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Nutting Engineers of Fla Inc., AgreementC `1 G - y/i,/c ~ ~r~~o~_~~/c AGREEMENT BETWEEN CITY OF MIAMI BEACH AND NUTTING ENGINEERS OF FLORIDA, INC FOR PROFESSIONAL GEOTECHNICAL AND LABORATORY TESTING SERVICES, ON AN AS NEEDED BASIS FOR THE CITY OF MIAMI BEACH JULY 2007 CITY CLERK Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 TABLE OF CONTENTS DESCRIPTION PAGE ARTICLE 1 DEFINITIONS 5 1.1 City 5 1.2 City Commission 5 1.3 City Manager 5 1.4 Proposal Documents 5 1.5 Consultant 5 1.6 City Project Coordinator 6 1.7 Program Manager 6 1.8 Basic Services 6 1.9 The Project 6 1.9.1 The Project Cost 6 1.9.2 The Project Scope 6 1.10 Force Majeure 6 1.11 Contractor 7 1.12 Contract Documents 7 1.13 Contract for Construction 7 1.14 Additional Services 7 1.15 Services 7 1.16 Schedules 8 1.17 Scope of Services 8 ARTICLE 2. BASIC SERVICES 8 2.1 Geotechnical and Laboratory Testing Services 9 2.2 [Intentionally omitted] 9 2.3 Responsibility for Claims and Liabilities 9 2.4 Time 9 ARTICLE 3. THE CITY'S RESPONSIBILITIES 13 ARTICLE 4. ADDITIONAL SERVICES 17 ARTICLE 5. REIMBURSABLE EXPENSES 18 ARTICLE 6. COMPENSATION FOR SERVICES 19 ARTICLE 7. CONSULTANT'S ACCOUNTING RECORDS 20 ARTICLE 8. OWNERSHIP AND USE OF DOCUMENTS 20 2 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 ARTICLE 9. TERMINATION OF AGREEMENT 21 9.1 Termination for lack of Funds 21 9.2 Termination for Cause 21 9.3 Termination for Convenience 22 9.4 Termination by Consultant 22 9.5 Implementation of Termination 23 9.6 Non-Solicitation 23 ARTICLE 10. INSURANCE 23 ARTICLE 11. INDEMNIFICATION 24 ARTICLE 12. VENUE 25 ARTICLE 13. LIMITATION OF LIABILITY 25 ARTICLE 14. MISCELLANEOUS PROVISIONS 26 ARTICLE 15. NOTICE 28 SCHEDULES: SCHEDULE A CONSULTANT SERVICE ORDER (SCOPE OF SERVICES) 30 SCHEDULE B CONSULTANT COMPENSATION 31 INSURANCE CHECKLIST 32 3 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 TERMS AND CONDITIONS OF AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT NuT~iaU( ~lU~l/U' DF ~u~1udA ,~G FOR PROFESSIONAL GEOTECHNICAL AND LABORATORY TESTING SERVICES ON AN AS NEEDED BASIS This Agreement made and entered into this ~l day of L , 2007, by and between the CITY OF MIAMI BEACH, a municipal corporation existing under the laws of the State of Florida (hereinafter referred to as City), having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and a corporation having its principal office at (hereinafter referred to as Consultant). WITNESSETH: WHEREAS, the City intends to undertake various projects within the City of Miami Beach, pursuant to Section 287.055, of the Florida Statutes, known as the Consultant's Competitive Negotiation Act, and wishes to engage the Consultant to provide professional services for certain projects to be assigned by means of the issuance of a "Consultant Service Order" similar to the form shown in Schedule "A" to this Agreement, detailing the scope of each assigned project to be set forth in the Consultant Service Order, and the fees for the services provided will be determined as set forth in this Agreement; and WHEREAS, the Consultant desires to contract with the City for performance of professional services relative to those projects assigned by the City, as specifically described in the Consultant Service Order. NOW THEREFORE, City and Consultant, in consideration of the mutual covenants and agreements herein contained, agree as follows: 4 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 ARTICLE 1. DEFINITIONS 1.1 CITY: The "City" shall mean the City of Miami Beach, a Florida municipal corporation having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139. 1.2 CITY COMMISSION: "City Commission" shall mean the governing and legislative body of the City. 1.3 CITY MANAGER: The "City Manager" shall mean the chief administrative officer of the City. The City Manager shall be construed to include any duly authorized designees, including the Project Coordinator and / or Program Manager, and shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. 1.4 PROPOSAL DOCUMENTS: "Proposal Documents" shall mean the REQUEST FOR QUALIFICATIONS (RFQ) NO. 04-06/07 FOR CITYWIDE GEOTECHNICAL AND LABORATORY SERVICES, ON AN AS NEEDED BASIS FOR THE CITY OF MIAMI BEACH, issued by the City in contemplation of this Agreement, together with all amendments thereto, if any, and the Consultant's proposal in response thereto (Proposal), which is incorporated by reference in this Agreement and made a part hereof; provided, however, that in the event of an express conflict between the Proposal Documents and this Agreement, this Agreement shall prevail. 1.5 CONSULTANT: The "Consultant" is herein defined as a corporation having its principal office at .When the term "Consultant" is used in this Agreement it shall be deemed to include any sub-consultants and any other person or entity acting under the direction or control of Consultant. Any subconsultants retained by Consultant pursuant to this Agreement and the Project shall be subject to prior written approval of the City. The following subconsultants were included in the Consultant's 5 Professional Geotechnica] and Laboratory Testing Services on an As Needed Basis July 2007 Proposal and are hereby approved by the City for projects to be performed under this contract: (Consultant shall provide the City with a subconsultant list before commencing any work and/or services pursuant to this Agreement. The City reserves the right, at its sole discretion, to disapprove any subconsultants.) 1.6 PROJECT COORDINATOR: The "Project Coordinator" shall mean the individual appointed by the City Manager who shall be the City's authorized representative to coordinate, direct, and review on behalf of the City, all matters related to the Project, except as otherwise provided herein. 1.7 PROGRAM MANAGER: Although most of the projects under this Agreement will not require a Program Manager. For those projects that have program management, the Program Manager will act as the representative of the City. 1.8 BASIC SERVICES: "Basic Services" shall include the geotechnical and laboratory testing services, as described in the "Consultant Service Order", attached to this Agreement and issued by the City to the Consultant hereunder. 1.9 PROJECT: The "Project" shall mean the City's Project, described in the "Consultant Service Order" attached to this Agreement, which will be approved by the City Manager or his designee, and issued to the Consultant. 1.9.1 PROJECT COST: The "Project Cost", as established by the City, shall mean the total cost of the Project to the City including: geotechnical reports, materials testing services, surveys, contingencies, reimbursables, and other miscellaneous costs. 1.9.2 PROJECT SCOPE: The "Project Scope" shall mean the description of the Project contained in the "Consultant Service Order" issued to the Consultant by the City hereunder, as modified by any approved change orders issued subsequently. 1.10 FORCE MAJEURE: "Force Majeure" shall mean any delay occasioned by superior or 6 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 irresistible force occasioned by violence in nature without the interference of human agency such as humcanes, tornadoes, floods, loss caused by fire and other similar unavoidable casualties; or by changes in Federal, State or local laws, ordinances, codes or regulations, enacted after the date of this Agreement and having a substantial impact on the Project; other causes beyond the parties' control; or by any other such causes which the Consultant and the City decide in writing justify the delay; provided, however, that market conditions, labor conditions, construction industry price trends and similar matters which normally impact on the bidding process shall not be considered a Force Majeure. 1.11 CONTRACTOR /CONTRACTORS: "Contractor" or "Contractors" shall mean those persons or entities responsible for performing Work or providing materials, supplies and equipment identified in a bid and construction documents for a City Project. 1.12 CONTRACT DOCUMENTS: "Contract Documents" shall mean this Agreement and the "Consultant Service Order". 1.13 CONTRACT FOR CONSTRUCTION: "Contract for Construction" shall mean a legally binding agreement with Contractors. 1.14 ADDITIONAL SERVICES: "Additional Services" shall mean those services described in Article 4 herein, which have been duly authorized in writing by the City Manager prior to commencement of same. 1.15 SERVICES: "Services" shall mean the services to be performed on the specified Project by the Consultant pursuant to this Agreement, and the "Consultant Service Order(s)" issued hereunder, whether completed or partially completed, and includes other labor and materials, equipment and services provided, or to be provided, by Consultant to fulfill its obligations herein. 1.16 SCHEDULES: "Schedules" shall mean the various schedules attached to this Agreement, as described in the Consultant Service Order(s), and referred to as follows: Schedule A -Consultant Service Order (Scope of Service) 7 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 Schedule B- Consultant Compensation: The schedule of compensation to the Consultant for Basic Services, and for Reimbursable Expenses, as defined, plus any Additional Services, as submitted by the Consultant and approved by the City. 1.17 SCOPE OF SERVICES: "Scope of Services" shall mean the Project Scope as described in the "Consultant Service Order(s)", Schedule "A", issued by the City hereunder, together with the Basic Services and any Additional Services approved by the City, as described in Articles 2 and 4, respectively herein. ARTICLE 2. BASIC SERVICES 2.1 The Consultant shall provide Basic Services for the Project as set forth hereafter. Basic Services shall include, without limitation, (1) Geotechnical Services including but not limited to construction monitoring, soil borings, soils evaluations, and verification of compliance with permit conditions and (2) Laboratory Services including but not limited to evaluations and testing of soils, paint, concrete, asphalt, and other materials. The Services will be performed by the Consultant upon receipt of a written Consultant Service Order signed by the City Manager, or his designee. Consultant shall countersign the Consultant Service Order upon receipt, and return the signed copy to the City. The Consultant shall coordinate with subconsultants and other consultants, and conform to all applicable codes and regulations. Consultant, as it relates to its Services, represents and warrants to the City that it is knowledgeable of codes, rules and regulations applicable in the jurisdictions in which the Project is located, including, local ordinances and codes (City of Miami Beach and Miami-Dade County), Florida Statutes, administrative rules and regulations (including the regulations of the Florida Department of Transportation [FDOT] and Florida Department of Environmental Protection [FDEP], if applicable), and Federal laws, rules and regulations. The Consultant agrees to comply with all such laws, codes, rules, and regulations now in effect, and as may be amended or adopted at any time, and shall further take into account all known pending changes to the foregoing, of which it should reasonably be aware. 8 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 The Consultant expressly agrees that all of its duties, services and responsibilities under this Agreement shall be performed in accordance with the standard of care normally exercised in the design of projects of this nature in South Florida. In addition, Consultant represents that it is experienced and fully qualified to perform the Services contemplated by this Agreement, and that it is properly licensed pursuant to the applicable laws, rules and regulations to perform such Services. Consultant warrants that it shall be responsible for the technical accuracy of its work and the Services. 2.2 [Intentionally omitted.] 2.3 RESPONSIBILITY FOR CLAIMS AND LIABILITIES: Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant, its employees, subcontractors, agents and consultants for the accuracy and competency of their designs, working drawings, specifications or other documents and services; nor shall such approval be deemed to be an assumption of such responsibility by the City for a defect, error or omission in designs, working drawings, specifications or other documents prepared by the Consultant, its employees, subcontractors, agents and consultants. However, the Consultant shall be entitled to reasonably rely upon the accuracy and validity of written decisions and approvals furnished by the City and its employees. 2.4 TIME: It is understood that time is of the essence in the completion of this Project, and in this respect the parties agree as follows: 2.4.1 The Consultant shall perform the Services as expeditiously. as is consistent with the standard of professional skill and care required by this Agreement and the orderly progress of the Work. 2.4.2 The parties agree that the Consultant's Services during all phases of this Project will be performed in a manner that shall conform with the approved Project Schedule. The Consultant may submit requests for an adjustment to the Project Schedule, made necessary by undue time taken by the City to approve the Consultant's submissions, and/or excessive time taken by the City to approve the Services or 9 _ Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 parts of the Services. The City shall not unreasonably refuse to approve such adjustment(s) to the Project Schedule if the request is made in a timely manner and is fully justified. 2.4.3 In providing the Services described in this Agreement, the Consultant shall use its best efforts to maintain, on behalf of the City, a constructive, professional, cooperative working relationship with the City's Project Coordinator, Contractor(s), and others that have been contracted to perform Services and / or Work pertaining to the Project. 2.4.4 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be responsible to the City for any failure in its performance except to the extent that acts or omissions by the City or others make such performance impossible. 2.4.5 Whenever during the term of this Agreement, others are required to verify, review, or consider any work performed by Consultant, including but not limited to the design professionals, Contractors, and other consultants retained by the City, Consultant shall address comments forwarded to it in a timely manner. The term "timely" shall be construed to mean as soon as possible under the circumstances, taking into account the requirements of the Project Schedule. 2.4.6 The City shall have the right at any time, and in its sole and absolute discretion, to submit for review to consulting engineers or consulting architects or other consultants, engaged by the City at its own expense for that purpose, any or all parts of the services performed by the Consultant, and the Consultant shall cooperate fully in such review at the City's request. 2.4.7 Consultant agrees that, when the Services to be provided hereunder relate to a professional service which, under Florida Statutes, requires a license, certification of authorization, or other form of legal entitlement to practice such services, it to Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 shall employ and/or retain only qualified personnel to provide such services. 2.4.8 Consultant agrees to employ and designate in writing, within five (5) calendar days after receiving a signed Consultant Service Order, a qualified professional to serve as the Consultant's project manager (herein after referred to as "Project Manager"). The Project Manager shall be authorized and responsible to act on behalf of Consultant with respect to directing, coordinating and administrating all aspects of Services to be provided and performed under this Agreement. 2.4.9 Consultant agrees, within fourteen (14) calendar days of receipt of written notice to do such from City, to promptly remove and replace Project Manager, or any other personnel employed or retained by Consultant, or any subconsultant or subcontractors engaged by Consultant, which request may be made by City with or without stating its cause. 2.4.10 Consultant herein represents to City that it has expertise in the type of professional services that will be performed and pursuant to this Agreement. Consultant agrees that all Services to be provided by Consultant pursuant to this Agreement shall be subject to City's review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with applicable published laws, statutes, ordinances, codes, rules, regulations and requirements of any governmental agencies having jurisdiction over the Project or the Services to be performed by Consultant hereunder. In the event of any conflicts in these requirements, Consultant shall notify City of such conflict and utilize its best professional judgment to advise City regarding resolution of each such conflict. 2.4.11 Consultant agrees not to divulge, furnish or make available to any third person, firm or organization, without City's prior written consent, or unless incident to the proper performance of 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 Services to be rendered by 11 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 Consultant hereunder, and Consultant shall require its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. 2.4.12 The City and Consultant acknowledge that the Scope of Services under Schedule "A" may not delineate every detail and minor work task required to be performed by Consultant to complete the Project. If, during the course of the performance of the Services contemplated in this Agreement, Consultant determines that work should be performed to complete the Project which is, in the Consultant's opinion, outside the level of effort originally anticipated, whether or not the Scope of Services identifies the work items, Consultant shall notify the Project Coordinator, in writing, in a timely manner, and obtain said Project Coordinator's written consent, before proceeding with the work. The Project Coordinator must comply with Contract Amendment processing requirements as outlined in Article 1.16, prior to issuance of any written authorization to proceed with Additional Services to Consultant. If Consultant proceeds with additional Services without notifying and obtaining the consent of the Project Coordinator, said work shall be deemed to be within the original level of effort, and deemed included as a Basic Service herein, whether or not specifically addressed in the Scope of Services. Notice to the Project Coordinator does not constitute authorization or approval by the City to perform the work. Performance of work by Consultant outside the originally anticipated level of effort without the prior written consent of the City shall be at Consultant's sole risk. 2.4.13 Consultant shall establish and maintain files of documents, letters, reports, plans, etc. pertinent to the Project. Consultant shall provide City with a copy of applicable Project correspondence for City to file in its filing system. 2.4.14 It is further the intent of this Agreement that the Consultant shall perform its duties under this Agreement in a competent, timely and professional manner and that it shall be responsible to the City for any failure in its performance except to the extent that acts or omissions by the City or others make such performance 12 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 impossible. 2.4.15 In the event Consultant is unable to timely complete the Project because of delays resulting from delays which are caused by factors outside the control of Consultant, Consultant shall provide City with immediate written notice stating the reason for such delay and a revised anticipated schedule of completion. City, upon review of Consultant's submittal and such other documentation as the City may require, may grant a reasonable extension of time for completion of the Project and may provide reasonable compensation, if appropriate. 2.4.16 The Consultant covenants with the City to furnish its Services hereunder properly, in accordance with the standards of its profession and in conformance with applicable construction, building and health codes and other applicable Federal, State and local rules, regulations and laws, of which it should reasonably be aware, throughout the term of this Agreement. City participation in the Project in no way relieves the Consultant of its professional duties and responsibilities under applicable law and under the Contract Documents ARTICLE 3. THE CITY'S RESPONSIBILITIES 3.1 The City shall designate in writing a Project Coordinator to act as the City's representative with respect to the services to be rendered under this Agreement (herein after referred to as Project Coordinator). The Project Coordinator shall have authority to transmit instructions, receive information, interpret and define City policies and decisions with respect to Consultant's Services on this Project. However, the Project Coordinator is not authorized to issue any verbal or written orders or instructions to Consultant that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatsoever, unless approved by the City Manager andlor City Commission in compliance with Article 1.16 requirements, including but not limited to the following: a) The Consultant Service Order describing tasks to be provided and performed by Consultant hereunder; 13 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 b) The time the Consultant is obligated to commence and complete all such Services; or c) The amount of compensation the City is obligated or committed to pay Consultant. 3.2 The City shall assist Consultant by placing at Consultant's disposal all information City has available pertinent to the Project, including previous reports and any other data relative to design or construction of the Project. It shall be fully understood that City, in making such reports, site information, and documents available to the Consultant is in no way certifying representing andlor warranting as to the accuracy or completeness of such data, including, but not limited to, any information provided in the City's Request for Qualifications and backup documentation thereto. Any conclusions or assumptions drawn through examination thereof shall be the sole responsibility of the Consultant and subject to whatever measure it deems necessary to final verification essential to its performance under this Agreement. Additional Services required due to inaccurate, incomplete or incorrect information supplied by the City may be undertaken by the Consultant as an Additional Service to this Agreement. Consultant shall notify the Project Coordinator, in writing, in a timely manner and obtain said Project Coordinator's written consent, before proceeding with the work. If Consultant proceeds with the Additional Services without notifying and obtaining the consent of the Project Coordinator, said work shall be deemed to be within the original level of effort and deemed included as a Basic Service herein. 3.3 In the City's sole discretion, the City may furnish legal, accounting and insurance counseling services as may be required at any time for the Project, including such auditing services as the City may require to verify the Consultant's applications for payment or to ascertain that Consultant has properly remitted payment due to sub consultants or vendors working on this Project for which Consultant has received payment from the City. 3.4 If the City observes or otherwise becomes aware of any fault or defect in the Project or non-conformance with the Contract Documents, the City shall give prompt written notice 14 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis thereof to the Consultant. July 2007 3.5 The City shall furnish required information and services and render approvals and decisions in writing as reasonably expeditious as necessary for the orderly progress of the Consultant's Services. No approvals required by the City during the various phases of the Project shall be unreasonably delayed or withheld; provided that the City shall at all times have the right to approve or reject any proposed submissions of Consultant for any reasonable basis. 3.6 The City Commission shall be the final authority to do or to approve the following actions or conduct by passage of an enabling resolution or amendment to this Agreement. 3.6.1 The City Commission shall be the body to consider, comment upon, or approve any amendments or modifications to this Agreement, except when noted otherwise (i.e., where delegated to the City Manager or his designee) in this Agreement. 3.6.2 The City Commission shall be the body to consider, comment upon, or approve any assignment, sale, transfer or subletting of this Agreement or any interest therein and any subcontracts made pursuant to this Agreement. Assignment and transfer shall be defined to include sale of the majority of the stock of a corporate Consultant. 3.6.3 All required City Commission approvals and authorizations shall be expressed by passage of an appropriate enabling resolution and, if an amendment, by the execution of an appropriate amendment to this Agreement. 3.6.4 The City Commission shall hear appeals from the administrative decision of the City Manager's appointed designee(s), upon the Consultant's written request, in which case the Commission's decision shall be final. 3.6.5 The City Commission shall approve or consider all Contract Amendments that 15 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Procurement Ordinance, as amended). 3.7 The City Manager or his designee(s) shall serve as the City's representative to whom administrative requests for approvals shall be made and who shall issue authorizations (exclusive of those authorizations reserved to the City Commission) to the Consultant. These authorizations shall include, without limitation: reviewing, approving, or otherwise commenting upon the schedules, plans, reports, estimates, contracts and other documents submitted to the City by the Consultant. 3.7.1 The City Manager shall decide, in his professional discretion, matters arising pursuant to this Agreement which are not otherwise expressly provided for in this Agreement, and shall attempt to render administrative decisions promptly to avoid unreasonable delay in the progress of the Consultant's Services. The City Manager, in his administrative discretion, may consult with the City Commission concerning disputes or matters arising under this Agreement regardless of whether such matters or disputes are enumerated herein. 3.7.2 The City Manager shall be authorized, but not required, at the request of the Consultant, to reallocate monies already budgeted toward payment of the Consultant, provided, however, that the Consultant's compensation or other budgets established by this Agreement cannot be increased. 3.7.3 The City Manager, or his designee, shall be the sole representative of the City authorized to issue a Consultant Service Order. 3.7.4 The City Manager may approve Contract Amendments which do not exceed the sum of twenty five thousand dollars ($25,000.00) (or other such amount as may be specified by the City of Miami Beach Purchasing Ordinance, as amended) and which do not increase any of the budgets established herein. 3.7.5 The City Manager may, in his sole discretion, form a committee or committees, or inquire of or consult with persons for the purpose of receiving advice and 16 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 recommendations relating to the exercise of his powers, duties and responsibilities under this Agreement. ARTICLE 4. ADDITIONAL SERVICES 4.1 Additional Services for Projects under this Agreement will only be performed by the Consultant following receipt of a written authorization by the City Manager or his designee, prior to commencement of same. Such authorization shall contain a description of the Additional Services required; a "Not to Exceed" fee with a "Not to Exceed" amount on additional Reimbursable Expenses (if any) and an amended completion date for the Project (if any). "Not to Exceed" shall mean the maximum cumulative fees allowable, which the Consultant shall not exceed without specific written authorization from the City. The "Not to Exceed" amount is not a guaranteed maximum cost for the services requested by the City. 4.2 The term "Additional Services" includes services involving the Consultant or any subconsultants whether previously retained for the Services or not or whether participating as members with Consultant or not, subject to the City's right to previously approve any change in Consultants as set forth in this Agreement. 4.3 Additional Services may consist of the following: 4.3.1 Serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding unless such preparation has arisen from the failure of the Consultant to meet the Standard of Care set forth in Article 2. 4.3.2 Preparing documents for Change Orders, or supplemental Work, initiated at the City's request and outside the scope of the Work specified in the Construction Documents, after commencement of the Construction Phase. 4.3.3 Providing such other professional services to the City relative to the Project which arises from subsequent circumstances and causes (excluding circumstances and 17 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 causes resulting from error, inadvertence or omission of the Consultant) which do not currently exist or which are not contemplated by the parties at the time of execution of this Agreement. ARTICLE 5. REIMBURSABLE EXPENSES 5.1 Reimbursable Expenses are in addition to the compensation for Basic and Additional Services and include actual expenditures made by the Consultant in the interest of the Project. All Reimbursable Expenses pursuant to this Article, in excess of $1,000, must be authorized in advance in writing by the City's Project Coordinator. Invoices or vouchers for Reimbursable Expenses shall be submitted by the Consultant to the City, along with supporting receipts, and other back-up material reasonably requested by the City, and Consultant shall certify as to each such invoice that the amounts and items claimed as reimbursable are "true and correct and in accordance with the Agreement". 5.2 Expenses subject to reimbursement in accordance with the above procedures may include the following: 5.2.1 Expense of reproduction, postage and handling of drawings, specifications and other documents, excluding reproductions for the office use of the Consultant and sub-consultants. Courier and postage between the Consultant and its sub- consultants are not reimbursable. 5.2.2 Fees for all necessary permits required for the performance of the work.. ARTICLE 6. COMPENSATION FOR SERVICES 6.1 The Consultant shall be compensated the not to exceed, cost reimbursable fee listed in Schedule "B" for Basic Services. Payments for Basic Services shall be made within forty- five (45) calendar days of receipt and approval of an acceptable invoice by the City Project Coordinator. 18 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 6.2 Additional Services authorized in accord with Article 4 will be compensated a not to exceed, cost reimbursable fee. Request for payment of Additional Services shall be included with the monthly Basic Services payment request noted in Article 6.1 above. All Additional Services must be approved by the Project Coordinator, in writing, prior to commencement of same, as noted in Article 4. Under no circumstances shall the "Not to Exceed" amount noted in Schedule "B" be exceeded without prior written approval from the City Project Coordinator. No markup shall be allowed on subcontracted Additional Services. 6.3 Reimbursable Expenses, as defined. in Article 5, shall be paid up to the "Not to Exceed" amount noted in Schedule "B". Request for payment of Reimbursable Expenses shall be included with the monthly Basic Services payment request noted in Article 5. Proper backup must be submitted with all reimbursable requests. No markup or administrative charges shall be allowed on Reimbursable Expenses. 6.4 No retainage shall be made from the Consultant's compensation. 6.5 Method of Billing and Payment. With respect to all Services, Consultant shall submit billings on a monthly basis in a timely manner. These billings shall identify the nature of the work performed. In the event subconsultant work is accomplished utilizing the lump sum method, the percentage of completion shall be identified. Billings shall also itemize and summarize Reimbursable Expenses by category. Where written approval of the City is required for Reimbursable Expenses, a copy of said approval shall accompany the billing for such Reimbursable. When requested, Consultant shall provide backup for past and current invoices. 6.6 The City shall pay Consultant within forty-five (45) calendar days from receipt of Consultant's proper statement. ARTICLE 7. CONSULTANT'S ACCOUNTING RECORDS 7.1 Consultant shall keep such records and accounts and require any and all Consultant and subconsultants to keep such records and accounts as may be necessary in order to record 19 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 complete and correct entries for charges to the Project, and any expenses for which Consultant expects to be reimbursed. All books and records relative to the Project will be available at all reasonable times for examination and audit by City and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Agreement. Incomplete or incorrect entries in such books and records will be grounds for City's disallowance of any fees or expenses based upon such entries. All books and records which are considered public records shall, pursuant to Chapter 119, Florida Statutes, be kept by Consultant in accordance with such statutes. ARTICLE 8. OWNERSHIP AND USE OF DOCUMENTS 8.1 Electronic files of all documents, including, but not limited to, tracings, drawings, specifications, investigations and studies completed or partially completed, shall become the property of the City upon completion, termination, or abandonment of the Project. Consultant shall deliver the above documents to the City within thirty (30) days of completion of the Project, or termination of this Agreement, or termination or abandonment of the Project. (Reference attached Schedule "A", entitled "Consultant Service Order" for any additional requirements). 8.2 Any re-use of documents by City without written verification or adaptation by Consultant for the specific purpose intended will be without liability to Consultant. ARTICLE 9. TERMINATION OF AGREEMENT 9.1 Termination For Lack Of Funds: The City is a governmental entity and is subject to the appropriation of funds by its legislative body in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this Agreement. In the event there is a lack of adequate funding for the construction of the Project, the Project may be abandoned or terminated, and the City may cancel this Agreement as provided for herein without further liability to the City. 9.2 Termination For Cause: The City may terminate this Agreement for cause in the event that the Consultant (1) violates any provisions of this Agreement or performs same in bad 20 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 faith or (2) unreasonably delays the performance of the Services or does not perform the Services in a timely and satisfactory manner, upon written notice to the Consultant. In the case of termination by the City for cause, the Consultant shall be first granted a thirty (30) day cure period after receipt of written notice from the City. 9.2.1 In the event this Agreement is terminated by the City for cause, the City, at its sole option and discretion, may take over the Services and complete them by contracting with another consultant or otherwise. In such event, the Consultant shall be liable to the City for any additional cost incurred by the City due to such termination. "Additional Cost" is defined as the difference between the actual cost of completion of such incomplete Services, and the cost of completion of such Services which would have resulted from payments to the Consultant hereunder had the Agreement not been terminated. 9.2.2 Payment only for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of a Notice of Termination, shall be made in accordance with Article 6 herein and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 6. 9.2.3 Upon receipt of a written Notice of Termination, the Consultant shall promptly assemble and submit to the City, as provided herein or as required in the written notice, all documents, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by such termination. 9.2.4 In the event of a termination for cause, no payments to the Consultant shall be made (1) for Services not satisfactorily performed and (2) for assembly of submittal of documents, as provided above. 9.3 Termination For Convenience: The City, in addition to the rights and options to Terminate for Cause, as set forth herein, or any other provisions set forth in this Agreement, retains the right to terminate this Agreement, at its sole option, at any time, for convenience, without cause and without penalty, when in its sole discretion it deems 21 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 such termination is in the best interest of the City, upon notice to Consultant, in writing, fourteen (14) days prior to termination. In the event City terminates Consultant's services for its convenience, as provided herein, Consultant shall be compensated for all Services rendered up to the time of receipt of said written termination notice, and for the assembly and submittal to the City of documents for the Services performed, in accordance with Article 6 herein, and the City shall have no further liability for compensation, expenses or fees to the Consultant, except as set forth in Article 6. 9.4 Termination By Consultant: The. Consultant may only terminate this Agreement for cause in the event that the City willfully violates any provisions of this Agreement or unreasonably delays payment for the Services, upon written notice to the City, thirty (30) days prior to termination. In that event, payment for Services satisfactorily performed by the Consultant and accepted by the City prior to receipt of a Notice of Termination shall be made in accordance with Article 6 herein. In the case of termination by Consultant for cause, the City shall be granted a thirty (30) day cure period after receipt of written notice from the Consultant. 9.4.1 The Consultant shall have no right to terminate this Agreement for convenience of the Consultant. 9.5 Implementation Of Termination: In the event of termination, either for cause or for convenience, the Consultant, upon receipt of the Notice of Termination, shall (1) stop the performance of Services under this Agreement on the date and to the extent specified in the Notice of Termination; (2) place no further orders or subcontracts except for any that may be authorized, in writing, by the Project Coordinator, prior to their occurrence; (3) terminate all orders and subcontracts to the extent that they relate to the performance of the Services terminated by the Notice of Termination; (4) promptly assemble and submit, as provided herein, all documents for the Services performed, including drawings, calculations, specifications, correspondence, and all other relevant materials affected by the termination; and (5) complete performance of any Services as shall not have been terminated by the Notice Of Termination, And As Specifically Set Forth Therein. 22 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 9.6 Non Solicitation: The Consultant warrants that it has not employed or retained any company or person, other than an employee working solely for the Consultant, to solicit or secure this Agreement; and that it has not paid, nor agreed to pay any company or other person any fee, commission, gift or other consideration contingent upon the execution of this Agreement. For breach or violation of this warranty, the City- has the right to terminate this Agreement without liability to the Consultant for any reason whatsoever. ARTICLE 10. INSURANCE 10.1 The Consultant shall comply throughout the term of this Agreement with the insurance requirements stipulated herein. It is agreed by the parties that the Consultant shall not commence with work on this Project until satisfactory proof of the following insurance coverage has been furnished to the City. The Consultant will maintain in effect the following insurance coverage: (a) Professional Liability Insurance in the amount of One Million ($1,000,000.00) Dollars per occurrence, with a maximum deductible of $150,000 per occurrence, $450,000 aggregate. Consultant shall notify City in writing within thirty (30) days of any claims filed or made against the Professional Liability Insurance Policy. (b) Comprehensive General Liability Insurance in the amount of $1,000,000.00 Single Limit Bodily Injury and Property Damage coverage for each occurrence, which will include products, completed operations, and contractual liability coverage. The City must be named as an additional insured on this policy. (c) Worker's compensation and employer's liability coverage within the statutory limits of the State of Florida. 10.2 The Consultant must give thirty (30) days prior written notice of cancellation or of substantial modifications in the insurance coverage, to the Project Coordinator. 10.3 The insurance must be furnished by an insurance company rated B+:VI or better, or its 23 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 equivalent, according to Bests' Guide Rating Book and must additionally be furnished by insurance companies duly authorized to do business in the State of Florida and countersigned by the company's Florida resident agent. 10.4 Consultant shall provide to City a Certificate of Insurance or a copy of all insurance policies required above. City reserves the right to require a certified copy of such policies upon request. All certificates and endorsements required herein shall state that the City shall be given thirty (30) days notice prior to expiration or cancellation of the policy. ARTICLE 11. INDEMNIFICATION 11.1 Consultant herein agrees to indemnify and hold harmless the City, and its officer 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 wrongful conduct of the Consultant and other persons employed or utilized by the Consultant in the performance of the Agreement. This Article 11, and Consultant's indemnification contained herein, shall survive the termination and expiration of the Agreement. ARTICLE 12. VENUE 12.1 This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein. Exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. This Agreement shall be governed by, and construed in accordance with the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in Federal court. BY ENTERING INTO THIS AGREEMENT, 24 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 CONSULTANT AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. ARTICLE 13. LIMITATION OF LIABILITY 13.1 The City desires to enter into this Agreement only if in so doing the City can place a limit on City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the amount of the fees for Services agreed upon under the terms of the Agreement, less any amount(s) paid to Consultant thereunder. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the fee for Services agreed upon under the terms of the Agreement, less the amount of all funds actually paid by the City to the Consultant. Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to Consultant for money damages due to an alleged breach by the City of this Agreement in an amount in excess of the amount of fee under this Agreement, which amount shall be reduced by the amount actually paid by the City to Consultant for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Section 768.28, Florida Statutes. ARTICLE 14. MISCELLANEOUS PROVISIONS 14.1 The laws of the State of Florida shall govern this Agreement. 14.2 Equal Opportunity Employment Goals: Consultant agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement 25 Professional Geotechnica] and Laboratory Testing Services on an As Needed Basis Ju]y 2007 because of race, color, religion, sex, age, national origin, disability or sexual orientation and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to sexual orientation, race, color, religion, sex, age, national origin, or disability. This provision shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment advertising, layoff or compensation; and selection for training, including apprenticeships. Consultant agrees, if requested, to furnish City with a copy of its Affirmative Action Policy. 14.3 Public Entity Crimes Act: In accordance with the Public Entity Crimes Act (Section 287.133, Florida Statutes), a person or affiliate who is a consultant, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not bids or leases of real property to the City, may not be awarded or perform work as a contractor, supplier, subcontractor, or subconsultant under a contract with the City, and may not transact business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for Category Two for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this Section by Consultant shall result in cancellation and may result in Consultant's debarment. 14.4 No Contingent Fee: Consultant warrants that it has not employed or retained any company or person,. other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm other than a bona fide employee working solely for Consultant any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, City shall have the right to terminate the Agreement without liability at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 14.5 The Consultant represents that it has made and will make reasonable investigation of all subconsultants to be utilized in the performance of work under this Agreement to 26 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 determine that they possess the skill, knowledge and experience necessary to enable them to perform the services required. Nothing in this Agreement shall relieve the Consultant of its prime and sole responsibility for the performance of the work under this Agreement. 14.6 The Consultant, its consultants, agents and employees and sub contractors, shall comply with all applicable Federal, State and County laws, the Charter, related laws and ordinances of the City of Miami Beach, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies as they relate to this Project. 14.7 This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered by Consultant, under any circumstances, without the prior written consent of City. 14.8 This document incorporates and includes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein; and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 27 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis ARTICLE 15. NOTICE 15.1 All written notices given to City by Consultant shall be addressed to: City Manager's Office c/o Assistant City Manager Timothy Hemstreet City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: Capital Improvement Projects Office c/o CIP Director Jorge Chartrand City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 All written notices given to the Consultant from the City shall be addressed to: U-~i ~ ~~~;neerS o.~~ionG~.Ct ~ 1 +~ c I31D Nep+une .Dri r~ ~nl~n ~euG~, (2onGllCi 334ato i~H ~ ~?iC~iCk.td C. I.l)okl.~u.r~-h, P.G July 2007 All notices mailed to either party shall be deemed to be sufficiently transmitted if sent by certified mail, return receipt requested. 2s Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 IN WITNESS WHEREOF, the parties hereto have hereunto caused these presents to be signed in their names by their duly authorized officers and principals, attested by their respective witnesses and City Clerk on the day and year first hereinabove written. Attest CITY OF MIAMI BEACH I~~ ~~- CITY CLERK Matti Herrera Bower Robert Parcher Vice-Mayor CONSULTANT Attest l~y iTi.J'G ~n1G inrF~i~S ol*' /~io/~dA,.L~c. ` e Si ature/Secretary Signature/Pres><d nt Ill Z~ ~~ I /?iCh~ARt~ l.(fO~iL~=~RT7~ Print Name Print Name APPROVED AS TO FORM & LANGUAGE 8r, FOR EXECUTION ~' _ ~' 7 I 29 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis SCHEDULE A Service Order No TO: CONSULTANT SERVICE ORDER July 2007 for Professional Geotechnical and Laboratory Testing Services DATE: Pursuant to the Agreement between the City of Miami Beach and the above named firm for VARIOUS PROFESSIONAL GEOTECHNICAL AND LABORATORY TESTING SERVICES ON AN AS-NEEDED BASIS, Dated: . You are directed to provide the following: SCOPE OF SERVICES: Project Name and No.: Estimated Calendar days to complete this work: Start Date: Fee for this Service Order: The above fee is a lump sum, or Upset limit (check one) This Work is: Basic Service Additional Service Reimbursable Expense Allowance: City's Project Coordinator Print Name days Consultant Print Name/Title 30 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis July 2007 SCHEDULE B PROFESSIONAL GEOTECHNICAL AND LABORATORY TESTING SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND CONSULTANT COMPENSATION Scope of Services: Project Cost: $ (This price will be negotiated and approved by the City's authorized representative) Reimbursable Expenses: $ Total Lump Sum: $ 31 Professional Geotechnical and Laboratory Testing Services on an As Needed Basis INSURANCE CHECK LIST July 2007 XXX 1. Workers' Compensation and Employer's Liability per the statutory limits of the state of Florida. XXX 2. Comprehensive General Liability (occurrence form), limits of liability $ 1,000,000.00 per occurrence for bodily injury property damage to include Premises/ Operations; Products, Completed Operations and Contractual Liability. Contractual Liability and Contractual Indemnity (Hold harmless endorsement exactly as written in "insurance requirements" of specifications). XXX3. Automobile Liability - $1,000,000 each occurrence - owned/non-owned/hired automobiles included. 4. Excess Liability - $ . 00 per occurrence to follow the primary coverages. XXX 5. The City must be named as and additional insured on the liability policies; and it must be stated on the certificate. 6. Other Insurance as indicated: Builders Risk completed value $ . 00 Liquor Liability $ . 00 _ Fire Legal Liability $ . 00 _ Protection and Indemnity $ . 00 Employee Dishonesty Bond $ . 00 XXX Professional Liability $1,000,000.00 XXX 7. Thirty (30) days written cancellation notice required. XXX 8. Best's guide rating B+:VI or better, latest edition. XXX 9. The certificate must state the Quote number and title VENDOR AND INSURANCE AGENT STATEMENT: We understand the Insurance Requirements under this contract, and that evidence of this insurance is required before any work is performed for the City of Miami Beach. ~ ~l ll~e~s f' ~ c . L -- V dor >tgnature Vendor (Please attach Insurance Certificate following this page) 32