, unless the need for such assistance is reasonably determined by the City to be caused by the Consultant (e.g., defective plans and/or specifications which inhibit contractors from submitting bids), in which event there shall be no additional cost for the provision of such services. Q Providing any type of property surveys or related engineering services needed for the transfer of interests in real property, and field surveys for design purposes and engineering surveys and staking to enable Contractor to proceed with their work, and providing other special field surveys. 13 Preparing to serve or serving as a Consultant or witness for the City in any litigation, arbitration or other legal or administrative proceeding. U Additional services in connection with a project not otherwise provided for in this Agreement. Cl Services in connection with a work directive change or change order requested by the City. 3.2 When required by the Construction Contract Documents in circumstances beyond the Consultant's control, and upon the City's authorization, it will furnish the following additional services: CI Services in connection with work changes necessitated by unforeseen conditions encountered during constriction. G Services after the award of each contract in evaluating and determining the acceptability of an unreasonable or excessive number of claims submitted by Contractor, except to the extent such claims are caused by the errors or omissions of the Consultant. -10- 13 Additional or extended services during construction made necessary by (1 ) work damaged by fire or other cause during construction, (2) a significant amount of defective or negligent work of any Contractor, (3) acceleration of the progress schedule involving services beyond normal working hours, or (4) default by any Contractor, provided, however, if a fare occurs as a direct result of errors or omissions in the design by the Consultant or if the Consultant negligently fails to notify the Contractor of the status of their workmanship pursuant to Consultant's duties as described in the Contract Documents, the Consultant's additional construction services related to the remedy shall be deemed part of Basic Services and compensated as such. 13 Services in connection with any partial utilization of any part of a project by City prior to Substantial Completion. 13 Services to evaluate the propriety of substitutions or design alternates proposed by the Contractor and involving methods of construction, materials, or major project components either during Bidding and/or Negotiation services or Construction Contract Award. The cost of such services shall be borne by the Contractor, and this requirement shall be included in the constnuton contraci. L I Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitutions proposed by the Contractor, sunless such substitutions are due to a design error by the Consultant, in which case such services shall be deemed Basic Services. Except when caused by a design error by the Consultant, the cost of such services shaIl be borne by the Contractor, and this requirement shall be included in the construction contract. 3.3 Miscellaneous Architectural Services. From time to time the City may require assistance Brom the Consultant for miscellaneous small projects, inspections and attendance at meetings if requested by the City, which are unrelated to any ongoing project for which a Work Authorization has been approved, and to review developers' plans, or on other matters. The Consultant will provide these services only when authorized by the City Manager or his designee. The Consultant shall invoice the City on a monthly basis for such miscellaneous services. ARTICLE 4 (M, Y'S RESPONSIBILITIES 4.1 The City shall do the following in a timely manner so as not to delay the services of the Consultant: 4. 1.1 Designate in writing a person to act as the City's representative with respect to the services to be rendered under this Agreerment. Such person shall have complete -11- authority to transmit instructions and receive information with respect to the Consultant's services for a particular project. 4.1.2 Provide all criteria and full information as to the City's requirements for the Project, including design objectives and constraints,- space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations. 4.1.3 Assist the Consultant by placing at the Consultant's disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. 4.1.4 Furnish to the Consultant, if required for performance, of the Consultant's services (except where otherwise furnished by the Consultant as Additional Services), the following: 4.1.4.1 Data prepared by, or services of others, including without limitation borings, probmgs and subsurface explorations, hydrographic surveys, laboratory tests and inspections of samples, materials and equipment; 4.1.4.2 Appropriate professional interpretations of all of the foregoing; 4.1.4.3 Environmental assessment and impact statements; 4.1.4.4 Property, boundary, easement, right -of -way, topographic and utility surveys; 4.1.45 Property descriptions; 4.1.4.6 Zoning, deed and other land use restrictions; 4.1.4.7 Approvals and permits required in the City's jurisdiction and those from outside agencies unless such approvals and permits are the responsibility of the Consultant, all of which the Consultant may use and rely upon in performing services under this Agreement; and 4.1.4.8 Arrange for access to and make all provisions for the Consultant to enter capon the City's property as required for the Consultant to perform services under this Agreement. ARTICLE 5 SEQUENCE OF SERVICES AND TEWE FOR PERFORMANCE iF1a 5.1 This Agreement shall commence upon the execution by both parties and shall continue for five (5) years, unless terminated sooner as provided for in this Agreement. The Consultant understands and acknowledges that the Services to be performed during the five (5) year term will be governed by this Agreement, and that there is no guarantee of future work being given to the Consultant. 5.2 ]Parties agree and understand that this Agreement shall be renewable after the expiration of the initial five (5) year period with terms and conditions to be agreed upon by City and Consultant. 5.3 Following receipt of any written work authorization the Consultant shall submit to the City, at least five (5) days prior to actually commencing services, a schedule of services and expenses for approval by the City before any services commence. The City reserves the right to make changes to the sequence as necessary to facilitate the services or to minimize any conflict with operations. Work authorizations will be issued to the Consultant in the order in which the City wishes, and shall be performed and completed in the order they are issued, unless otherwise specifically permitted by the City. Minor adjustments to the timetable for completion approved by City in advance, in writing, shall not constitute non - performance by Consultant pursuant to this Agreement. 5.4 When the City issues work authorizations to the Consultant, each authorization will contain a stated completion schedule. Failure of the Consultant to meet the stated schedule may, in the sole determination of the City, constitute a default, for which payment for services may be withheld until default is cured. Time extensions will be reviewed, upon request, for extenuating circumstances. It is anticipated and intended that the Consultant will be authorized to begin new work authorizations on a "rolling" basis, as some already assigned work authorizations near timely completion. If a subsequent work authorization is issued to the Consultant before it has competed the current work authorization, the completion date for each work authorization will remain independent of each other, so that the Consultant will prioritize the uncompleted work authorization from the first work authorization and finish them as soon as practical. Failure to complete these "older" work authorizations in a timely manner may adversely impact upon continued early authorization to start a subsequent work. 5.5 When the Consultant has exceeded the stated completion date, including any extension for extenuating circumstances which may have been granted, a written notice of Default will be issued to the Consultant and payment for services rendered shall be withheld. 5.6 Should the Consultant exceed the assigned completion time of an individual work authorization, the City reserves the right not to issue to the Consultant any further work authorizations until such time as there is no longer in a Delhult and the Consultant has -13- demonstrated, to the City's satisfaction, that the reasons for tardy completion have been addressed and are not likely to be repeated in subsequent work authorizations. This restricted issuance provision may result in the Consultant not being issued all of the Planned work the City anticipated in this Agreement. The Consultant shall have no right to the balance of any work, nor to any compensation associated with these non - issued work authorizations, due to the Consultant being in Default 5.7 Should the Consultant remain in Default for a time period of fifteen (15) consecutive calendar days, the City may, at its option, retain another Consultant to perform any Work arising out of this Agreement and/or terminate this Agreement. ARTICLE 6 DELAY IN PERFORMANCE 6.1 City shall be entitled to withhold progress payments to Consultant for services rendered until completion of services to the City's satisfaction. 6.2 A delay due to an Act of Cod, fire, lockout, strike or labor dispute, rnanuf icturing delay, riot or civil commotion, act of public enemy or other cause beyond the control of Consultant, or by interruption of or delay in transportation, labor trouble from whatever cause arising and whether or not the demands of the employees involved are reasonable and with City's power to concede, partial or complete suspension of City's operations, compliance with any order or request of any governmental officer, department, agency, or committee shall not subject City to any liability to Consultant. At the City's option, the period specified for performance of services shall be extended by the period of delay occasioned by any such circumstance, and services omitted shall be made or performed during such extension, or the services so omitted shall extend this Agreement for a period equal to such delay. During this period such delay shall not constitute a delay by the Consultant. ARTICLE 7 COMPENSATION AND METHOD OF PAYMENT 7.1 City agrees to compensate Consultant for the services performed pursuant to the provisions of this Agreement based on the hourly rates, a copy of which is attached as Exhibit "A ", or as otherwise agreed to between the parties and set forth in a written amendment to this Agreement. 7.2 The Consultant shall submit to the City for approval, prior, to actual performance, the anticipated number of hours to be expended and the personnel to be assigned to each Project. If the services are performed in accordance with the City's approved expenditure of hours and utilization of personnel, the Consultant shall be entitled to invoice for work authorizations as they are completed. The Consultant shall submit an original invoice -14- and one copy to the City. This will be considered the official request for payment. The invoices shall include the following information: Invoice number for each work order and date, Amount previously billed; Amount due this invoice. 7.3 The City shall pay Consultant within thirty (30) days of receipt of any invoice the total shown to be due on such invoice, provided the City has accepted the Consultant's performance. I1;7tMC9101 4a OWNERSHIP OF DOCUMENTS 8.1 All documents, design plans and specifications resulting from the professional services rendered by the Consultant under this Agreement shall be deemed the sole property of the City, and the City shall have all rights incident to the sole ownership. Consultant agrees ghat all documents maintained and generated pursuant to this contractual relationship between. City and Consultant shall be subject to all provisions of Chapter 119.01 et. seq. Florida Statutes. 8.2 1"he Consultant shall agree to indemnify and hold harmless the City, from liabilities, damages, losses, and costs, including but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Consultant and other persons employed or utilized by the Consultant. 8.3 Any modifications made by the City to any of the Consultant's documents, or any use, partial use or reuse of the documents without written authorization or adaptation by the Consultant will be I at the City's sole risk and without liability to the Consultant and the City shall indemnify, defend, and hold the Consultant harmless from all claims, damages, losses and expenses including, but not limited to, attorney's fees resulting there from. ARTICLE 9 COURT APPEARANCE, CONFERENCES AND ]HEARINGS 9.1 This Agreement shall obligate the Consultant to prepare for and appear in litigation or any other proceeding on behalf of the City for any dispute arising out of this Agreement. Except for litigation caused by errors or omissions of the Consultant, Consultant shall be compensated for such litigation support services at its prevailing rates for such services. -15- 9.2 The Consultant shall confer with the City during the performance of the Services regarding the interpretation of this Agreement, the correction of the Consultant's errors and omissions, the preparation of any necessary revisions to correct the Consultant's errors and omissions or the clarification of service requirements, all without compensation. ARTICLE 10 REPRESENTATIONS 10.1 'The Consultant shall furnish all services, labor, equipment, and materials necessary and as may be required in the performance of this Agreement and all services performed under this Agreement shall be done in a professional manner. 10.2 The Consultant represents, with full knowledge that the City is relying upon these representations when entering into this Agreement with the Consultant, that the Consultant has the professional expertise, experience and manpower to perform the services as described in this Agreement. 10.3 '.rhe Consultant shall be responsible for technically deficient designs, reports or studies due to Consultant's errors and omissions, for four years after the date of :find acceptance of the Services by the City or as provided under Florida law, which ever is greater. The Consultant shall, upon the request of the City, promptly correct or replace all deficient work due to Consultant's errors or omissions which fall below the recognised standard of rare, without cost to City. The Consultant shall also be responsible for all damages resulting from the Consultant's documents. Payment in full by the City for services performed does not constitute a waiver of this representation. 10.4 All services performed by the Consultant shall be to the satisfaction of the City. In cases of disagreement or ambiguity, the City shall decide all questions, difficulties and disputes of whatever nature that may arise under this Agreement. The City's decision on all claims or questions is final. 10.5 11he Consultant warrants and represents that all of its employees, other consultants and sub - consultants are treated equally during employment or retention without regard to race, color, religion, gender, age or national origin. 10.6 The Consultant represents 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 contract and that it has not paid or agreed to pay any company or person other than a bona fide employee working solely for the Consultant any fee, commission, percentage fee, gifts or any other considerations contingent upon or resulting from the award or making of this contract. For breach or violation of this representation, the City shall have the right to cancel this Agreement without liability to the Consultant or any third party. &ocution of this Agreement by Consultant shall act as the execution of a truth-in- -16- negotiation certificate certifying that wage rates and casts used to determine the compensation provided for in this Agreement are accurate, complete, and current as of the date ofthis Agreement ARTICLE 11 NOTICES All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail addressed to the other party at the address indicated or as may be changed from time to time. Such notice shall be deemed given on the day on which personally served, or if by mail, on the date of actual receipt. Consultant: Kimley- -Horn & Associates, Inc. 5100 NW 33`6 Avenue, Suite 1:57 Ft. Lauderdale, FL 33309 Attu: Russell Barnes, P.E. City: City of Miami Gardens 1515 NW 1676' Street; Bldg, 5 Suite 200 Miami Gardens, Florida 33169 Attention: City Manager With a copy to: City Attorney 1515 N W 167` Street; Bldg. 5 Suite 200 Miami Gardens, Florida 33169 ARTICLE 12 AUDTr RIGHTS The City reserves the right to audit the records of the Consultant covered by this Agreement at any time during the execution of the Services and for a period three (3) years after final payment is made for any Work performed. ARTICLE 13 SUBCONTRACTING 13.1 No Services shall be subcontracted, assigned, or transferred under this Agreement without the prior consent of the City, which consent maybe withheld. I3.2 The Consultant shall be fully responsible to the City for all acts and omissions of any agents or employees, or approved subcontractors. Subcontractors shall have appropriate general liability, professional liability, and workers' compensation insurance, or be -17- covered by Consultant's insurance. Consultant shall furnish the City with appropriate proof of insurance and releases from all subcontractors in connection with the work performed. ARTICLE 14 TER1MiNATION 14.1 The City retains the right to terminate Consultant's services and/or this Agreement, with or without cause, upon ten (10) days written notice, at any time prior without penalty. City shall only be responsible to pay the Consultant for any service actually rendered up to the date of termination. Consultant shall not be entitled to any other amounts or damages, including but not limited to anticipated profits or consequential damages, special damages or any other type of damages upon termination by the City pursuant to this Article. 14.2 It is understood by the City and Consultant that any payment to Consultant shall be made only if Consultant is not in default under the terms of this Agreement. 14.3. Upon receipt of a Termination Notice and except as otherwise directed by the City, Consultant shall: 14.3.1 Stop work on the date and to the extent specified. 14.3.2 Terminate and settle all orders relating to the terminated work. 14.3.3 Transfer all work in progress, completed work, and other materials related to the terminated work to the City. ARTICLE 15 DEFAULT 15.1 An event of default shall mean a breach of this Agreement by the Consultant. Without limiting the generality of the foregoing and in addition. to those instances referred to as a breach, an event of default shall include the following: Consultant has not performed services on a timely basis; Consultant has refused or failed to supply enough properly skilled Personnel; Consultant has failed to make prompt payment to subcontractors or suppliers for any services after receiving payment from the City for such services or supplies; Consultant has failed to obtain the approval of the City where required by this Agreement, Consultant has failed in any representations made in this Agreement; or 18 Consultant has refused or failed to provide the ,services as defined in this Agreement. Consultant has filed bankruptcy or any other such insolvency proceeding and the same is not discharged within 90 days of such date. 15.2 In an Event of Default, the Consultant shall be liable for all damages resulting from the default, including: 13 The difference between the amount that has been paid to the Consultant and the amount required to complete the Consultant's world, provided the fees by the firm replacing the Consultant are reasonable and the hourly rates do no exceed the Consultant's rates. This amount shall also include procurement and administrative costs incurred by the City. U Consequential damages and Incidental damages. 15.3 The City may take advantage of each and evvery remedy specifically existing at law or in equity. Each and every remedy shall be in addition to every other remedy given or otherwise existing and may be exercised from time to time and as often and in such order as may be deemed expedient by the City. The exercise or the beginning of the exercise of one remedy shall not be deemed to be a waiver of the right to exercise any other remedy. The City's rights and remedies as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to the City in law or in equity. ART1C 16 The Consultant shall defend, indemnify and hold harmless the City„ its officers and employees from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wmngfal conduct of the Consultant and other persons employed or utilized by the Consttitant in the performance of this Agreement. ARTICLE 17 INSURANCE 17.1 Throughout the term of this Agreement, the Consultant shall maintain in force at its own expense, insurance as follows: 17.1.1 Workers' Compensation: Workers' Compensation Insurance with statutory limits, including coverage for Employer's Liability, with limits not less than $1,000,000. -19- 17.1.2 General. Liability: Commercial General Liability with limits not less than $1,000,000 each occurrence combined single limit for Bodily Injury and Property damage including coverage for contractual liability, personal injury, broad form property damage, products and completed operations. This coverage is required by the Consultant and any subcontractor or anyone directly or indirectly employed by either of them. The City shall be named additional insured. 1.7.1.3 Automobile Liability: Comprehensive or Business Automobile Liability Insurance with not less than $500,000 each occurrence combined single limit for Bodily Injury and Property Damage including coverage for owned, hire and non - owned vehicles as applicable. The Consultant and any of its approved subcontractors shall take out and maintain this insurance coverage against claims for damages resulting from bodily injury, including wrongful death and property damage which may arise from the operations of any owned, hired or non -owned automobiles and/or equipment used in any endeavor in connection with the carrying out of this Agreement. The City shall be named as an additional insured. 17.1.4 Professional Liability: The Consultant, its officers, employees and agents will provide the City a Certificate of Insurance evidencing professional liability insurance with limits of not less than $2,000,000 aggregate with respect to acts, , errors or omissions in connection with professional services to be provided under this Agreement and any deductible is not to exceed $100,000 for each claim. Consultant represents it is financially responsible for the deductible amount. The Consultant shall maintain professional liability insurance during the term of this Agreement and for a period of four (4) years from the date of completion of each Project. In the event that Consultant goes out of business during the term of this Agreement or the four (4) year period described above, Consultant shall purchase Extended Reporting Coverage for claims arising out of Consultant's negligent acts errors and omissions during the term of the Professional Liability Policy. 17.1.5 Subcontractors Insurance: Each subcontractor shall furnish to the Consultant two copies of the Certificate of Insurance and Consultant shall furnish one copy of the Certificate to the City, and shall name the City as an additional insured. 17.2 All insurance policies required of the Consultant shall be written by a company with a Best's rating of B+ or better and duly authorized and licensed to do business in the State of Florida and be executed by duly licensed agents upon whom service of process may be made in Miami -Dade county, Florida. The City may accept coverage with caniers having lower Best's ratings upon review of financial information concerning Consultant and the insurance carrier. -20- 17.3 Ibe required insurance shall be proved under occurrence based policies, claims made basis policy for Professional Liability, which Consultant shall maintain continuously throughout the term of this Agreement 17.4 Any deductibles or self- ftwxred retentions must be declared to and approved by the City Manager or designee prior to the start of work under this Agreement. The City reserves the right to request additional documentation, f7 weial or other such documentation as well as such additional insurance as the City Manager deems appropriate, prior to giving approval of the deductible or self - insured retention and prior to executing; the Agreement. The City manager or designee, prior to the change taking effect, must approve any changes to the deductibles or self-insured retentions made during the term of this Agreement or during the term of any policy. ARTICLE 18 ATTORNEYS FEES If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the sucxessful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, expenses and court costs, including appellate fees incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled. ARTICLE 14 CODES, ORDINANCES, AND LAW The Consultant shall abide and be governed by all applicable local, state and federal codes, ordinances, and laws, rules, regulations and directives regarding the Consultant's Services. ARTICLE 20 ENTIRETY OF AGREEMENT This Agreement and its attachments constitute the sole and only Agreement of the parties and sets forth the rights, duties, and obligations of each party. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. ARTICLE 21 NON - EXCLUSIVE AGREEMENT -21- The professional services to be provided by the Consultant pursuant to this Agreement shall be nonexclusive, and nothing shall preclude the City from engaging other firms to perform similar professional services. ARTICLE 22 GOVERNING LAW; VENUE This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue shall be in Miami -Dade County, Florida. ARTICLE 23 INDEPENDENT CONTRACTOR Consultant and its employees and agents shall be deemed to be independent contractors, and not City agents or employees. The Consultant, its employees or agents shall not attain any rights or benefits under the City's retirement plan nor any rights generally afforded the City's classified or unclassified employees. The Consultant shall not be deemed entitled to the Florida Workers, Compensation benefits as a City employee. ARTICLE 24 NONDISCRE IINATION Consultant agrees that it shall not discriminate as to race, sex, color, creed, national origin, or disability, in connection with its performance under this Agreement. ARTICLE 25 AMENDMENTS No amendments to this Agreement shall be binding on either party -unless in writing and signed by both parties. ARTICLE 25 CONDUCTICONFLICT OF INTEREST Consultant covenants that no person under its employ who presently exercises any fimctions or responsibilities on behalf of the City in connection with this Agreement has any personal financial interest, direct or indirect, with contractors or vendors providing professional services on projects assigned to the Consultant, except as My disclosed and approved by the City. -22- Consultant further covenants that, in the performance of this Agreement, no person having such conflicting interest shall be employed. ARTICIL.E 27 OTHER PROVISIONS 27.1 Title and paragraph headings are for convenient reference and are not a part of this Agreement. 27.2 No waiver or breach of any provision of this Agreement shall constitate a waiver of any - subsequent breach of the same of any other provision, and no waiver shall be effective unless made in writing. 27.3 Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida by a court of competent jurisdiction, such provision, paragraph, sentence, word or phrase shall be deemed modified in order to conform with Florida law. If not -23- modifiable to conform with such law, then it shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in, full force an effect. 27A This Agreement is binding upon the parties hereto their heirs, successors and assigns. 27.5 This Agreement shall not be construed against the party who drafted the same as all parties to this Agreement have had legal and business advisory's review the adequacy of the same. 27.6 This Agreement may not be assigned by the Consultant without the express written consent of the City, which consent may be withheld. IN WITNESS WHEREOF, this Agreement is effective as of the date rst written above. -23- CITY OF City Manager AT7`ES 7�� City Clerk AP OVER AS TO FORM: City Attorney 1�1 CONSULTANT COMPENSATION RAITS l . Fee estimate for projects with a total construction cost up to $1,000,000.00 for project profiles as stated in the scope of projects: Civil Engineming -- Roads, Padding Lofts, Utilities —1 >s %Lump Sinn of the Construction Cost 2. Hourly rate schedule for personnel including overhead and profit. Principals $ Project IUger $ / 7S C mfltant/Enginem _ $ 14® CARD Operator $ 8�� Junior Consaltant/F.ngineer $ Drafling $ .� Clfiicid 5,5' aS11bwnsultaIIt @ pod +5% ove&ead & . %p post NO reimbursement for normal office procedures including but pot limited to �� Photo cDP M tar Postag local mileage, bluepnns and digital cep /fit Iu�► S' 1Jt4.,a�u/y� otj ��ul� 1 f �7�d r� LeQl1lSDLT/i` S r� �" �s M A Iue ;rtf�e,� by �rLc C3/) r �`1 Y I�`'r' y� 0� JV/V l oo � e4G MR.