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HomeMy WebLinkAboutMead & Hunt Contract - Signed - Exhibit A - FINALAGREEMENT FOR ENGINEERING/ SURVEYING / ARCHITECTURAL SERVICES THIS AGREEMENT is made and entered this J5"111 day of "J: ~ 2018, by and between the CITY OF CAPE CANAVERAL, FLORIDA, a Florida municipal corporation ("City"), located at I 00 Polk A venue, Cape Canaveral, Florida 32920, and MEAD & HUNT, a Florida corporation ("Consultant"), whose principal address is 4401 Eastport Parkway, PO Drawer 290247, Port Orange, Florida 32127-0247. WITNESSETH: WHEREAS, the City has a need to obtain engineering, surveying, and architectural 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 Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and WHEREAS, the Consultant participated in the selection and negotiation process; and WHEREAS, the Consultant is willing to provide such engineering, surveying, and architectural services to the City under the terms and conditions stated herein; and WHEREAS, the City is willing to place Mead & Hunt on its list of pre-approved continuing services consultants for the potential of providing engineering, surveying, and architectural services to the City in the future; 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 fifth (5th) 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 / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page I of20 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 Consultant to provide the engineering, surveying, and architectural 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. "Consultant" shall mean Mead & Hunt 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 Consultant or Consultant'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, 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 Consultant 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 Consultant and the Consultant 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 Consultant to perfonn engineering, surveying, and architectural services on a "task" basis. The City will communicate with the Consultant, verbally or in writing, a general description of the task to be performed. If a site visit by the Consultant is needed to generate the scope of document, the Consultant shall request approval prior to visiting the site. The Consultant 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 cost breakdown of the lump Agreement for Continuing Engineering I Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 2 of20 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 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 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 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 Consultant through a Task Order may include any engineering, surveying, and architectural 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 Consultant 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 Consultant 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, surveying, and architectural companies to provide professional services. Further, the City does not guarantee that any Work will be assigned to Consultant 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 Consultant under this Agreement. 2.3 The proposed hourly rates and certain direct charges or unit prices, as applicable, that can be charged under this Agreement by Consultant, unless otherwise agreed by the City in writing, are set forth in Exhibit "A" and fully incorporated herein by this reference. 2.4 No task in which the Consultant is to provide professional services to the City for a project with an estimated construction cost exceeding $2 Million 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 Consultant. If such changes increase (additional services) or decrease or eliminate any amount of Work, the City and the Consultant will negotiate any change in total cost or schedule modifications. If the City and the Consultant approve any change, the Task Order will be modified in writing to reflect the changes; and the Consultant 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 Consultant's designated representative. Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 3 of20 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 Consultant shall perform services in conformance with the mutually agreed schedule set forth in the negotiated Task Order. The Consultant 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 Consultant 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 Consultant 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 CONSULTANT 5.1 General Services. For basic and additional Services performed by the Consultant's principals, employees and resident project representatives (and assistants) pursuant to paragraphs 2.0 and 3.0, the City agrees to pay the Consultant 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 Consultants. For additional Services and Reimbursable Expenses of independent professional associates and consultants employed by the Consultant to render additional Services pursuant to paragraphs 2.0 and 3.0, the City agrees to pay the Consultant an amount equal to that billed the Consultant by the independent professional associates and consultants. Prior to payment by the City, the Consultant shall submit to the City a copy of any written invoice received by the Consultant from all independent professional associates and consultants which clearly evidences the amount billed by the independent professional associates and consultants for additional Services and any Reimbursable Expenses. 5.3 Witness Services. For witness or expert services rendered by the Consultant's principals, employees, resident project representatives (and assistants) and independent professional associates and consultants on behalf of the City in any litigation, arbitration or other legal or interested administrative proceeding in which the City is a named interested party, the City agrees to pay the Consultant or independent professional associate or consultant, which is used as a witness or expert, an amount equal to that agreed upon by the party for a particular Task Order. Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 4 of20 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 Consultant. 5.6 Errors and Deficiencies. The Consultant shall not invoice the City or seek any compensation from the City to correct or revise any errors or deficiencies in the Consultant's services provided under this Agreement. 5.7 Payment Offsets. To the extent that the Consultant 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 Consultant for any money owed to the City by the Consultant. 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 Consultant shall remain liable to the City in accordance with applicable law for all damages to the City caused by the Consultant's performance of any Services provided under this Agreement. 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 Consultant, and in no event shall any claim relating thereto for an increase in compensation be made or recognized. The Consultant 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 Consultant'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 Consultant for a specific Task Order shall constitute a release of all claims for payment which the Consultant may have against the City for that Task Order unless such claims are specifically reserved in writing and transmitted to the City by the Consultant prior to its acceptance. Said final payment shall not, however, be a bar to any claims that the City may have against the Consultant or to an y 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 Consultant, the Consultant 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 Consultant for any claims relating to the validity of a finding by the City of overpayment. Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 5 of20 5.12 Partial Payments. Payment made to the Consultant 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 Consultant of the same within five (5) days from the date ofreceipt 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 Consultant. 6.2 No inspection, review or observation shall relieve the Consultant 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 entered into under this Agreement. The Consultant'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 Consultant 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. 9.0 REASONABLE ACCESS 9.1 During the tem1 of this Agreement, the City shall grant the Consultant 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 Consultant shall be responsible for providing the types of insurance and limits ofliability as set forth below. a. Professional Liability. Proof of professional liability insurance shall be provided to the City for the minimum amount of $3,000,000.00 per occurrence and in the aggregate with a deductible not greater than $50,000.00. Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 6 of20 b. General Liability. The Consultant shall maintain comprehensive general liability insurance in the minimum amount of $1 ,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 Consultant 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 Consultant or by anyone directly employed by or contracting with the Consultant. c. Automobile Liability. The Consultant 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 Consultant or by anyone directly or indirectly employed by the Consultant. d. Workers' Compensation. The Consultant 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 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 10.1.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 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 Consultant by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. In the event that the Consultant 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 Consultant. The Consultant 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 an y 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 Consultant 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 Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 7 of20 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 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 Consultant in accordance with this Article on the basis of its not complying with the Agreement, the City shall notify the Consultant 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 the Consultant to perform any Services hereunder shall fully comply with the insurance provisions contained in this paragraph. 11.0 COMPLIANCE WITH LAWS AND REGULATIONS 11.1 The Consultant 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. 12.0 REPRESENTATIONS 12.1 The Consultant 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, surveying, and architectural practices and procedures; and shall conform to the customary standards of care, skill, and diligence appropriate to the nature of the Services rendered. The Consultant shall perform as expeditiously as is consistent with professional skill and care and the orderly progress of the Services performed hereunder. The Consultant's services shall be consistent with the time periods established under this Agreement or the applicable Task Order. The Consultant 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 consultants (if any), and for the approval of submissions by authorities having jurisdiction over the services. The Consultant's designated representative shall have the authority to act on the Consultant's behalf with respect to the Services. In addition, the Consultant'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 Consultant shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Consultant's professional judgment with respect to the Services. The Consultant shall review laws, codes and regulations applicable to the Consultant's Services. The Consultant's services and design shall comply with all applicable requirements imposed by all public authorities. The Consultant 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 Consultant 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 Consultant for nonpayment of any Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 8 of20 proper invoices, or the City exercises its rights to perform the Services pursuant to Section 2.2 herein, the Consultant shall be responsible for the satisfactory and complete execution of the Services described in this Agreement and any Task Order. The Consultant 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 Consultant 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 13.1 The Consultant 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 Consultant 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 Consultant 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, Consultant 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 fonn, characteristics, or means of transmission, of Consultant 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 Consultant. 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 Consultant 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 CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONT ACT THE CUSTODIAN Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 9 of20 OF PUBLIC RECORDS, THE CITY CLERK, AT (321) 868-1220 x207, CITY CLERK'S OFFICE, 100 POLK AVENUE, P.O. BOX 326, CAPE CANAVERAL, FL 32920. Consultant is required to and agrees to comply with public records laws. Consultant shall keep and maintain all public records required by the City to perform the services as agreed to herein. Consultant 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. Consultant shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term. Upon completion of the Agreement, Consultant shall transfer to the City, at no cost, all public records in possession of the Consultant, provided the transfer is requested in writing by the City Clerk. Upon such transfer, Consultant 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 Consultant 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 Consultant of the request and the Consultant shall then provide such records to the City or allow the records to be inspected or copied within a reasonable time. If the Consultant does not comply with a public records request, the City may enforce this Section to the extent permitted by law. Consultant acknowledges that if the Consultant does not provide the public records to the City within a reasonable time, the Consultant may be subject to penalties under Section 119.10, Florida Statutes. The Consultant acknowledges that if a civil action is filed against the Consultant to compel production of public records relating to this Agreement, the court may assess and award against Consultant 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 Consultant, be open and freely exhibited to the City for the purpose of examination, audit, or otherwise. Failure by Consultant 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 Consultant 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 Consultant's failure to comply with this Section, the City shall collect from Consultant prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Section against Consultant. And, if applicable, the City shall al so be entitled to reimbursement of all attorneys' fees and damages which the City had to pay a third party because of the Consultant's failure to comply with this Section. The terms and conditions set forth in this Section shall survive the termination of this Agreement. a. Reuse of Documents. All documents, including but not limited to, drawings, specifications and data or programs stored electronically or otherwise, prepared by the Consultant 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 Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 10 of 20 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 Consultant, 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 Consultant. b. Ownership of Documents. The City and the Consultant agree that upon payment of fees due to the Consultant 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 Consultant 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 Consultant 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 Consultant in the performance of this Agreement, and hereby assigns and conveys the same to the City whether in the possession or control of the Consultant or not. c. Preexisting Ownership Rights to Documents. Notwithstanding any provisions to the contrary contained in this Agreement, the Consultant 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 Consultant 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 Consultant 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 Consultant, the Consultant shall be fully responsible to the City for all acts and/or omissions perfom1ed 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 Consultant who shall take immediate steps to remedy the situation. 15.4 If any part of this Agreement is subcontracted by the Consultant, prior to the commencement of any Work by the subcontractor, the Consultant shall require the subcontractor to provide the City and its affiliates with insurance coverage as set forth by the City. Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 11 of 20 16.0 INDEPENDENT CONTRACTOR 16.1 At all times during the term of this Agreement, the Consultant and any approved subcontractors shall be considered an independent contractor(s) and not an employee(s) of the City. 17.0 DEFAULT BY CONSULTANT 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. The Consultant 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 ofreasonable diligence, be remedied within thirty (30) calendar days, in which case the Consultant shall have such time as is reasonably necessary to remedy the default, provided the Consultant promptly takes and diligently pursues such actions as are necessary therefore; or b. The Consultant is adjudicated bankrupt or makes any assignment for the benefit of creditors or the Consultant becomes insolvent, or is unable or unwilling to pay its debts; or c. The Consultant has acted grossly negligent, as defined by general and applicable law, in performing the Services hereunder; or d. The Consultant has committed any act of fraud upon the City; or e. The Consultant has made a material misrepresentation of fact to the City while performing its obligations under this Agreement. f. The Consultant has assigned this Agreement or an y Task Order without the City's prior written consent. 17.2 Notwithstanding the aforementioned, in the event of a default by the Consultant, the City shall have the right to exercise any other remedy the City may have by operation oflaw, 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 Consultant under this Agreement shall, at the option of the City, become the City's property and the Consultant shall be entitled to receive equitable compensation for any work completed to the satisfaction of the City. The Consultant, 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 Consultant for the Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 12 of20 purpose of setoff until such time as the amount of damages due to the City from the Consultant can be determined. 18.0 TERMINATION 18.1 Notwithstanding any other provision of this Agreement, the City may, upon written notice to the Consultant, terminate this Agreement, without penalty, if: (a) the Consultant is in default pursuant to Section 17.0 Default; (b) the Consultant makes a general assignment for the benefit of its creditors; ( c) the Consultant fails to comply with any condition or provision of this Agreement; or ( d) the Consultant 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, 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; war; sabotage; strikes (with the exception of Consultant'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 gi ven 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 Brevard County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 13 of20 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 thereof of 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. 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 Consultant. 25.0 PROHIBITION AGAINST CONTINGENT FEES 25.1 The Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Consultant, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the Consultant, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the City shall have the right to tem1inate 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 Consultant with respect to the Services specified and all previous representations relative thereto, either written or oral, are hereby annulled and superseded. Agreement for Continuing Engineering I Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 14 of 20 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. 30.0 DRAFTING 30.1 The City and the Consultant 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 Consultant: Mead & Hunt Attention: David King, Vice President 4401 Eastport Parkway PO Drawer 29024 7 Port Orange, Florida 32129-0247 (386) 761-6810 Phone (386) 761-3977 Fax For City: City of Cape Canaveral Attention: City Manager 100 Polk A venue Cape Canaveral, FL 32920 (321) 868 -1220 Phone (321) 868 -1247 Fax Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 15 of 20 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. Consultant 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 CONSULTANT 33.1 The Consultant hereby represents and warrants to the City the following: a. The Consultant 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 Consultant has the power, authority, and legal right to execute and deliver this Agreement on behalf of the Consultant. 34.0 INDEMNIFICATION AND LIMITATION OF LIABILITY 34.1 The Consultant shall defend, indemnify and hold hannless the City, its officers, employees, agents, and volunteers, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Consultant and other persons employed or utilized by the Consultant in the performance of this Agreement, including any Task Order. The Consultant specifically assumes potential liability for actions brought by the Consultant's own employees against the City and, solely for the purpose of this indemnification Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral I Mead & Hunt Page 16 of20 and defense, the Consultant 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, Consultant expresses its willingness to enter into this Agreement with the knowledge that the Consultant'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 Consultant 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. 34.3 PURSUANT TO SECTION 558.0035, FLORIDA ST A TUTES, AN INDIVIDUAL EMPLOYEE OR AGENT OF THE CONSULTANT 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 CONSULT ANT'S PERSONNEL AT CONSTRUCTION SITE 35.1 The presence or duties of the Consultant's personnel at a construction site, whether as onsite representatives or otherwise, do not make the Consultant or the Consultant'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 Consultant and the Consultant'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 Consultant's own personnel. 35.2 The presence of the Consultant'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 Consultant neither guarantees the performance of the construction Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 17 of 20 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 Consultant 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 Consultant 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. [REMAINDER OF PAGE INTENTIONALLY BLANK] Agreement for Continuing Engineering / Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 18 of20 d. The undersigned is authorized to execute this Agreement on behalf of the Consultant and said signature shall bind the Consultant to this Agreement. No further action is required by the Consultant to enter into this Agreement other than the Consultant's undersigned representative's execution of the 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: CONSULT ANT: CITY OF CAPE CANAVERAL MEAD&HUNT -~-Signature ___:1)::;_~~' !)~,~;..,.,,J.._,l.~_,, v. r. I Ku . t-. Print Name Title ' David L. Greene, City Manager ATTEST: Agreement for Continuing Engineering/ Surveying / Architectural Services City of Cape Canaveral / Mead & Hunt Page 19 of20 EXHIBIT A MEAD & HUNT, Inc. Municipal Billing Rate Schedule Effective January 1, 2018 Standard Billing Rates Clerical, Construction Project Representative/Inspector, Grant Funding Specialist, SUE Technician ................................................................................................................................ $68.00 / hour Technician I, Technical Writer, Administrative Assistant, CAD/GIS Technician .............................. $83.00 / hour Technician II, Production Manager, Construction Services Manager ............................................ $102.00 / hour Technician III................................................................................................................................... $116.00 / hour Technician IV .................................................................................................................................. $131.00 / hour Senior Technician .......................................................................................................................... $142.00 / hour Engineer I, Scientist I, Architect I, Interior Designer I, Planner I, Engineer Intern .......................... $112.00 / hour Engineer II, Scientist II, Architect II, Interior Designer II, Planner II .............................................. $129.00 / hour Engineer III ...................................................................................................................................... $139.00 / hour Senior Engineer, Senior Scientist, Senior Architect, Senior Interior Designer, Senior Economist, Professional Engineer ...................................................................................... $146.00 / hour Project Engineer, Project Scientist, Project Architect, Project Interior Designer, Project Planner ............................................................................................................................... $155.00 / hour Senior Project Engineer, Senior Project Scientist, Senior Project Architect, Senior Project Interior Designer, Senior Project Planner, Project Manager ................................... $167.00 / hour Senior Associate, Principal ............................................................................................................. $183.00 / hour Equipment Rates SUE Vacuum Excavator ................................................................................................................. $660.00 per day SUE Ground Penetrating Radar ..................................................................................................... $165.00 per day SUE Truck ....................................................................................................................................... $330.00 per day Expenses Out-of-Pocket Direct Job Expenses such as reproductions, sub-consultants/contractors, etc. Actual Cost Travel Expense Company or Personal Car Mileage ................................................................................................ IRS rate / mile Air and Surface Transportation ....................................................................................................... Actual Cost Lodging and Sustenance ................................................................................................................ Actual Cost Invoicing is on a monthly basis for work performed. Payment for services is due within 30 days from the date of the invoice. An interest charge of 1.5% per month is made on the unpaid balance starting 30 days after the date of invoice. Italicized positions relate to Port Orange Office specific positions. This schedule of billing rates is effective January 1, 2018 and will remain in effect until December 31, 2018, subject to the terms and conditions in the Agreement.