HomeMy WebLinkAboutkimleyhorn_veterans_memorial_park_continuing_servicesKimley»>I
April 9, 2021
Mr. David Dickey
Community Development Director
City of Cape Canaveral
110 Polk Avenue
Cape Canaveral, FL 32920
Re: Veteran's Memorial Park
Cape Canaveral, Florida
Dear Mr. Dickey:
Kimley-Horn and Associates, Inc. ("Kimley-Horn" or "the Consultant") is pleased to submit this letter
agreement (the "Agreement") to the City of Cape Canaveral ("City" or "the Client") for consulting
services associated with the Veteran's Memorial Park ("the Project"). Our project understanding,
scope of services, schedule, and fee estimate are provided below.
'11 ..wJ111111IIIII T !OIwIVi":IIP'iii9JIV .f IINIIDIIIP "
It is our understanding the City of Cape Canaveral has requested the preparation of conceptual design
and construction documentation services for a renovation and enhancement to the existing Veteran's
Memorial Park located near the intersection of Polk Avenue and Orange Avenue and east of the Cape
Canaveral Library.
Kimley-Horn understands the City has previously conducted public surveys and questionnaires with
local community members and stakeholders in order to obtain feedback and design direction for the
proposed site improvements. Kimley-Horn plans to review and analyze the client provided initial public
feedback, complete an in -field site inventory of existing conditions, and determine opportunities for the
proposed site programing and design enhancements.
Through this process Kimley-Horn will develop two (2) conceptual design alternatives for the associated
improvements to Veteran's Memorial Park. Kimley-Horn understands these two conceptual design
alternatives will be shared with the public for comment and feedback via City managed and initiated
engagement activities.
Based on the public comments and feedback gathered by the City, Kimley-Horn will prepare one (1)
final conceptual design alternative for Veteran's Memorial Park to be presented to City Council for
review and approval. Commencing City Council approval of the final conceptual design package
Kimley-Horn will prepare construction documents for the associated landscape architectural and civil
engineering improvements and site enhancements.
Due to the everchanging circumstances surrounding the COVID-19 Virus, situations may arise during
the performance of this Agreement that affect availability of resources and staff of Kimley-Horn, the
client, other consultants, and public agencies. There could be changes in anticipated delivery times,
jurisdictional approvals, and project costs. Kimley-Horn will exercise reasonable efforts to overcome
the challenges presented by current circumstances, but Kimley-Horn will not be liable to Client for any
delays, expenses, losses, or damages of any kind arising out of the impact of the COVID-19 Virus.
Our scope of services defined below is based on this understanding:
11 111111111111111110 1111111111 11 11 lo 11111111111111111
111411111:111111, 11111111111'111111111111111
ItN'i,Vl'41
Kimley>>
In ISIS 01r �IIIllllllll' III'�Illlllllll�
Page 2
Task 1 — Conceptual Dego.
Kimley-Horn will utilize a City provided "specific area" topographic survey of the existing Veteran's
Memorial Park along with other readily available data, aerial imagery, as -built plans (if available), to
compile a base map suitable for development of conceptual design alternatives and final construction
documents.
Kimley-Horn will visit the project area one (1) time and perform a visual assessment of the existing
conditions. Kimley-Horn will make note of overhead utilities and above -ground visual evidence of
subsurface utilities, as well as other observable surface features.
Task 1A. Draft Concept Design (City Staff Review)
Kimley-Horn will prepare two (2) sketched draft concept design exhibits for the project, based on
initial conversations with the client, public input obtained from the Client, and the completed on-site
inventory and analysis of existing conditions documented from the site visit. The draft concept
designs will be representative of the specific aspects of the project, as described in the Project
Understanding.
Deliverables within the draft concept design alternatives package for City staff review and comment
are limited to the following:
• Two (2) draft plan view renderings of the proposed Veteran's Memorial Park alternatives
incorporating elements identified in the public feedback and initial design direction provided
by the client.
• One (1) reference image board to show proposed site features (potential plant palette,
hardscape / softscape, and site proposed site elements)
The draft concept design alternatives package will be provided in color, 11 "x17" PDF format for digital
distribution to the client.
Task 1B. PreliminarConcept Design (Public Review)
Upon receiving Client input and written approval, Kimley-Horn will refine the two (2) draft concept
design drawings one time to create a preliminary concept design altematives package for stakeholder
and community review.
Deliverables within the preliminary concept design alternatives package for public viewing and
comment are limited to the following:
• Two (2) preliminary plan view renderings of the proposed Veteran's Memorial Park
alternatives. The preliminary plan renderings will incorporate elements identified in the draft
concept designs for each park design altemative and input obtained from the Client.
• One (1) reference image board to show proposed site elements, potential plant palette,
hardscape elements, and proposed site fumishings.
Kimley-Horn will provide the preliminary concept design altematives package to the Client in 11"x17"
digital PDF format for distribution / circulation within the community in order to facilitate virtual public
engagement, review, and comment. Virtual and / or in person review advertisements, circulation, and
feedback data collection will be the responsibility of the Client.
nib
111111 1111 11111 IIOII II�I�Iu ��ll11;11g111 llll`fiII
§%/(,i.
i91'1kdi
111111 1111111111111111111 1111 111111 11111,1111
Kimley»>t
Page 3
Task 1 C. Final Concept Design (City Council Review)
Based on the community and stakeholder feedback regarding the preliminary concept design
alternatives package shared with the public Kimley-Horn will review, synthesize, and determine one
(1) final concept design proposal to be presented to City Council for review, comment, and approval.
Exhibits within the final concept design proposal for review and approval by City Council include:
• One (1) final plan view rendering incorporating feedback from the public input, comment, and
review process. The final plan view rendering will be presented in color, 11"x17" PDF format
for digital distribution.
• One (1) reference image board to show proposed site elements, potential plant palette,
hardscape elements, and proposed site fumishings.
• Two (2) conceptual perspective / photo -simulations. The conceptual perspective / photo -
simulation renderings will be based on in -field photographs. Proposed improvements (new
pathways, hardscape, decorative elements, landscaping, etc.) will be applied to each
photograph based on the preliminary concept design feedback gathered from the community.
Kimley-Horn will provide the final concept design package to the Client in 11"x17" PDF format for
digital distribution / circulation with City Council for review and approval.
Comments and feedback from City Council review / approval will be integrated into the prepared
construction documents for bidding and permitting. Preparation of an updated conceptual design
package integrating City Council comments and feedback is excluded from this task and will be
considered an additional service.
Task 2 — Construction Documents
Based upon the City Council approved Conceptual Design package developed in the above tasks,
Kimley-Horn will develop Construction Documents containing the following information:
Cover Sheet:
• Plan contents, vicinity and aerial maps, zoning map, legal description and project team
identification
Existing Conditions and Demolition Plan:
• Data provided from the topographic survey (by others), topographic and tree survey
• Indicate and identify the onsite demolition of existing structures, facilities or other items,
required to be cleared, demolished and/or removed prior to construction of the proposed
site
Stormwater Pollution Prevention Plan SWPPP
• Include and identify stormwater best management practices for the construction of the
proposed site including erosion and sedimentation control measures
• Stormwater management areas, applicable details, and specifications.
Site Plan/Staking and Materials Plan:
• Site geometry, building setbacks, sidewalks,
• Location data (dimensions, horizontal control)
• Materials indications (paving, existing parking, hardscape areas)
• Site fumishing locations
oh
11111111111
oif'ibl'dl
Kimley)> r
• Sculpture locations
• Light pole / pedestrian bollard locations
Grading and Drainaage Plan:
• Contours at one -foot intervals and spot elevations at critical locations
• Stormwater drainage pipe layout
• Stormwater drainage structures (rim and invert elevations; structural design of
underground detention vaults, if required, is not included in the base scope)
• One stormwater BMP to fulfill City of City of Cape Canaveral and agency detention
requirements.
Page 4
Utilit, Plan:
• Kimley-Horn understands there will be no utility infrastructure design, modification, or
permitting involved with this project.
• Private water service connections on the project site for minor domestic services — water
fountains, irrigation and quick coupler locations can be provided as an additional service
if desired.
• It is assumed the existing public water and sewer mains serving the property will not be
impacted, expanded, or altered. Should public main extensions, impacts or alterations be
required, this design can be provided as an additional service.
Code -required Tree Protection and Landscape Planting Plan:
• Identification of trees to be preserved, protection and/or removed
• Areas to receive required landscape materials
• Plant list with location and spacing
• Grassing, seeding/sodding designation plan
• Plant details to meet City of Cape Canaveral standards
Schematic Irrigation Plan and Details
• Plan illustrating existing meter, backflow, controller, rain sensor, main line extension,
irrigation head layout, quick coupler valves (if desired) and other appurtenances for an
irrigation system for the site and the code required landscape plantings.
• Consultant will coordinate with the City to include Owner provided appurtenances within
the contract documents.
• Run time schedules, critical analysis schedules, and fully piped / designed irrigation plans
will be considered an additional service.
Schematic Lighting Layout Plan
• Schematically located pedestrian pathway accent bollard lighting via solar power only
• Product cut -sheets and vendor details
• This task does not include preparation of electrical engineering plans associated with the
project's lighting; however, Kimley-Horn can provide electrical engineering plans upon
Client request through the use of a sub consultant. Life -safety lighting and signage is
specifically excluded from this scope of services.
Construction Details (site'
• Site elements (sidewalks, paving, hardscapes, ADA ramps, regulatory signs)
• Erosion control measures
• Storm drainage/Stormwater infrastructure
• Design intent details for accent knee walls, pergolas, site feature elements
• Structural design and engineering is excluded from this task
oop000000000000000000000000000000000000000
01,000000
111111111111
Kimley»>
110'
Page 5
Specifications
• Consultant will prepare and assemble construction bidding documents, including plan
sheet specifications for the subject Work and the City prepared construction contract,
based on "standard General Conditions of the Construction Contract" (EJCDC No. C-700,
2013 edition) prepared by the Engineers Joint Contract Documents Committee or
standard City of Cape Canaveral Contract.
• Specifications will be based on FDOT and City standard specifications and augmented
with special provisions including:
o Pavers, special paving / colored concrete, plantings, and site fumishings
Construction Documentation Submittals will be as follows:
• Submit two (2) sets of the Contract Documents to City of Cape Canaveral for review at
60%, 90% and three (3) sets at 100% completion along with electronic PDF of set in
24"x36" format.
• One (1) opinion of probable cost of construction (OPCC) shall be submitted with the 60%,
90% and 100% reviews in 8.5"x11" electronic PDF format.
• Consultant shall revise the Contract Documents to reflect the review comments.
• Consultant shall provide a list (in 8-1/2" x 11" format) of all staff review comments with a
written response for each, indicating how each comment was addressed.
Task 3 — Permittin & Aenc Response
Kimley-Horn will prepare and submit, on the Owner's behalf, the below required permitting packages
for review/approval of construction documents and drainage analysis to obtain the following Agency
approvals:
A. City of Cape Canaveral Site Plan Permit
B. St. Johns River Water Management District (Minor letter modification permit update only)
a. The current site has been previously permitted and approved through the St. Johns
River Water Management District. Proposed site improvements will require updating
the existing stormwater management district permit through a minor letter modification
process.
b. If a major permit modification is required to the existing stormwater management
district permit (per determination by St. Johns River Water Management District at pre -
application meeting) additional services will be required. See add altemate Task 7.
C. Florida Department of Environmental Protection NPDES NOI
Kimley-Horn will monitor and respond to agency comments, and revise plans and design documents
accordingly, to expedite permit issuance. Kimley-Horn will coordinate the revisions with the project
team.
Responding to requests for additional information beyond what is normal and customary, and
responding to permitting issues beyond our control are outside of this scope of services and will be
provided, as needed, as an Additional Service only after prior written authorization by Owner. Efforts
to respond to issues raised during the permitting process, which cannot currently be anticipated, shall
be considered Additional Services.
11111111 111111111111
Kimley>> I
Page 6
The Consultant has no control over the actions of jurisdictional agencies and is not a party to
agreements between the client and others. Accordingly, professional opinions as to the status of
permits and entitlements or the suitability for a specific purpose herein and professional opinions as to
the probability and timeframe for approvals are made on the basis of professional experience and
available data. The Consultant does not guarantee that the outcome of permits and entitlements or
suitability will not vary from its opinions. Because its opinions are based upon limited site investigation
and scope of services, the Consultant does not guarantee that all issues affecting the site have been
investigated.
Kimley-Horn does not guarantee the issuance of permits or approvals. If permits are issued for this
project, the conditions and expiration dates are the sole responsibility of the Client. Kimley-Horn is not
responsible for extending time limited entitlements or permits. Kimley-Horn can provide services to file
for extensions, if applicable, provided the Client issues a direct written request for each requested
entitlement, prior to the dates of expiration.
Task 4 — Meetin s
Kimley-Horn will attend meetings as requested by the Client and initiate coordination meetings as
needed to support the design process. The following meetings will be attended as part of the Task 1
design process:
A. Up to three (3) City / project team meetings with City staff to review project plans and
coordinate design
B. One (1) meeting with St. Johns River Water Management District agency for permitting
coordination
C. One (1) meeting with City Council
Task 5 — Biddin*s Services
Kimley-Horn will be available to provide bidding services prior to the start of construction, as requested.
These services will include the following:
A. Prepare a bid form for insertion into the contract manual outlining major components of the
work and associated quantities for a unit price bid.
B. Assist the City in issuing bid packages for the submittal of quotations to perform the work
C. Prepare one (1) addenda based on bidder questions.
D. Tabulate the bids received and evaluate the compliance of the bids received with the bidding
documents. Consultant will prepare a written summary of this tabulation and evaluation.
Task 6 - Construction Phase Services
Kimley-Horn will be available to provide construction phase services, as requested. These services
may include but not be limited to:
Pre -Construction Conference.
Consultant will attend one (1) two-hour Pre -Construction Conference prior to commencement of
construction activity
p➢"'��II��IUIII����I�RWN�ti�
Kimley>>
Visits to Site and Observation of Construction.
Page 7
Consultant will provide limited on-site construction observation services during the construction
phase. Consultant will make visits at intervals as directed by Client in order to observe the progress
of the Work. Consultant has anticipated up to one (1) site visit/meeting per 2 -week period (on
average) during the anticipated 26 -week (6 months) construction period. This Task includes review
of as -built documents for final certification of stormwater ponds and weir adjustments provided by the
Contractor and Certification of Completion as required by the City.
Such visits and observations by Consultant are not intended to be exhaustive or to extend to every
aspect of Contractor's work in progress. Observations are to be limited to spot checking, selective
measurement, and similar methods of general observation of the Work based on Consultant's
exercise of professional judgment. Based on information obtained during such visits and such
observations, Consultant will evaluate whether Contractor's work is generally proceeding in
accordance with the Contract Documents, and Consultant will keep Client informed of the general
progress of the Work.
The purpose of Consultant's site visits will be to enable Consultant to better carry out the duties and
responsibilities specifically assigned in this Agreement to Consultant, and to provide Client a greater
degree of confidence that the completed Work will conform in general to the Contract Documents.
Consultant shall not, during such visits or as a result of such observations of Contractor's work in
progress, supervise, direct, or have control over Contractor's work, nor shall KHA have authority over
or responsibility for the means, methods, techniques, equipment choice and usage, sequences,
schedules, or procedures of construction selected by Contractor, for safety precautions and programs
incident to Contractor's work, nor for any failure of Contractor to comply with laws and regulations
applicable to Contractor's fumishing and performing the Work. Accordingly, Consultant neither
guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure
to fumish and perform its work in accordance with the Contract Documents.
Recommendations with Respect to Defective Work.
Consultant will recommend to Client that Contractor's work be disapproved and rejected while it is in
progress if, on the basis of such observations, Consultant believes that such work will not produce a
completed Project that conforms generally to Contract Documents.
Clarifications and Interpretations.
Consultant will respond to reasonable and appropriate Contractor requests for information and issue
necessary clarifications and interpretations of the Contract Documents to Client as appropriate to the
orderly completion of the work. Any orders authorizing variations from the Contract Documents will
be made by Client.
Change Orders.
Consultant may recommend Change Orders to Client and will review and make recommendations
related to Change Orders submitted or proposed by the Contractor.
Shop Drawings and Samples.
Consultant will review and approve or take other appropriate action in respect to Shop Drawings and
Samples and other data which Contractor is required to submit for site civil and landscape elements,
but only for conformance with the information given in the Contract Documents. Such review and
approvals or other action will not extend to means, methods, techniques, equipment choice and
usage, sequences, schedules, or procedures of construction or to related safety precautions and
programs.
1111 11 1 II 11111111
11.11 111,0111111m01111111111 1111111;110.110100
Kimley»
Substitutes and "or -equal."
Page 8
Consultant will evaluate and determine the acceptability of substitute or "or -equal" materials and
equipment proposed by Contractor in accordance with the Contract Documents, but subject to the
provisions of applicable standards of state or local government entities. Unreasonable requests for
substitutes may be subject to additional services.
Limitation of Responsibilities.
Consultant shall not be responsible for the acts or omissions of any Contractor, or of any of their
subcontractors, suppliers, or of any other individual or entity performing or furnishing the Work.
Consultant shall not have the authority or responsibility to stop the work of any Contractor.
Task 7 add alternate) - St. Johns River Water Management District Ma;or Modification
Per determination at the pre -application meeting with St. Johns River Water Management District, if a
major permit modification is required for the existing stormwater management district permit on site,
additional information will need to be prepared
Historically an existing Environmental Resource Permit stipulates the stormwater standards required
for the property based on the time it was issued, thus its grandfathered. If the St. Johns River Water
Management District no longer accepts the original permit or grandfathered standard, modifications to
the site will be required to meet current and more stringent stormwater treatment criteria, as well as
DEPs BMAP criteria.
Information to be prepared for the major permit modification include:
a. Preparation of additional treatment volume calculations
b. Preparation of nutrient removal calculations for nitrogen and phosphorus loading conditions
c. Preparation of additional stormwater treatment information to support our on-site stormwater
strategy and how it satisfies the requested performance and treatment criteria set forth by the
St. Johns River Management District
d. Coordinate with jurisdictional agency regarding the proposed improvements and solutions
C1111.Allll°' l'''lCA""III'"'iClllS
39IiIIISIPE"'11tI14S
Final project direction and approval for Kimley-Horn work will be made by the Client in a timely
fashion.
Services are based on preparing one (1) set of construction documents for permitting and
construction. Additional sets of construction documents, permit sets, and bid packages will be
provided as an additional service.
IIII'i' III "III "" NAL SEE' ICES
Any services not specifically provided for in the above scope may be performed as additional services
and billed at our hourly rates per the Agreement and upon authorization from the City. Additional
services we can provide include, but are not limited to, the following:
l
• Off-site improvements
• Revisions to draft or conceptual concepts and / or renderings beyond the provided scope
• Specific area topographic survey in AutoCAD format
• Landscape and Hardscape Construction Documents beyond those illustrated in the approved
concept plan
• Signage and wayfinding design and permitting
11
III
11)1)1111111A A 1,1'111
1)1r,h)11111
Kimley»>
loo
11111 11111
Page 9
• Decorative fountains and / or water feature design and engineering
• Site visits or meetings beyond those listed above
• 3-D modeling and visualization packages
• Arboricultural services
• Traffic studies or traffic planning reports
• Roadway Engineering Services, Maintenance of Traffic Plans
• Structural and Electrical Engineering
• Value Engineering services
• Material testing services
• LEED certification services
• Planning assistance for variances, zoning, and ROW vacates
• Environmental Services and Geotechnical reports / engineering services
• Design and engineering of overhead structures, playgrounds, or other structural elements
IMO"' III' VII IATIIi uIII I'oIII" "fWEE, Illiiit'Y TOO -10110!' IIIL.IIIIIIIIIIIIIIIII' ""i""
The following information, upon which the consultant may rely, will be provided to Kimley-Horn by the
Client or its representative:
• Specific area topographic survey and existing tree survey in AutoCAD and digital PDF format
for subject property
• Geotechnical reports for subject property
• Previous public comments, surveys, and feedback related to proposed site improvements
SCHEDULE
IIIIIIIIIII
Consultant shall provide the services described in the above scope as expeditiously as practical to
meet a mutually agreed upon schedule with the Client.
OV"""EE ENID IIRIIItIIII IIII II G
Kimley-Horn will perform the services in Tasks 1 through 5 for a lump sum of $40,200. In addition to
the lump sum labor fee, direct reimbursable expenses such as express delivery services, fees, travel,
and other direct expenses will be billed at 1.15 times the cost. Task 6 will be billed on an hourly plus
expense basis. All permitting, application, and similar project fees will be paid directly by the Client.
TASKS
Conceptual Design
Construction Documents
Perm itting & Agency .
� Response
Meetings ...,.,
Bidding Services
Construction Phase Services
Services
ADD ALTERNATE TASK (to be authorized separately)
7
SJRWMD — Major PermitModification
FEE
$9,000
$16,500
$5,500
$4,700
$4,500
Hourly
$7,600
Fees and expenses will be invoiced monthly based, as applicable, upon the percentage of services
completed or actual services performed, plus expenses incurred as of the invoice date. Payment will
be due within 25 days of your receipt of the invoice.
Kimley-Horn, in an effort to expedite invoices and reduce paper waste, offers its clients the option to
receive electronic invoices. These invoices come via email in an Adobe PDF format. We can also
1111111111111 11111111
1i7�N�;,i1E�
Kimley»>H
Page 10
provide a paper copy via regular mail if requested. Please select a billing method from the choices
below:
Please email all invoices to
Invoices@cityofcapecanaveral.org
Please copy g.vergara@cityofcapecanaveral.org
CIII'n t." SLI t.E
In addition to the matters set forth herein, our Agreement shall include and be subject to, and only to,
the terms and conditions in the attached Standard Provisions, which are incorporated by reference.
As used in the Standard Provisions, the term "the Consultant" shall refer to Kimley-Horn and
Associates, Inc., and the term "the Client" shall refer to City of Cape Canaveral.
If you concur in all the foregoing and wish to direct us to proceed with the services, please have
authorized persons execute both copies of this Agreement in the spaces provided below, retain one
copy, and return the other to our office for further processing. Fees and times stated in this Agreement
are valid for sixty (60) days after the date of this letter.
We appreciate the opportunity to provide these services to you. Please do not hesitate to contact me
if you have any questions.
Very truly yours,
KIMLEY-HORN AND ASSOCIATES, INC.
Scott Mingonet, 1P- , AICP
Sr. Vice Presid
Attachment — Standard Provisions
Agreed to this 4 day of
By:
Attest:
CITY OF CAPE CANAVERAL
A Municipality
Weston Rogers, PLA
Project Manager
, 2021.
City Manager
Todd -Morley
(Print or Type Name)
T.Morley@cityofcapecanaveral.org
(Email Address)
(Print or Type Name)
pull ulll II�I�
, Secretary/Assistant Secretary
Kimley>)
KIMLEY-HORN AND ASSOCIATES, INC.
STANDARD PROVISIONS
Page 11
(1) Consultant's Scope of Services and Additional Services. The Consultant will perform only the services specifically
described in this Agreement. If requested by the Client and agreed to by the Consultant, the Consultant will perform Additional
Services, which shall be govemed by these provisions. Unless otherwise agreed to in writing, the Client shall pay the Consultant
for any Additional Services an amount based upon the Consultant's then -current hourly rates plus an amount to cover certain
direct expenses including telecommunications, in-house reproduction, postage, supplies, project related computer time, and local
mileage. Other direct expenses will be billed at 1.15 times cost.
(2) Client's Responsibilities. In addition to other responsibilities herein or imposed by law, the Client shall:
(a) Designate in writing a person to act as its representative, such person having complete authority to transmit instructions,
receive information, and make or interpret the Client's decisions.
(b) Provide all information and criteria as to the Client's requirements, objectives, and expectations for the project and all
standards of development, design, or construction.
(c) Provide the Consultant all available studies, plans, or other documents pertaining to the project, such as surveys, engineering
data, environmental information, etc., all of which the Consultant may rely upon.
(d) Arrange for access to the site and other property as required for the Consultant to provide its services.
(e) Review all documents or reports presented by the Consultant and communicate decisions pertaining thereto within a
reasonable time so as not to delay the Consultant.
(f) Fumish approvals and permits from govemmental authorities having jurisdiction over the project and approvals and consents
from other parties as may be necessary.
(g) Obtain any independent accounting, legal, insurance, cost estimating and feasibility services required by Client.
(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any development that affects the
Consultants services or any defect or noncompliance in any aspect of the project.
(3) Period of Services. Unless otherwise stated herein, the Consultant will begin work after receipt of a properly executed copy
of this Agreement. This Agreement assumes conditions permitting continuous and orderly progress through completion of the
services. Times for performance shall be extended as necessary for delays or suspensions due to circumstances that the
Consultant does not control. If such delay or suspension extends for more than six months, Consultant's compensation shall be
renegotiated.
(4) Method of Payment. Client shall pay Consultant as follows:
(a) Invoices will be submitted periodically for services performed and expenses incurred. Payment of each invoice will be due
within 25 days of receipt. The Client shall also pay any applicable sales tax. All retainers will be held by the Consultant and
applied against the final invoice. Interest will be added to accounts not paid within 25 days at the maximum rate allowed by law.
If the Client fails to make any payment due under this or any other agreement within 30 days after the Consultants transmittal of
its invoice, the Consultant may, after giving notice to the Client, suspend services and withhold deliverables until all amounts due
are paid.
(b) If the Client relies on payment or proceeds from a third party to pay Consultant and Client does not pay Consultant's invoice
within 60 days of receipt, Consultant may communicate directly with such third party to secure payment.
(c) If the Client objects to an invoice, it must advise the Consultant in writing giving its reasons within 14 days of receipt of the
invoice or the Client's objections will be waived, and the invoice shall conclusively be deemed due and owing. If the Client objects
to only a portion of the invoice, payment for all other portions remains due within 25 days of receipt.
(d) If the Consultant initiates legal proceedings to collect payment, it may recover, in addition to all amounts due, its reasonable
attomeys' fees, reasonable experts' fees, and other expenses related to the proceedings. Such expenses shall include the cost,
at the Consultant's normal hourly billing rates, of the time devoted to such proceedings by its employees.
(e) The Client agrees that the payment to the Consultant is not subject to any contingency or condition. The Consultant may
negotiate payment of any check tendered by the Client, even if the words "in full satisfaction" or words intended to have similar
effect appear on the check without such negotiation being an accord and satisfaction of any disputed debt and without prejudicing
any right of the Consultant to collect additional amounts from the Client.
(5) Use of Documents. All documents and data prepared by the Consultant are related exclusively to the services described
in this Agreement, and may be used only if the Client has satisfied all of its obligations under this Agreement. They are not
intended or represented to be suitable for use or reuse by the Client or others on extensions of this project or on any other project.
Any modifications by the Client to any of the Consultant's documents, or any reuse of the documents without written authorization
by the Consultant will be at the Client's sole risk and without liability to the Consultant, and the Client shall indemnify, defend and
hold the Consultant harmless from all claims, damages, losses and expenses, including but not limited to attorneys' fees, resulting
therefrom. The Consultant's electronic files and source code remain the property of the Consultant and shall be provided to the
Client only if expressly provided for in this Agreement. Any electronic files not containing an electronic seal are provided only for
the convenience of the Client, and use of them is at the Client's sole risk. In the case of any defects in the electronic files or any
discrepancies between them and the hardcopy of the documents prepared by the Consultant, the hardcopy shall govern.
(6) Opinions of Cost. Because the Consultant does not control the cost of labor, materials, equipment or services fumished
by others, methods of determining prices, or competitive bidding or market conditions, any opinions rendered as to costs,
including but not limited to the costs of construction and materials, are made solely based on its judgment as a professional
familiar with the industry. The Consultant cannot and does not guarantee that proposals, bids or actual costs will not vary from
its opinions of cost. If the Client wishes greater assurance as to the amount of any cost, it shall employ an independent cost
estimator. Consultant's services required to bring costs within any limitation established by the Client will be paid for as Additional
111111
V
Iiii"
1'40�,t�'��11y'I
h II
1,111,1111111111111111
11111111111 1111111111110V
Kimley»>H
Page 12
Services.
(7) Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven
days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof, or upon
thirty days' written notice for the convenience of the terminating party. The Consultant shall be paid for all services rendered and
expenses incurred to the effective date of termination, and other reasonable expenses incurred by the Consultant as a result of
such termination.
(8) Standard of Care. The standard of care applicable to Consultant's services will be the degree of care and skill ordinarily
exercised by consultants performing the same or similar services in the same locality at the time the services are provided. No
warranty, express or implied, is made or intended by the Consultant's performance of services, and it is agreed that the Consultant
is not a fiduciary with respect to the Client.
(9) LIMITATION OF LIABILITY. In recognition of the relative risks and benefits of the Project to the Client and the Consultant,
the risks are allocated such that, to the fullest extent allowed by law, and notwithstanding any other provisions of this Agreement
or the existence of applicable insurance coverage, that the total liability, in the aggregate, of the Consultant and the Consultant's
officers, directors, employees, agents, and subconsultants to the Client or to anyone claiming by, through or under the Client, for
any and all claims, losses, costs or damages whatsoever arising out of or in any way related to the services under this Agreement
from any causes, including but not limited to, the negligence, professional errors or omissions, strict liability or breach of contract
or any warranty, express or implied, of the Consultant or the Consultant's officers, directors, employees, agents, and
subconsultants, shall not exceed twice the total compensation received by the Consultant under this Agreement or $50,000,
whichever is greater. Higher limits of liability may be negotiated for additional fee. This Section 9 is intended solely to limit the
remedies available to the Client or those claiming by or through the Client, and nothing in this Section 9 shall require the Client
to indemnify the Consultant.
(10) Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other for any consequential,
incidental, punitive, or indirect damages including but not limited to loss of income or loss of profits.
(11) Construction Costs. Under no circumstances shall the Consultant be liable for extra costs or other consequences due to
unknown conditions or related to the failure of contractors to perform work in accordance with the plans and specifications.
Consultant shall have no liability whatsoever for any costs arising out of the Client's decision to obtain bids or proceed with
construction before the Consultant has issued final, fully -approved plans and specifications. The Client acknowledges that all
preliminary plans are subject to substantial revision until plans are fully approved and all permits obtained.
(12) Certifications. The Consultant shall not be required to execute certifications or third -party reliance letters that are
inaccurate, that relate to facts of which the Consultant does not have actual knowledge, or that would cause the Consultant to
violate applicable rules of professional responsibility.
(13) Dispute Resolution. All claims by the Client arising out of this Agreement or its breach shall be submitted first to mediation
in accordance with the American Arbitration Association as a condition precedent to litigation.
(14) Hazardous Substances and Conditions. Consultant shall not be a custodian, transporter, handler, arranger, contractor,
or remediator with respect to hazardous substances and conditions. Consultant's services will be limited to analysis,
recommendations, and reporting, including, when agreed to, plans and specifications for isolation, removal, or remediation. The
Consultant will notify the Client of unanticipated hazardous substances or conditions of which the Consultant actually becomes
aware. The Consultant may stop affected portions of its services until the hazardous substance or condition is eliminated.
(15) Construction Phase Services.
(a) If the Consultant prepares construction documents and the Consultant is not retained to make periodic site visits, the Client
assumes all responsibility for interpretation of the documents and for construction observation, and the Client waives any claims
against the Consultant in any way connected thereto.
(b) The Consultant shall have no responsibility for any contractor's means, methods, techniques, equipment choice and usage,
sequence, schedule, safety programs, or safety practices, nor shall Consultant have any authority or responsibility to stop or
direct the work of any contractor. The Consultants visits will be for the purpose of endeavoring to provide the Client a greater
degree of confidence that the completed work of its contractors will generally conform to the construction documents prepared
by the Consultant. Consultant neither guarantees the performance of contractors, nor assumes responsibility for any contractor's
failure to perform its work in accordance with the contract documents.
(c) The Consultant is not responsible for any duties assigned to it in the construction contract that are not expressly provided for
in this Agreement. The Client agrees that each contract with any contractor shall state that the contractor shall be solely
responsible for job site safety and its means and methods; that the contractor shall indemnify the Client and the Consultant for
all claims and liability arising out of job site accidents; and that the Client and the Consultant shall be made additional insureds
under the contractor's general liability insurance policy.
(16) No Third -Party Beneficiaries; Assignment and Subcontracting. This Agreement gives no rights or benefits to anyone
other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant to this Agreement will be for the
sole benefit of the Client and the Consultant. The Client shall not assign or transfer any rights under or interest in this Agreement,
or any claim arising out of the performance of services by Consultant, without the written consent of the Consultant. The
Consultant reserves the right to augment its staff with subconsultants as it deems appropriate due to project logistics, schedules,
or market conditions. If the Consultant exercises this right, the Consultant will maintain the agreed-upon billing rates for services
identified in the contract, regardless of whether the services are provided by in-house employees, contract employees, or
11,1:�1",''!'''���'
111'1"1"41111'11111 ,1"411111;11 \'111„11
1111,'1:1111 hl 11111.01o011,1 II
Kimley»>
Page 13
independent subconsultants.
(17) Confidentiality. The Client consents to the use and dissemination by the Consultant of photographs of the project and to
the use by the Consultant of facts, data and information obtained by the Consultant in the performance of its services. If, however,
any facts, data or information are specifically identified in writing by the Client as confidential, the Consultant shall use reasonable
care to maintain the confidentiality of that material.
(18) Miscellaneous Provisions. This Agreement is to be governed by the law of the State of Florida. This Agreement contains
the entire and fully integrated agreement between the parties and supersedes all prior and contemporaneous negotiations,
representations, agreements or understandings, whether written or oral. Except as provided in Section 1, this Agreement can
be supplemented or amended only by a written document executed by both parties. Any conflicting or additional terms on any
purchase order issued by the Client shall be void and are hereby expressly rejected by the Consultant. Any provision in this
Agreement that is unenforceable shall be ineffective to the extent of such unenforceability without invalidating the remaining
provisions. The non -enforcement of any provision by either party shall not constitute a waiver of that provision nor shall it affect
the enforceability of that provision or of the remainder of this Agreement.
(19) PURSUANT TO FS 558.0035, EMPLOYEES OF CONSULTANT
MAY NOT BE HELD INDIVIDUALLY LIABLE FOR DAMAGES
RESULTING FROM NEGLIGENCE UNDER THIS AGREEMENT
Rev 01/18
11111 11111111111111111111111111111111111111111111111
111