Attachment_C_-_Draft_Form_of_Agreement.pdf

Miami-Dade County, FL Contract No. RFP00000021

Rev. 4.10.23

(This is the form of agreement the TPO anticipates awarding to the selected Proposer.)

TPO State Legislative Services Contract No. RFP0000021

THIS AGREEMENT for the provision of ________________, made and entered into as of this ______ day of _________________ by and between _____________________________ , a corporation organized and existing under the laws of the State of _______, having its principal office at ___________________________________________ (the "Consultant" or “Contractor”), and Miami-Dade Transportation Planning Organization, (hereinafter referred to as the "TPO"), previously known as the Metropolitan Planning Organization (MPO) for the Miami Urbanized Area, created pursuant to Section 339.175, Florida Statutes, having its principal office at 150 West Flagler Street, Suite 1900, Miami, Florida.

WITNESSETH:

WHEREAS, the Consultant has offered to provide TPO State Legislative Services, on a non-exclusive basis, that shall conform to the Scope of Services (Appendix A), Miami-Dade County's Request for Proposal (“RFP”) No. RFP0000021 and all associated addenda and attachments, and the requirements of this Agreement; and

WHEREAS, the Consultant has submitted a written proposal dated _____________________ (the " Consultant’s Proposal") which is incorporated herein by reference; and

WHEREAS, the TPO desires to procure from the Consultant such TPO State Legislative service, in accordance with the terms and conditions of this Agreement; and

WHEREAS, the County is assisting with the administration of this Agreement on behalf of the TPO, and the Parties intend that any reference in this Agreement to the “County” shall, where applicable, be construed to mean the TPO, the County acting on behalf of the TPO, or both, as necessary to effectuate the intent of this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Parties hereto agree as follows:

ARTICLE 1. DEFINITIONS

The following words and expressions used in this Agreement shall be construed as follows, except when it is clear from the context that another meaning is intended:

a) The words "Article" or "Articles" to mean the terms and conditions delineated in this Agreement.

b) The word "Contract" or “Agreement” to mean collectively the (i) Articles, (ii) Scope of Services (Appendix A), (iii) all other appendices and attachments hereto, (iv) all amendments issued hereto, (v) the RFP and all associated addenda and attachments and (vi) Consultant’s Proposal.

c) The words "Contract Manager" to mean the Chief Procurement Officer, Strategic Procurement Department, or the duly authorized representative designated to manage the Contract.

d) The word "Days" to mean calendar days.

e) The word "Deliverables" to mean all documentation and any items of any nature submitted by the Consultant to the Project

Manager for review and approval pursuant to the terms of this Agreement.

f) The words "Developed Works" to mean all rights, title, and interest in and to certain inventions, ideas, designs and methods, specifications and other documentation related thereto developed by the Consultant and its Subconsultant specifically for the

TPO.

g) The words "Project Manager" to mean the Miami-Dade TPO Executive Director or the duly authorized representative designated to manage the Project.

h) The words "Scope of Services" to mean the document appended hereto as Appendix A, which details the Work to be performed

Miami-Dade County, FL Contract No. RFP0000021

Rev. 3.6.26 by the Consultant.

i) The words "Service" or "Services" to mean the provision of Legislative Advocacy service services in accordance with the Scope of Services.

j) The word " Subconsultant " or “Subconsultant” to mean any person, entity, firm, or corporation, other than the employees of the

Consultant, who furnishes labor and/or materials, in connection with the Work, whether directly or indirectly, on behalf and/or under the direction of the Consultant and whether or not in privity of Contract with the Consultant.

k) The word "Work" to mean all matters and things required to be done by the Consultant in accordance with the provisions of this Contract.

ARTICLE 2. ORDER OF PRECEDENCE

If there is a conflict between or among the provisions of this Agreement, the order of precedence is as follows: 1) these Articles, 2) Scope of Services (Appendix A), 3) all other appendices and attachments hereto, 4) the RFP and any associated addenda and attachments thereof, and 5) the Consultant’s Proposal.

ARTICLE 3. RULES OF INTERPRETATION

a) References to a specified Article, section or schedule shall be construed as reference to that specified Article, or section of, or schedule to this Agreement unless otherwise indicated.

b) Reference to any agreement or other instrument shall be deemed to include such agreement or other instrument as such agreement or other instrument may, from time to time, be modified, amended, supplemented, or restated in accordance with its terms.

c) The terms "hereof", "herein", "hereinafter", "hereby", "herewith", "hereto", and "hereunder" shall be deemed to refer to this

Agreement.

d) The terms "directed", "required", "permitted", "ordered", "designated", "selected", "prescribed" or words of like import to mean respectively, the direction, requirement, permission, order, designation, selection or prescription of the Project Manager.

e) The terms "approved", acceptable", "satisfactory", "equal", "necessary", or words of like import to mean respectively, approved by, or acceptable or satisfactory to, equal or necessary in the opinion of the Project Manager.

f) The titles, headings, captions, and arrangements used in these Terms and Conditions are for convenience only and shall not be deemed to limit, amplify, or modify the terms of this Contract, nor affect the meaning thereof.

ARTICLE 4. NATURE OF THE AGREEMENT

a) This Agreement incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained in this Agreement. The Parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this Agreement, and that this Agreement contains the entire agreement between the Parties as to all matters contained herein. Accordingly, it is agreed 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 any oral representations or modifications concerning this Agreement shall be of no force or effect, and that this Agreement may be modified, altered, or amended only by a written amendment duly executed by the Parties hereto or their authorized representatives.

b) The Consultant shall provide the services set forth in the Scope of Services and render full and prompt cooperation with the

County and TPO in all aspects of the Work performed hereunder.

c) The Consultant acknowledges that this Agreement requires the performance of all things necessary for or incidental to the effective and complete performance of all Work under this Contract. All things not expressly mentioned in this Agreement but necessary to carrying out its intent are required by this Agreement, and the Consultant shall perform the same as though they were specifically mentioned, described, and delineated.

d) The Consultant shall furnish all labor, materials, tools, supplies, and other items required to perform the Work necessary for the completion of this Contract. All Work shall be accomplished at the direction of and to the satisfaction of the Project Manager.

e) The Consultant acknowledges that the TPO shall make all policy decisions regarding the Scope of Services. The Consultant agrees to provide input on policy issues in the form of recommendations. The Consultant shall implement all changes in providing services hereunder as a result of a policy change implemented by the TPO. The Consultant agrees to act in an expeditious and fiscally sound manner in providing the TPO with input regarding the time and cost to implement said changes and in executing the activities required to implement said changes.

f) The Consultant shall abide by and be governed by Miami-Dade County Ordinances and Resolutions, which may have a bearing on the Services involved in this Agreement, including but not limited to the following, all as such may be amended from time to time.

• Section 2-11.1 of the Code of Miami-Dade County (Ordinance No. 72-82, Conflict of Interest Ordinance)

• Section 2-11.1.2 of the Code of Miami-Dade County (Ordinance No. 00-64, Ordinance Relating to County’s Lobbyists)

Consistent with Ordinance Nos. 72-82 and 00-64 and Resolution No. R-1236-99, no person or entity, whether an individual, firm, partnership or corporation, which receives compensation either directly or indirectly from the TPO for lobbying on behalf of the TPO or any of its agencies or instrumentalities at either the municipal, state, or national level shall represent any entity in any forum to support a position in opposition to a position of the TPO unless the TPO grants a specific waiver for a specific lobbying activity.

Consistent with Sections 2-11.1 and 2-11.1.2, no person or entity, whether an individual, firm, partnership or corporation, which receives compensation either directly or indirectly from the TPO for lobbying on behalf of the TPO or any of its agencies or instrumentalities at either the municipal, state, or national level shall represent any entity in any forum to support a position in opposition to a position of the TPO unless the TPO grants a specific waiver for a specific lobbying activity. The failure to comply with this provision shall result in either or both of the following: (i) the Consultant’s contract being voidable by the TPO.

A position in opposition to a TPO position is not limited to a position that conflicts with an express provision of the legislative package adopted by the TPO Governing Board. A position in opposition to a TPO position may take the form of an adverse policy position or fiscal impact on the TPO, either direct or indirect. It may also arise in other areas. Not every TPO interest can be anticipated or enumerated in the TPO’s legislative package, and issues arise and change over the course of the legislative process. It is incumbent on the Consultant and its employees, partners, and Subconsultant to remain mindful of the TPO’s policy and fiscal interests and positions vis-à-vis other clients.

Concurrent with entering this Agreement, the Consultant, on behalf of itself and any and all employees, partners, and Subconsultants, shall provide the Executive Director of the TPO a copy of the 2026 state legislative and executive Lobbyist Registration Forms for each and every client the Consultant and its employees, partners, and Subconsultants represents at the time this Agreement is entered. In the event the Consultant and its employees, partners, and Subconsultants acquires additional clients after this Agreement is executed, the Consultant, on behalf of itself and any and all employees, partners, and Subconsultants, shall have an affirmative obligation over the term of this Agreement (including a renewal or extension term if applicable) to provide the Executive Director of the TPO a copy of the legislative and executive Lobbyist Registration Forms for such clients prior to undertaking any lobbying activities for such client or within 48 hours of filing the form with the federal government, whichever comes first. This obligation shall apply whether such party or interest is adverse to the County or not.

Such notification must include all parties the Consultant or employees, partners, or Subconsultants wishes to represent.

Separate and independent from the above-referenced obligation to notify the County of representation, the Consultant, on behalf of itself and any and all employees, partners, and Subconsultants, must advise the TPO Governing Board and the Executive Director of the TPO immediately in writing of an actual or perceived conflict due to any position in opposition to a County position that the Consultant or any employee, partner, or Subconsultant desires to take and request a waiver of such conflict prior to taking such a position.

The Executive Director of the TPO reserves the right to question the Consultant regarding any client or any potential and/or perceived conflict.

Once a conflict waiver request has been received by the County, the County reserves the right to determine whether the selected Proposer and/or employee, partner or Subconsultant may continue representing the County and the other interest until either the TPO Governing Board issues a waiver or the TPO Governing Board can consider the conflict issue.

The TPO Governing Board may take, in its sole discretion, any action regarding a waiver request, including but not limited to the following: (i) grant a waiver and allow the Consultant, and/or employee, partner, or Subconsultant to continue to represent both the County and the other party; (ii) refuse to grant a waiver and require the Consultant, and/or employee, partner, or Subconsultant to choose between representing Miami-Dade County or the other party, or to discontinue representing the other party; (iii) refuse to grant a waiver and void its contract with the Consultant and/or employee, partner, or Subconsultant; or (iv) grant a limited waiver and allow the Consultant and/or employee, partner, or Subconsultant to continue to represent both the County and the other party under whatever limitations or restrictions the County, in its sole discretion, determines to be appropriate.

Pursuant to County policy, no contract or work order for lobbying shall be awarded, renewed, or payment made until the contract lobbyist who discloses to the County or attests that a representation conflict exists, including all Subconsultants and lobbyists hired under work orders pursuant to the contract, seeks in writing and obtains a waiver from the TPO.

Consultant has read, understands and agrees to abide by the conflict of interest and other provisions contained in this section 4(f).

ARTICLE 5. CONTRACT TERM

The Contract shall become effective on the date identified on the first page of this Agreement and shall continue through the last day of the sixtieth (60th) month, thereafter. This Contract may be renewed upon the mutual written agreement of both parties, subject to the same terms and conditions, as may be negotiated and agreed upon by the parties. The County may extend this Contract for up to an additional one hundred-eighty (180) calendar days beyond the current Contract period and will notify the Consultant in writing of the extension. This Contract may be extended beyond the initial one hundred-eighty (180) calendar day extension period by mutual agreement between the County and the Consultant, upon approval by the TPO Governing Board.

ARTICLE 6. NOTICE REQUIREMENTS

All notices required or permitted under this Agreement shall be in writing and shall be deemed sufficiently served if delivered by: (i) Registered or Certified Mail, with return receipt requested; (ii) courier service personally; (iii) Federal Express Corporation or other nationally recognized carrier to be delivered overnight; or (iv) via e-mail (if provided below) with delivery of hard copy pursuant to (i), (ii), or (iii) in this paragraph. The addresses for such notice are as follows:

(1) To the TPO

a) To the Project Manager:

Aileen Bouclé, AICP TPO Executive Director Transportation Planning Organization (TPO) 150 West Flagler Street, Suite 1900 Miami, Florida 33130 Phone: (305) 375-4507 E-mail: Aileen.Boucle@mdtpo.gov and mailto:Aileen.Boucle@mdtpo.gov

b) to the Contract Manager:

Miami-Dade County Strategic Procurement Department Attention: Chief Procurement Officer 111 NW 1st Street, Suite 1300 Miami, Florida 33128 Phone: (305) 375-4900 Email: cpo@miamidade.gov

(2) To the Consultant

Consultant Name

Attention:

Address:

Phone:

E-mail:

Either party may at any time designate a different address and/or contact person by giving notice as provided above to the other party.

Such notices shall be deemed given upon receipt by the addressee.

ARTICLE 7. PAYMENT FOR SERVICES/AMOUNT OBLIGATED

The Consultant warrants that it has reviewed the TPO's requirements and has asked such questions and conducted such other inquiries as the Consultant deemed necessary in order to determine the price the Consultant will charge to provide the Services to be performed under this Contract. The compensation for all Services performed under this Contract, including all costs associated with such Services, shall be in the total amount not to exceed seventy-five thousand dollars ($75,000.00) per year. The TPO shall have no obligation to pay the Consultant any additional sum in excess of this amount, except for a modification to the Contract, which is approved and executed in writing by the TPO and the Consultant.

All Work undertaken by the Consultant before TPO’s approval of this Contract shall be at the Consultant’s risk and expense.

Price shall remain firm and fixed for the term of the Contract, including any extension periods; however, the Consultant may offer incentive discounts to the TPO at any time during the Contract term, including any extension thereof.

ARTICLE 8. METHOD AND TIMES OF PAYMENT

A. The Consultant agrees that under the provisions of this Agreement, as reimbursement for those actual, reasonable and necessary costs incurred by the Consultant during the applicable month, which are directly attributable or properly allocable to the Services, the Consultant may bill the TPO one-twelfth (1/12) of the annual contract amount once per month, upon invoices certified by the Consultant.

If applicable, all invoices shall be taken from the books of account kept by the Consultant, shall be supported by copies of payroll distribution, receipt bills or other documents reasonably required by the TPO. Invoices shall show the TPO’s contract number and shall have a unique invoice number assigned by the Consultant. It is the policy of the TPO that payment for all services shall be made in a timely manner.

B. Invoices and associated back-up documentation, if applicable, shall be submitted in duplicate by the Consultant to the TPO as directed by the TPO Executive Director.

In accordance with Section 218.74 of the Florida Statutes, the time at which payment shall be due from the TPO shall be forty-five (45) days from receipt of a proper invoice.

mailto:cpo@miamidade.gov

ARTICLE 9. INDEMNIFICATION AND INSURANCE

The Consultant shall indemnify, defend and hold harmless the County and its officers, employees, agents and instrumentalities from any and all liability, losses or damages, including attorneys' fees and costs of defense, which the County or its officers, employees, agents or instrumentalities may incur as a result of claims, demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to or resulting from the performance of this Agreement by the Consultant or its employees, agents, servants, partners, principals or Subconsultants. The Consultant shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits or actions of any kind or nature in the name of the County, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon. The Consultant expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Consultant shall in no way limit the responsibility to indemnify, keep and save harmless and defend the County or its officers, employees, agents, and instrumentalities as herein provided.

Upon County’s notification, the Consultant shall furnish to the Strategic Procurement Department, certificate(s) of insurance that indicate that insurance coverage has been obtained, which meets the requirements as outlined below:

1. Worker’s Compensation Insurance for all employees of the Consultant as required by Florida Statute 440.

2. Commercial General Liability in an amount not less than $1,000,000 per occurrence, and $2,000,000 in the aggregate, not to exclude coverage for Products and Completed Operations. Miami-Dade County must be shown as an additional insured with respect to this coverage.

3. Automobile Liability Insurance covering all owned, non-owned and hired vehicles used in connection with the work, in an amount not less than $1,000,000 combined single limit per occurrence for bodily injury and property damage.

4. Professional Liability Insurance in an amount not less than $1,000,000 per claim.

All insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications:

The company must be rated no less than "A-" as to management, and no less than "Class VII" as to financial strength, by Best’s Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the County Risk Management Division.

OR

The company must hold a valid Florida Certificate of Authority as shown in the latest "List of All Insurance Companies Authorized or Approved to Do Business in Florida", issued by the State of Florida Department of Financial Services and are a member of the Florida Guaranty Fund.

The mailing address of Miami-Dade County as the certificate holder must appear on the certificate of insurance as follows:

Miami-Dade County 111 NW 1st Street Suite 2340 Miami, Florida 33128-1974

Compliance with the foregoing requirements shall not relieve the Consultant of this liability and obligation under this section or under any other section in this Agreement.

Award of this Contract is contingent upon the receipt of the insurance documents, as required, within ten (10) business days. If the certificate of insurance is received within the specified timeframe but not in the manner prescribed in this Agreement, the Consultant shall have an additional five (5) business days to submit a corrected certificate to the County. If the Consultant fails to submit the required insurance documents in the manner prescribed in this Agreement within fifteen (15) business days, the Consultant shall be in default of the contractual terms and conditions and award of the Contract may be rescinded, unless such timeframe for submission has been extended by the County.

The Consultant shall assure that the certificate of insurance required in conjunction with this section remain in full force for the term of the Contract, including any renewal or extension periods that may be exercised by the County. If the certificate of insurance is scheduled to expire during the term of the Contract, the Consultant shall submit new or renewed certificate of insurance to the County before such expiration. If expired certificate of insurance is/are not replaced or renewed to cover the Contract period, the County may suspend the Contract until the new or renewed certificate is/are received by the County in the manner prescribed herein. If such suspension exceeds thirty (30) calendar days, the County may, at its sole discretion, terminate the Contract for cause and the Consultant shall be responsible for all direct and indirect costs associated with such termination.

ARTICLE 10. MANNER OF PERFORMANCE

A. The Consultant shall provide the Work described herein in a competent and professional manner satisfactory to the TPO in accordance with the terms and conditions of this Agreement. The TPO shall be entitled to a satisfactory performance of all Work described herein and to full and prompt cooperation by the Consultant in all aspects of the Work. At the request of the TPO, the Consultant shall promptly remove from the Project any Consultant’s employee, Subconsultant, or any other person performing Work hereunder. The Consultant agrees that such removal of any of its employees does not require the termination or demotion of any employee by the Consultant.

B. The Consultant agrees to defend, hold harmless and indemnify the TPO and shall be liable and responsible for all claims, suits, actions, damages, and costs (including attorneys’ fees and court costs) made against the TPO, occurring on account of, arising from or in connection with the removal and replacement of any Consultant’s personnel performing Services hereunder at the behest of the TPO. Removal and replacement of any Consultant’s personnel as used in this Article shall not require the termination and/or demotion of such Consultant’s personnel.

C. The Consultant always agrees that it will employ, maintain, and assign to the performance of the Work a sufficient number of competent and qualified professionals and other personnel to meet the requirements to which reference is hereinafter made. The Consultant agrees to adjust its personnel staffing levels or to replace any its personnel if so, directed upon reasonable request from the TPO, should the TPO make a determination, in its sole discretion, that said personnel staffing is inappropriate or that any individual is not performing in a manner consistent with the requirements for such a position.

D. The Consultant warrants and represents that its personnel have the proper skill, training, background, knowledge, experience, rights, authorizations, integrity, character, and licenses as necessary to perform the Work described herein, in a competent and professional manner.

E. The Consultant shall always cooperate with the TPO and coordinate its respective work efforts to maintain the progress most effectively and efficiently in performing the Work.

F. The Consultant shall comply with all provisions of all federal, state, and local laws, statutes, ordinances, and regulations that are applicable to the performance of this Agreement.

ARTICLE 11. EMPLOYEES OF THE CONSULTANT

All employees of the Consultant shall be, at all times, employees of the Consultant under its sole direction and not employees or agents of the TPO. The Consultant shall supply competent employees. The TPO may require the Consultant to remove an employee it deems careless, incompetent, insubordinate or otherwise objectionable and whose continued employment on TPO property is not in the best interest of the TPO. Each employee shall have and wear proper identification.

ARTICLE 12. INDEPENDENT CONSULTANT RELATIONSHIP

The Consultant is, and shall be, in the performance of all Work and activities under this Agreement, an independent Consultant, and not an employee, agent or servant of the TPO. All persons engaged in any of the Work performed or Services provided pursuant to this Agreement shall always, and in all places, be subject to the Consultant's sole direction, supervision, and control. The Consultant shall exercise control over the means and manner in which it and its employees perform the Work, and in all respects the Consultant's relationship and the relationship of its employees to the TPO shall be that of an independent Consultant and not as employees and agents of the TPO.

The Consultant does not have the power or authority to bind the TPO in any promise, agreement, or representation other than specifically provided for in this Agreement.

ARTICLE 13. DISPUTE RESOLUTION PROCEDURE

A. The Consultant hereby acknowledges that the Project Manager will determine in the first instance all questions of any nature whatsoever arising out of, under, or in connection with, or in any way related to or on account of, this Agreement including without limitations: questions as to the value, acceptability and fitness of the Services; questions as to either party's fulfillment of its obligations under the Contract; negligence, fraud or misrepresentation before or subsequent to acceptance of the Consultant’s Proposal; questions as to the interpretation of the Scope of Services; and claims for damages, compensation and losses.

B. The Consultant shall be bound by all determinations or orders and shall promptly comply with every order of the Project Manager, including the withdrawal or modification of any previous order and regardless of whether the Consultant agrees with the Project Manager's determination or order. Where orders are given orally, they will be issued in writing by the Project Manager as soon thereafter as is practicable.

C. The Consultant must, in the final instance, seek to resolve every difference concerning the Agreement with the Project Manager. In the event that the Consultant and the Project Manager are unable to resolve their difference, the Consultant may initiate a dispute in accordance with the procedures set forth in this Article. Exhaustion of these procedures shall be a condition precedent to any lawsuit permitted hereunder.

D. In the event of such dispute, the Parties authorize the TPO Executive Director or designee, who may not be the Project Manager or anyone associated with this Project, acting personally, to decide all questions arising out of, under, or in connection with, or in any way related to or on account of the Agreement (including but not limited to claims in the nature of breach of contract, fraud or misrepresentation arising either before or subsequent to execution hereof). Any such dispute shall be brought, if at all, before the TPO Executive Director within ten (10) days of the occurrence, event or act out of which the dispute arises.

E. The TPO Executive Director may base this decision on such assistance as may be desirable, including advice of experts, but in any event shall base the decision on an independent and objective determination of whether Consultant’s performance or any Deliverable meets the requirements of this Agreement and any specifications with respect thereto set forth herein. The effect of any decision shall not be impaired or waived by any negotiations or settlements or offers made in connection with the dispute, whether or not the TPO Executive Director participated therein, or by any prior decision of others, which prior decision shall be deemed subject to review, or by any termination or cancellation of the Agreement. All such disputes shall be submitted in writing by the Consultant to the TPO Executive Director for a decision, together with all evidence and other pertinent information regarding such questions, in order that a fair and impartial decision may be made. Whenever the TPO Executive Director is entitled to exercise discretion or judgement or to make a determination or form an opinion pursuant to the provisions of this Article, such action shall be fair and impartial when exercised or taken. The TPO Executive Director, as appropriate, shall render a decision in writing and deliver a copy of the same to the Consultant. Except as such remedies may be limited or waived elsewhere in the Agreement, Consultant reserves the right to pursue any remedies available under law after exhausting the provisions of this Article.

F. This Article will survive the termination or expiration of this Agreement.

ARTICLE 14. MUTUAL OBLIGATIONS

A. This Agreement, including attachments and appendices to the Agreement, shall constitute the entire Agreement between the Parties with respect hereto and supersedes all previous communications and representations or agreements, whether written or oral, with respect to the subject matter hereto unless acknowledged in writing by the duly authorized representatives of the Parties.

B. Nothing in this Agreement shall be construed for the benefit, intended or otherwise, of any third party that is not a parent or subsidiary of a party or otherwise related (by virtue of ownership control or statutory control) to a party.

C. In those situations where this Agreement imposes an indemnity obligation on the Consultant, the TPO may, at its expense, elect to participate in the defense if the TPO should so choose. Furthermore, the TPO may at its own expense defend or settle any such claims if the Consultant fails to diligently defend such claims, and thereafter seek indemnity for such defense or settlement costs from the Consultant.

ARTICLE 15. QUALITY ASSURANCE/QUALITY ASSURANCE RECORD KEEPING

The Consultant shall maintain, and shall require that its Subconsultants and suppliers maintain, complete and accurate records to substantiate compliance with the requirements set forth in the Agreement. The Consultant and its Subconsultants and suppliers shall retain such records, and all other documents relevant to the Work furnished under this Agreement for a period of three years from the expiration date of this Agreement and any extension thereof.

ARTICLE 16. AUDITS

A. The TPO, or its duly authorized representatives and governmental agencies, shall until the expiration of three years after the expiration of this Agreement and any extension thereof, have access to and the right to examine and reproduce any of the Consultant's books, documents, papers and records and of its Subconsultants and suppliers which apply to all matters of the TPO.

Such records shall subsequently conform to Generally Accepted Accounting Principles requirements, as applicable, and shall only address those transactions related to this Agreement.

B. Pursuant to Section 2-481 of the Code of Miami-Dade County, Florida, the Consultant will grant access to the County Commission Auditor to all financial and performance related records, property, and equipment purchased in whole or in part with government funds within five business days of the Commission Auditor’s request. The Consultant agrees to maintain an accounting system that provides accounting records that are supported with adequate documentation, and adequate procedures for determining the allowability and allocability of costs.

ARTICLE 17. SUBSTITUTION OF PERSONNEL

In the event the Consultant needs to substitute personnel for the key personnel identified by the Consultant’s Proposal, the Consultant must notify the TPO in writing and request written approval for the substitution at least ten (10) business days prior to effecting such substitution. However, such substitution shall not become effective until the TPO has approved said substitution.

ARTICLE 18. CONSENT OF THE COUNTY REQURIED FOR ASSIGNMENT

The Consultant shall not assign, transfer, convey or otherwise dispose of this Agreement, including its rights, title, or interest in or to the same or any part thereof without the prior written consent of the TPO.

ARTICLE 19. SUBCONTRACTUAL RELATIONS

A. If the Consultant causes any part of this Agreement to be performed by a Subconsultant, the provisions of this Contract will apply to such Subconsultant and its officers, agents and employees in all respects as if it and they were employees of the Consultant; and the Consultant will not be in any manner thereby discharged from its obligations and liabilities hereunder, but will be liable hereunder for all acts, omissions, and negligence of the Subconsultant, its officers, agents, and employees, as if they were employees of the Consultant. The Services performed by the Subconsultant will be subject to the provisions hereof as if performed directly by the Consultant.

B. The Consultant, before making any subcontract for any portion of the Work, will state in writing to the TPO the name of the proposed

Subconsultant, the portion of the Work which the Subconsultant is to do, the place of business of such Subconsultant, and such other information as the TPO may require. The TPO will have the right to require the Consultant not to award any subcontract to a person, firm or corporation disapproved by the TPO.

C. Before entering into any subcontract hereunder, the Consultant will inform the Subconsultant fully and completely of all provisions and requirements of this Agreement relating either directly or indirectly to the Work to be performed. Such Work performed by such Subconsultant will strictly comply with the requirements of this Contract.

D. In order to qualify as a Subconsultant satisfactory to the TPO, in addition to the other requirements herein provided, the Subconsultant must be prepared to prove to the satisfaction of the TPO that it has the necessary facilities, skill and experience, and ample financial resources to perform the Work in a satisfactory manner. To be considered skilled and experienced, the Subconsultant must show to the satisfaction of the TPO that it has satisfactorily performed Work of the same general type which is required to be performed under this Agreement.

E. The TPO shall have the right to withdraw its consent to a subcontract if it appears to the TPO that the Subconsultant will delay, prevent, or otherwise impair the performance of the Consultant's obligations under this Agreement. All Subconsultants are required to protect the confidentiality of the TPO's and TPO's proprietary and confidential information. Consultant shall furnish to the TPO copies of all subcontracts between Consultant and Subconsultants and suppliers hereunder. Within each such subcontract, there shall be a clause for the benefit of the TPO in the event the TPO finds the Consultant in breach of this Contract, permitting the TPO to request completion by the Subconsultant of its performance obligations under the subcontract. The clause shall include an option for the TPO to pay the Subconsultant directly for the performance by such Subconsultant. Notwithstanding, the foregoing shall neither convey nor imply any obligation or liability on the part of the TPO to any Subconsultant hereunder as more fully described herein.

ARTICLE 20. ASSUMPTION, PARAMETERS, PROJECTIONS, ESTIMATES AND EXPLANATIONS

The Consultant understands and agrees that any assumptions, parameters, projections, estimates, and explanations presented by the TPO were provided to the Consultant for evaluation purposes only. However, since these assumptions, parameters, projections, estimates, and explanations represent predictions of future events the TPO makes no representations or guarantees; and the TPO shall not be responsible for the accuracy of the assumptions presented; and the TPO shall not be responsible for conclusions to be drawn therefrom; and any assumptions, parameters, projections, estimates and explanations shall not form the basis of any claim by the Consultant. The Consultant accepts all risk associated with using this information.

ARTICLE 21. SEVERABILITY

If this Agreement contains any provision found to be unlawful, the same shall be deemed to be of no effect and shall be deemed stricken from this Agreement without affecting the binding force of this Agreement as it shall remain after omitting such provision.

ARTICLE 22. TERMINATION AND SUSPENSION OF WORK

A. This Agreement may be terminated for cause by the TPO for reasons including, but not limited to, (i) the Consultant commits an

Event of Default (as defined below in Article 23) and fails to cure said Event of Default (as delineated below in Article 24), or (ii) Consultant attempts to meet its contractual obligations with the TPO through fraud, misrepresentation, or material misstatement.

B. This Agreement may also be terminated for convenience by the TPO. Termination for convenience is effective on the termination date stated in the written notice provided by the TPO.

C. TPO reserves the right to temporarily suspend execution of the whole or any part of the Work. The Consultant shall insert in each subcontract a provision that the Subconsultant shall comply immediately with a written order of TPO to the Consultant to suspend the Work, and that they shall further insert the same provision in each subcontract of any tier. It is expressly understood that Consultant shall not be entitled to any compensation for the period of time in which there is a suspension of Work.

D. If TPO terminates this Agreement for cause under Article 22(a), the TPO may, in its sole discretion, also terminate or cancel any other contract(s) that such individual or corporation or other entity has with the TPO and that such individual, corporation or other entity shall pay all direct or indirect costs associated with such termination or cancellation, including attorneys’ fees.

E. The foregoing notwithstanding, if the Consultants attempts to meet its contractual obligations with the TPO through fraud, misrepresentation, or material misstatement, the Consultant may be debarred from TPO contracting in accordance with the TPO debarment procedures. The Consultant may be subject to debarment for failure to perform and all other reasons set forth in Section 10-38 of the Code of Miami-Dade County, Florida.

F. In the event that the TPO exercises its right to terminate this Agreement, the Consultant shall, upon receipt of such notice, unless otherwise directed by the TPO:

i. stop Work on the date specified in the notice (the "Effective Termination Date");

ii. take such action as may be necessary for the protection and preservation of the TPO's materials and property;

iii. cancel orders;

iv. assign to the TPO and deliver to any location designated by the TPO any non-cancelable orders for Deliverables that are not capable of use except in the performance of this Agreement and has been specifically developed for the sole purpose of this Agreement and not incorporated in the Services;

v. take no action which will increase the amounts payable by the TPO under this Agreement; and

vi. reimburse the TPO a proration of the fees paid annually based on the remaining months of the term per the compensation listed in Appendix B.

G. In the event that the TPO exercises its right to terminate this Agreement, the Consultant will be compensated as stated in the payment

Articles herein for the:

i. portion of the Services completed in accordance with the Agreement up to the Effective Termination Date; and

ii. non-cancelable Deliverables that are not capable of use except in the performance of this Agreement and has been specifically developed for the sole purpose of this Agreement, but not incorporated in the Services.

H. All compensation pursuant to this Article are subject to audit.

I. In the event the Consultant fails to cure an Event of Default timely, the TPO may terminate this Agreement, and the TPO or its designated representatives may immediately take possession of all applicable equipment, materials, products, documentation, reports, and data.

ARTICLE 23. EVENT OF DEFAULT

A. An Event of Default is a material breach of this Agreement by the Consultant, and includes but is not limited to the following:

i. the Consultant has not delivered Deliverables and/or Services on a timely basis;

ii. the Consultant has refused or failed to supply enough properly skilled staff personnel;

iii. the Consultant has failed to make prompt payment to Subconsultants or suppliers for any Services;

iv. the Consultant has become insolvent (other than as interdicted by the bankruptcy laws), or has assigned the proceeds received for the benefit of the Consultant's creditors, or the Consultant has taken advantage of any insolvency statute or debtor/creditor law or if the Consultant's affairs have been put in the hands of a receiver;

v. the Consultant has failed to obtain the approval of the TPO where required by this Agreement;

vi. the Consultant has failed to provide "adequate assurances" as required under subsection b below;

vii. the Consultant has failed in the representation of any warranties stated herein; or

viii. the Consultant fails to comply with Article 38.

B. When, in the opinion of the TPO, reasonable grounds for uncertainty exist with respect to the Consultant's ability to perform the Work or any portion thereof, the TPO may request that the Consultant, within the timeframe set forth in the TPO's request, provide adequate assurances to the TPO, in writing, of the Consultant's ability to perform in accordance with the terms of this Agreement. Until the TPO receives such assurances, the TPO may request an adjustment to the compensation received by the Consultant for portions of the Work which the Consultant has not performed. In the event that the Consultant fails to provide to the TPO the requested assurances within the prescribed timeframe, the TPO may:

i. treat such failure as a repudiation and/or material breach of this Agreement; and

ii. resort to any remedy for breach provided herein or at law, including but not limited to, taking over the performance of the

Work or any part thereof either by itself or through others.

ARTICLE 24. NOTICE OF DEFAULT - OPPORTUNITY TO CURE

If an Event of Default occurs in the determination of the TPO, the TPO shall notify the Consultant (the "Default Notice"), specifying the basis for such default, and advising the Consultant that such default must be cured immediately, or this Agreement with the TPO may be terminated. Notwithstanding, the TPO may, in its sole discretion, allow the Consultant to rectify the default to the TPO's reasonable satisfaction within a thirty (30) day period. The TPO may grant an additional period of such duration as the TPO shall deem appropriate without waiver of any of the TPO’s rights hereunder, so long as the Consultant has commenced curing such default and is effectuating a cure with diligence and continuity during such thirty (30) day period or any other period which the TPO prescribes. The Default Notice shall specify the date the Consultant shall discontinue the Work upon the Effective Termination Date.

ARTICLE 25. REMEDIES IN THE EVENT OF DEFAULT

If an Event of Default occurs, whether or not the TPO elects to terminate this Agreement as a result thereof, the Consultant shall be liable for all damages resulting from the default, irrespective of whether the TPO elects to terminate the Agreement, including but not limited to:

1. lost revenues;

2. the difference between the cost associated with procuring Services hereunder and the amount actually expended by the TPO for re-procurement of Services, including procurement and administrative costs; and

3. such other direct damages.

The Consultant shall also remain liable for any liabilities and claims related to the Consultant’s default. The TPO may also bring any suit or proceeding for specific performance or for an injunction. Pursuant to Fla. Stat. § 252.505, if a breach of contract occurs during an emergency recovery period, whether or not the County elects to terminate the contract, the Consultant shall pay to the County a $5,000 penalty and damages, which may be either actual and consequential damages or liquidated damages. As used in this Article, the term “emergency recovery period” means a 1-year period that begins on the date that the Governor of Florida initially declared a state of emergency for a natural event and the term “natural event” includes, but is not limited to, a hurricane, a storm, a flood, severe wave action, a drought, or an earthquake.

ARTICLE 26. PATENT AND COPYRIGHT INDEMNIFICATION

1. The Consultant shall not infringe on any copyrights, trademarks, service marks, trade secrets, patent rights, other intellectual property rights or any other third-party proprietary rights in the performance of the Work.

2. The Consultant warrants that all Deliverables furnished hereunder, including but not limited to equipment, programs, documentation, software, analyses, applications, methods, ways, processes, and the like, do not infringe upon or violate any copyrights, trademarks, service marks, trade secrets, patent rights, other intellectual property rights or any other third-party proprietary rights.

3. The Consultant shall be liable and responsible for any and all claims made against the TPO for infringement of patents, copyrights, service marks, trade secrets or any other third party proprietary rights, by the use or supplying of any programs, documentation, software, analyses, applications, methods, ways, processes, and the like, in the course of performance or completion of, or in any way connected with, the Work, or the TPO's continued use of the Deliverables furnished hereunder.

Accordingly, the Consultant at its own expense, including the payment of attorney's fees, shall indemnify, and hold harmless the TPO and defend any action brought against the TPO with respect to any claim, demand, cause of action, debt, or liability.

4. In the event any Deliverable or anything provided to the TPO hereunder, or portion thereof is held to constitute an infringement and its use is or may be enjoined, the Consultant shall have the obligation to, at the TPO's option to (i) modify, or require that the applicable Subconsultant or supplier modify, the alleged infringing item(s) at its own expense, without impairing in any respect the functionality or performance of the item(s), or (ii) procure for the TPO, at the Consultant's expense, the rights provided under this Agreement to use the item(s).

5. The Consultant shall be solely responsible for determining and informing the TPO whether a prospective supplier or

Subconsultant is a party to any litigation involving patent or copyright infringement, service mark, trademark, violation, or proprietary rights claims or is subject to any injunction which may prohibit it from providing any Deliverable hereunder. The Consultant shall enter into agreements with all suppliers and Subconsultants at the Consultant's own risk. The TPO may reject any Deliverable that it believes to be the subject of any such litigation or injunction, or if, in the TPO's judgment, use thereof would delay the Work or be unlawful.

ARTICLE 27. CONFIDENTIALITY

A. To the extent applicable, all Developed Works and other materials, data, transactions of all forms, financial information, documentation, inventions, designs and methods obtained from the TPO in connection with the Services performed under this Agreement, made or developed by the Consultant or its Subconsultants in the course of the performance of such Services, or the results of such Services, or for…