Loading...
HomeMy WebLinkAboutCarollo Engineers Inc. - Engineering Services - WWTP Plant Design Agreement 2023 12 14AGREEMENT FOR ENGINEERING SERVICES THIS AGREEMENT is made and entered into thisj/.day of Ae6 i 2023, by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation, hereinafter referred to as "City", located at 1126 E. State Road 434, Winter Springs, Florida 32708, and Carollo Engineers, Inc., a Delaware corporation, authorized to conduct business in the State of Florida, whose address is 2795 Mitchell Drive, Walnut Creek, CA 94598, hereinafter referred to as "Engineer" . WITNESSETH: WHEREAS, City has a need to obtain engineering and related consulting services for completion of wastewater treatment facilities design for two (2) new wastewater treatment plants and associated infrastructure that will replace two (2) existing wastewater treatment plants and associated infrastructure in the City of Winter Springs; and WHEREAS, Engineer is willing to provide such engineering services to the City under the terms and conditions stated herein; and WHEREAS, the City has followed the selection and negotiation process set forth in the Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and WHEREAS, Engineer participated in the selection and negotiation process; 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 This Agreement shall become effective on the Effective Date and shall remain in effect until the Engineer completes the services required by this Agreement to the full and complete satisfaction of the City. 1.2 Definitions. The following words and phrases used in this Agreement shall have the following meaning ascribed to them unless the context clearly indicates otherwise: a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this Agreement, as amended from time to time, which shall constitute authorization for the Engineer to provide the engineering services set forth herein. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 1 Do "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 Carollo Engineers, Inc., and its principals, employees, resident project representatives (and assistants). d. "Public Record" shall have the meaning given in Section 119.011(1), Floc°idcz Statutes. e. "Reimbursable Expenses" shall mean the actual expenses incurred by Engineer or Engineer's independent professional associates and consultants which are directly related to travel and subsistence at the rates, and under the requirements of, Section 112.061, Florida Statutes, or any other actual and direct expenses the City agrees to reimburse pursuant to this Agreement. f. "Work" or "Services" shall be used interchangeably and shall include the performance of the work agreed to by the parties pursuant to this Agreement. 1.3 Engagement. The City hereby engages the Engineer and 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 scope of services under this Agreement is set forth in EXHIBIT "A." 2.2 Upon receipt of the signed written notice to proceed from the City, the Engineer shall perform the services set forth herein. 2.3 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 engineering services. 2.4 The City shall furnish Engineer available studies, reports and other data pertinent to Engineer's services; obtain or authorize Engineer to obtain or provide additional reports and data as required; furnish to Engineer services of others required for the performance of Engineer's services hereunder, and Engineer shall be entitled to use and rely upon all such information and services provided by the City or others in performing Engineer's services under this Agreement. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 2 3.0 CHANGES IN THE SCOPE OF WORK 3.1 City may make changes in the Services at any time by giving written notice to Engineer. If such changes increase (additional services) or decrease or eliminate any amount of Work, City and Engineer will negotiate any change in total cost or schedule modifications. If the City and the Engineer approve any change, the scope of services will be modified in writing to reflect the changes; and 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 City's and Engineer's designated representative. 3.2 All Services shall be performed in accordance with the applicable professional standard of care and the terms of this Agreement insofar as they are applicable. 4.0 SCHEDULE 4.1 Engineer shall perform services in conformance with the mutually agreed schedule set forth in EXHIBIT "A" or as provided in writing after the Effective Date. Engineer shall complete all of said services in a timely manner and will keep City apprised of the status of work on at least a monthly basis or as otherwise reasonably requested by the City. Should 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 Engineer without City's prior written consent, except as provided in Sections 3.1 and 19.1 herein. In the event Engineer's services are suspended, delayed or interrupted for the convenience of City, an equitable adjustment in Engineer's time of performance may be made. 4.3 Any cost caused by negligent or negligently -timed services shall be borne by the party responsible therefore. 5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF ENGINEER 5.1 Compensation. For the performance and full completion of the Services specified herein, the City and Engineer agree that the Engineer shall be paid a total of $12,918,090.00, inclusive of all Services, materials, and expenses directly related to the Services. There shall be no other compensation due Engineer for the Services provided under this Agreement, unless specifically agreed to by the City in writing. As defined in EXHIBIT "A", the lump sum and time and material activities shall be paid in monthly installments based on a percent complete of work to date for lump sum activities and detailed hourly and materials expenditures for time and material activities. Payment requests shall be made to the City by submitting a proper invoice detailing the Services Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 3 performed and the payment requested. Payment will not be made for tasks not performed or for portions of any tasks not performed. 5.2 Florida Prompt Payment Act. Payment shall be due and payable as provided by the Florida Prompt Payment Act s.218.70 et. seq., Florida Statutes. 5.3 Miscellaneous. Under no circumstances shall actual or direct costs under this Agreement include costs associated with in efficiency, 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. 5.4 Errors and Deficiencies. Engineer shall not invoice the City or seek any compensation from the City to correct or revise any errors or deficiencies in Engineer's services provided under this Agreement. 5.5 Payment Offsets. To the extent that 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 Engineer. 5.6 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 Engineer shall remain liable to the City in accordance with applicable law for all damages to the City caused by Engineer's performance of any services provided under this Agreement. 5.7 Delay Remedy. The risk of any monetary damages caused by any delays in performing the Services under this Agreement 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. 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. 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. 5.8 Acceptance of Payment. Acceptance of final payment by the Engineer shall constitute a release of all claims for payment which the Engineer may have against the City for such Services 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. 5.9 Payment Adjustments. It is agreed that payment by the City of any billing will not Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 4 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. 5.10 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 ten (10) 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 City or its affiliates shall at all times have the right to review or observe the Services performed by Engineer. 6.2 No inspection, review, or observation shall relieve Engineer of its responsibility under this Agreement. 7.0 PROGRESS MEETING 7.1 City's designated Proj ect Manager may hold periodic progress meetings on a monthly basis, or more frequently if required by the City, during the term of this Agreement. Engineer's Project Manager and all other appropriate personnel shall attend such meetings as designated by City's Project Manager, 8.0 SAFETY 8.1 Engineer shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principals, employees, resident proj ect representatives (and assistants) while performing Services provided hereunder. 9.0 REASONABLE ACCESS 9.1 During the term of this Agreement, City shall grant Engineer reasonable access to the City's premises, records, and files for purposes of fulfilling its obligations under this Agreement. 9.2 The City shall arrange for access to and make all provisions for Engineer to enter Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 5 upon public and private property as required for Engineer to perform services hereunder. 10.0 INSURANCE 10.1 Liability Amounts. During the term of this Agreement, 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 per occurrence or claim and $5,000,000 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. b. The Engineer shall maintain comprehensive general liability insurance in the minimum amount of $1,000,000 as the combined single limit for each occurrence and in the aggregate 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. The Engineer shall maintain comprehensive automobile liability insurance in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000 property damage as the combined single limit for each occurrence to protect the Engineer from claims for damages for bodily injury, including wrongful death, as well as from claims from 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. The Engineer shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance and Employers' Liability Insurance in at 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 five (5) 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 reduction in coverage of any stipulated insurance coverage. The City shall be an additional named insured on stipulated insurance policies included in article 10.1.b and 10.1.c herein, as its interest may appear, from time to time. 10.3 The insurance required by this Agreement shall include the liability and coverage Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 6 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, reduced in coverage, or renewal refused until at least thirty (30) days' prior written notice has been given to the City, and the Engineer by mail. 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 or approved by the State of Florida to engage in the business of writing of insurance. Unless agreed to by the City to the contrary, the City shall be named on the insurance policies included in article 10.1.b and 10.1.c as "additional insured." 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 (30) 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 upon request. 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 Consultant shall continuously maintain such insurance in the amounts, type, and quality as required by the Agreement. 10.4 Independent Associates and Consultants. All independent associates and consultants employed by Engineer to perform any Services hereunder shall fully comply with the insurance provisions contained in this paragraph. 10.5 The City shall require its construction contractors for the Project (a) to defend, indemnify and hold harmless the City and the Engineer, their officers (including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorney's fees, arising out of any third party personal injury during the construction phase of any construction contract, and (b) to provide insurance acceptable to the City as security for the risk of third party personal injury, including comprehensive general liability and builders' all risk coverages, provided, however, the Engineer agrees to release and hold harmless the City and their employees, officers, and city attorneys regarding any claim that Engineer may file, or should have filed, against said insurance provided by construction contractors. The City does not represent, guarantee, or warrant that said insurance will cover any claims made by Engineer whatsoever. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 7 11.0 COMPLIANCE WITH LAWS AND REGULATIONS 11.1 Engineer shall comply with all requirements of federal, state, and local laws, rules, regulations, standards, and/or ordinances applicable to the performance of Services under this Agreement as is consistent with the applicable professional standard of care. 11.2 Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021, any City contractors shall register with and use the U.S. Department of Homeland Security's E- Verify system, https:He-verify.uscis. oy/emp, to verify the work authorization status of all employees hired on and after January 1, 2021. 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 ENerify system and a copy of their proof of registration in the E-Verify system. Failure to comply with this provision will be a material breach of the contract, and shall result in the immediate termination of the contract without penalty to the City. The Engineer shall be liable for all costs incurred by the City securing a replacement contract, including but not limited to, any increased costs for the same services, any costs due to delay, and rebidding costs, if applicable. If the Engineer utilizes Subcontractors the following shall apply: a. Engineer shall also require all subcontractors performing work under the Agreement to use the ENerify system for any employees they may hire during the term of the 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. 12.0 REPRESENTATIONS 12.1 Engineer represents that the Services provided hereunder shall conform to all requirements of this Agreement, 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. Engineer shall perform as expeditiously as is consistent with professional skill and care and the orderly progress of the Services performed hereunder. Engineer's services shall be consistent with the time periods established under this Agreement. Engineer shall provide City with a written schedule for services performed and such Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 8 schedule shall provide for ample time for the City to review, for the performance of consultants (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 Engineer's behalf with respect to the Services. In addition, 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 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. 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 Engineer for nonpayment of any proper invoices, or the City exercises its rights to perform the Services pursuant to under Paragraph 2.2 herein, Engineer shall be responsible for the satisfactory and complete execution of the Services described in this Agreement. The Engineer represents that it will carefully examine the scope of services required by the City and that it will investigate the essential requirements of the services required, and that it will have sufficient personnel, equipment, and material at its disposal top complete the services set forth in the Agreement in conformance with the requirements of this Agreement. 12.2 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 professional knowledge and judgment. 13.0 GUARANTEE AGAINST INFRINGEMENT 13.1 Engineer guarantees that all Services performed under this Agreement shall be free fi om claims of patent, copyright, and trademarks infringement. Notwithstanding any other provision of this Agreement, Engineer shall indemnify, hold harmless, and defend the City, its officers, directors, employees, and agents assigns, 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, Engineer may elect to provide non -infringing services. However, the foregoing shall not be applicable to any suit, claim or proceeding based on the infringement or violation of a patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by the City and not offered or recommended by Engineer to the City; or (ii) arising from modifications to the Project by the City or City's other contractors. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 9 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), cityclerkdepartment@winterspringsfl.org, City Clerk's Office, 1126 E State Road 434, Winter Springs, Florida 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 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 Engineering Services Agreement Wastewater Treahnent Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 10 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 119410, 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. And, 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 anytime. 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 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. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 11 15.0 ASSIGNMENT 15.1 Engineer shall not assign or subcontract this Agreement, or any rights or any monies Inc or to become due hereunder without the prior, written consent of City. Any subcontractors employed by Engineer for any Work required under this Agreement shall require prior written approval from the City. 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 City, any part of this Agreement is subcontracted by Engineer, Engineer shall be fully responsible to City for all acts and/or omissions performed by the subcontractor as if no subcontract had been made. 15.3 If City determines that any subcontractor is not performing in accordance with this Agreement, City shall so notify Engineer who shall take immediate steps to remedy the situation. 15.4 If any part of this Agreement is subcontracted by Engineer, prior to the commencement of any Work by the subcontractor, Engineer shall require the subcontractor to provide 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, Engineer shall be considered an independent contractor and not an employee 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: a. Engineer defaults in the perfoi�nance 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 therefor; or Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 12 b. Engineer is adjudicated bankrupt or makes any assignment for the benefit of creditors or Engineer becomes insolvent, or is unable or unwilling to pay its debts; or c. Engineer has acted grossly negligent, as defined by general and applicable law, in performing the Services hereunder; or d. Engineer has committed any act of fraud upon the City; or e. Engineer has made a material misrepresentation offact to the City while performing its obligations under this Agreement. f. Engineer has assigned this Agreement without the City's prior written consent. 17.2 Notwithstanding the aforementioned, in the event of a default by 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. 18.0 TERMINATION 18.1 Either party may terminate this Agreement for convenience with no penalty at any time upon thirty (30) days advance written notice. The City may also, upon written notice to Engineer, terminate this Agreement, without penalty, if: (a) Engineer is in default pursuant to paragraph 17.0 Default; (b) Engineer makes a general assignment for the benefit of its creditors; (c) Engineer fails to comply with any condition or provision of this Agreement; or (d) 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 City may have under this Agreement. In the event of such 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 through and including the effective date of termination. 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. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 13 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; war; sabotage; strikes (with the exception of Engineer's labor force); extraordinary breakdown of or damage to 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 that could not have been reasonably anticipated, reduced or alleviated as part of Engineer's due diligence and/or adherence to the standard of care; 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 term, condition ar• provision of this Agreement shall not be considered a waiver of that term, condition, or provision in the future. 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. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 14 24.0 THIRD PARTY RIGHTS 24.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Engineer. No person or entity not a signatory to this Agreement shall be entitled to rely on the Engineer's performance of its services hereunder, and no right to assert a claim against the Engineer by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of the Engineer's services hereunder. 25.0 PROHIBITION AGAINST CONTINGENT FEES 25.1 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 Schedules, Attachments, Appendix's and Exhibits attached hereto, constitute the entire agreement between City and 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. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 15 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. 30.0 DRAFTING 30.1 City and 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 En ineer: Carollo Engineers, Inc. Attention: Scott Richards, P.E. 200 E. Robinson Street, Suite 1400 Orlando, FL 32801 (407) 3774312 For City: City of Winter Springs Attention: City Manager 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327-5989 31.2 Either party rmay 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. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 16 LOU 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 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 Engineer hereby represents and warrants to the City the following: a. 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 Engineer has the power, authority, and legal right to execute and deliver this Agreement on behalf of Engineer. 34.0 INDEMNIFICATION 34.1 Engineer shall defend, indemnify, and hold harmless the City, and its elected officials, officers (including its City Attorneys), employees, agents and volunteers from any and all claims, injuries, liabilities, damages, losses, and costs, including, but not limited to, reasonable attorney's fees, 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 the Agreement. 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. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 17 34.2 Engineer shall also indemnify and hold harmless the City, and its officers (including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by Engineer's breach and caused by other persons employed by the Engineer in the performance of the Agreement. 34.3 Neither party shall be liable to the other for any incidental, special, indirect or other consequential damages incurred due to the fault of the other party regardless of the nature of the fault or whether it was committed by the City or the Engineer, or their employees, sub -consultants, or subcontractors. Consequential damages include, without limitation, liability for loss of use of the Proj ect or existing property, loss of profits, loss of production or business interruption; however, the same may be caused. Additionally, Engineer shall not be responsible for warranties or guarantees, other than those specifically delineated elsewhere hereunder, fitness for a particular purpose or breach of fiduciary duty. Engineer shall not be responsible for acts and decisions of third parties, including governmental agencies, other than Engineer's subconsultants, that impact project completion and/or success. 34.3 THE CITY ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT IS SUBJECT TO SECTION 558.0035, FLORIDA STATUTES WHICH PROVIDES THAT INDIVIDUAL DESIGN PROFESSIONALS EMPLOYED BY THE ENGINEER OR AN AGENT OF THE ENGINEER MAY NOT BE INDIVIDUALLY LIABLE FOR ECONOMIC DAMAGES RESULTING FROM NEGLIGENCE OCCURRING WITHIN THE COURSE AND SCOPE OF PROFESSIONAL SERVICES PERFORMED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT PROVIDED CERTAIN STATUTORY CONDITIONS ARE SATISFIED. The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate and independent indemnity provisions and shall survive termination of this Agreement. 35.0 ENGINEER'S PERSONNEL AT CONSTRUCTION SITE 35.1 The presence or duties of Engineer's personnel at a construction site, whether as onsite representatives or otherwise, do not make Engineer or Engineer's personnel in any way Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 18 responsible for those duties that belong to 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. Engineer and 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 contractors) or other entity or any other persons at the site except Engineer's own personnel. 35.2 The presence of Engineer's personnel at a construction site is for the purpose of providing to 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). 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. Engineer is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings. 37.0 ADDITIONAL ASSURANCES 37.1 The Engineer for itself and its Subconsultants, 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; Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 19 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 Engineer's undersigned representative execution of the Agreement. 38.0 CONFLICTS 38.1 In the event of a conflict between any provision of this Agreement and any attachment or exhibit attached hereto, the provisions of this Agreement shall prevail unless the attachment or exhibit expressly provides otherwise by making specific reference to the paragraph and provision of this Agreement that is being replaced or modified. 39.0 ESTIMATES 39.1 Estimates, opinions of probable construction or implementation costs, financial evaluations, feasibility studies or economic analyses prepared by Engineer will represent its best judgment based on its experience and available information. The City recognizes that Engineer has no control over costs of labor, materials, equipment or services furnished by others or over market conditions or contractors' methods of determining prices, and that bids and actual costs may vary from the Engineer's opinions, evaluations or studies. Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 20 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: CITY OF WINTER SPRINGS By: Print Name/Title: (�-i�L/� % 1 ul Date�e�e►y/,�� /�/ ��,�� ATTEST: By: City Clerk ENGINEER: CAROLLO ENGINEERS, INC. Print Name/Title: Scott Richards Vice President Date: December 13, 2023 By: Print Name/Title: Laura Baumberger Senior Vice President Date: December 13, 2023 Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 21 EXHIBIT "A" SCOPE OF SERVICES Engineering Services Agreement Wastewater Treatment Plant Design and Associated Infrastructure City of Winter Springs and Carollo Engineers, Inc. 22