HomeMy WebLinkAbout2022 01 24 Consent 301 - Wastewater Facilities Plan Amendment • CONSENT AGENDA ITEM 301
Incnrinreted CITY COMMISSION AGENDA I JANUARY 24, 2022 REGULAR MEETING
1959
TITLE
Wastewater Facilities Plan Amendment
SUMMARY
The City of Winter Springs initiated the process of selecting/designing new wastewater
treatment processes in July 2021. An integral part of the process is funding, and
possible utilization of State Revolving Loan Funds to supplement construction of new
wastewater facilities. The completion of a Wastewater Facilities Plan is required to be
eligible for these funds. The City Commission authorized the City Manager to execute
a Purchase Order with Kimley-Horn and Associates under RFP#01-21 "Agreement for
Civil Engineering Continuing Services" on July, 12th 2021 to prepare a Wastewater
Facilities Plan consisting of:
• Demand projections for the 5, 10, and 20-year time horizons, including septic to
sewer conversion projects.
• Wastewater and reclaimed water master plans based on the 5, 10, 20-year
projections.
• Review/integrate FDEP wastewater treatment facility(WWTF) capacity analysis
report(CAR)
• Review/integrate a WWTF expansion/replacement plan.
• Identify potential project funding sources.
Work is well underway on the Wastewater Facilities plan, which also includes updating
hydraulic models for both the wastewater and reclaimed water systems. The original
project scope called for the consultant to utilize existing hydraulic model(s) and
supporting documentation to update and add to the existing models. After initiating
the efforts, the existing hydraulic models from the City's previous modeling efforts
proved to be insufficient and require additional field data and calibration to create an
accurate and useful model. Additional services from the Consultant are required to
fully develop the hydraulic model from as-built and historical data, as well as, perform
supplementary calibration efforts once developed. Incorporating additional multi-year
future scenario analyses will enable evaluation of future growth and alternative
options for wastewater and reclaimed water conveyance through each system
respectively. The Consultant's additional effort for model development, calibration and
additional scenario analysis is incorporated into this amendment.
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RECOMMENDATION
Staff recommends the City Commission authorize the City Manager to
execute an amendment to the existing Purchase Order in the amount of
$90,900.00 with Kimley-Horn and Associates to fund additional consulting
services required to complete a comprehensive Wastewater Facilities Plan for
the purpose of identifying and prioritizing capital projects supporting future
demand and system expansion.
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Kimley>>> Horn
January 13, 2022
Jason Norberg
Director of Public Works and Utilities
City of Winter Springs
400 Old Sanford Oviedo Road
Winter Springs, FL 32708
Re: Wastewater Facilities Plan –Amendment 1
Kimley-Horn and Associates, Inc. ("Kimley-Horn" or "Consultant") is pleased to submit this
letter scope amendment (the"Scope")to the City of Winter Springs, FL ("City )for providing
additional modeling services for the Wastewater Facilities Plan. This Scope is for a work
release authorization under RFP#01-21 Civil Engineering Continuing Service Contract.
Project Understanding
The City desires to develop a comprehensive Wastewater Facilities Plan for the purpose of
identifying and prioritizing capital projects.This scope of services describes the specific tasks
to gather information, develop future needs, perform necessary hydraulic analysis, develop
costs, report recommendations, and produce a prioritized list of capital project needs. The
Wastewater Facilities Plan will focus on capital improvements required to serve the existing,
5, 10, and 20-year future needs of the utility service area.
The Wastewater Facilities Plan will generally consist of the following elements.
• Prepare system demand projections for the 5, 10, and 20-year time horizons.
• Demand projections will include septic to sewer conversion projects identified by the
City.
• Prepare wastewater and reclaimed water master plans based on the 5, 10, and 20-
year demand projections.
• Review the FDEP wastewater treatment facility (WNTF) capacity analysis report (CAR)
update provided by others.
• Review and integrate a WWTF expansion/replacement plan provided by others.
• Identify potential project funding sources with support to Angie Brewer and Associates,
LC.
With this project understanding in mind,the specific scope of services related to the additional
services needed are to be provided by Kimley-Horn are described below.
Specific Scope of Basic Services
Task 1 — Data Collection and Utility Demand Projections
No changes to this task.
Task 2—Wastewater Facility and System Hydraulic Modeling Analysis/Evaluation
Task 2. A. from the Wastewater Facilities Plan scope indicates"Kimley-Horn will utilize the
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current wastewater system model for the wastewater collection system hydraulic analysis.
Using information provided by the City, Kimley-Horn will update the model to include new lift
stations, force mains, and modifications to existing lift stations. Kimley-Horn assumes the
existing model is fully functioning and generally up to date with only minor updates(such as
new infrastructure and/or corrections to existing infrastructure locations) needed."
A current and reliable model is unavailable, therefore, Kimley-Hom will need to provide
additional services to complete Task 2.
The following items are to be added to this task.
I. The additional services include generating a full wastewater collection and transmission
model to accurately simulate the Wastewater Utility's functionality. Kimley-Horn will
provide the following services.
a. Kimley-Horn will develop a wastewater system hydraulic model using Bentley's
SewerCAD software. The model will be developed using the City's GIS
shapefiles as the basis of the transmission system infrastructure. The
wastewater model will be completed for the lift station and force main
transmission system.
b. Kimley-Horn will conduct a verification of nodal connectivity after conversion
into SewerCAD. Breaks in the data will be corrected to provide continuity within
the model. The data provided will be assumed to be correct at the outset of the
effort and the check will be for connectivity and use.
c. Kimley-Horn will input the following data for each lift station to create the lift
station pump and wetwell nodes within the hydraulic model:
i. Pump curves
ii. Wet well diameter
iii. Wet well invert
iv. Operating depth ranges (float or level controls)
d. The wastewater modeling is intended to verify the system capacity in a real-
time basis. The model will be established to include a steady-state scenario
and simulate actual operations of the system in an Extended Period Simulation
(EPS). Diurnal flow curves will be developed to simulate the wastewater flows
over a 24-hour period.
Task 3— Reclaimed Water System Hydraulic Modeling Analysis/Evaluation
Task 3. B. from the Wastewater Facilities Plan scope indicates"Kimley-Horn will prepare a
conceptual reclaimed water plan for expanding the existing distribution system based on the
City's future plans. Kimley-Horn will use the reclaimed water model to identify distribution
line size requirements to meet future demands of the expanded system."
This task includes creating the reclaimed water system model from the provided GIS map
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and preparing a conceptual plan for future expansion. From a meeting on September 1St
2021, the City would like to model a number of scenarios. To support these simulation
scenarios, Kimley-Horn will provide a model for the East WWTF service area, West WWFT
service area, seek avenues to find the best way to hydraulically connect and monitor the two
systems, and how to best provide reclaimed water to the neighborhoods currently irrigating
with potable water.
The following items are added to this task.
E. The additional services include developing a full reclaimed water transmission model to
accurately simulate the Utility's reclaimed water functionality. Kimley-Horn will provide
the following services.
a. Kimley-Horn will develop a reclaimed system hydraulic model using Bentley's
WaterCAD software. The model will be developed using this City's as-built
GIS drawings as the basis of the infrastructure.
b. Kimley-Horn will conduct a verification of nodal connectivity afterconversion
into WaterCAD. Breaks in the data will be corrected to provide continuity
within the model. The data provided will be assumed to be correct at the
outset of the effort and the check will be for connectivity and use.
c. The City will provide the following data for the model to be constructed:
i. Reclaimed facility as-built data including tanks and high service
pumps
ii. Operational setpoints of reclaimed storage tank and reclaimed
distribution pumps
iii. Two years of reclaimed water flows and demands
d. Kimley-Horn will create the following model scenarios for existing, 5-, 10-,
and 20-year cases:
i. Average daily demand scenario.
ii. Since variability in a reclaimed system is associated with seasonal
demand variation, reclaimed usage data will be used to develop a flow
profile to be used a peak month seasonal scenario.
iii. Evaluate the cross-system transmission and flow distribution to supply
reclaimed water between the east and west sides of the City. Kimley-
Horn will evaluate the up to four alternatives forthe interconnection of
the east and west reclaimed users.
e. Kimley-Horn will calibrate the baseline hydraulic model:
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Kimley>>> Horn
f. Kimley-Horn will identify pressure logger locations and coordinate with the
City to obtain up to one week of pressure logger data to use for hydraulic
model calibration.
g. Kimley-Horn will attempt to calibrate the model as close to actual existing
conditions as reasonably achievable by iteratively adjusting the model
parameters such as roughness coefficient and equivalent pipe diameter.
Generally, model predictions within 15%of actual will be considered as
acceptable. The City will be notified if this level of accuracy is not achieved
with a reasonable amount of effort.
h. Kimley-Horn will conduct an analysis of the calibrated model of the existing
reclaimed system for weak points in the system related to high velocities and
low pressures.
Task 4— Review WWTF Expansion Plan/CAR
No changes to this task.
Task 5 Capital Improvement Program Development
No changes to this task.
Task 6 Usage Rates Study Support
No changes to this task.
Schedule
These services will be completed as expeditiously as possible. An estimate of the project
schedule is as follows:
Task Description Timeframe
1 Utility Demand Projections Report No Change
2 Wastewater Facility and System Hydraulic Modeling 8 weeks
Analysis/Evaluation
3 Reclaimed Water System Hydraulic Modeling Analysis/Evaluation 4 weeks
4 Review WWTF Expansion Plan/CAR No Change
5 Capital Improvement Program Development No Change
6 Usage Rates Study Support No Change
These timeframes are non-consecutive and may overlap. The overall project time is project to
be completed within 12 months.
Method of Compensation
Kimley-Horn will perform these additional services for the total lump sum fee of$90,900.00,
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inclusive of office overhead expenses. Invoices will be billed on a percent basis per task. A
breakdown of the fee by task is as follows:
Task Description Lump Sum Fee
1 Utility Demand Projections Report No Change
2 Wastewater Facility and System Hydraulic Modeling $72,000.00
Analysis/Evaluation
3 Reclaimed Water System Hydraulic Modeling/Evaluation $18,900.00
4 Review WWTF Facility Expansion Plan/CAR No Change
5 Capital Improvement Program Development No Change
6 Usage Rates Study No Change
Total $90,900.00
Services provided underthis amendment will be invoiced on a monthly basis in conjunction
with the original project invoices. All invoices will include a description of services provided.
In an effortto expedite invoices and reduce paper waste, Kimley-Horn submits invoices via
email in an Adobe PDF format. We can also provide a paper copy via regular mail if
requested. Include the invoice number and Kimley-Horn project number with all payments.
Please provide the following information:
Please email all invoices to
Additional Services
Services requested that are not specifically included that may be requested by the City will
be provided under a new and separate authorization or can be performed using an
amendment to this scope of services. Kimley-Horn can complete these or other related
services upon written authorization by the City.
• GIS Database Development
• Creating/developing the Reclaim Master hydraulic model
• Creating/developing the Water Master hydraulic model
• Lift station analysis and efficiency assessments using our patent pending XAC-
PAC (pronounced zac-pac) to evaluate existing lift stations motor, pump and
hydraulic effectiveness
• Additional lift station drawdown testing services and field assessments beyond
those specifically listed above
If you concur in all the foregoing and wish to direct us to proceed with the services, please
have authorized persons execute a task authorization for this scope of services and transmit
via email to Lance.Littrell(a-)Kimley-Horn.com. We will commence services after we have
received afully-executed task authorization.
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Kimley>>> Horn
We appreciate the opportunity to provide these services to you. Please contact me at your
earliest convenience with any questions regarding this scope of services.
Sincerely,
KIM LEY-HORN AND ASSOCIATES, INC.
By: Lance R. Littrell, P.E. Jon Martin, P.E.
Senior Project Manager Senior Vice President
Authorization
City of Winter Springs, Florida
By:
Shawn Boyle, City Manager
(Date)
Shawn Boyle
(Print or Type Name)
sboylea.wintersprinasfl.ora
(Email Address)
Attest:
(Print or Type Name)
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Kimley>>> Horn
ATTACHMENT A
WINTER SPRINGS -WASTEWATER AND RECLAIMED WATER HYDRAULIC MODELING
LABOR COSTS
Principal In Charge Engineer Engineering Inern Gerical Labor
Task Rate $260.00 Rate $159.00 Rate $125.00 Rate $85.00 Totals
Hours Costs Hours Costs Hours Cost Hours Costs Hours Costs
Task 1-Wastewater Modeling 37 9620 150 23850 280 35000 42 3570 509 $72,040.00
Data collection 16 $4,160.00 20 $3,180.00 30 $3,750.00 42 $3,570.00
GIS nodal integration and verification 9 $2,340.00 30 $4,770.00 60 $7,500.00 $0.00
Buid each lift station pump and w etw ell 12 $3,120.00 100 $15,900.00 190 $23,750.00 $0.00
Demand Allocation and Model Calbration $0.00 $0.00 $0.00 $0.00
System analysis $0.00 $0.00 $0.00 $0.00
Task 2-Reclaimed Water Modeing 8 $2,080.00 36 $5,724.00 82 $10,250.0010 $850.00 136 $18,904.00
Data collection 2 $520.00 4 $636.00 8 $1,000.00 10 $850.00
GIS nodal integration and verification 2 $520.00 12 $1,908.00 34 $4,250.00 $0.00
Demand analysis 2 $520.00 10 $1,590.00 20 $2,500.00 $0.00
Model calibration 2 $520.00 10 $1,590.00 20 $2,500.00 $0.00
System analysis $0.00 $0.00 $0.00 $0.00
189 S OrangeAvenue, Suite 1000, Orlando,FL32801
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• CONSENT AGENDA ITEM 302
,Ro�oaTed CITY COMMISSION AGENDA I JULY 12, 2021 REGULAR MEETING
1454
TITLE
Waste Water Facilities Plan
SUMMARY
The City of Winter Springs has initiated the process of selecting / designing
the new treatment processes for East and West Waste Water Treatment. We
will be investigating use of the State's Revolving Fund and grants to
supplement City funding. Included in the proposed plan will be a capital
improvement element and a rate study which is necessary when requesting
loans or grants. This consultant will incorporate information from other
consultants into this plan. The projects will take twelve months to complete at
a cost of$246,700.
RECOMMENDATION
Authorize the City Manager to execute a Purchase Order with Kimley-Horn to
prepare a Waste Water Facilities Plan which will be used for the future
grant/loan applications for funding of the two new waste water treatment
plants and other associated infrastructure.
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AGREEMENT FOR
CONTINUING CIVIL ENGINEERING SERVICES
Water,Wastewater,Reclaimed Water,and Stormwater Utility
Road and Transportation Facility
Architecture and Landscape Architecture
THIS AGREEMENT is made and entered this day of 2021,
by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal
corporation ("City"), located at 1126 East State Road 434, Winter Springs, FL 32708, and
KIMLEY-HORN AND ASSOCIATES, INC., a North Carolina corporation authorized to do
business in the State of Florida("Engineer"), whose principal address is 421 Fayetteville Street,
Suite 600, Raleigh,NC 27601.
WITNESSETH:
WHEREAS,the City has a need to obtain engineering, planning, design and permitting,
architecture,and landscape architecture services from time to time on an as-needed,task-oriented
basis; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultant's Competitive Negotiation Act, Section 287.055, Florida Statutes; and
WHEREAS,the Engineer participated in the selection and negotiation process; and
WHEREAS, the Engineer is willing to provide such engineering, planning, design and
permitting, architecture, and landscape architecture services to the City under the terms and
conditions stated herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged,the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and conditions
herein, this Agreement shall terminate on the third (3rd) anniversary of the Effective Date. The
Parties shall have the option to extend the term for two (2) additional one (1) year terms. Any
such extension shall only be by written amendment to this Agreement executed by both parties
hereto.
1.2 The terms and conditions of any Task Order, as described in Section 2.0 hereof,
shall be as set forth in such Task Order. Any Task in effect at the termination of this Agreement
shall remain in effect until completion of said Task Order, and all of the terms and conditions of
this Agreement shall survive until completion of all Task Orders.
1.3 Definitions. The following words and phrases used in this Agreement shall have
the following meaning ascribed to them unless the context clearly indicates otherwise:
Agreement for Continuing Engineering Services
City of Winter Springs/Kimley-Horn
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a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as may be amended from time to time, which shall constitute authorization for the
Engineer to provide the engineering, design and permitting services approved by Task Order by
the City and is also sometimes referred to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute
this Agreement, and it shall be the date on which this Agreement shall go into effect. The
Agreement shall not go into effect until said date.
C. "Engineer" shall mean Kimley-Horn and Associates, Inc. and its principals,
employees and resident project representatives(and assistants).
d. "Public Record" shall have the meaning given in section 119.011(12), Florida
Statutes, as may be amended.
e. "Reimbursable Expenses"shall mean the actual expenses incurred by the Engineer
or Engineer's independent professional associates and Engineers which are directly related to
travel and subsistence at the rates, and under the requirements of, Section 112.061, Florida
Statutes, as may be amended or any other actual and direct expenses the City agrees to reimburse
by Task Order.
f "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties pursuant to
the procedure outlined in Section 2.0 of this Agreement, and any amendments thereto approved
pursuant to the procedures outlined in Section 3.0 herein, which sets forth the Work to be
performed by the Engineer under this Agreement, and shall include, without the necessity of a
cross-reference, the terms and conditions of this Agreement.
1.4 Engagement. The City hereby engages the Engineer and the Engineer agrees to
perform the Services outlined in this agreement for the stated fee arrangement.No prior or present
representations shall be binding upon any of the parties hereto unless incorporated in this
Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of the Engineer to perform engineering, planning,
design and permitting, architecture, and landscape architecture services on a "task" basis. The
City will communicate with the Engineer,verbally or in writing, a general description of the task
to be performed. If a site visit by the Engineer is needed to generate the scope of document, the
Engineer shall request approval prior to visiting the site. The Engineer will generate a detailed
Scope of Work document,prepare a Schedule,add a Not-to-Exceed Budget or Lump Sum Fee to
accomplish the task with a detailed cost breakdown based on the hourly rate schedule attached
hereto as Exhibit "A," and send the thus developed "Task Proposal" to the City. The detailed
Agreement for Continuing Engineering Services
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cost breakdown of the lump sum fee or not-to-exceed budget shall consist of a list of major sub-
tasks and a man-hour breakdown for all work to be performed. The cost breakdown shall include
all sub-consultant work and the Task Proposal shall include the written price proposals from all
sub-consultants. The detailed cost breakdown shall include a line item for Reimbursable
Expenses and the list of the expenses proposed to be eligible for reimbursement. The City
reserves the right, at its discretion, to consider the Task Proposal as part of a formal or informal
competitive bid process before approving or disapproving any Task Proposal.
The City will review the Task Proposal, along with any other task proposals submitted to
the City by other contractors, and if the description, cost and other details of the Task Proposal
are deemed by the City to be in the City's best interests, the parties will enter into a mutually
agreeable written "Task Order." The Scope of Services generally to be provided by the Engineer
through a Task Order may include any engineering,planning,design and permitting,architecture,
and landscape architecture services for any City project and may contain written terms and
conditions which are deemed supplemental to this Agreement.
The City will issue a notice to proceed to the Engineer in the form of a letter and an
executed City purchase order. Upon receipt of the signed Task Order and the written notice to
proceed from the City,the Engineer shall perform the services set forth in the Task Order.
2.2 The City reserves the right, at its discretion,to perform any services related to this
Agreement or to retain the services of other engineering companies to provide professional
services. Further,the City does not guarantee that any Work will be assigned to Engineer under
this Agreement. The City reserves the right to assign or contract for professional services with
any party at its sole discretion. No provision of this Agreement shall be construed to require the
City to assign any Work or task to Engineer under this Agreement.
2.3 The Engineer may be asked to perform any engineering,planning, design and
permitting, architecture, and landscape architecture services for the City. The Services may
include,but are not limited to,the following:
a. Site civil engineering
b. Community planning
C. Roadway Design
d. Bridge design, repair, and inspection
e. Master planning
f. Water quality studies
g. Transportation and mobility planning
h. Traffic engineering
i. Grant funding, loan, and other funding assistance
j. Environmental services
k. Landscape architecture
1. Land development
M. Geographical information systems (GIS)
n. Public involvement
o. Integrated water(water, wastewater, reclaimed water)
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P. Stormwater and drainage design
q. Permitting and approvals
r. Regulatory agency planning, coordination, and liaison
S. Construction inspection
2.4 The maximum hourly rates and certain direct charges or unit prices,as applicable,
that can be charged under this Agreement by Engineer, unless otherwise agreed by the City in
writing, are set forth in Exhibit"A" and fully incorporated herein by this reference.
2.5 No task in which the Engineer is to provide professional services to the City for a
project with an estimated construction cost exceeding$4 Million,or an amount as may otherwise
be permitted in s. 287.055, Florida Statutes, may be the subject of a Task Order under this
Agreement.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 The City may make changes in the Services at any time by giving written notice
to the Engineer. If such changes increase (additional services) or decrease or eliminate any
amount of Work, the City and the Engineer will negotiate any change in total cost or schedule
modifications. If the City and the Engineer approve any change,the Task Order will be modified
in writing to reflect the changes; and the Engineer shall be compensated for said services in
accordance with the terms of Article 5.0 herein. All change orders shall be authorized in writing
by the City's and the Engineer's designated representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed in strict
accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 The Engineer shall perform services in conformance with the mutually agreed
schedule set forth in the negotiated Task Order. The Engineer shall complete all of said services
in a timely manner and will keep the City apprised of the status of work on at least a monthly
basis or as otherwise reasonably requested by the City. Should the Engineer fall behind the agreed
upon schedule, it shall employ such resources so as to comply with the agreed-upon schedule.
4.2 No extension for completion of services shall be granted to the Engineer without
the City's prior written consent, except as provided in Sections 3.1 and 19.1 herein.
4.3 Any cost caused by defective or ill-timed services shall be borne by the party
responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
ENGINEER
5.1 General Services. For basic and additional Services performed by the Engineer's
principals, employees and resident project representatives(and assistants)pursuant to paragraphs
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2.0 and 3.0,the City agrees to pay the Engineer an amount equal to that agreed upon by the parties
for a particular Task Order. However, payment terms must be consistent with the terms and
conditions in this Agreement. To the extent that the payment terms in any Task Order conflict
with the payment terms set forth in this Agreement,the conflicting provisions of this Agreement
shall prevail.
5.2 Additional Services Performed by Professional Associates and Engineers. For
additional Services and Reimbursable Expenses of independent professional associates and
Engineers employed by the Engineer to render additional Services pursuant to paragraphs 2.0 and
3.0, the City agrees to pay the Engineer an amount equal to that billed the Engineer by the
independent professional associates and Engineers. Prior to payment by the City, the Engineer
shall submit to the City a copy of any written invoice received by the Engineer from all
independent professional associates and Engineers which clearly evidences the amount billed by
the independent professional associates and Engineers for additional Services and any
Reimbursable Expenses.
5.3 Witness Services. For witness or expert services rendered by the Engineer's
principals, employees, resident project representatives (and assistants) and independent
professional associates and Engineers on behalf of the City in any litigation, arbitration or other
legal or interested administrative proceeding in which the City is a named an interested party,the
City agrees to pay the Engineer or independent professional associate or Engineer,which is used
as a witness or expert, an amount equal to that agreed upon by the party for a particular Task
Order.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as provided by
the Florida Prompt Payment Act Section 218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with inefficiency, offsite or home office overhead, loss of
productivity, consequential damages, legal or consulting costs or costs associated with delays
caused in whole or in part by the Engineer.
5.6 Errors and Deficiencies. The Engineer shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in the Engineer's
services provided under this Agreement.
5.7 Payment Offsets. To the extent that the Engineer owes the City any money under
this or any other Agreement with the City,the City shall have the right to withhold payment and
otherwise back charge the Engineer for any money owed to the City by the Engineer.
5.8 Payment not Waiver. The City's payment of any invoice under this Agreement
shall not be construed or operate as a waiver of any rights under this Agreement or any cause of
action arising out of the performance of this Agreement and the Engineer shall remain liable to
the City in accordance with applicable law for all damages to the City caused by the Engineer's
performance of any Services provided under this Agreement.
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5.9 Delay Remedy. The risk of any monetary damages caused by any delays in
performing the Services under this Agreement and any Task Order are accepted and assumed
entirely by the Engineer, and in no event shall any claim relating thereto for an increase in
compensation be made or recognized. The Engineer shall not make any claim nor seek any
damages of any kind against the City for any delays, impacts, disruption or interruption caused
by any delay.The Engineer's remedy for a delay shall be an equitable extension of time to perform
the Services for each day of such delay that impacts the critical path of the schedule established
under this Agreement or specific Task Order.
5.10 Acceptance of Payment. Acceptance of final payment by the Engineer for a
specific Task Order shall constitute a release of all claims for payment which the Engineer may
have against the City for that Task Order unless such claims are specifically reserved in writing
and transmitted to the City by the Engineer prior to its acceptance. Said final payment shall not,
however, be a bar to any claims that the City may have against the Engineer or to any remedies
the City may pursue with respect to such claims.
5.11 Payment Adjustments. It is agreed that payment by the City of any billing will
not constitute agreement as to the appropriateness of any item and that at the time of any final
audit, all required adjustments will be made and reflected in a final payment. In the event that
such final audit reveals an overpayment to the Engineer, the Engineer agrees to refund such
overpayment to the City within ninety(90)days of notice of any such overpayment. Such refund
shall not constitute a waiver by the Engineer for any claims relating to the validity of a finding
by the City of overpayment.
5.12 Partial Payments. Payment made to the Engineer shall not constitute
acceptance of the work or any portion thereof which is not in accordance with this Agreement.
The City retains the right to pay only that percentage of the total contract amount that equals the
same percentage that work completed bears to the total amount of work required to be performed
under this Agreement. If the City objects to all or any portion of any invoice, it shall notify the
Engineer of the same within five (5) days from the date of receipt and shall pay that portion of
the invoice not in dispute. The parties shall immediately make every effort to settle the disputed
portion.
6.0 RIGHT TO INSPECTION
6.1 The City or its affiliates shall at all times have the right to review or observe the
Services performed by the Engineer.
6.2 No inspection, review or observation shall relieve the Engineer of its
responsibility under this Agreement.
7.0 PROGRESS MEETING
7.1 The City's designated Project Manager may hold periodic progress meetings on a
monthly basis, or more frequently if required by the City, during the term of any Task Order
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entered into under this Agreement. The Engineer's Project Manager and all other appropriate
personnel shall attend such meetings as designated by the City's Project Manager.
8.0 SAFETY
8.1 The Engineer shall be solely and absolutely responsible and assume all liability
for the safety and supervision of its principals, employees and resident project representatives
(and assistants) while performing Services provided hereunder. The Engineer shall have no
responsibility for any contractor's means, methods, techniques, equipment choice and usage,
sequence, schedule, safety programs, or safety practices, nor shall Engineer have any authority
or responsibility to stop or direct the work of any contractor.
9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, the City shall grant the Engineer reasonable
access to the City's premises,records and files for purposes of fulfilling its obligations under this
Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, the Engineer shall be
responsible for providing the types of insurance and limits of liability as set forth below.
a. Professional Liability. Proof of professional liability insurance shall be provided
to the City for the minimum amount of $5,000,000.00 per occurrence or claim and in the
aggregate, with a deductible not greater than $50,000.00. For professional liability insurance
written on a "claims-made" basis, the Engineer shall maintain and provide evidence to the City
of"tail" coverage that extends coverage for an additional five years following completion of all
Work rendered under this Agreement and Task Orders.
b. General Liability. The Engineer shall maintain comprehensive general liability
insurance in the minimum amount of $5,000,000.00 as the combined single limit for each
occurrence, with a deductible no greater than $5,000.00, unless a higher deductible is pre-
approved by the City Manager, to protect the Engineer from claims of property damages and
personal injury which may arise from any Services performed under this Agreement, whether
such Services are performed by the Engineer or by anyone directly employed by or contracting
with the Engineer.
C. Automobile Liability. The Engineer shall maintain comprehensive automobile
liability insurance in the minimum amount of$1,000,000 per occurrence combined single limit
for bodily injury, including wrongful death, and property damage, which may arise from the
ownership, use or maintenance of owned and non-owned automobiles, including rented
automobiles, whether such operations be by the Engineer or by anyone directly or indirectly
employed by the Engineer.
d. Workers' Compensation. The Engineer shall maintain, during the life of this
Agreement,adequate Workers'Compensation Insurance and Employers'Liability Insurance in at
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least such amounts as are required by law for all of its employees performing Work for the City
pursuant to this Agreement.
10.2 Special Requirements. Current,valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates
shall be sent to the City thirty(30) days prior to any expiration date. There shall also be a thirty
(30) day advance written notification to the City in the event of cancellation or modification of
any stipulated insurance coverage. The City shall be an additional named insured on stipulated
insurance policies included in article 10.Lb and 10.Lc herein, as its interest may appear, from
time to time.
10.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All of
the policies of insurance so required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed or renewal
refused until at least thirty (30) days' prior written notice has been given to the City, and the
Engineer by certified mail,return receipt requested.All such insurance shall remain in effect until
final payment. In the event that the Engineer shall fail to comply with the foregoing requirement,
the City is authorized,but in no event shall be obligated,to purchase such insurance,and the City
may bill the Engineer. The Engineer shall immediately forward funds to the City in full payment
for said insurance. It is expressly agreed that neither the provision of the insurance referred to in
this Agreement nor the City's acceptance of the terms, conditions or amounts of any insurance
policy shall be deemed a warranty or representation as to adequacy of such coverage. All
insurance coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or equivalent
rating and rating service as reasonably determined by the City Manager)and licensed by the State
of Florida to engage in the business of writing of insurance or provided through the London
Market for Professional Liability Insurance. The Engineer shall cause its insurance carriers,prior
to the effective date of this agreement to furnish insurance certificates specifying the types and
amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a
statement that no insurance under such policies will be canceled without thirty (3 0) days' prior
written notice to the City in compliance with other provisions of this Agreement. Further copies
of all relevant policies will be provided to the City within thirty(30)'days of the effective date of
this agreement.If the City has any objection to the coverage afforded by or other provision of the
insurance required to be purchased and maintained by the Engineer in accordance with this
Article on the basis of its not complying with the Agreement, the City shall notify the Engineer
in writing thereof within thirty(30) days of the date of delivery of such certificates to the City.
For all Work performed pursuant to this Agreement, the Engineer shall continuously maintain
such insurance in the amounts, type and quality as required by the Agreement.
10.4 Independent Associates and Engineers. All independent associates and Engineers
employed by the Engineer to perform any Services hereunder shall fully comply with the
insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
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11.1 The Engineer shall exercise the professional standard of care to comply with all
requirements of published federal, state and local laws, rules, regulations and/or ordinances
applicable to the performance of Services under this Agreement. The standard of care applicable
to Engineer's services will be the degree of care and skill ordinarily exercised by consultants
performing the same or similar services in the same locality at the time the services are provided.
12.0 REPRESENTATIONS
12.1 The Engineer represents that the Services provided hereunder shall conform to all
requirements of this Agreement and any Task Order, shall be consistent with recognized and
sound engineering practices and procedures; and shall conform to the customary standards of
care, skill, and diligence appropriate to the nature of the Services rendered. The Engineer shall
perform as expeditiously as is consistent with professional skill and care and the orderly progress
of the Services performed hereunder. The Engineer's services shall be consistent with the time
periods established under this Agreement or the applicable Task Order. The Engineer shall
provide the City with a written schedule for services performed under each Task Order and such
schedule shall provide for ample time for the City to review, for the performance of Engineers(if
any),and for the approval of submissions by authorities having jurisdiction over the services.The
Engineer's designated representative shall have the authority to act on the Engineer's behalf with
respect to the Services. In addition,the Engineer's representative shall render decisions in a timely
manner in order to avoid unreasonable delay in the orderly and sequential progress of the
Services. Except with the City's knowledge and consent, the Engineer shall not engage in any
activity, or accept any employment, interest or contribution that would reasonably appear to
compromise the Engineer's professional judgment with respect to the Services. The Engineer
shall review laws, codes and regulations applicable to the Engineer's Services. The Engineer's
services and design shall comply with all applicable requirements imposed by all public
authorities. The Engineer represents and warrants that it is familiar with, and accepts that it will
perform the Services hereunder in a manner that complies with all applicable requirements of
law, codes, and regulations. The Engineer shall be responsible for the professional quality,
technical accuracy and the coordination of all plans, studies, reports and other services furnished
to the City under this Agreement. Unless this Agreement is terminated by the City, or terminated
by the Engineer for nonpayment of any proper invoices,or the City exercises its rights to perform
the Services pursuant to under Section 2.2 herein, the Engineer shall be responsible for the
satisfactory and complete execution of the Services described in this Agreement and any Task
Order. The Engineer represents that it will carefully examine the scope of services required by
the City in the Task Order, that it will investigate the essential requirements of the services
required by the Task Order and that it will have sufficient personnel, equipment and material at
its disposal to complete the services set forth in the Task Order in a good professional and
workmanlike manner in conformance with the requirements of this Agreement.
12.2 The Engineer represents that all principals, employees and other personnel
furnishing such Services shall be qualified and competent to perform the Services assigned to
them and that such guidance given by and the recommendations and performance of such
personnel shall reflect their best professional knowledge and judgment.
13.0 GUARANTEE AGAINST INFRINGEMENT
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13.1 The Engineer guarantees that all Services performed under this Agreement shall
be free from claims of patent, copyright, and trademark infringement.Notwithstanding any other
provision of this Agreement, the Engineer shall indemnify, hold harmless and defend the City,
its officers, directors, employees, agents assigns and servants from and against any and all
liability,including expenses, legal or otherwise, for actual or alleged infringement of any patent,
copyright or trademark resulting from the use of any goods, services or other item provided under
this Agreement. Notwithstanding the foregoing, the Engineer may elect to provide non -
infringing services.
14.0 DOCUMENTS
14.1 Public Records. Pursuant to Section 119.0701, Florida Statutes and other
applicable public records laws, Engineer agrees that any records, documents, transactions,
writings, papers, letters, computerized information and programs, maps, books, audio or video
tapes, films, photographs, data processing software, writings or other material(s), regardless of
the physical form, characteristics, or means of transmission, of Engineer related, directly or
indirectly, to the services provided to the City under this Agreement and made or received
pursuant to law or ordinance or in connection with the transaction of official business by the City,
may be deemed to be a public record, whether in the possession or control of the City or the
Engineer. Said records, documents, transactions, writings, papers, letters, computerized
information and programs,maps,books,audio or video tapes,films,photographs,data processing
software,writings or other material(s), regardless of the physical form, characteristics,or means
of transmission of Engineer are subject to the provisions of Chapter 119, Florida Statutes, and
may not be destroyed without the specific written approval of the City's designated custodian of
public records.
IF THE ENGINEER HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE ENGINEER'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS, THE CITY CLERK, AT (407) 327-5955,
cityclerkdepartrnent@winterspringsfl.org, City Clerk's Office, 1126 East State Road 434,
Winter Springs, FL 32708.
Engineer is required to and agrees to comply with public records laws. Engineer shall
keep and maintain all public records required by the City to perform the services as agreed to
herein. Engineer shall provide the City,upon request from the City Clerk,copies 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 law. Engineer 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 term.Upon completion of the Agreement,
Engineer shall transfer to the City, at no cost, all public records in possession of the Engineer,
provided the transfer is requested in writing by the City Clerk. Upon such transfer, Engineer
shall destroy any duplicate public records that are exempt or confidential and exempt from public
records disclosure requirements. However, if the City Clerk does not request that the public
records be transferred, the Engineer shall continue to keep and maintain the public records upon
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completion of the Agreement and shall meet all applicable requirements for retaining public
records. All records stored electronically must be provided to the City, upon request from the
City Clerk, in a format that is compatible with the information technology systems of the City.
Should the City not possess public records relating to this Agreement which are requested to be
inspected or copied by the City or any other person, the City shall immediately notify Engineer
of the request and the Engineer shall then provide such records to the City or allow the records
to be inspected or copied within a reasonable time. If the Engineer does not comply with a public
records request, the City may enforce this Section to the extent permitted by law. Engineer
acknowledges that if the Engineer does not provide the public records to the City within a
reasonable time,the Engineer may be subject to penalties under Section 119.10,Florida Statutes.
The Engineer acknowledges that if a civil action is filed against the Engineer to compel
production of public records relating to this Agreement, the court may assess and award against
Engineer the reasonable costs of enforcement, including reasonable attorney fees. All public
records in connection with this Agreement shall,at any and all reasonable times during the normal
business hours of the Engineer, be open and freely exhibited to the City for the purpose of
examination, audit, or otherwise. Failure by Engineer to grant such public access and comply
with public records laws and/or requests shall be grounds for immediate unilateral cancellation
of this Agreement by the City upon delivery of a written notice of cancellation. If the Engineer
fails to comply with this Section, and the City must enforce this Section, or the City suffers a
third party award of attorney's fees and/or damages for violating Chapter 119, Florida Statutes,
due to Engineer's failure to comply with this Section, the City shall collect from Engineer
prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing
this Section against Engineer. If applicable, the City shall also be entitled to reimbursement of
all attorneys' fees and damages which the City had to pay a third party because of the Engineer's
failure to comply with this Section. The terms and conditions set forth in this Section shall
survive the termination of this Agreement.
14.2 Reuse of Documents. All documents, including but not limited to, drawings,
specifications and data or programs stored electronically or otherwise,prepared by the Engineer
and its independent contractors and associates pursuant to this Agreement or related exclusively
to the Services described herein shall be owned by the City and may be reused by the City for
any reason or purpose at any time. However,the City agrees that the aforesaid documents are not
intended or represented to be suitable for reuse by the City or others on any undertaking other
than the Work outlined in this Agreement. Any reuse for an undertaking other than for the Work
without verification or adaptation by the Engineer, or its independent contractors and associates
if necessary, to specific purposes intended will be at the City's sole risk and without liability or
legal exposure to the Engineer.
14.3 Ownership of Documents. The City and the Engineer agree that upon payment of
fees due to the Engineer by the City for a particular design, report, inventory list, compilation,
drawing, specification, model, recommendation, schedule or otherwise, said design, report,
inventory list, compilation, drawing, specification, technical data, recommendation, model,
schedule and other instrument produced by the Engineer in the performance of this Agreement,
or any Work hereunder,shall be the sole property of the City,and the City is vested with all rights
therein. The Engineer waives all rights of copyright in said design, report, inventory list,
compilation, drawing, specification,technical data, recommendation, model, schedule and other
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instrument produced by the Engineer in the performance of this Agreement, and hereby assigns
and conveys the same to the City whether in the possession or control of the Engineer or not.
14.4 Preexisting Ownership Rights to Documents. Notwithstanding any provisions to
the contrary contained in this Agreement, the Engineer shall retain sole ownership to its
preexisting information not produced and paid for by the City under this Agreement including,
but not limited to, computer programs, software, standard details, figures, templates and
specifications.
15.0 ASSIGNMENT
15.1 The Engineer shall not assign or subcontract this Agreement, any Task Order
hereunder,or any rights or any monies due or to become due hereunder without the prior,written
consent of the City. Any subcontractors employed by Engineer for any Work required under this
Agreement shall require prior written approval from the City,unless previously approved in the
Task Order. Any attempt to assign or subcontract the responsibilities and payments under this
Agreement without the express prior written consent of the City shall be grounds for termination
of the Agreement.
15.2 If upon receiving written approval from the City, any part of this Agreement is
subcontracted by the Engineer, the Engineer shall be fully responsible to the City for all acts
and/or omissions performed by the subcontractor as if no subcontract had been made.
15.3 If the City determines that any subcontractor is not performing in accordance with
this Agreement, the City shall so notify the Engineer who shall take immediate steps to remedy
the situation.
15.4 If any part of this Agreement is subcontracted by the Engineer, prior to the
commencement of any Work by the subcontractor, the Engineer shall require the subcontractor
to provide the City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
16.1 At all times during the term of this Agreement, the Engineer and any approved
subcontractors shall be considered an independent contractor(s) and not an employee(s) of the
City.
17.0 DEFAULT BY ENGINEER AND CITY'S REMEDIES
17.1 In addition to the City's right to terminate this Agreement for convenience under
Section 18.0 of this Agreement, the City also reserves the right to revoke and terminate this
Agreement for a default and to rescind all rights and privileges associated with this Agreement,
without penalty, based on a default including, but not limited to, any of the following
circumstances, each of which shall represent a default and breach of this Agreement:
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a. The Engineer defaults in the performance of any material covenant or condition
of this Agreement and does not cure such other default within thirty (30) calendar days after
written notice from the City specifying the default complained of,unless,however,the nature of
the default is such that it cannot,in the exercise of reasonable diligence,be remedied within thirty
(30)calendar days, in which case the Engineer shall have such time as is reasonably necessary to
remedy the default, provided the Engineer promptly takes and diligently pursues such actions as
are necessary therefore; or
b. The Engineer is adjudicated bankrupt or makes any assignment for the benefit of
creditors or the Engineer becomes insolvent, or is unable or unwilling to pay its debts; or
C. The Engineer has acted grossly negligent, as defined by general and applicable
law, in performing the Services hereunder; or
d. The Engineer has committed any act of fraud upon the City; or
e. The Engineer has made a material misrepresentation of fact to the City while
performing its obligations under this Agreement.
L The Engineer has assigned this Agreement or any Task Order without the City's
prior written consent.
17.2 Notwithstanding the aforementioned,in the event of a default by the Engineer,the
City shall have the right to exercise any other remedy the City may have by operation of law,
without limitation, and without any further demand or notice.
17.3 In the event of such termination upon default and breach of this Agreement, any
completed services performed by the Engineer under this Agreement shall, at the option of the
City, become the City's property and the Engineer shall be entitled to receive equitable
compensation for any work completed to the satisfaction of the City. The Engineer, however,
shall not be relieved of liability to the City for damages sustained by the City by reason of any
breach of the Agreement, and the City may withhold any payments to the Engineer for the
purpose of setoff until such time as the amount of damages due to the City from the Engineer can
be determined.
18.0 TERNIINATION
18.1 Notwithstanding any other provision of this Agreement, the City may, upon
written notice to the Engineer, terminate this Agreement,without penalty, if. (a) the Engineer is
in default pursuant to Section 17.0 Default; (b)the Engineer makes a general assignment for the
benefit of its creditors; (c) the Engineer fails to comply with any condition or provision of this
Agreement; or (d) the Engineer is experiencing a labor dispute which threatens to have a
substantial, adverse impact upon performance of this Agreement without prejudice to any other
right or remedy the City may have under this Agreement. In addition, either party may terminate
for convenience with no penalty at any time upon thirty(30) days advance written notice. In the
event of such termination, the City shall be liable only for the payment of all unpaid charges,
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determined in accordance with the provisions of this Agreement, for Work properly performed
prior to the effective date of termination.
18.2 In addition, either party may terminate for convenience without penalty at any
time upon thirty(30)days advance written notice.
18.3 In the event of termination, City shall be liable only for the payment of all unpaid
charges, determined in accordance with the provisions of this Agreement, for Work properly
performed prior to the effective date of termination.
19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; wax; sabotage; strikes (with the exception of Engineer's labor force);
extraordinary breakdown of or damage to the City's affiliates' generating plants, their equipment
or facilities; court injunction or order; federal and/or state law or regulation; order by any
regulatory agency; or cause or causes beyond the reasonable control of the party affected;
provided that prompt notice of such delay is given by such party to the other and each of the
parties hereunto shall be diligent in attempting to remove such cause or causes. If any
circumstance of Force Majeure remains in effect for sixty days, either party may terminate this
Agreement.
20.0 GOVERNING LAW&VENUE
20.1 This Agreement is made and shall be interpreted, construed, governed, and
enforced in accordance with the laws of the State of Florida. Venue for any state action or
litigation shall be Seminole County, Florida. Venue for any federal action or litigation shall be
Orlando, Florida.
21.0 HEADINGS
21.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
22.0 SEVERABILITY
22.1 In the event any portion or part of thereof this Agreement is deemed invalid,
against public policy, void, or otherwise unenforceable by a court of law, the parties shall
negotiate an equitable adjustment in the affected provision of this Agreement. The validity and
enforceability of the remaining parts of this Agreement shall otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any terms, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
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23.2 No waiver, consent, or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by a duly authorized representative of each party
hereto.
24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits to
anyone other than the City and the Engineer.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 The Engineer warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Engineer,to solicit or secure this
Agreement,and that it has not paid or agreed to pay any person,company,corporation,individual
or firm, other than a bona fide employee working solely for the Engineer, any fee, commission,
percentage, gift,or other consideration contingent upon or resulting from the award or making of
this Agreement. For the breach or violation of this provision, the City shall have the right to
terminate the agreement without liability and, at its discretion, to deduct from the contract price,
or otherwise recover,the full amount of such fee,commission,percentage, gift, or consideration.
26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments,
Appendices and Exhibits attached hereto, constitute the entire agreement between the City and
the Engineer with respect to the Services specified and all previous representations relative
thereto, either written or oral, are hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal—agent
relationship between the parties, and neither party is authorized to, nor shall either party act
toward third persons or the public in any manner which would indicate any such relationship with
the other.
28.0 ATTORNEY'S FEES
28.1 Should any litigation arise concerning this Agreement between the parties, the
parties agree to bear their own costs and attorney's fees,whether at settlement,trial or on appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be considered an original agreement;but such counterparts
shall together constitute but one and the same instrument.
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30.0 DRAFTING
30.1 The City and the Engineer each represent that they have both shared equally in
drafting this Agreement and no party shall be favored or disfavored regarding the interpretation
of this Agreement in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be delivered
by hand or mailed,postage prepaid to:
For Engineer:
Kimley-Horn
Attention: Lance Littrell, PE
189 South Orange Avenue, Suite 1000
Orlando, FL 32801
(407)412-7544
For Citv:
City of Winter Springs
Attention: City Manager
1126 East State Road 434
Winter Springs, FL 32708
(407) 327-5989
31.2 Either party may change the notice address by providing the other party written
notice of the change.
31.3 Any Notice given as provided herein shall be deemed received as follows: if
delivered by personal service, on the date so delivered; if delivered to an overnight courier
service, on the business day immediately following delivery to such service; and if mailed, on
the third business day after mailing.
32.0 SOVEREIGN IMMUNITY
32.1 The City intends to avail itself of the benefits of Section 768.28, Florida Statutes
and any other statutes and common law governing sovereign immunity to the fullest extent
possible. Neither this provision nor any other provision of this Agreement shall be construed as
a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or
other limitations imposed on the City's potential liability under state or federal law. Engineer
agrees that City shall not be liable under this Agreement for punitive damages or interest for the
period before judgment. Further, City shall not be liable for any claim or judgment, or portion
thereof, to any one person for over two hundred thousand dollars ($200,000.00), or any claim or
judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the
State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds
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three hundred thousand dollars($300,000.00). Nothing in this Agreement is intended to inure to
the benefit of any third party for the purpose of allowing any claim which would otherwise be
barred under the doctrine of sovereign immunity or by operation of law. This paragraph shall
survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY ENGINEER
33.1 The Engineer hereby represents and warrants to the City the following:
a. The Engineer is duly registered and licensed to do business in the State of Florida
and is in good standing under the laws of Florida, and is duly qualified and authorized to carry
on the functions and operations set forth in this Agreement.
b. The undersigned representative of the Engineer has the power,authority,and legal
right to execute and deliver this Agreement on behalf of the Engineer.
34.0 INDEMNIFICATION AND LIMITATION OF LIABILITY
34.1 The Engineer shall indemnify and hold harmless the City, its elected officials,
officers, employees, agents, attorneys and volunteers, against any and all liabilities, damages,
losses, costs, expenses, injuries (including death), claims or actions, of whatever type,including,
but not limited to, reasonable attorneys' fees in any legal proceeding through trial and appeal,
which the City may hereafter sustain, incur, or be required to pay, to the extent caused by the
negligence, recklessness, or intentionally wrongful conduct of the Engineer and other persons
employed or utilized by the Engineer in the performance of this Agreement, including any Task
Order.
The Engineer specifically assumes potential liability for actions brought by the Engineer's
own employees against the City and, solely for the purpose of this indemnification and defense,
the Engineer specifically waives its entitlement,if any,to immunity under Section 440.11,Florida
Statutes. This waiver has been specifically and mutually negotiated by the parties.
The indemnity provisions set forth in this Section shall survive termination of this
Agreement.
34.2 For other good and valuable consideration,the receipt and sufficiency of which is
hereby acknowledged, Engineer expresses its willingness to enter into this Agreement with the
knowledge that the Engineer's recovery from the City to any action or claim arising from the
Agreement is limited to a maximum amount of the sum of any Agreement amount that is owed
by the City for services actually performed by the Engineer to the City's complete satisfaction,
and in no case shall exceed the amount provided in article 32.1 herein. Nothing contained in this
paragraph or elsewhere in this Agreement is in any way intended either to be a waiver of the
limitation placed upon the City's liability as set forth in Section 768.28 Florida Statutes, or to
extend the City's liability beyond the limits established in said Section 768.28 Florida Statutes;
and no claim or award against the City shall include attorney's fees, investigative costs, expert
fees, suit costs or pre judgment interest.
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34.3 PURSUANT TO SECTION 5 5 8.003 5, FLORIDA
STATUTES, AN INDIVIDUAL EMPLOYEE OR AGENT OF
THE ENGINEER MAY NOT BE HELD INDIVIDUALLY
LIABLE FOR ECONOMIC DAMAGES RESULTING FROM
NEGLIGENCE UNDER THIS AGREEMENT IF THE
CONDITIONS OF SECTION 558.0035 ARE SATISFIED.
35.0 ENGINEER'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of the Engineer's personnel at a construction site, whether
as onsite representatives or otherwise, do not make the Engineer or the Engineer's personnel in
any way responsible for those duties that belong to the City and/or the construction contractors
or other entities, and do not relieve the construction contractors or any other entity of their
obligations, duties and responsibilities including, but not limited to, all construction methods,
means, techniques, sequences and procedures necessary for coordinating and completing all
portions of the construction work in accordance with the applicable construction contract
documents and any health or safety precautions required by such construction work. The
Engineer and the Engineer's personnel have no authority to exercise any control over any
construction contractor or other entity or their employees in connection with their work or any
health or safety precautions and have no duty for inspecting, noting, observing, correcting or
reporting on health or safety deficiencies of the construction contractor(s) or other entity or any
other persons at the site except the Engineer's own personnel.
35.2 The presence of the Engineer's personnel at a construction site is for the purpose
of providing to the City a greater degree of confidence that the completed work will conform
generally to the applicable contract documents and that the integrity of the design concept as
reflected in the contract documents has been implemented and preserved by the construction
contractor(s). The Engineer neither guarantees the performance of the construction contractor(s)
nor assumes responsibility for construction contractor's failure to perform work in accordance
with the contract documents. For this Agreement only, construction sites include places of
manufacture for materials incorporated into the construction work, and construction contractors
include manufacturers of materials incorporated into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings,if required,will be prepared, in part,on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of
various components, or exact manner in which the project was finally constructed. The Engineer
is not responsible for any errors or omissions in the information from others that is incorporated
into the record drawings.
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37.0 ADDITIONAL ASSURANCES
37.1 The Engineer for itself and its Sub-consultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual
holding a professional license and performing work under this Agreement is presently debarred,
suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in any architecture, landscape architecture, engineering, or surveying activity by
any Federal, State, or local governmental commission, department, corporation, subdivision or
agency;
b. No principal (which includes officers, directors or executive) or individual
holding a professional license and performing work under this Agreement,employee or agent has
employed or otherwise provided compensation to, any employee or officer of the City; and;
C. No principal (which includes officers, directors or executive) or individual
holding a professional license and performing work under this Agreement,employee or agent has
willfully offered an employee or officer of the City any pecuniary or other benefit with the intent
to influence the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the Engineer
and said signature shall bind the Engineer to this Agreement.No further action is required by the
Engineer to enter into this Agreement other than the Engineer's undersigned representative's
execution of the Agreement.
38.0 E-VERIFY
38.1 Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021,
Contractors, which shall include Engineer, shall register with and use the U.S. Department of
Homeland Security's E-Verify system, hitt)s://e-verif`l.uscis.gov/emM, to verify the work
authorization status of all employees hired on and after January 1, 2021.
38.2 Subcontractors
a. Engineer shall also require all subcontractors performing work under this
Agreement to use the E-Verify system for any employees they may hire during the term of this
Agreement.
b. Engineer shall obtain from all such subcontractors an affidavit stating the
subcontractor does not employ, contract with, or subcontract with an unauthorized alien, as
defined in section 448.095, Florida Statutes.
C. Engineer shall provide a copy of all subcontractor affidavits to the City upon
receipt and shall maintain a copy for the duration of the Agreement.
Agreement for Continuing Engineering Services
City of Winter Springs/Kimley-Horn
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47
38.3 Engineer must provide evidence of compliance with section 448.095, Florida
Statutes. Evidence shall consist of an affidavit from the Engineer stating all employees hired on
and after January 1, 2021 have had their work authorization status verified through the E-
Verify system and a copy of their proof of registration in the E-Verify system.
38.4 Failure to comply with this provision is a material breach of the Agreement, and
shall result in the immediate termination of the Agreement without penalty to the City.Engineer
shall be liable for all costs incurred by the City securing a replacement Agreement, including but
not limited to, any increased costs for the same services, any costs due to delay, and rebidding
costs, if applicable.
39.0 LINUTATION ON CAMPAGIN CONTRIBUTIONS
39.1 The Engineer,including its chief executive officer,chief financial officer,chief operating
officer,or persons having an ownership interest exceeding five percent in the Engineer's business
entity,agree that they shall not directly or indirectly make any contribution,or promise expressly
or impliedly to make any contribution,to any candidate for the Winter Springs City Commission
at any time during the term of this Agreement.
IN WITNESS WHEREOF,the parties hereto caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
CITY: ENGINEER:
CITY OF WINTER SPRINGS KIMLEY-HORN AND
ASSOCIATES,INC.
J 1 f e d/ff
Shawn Boyle, CiV4"ager �T,Title
Date: Printed Name: iZxjfA S• r� `r�r2
Date: '�TOPJOLl Z
ATTEST:
Christian Gowan,City Clerk
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Agreement for Continuing Engineering Services
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City of Winter Springs/Kimley-Hom
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EXHIBIT A
HOURLY RATE SCHEDULE
Kimley-Horn and Associates, Inc.
Hourly Labor Rate schedule
Classification Rate
Principal-in-Charge $260
Senior Project Manager $240
Project Manager $195
Project Engineer 2 $159
Project Engineer 1 $145
Analyst $125
Technical Support $130
Project Admin 1 $55
Effective through June 30, 2022. Subject to 4% annual adjustment thereafter.
Agreement for Continuing Engineering Services
City of Winter Springs/Kimley-Horn
21
49