HomeMy WebLinkAboutcocc_kha_engineering_agreement_20230731 FINAL for EXECUTION
CONTINUING SERVICES AGREEMENT
City Engineer Services
THIS CONTINUING SERVICES AGREEMENT ("Agreement") is made and entered
into this 3I qday of July 2023, by and between the City of Cape Canaveral, a Florida
municipal corporation ("City"), located at 100 Polk Avenue, Cape Canaveral, Florida 32920,
and Kimley-Horn and Associates, Inc., a North Carolina corporation authorized to do
business in Florida ("Engineer"), whose principal address is 421 Fayetteville Street, Suite
600, Raleigh, NC 27601.
WITN ESSETH:
WHEREAS, City desires to retain the services of a City Engineer for day-to-day
engineering needs as more specifically described herein and also obtain additional
engineering, design, and permitting 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 for RFQ#2022-01; and
WHEREAS, Engineer participated in the selection and negotiation process; and
WHEREAS, Engineer is willing to provide such engineering services to the City
under the terms and conditions stated herein.
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 by mutual agreement.
Any such extension shall only be by written amendment to this Agreement executed by
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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:
a. "Agreement" or "Contract" shall be used interchangeably and shall refer to
this Continuing Services Agreement, as may be amended from time to time, which shall
constitute authorization for the Engineer to provide the engineering services approved by
Task Order by the City and is also sometimes referred to herein to include all Task Orders
approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall
execute this Agreement, and it shall be the date on which this Agreement shall go into
effect. The Agreement shall not go into effect until said date.
c. "Engineer" shall mean Kimley Horn and Associates, Inc., a North Carolina
corporation, and its principals, employees, resident project representatives (and
assistants).
d. "Public Record" shall have the meaning given in Chapter 119, Florida
Statutes.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by
Engineer or Engineer's independent professional associates and consultants which 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 under Section 2.1 of this Agreement
and in a Task Order.
g. "Task Order" shall mean a written document approved by the parties
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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 additional Work to be performed by Engineer under this Agreement,
and shall include, without the necessity of a cross-reference, the terms and conditions of
this Agreement.
1.4 Engagement. The City hereby engages the Engineer and Engineer agrees
to perform the Services outlined in this agreement for the stated fee arrangement. No
prior or present representations shall be binding upon any of the parties hereto unless
incorporated in this Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 Engineer shall serve as the City Engineer and provide on a day-to-day such
engineering services that may be requested by the City and fall within scope of services
set forth in Exhibit "A." Requests for such services may be made by the City verbally
(thereafter the consultant services shall be confirmed via a follow up email) or by email.
No further Task Order is required to perform the services under Exhibit "A." These
services shall be based on an hourly rate of $215 per hour for work performed by either
a Principal, Project Manager, Project Manager, Engineer, Analyst, or CAD designer
inclusive of all administrative overhead including, but not limited to, administrative,
technician and clerical assistance, offsite or home office overhead, phone and internet
charges, copying, and travel to and from Cape Canaveral to attend site visits and
meetings. Invoicing will be completed on a monthly basis and the monthly invoice will
specifically identify the hours expended and cost per task of each service provided.
2.2 In addition to the day-to-day City Engineer services required by Section 2.1,
the City may request of Engineer to perform additional engineering services on a "task"
basis.The City will communicate with Engineer,verbally or in writing, a general description
of the task to be performed. If a site visit by the Engineer is needed to generate a Scope
of Work document, the Engineer shall request approval prior to visiting the site. The
Engineer will generate a detailed Scope of Work document, prepare a Schedule, add a
Not-to-Exceed-Budget or Lump Sum Fee to accomplish the task with a detailed cost
breakdown based on the hourly rate schedule attached hereto as Exhibit "B", and send
the thus developed "Task Proposal" to the City. The detailed cost breakdown of the lump
sum fee or not-to-exceed budget shall consist of a list of major sub-tasks and a man-hour
breakdown for all work to be performed. The cost breakdown shall include all sub-
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consultant work and the Task Proposal shall include the written price proposals from all
sub-consultants. The detailed cost breakdown shall include a line item for Reimbursable
Expenses and the list of the expenses proposed to be eligible for reimbursement. The
City reserves the right, at its discretion, to consider the Task Proposal as part of a formal
or informal competitive bid process before approving or disapproving any Task Proposal.
The City will review the Task Proposal, along with any other task proposals submitted to
the City by other contractors, and if the description cost and other details of the Task
Proposal are deemed by the City to be in the City's best interests, the parties will enter
into a mutually agreeable written "Task Order". The Scope of Services generally to be
provided by the Engineer through a Task Order may include any engineering services for
any City project and may contain written terms and conditions which are deemed
supplemental to this Agreement.
The City will issue a notice to proceed to the Engineer in the form of a letter and
an executed City purchase order. Upon receipt of the signed Task Order and the written
notice to proceed from the City, the Engineer shall perform the services set forth in the
Task Order.
2.3 The City reserves the right, at its discretion, to perform any services related
to this Agreement or to retain the services of other engineering companies to provide
professional engineering services. Further, the City does not guarantee that any Work will
be assigned to Engineer under this Agreement. The City reserves the right to assign or
contract for professional services with any party at its sole discretion. No provision of this
Agreement shall be construed to require the City to assign any Work or task to Engineer
under this Agreement.
2.4 The maximum hourly rates and certain direct charges or unit prices, as
applicable, that can be charged under this Agreement by Engineer, unless otherwise
agreed by the City in writing, are set forth in Section 2.1 of this Agreement and Exhibit
"B" and fully incorporated herein by this reference.
2.5 No task in which the Engineer is to provide professional services to the City
for a project with an estimated construction cost exceeding the threshold in section
287.055, Florida Statutes, shall be the subject of a Task Order under this Agreement.
3.0 CHANGES IN THE SCOPE OF WORK
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3.1 City may make changes in the Services at any time by giving written notice
to Engineer. If such changes increase (additional services) or decrease or eliminate any
amount of Work, City and Engineer will negotiate any change in total cost or schedule
modifications. If the City and the Engineer approve any change, any applicable Task Order
will be modified in writing to reflect the changes; and Engineer shall be compensated for
said services in accordance with the terms of Section 5.0 herein. All change orders shall
be authorized in writing by City's City Manager and Engineer's designated representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed
in strict accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 Engineer shall perform services in conformance with the mutually agreed
schedule set forth in a written communication for work performed under Section 2.1 or a
negotiated Task Order as applicable. Engineer shall complete all of said services in a timely
manner and will keep City apprised of the status of work on at least a monthly basis or as
otherwise reasonably requested by the City. Should Engineer fall behind the agreed upon
schedule, it shall employ such resources so as to comply with the agreed-upon schedule.
4.2 No extension for completion of services shall be granted to Engineer
without City's prior written consent, except as provided in Sections 3.1 and 19.1 herein.
4.3 Any cost caused by defective or ill-timed services shall be borne by the party
responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF ENGINEER
5.1 General Services. For Services performed under Section 2.1 and any
additional Services performed by Engineer's principals, employees, and resident project
representatives (and assistants) under a Task Order pursuant to paragraphs 2.0 and 3.0,
the City agrees to pay the Engineer an amount equal to that agreed upon by the parties
under Section 2.1 or an applicable 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.
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5.2 Additional Services Performed by Professional Associates and
Consultants. For additional Services and Reimbursable Expenses of independent
professional associates and consultants employed by Engineer to render additional
Services under a Task Order pursuant to paragraphs 2.0 and 3.0, the City agrees to pay
the Engineer an amount equal to that billed Engineer by the independent professional
associates and consultants. Prior to payment by the City, the Engineer shall submit to the
City a copy of any written invoice received by Engineer 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 qualified
Engineer'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, City agrees to pay the Engineer 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. However, any testimony provided
by Engineer's principals, employees, resident project representatives (and assistants) at
City board meetings shall be considered part of the scope of Services required under
Section 2.1 and shall be billed at the rate set forth in Section 2.1 unless otherwise agreed
to by the parties in writing.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as
provided by the Florida Prompt Payment Act, Section 218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under
this Agreement include costs associated with inefficiency, offsite or home office overhead,
loss of productivity, consequential damages, legal or consulting costs, or costs associated
with delays caused in whole or in part by the Engineer.
5.6 Errors and Deficiencies. Engineer shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Engineer's
services provided under this Agreement.
5.7 Payment Offsets. To the extent that Engineer owes the City any money
under this or any other Agreement with the City, the City shall have the right to withhold
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payment and otherwise back charge the Engineer for any money owed to the City by
Engineer.
5.8 Payment not Waiver. The City's payment of any invoice under this
Agreement shall not be construed or operate as a waiver of any rights under this
Agreement or any cause of action arising out of the performance of this Agreement and
Engineer shall remain liable to the City in accordance with applicable law for all damages
to the City caused by Engineer's negligent performance of any services provided under
this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by delays in
Engineer performing the Services under this Agreement and any Task Order are accepted
and assumed entirely by the Engineer, and in no event shall any claim relating thereto for
an increase in compensation be made or recognized. Engineer shall not make any claim
nor seek any damages of any kind against the City for any delays, impacts, disruption or
interruption caused by any delay. Engineer's remedy for a delay shall be an equitable
extension of time to perform the Services for each day of such delay that impacts the
critical path of the schedule established under this Agreement or specific Task Order.
5.10 Acceptance of Payment. Acceptance of final payment by the Engineer for
a specific Task Order shall constitute a release of all claims for payment which the Engineer
may have against the City for that Task Order unless such claims are specifically reserved
in writing and transmitted to the City by the Engineer prior to its acceptance. Said final
payment shall not, however, be a bar to any claims that the City may have against the
Engineer or to any remedies the City may pursue with respect to such claims.
5.11 Payment Adjustments. It is agreed that payment by the City of any billing
will not constitute agreement as to the appropriateness of any item and that at the time
of any final audit, all required adjustments will be made and reflected in a final payment.
In the event that such final audit reveals an overpayment to the Engineer, the Engineer
agrees to refund such overpayment to the City within ninety (90) days of notice of any
such overpayment. Such refund shall not constitute a waiver by the Engineer for any
claims relating to the validity of a finding by the City of overpayment.
5.12 Partial Payments. Payment made to the Engineer shall not constitute
acceptance of the work or any portion thereof which is not in accordance with this
Agreement. If the City objects to all or any portion of any invoice, it shall notify the
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Engineer of the same within five (5) days from the date of receipt and shall pay that
portion of the invoice not in dispute. The parties shall immediately make every effort to
settle the disputed portion.
6.0 RIGHT TO INSPECTION
6.1 City or its affiliates shall at all times have the right to review or observe the
Services performed by Engineer.
6.2 No inspection, review, or observation shall relieve Engineer of its
responsibility under this Agreement.
7.0 PROGRESS MEETING
7.1 For Services rendered under Section 2.1, City's designated Project Manager
may hold periodic progress meetings as deemed necessary to meet the City's day-to-day
demands. Engineer shall be compensated at the hourly rate stated in Section 2.1. With
respect to Task Orders, 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. Engineer's Project Manager and all
other appropriate personnel shall attend such meetings as designated by City's Project
Manager. Engineer shall be compensated on an hourly basis per the Engineer's then-
current hourly rates set forth in the Task Order.
8.0 SAFETY
8.1 Engineer shall be solely and absolutely responsible and assume all liability
for the safety and supervision of its principals, employees, resident project representatives
(and assistants) while performing Services provided hereunder.
9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, City shall grant Engineer reasonable
access to the City's premises, records, and files for purposes of fulfilling its obligations
under this Agreement.
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10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, Engineer shall be
responsible for providing the types of insurance and limits of liability as set forth below.
a. Professional Liability. Proof of professional liability insurance shall be
provided to the City for the minimum amount of $3,000,000.00 per occurrence or claim
and in the aggregate with a deductible not greater than $50,000.00. For professional
liability insurance written on a "claims-made" basis, the Engineer shall maintain and
provide evidence to the City of"tail" coverage that extends coverage for an additional five
years following completion of all Work rendered under this Agreement and Task Orders.
b. General Liability. The Engineer shall maintain comprehensive general
liability insurance in the minimum amount of $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 Engineer from claims of
property damages and personal injury which may arise from any Services performed
under this Agreement,whether such Services are performed by the Engineer or by anyone
directly employed by or contracting with the Engineer.
c. Automobile Liability. The Engineer shall maintain comprehensive
automobile liability insurance in the minimum amount of $1,000,000.00 per occurrence
combined single limit for bodily injury, including wrongful death, and property damage,
which may arise from the ownership, use, or maintenance of owned and non-owned
automobiles, including rented automobiles whether such operations be by the Engineer
or by anyone directly or indirectly employed by the Engineer.
d. Worker's Compensation. The Engineer shall maintain, during the life of
this Agreement, adequate Workers' Compensation Insurance and Employers' Liability
Insurance in at least such amounts as are required by law for all of its employees
performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the
requirements herein identified shall be maintained during the term of this Agreement.
Renewal certificates shall be sent to the City 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
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additional named insured on stipulated insurance policies included in article 10.I.b
and 10.I.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,
or renewal refused until at least thirty (30) days' prior written notice has been given to the
City, and the Engineer by certified mail, return receipt requested. All such insurance shall
remain in effect until final payment. In the event that the Engineer shall fail to comply with
the foregoing requirement, the City is authorized, but in no event shall be obligated, to
purchase such insurance, and the City may bill the Engineer. The Engineer shall
immediately forward funds to the City in full payment for said insurance. It is expressly
agreed that neither the provision of the insurance referred to in this Agreement nor the
City's acceptance of the terms, conditions or amounts of any insurance policy shall be
deemed a warranty or representation as to adequacy of such coverage. All insurance
coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or equivalent rating
and rating service as reasonably determined by the City Manager) and licensed by the
State of Florida to engage in the business of writing of insurance or provided through the
London Market for Professional Liability Insurance. The Engineer shall cause its insurance
carriers, prior to the effective date of this agreement to furnish insurance certificates
specifying the types and amounts of coverage in effect pursuant hereto, the expiration
dates of such policies, and a statement that no insurance under such policies will be
canceled without thirty (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 Engineer in accordance with this Article on the basis of
its not complying with the Agreement, the City shall notify the Engineer in writing thereof
within thirty (30) days of the date of delivery of such certificates to the City. For all Work
performed pursuant to this Agreement, the Engineer shall continuously maintain such
insurance in the amounts, type, and quality as required by the Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Engineer to perform any Services hereunder shall fully comply
with the insurance provisions contained in this paragraph.
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11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Engineer shall comply with all requirements of published, applicable 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 Engineer represents that the Services provided hereunder shall conform to
all requirements of this Agreement and any Task Order, shall be consistent with
recognized and sound engineering practices and procedures; and shall conform to the
customary standards of care, skill, and diligence appropriate to the nature of the Services
rendered by professional engineers or consultants performing the same or similar services
in the same locality at the time the services are provided. Engineer shall perform as
expeditiously as is consistent with professional skill and care and the orderly progress of
the Services performed hereunder. Engineer's services shall be consistent with the time
periods established under this Agreement or the applicable Task Order. Engineer shall
provide 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 Engineer's designated representative shall have the authority to
act on Engineer's behalf with respect to the Services. In addition, Engineer's
representative shall render decisions in a timely manner in order to avoid unreasonable
delay in the orderly and sequential progress of the Services. Except with the City's
knowledge and consent, the Engineer shall not engage in any activity, or accept any
employment, interest or contribution that would reasonably appear to compromise the
Engineer's professional judgment with respect to the Services. The Engineer shall review
laws, codes, and regulations applicable to Engineer's Services. The Engineer's services
and design shall comply with all applicable requirements imposed by all public authorities
at the time the Services are rendered. The Engineer represents 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 in effect as of the date of the Task
Orders or date that the Services are rendered. Engineer shall be responsible for the
professional quality, technical accuracy and the coordination of all plans, studies, reports
and other services furnished to the City under this Agreement. Unless this Agreement is
terminated by the City, or terminated by Engineer for nonpayment of any proper invoices,
or the City exercises its rights to perform the Services pursuant to Section 2.3 herein,
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Engineer shall be responsible for the satisfactory and complete execution of the Services
described in this Agreement and any Task Order. The Engineer represents that it will
carefully examine the scope of services required by the City in any 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 Engineer represents that all principals, employees, and other personnel
furnishing such Services shall be qualified and competent to perform the Services
assigned to them and that such guidance given by and the recommendations and
performance of such personnel shall reflect their best professional knowledge and
judgment.
13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 Engineer guarantees that all Services performed under this Agreement shall
be free from claims of patent, copyright, and trademark infringement. Notwithstanding
any other provision of this Agreement, Engineer shall indemnify, hold harmless, and
defend 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,
Engineer may elect to provide non-infringing services.
14.0 DOCUMENTS
14.1 Public Records. Pursuant to Section 119.0701, Florida Statutes and other
applicable public records laws, Engineer agrees that any records, documents,transactions,
writings, papers, letters, computerized information and programs, maps, books, audio or
video tapes, films, photographs, data processing software, writings or other material(s),
regardless of the physical form, characteristics, or means of transmission, of Engineer
related, directly or indirectly, to the services provided to the City under this Agreement
and made or received pursuant to law or ordinance or in connection with the transaction
of official business by the City, may be deemed to be a public record, whether in the
possession or control of the City or the Engineer. Said records, documents, transactions,
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writings, papers, letters, computerized information and programs, maps, books, audio or
video tapes, films, photographs, data processing software, writings or other material(s),
regardless of the physical form, characteristics, or means of transmission of Engineer are
subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed
without the specific written approval of the City's designated custodian of public records.
IF THE ENGINEER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER
119, FLORIDA STATUTES, TO THE ENGINEER'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, THE
CITY CLERK, AT (321) 868-1220 x207, cityclerk@cityofcapecanaveral.org, City Clerk's
Office, 100 Polk Avenue, Cape Canaveral, FL 32920.
Engineer is required to and agrees to comply with public records laws. Engineer
shall keep and maintain all public records required by the City to perform the services as
agreed to herein. Engineer shall provide the City, upon request from the City Clerk, copies
of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided by law. Engineer shall
ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of
the Agreement term. Upon completion of the Agreement, Engineer shall transfer to the
City, at no cost, all public records in possession of the Engineer, provided the transfer is
requested in writing by the City Clerk. Upon such transfer, Engineer shall destroy any
duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. However, if the City Clerk does not request that the public
records be transferred, the Engineer shall continue to keep and maintain the public
records upon completion of the Agreement and shall meet all applicable requirements
for retaining public records. All records stored electronically must be provided to the City,
upon request from the City Clerk, in a format that is compatible with the information
technology systems of the City. Should the City not possess public records relating to
this Agreement which are requested to be inspected or copied by the City or any other
person, the City shall immediately notify Engineer of the request and the Engineer shall
then provide such records to the City or allow the records to be inspected or copied within
a reasonable time. If the Engineer does not comply with a public records request, the City
may enforce this Section to the extent permitted by law. Engineer acknowledges that if
the Engineer does not provide the public records to the City within a reasonable time, the
Engineer may be subject to penalties under Section 119.10, Florida Statutes. The Engineer
acknowledges that if a civil action is filed against the Engineer to compel production of
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public records relating to this Agreement, the court may assess and award against
Engineer the reasonable costs of enforcement, including reasonable attorney fees. All
public records in connection with this Agreement shall, at any and all reasonable times
during the normal business hours of the Engineer, be open and freely exhibited to the
City for the purpose of examination, audit, or otherwise. Failure by Engineer to grant such
public access and comply with public records laws and/or requests shall be grounds for
immediate unilateral cancellation of this Agreement by the City upon delivery of a written
notice of cancellation. If the Engineer fails to comply with this Section, and the City must
enforce this Section, or the City suffers a third-party award of attorney's fees and/or
damages for violating Chapter 119, Florida Statutes, due to Engineer's failure to comply
with this Section, the City shall collect from Engineer prevailing party attorney's fees and
costs, and any damages incurred by the City, for enforcing this Section against Engineer.
And, if applicable, the City shall also be entitled to reimbursement of all attorneys' fees
and damages which the City had to pay a third party because of the Engineer's failure to
comply with this Section. The terms and conditions set forth in this Section shall survive
the termination of this Agreement.
a. Reuse of Documents. All documents, including but not limited to,
drawings, specifications, and data, or programs stored electronically or otherwise,
prepared by the Engineer and its independent contractors and associates pursuant to this
Agreement or related exclusively to the Services described herein shall be owned by the
City and may be reused by the City for any reason or purpose at any time. However, the
City agrees that the aforesaid documents are not intended or represented to be suitable
for reuse by the City or others on any undertaking other than the Work outlined in this
Agreement. Any reuse for an undertaking other than for the Work without verification or
adaptation by the Engineer, or its independent contractors and associates, if necessary,
to specific purposes intended will be at the City's sole risk and without liability or legal
exposure to the Engineer.
b. Ownership of Documents. The City and the Engineer agree that upon
payment of fees due to the Engineer by the City for a particular design, report, inventory
list, compilation, drawing, specification, model, recommendation, schedule or otherwise,
said design, report, inventory list, compilation, drawing, specification, technical data,
recommendation, model, schedule and other instrument produced by the Engineer in the
performance of this Agreement, or any Work hereunder, shall be the sole property of the
City, and the City is vested with all rights therein. The Engineer waives all rights of
copyright in said design, report, inventory list, compilation, drawing, specification,
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technical data, recommendation, model, schedule and other instrument produced by the
Engineer in the performance of this Agreement, and hereby assigns and conveys the same
to the City whether in the possession or control of the Engineer or not.
c. Preexisting Ownership Rights to Documents. Notwithstanding any
provisions to the contrary contained in this Agreement, Engineer shall retain sole
ownership to its preexisting information not produced and paid for by the City under this
Agreement including, but not limited to computer programs, software, standard details,
figures, templates and specifications.
15.0 ASSIGNMENT
15.1 Engineer shall not assign or subcontract this Agreement, any Task Order
hereunder, or any rights or any monies due or to become due hereunder without the
prior, written consent of City. Any subcontractors employed by Engineer for any Work
required under this Agreement shall require prior written approval from the City, unless
previously approved in the Task Order. Any attempt to assign or subcontract the
responsibilities and payments under this Agreement without the express prior written
consent of the City shall be grounds for termination of the Agreement.
15.2 If, upon receiving written approval from City, any part of this Agreement is
subcontracted by Engineer, Engineer shall be fully responsible to City for all acts and/or
omissions performed by the subcontractor as if no subcontract had been made.
15.3 If City determines that any subcontractor is not performing in accordance
with this Agreement, City shall so notify Engineer, which shall take immediate steps to
remedy the situation.
15.4 If any part of this Agreement is subcontracted by Engineer, prior to the
commencement of any Work by the subcontractor, Engineer shall require the
subcontractor to provide City and its affiliates with insurance coverage as set forth by the
City.
16.0 INDEPENDENT CONTRACTOR
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16.1 At all times during the term of this Agreement, Engineer and any approved
subcontractors shall be considered an independent contractor and not an employee of
the City.
17.0 DEFAULT BY ENGINEER AND CITY'S REMEDIES
17.1 In addition to the City's right to terminate this Agreement for convenience
under Section 18.0 of this Agreement, the City also reserves the right to revoke and
terminate this Agreement for a default and to rescind all rights and privileges associated
with this Agreement, without penalty, based on a default including, but not limited to, any
of the following circumstances, each of which shall represent a default and breach of this
Agreement:
a. Engineer defaults in the performance of any material covenant or condition
of this Agreement and does not cure such other default within thirty (30) calendar days
after written notice from the City specifying the default complained of, unless, however,
the nature of the default is such that it cannot, in the exercise of reasonable diligence, be
remedied within thirty (30) calendar days, in which case the Engineer shall have such time
as is reasonably necessary to remedy the default, provided the Engineer promptly takes
and diligently pursues such actions as are necessary therefor; or
b. Engineer is adjudicated bankrupt or makes any assignment for the benefit
of creditors or Engineer becomes insolvent, or is unable or unwilling to pay its debts; or
c. Engineer has acted grossly negligent, as defined by general and applicable
law, in performing the Services hereunder; or
d. Engineer has committed any act of fraud upon the City; or
e. Engineer has made a material misrepresentation of fact to the City while
performing its obligations under this Agreement; or
f. Engineer has assigned this Agreement or any Task Order without the City's
prior written consent.
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17.2 Notwithstanding the aforementioned, in the event of a default by Engineer,
the City shall have the right to exercise any other remedy the City may have by operation
of law, without limitation, and without any further demand or notice.
17.3 In the event of such termination upon default and breach of this Agreement,
any completed services performed by the Engineer under this Agreement shall, at the
option of the City, become the City's property and the Engineer shall be entitled to receive
equitable compensation for any work completed up to the date of termination. The
Engineer, however, shall not be relieved of liability to the City for damages sustained by
the City by reason of any breach of the Agreement, and the City may withhold any
payments to the Engineer for the purpose of setoff until such time as the amount of
damages due to the City from the Engineer can be determined.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon
written notice to Engineer, terminate this Agreement, without penalty, if: (a) Engineer is in
default pursuant to Section 17.0, Default; (b) the Engineer makes a general assignment
for the benefit of its credits; (c) Engineer fails to comply with any condition or provision
of this Agreement; or (d) Engineer is experiencing a labor dispute which threatens to have
a substantial, adverse impact upon performance of this Agreement, without prejudice to
any other right or remedy City may have under this Agreement.
18.2 In addition, either party may terminate for convenience without penalty at
any time upon fifteen (15) 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 Engineer's
labor force); extraordinary breakdown of or damage to City's affiliates' generating plants,
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their equipment, or facilities; court injunction or order; federal and/or state law or
regulation; or order by any regulatory agency, provided that prompt notice of such delay
and the causes thereof is given by such party to the other and each of the parties hereunto
shall be diligent in attempting to remove such cause or causes. The party affected by
Force Majeure shall make reasonable efforts to reduce the consequences of the Force
Majeure and resume the performance of all relevant obligations as soon as possible after
the termination of Force Majeure. However, such party shall continue to perform other
obligations under this Agreement which have not been affected by such force majeure. If
any circumstance of Force Majeure remains in effect for 60 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.
21.0 HEADINGS
21.1 Paragraph headings are for the convenience of the parties only and are not
to be construed as part of this Agreement.
22.0 SEVERABILITY
22.1 In the event any portion or part of thereof this Agreement is deemed invalid,
against public policy, void, or otherwise unenforceable by a court of law, the parties shall
negotiate an equitable adjustment in the affected provision of this Agreement. The
validity and enforceability of the remaining parts of this Agreement shall otherwise by
fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any term, condition or provision of this Agreement
shall not be considered a waiver of that term, condition, or provision in the future.
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23.2 No waiver, consent, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized
representative of each party hereto.
24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits
to anyone other than City and Engineer.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Engineer warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Engineer, to solicit or
secure this Agreement, and that it has not paid or agreed to pay any person, company,
corporation, individual, or firm, other than a bona fide employee working solely for the
Engineer, any fee, commission, percentage, gift, or other consideration contingent upon
or resulting from the award or making of this Agreement. For the breach or violation of
this provision, the City shall have the right to terminate the agreement without liability
and, at its discretion, to deduct from the contract price, or otherwise recover, the full
amount of such fee, commission, percentage, gift, or consideration.
26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments,
Appendix's and Exhibits attached hereto, constitute the entire agreement between City
and Engineer with respect to the Services specified and all previous representations
relative thereto, either written or oral, are hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal-agent
relationship between the parties and neither party is authorized to, nor shall either party
act toward third persons or the public in any manner which would indicate any such
relationship with the other.
28.0 ATTORNEY'S FEES
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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 City and Engineer each represent that they have both shared equally in
drafting this Agreement and no party shall be favored or disfavored regarding the
interpretation of this Agreement in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be
delivered by hand or mailed, postage prepaid to:
For Engineer:
Kimley Horn and Associates, Inc.
Attention:
Tucker Hunter, P.E.
7341 Office Park Place
Suite 102
Melbourne, FL 32940
(407) 704-0153
For City:
City of Cape Canaveral
Attention: City Manager
100 Polk Avenue
Cape Canaveral, FL 32920
(321) 868-1220 x208 Phone
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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 76828, Florida
Statutes and any other statutes and common law governing sovereign immunity to the
fullest extent possible. Neither this provision nor any other provision of this Agreement
shall be construed as a waiver of the City's right to sovereign immunity under Section
768.28, Florida Statutes, or other limitations imposed on the City's potential liability under
state or federal law. Engineer agrees that City shall not be liable under this Agreement
for punitive damages or interest for the period before judgment. Further, City shall not
be liable for any claim or judgment, or portion thereof, to any one person for over two
hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof,
which, when totaled with all other claims or judgments paid by the State or its agencies
and subdivisions arising out of the same incident or occurrence, exceeds three hundred
thousand dollars ($300,000.00). Nothing in this Agreement is intended to inure to the
benefit of any third party for the purpose of allowing any claim which would otherwise be
barred under the doctrine of sovereign immunity or by operation of law. This paragraph
shall survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY ENGINEER
33.1 Engineer hereby represents and warrants to the City the following:
a. Engineer is duly registered and licensed to do business in the State of
Florida and is in good standing under the laws of Florida, and is duly qualified and
authorized to carry on the functions and operations set forth in this Agreement.
b. The undersigned representative of Engineer has the power, authority, and
legal right to execute and deliver this Agreement on behalf of Engineer.
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34.0 INDEMNIFICATION AND LIMITATION OF LIABILITY
34.1 The Engineer shall, indemnify and hold the City, its elected officials, officers,
employees, and volunteers harmless from any and all claims, injuries, liabilities, damages,
losses, costs or suits, including attorney fees, to the extent caused by the negligence,
recklessness, or intentionally wrongful conduct of the Engineer and other persons
employed or utilized by the Engineer in the performance of this Agreement, including any
Task Order.
The Engineer specifically assumes potential liability for actions brought by the
Engineer's own employees against the City and, solely for the purpose of this
indemnification, the Engineer specifically waives its entitlement, if any, to immunity under
Section 440.11, Florida Statutes. This waiver has been specifically and mutually negotiated
by the parties.
34.2 The indemnity provisions set forth in Paragraphs 34.1 shall survive
termination of this Agreement.
34.3 For other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Engineer expresses its willingness to enter into this
Agreement with the knowledge that the Engineer's recovery from the City to any action
or claim arising from the Agreement is limited to a maximum amount of the sum of any
Agreement amount that is owed by the City for services actually performed by the
Engineer to the City's complete satisfaction, and in no case shall exceed the amount
provided in article 32.1 herein. Nothing contained in this paragraph or elsewhere in this
Agreement is in any way intended either to be a waiver of the limitation placed upon the
City's liability as set forth in Section 768.28 Florida Statutes, or to extend the City's liability
beyond the limits established in said Section 768.28 Florida Statutes; and no claim or
award against the City shall include attorney's fees, investigative costs, expert fees, suit
costs or pre judgment interest.
34.4 PURSUANT TO SECTION 558.0035, FLORIDA STATUTES, AN INDIVIDUAL
EMPLOYEE OR AGENT OF THE ENGINEER MAY NOT BE HELD INDIVIDUALLY LIABLE FOR
ECONOMIC DAMAGES RESULTING FROM NEGLIGENCE UNDER THIS AGREEMENT IF THE
CONDITIONS OF SECTION 558.0035 ARE SATISFIED.
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35.0 ENGINEER'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Engineer's personnel at a construction site,
whether as onsite representatives or otherwise, do not make Engineer or Engineer's
personnel in any way responsible for those duties that belong to City and/or the
construction contractors or other entities, and do not relieve the construction contractors
or any other entity of their obligations, duties, and responsibilities, including, but not
limited to, all construction methods, means, techniques, sequences, and procedures
necessary for coordinating and completing all portions of the construction work in
accordance with the applicable construction contract documents and any health or safety
precautions required by such construction work. Engineer and Engineer's personnel have
no authority to exercise any control over any construction contractor or other entity or
their employees in connection with their work or any health or safety precautions and
have no duty for inspecting, noting, observing, correcting, or reporting on health or safety
deficiencies of the construction contractor(s) or other entity or any other persons at the
site except Engineer's own personnel.
35.2 The presence of Engineer's personnel at a construction site is for the
purpose of providing to City a greater degree of confidence that the completed work will
conform generally to the applicable contract documents and that the integrity of the
design concept as reflected in the contract documents has been implemented and
preserved by the construction contractor(s). Engineer neither guarantees the
performance of the construction contractor(s) nor assumes responsibility for construction
contractor's failure to perform work in accordance with the contract documents. For this
Agreement only, construction sites include places of manufacture for materials
incorporated into the construction work, and construction contractors include
manufacturers of materials incorporated into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of
information compiled and furnished by others, and may not always represent the exact
location, type of various components, or exact manner in which the project was finally
constructed. Engineer is not responsible for any errors or omissions in the information
from others that is incorporated into the record drawings.
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37.0 ADDITIONAL ASSURANCES
37.1 The Engineer for itself and its Sub-consultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual
holding a professional license and performing work under this Agreement is presently
debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded
from participation in any architecture, landscape architecture, engineering, or surveying
activity by any Federal, State, or local governmental commission, department,
corporation, subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual
holding a professional license and performing work under this Agreement, employee, or
agent has employed or otherwise provided compensation to, any employee or officer of
the City;
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;
and
d. The undersigned is authorized to execute this Agreement on behalf of the
Engineer and said signature shall bind the Engineer to this Agreement. No further action
is required by the Engineer to enter into this Agreement other than Engineer's
undersigned representative's execution of the Agreement.
38.0 E-VERIFY.
38.1 Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021, any
City contractors shall register with and use the U.S. Department of Homeland Security's E-
Verify system, https://e-verify.uscis.gov/emp, to verify the work authorization status of all
employees hired on and after January 1, 2021. Engineer must provide evidence of
compliance with section 448.095, Florida Statutes. Evidence shall consist of an affidavit
from the Engineer stating all employees hired on and after January 1, 2021 have had their
work authorization status verified through the E-Verify system and a copy of their proof
of registration in the E-Verify system. Failure to comply with this provision will be a
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material breach of the contract, and shall result in the immediate termination of the
contract without penalty to the City. The Engineer shall be liable for all costs incurred by
the City securing a replacement contract, including but not limited to, any increased costs
for the same services, any costs due to delay, and rebidding costs, if applicable. If the
Engineer utilizes Subcontractors the following shall apply:
a. Engineer shall also require all subcontractors performing work under the
Agreement to use the E-Verify system for any employees they may hire
during the term of the Agreement.
b. Engineer shall obtain from all such subcontractors an affidavit stating the
subcontractor does not employ, contract with, or subcontract with an
unauthorized alien, as defined in section 448.095, Florida Statutes.
c. Engineer shall provide a copy of all subcontractor affidavits to the City upon
receipt and shall maintain a copy for the duration of the Agreement.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed
by their duly authorized representatives as of the date first written above.
CITY: ENGINEER:
CITY OF CAPE CANAVERAL KIMLEY-HORN AND ASSOCIATES, INC.
Bt. '"(2" "frn— By:
Print Name/Title:Ct*'P7445e(r Print Name/Title: {GNAT N�s�lrNY
ATTEST:
"Aft.- -001()' otrz_Ct
By:
is Goforth, ity Clerk
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EXHIBIT A
City Engineer Day-to-Day Services
Scope of Services Required under Section 2.1
Kimley-Horn will serve as the City Engineer to perform day-to-day services required
by the City under Section 2.1 of the Agreement that are described below. Kimley-Horn
will provide qualified staff on an hourly basis to assist the City as needed, either in person
or virtually. Staff will be allocated and directed by a senior Kimley-Horn engineer to meet
the needs of the City for each task assigned. The City's primary point of contact for these
services will remain constant to provide the City with a single point of contact for anything
they need related to the scope of services. Typical tasks will include, but may not be
limited to, the list below:
• Perform the following work primarily with the Community and Economic
Development Department:
o Develop City Code updates
o Advise Staff on engineering related issues including as may be explicitly
required of the City Engineer by the City Code
o Plan and development permit application reviews to ensure compliance
with City, State and Federal Codes/Laws, Rules and/or Regulations (site plan
applications, multi-family, mixed-use, industrial and commercial)
o Site inspections to ensure compliance with City, State and Federal
Codes/Laws, Rules and/or Regulations (site plan applications, multi-family,
mixed-use, industrial and commercial)
o Related written correspondence to City staff
• Perform the following work primarily with the Capital Projects Department:
o Prepare project cost estimates for small projects
o Provide special reports on small projects
• Other work, as needed:
o Coordinate with other consultants/contractors including but not limited to
field surveys, project testing, project implementation
o Minor conceptual design, plans review and professional services for projects
such as roadways, drainage, structural, civil/site planning, surveying,
wastewater, stormwater drainage, sewer, development permit review,
comprehensive planning, Community Redevelopment Agency (CRA), land
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use and zoning, zoning overlay districts, environmental, permitting,
construction management and general project management
o Communicate with City staff
o Attend meetings with boards, public and staff
o Support grant and regulatory permitting activities
Kimley-Horn shall review development plans for compliance with City Codes and
Regulations, but shall not assume responsibility for the content and accuracy of the plans,
which shall remain the sole responsibility of the Engineer of Record. As a representative
for the City, Kimley-Horn shall provide reviews to the City and coordinate directly with
third parties, such as developers, permitees and property owners submitting on a project,
only as directed by the City.
Services Not Provided
The services not provided under this Scope of Service include tasks such as large
infrastructure projects, formal preliminary and final design work, or specialty disciplines.
Basis of Compensation
Compensation to the Consultant for rendering all the identified services shall be
based on the blended hourly rate of$21 5/hour for work performed by either a Principal,
Senior Project Manager, Project Manager, Project Engineer, Analyst (1, 2, or 3), Senior CAD
Designer, or CAD designer inclusive of all administrative overhead including, but not
limited to, administrative, technician and clerical assistance, offsite or home office
overhead, phone and internet charges, copying, and travel to and from Cape Canaveral
to attend site visits and meetings. Invoicing will be completed on a monthly basis and
will specifically identify the costs per task of each service provided.
The blended hourly rate of$215/hour shall remain in effect through September 30,
2024. Thereafter, the blended hourly rate shall be adjusted annually, effective October 1st
of the City's new fiscal year, to reflect increases in the Consumer Price Index- All Urban
Consumers, all items, U.S. South). Specifically, the blended hourly rate shall be adjusted
to reflect the increase in the CPI for the immediately preceding twelve (12) month period
of August to August, and any increase shall be capped at three (3%) percent per year. If
the CPI — All Urban Consumers, all items, U.S. South is discontinued, the City and the
Consultant shall mutually select another index published by the United States
Government or by a reputable publisher of financial and economic indices.
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Schedule
The schedule to perform the Services under this Scope of Services will be mutually
agreed to by the parties as the needs and priorities of the City occur.
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EXHIBIT B
Engineer's Task Order Rate Schedule
SCHEDULE OF HOURLY BILLING RATES
Labor Position/Classification Hourly Rate
Level
Principal _ $350.00 7
Senior Project Manager $310.00
Project Manager $260.00
Project Engineer $240.00
Analyst 3 $210.00
Analyst 2 $185.00
Analyst 1 $165.00
Sr CAD Designer $255.00
CAD Designer $240.00
CAD Technician $130.00
Administrative _ $130.00
Clerical $100.00
The Schedule of Hourly rates may be adjusted by mutual written agreement.
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