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HomeMy WebLinkAboutR-2025-056 Kimley Horn LAP Agreement Beautification ProjectRESOLUTION NO. 2025-056 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, REQUESTING THE PROPER CITY OFFICIALS TO AUTHORIZE PROFESSIONAL ENGINEERING DESIGN SERVICES PROVIDED BY KIMLEY-HORN AND ASSOCIATES, INC (KHA) FOR STREETSCAPE BEAUTIFICATION PROJECT ON NW 1ST STREET, FROM BRYAN ROAD TO STATE ROAD 5/US 1, IN THE AMOUNT OF FOUR HUNDRED TWENTY-EIGHT THOUSAND TWO HUNDRED EIGHTY- EIGHT DOLLARS AND FORTY-SIX CENTS ($428,288.46); PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Dania Beach is committed to maintain and enhance public spaces and corridors to improve safety for vehicle, bicycle, and pedestrian traffic; and WHEREAS, in pursuit of the above, the City entered into a Local Agency Program (LAP) Agreement with the Florida Department of Transportation (FDOT) for the Streetscape Beautification Project on NW 1st Street from Bryan Road to State Rd 5/US 1 to provide up to $360,264.00 for project related expenses associated with design the phase of the project per Resolution No. 2024-030; and WHEREAS, on September 24, 2024, the Dania Beach City Commission approved Resolution No. 2024-150 authorizing the ranking of consultants that responded to RFQ No, 24- 012, selecting Kimley Horn & Associates (KHA) as the first ranked firm; and, WHEREAS, the City of Dania Beach, under the guidelines of the LAP Agreement, entered negotiations with KHA to provide a proposal and pricing for design services with review and guidance from FDOT, and the proposal from KHA is in the amount of $428,288.46; and WHEREAS, the City reviewed the KHA proposal along with FDOT, and FDOT has agreed that the proposal is acceptable under the LAP Agreement requirements; and WHEREAS, the Public Services Department recommends the City enter into the agreement with KHA. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the above “Whereas” clauses are ratified and confirmed, and they are made a part of and incorporated into this Resolution by this reference. 2 RESOLUTION #2025-056 Section 2. That the City Commission authorizes the proper City officials to execute an agreement with KHA for design services for the Streetscape Beatification Project on NW 1st Street, which agreement is attached as Exhibit “A” and incorporated into this resolution by this reference. Section 3. That funding for this project is provided by the FDOT LAP Agreement in the amount of $360,264.00, and the remaining $68,024.46 will be appropriate from Streets Contractual Services General Account No. 001-39-06-541-31-30. Upon approval of this request a budget transfer in the amount of $38,900 will be processed from the Landscape and Parks Maintenance Account No. 001-39-04-539-46-50 into the Beautification Project Account No. 103-39-68-539-31-30 to cover the cost of these services. Section 4. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 5. That this Resolution shall be effective 10 days after passage. PASSED AND ADOPTED on April 22, 2025. Motion by Vice Mayor Salvino, second by Commissioner Lewellen. FINAL VOTE ON ADOPTION: Unanimous X Yes No Commissioner Lori Lewellen ____ ____ Commissioner Luis Rimoli ____ ____ Commissioner Archibald J. Ryan IV ____ ____ Vice Mayor Marco Salvino ____ ____ Mayor Joyce L. Davis ____ ____ ATTEST: ELORA RIERA, MMC JOYCE L. DAVIS CITY CLERK MAYOR APPROVED AS TO FORM AND CORRECTNESS: EVE A. BOUTSIS CITY ATTORNEY 1 FEDERALLY FUNDED LOCAL AGENCY PROGRAM (LAP) AGREEMENT BETWEEN THE CITY AND CONSULTANT THIS AGREEMENT is made this ____ day of ___________, 2025, between the CITY of Dania Beach, FLORIDA, a Political subdivision of the State of Florida hereinafter referred to as (“CITY”), whose address is 100 West Dania Beach Blvd., Dania Beach, Florida 33004, and KIMLEY HORN AND ASSOCIATES, INC., a foreign corporation authorized to do business in the State of Florida, hereinafter referred to as (“CONSULTANT”), whose address is 8201 Peters Road, Suite 2200 Plantation, Florida 33324. WHEREAS, the CITY desires to retain a CONSULTANT to provide Design Services for the Federally Funded Local Agency Program, under the CITYCITY’s Request For Qualifications For Design Services For The NW 1st Street Complete Streets Improvement Project, RFQ 2024- 012, as more particularly specified in the Scope of Services; and, WHEREAS, CONSULTANT desires to render services described in the Scope of Services and has the qualifications, experience, staff and resources to perform those services; and, WHEREAS, the CITY is the recipient of funds, which are administered through the Florida Department of Transportation as a Federally Funded Local Agency Program (LAP) project; and, WHEREAS, as a recipient of funds through the Florida Department of Transportation, the CITY is required to include certain terms and conditions in any Agreement with a CONSULTANT employed to perform the services described in Exhibit “A”, and the terms of the LAP Program, described in Exhibit “E” (Local Agency Program Federal-Aid Terms, For Professional Services Contracts); and, WHEREAS, through a competitive selection process conducted in accordance with the requirements of Florida law and CITY policy, the CITY has determined that it to be in the best interest of the CITY to award an Agreement to the CONSULTANT for the rendering of those services described in Exhibit A; and, NOW, THEREFORE, in consideration of the promises made herein and other good and valuable considerations, the following terms and conditions are hereby agreed to between the CITY and the CONSULTANT. 2 1. INCORPORATION BY REFERENCE AND ENTIRE AGREEMENT. The foregoing “Whereas” clauses are hereby incorporated by reference and affirmed and ratified by the parties as true and correct. The Documents which comprise this Agreement between the CITY and the CONSULTANT are attached hereto, made a part hereof and consist of the following: A. This Agreement; B. Scope of Services attached hereto as Exhibit “A”; C. Disadvantaged Business Enterprises Program Plan for Local Agencies attached hereto as Exhibit “B”. D. Equal Opportunity Employment “Executive Order 11246” attached hereto as Exhibit “C”. E. Terms for Federal-Aid Contract attached hereto as Exhibit “D”. F. Proposers’ Forms attached hereto as Exhibit “E”. G. Project Completion and Fee Schedule attached hereto as Exhibit “F”. In the event of a conflict between any of the terms and conditions in the Exhibits and this Agreement, this Agreement shall prevail. 2. DEFINITIONS. The following terms shall have the meanings expressed below unless otherwise indicated. Acceptance: Approval by the CITY of the Services as being fully complete in accordance with the Agreement and its attached Scope of Services. Administrative Agent: An authorized representative of the CITY assigned to observe the Work performed and materials furnished by the CONSULTANT or such other person as may be appointed by the CITY as its representative in the Work Assignment. Agreement: This Agreement between CITY and the CONSULTANT. Addenda: Written or graphic instruments issued prior to the execution of the Agreement which modify or interpret the Scope of Services, including drawings and specifications, by additions, deletions, clarifications or corrections to the Scope of Services. Application of Payment: The form furnished by the CONSULTANT to request progress payments and an affidavit of the CONSULTANT that progress payments theretofore received from the CITY on account of the Services has been applied by the CONSULTANT to discharge in full all of the CONSULTANT’S obligations stated in prior Applications for Payment. Approval: Acceptance by the CITY as satisfactory. Change Order: A written order to the CONSULTANT signed by the CITY authorizing an addition, deletion or revision in the Services, or an adjustment in the Agreement fee or the Time for performance. Consultant: The person, firm or corporation with whom the CITY has executed this Agreement. Contracting Officer: The CITY or the individual who is authorized to sign the Agreement on behalf of the CITY’S governing body. CITY: CITY of Dania Beach, Florida. CITY Code: The CITY of Dania Beach Code of Ordinances. Day: A calendar day of twenty-four (24) hours measured from midnight to the next midnight. 3 Drawings: The drawings which show the character and scope of the Services to be performed and which have been prepared or approved by the CITY. Field Order: A written order issued by the CITY which clarifies or interprets the Scope of Services. Force Majeure: Any event which results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of such party including, but is not limited to fire, earthquakes, hurricanes, tornadoes, storms, lightning, epidemic, pandemic, war, riot, civil disturbance, sabotage, and governmental actions. Governmental Authority: Any federal, state, county, municipal or other governmental department, entity, authority, commission board, bureau, court, agency, or any instrumentality of any of them now existing or hereafter created, having jurisdiction over the Property or any portion thereof. Governmental Requirement: Any law, enactment, statute, code, ordinance, rule, regulation, judgment, decree, writ, injunction, order, permit, certificate, license, authorization, agreement, or other direction or requirement of any Governmental Authority now existing or hereafter enacted, adopted, promulgated, entered, or issued. CONSULTANT shall comply with all Governmental Requirements applicable to the operations and Property, including, without limitation, those prohibiting discrimination by reason of race, color, religion, sex, marital status, sexual orientation, gender identity, national origin, or handicap in the development, construction, management, Agreement, use, occupancy of the operation and Property or any portion thereof. Modification: A written amendment to the Agreement signed by both parties; a Change Order; a written clarification or interpretation issued by the CITY; or a written order for a minor change or alteration in the Work issued by the CITY. Price: The fee payable to the CONSULTANT under the Agreement. Project: The entire Scope of Services to be performed as provided in the Work Assignment. Shop Drawings: All drawings, diagrams, illustration, brochures, schedules and other data which are prepared by the CONSULTANT, manufacturer, supplier or distributor and which illustrate the equipment, material or some portion of the Work as required by the Work Assignment. Samples: Physical examples that illustrate materials, equipment or workmanship and establish standards by which the Services will be judged. Services: Work as defined in the Work Assignment. Specifications: Those portions of the Work Assignment consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work. Time: The number of calendar days stated in the Work Assignment for the completion of Services. Work: Any and all obligations, duties and responsibilities necessary to the successful completion of the Project assigned to or undertaken by the CONSULTANT under the Scope of Services, including all labor, materials, equipment and other incidentals, and the furnishing thereof. Written Notice: All written notices, demands, instruction, claims, approvals, and disapprovals required to obtain compliance with Service requirements, whether delivered in person or to the CONSULTANT’S authorized agent. Unless otherwise provided, notice to the CITY shall be to the Authorized Administrative Agent. 4 3.. CONSULTANT SERVICES. CONSULTANT agrees to diligently and timely perform professional services as described in the Scope of Services described in Exhibit “A”, with the same degree of care, skill and diligence as ordinarily provided by a professional under similar circumstances. CONSULTANT shall at no additional cost to the CITY re-perform Services which fail to satisfy the foregoing standard of care. The CONSULTANT agrees to immediately upon execution of this Agreement and issuance of the Notice of Commencement by both the CITY and the CONSULTANT to complete the project . A project schedule will be provided to establish milestone dates required to meet the project completion date. 4. RESPONSIBILITIES OF THE CONSULTANT(S). 4.1 CONSULTANT shall advise and consult with the CITY during all phases of service. CONSULTANT shall have authority to act on behalf of the CITY only to the extent provided in this Agreement. CONSULTANT shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work. CONSULTANT shall be responsible for the CONSULTANT’S negligent acts or omissions. 4.2 CONSULTANT shall furnish all labor, supervision, equipment and materials for the Service. If the CONSULTANT is comprised of more than one legal entity, each entity shall be jointly responsible for the performance of this Agreement. 4.3 The CONSULTANT covenants and agrees that it and its employees shall be bound by the Standards of Conduct, Chapter 112, Florida Statutes as it relates to Work performed under this Agreement. The CONSULTANT agrees to incorporate the provisions of this paragraph in any subcontract into which it might enter with reference to the services performed. 4.4. Prior to entering into this Agreement, the CONSULTANT shall file a sworn statement with the CITY as described for Public Entity Crimes of the Florida Statutes, Chapter 287.133, and the CONSULTANT shall thereafter comply with Florida Statutes concerning such activities. 4.5. The CONSULTANT shall comply with all federal, state, and local laws, regulations and ordinances applicable to the Work or payment for Work and shall not discriminate on the grounds of race, color, religion, sex, or national origin in the performance of Work under this Agreement. 4.6 The CONSULTANT shall maintain books, records, documents, and other evidence directly pertaining to or connected with the Services under this Agreement which shall be available and accessible at the CONSULTANT’S offices for the purpose of inspection, audit, and copying during normal business hours by the CITY, or any of its authorized representatives. Such records shall be retained for a minimum of five-(5) years after completion of the services or as required by Chapter 119, Florida Statutes. 4.7 CONSULTANT further represents and warrants that all previous representation and statements made in the Proposal Forms attached to its response to Request for Qualifications No. 24-012 are accurate to the best of CONSULTANT’S knowledge and reaffirms its attestations and the information contained in those documents herein. 5 4.8 CONSULTANT represents and warrants that all state and federal licenses required to complete the Scope of Services shall be obtained by the CONSULTANT prior to commencement of any Work. 4.9 CONSULTANT shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Scope of Services. The CONSULTANT shall take all necessary precautions to ensure the safety of persons, the environment, and its work product. 4.10. CONSULTANT shall receive approval from the CITY in writing of all Subconsultant and the fees to be paid them by CONSULTANT, prior to any such Subconsultant proceeding with any such work. 5. OBLIGATIONS OF CITY. 5.1 The CITY will designate an Administrative Agent to act on behalf of the CITY with respect to the Scope of Services and whose role is to monitor day-to-day activities and ensure all requirements are met and do all things necessary to properly administer the terms and conditions of this Agreement. The CITY will designate the Administrative Agent in the Notice of Commencement. The responsibility of the CITY'S Administrative Agent shall include: (1). Examination of all reports, sketches, drawings, estimates, proposals, and other documents presented by the CONSULTANT, rendered in writing, and to make any necessary decisions within a reasonable time. (2). Transmission of instructions, receipt of information, interpretation and definition of CITY policies and decisions with respect to design, materials, and other matters pertinent to the Work covered by this Agreement. (3). Review for approval or rejection of all of the CONSULTANT'S documents and payment requests in a timely manner. (4). Returning items delivered by the CONSULTANT, which are not conforming to the Scope of Services, at the CONSULTANT’S expense and risk of increase in cost for items not delivered as specified. 5.2 The CITY shall, upon request, furnish the CONSULTANT with all existing data, plans, studies and other information in the CITY'S possession which may be useful in connection with the Work, all of which shall be and remain the property of the CITY and shall be returned to the CITY'S Administrative Agent upon completion of the Services to be performed by the CONSULTANT. 5.3 The CITY'S Administrative Agent shall conduct periodic reviews of the Work of the CONSULTANT necessary for the completion of the CONSULTANT'S services during the period of this Agreement and may make other CITY personnel available, where required and necessary to assist the CONSULTANT. The availability and necessity of said personnel to assist the CONSULTANT shall be determined solely within the discretion of the CITY. 6 6. COMPENSATION AND PAYMENT OF CONSULTANT. The CITY’s performance and obligation to pay under this Agreement is contingent upon the receipt of funding administered through the Florida Department of Transportation’s Local Agency Program and allocated by an appropriation of the CITY Commission of the CITY of Dania Beach, Florida. 6.1 Method of Payment (1). CONSULTANT shall prepare and submit to the CITY’S Administrative Agent for approval, invoices for the Services rendered under this Agreement. Payment shall be issued by the CITY’S Finance Department, who shall initiate disbursements for invoices approved by the Administrative Agent in accordance with the Florida Prompt Payment Act, found in Part VII, Ch. 218 of the Florida Statutes. All invoices shall be accompanied by a report identifying the nature and progress of the Services performed. The statement shall show a summary of fees with an accrual of the total fees billed and credits for portions paid previously. The CONSULTANT shall submit an invoice for payment to the CITY on a monthly basis. The CITY reserves the right to withhold payment to the CONSULTANT for failure to perform the Services in accordance with the provisions of this Agreement and the CITY shall promptly notify the CONSULTANT if any invoice or report is found to be unacceptable and will specify the reasons. (2). For Services that were partially completed, progress payments shall be paid monthly in proportion to the percentage of completed Work on those specific services approved in writing by the CITY'S Administrative Agent based on the percentage of the amount for those specific services. (3). Before the final draw is payable, the CONSULTANT must furnish a sworn statement that all sums due for services, material or labor have been paid in full. If the CITY receives any Notice to Owner, then in addition to the requirements set forth above, the CONSULTANT shall at the time of each draw furnish a partial waiver of lien from all sub-consultants, material or labor providers, and at the time of the final draw shall furnish a final waiver of the lien for each such sub-consultant, material or labor provider as a condition precedent to receiving any payment from the CITY. (4). All representations, indemnifications, warranties and guarantees made in, required by or given in accordance with this Agreement, as well as all continuing obligations indicated in this Agreement, will survive final payment and termination or completion of this Agreement. 7 7. INDEMNIFICATION. CONSULTANT shall indemnify and hold harmless the CITY and 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 wrongful conduct of the CONSULTANT and other persons employed or utilized by the CONSULTANT in the performance of the Agreement. Nothing herein shall be construed to extend the CITY's liability beyond that provided in Section 768.28, Florida Statutes. This indemnification shall not be construed to be an indemnification for the acts, or omissions of third parties, independent contractors, or third-party agents of the CITYCITY. This indemnification shall not be construed as a waiver of the CITYCITY's sovereign immunity and shall be interpreted as limited to only such traditional liabilities for which the CITYCITY could be liable under the common law interpreting the limited waiver of sovereign immunity. Any claims against the CITYCITY must comply with the procedures found in §768.28, Florida Statutes. In order to comply with the requirements of §129.06, Florida Statutes, and Article VII, Section 10 of the Florida Constitution, the value of this indemnification is limited to the lesser of the amount payable by either party under the substantive provisions of this Agreement, or the limitations of §768.28, Florida Statutes. In addition, this indemnification shall be construed to limit recovery by the indemnified party against the CITYCITY to only those damages caused by CITYCITY's sole negligence, and specifically not include any attorney fees or costs associated with them. 8. INSURANCE. A selected Proposer shall not commence services under an Agreement until it has obtained all insurance required under this paragraph and as required by the Agreement, and not until such time that the coverages are approved by the Risk Manager of the CITYCITY. The Proposer shall not allow any employee of Proposer or any subcontractor to commence services on any subcontract until the subcontractor and all coverages required of any subcontractor have been obtained and approved by the Risk Manager of the CITYCITY. In addition, the Proposer shall be responsible for any and all policy deductibles and self-insured retentions. The following are requirements that must be met regarding the CONSULTANT’s delivery of Certificates of Insurance for all coverages required in the Agreement and Proposal Documents: “Preliminary” certificate means that certificates of insurance verifying all general insurance requirements (as noted below) must be included with your Proposals submittal on the date and time of the opening of Proposals. If the “preliminary” certificates are not included with a submittal, then the CITYCITY has the right to consider the submitted response as non-responsive on the date and time of the response opening. “Preliminary” Certificates may be issued without documentation of all “Special Provisions”. However, CONSULTANTs must understand that all provisions, including “Special Provisions” noted below, are expected to be fully documented on or attached to the “Official” Certificates of Insurance as described below. 8 “Official” Certificates of Insurance must be delivered to the CITY Clerk’s office and Risk Manager of the CITY. If the “Official” certificates are not delivered before or on the fourteenth (14th) Business Day after the issuance by the CITY of the “Notice of Selected CONSULTANT”, then the CITY has the right to consider the awarded Agreement to the successful CONSULTANT as void and to negotiate a contract with the next best qualified CONSULTANT. “Special Provisions”, as referenced below under each type of insurance requirement shall be fully confirmed on or attached to the “Official” certificates. All Certificates of Insurance must clearly identify the contract to which they pertain, including a brief description of the subject matter of the contract. The certificates shall contain a provision that coverage afforded under the policies will not be canceled until at least thirty (30) days’ prior written notice has been given to CITY. If this coverage is not provided, then the CONSULTANT is responsible for such notice to CITY. Insurance policies for required coverages shall be issued by companies authorized to do business under the laws of the State of Florida and any such companies’ financial ratings must be no less than A-VII in the latest edition of the “BEST’S KEY RATING GUIDE”, published by A.M. Best Guide. In the event that the insurance carrier’s rating shall drop, the insurance carrier shall immediately notify the CITY in writing. Coverages shall be in force until all services required to be performed under the terms of the Agreement, including any applicable warranty period, is satisfactorily completed as evidenced by the formal written acceptance by the CITY. In the event insurance certificates provided to CITY indicate that the insurance shall terminate and lapse during the period of the Agreement, including any applicable warranty period, then in that event, the CONSULTANT shall furnish, at least thirty (30) days prior to the expiration of the date of such insurance, a renewed Certificate of Insurance as proof that equal and like coverages for the balance of the period of the Agreement, including any extension of it, and including any applicable warranty period, is in effect. THE CONSULTANT AND ANY APPROVED SUBCONTRACTOR SHALL NOT PERFORM OR CONTINUE SERVICES PURSUANT TO THE AGREEMENT, UNLESS ALL COVERAGES REMAIN IN FULL FORCE AND EFFECT. ANY DELAY IN THE WORK CAUSED BY A LAPSE IN COVERAGE SHALL BE NON-EXCUSABLE, SHALL NOT BE GROUNDS FOR A TIME EXTENSION, AND WILL BE SUBJECT TO ANY OTHER APPLICABLE PROVISIONS DESCRIBED IN THE AGREEMENT OR ELSEWHERE IN THE RFQ DOCUMENTS CONCERNING DELAY. Insurance Requirements: The CONSULTANT shall secure and maintain throughout the duration of the Agreement, insurance of such types and in such amounts not less than those specified below as satisfactory to CITY naming the CITY as Additional Insured, underwritten by a firm rated A- X or better by A.M. Best and qualified to do business in the State of Florida. The insurance coverage shall be primary insurance with respect to the CITY, its officials, employees, agents and volunteers naming the CITY as additional insured. Any insurance maintained by the CITY shall be in excess of the CONSULTANT’s insurance and shall not contribute to the CONSULTANT’s insurance. The insurance coverages shall include at a minimum the amounts set forth in this section and may be increased by the CONSULTANT as it deems necessary or prudent. 9 Coverage shall apply for a minimum of three years following completion of the services. The above are minimum requirements for projects up to $100,000.00. • General Liability: $2,000,000.00 Per Occurrence/$4,000,000 Aggregate • Automobile Liability: $2,000,000.00 • Professional Liability: $3,000,000.00 Per Occurrence. Coverage shall apply for a minimum of three years following completion of the services. 9. TERMS FOR COMPLIANCE WITH FEDERAL AID CONTRACTS (APPENDIX I): The following terms apply to this Agreement since payment for the services involve the expenditure of Federal Funds: 9.1 It is understood and agreed that all rights of the Florida Department of Transportation relating to inspection, review, approval, patents, copyrights, and audit of the work, tracing, plans, specifications, maps, date and cost records relating to this Agreement shall also be reserved and held by authorized representatives of the United States of America. 9.2 It is understood and agreed that in order to permit Federal participation, no supplemental agreement of any nature may be entered into by the parties hereto with regard to the work to be performed hereunder without the approval of Florida Department of Transportation , anything to the contrary in this Agreement notwithstanding. 9.3 Compliance with Regulations: The CONSULTANT shall comply with the regulations of the Florida Department of Transportation relative to nondiscrimination in federally-assisted programs of the U.S. Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of the Agreement. 9.4 Nondiscrimination: The CONSULTANT, with regard to the work performed after award and prior to completion of the Services, will not discriminate on the grounds of race, color, religion, sex or national origin in the selection and retention of sub- consultants, including procurements of material and leases of equipment. The CONSULTANT will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the program set forth in Appendix B of the Regulations. 9.5 Solicitations for Subcontracts including Procurement of Materials and Equipment: In all solicitations made by competitive bidding or negotiations made by the CONSULTANT for work to be performed under a subcontract, including procurements of materials and leases of equipment, each potential sub-consultant, supplier or lessor shall be notified by the CONSULTANT of the CONSULTANT’S obligations under this Agreement and the regulations relative to nondiscrimination on the grounds of race, color, religion, sex or national origin. 9.6 Information and Reports: The CONSULTANT will provide all information and reports required by the Regulations or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the Florida Department of Transportation to be pertinent to ascertain compliance with such Regulation, orders 10 and instruction. Where any information required of the CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, the CONSULTANT shall certify to the Florida Department of Transportation, as appropriate, and shall set forth what efforts it has made to obtain the information. 9.7 Sanctions for Noncompliance: In the event of the CONSULTANT’S noncompliance with the nondiscrimination provisions of this Agreement, the Florida Department of Transportation shall impose such contract sanctions as it may determine to be appropriate, including but not limited to: 1. Withholding of payments to the CONSULTANT under the Agreement until the CONSULTANT complies and/or 2. Cancellation, termination or suspensions of the Agreement, in whole or in part. 9.8 Incorporation of Provisions: The CONSULTANT will include the provisions of Paragraph A through H in every subcontract, including procurements of materials and leases of equipment unless exempt by the Regulations, order or instructions issued pursuant thereto. The CONSULTANT will take such action with respect to any subcontract or procurement as the Florida Department of Transportation may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event a CONSULTANT becomes involved in, or is threatened with litigation with a Sub-consultant or supplier as a result of such direction, the CONSULTANT may request the State to enter into such litigation to protect the interests of the State and in addition, the CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States. 9.9 Interest of Members of Congress: No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefit arising there from. 9.10 Interest of Public Officials: No member, officer or employee of the public body or of a local public body during his/her tenure or for one year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. For purposes of this provision, public body shall include municipalities and other political subdivisions of States and public corporations, boards and commissions established under the laws of any State. 9.11. Participation by Minority Business Enterprises: The CONSULTANT shall agree to abide by statements in Paragraph (1) and (2) which follow. These statements shall be included in all subsequent Agreements between the CONSULTANT and any Sub-consultant or CONSULTANT. (1). Policy: It is the policy of the Florida Department of Transportation that minority business enterprises as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of agreements financed in whole or in part with Federal funds under this Agreement. Consequently, the MBE requirements of 49 CFR Part 23 apply to this Agreement. (2). Minority Business Enterprises Obligation: The recipient or its CONSULTANT agrees to ensure that Minority Business Enterprises, as defined in 49 CFR Part 23, have the maximum opportunity to participate in 11 the performance of agreements and subcontracts financed in whole or in part with Federal Funds provided under this Agreement. In this regard, all recipients or CONSULTANTS shall take all necessary and reasonable steps in accordance with 49 CFR Part 23, have the maximum opportunity to participate in the performance of agreements and subcontracts financed in whole or in part with Federal funds provided under this Agreement. In this regard, all recipients or CONSULTANTS shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to ensure that Minority Business Enterprises have the maximum opportunity to compete for and perform agreements. Recipients and their CONSULTANTS shall not discriminate on the basis of race, color, national origin or sex in the award and performance of DOT assisted agreements. 9.12. It is mutually understood and agreed that the willful falsification, distortion or misrepresentation with respect to any facts related to the project(s) described in this Agreement is a violation of the Federal Law. Accordingly, United States Code, Title 18, Section 1020, is hereby incorporated by reference and made a part of this Agreement. 9.13. It is understood and agreed that if the CONSULTANT at any time learns that the Certification it provided the CITY in compliance with 49 CFR, Section 23.51, was erroneous when submitted or has become erroneous by reason of changed circumstances, the CONSULTANT shall provide immediate written notice to the Department. It is further agreed that the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – Lower Tier Covered Transaction” as set forth in 49 CFR, Section 29.510, shall be included by the CONSULTANT in all lower tier covered transactions and in all aforementioned Federal Regulations. 9.14. The CITY hereby certifies that neither the CONSULTANT nor the CONSULTANT’S representative has been required by the CITY, directly or indirectly as an express or implied condition in connection with obtaining or carrying out this Agreement, to: (1). Employ or retain, or agree to employ or retain, any form or person, or; (2). Pay, or agree to pay, to any firm, person or organization any fee, contribution, donation or consideration of any kind; The CITY further acknowledges that this Agreement will be furnished to the Florida Department of Transportation in connection with this Agreement involving participation of Federal-Aid funds and is subject to applicable State and Federal Laws, both criminal and civil. 9.15. The CONSULTANT hereby certifies that it has not: (1). Employed or retained for a commission, percentage, brokerage, contingent fee or other consideration any firm or person (other than a bona fide employee working solely for the above CONSULTANT) to solicit or secure this Agreement. (2). Agreed, as an express or implied condition for obtaining this Agreement, to employ or retain the services of any firm or person in connection with carrying out this Agreement; or 12 (3). Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for the above CONSULTANT) any fee contribution, donation or consideration of any kind for or in connection with procuring or carrying out the Agreement. (4). The CONSULTANT further acknowledges that this Agreement will be furnished to the Florida Department of Transportation, in connection with this Agreement involving participation of Federal-Aid funds and is subject to applicable State and Federal Laws, both criminal and civil. 10. OWNERSHIP AND USE OF DOCUMENTS. The documents, or reproducible copies, including reports, designs, specifications, notebooks, tracings, photographs, negatives, findings, data, memoranda and other documents developed by the CONSULTANT in connection with its Services shall be delivered to, and shall become the property of the CITY as they are received by the CITY. The CONSULTANT hereby assigns all its copyright and other proprietary interests in the products of this Agreement to the CITY. Specific written authority is required from the CITY'S Administrative Agent for the CONSULTANT to use or disclose any of the work products of this Agreement on any non-CITY project. “The CITY acknowledges that the CONSULTANT’S deliverables are intended by the CONSULTANT for use only as to the project(s) which are the subject of this Agreement and its tasks and services; use for any other project without the CONSULTANT’S written consent shall be at the sole risk of the user, without recourse to the CONSULTANT. 11. TIMELY PERFORMANCE OF CONSULTANTS PERSONNEL. The timely performance and completion of the required services is vitally important to the interest of the CITY. The CONSULTANT shall assign a Project Manager, together with such other personnel as are necessary to assure faithful prosecution and timely delivery of services pursuant to the requirements of this Agreement. The personnel assigned by the CONSULTANT to perform the Services of this Agreement, shall comply with the information presented in the Professional Services Response Proposal made a part hereof by reference. The CONSULTANT shall ensure that all key personnel, support personnel, and other agents are fully qualified and capable to perform their assigned tasks. Any change or substitution to the CONSULTANT’S key personnel must receive the CITY Administrative Agent's written approval before said changes or substitution can become effective. 11.1 The Services to be rendered by the CONSULTANT shall commence upon receipt of written Notice of Commencement, from the CITY’S Administrative Agency. 11.2. The CONSULTANT specifically agrees that all Work performed under the terms and conditions of this Agreement shall be completed within the time limits as set forth in this Agreement, subject only to delays caused through no fault of the CONSULTANT or the CITY. Time is of the essence in the performance of this Agreement. The CONSULTANT shall not be entitled to any claim for damages including loss of profits, loss of use, overhead expenses, equipment rental, etc. because of hindrances or delays for any cause whatsoever, whether or not occasioned by an act of God, or by any act or omission on the part of the CITY. 13 CITY’S agents or governmental agencies having jurisdiction which hinder or delay may entitle the CONSULTANT to an extension of time in which to complete the Work, which shall be determined by the CITY, provided that the CONSULTANT will give written notice within two weeks as provided herein of the cause of such act, hindrance or delay. An extension of Time shall be the CONSULTANT’S sole and exclusive remedy for all claims for delay, including delays attributable to breach of the Agreement or tort. However, the time shall not be extended past the completion date stipulated in any agreement executed by the CITY. If any emergency or natural disaster causes delay or interference with the use or delivery of the Services, the CITY reserves the right to cure from other sources any services during any suspension of delivery. 11.3 The CONSULTANT agrees to provide to the CITY’s Administrative Agent as defined herein, monthly written progress reports concerning the status of the Project if requested. The CITY’s Administrative Agent may determine the format for this progress report. The CITY shall be entitled at all times to be advised at its request, and in writing, as to the status of Work performed by the CONSULTANT. The CONSULTANT, upon request, will include a Project Schedule update with all written progress reports. 11.4 In the event unreasonable delays occur on the part of the CITY or regulatory agencies as to the approval of any plans, permits, reports or other documents submitted by the CONSULTANT which delay the Project Schedule completion date, the CITY’s Administrative Agent shall not unreasonably withhold the granting of an extension of the Project Time limitation equal to the aforementioned delay. 12. PERSONAL SERVICES; ASSIGNMENT. The Work and Services provided for herein shall be performed by the CONSULTANT, and no other person shall be engaged upon such Work or Services by the CONSULTANT except upon the written approval of the CITY, provided, however that this provision shall not apply to secretarial, clerical or other similar incidental services needed to assist the CONSULTANT in performance of this Agreement. The CONSULTANT shall not hire CITY employees to perform any portion of the Work or Services provided for herein. Neither this Agreement nor any interest or claims hereunder shall be assigned or transferred by the CONSULTANT to any party or parties, except with the written consent of the CITY. CONSULTANT agrees that no more than 75% of the dollar value of the Work, excluding printing or other similar ancillary services, shall be performed by any sub-consultant(s). The CONSULTANT shall advise the CITY of the identity of sub-consultant(s) performing Work prior to the sub-consultant(s) beginning any Work. 13. TERMINATION FOR DEFAULT. 13.1 The CITY shall be the sole judge of nonperformance, which shall include any failure on the part of the CONSULTANT to accept the award, to furnish required documents, and/or to fulfill any portion of this Agreement within the time stipulated. 14 Upon default by the CONSULTANT to meet any term of this Agreement or related Exhibit, the CITY will notify the CONSULTANT, providing three (3) days (weekends and holidays excluded) to advise the CITY of its plan for corrective action to remedy the default. The corrective action plan must be accepted by the CITY. Failure on the CONSULTANT’S part to correct the default within the approved time period shall result in the Agreement being terminated and the CITY notifying in writing the CONSULTANT of the effective date of the termination. The following shall constitute an act of default: (1). Failure to perform the Work required under the Agreement and/or within the time required or failing to use the sub-consultants, entities, and personnel as identified and set forth, and to the degree specified in the Agreement. (2). Failure to begin the Work under this Agreement within the time specified. (3). Failure to perform the Work with sufficient workers to ensure timely completion. (4). Neglecting or refusing to correct Work where prior work has been rejected as nonconforming with the terms of the Agreement. (5). Becoming insolvent, being declared bankrupt by a US Bankruptcy Court, renders the successful firm incapable of performing the Work in accordance with and as required by the Agreement. (6). Failure to comply with any of the terms of the Agreement. (7). Failure to pay sub-consultants or others pursuant to Work done under this Agreement. 13.2 In the event of default, the CONSULTANT shall pay any damages sustained by the CITY including attorney’s fees and court costs incurred in collecting any damages. Title to all materials, work-in-progress, and completed but undelivered goods will pass to the CITY after costs are claimed and allowed. All documents prepared by the CONSULTANT in connection with this Agreement will be the property of the CITY. The CITY shall authorize payment to the CONSULTANT, the costs and expenses for Work performed by the CONSULTANT prior to receipt of the Notice of Termination; however, the CITY may withhold from amounts due the CONSULTANT such sums as the Administrative Services Director deems to be necessary to protect the CITY against loss caused by the CONSULTANT because of the default. 14. TERMINATION FOR CONVENIENCE. 14.1. The CITY reserves the right to cancel this Agreement by written notice to the CONSULTANT effective the date specified in the notice, for any of the following reasons: (1). The CITY has determined that such cancellation will be in the best interest of the CITY to cancel the Agreement for its own convenience. (2). Funds are not available to cover the cost of the Services. The CITY’S obligation is contingent upon the availability of appropriate funds. The Purchasing Director shall give written notice of the termination to the CONSULTANT specifying the reason for the Agreement termination and when termination becomes effective. 15 The CONSULTANT shall incur no further obligations in connection with the terminated Work and on the date set in the Notice of Termination the CONSULTANT will stop Work to the extent specified. 14.2 The CITY shall pay the CONSULTANT under following conditions: (1). All costs and expenses incurred by the CONSULTANT for Work accepted by the CITY prior to the CONSULTANT’S receipt of the Notice of Termination. (2) Anticipatory profit for Work and Services not performed by the CONSULTANT shall not be allowed. (3) If, after Notice of Termination of the CONSULTANT’S right to proceed under the provisions of this clause, it is determined for any reason that the CONSULTANT was not in default under the provisions of the Agreement, the CITY may at its option, agree to reinstate the Agreement allowing for project completion. (4) Neither the CITY nor the CONSULTANT shall be considered to be in default of this Agreement if delays in or failure of performance shall be due to uncontrollable forces, the effect of which, by the exercise of reasonable diligence the non-performing party could not avoid. The term “Uncontrollable Forces” shall mean any event which results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of the non-performing party. It includes, but is not limited to fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage and governmental actions. (5) Neither party shall, however be excused from performance if non- performance is due to forces, which are preventable, removable, or remediable, and which the non-performing party could have, with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The non- performing party shall, within a reasonable time of being prevented or delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and incontrollable forces preventing continued performance of the obligations under this Agreement. 14.3 Loss of Funding: The Agreement shall remain in full force and effect only as long as receipt of LAP grant funding provided for in the Agreement has been appropriated by the CITY Commission in the annual budget for each fiscal year of this Agreement. The Agreement is subject to termination based on a lack of funding. 14.4 Convenience: The CITY reserves the right to cancel this Agreement if the cancellation is in the best interest of the CITY for its own convenience. 14.5. In addition to termination, if during the term of the Agreement, the CONSULTANT(S) should refuse or otherwise fail to perform any of its obligations under the Agreement, the CITY reserves the right to: 16 1) obtain the services from another CONSULTANT, and/or 2) suspend the CONSULTANT from bidding for a period of twenty-four (24) months on other CITY Solicitations or Requests for Qualifications. In the event the CITY has not terminated the Agreement and there remains a dispute with the CONSULTANT, the CONSULTANT agrees at the CITY’S request to continue to operate and perform under the terms of the Agreement while such dispute is pending and further agrees that, in the event a suit is filed for injunction or other relief, it will continue to operate until the final adjudication of the suit by the CITY unless otherwise requested by the CITY. 15. PUBLIC RECORDS LAW CONSULTANT agrees to keep and maintain public records in CONSULTANT’s possession or control in connection with CONSULTANT’s performance under this Agreement. CONSULTANT additionally agrees to comply specifically with the provisions of Section 119.0701, Florida Statutes. CONSULTANT shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the Agreement, and following completion of the Agreement until the records are transferred to the CITY. Upon request from the CITY custodian of public records, CONSULTANT shall provide the CITY with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law. Unless otherwise provided by law, any and all records, including but not limited to reports, surveys, and other data and documents provided or created in connection with this Agreement are and shall remain the property of the CITY. Upon completion of this Agreement or in the event of termination by either party, any and all public records relating to the Agreement in the possession of the CONSULTANT shall be delivered by the CONSULTANT to the CITY Manager, at no cost to the CITY, within seven (7) days. All such records stored electronically by CONSULTANT shall be delivered to the CITY in a format that is compatible with the CITY’s information technology systems. Once the public records have been delivered upon completion or termination of this Agreement, the CONSULTANT shall destroy any and all duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. Any compensation due to CONSULTANT shall be withheld until all records are received as provided in this Agreement. CONSULTANT’s failure or refusal to comply with the provisions of this section shall result in the immediate termination of this Agreement by the CITY. 17 Section 119.0701(2)(a), Florida Statutes IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS. Custodian of Records: ELORA RIERA, MMC, CITY CLERK Mailing Address: 100 W. Dania Beach Boulevard Dania Beach, Florida 33004 Telephone number: 954-924-9800, Ext. 3623 Email: eriera@daniabeachfl.gov 16. NOTICES. Any notice required or permitted in this Agreement is to be given in writing and shall be personally delivered or mailed, first class postage prepaid or delivered by an overnight delivery service to the respective addresses of the Parties set forth below their signatures on the signature page of this Agreement, or to such other address as any party may give to the other in writing. Any notice required by this Agreement will be deemed to have been given and received when personally served or one (1) day after delivery to an overnight delivery service or five (5) days after deposit in the first class mail. To the CITY: CITY of Dania Beach, Florida 100 W. Dania Beach Blvd. Dania Beach, FL 33004 Attn: Ana M. Garcia, ICMA-CM With Copy to: CITY of Dania Beach, Florida 100 W. Dania Beach Blvd. Dania Beach, FL 33004 Attn: Eve A. Boutsis, CITY Attorney To CONSULTANT: KIMLEY-HORN AND ASSOCIATES, INC. 8201 Peters Road, Suite 2200 Plantation, Florida 33324 17. DISPUTES, VENUE, ATTORNEY FEES. All claims, counterclaims, disputes and other matters in question between CITY and CONSULTANT arising out of, relating to or pertaining to this Agreement, or the breach of it, or the services of it, or the standard of performance required in it, shall be addressed by resort to non- binding mediation as authorized under the laws and rules of Florida; provided, however, that in the event of any dispute between the parties, the parties agree to first negotiate with each other for 18 a resolution of the matter or matters in dispute and, upon failure of such negotiations to resolve the dispute, the parties shall resort to mediation. If mediation is unsuccessful, any such matter may be determined by litigation in a court of competent jurisdiction for any legal action arising out of or pertaining to this Agreement shall be the Circuit Court for the Seventeenth Judicial Circuit in and for Broward County, Florida, or the federal District Court in the Southern District of the United States. Each party further agrees that venue of any action to enforce this Agreement shall be in Broward County, Florida. In any litigation, the parties agree to each waive any trial by jury of any and all issues. In the event of any litigation which arises out of, pertains to, or relates to this Agreement, or the breach of it, or the standard of performance required in it, the prevailing party shall be entitled to recover reasonable attorney fees from the non-prevailing party. In the event that a dispute, if any, arises between the CITY and CONSULTANT relating to this Agreement, or its performance or compensation, CONSULTANT agrees to continue to render service in full compliance with all terms and conditions of this Agreement, provided the provision of services is commercially reasonable, as determined and required by the CITY. Commercially reasonable shall mean that the dispute is over an issue. 18 GOVERNING LAW . This Agreement will be governed by the laws of the State of Florida. This Agreement is subject to and must comply with the Charter and CITY Code of the CITY of Dania Beach, as they exist on the date of execution of the Agreement. Any conflicts between this Agreement and the Charter and CITY Code will be resolved in favor of the CITY’s Charter. Venue for any disputes arising out of this Agreement and for any actions involving the enforcement or interpretation of this Agreement will be in the State courts of the 17th Judicial Circuit of Broward County, Florida. 19. HEADINGS. Headings of various paragraphs and sections of this Agreement and its table of contents are for convenience and use of reference only and shall not be construed to define, limit, augment or describe the scope, context or intent of this Agreement or any part of this Agreement. 20. SEVERABILITY. The terms and conditions of this Agreement shall be deemed to be severable; consequently, if any clause, term or condition of it shall be held to be illegal or void, such determination shall not affect the validity or legality of the remaining terms and conditions and notwithstanding such determination, this Agreement shall continue in a full force and effect unless the particular clause, term or condition held to be illegal or void renders the balance of the Agreement to be impossible of performance 21. NO WAIVER OF RIGHT TO ENFORCE. The waiver of any breach or any term covenant or condition in this Agreement contained shall not be deemed to be a waiver of such term, covenant or any subsequent breach of the same 19 or any other term, covenant or condition contained in this Agreement. No covenant, term, or condition shall be deemed to have been waived, unless such waiver is in writing. There shall be no accord and satisfaction unless expressed in writing and signed by both the CITY and CONSULTANT. 22. SOVEREIGN IMMUNITY. CONSULTANT acknowledges that the Florida Doctrine on Sovereign Immunity bars all claims by CONSULTANT against the CITY other than claims arising out of this Agreement. Specifically, the CONSULTANT acknowledges that it cannot and will not assert any claims against the CITY, unless the claim is based upon a breach by the CITY of this Agreement. Further, the CONSULTANT recognizes the CITY is a sovereign with regulatory authority that it exercises for the health, safety, and welfare of the public. This Agreement in no way estops or affects the CITY's exercise of that regulatory authority. In addition, the CITY retains the full extent of its sovereign immunity in relation to the exercise of its regulatory authority. The CONSULTANT acknowledges that it has no right and will not make claim based upon any of the following: A. Claims based upon any alleged breach by the CITY of implied warranties for representations not specifically set forth in this Agreement, as the parties stipulate that there are no such implied warranties or representations of the CONSULTANT. All obligations of the parties are only as set forth in this Agreement; B. Claims based upon negligence or any tort arising out of this Agreement; C. Claims upon alleged acts or inaction by the CITY, its commissioners, attorneys, administrators, CONSULTANT, agents, or any CONSULTANT employee; D. Claims based upon an alleged waiver of any of the terms of this Agreement unless such waiver is in writing and signed by an authorized representative for the CITY and CONSULTANT. 23. SCRUTINIZED COMPANIES. CONSULTANT shall certify that it is not on the Scrutinized Companies that Boycott Israel List created pursuant to Section 215.4725, Florida Statutes (2018), and that it is not engaged in a boycott of Israel. The CITY may terminate this Agreement at the CITY's option if CONSULTANT is found to have submitted a false certification as provided under subsection (5) of section 287.135, Florida Statutes (2018), as may be amended or revised, or been placed on the Scrutinized Companies that Boycott Israel List created pursuant to Section 215.4725, Florida Statutes (2018), as may be amended or revised, or is engaged in a boycott of Israel. 24. VERIFICATION OF EMPLOYMENT ELIGIBILITY. CONSULTANT represents that CONSULTANT, and each Subconsultant has registered with and uses the E-Verify system maintained by the United States Department of Homeland Security to verify the work authorization status of all newly hired employees in compliance with the requirements of Section 448.095, Florida Statutes, and that entry into this Agreement will not 20 violate that statute. If CONSULTANT violates this section, Municipality may immediately terminate this Agreement for cause and CONSULTANT shall be liable for all costs incurred by Municipality due to the termination. 25. NO PARTNERSHIP OR JOINT VENTURE. It is mutually understood and agreed that nothing contained in this Agreement is intended or is to be construed in any manner or under any circumstances whatsoever as creating or establishing the relationship of co-partners or creating or establishing the relationship of a joint venture between the CITY and CONSULTANT, or as constituting CONSULTANT as the agent or representative of the CITY for any purpose or in any manner whatsoever. 26. THIRD PARTY BENEFICIARIES Neither CONSULTANT nor CITY intend to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third-party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. 27. NEGOTIATED AGREEMENT. Both parties have substantially contributed to the drafting and negotiation of this Agreement and this Agreement shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than any other. The parties hereto acknowledge that they have thoroughly read this Agreement, including all exhibits and attachments hereto, and have sought and received whatever competent advice and counsel was necessary for them to form a full and complete understanding of all rights and obligations herein. 28. INCORPORATION BY REFERENCE. The truth and accuracy of each "Recital" clause set forth above is acknowledged by the parties. The attached Exhibits to this Agreement are incorporated into and made a part of this Agreement and all exhibits subsequently attached to this Agreement pursuant to the terms hereof shall be deemed incorporated into and made a part of this Agreement. 29. CONFLICTS OF INTEREST: No elected official, representative, or employee of the CITY has any personal interest, direct or indirect, in this Agreement. No elected official, representative or employee will participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she has an interest, directly or indirectly. No elected official, representative or employee of the CITY will be personally liable to CONSULTANT or any successor in interest for any amount which may become due to CONSULTANT, for any obligations of CITY under the Agreement, or in the event of any default or breach by the CITY. 21 30. COUNTERPARTS. This Agreement may be signed in counterparts, each one of which is considered an original, but all of which constitute one and the same instrument. This Agreement is effective only after execution and delivery by the parties. 31. MISCELLANEOUS. 31.1. This Agreement constitutes the sole and complete understanding between the parties and supersedes all agreements between them, whether oral or written with respect to the subject matter. No amendment, change or addendum to this Agreement is enforceable unless agreed to in writing by both parties and incorporated into this Agreement. For any material change in the Scope of Services or any increase in the compensation for the services, the Board of CITY Commissioners for the CITY and the duly authorized representative for the CONSULTANT shall agree in writing to this change. All changes shall be in accordance with the requirements of the CITY Procurement Policy. 31.2. Any reference to a specific chapter of the Florida Statutes in this Agreement shall incorporate that law by reference and made a part of this Agreement. 31.3. The parties covenant and agree that each is duly authorized to enter into and perform this Agreement and those executing this Agreement have all requisite power and authority to bind the parties. 31.4. The CONSULTANT shall keep books, records, and accounts of all activities related to the performance of this Agreement in compliance with generally accepted accounting procedures. All document, papers, books, records, and accounts made or received by the CONSULTANT in conjunction with the Agreement and the performance of this Agreement shall be open to inspection during regular business hours by an authorized representative of the CITY and the Florida Department of Transportation. 31.5. It is possible that during the course of and subsequent to the termination of this Agreement, the CONSULTANT may desire to publish certain results of scientific, technical or general interest study originating under or existing by virtue of this Agreement in, or by means of journals, magazines, newspapers, radio broadcasts, or other media of communication. The CONSULTANT shall not, without the written approval of the CITY, disclose to others, publish or authorize anyone to publish any technical or confidential information acquired in the course of doing Work or rendering Services under this Agreement unless required by Chapter 119, Florida Statutes. 31.6. In the event of litigation, attorney fees, shall be awarded to the prevailing party, including any and all attorney fees incurred by virtue of appellate review. 31.7 Section headings are for convenience only and do not affect the interpretation of this Agreement 22 32. SURVIVAL. The termination of the Agreement will not release CONSULTANT from its obligation to indemnify CITY for any acts which occurred prior to the termination of the Agreement, unless otherwise agreed upon by CITY and CONSULTANT or by judicial decree. Upon termination or expiration of this Agreement, the CONSULTANT shall remain liable for all obligations and liabilities that have accrued prior to the date of termination or expiration, unless relieved of such obligation or liability by action of a court or rule of law. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 23 IN WITNESS OF THE FOREGOING, the parties have set their hand and seal the day listed below. CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation ELORA RIERA, MMC JOYCE L. DAVIS MAYOR APPROVED AS TO LEGAL FORM AND CORRECTNESS: EVE A. BOUTSIS ANA M. GARCIA, ICMA-CM CITY ATTORNEY CITY MANAGER 24 WITNESSES: CONSULTANT: Kimley-Horn and Associates, Inc. SIGNATURE SIGNATURE PRINT Name PRINT Name SIGNATURE Title PRINT Name DATE STATE OF FLORIDA COUNTY OF BROWARD The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization on , 2025, by as , of Kimley-Horn and Associates, Inc., who is personally known to me or has produced , as identification. Notary Pubic State of My Commission Expires: