HomeMy WebLinkAboutBowman Consulting Group LTD. CONTINUING SERVICES AGREEMENT
PROFESSIONAL ENGINEERING AND SURVEYING
THIS CONTINUING SERVICES AGREEMENT ("Agreement") is made and entered
into this 20th day of November 2024, by and between the CITY OF CAPE
CANAVERAL, FLORIDA, a Florida municipal corporation ("City"), located at 100 Polk
Avenue, Cape Canaveral, Florida 32920, and BOWMAN CONSULTING GROUP LTD., a
Delaware corporation ("Consultant"), whose principal address is 4450 W. Eau Gallie
Blvd., Suite 144, Melbourne, FL 32934.
WITNESSETH:
WHEREAS, the City desires to obtain PROFESSIONAL ENGINEERING AND
SURVEYING services from time to time on an as-needed, task-oriented basis; and
WHEREAS, the City has followed the selection and negotiation process set forth
in the Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida
Statutes; and
WHEREAS, the Consultant participated in the selection and negotiation process;
and
WHEREAS, the Consultant is willing to provide such PROFESSIONAL
ENGINEERING AND SURVEYING services to the City under the terms and conditions
stated herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and
conditions herein, this Agreement shall terminate on the fifth (5th) anniversary of the
Effective Date. The Parties shall have the option to extend the term for two (2)additional
one (1) year terms. Any such extension shall only be by written amendment to this
Agreement executed by both parties hereto.
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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 Consultant to provide the PROFESSIONAL
ENGINEERING AND SURVEYING services approved by Task Order by the City and is also
sometimes referred to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall
execute this Agreement, and it shall be the date on which this Agreement shall go into
effect. The Agreement shall not go into effect until said date.
c. "Consultant" shall mean BOWMAN CONSULTING GROUP LTD. and its
principals, employees and 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 the
Consultant or Consultant's independent professional associates and consultants which
are directly related to travel and subsistence at the rates, and under the requirements of,
Section 112.061, Florida Statutes, or any other actual and direct expenses the City agrees
to reimburse by Task Order.
f "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties
pursuant to the procedure outlined in Section 2.0 of this Agreement, and any
amendments thereto approved pursuant to the procedures outlined in Section 3.0
herein, which sets forth the Work to be performed by the Consultant under this
Agreement, and shall include, without the necessity of a cross-reference, the terms and
conditions of this Agreement.
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1.4 Engagement. The City hereby engages the Consultant and the Consultant
agrees to perform the Services outlined in this agreement for the stated fee
arrangement. No prior or present representations shall be binding upon any of the
parties hereto unless incorporated in this Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City may make a request of the Consultant to perform PROFESSIONAL
ENGINEERING AND SURVEYING services on a "task" basis. The Services shall include
those identified in the RFQ under which this Agreement was awarded by the City and
which the Consultant was selected by the City to perform. The City will communicate
with the Consultant, verbally or in writing, a general description of the task to be
performed. If a site visit by the Consultant is needed to generate the scope of document,
the Consultant shall request approval prior to visiting the site. The Consultant will
generate a detailed Scope of Work document, prepare a Schedule, add a Not-to-Exceed
Budget or Lump Sum Fee to accomplish the task with a detailed cost breakdown based
on the hourly rate schedule attached hereto as Exhibit"A," and send the thus developed
"Task Proposal" to the City. The detailed cost breakdown of the lump sum fee or not-to-
exceed budget shall consist of a list of major sub-tasks and a man-hour breakdown for
all work to be performed. The cost breakdown shall include all sub-consultant work and
the Task Proposal shall include the written price proposals from all sub-consultants. The
detailed cost breakdown shall include a line item for Reimbursable Expenses and the list
of the expenses proposed to be eligible for reimbursement. The City reserves the right,
at its discretion, to consider the Task Proposal as part of a formal or informal competitive
bid process before approving or disapproving any Task Proposal.
The City will review the Task Proposal, along with any other task proposals
submitted to the City by other contractors, and if the description, cost and other details
of the Task Proposal are deemed by the City to be in the City's best interests, the parties
will enter into a written "Task Order." The Scope of Services generally to be provided by
the Consultant through a Task Order may include any PROFESSIONAL ENGINEERING
AND SURVEYING services for any City project and may contain written terms and
conditions specific to the authorized Services for the purpose of expanding upon certain
aspects of this Agreement pertinent to such Services to be undertaken thereto. Such
supplemental instructions or provisions shall be applicable only to the Services which are
the subject of the Task Order and shall not be construed as a modification of this
Agreement or any other Task Order. Each Task Order shall at a minimum include: a
detailed description of the Services to be performed; the documents, deliverables and
other items to be prepared by Consultant and delivered to the City; a detailed schedule
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of completion for performance and completion of the Services authorized by Task Order;
and the amount and method of compensation. Task Orders issued hereunder shall be
executed by authorized representatives of the parties, dated and serially numbered.
The City will issue a notice to proceed to the Consultant in the form of a letter
and an executed City purchase order. Upon receipt of the signed Task Order and the
written notice to proceed from the City, the Consultant shall perform the services set
forth in the Task Order. All Services shall be performed in accordance with the terms and
conditions of this Agreement, any applicable Addenda, applicable laws, permits and
other governmental authorizations, and good professional and industry practice for
similar services provided on similar projects of like size and nature at the same time, and
in the event of any conflict in the requirements, standards or criteria of the foregoing, in
accordance with the more stringent requirement unless the City otherwise directs
Consultant in writing. Unless modified in a written instrument executed by authorized
representatives of each of the Parties, the scope of the services to be performed by
Consultant pursuant to a Task Order issued hereunder shall not be construed to exceed
those services specifically set forth therein and this Agreement. Consultant shall be
responsible to procure and maintain all personnel, equipment,tools, apparatus, systems,
software, applications, intellectual property rights and interests,authorizations, consents,
approvals and other items or services necessary to perform the Services and its
obligations, duties and covenants hereunder.
2.2 The City reserves the right, at its discretion, to perform any services related
to this Agreement or to retain the services of other PROFESSIONAL ENGINEERING AND
SURVEYING companies to provide professional services. Further, the City does not
guarantee that any Work will be assigned to Consultant under this Agreement. The City
reserves the right to assign or contract for professional services with any party at its sole
discretion. No provision of this Agreement shall be construed to require the City to
assign any Work or task to Consultant under this Agreement.
2.3 The maximum hourly rate and certain direct charges or unit prices, as
applicable, that can be charged under this Agreement by Consultant, unless otherwise
agreed by the City in writing, are set forth in Exhibit "A" and fully incorporated herein
by this reference.
2.4 No task in which the Consultant is to provide professional services to the
City for a project with an estimated construction cost exceeding 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 The City may make changes in the Services at any time by giving written
notice to the Consultant. If such changes increase (additional services) or decrease or
eliminate any amount of Work, the City and the Consultant will negotiate any change in
total cost or schedule modifications. If the City and the Consultant approve any change,
the Task Order will be modified in writing to reflect the changes;and the Consultant shall
be compensated for said services in accordance with the terms of Section 5.0 herein. All
change orders shall be authorized in writing by the City's and the Consultant'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.
3.3 The performance of Consultant's service under any provision of this
Agreement may be suspended by the City at any time. The City may suspend
Consultant's services hereunder at any time by notice to Consultant. Such suspension
shall be effective upon the date of such notice, and the City shall pay to Consultant all
fees which have become due and payable to Consultant to the effective date of such
suspension provided that such suspension is not due to the breach, negligence, fault or
non-performance by Consultant. The City shall thereafter have no further obligation for
payment to Consultant for the suspended services unless and until the City notifies
Consultant that the suspended services of Consultant are to be resumed. Upon receipt
of written notice from the City that some or all of Consultant's services hereunder are to
be resumed, Consultant shall complete services required hereunder and be entitled to
payment of unpaid compensation remaining under this Agreement for performance of
such resumed services in accordance herewith.
4.0 SCHEDULE
4.1 The Consultant shall perform services in conformance with the mutually
agreed schedule set forth in the negotiated Task Order. The Consultant shall complete
all of said services in a timely manner and will keep the City apprised of the status of
work on at least a monthly basis or as otherwise reasonably requested by the City.Should
the Consultant fall behind the agreed upon schedule, it shall employ such resources so
as to comply with the agreed -upon schedule.
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4.2 No extension for completion of services shall be granted to the Consultant
without the City's prior written consent, except as provided in Sections 3.1 and 19.1
herein.
4.3 Any cost caused by defective or ill -timed services shall be borne by the
party responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
CONSULTANT
5.1 General Services. For basic and additional Services performed by the
Consultant's principals, employees and resident project representatives (and assistants)
pursuant to paragraphs 2.0 and 3.0, the City agrees to pay the Consultant an amount
equal to that agreed upon by the parties for a particular Task Order. However, payment
terms must be consistent with the terms and conditions in this Agreement.To the extent
that the payment terms in any Task Order conflict with the payment terms set forth in
this Agreement, the conflicting provisions of this Agreement shall prevail.
5.2 Additional Services Performed by Professional Associates and
Consultants. For additional Services and Reimbursable Expenses of independent
professional associates and consultants employed by the Consultant to render additional
Services pursuant to paragraphs 2.0 and 3.0, the City agrees to pay the Consultant an
amount equal to that billed the Consultant by the independent professional associates
and consultants. Prior to payment by the City, the Consultant shall submit to the City a
copy of any written invoice received by the Consultant from all independent professional
associates and consultants which clearly evidences the amount billed by the independent
professional associates and consultants for additional Services and any Reimbursable
Expenses.
5.3 Witness Services. For witness or expert services rendered by the
Consultant's principals, employees, resident project representatives (and assistants) and
independent professional associates and consultants on behalf of the City in any
litigation, arbitration or other legal or interested administrative proceeding in which the
City is a named interested party, the City agrees to pay the Consultant or independent
professional associate or consultant, which is used as a witness or expert, an amount
equal to that agreed upon by the party for a particular Task Order.
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.
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5.5 Miscellaneous. Under no circumstances shall actual or direct costs under
this Agreement include costs associated with inefficiency, offsite or home office
overhead, loss of productivity, consequential damages, legal or consulting costs or costs
associated with delays caused in whole or in part by the Consultant.
5.6 Errors and Deficiencies. The Consultant shall not invoice the City or seek
any compensation from the City to correct or revise any errors or deficiencies in the
Consultant's services provided under this Agreement.
5.7 Payment Offsets. To the extent that the Consultant owes the City any
money under this or any other Agreement with the City, the City shall have the right to
withhold payment and otherwise back charge the Consultant for any money owed to the
City by the Consultant.
5.8 Payment not Waiver. The City's payment of any invoice under this
Agreement shall not be construed or operate as a waiver of any rights under this
Agreement or any cause of action arising out of the performance of this Agreement and
the Consultant shall remain liable to the City in accordance with applicable law for all
damages to the City caused by the Consultant's performance of any Services provided
under this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by any delays
in performing the Services under this Agreement and any Task Order are accepted and
assumed entirely by the Consultant, and in no event shall any claim relating thereto for
an increase in compensation be made or recognized. The Consultant shall not make any
claim nor seek any damages of any kind against the City for any delays, impacts,
disruption or interruption caused by any delay. The Consultant's remedy for a delay shall
be an equitable extension of time to perform the Services for each day of such delay that
impacts the critical path of the schedule established under this Agreement or specific
Task Order.
5.10 Acceptance of Payment. Acceptance of final payment by the Consultant
for a specific Task Order shall constitute a release of all claims for payment which the
Consultant may have against the City for that Task Order unless such claims are
specifically reserved in writing and transmitted to the City by the Consultant prior to its
acceptance. Said final payment shall not, however, be a bar to any claims that the City
may have against the Consultant or to any remedies the City may pursue with respect to
such claims.
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5.11 Payment Adjustments. It is agreed that payment by the City of any billing
will not constitute agreement as to the appropriateness of any item and that at the time
of any final audit, all required adjustments will be made and reflected in a final payment.
In the event that such final audit reveals an overpayment to the Consultant, the
Consultant agrees to refund such overpayment to the City within ninety (90) days of
notice of any such overpayment. Such refund shall not constitute a waiver by the
Consultant for any claims relating to the validity of a finding by the City of overpayment.
5.12 Partial Payments. Payment made to the Consultant shall not constitute
acceptance of the work or any portion thereof which is not in accordance with this
Agreement. The City retains the right to pay only that percentage of the total contract
amount that equals the same percentage that work completed bears to the total amount
of work required to be performed under this Agreement. If the City objects to all or any
portion of any invoice, it shall notify the Consultant of the same within five (5) days from
the date 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.
5.13 Subconsultant costs and invoices. Subconsultant costs are the costs and
expenses incurred in connection with subcontracts and consulting agreements entered
into by Consultant with third parties with the City's prior written consent, for
performance of certain of the Services to be performed by Consultant hereunder.
Consultant shall be fully responsible for processing and paying all subconsultant
invoices, and subconsultants are strictly prohibited from directly invoicing the City for
services rendered in furtherance of Consultants obligations under this Agreement.
Administrative surcharges for sub-consultant services are not allowable as and are
excluded from subconsultant costs. Consultant's cost for sub-consultant coordination
must be delineated in the man-hour estimate for the respective task in order for
Consultant to receive reimbursement thereof.
6.0 RIGHT TO INSPECTION
6.1 The City or its affiliates shall at all times have the right to review or observe
the Services performed by the Consultant.
6.2 No inspection, review or observation shall relieve the Consultant of its
responsibility under this Agreement.
7.0 PROGRESS MEETING
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7.1 The City's designated Project Manager may hold periodic progress
meetings on a monthly basis, or more frequently if required by the City, during the term
of any Task Order entered into under this Agreement. The Consultant's Project Manager
and all other appropriate personnel shall attend such meetings as designated by the
City's Project Manager.
8.0 SAFETY
8.1 The Consultant shall be solely and absolutely responsible and assume all
liability for the safety and supervision of its principals, employees and resident project
representatives (and assistants) while performing Services provided hereunder.
9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, the City shall grant the Consultant
reasonable access to the City's premises, records and files for purposes of fulfilling its
obligations under this Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, the Consultant
shall be responsible for providing the types of insurance and limits 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 Consultant 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 Consultant shall maintain comprehensive general
liability insurance in the minimum amount of $1,000,000.00 as the combined single limit
for each occurrence, with a deductible no greater than $5,000.00, unless a higher
deductible is pre-approved by the City Manager, to protect the Consultant from claims
of property damages and personal injury which may arise from any Services performed
under this Agreement, whether such Services are performed by the Consultant or by
anyone directly employed by or contracting with the Consultant.
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c. Automobile Liability. The Consultant shall maintain comprehensive
automobile liability insurance in the minimum amount of $1,000,000 per occurrence
combined single limit for bodily injury, including wrongful death, and property damage,
which may arise from the ownership, use or maintenance of owned and non-owned
automobiles, including rented automobiles, whether such operations be by the
Consultant or by anyone directly or indirectly employed by the Consultant.
d. Workers' Compensation. The Consultant shall maintain, during the life of
this Agreement, adequate Workers' Compensation Insurance and Employers' Liability
Insurance in at least such amounts as are required by law for all of its employees
performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the
requirements herein identified shall be maintained during the term of this Agreement.
Renewal certificates shall be sent to the City thirty (30) days prior to any expiration date.
There shall also be a thirty (30) day advance written notification to the City in the event
of cancellation or modification of any stipulated insurance coverage.The City shall be an
additional named insured on stipulated insurance policies included in article 10.1.b and
10.1.c herein, as its interest may appear, from time to time.
10.3 The insurance required by this Agreement shall include the liability and
coverage provided herein, or as required by law, whichever requirements afford greater
coverage. All of the policies of insurance so required to be purchased and maintained
shall contain a provision or endorsement that the coverage afforded will not be canceled,
materially changed or renewal refused until at least thirty (30) days' prior written notice
has been given to the City, and the Consultant by certified mail, return receipt requested.
All such insurance shall remain in effect until final payment. In the event that the
Consultant shall fail to comply with the foregoing requirement, the City is authorized,
but in no event shall be obligated, to purchase such insurance, and the City may bill the
Consultant. The Consultant shall immediately forward funds to the City in full payment
for said insurance. It is expressly agreed that neither the provision of the insurance
referred to in this Agreement nor the City's acceptance of the terms, conditions or
amounts of 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 Consultant shall cause its insurance carriers, prior to the effective date of
this agreement to furnish insurance certificates specifying the types and amounts of
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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
Consultant in accordance with this Article on the basis of its not complying with the
Agreement, the City shall notify the Consultant in writing thereof within thirty (30) days
of the date of delivery of such certificates to the City. For all Work performed pursuant
to this Agreement, the Consultant shall continuously maintain such insurance in the
amounts, type and quality as required by the Agreement.
10.4 Independent Associates and Consultants. All independent associates
and consultants employed by the Consultant to perform any Services hereunder shall
fully comply with the insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 The Consultant shall comply with all requirements of federal, state and
local laws, rules, regulations, standards and/or ordinances applicable to the performance
of Services under this Agreement.
12.0 REPRESENTATIONS
12.1 The Consultant represents that the Services provided hereunder shall
conform to all requirements of this Agreement and any Task Order, shall be consistent
with recognized and sound PROFESSIONAL ENGINEERING AND SURVEYING practices
and procedures; and shall conform to the customary standards of care, skill, and
diligence appropriate to the nature of the Services rendered by consultants performing
the same or similar services in the same locality at the time the services are provided.
The Consultant shall perform as expeditiously as is consistent with professional skill and
care and the orderly progress of the Services performed hereunder. The Consultant's
services shall be consistent with the time periods established under this Agreement or
the applicable Task Order. The Consultant shall provide the City with a written schedule
for services performed under each Task Order and such schedule shall provide for ample
time for the City to review, for the performance of consultants (if any), and for the
approval of submissions by authorities having jurisdiction over the services. The
Consultant's designated representative shall have the authority to act on the
Consultant's behalf with respect to the Services. In addition, the Consultant's
representative shall render decisions in a timely manner in order to avoid unreasonable
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delay in the orderly and sequential progress of the Services. Except with the City's
knowledge and consent, the Consultant shall not engage in any activity, or accept any
employment, interest or contribution that would reasonably appear to compromise the
Consultants professional judgment with respect to the Services. The Consultant shall
review laws, codes and regulations applicable to the Consultant's Services. The
Consultant's services and design shall comply with all applicable requirements imposed
by all public authorities. The Consultant represents and warrants that it is familiar with,
and accepts that it will perform the Services hereunder in a manner that complies with
all applicable requirements of law, codes, and regulations. The Consultant shall be
responsible for the professional quality, technical accuracy and the coordination of all
plans, studies, reports and other services furnished to the City under this Agreement.
Unless this Agreement is terminated by the City, or terminated by the Consultant for
nonpayment of any proper invoices, or the City exercises its rights to perform the
Services pursuant to Section 2.2 herein, the Consultant shall be responsible for the
satisfactory and complete execution of the Services described in this Agreement and any
Task Order. The Consultant represents that it will carefully examine the scope of services
required by the City in the Task Order, that it will investigate the essential requirements
of the services required by the Task Order and that it will have sufficient personnel,
equipment and material at its disposal to complete the services set forth in the Task
Order in a good professional and workmanlike manner in conformance with the
requirements of this Agreement.
12.2 The Consultant represents that all principals, employees and other
personnel furnishing such Services shall be qualified and competent to perform the
Services assigned to them and that such guidance given by and the recommendations
and performance of such personnel shall reflect their best professional knowledge and
judgment.
12.3 Requirements for sealing all plans, reports and documents prepared by
Consultant or which Consultant causes to be prepared for the City in the performance
of the Services shall be governed by the laws, rules, regulations, and orders of the State
of Florida and the requirements of any regulatory agency,administrative agency or other
governmental authority having jurisdiction over the City.
13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 The Consultant guarantees that all Services performed under this
Agreement shall be free from claims of patent, copyright, and trademark infringement.
Notwithstanding any other provision of this Agreement, the Consultant shall indemnify,
hold harmless and defend the City, its officers, directors, employees, agents assigns and
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servants from and against any and all liability, including expenses, legal or otherwise, for
actual or alleged infringement of any patent, copyright or trademark resulting from the
use of any goods, services or other item provided under this Agreement.
Notwithstanding the foregoing, the Consultant may elect to provide non - infringing
services.
14.0 DOCUMENTS
14.1 Public Records. Pursuant to Section 119.0701, Florida Statutes and other
applicable public records laws, Consultant agrees that any records, documents,
transactions, writings, papers, letters, computerized information and programs, maps,
books, audio or video tapes, films, photographs, data processing software, writings or
other material(s), regardless of the physical form, characteristics, or means of
transmission, of Consultant related, directly or indirectly, to the services provided to the
City under this Agreement and made or received pursuant to law or ordinance or in
connection with the transaction of official business by the City, may be deemed to be a
public record, whether in the possession or control of the City or the Consultant. Said
records, documents, transactions, writings, papers, letters, computerized information
and programs, maps, books, audio or video tapes, films, photographs, data processing
software, writings or other material(s), regardless of the physical form, characteristics, or
means of transmission of Consultant are subject to the provisions of Chapter 119, Florida
Statutes, and may not be destroyed without the specific written approval of the City's
designated custodian of public records.
IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS, THE CITY CLERK, AT (321) 868-1220 x207, CITY CLERK'S OFFICE, 100 POLK
AVENUE, P.O. BOX 326, CAPE CANAVERAL, FL 32920.
Consultant is required to and agrees to comply with public records laws.
Consultant shall keep and maintain all public records required by the City to perform the
services as agreed to herein. Consultant shall provide the City, upon request from the
City Clerk, copies of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided by law.
Consultant shall ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except as authorized by
law for the duration of the Agreement term. Upon completion of the Agreement,
Consultant shall transfer to the City, at no cost, all public records in possession of the
Consultant, provided the transfer is requested in writing by the City Clerk. Upon such
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transfer, Consultant shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. However, if the
City Clerk does not request that the public records be transferred, the Consultant shall
continue to keep and maintain the public records upon completion of the Agreement
and shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the City Clerk, in a format
that is compatible with the information technology systems of the City. Should the City
not possess public records relating to this Agreement which are requested to be
inspected or copied by the City or any other person, the City shall immediately notify
Consultant of the request and the Consultant shall then provide such records to the City
or allow the records to be inspected or copied within a reasonable time. If the Consultant
does not comply with a public records request, the City may enforce this Section to the
extent permitted by law. Consultant acknowledges that if the Consultant does not
provide the public records to the City within a reasonable time, the Consultant may be
subject to penalties under Section 119.10, Florida Statutes. The Consultant
acknowledges that if a civil action is filed against the Consultant to compel production
of public records relating to this Agreement, the court may assess and award against
Consultant the reasonable costs of enforcement, including reasonable attorney fees. All
public records in connection with this Agreement shall, at any and all reasonable times
during the normal business hours of the Consultant, be open and freely exhibited to the
City for the purpose of examination, audit, or otherwise. Failure by Consultant to grant
such public access and comply with public records laws and/or requests shall be grounds
for immediate unilateral cancellation of this Agreement by the City upon delivery of a
written notice of cancellation. If the Consultant fails to comply with this Section, and the
City must enforce this Section, or the City suffers a third party award of attorneys fees
and/or damages for violating Chapter 119, Florida Statutes, due to Consultant's failure
to comply with this Section, the City shall collect from Consultant prevailing party
attorneys fees and costs, and any damages incurred by the City, for enforcing this
Section against Consultant. 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 Consultant's failure to comply with this Section. The terms and conditions
set forth in this Section shall survive the termination of this Agreement.
a. Reuse of Documents. All documents, including but not limited to,
drawings, specifications and data or programs stored electronically or otherwise,
prepared by the Consultant and its independent contractors and associates pursuant to
this Agreement or related exclusively to the Services described herein shall be owned by
the City and may be reused by the City for 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
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in this Agreement. Any reuse for an undertaking other than for the Work without
verification or adaptation by the Consultant, or its independent contractors and
associates if necessary, to specific purposes intended will be at the City's sole risk and
without liability or legal exposure to the Consultant.
b. Ownership of Documents. The City and the Consultant agree that upon
payment of fees due to the Consultant by the City for a particular design, report,
inventory list, compilation, drawing, specification, model, recommendation, schedule or
otherwise, said design, report, inventory list, compilation, drawing, specification,
technical data, recommendation, model, schedule and other instrument produced by the
Consultant in the performance of this Agreement, or any Work hereunder, shall be the
sole property of the City, and the City is vested with all rights therein. The Consultant
waives all rights of copyright in said design, report, inventory list, compilation, drawing,
specification, technical data, recommendation, model, schedule and other instrument
produced by the Consultant in the performance of this Agreement, and hereby assigns
and conveys the same to the City whether in the possession or control of the Consultant
or not.
c. Preexisting Ownership Rights to Documents. Notwithstanding any
provisions to the contrary contained in this Agreement, the Consultant shall retain sole
ownership to its preexisting information not produced and paid for by the City under
this Agreement including, but not limited to, computer programs, software, standard
details, figures, templates and specifications.
15.0 ASSIGNMENT
15.1 The Consultant shall not assign or subcontract this Agreement, any Task
Order hereunder, or any rights or any monies due or to become due hereunder without
the prior, written consent of the City. Any subcontractors employed by Consultant for
any Work required under this Agreement shall require prior written approval from the
City, unless previously approved in the Task Order. Any attempt to assign or subcontract
the responsibilities and payments under this Agreement without the express prior
written consent of the City shall be grounds for termination of the Agreement.
15.2 If upon receiving written approval from the City, any part of this Agreement
is subcontracted by the Consultant, the Consultant shall be fully responsible to the City
for all acts and/or omissions performed by the subcontractor as if no subcontract had
been made.
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15.3 If the City determines that any subcontractor is not performing in
accordance with this Agreement, the City shall so notify the Consultant who shall take
immediate steps to remedy the situation.
15.4 If any part of this Agreement is subcontracted by the Consultant, prior to
the commencement of any Work by the subcontractor, the Consultant shall require the
subcontractor to provide the City and its affiliates with insurance coverage as set forth
by the City.
16.0 INDEPENDENT CONTRACTOR
16.1 At all times during the term of this Agreement, the Consultant and any
approved subcontractors shall be considered an independent contractor(s) and not an
employee(s) of the City.
17.0 DEFAULT BY CONSULTANT AND CITY'S REMEDIES
17.1 In addition to the City's right to terminate this Agreement for convenience
under Section 18.0 of this Agreement, the City also reserves the right to revoke and
terminate this Agreement for a default and to rescind all rights and privileges associated
with this Agreement, without penalty, based on a default including, but not limited to,
any of the following circumstances, each of which shall represent a default and breach
of this Agreement:
a. The Consultant defaults in the performance of any material covenant or
condition of this Agreement and does not cure such other default within thirty (30)
calendar days after written notice from the City specifying the default complained of,
unless, however, the nature of the default is such that it cannot, in the exercise of
reasonable diligence, be remedied within thirty (30) calendar days, in which case the
Consultant shall have such time as is reasonably necessary to remedy the default,
provided the Consultant promptly takes and diligently pursues such actions as are
necessary therefore; or
b. The Consultant is adjudicated bankrupt or makes any assignment for the
benefit of creditors or the Consultant becomes insolvent, or is unable or unwilling to pay
its debts; or
c. The Consultant has acted grossly negligent, as defined by general and
applicable law, in performing the Services hereunder; or
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d. The Consultant has committed any act of fraud upon the City; or
e. The Consultant has made a material misrepresentation of fact to the City
while performing its obligations under this Agreement.
f. The Consultant has assigned this Agreement or any Task Order without the
City's prior written consent.
17.2 Notwithstanding the aforementioned, in the event of a default by the
Consultant, the City shall have the right to exercise any other remedy the City may have
by operation 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 Consultant under this Agreement
shall, at the option of the City, become the City's property and the Consultant shall be
entitled to receive equitable compensation for any work completed to the satisfaction
of the City up to the date of termination. The Consultant, however, shall not be relieved
of liability to the City for damages sustained by the City by reason of any breach of the
Agreement, and the City may withhold any payments to the Consultant for the purpose
of setoff until such time as the amount of damages due to the City from the Consultant
can be determined.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, the City may,
upon written notice to the Consultant, terminate this Agreement, without penalty, if (a)
the Consultant is in default pursuant to Section 17.0 Default; (b) the Consultant makes a
general assignment for the benefit of its creditors; (c) the Consultant fails to comply with
any condition or provision of this Agreement; or (d) the Consultant is experiencing a
labor dispute which threatens to have a substantial, adverse impact upon performance
of this Agreement without prejudice to any other right or remedy the City may have
under this Agreement.
18.2 In addition, either party may terminate for convenience without penalty
at any time upon at least 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.
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19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required
obligations hereunder shall be excused if and to the extent caused by acts of God; fire;
flood; windstorm; explosion; riot; war; sabotage; strikes (with the exception of
Consultant's labor force); extraordinary breakdown of or damage to the City's affiliates'
generating plants, their equipment or facilities; court injunction or order; federal and/or
state law or regulation; order by any regulatory agency; or cause or causes beyond the
reasonable control of the party affected; provided that prompt notice of such delay is
given by such party to the other and each of the parties hereunto shall be diligent in
attempting to remove such cause or causes. If any circumstance of Force Majeure
remains in effect for sixty (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 thereof of this Agreement is deemed
invalid, against public policy, void, or otherwise unenforceable by a court of law, the
parties shall negotiate an equitable adjustment in the affected provision of this
Agreement. The validity and enforceability of the remaining parts of this Agreement shall
otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any 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 the City and the Consultant.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 The Consultant warrants that it has not employed or retained any company
or person, other than a bona fide employee working solely for the Consultant, to solicit
or secure this Agreement, and that it has not paid or agreed to pay any person, company,
corporation, individual or firm, other than a bona fide employee working solely for the
Consultant, any fee, commission, percentage, gift, or other consideration contingent
upon or resulting from the award or making of this Agreement. For the breach or
violation of this provision, the City shall have the right to terminate the agreement
without liability and, at its discretion, to deduct from the contract price, or otherwise
recover, the full amount of such fee, commission, percentage, gift, or consideration.
26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments,
Appendices and Exhibits attached hereto, constitute the entire agreement between the
City and the Consultant 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 attorneys fees, whether at settlement, trial
or on appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be considered an original agreement; but
such counterparts shall together constitute but one and the same instrument.
30.0 DRAFTING
30.1 The City and the Consultant each represent that they have both shared
equally in drafting this Agreement and no party shall be favored or disfavored regarding
the interpretation of this Agreement in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be
delivered by hand or mailed, postage prepaid to:
For Consultant:
BOWMAN CONSULTING GROUP LTD.
Attention: John Boyer
4450 W. Eau Gallie Blvd., Suite 144
Melbourne, FL 32934
(321) 255-5434 Phone
Fax
For City:
City of Cape Canaveral
Attention: City Manager
100 Polk Avenue
Cape Canaveral, FL 32920
(321) 868 -1220 Phone
(321) 868 -1247 Fax
31.2 Either party may change the notice address by providing the other party
written notice of the change.
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31.3 Any Notice given as provided herein shall be deemed received as follows:
if delivered by personal service, on the date so delivered; if delivered to an overnight
courier service, on the business day immediately following delivery to such service; and
if mailed, on the third business day after mailing.
32.0 SOVEREIGN IMMUNITY
32.1 The City intends to avail itself of the benefits of Section 768.28, Florida
Statutes and any other statutes and common law governing sovereign immunity to the
fullest extent possible. Neither this provision nor any other provision of this Agreement
shall be construed as a waiver of the City's right to sovereign immunity under Section
768.28, Florida Statutes, or other limitations imposed on the City's potential liability
under state or federal law, and the cap on the amount and liability of the City for
damages, regardless of the number of claims in tort, equity, or contract, may not exceed
the dollar amount set in section 768.28, Florida Statutes for tort. Consultant agrees that
City shall not be liable under this Agreement for punitive damages or interest for the
period before judgment. Further, City shall not be liable for any claim or judgment, or
portion thereof, to any one person for over two hundred thousand dollars ($200,000.00),
or any claim or judgment, or portion thereof, which, when totaled with all other claims
or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds three hundred thousand dollars ($300,000.00). Nothing
in this Agreement is intended to inure to the benefit of any third party for the purpose
of allowing any claim which would otherwise be barred under the doctrine of sovereign
immunity or by operation of law. This paragraph shall survive termination of this
Agreement.
33.0 CORPORATE REPRESENTATIONS BY CONSULTANT
33.1 The Consultant hereby represents and warrants to the City the following:
a. The Consultant is duly registered and licensed to do business in the State
of Florida and is in good standing under the laws of Florida, and is duly qualified and
authorized to carry on the functions and operations set forth in this Agreement.
b. The undersigned representative of the Consultant has the power, authority,
and legal right to execute and deliver this Agreement on behalf of the Consultant.
34.0 INDEMNIFICATION AND LIMITATION OF LIABILITY
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34.1 The Consultant shall defend, indemnify and hold harmless the City, its
elected officials, officers, employees, agents, and volunteers, from any and all claims,
injuries, liabilities, damages, losses, costs or suits, including attorneys' fees, to the extent
caused by the negligence, recklessness, or intentionally wrongful conduct of the
Consultant and other persons employed or utilized by the Consultant in the performance
of this Agreement, including any Task Order.
The Consultant specifically assumes potential liability for actions brought by the
Consultant's own employees against the City and, solely for the purpose of this
indemnification, the Consultant specifically waives its entitlement, if any, to immunity
under Section 440.11, Florida Statutes. This waiver has been specifically and mutually
negotiated by the parties.
The indemnity provisions set forth in this Section shall survive termination of this
Agreement.
34.2 For other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Consultant expresses its willingness to enter into this
Agreement with the knowledge that the Consultant's recovery from the City to any action
or claim arising from the Agreement is limited to a maximum amount of the sum of any
Agreement amount that is owed by the City for services actually performed by the
Consultant to the City's complete satisfaction, and in no case shall exceed the amount
provided in article 32.1 herein. Nothing contained in this paragraph or elsewhere in this
Agreement is in any way intended either to be a waiver of the limitation placed upon the
City's liability as set forth in Section 768.28 Florida Statutes, or to extend the City's liability
beyond the limits established in said Section 768.28 Florida Statutes; and no claim or
award against the City shall include attorney's fees, investigative costs, expert fees, suit
costs or pre-judgment interest.
34.3 IF APPLICABLE AND PURSUANT TO SECTION 558.0035, FLORIDA
STATUTES, AN INDIVIDUAL EMPLOYEE OR AGENT OF THE CONSULTANT MAY NOT BE
HELD INDIVIDUALLY LIABLE FOR ECONOMIC DAMAGES RESULTING FROM NEGLIGENCE
UNDER THIS AGREEMENT IF THE CONDITIONS OF SECTION 558.0035 ARE SATISFIED.
35.0 CONSULTANTS PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of the Consultant's personnel at a construction site,
whether as onsite representatives or otherwise, do not make the Consultant or the
Consultant's personnel in any way responsible for those duties that belong to the City
and/or the construction contractors or other entities, and do not relieve the construction
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contractors or any other entity of their obligations, duties and responsibilities including,
but not limited to, all construction methods, means, techniques, sequences and
procedures necessary for coordinating and completing all portions of the construction
work in accordance with the applicable construction contract documents and any health
or safety precautions required by such construction work. The Consultant and the
Consultants personnel have no authority to exercise any control over any construction
contractor or other entity or their employees in connection with their work or any health
or safety precautions and have no duty for inspecting, noting, observing, correcting or
reporting on health or safety deficiencies of the construction contractor(s) or other entity
or any other persons at the site except the Consultant's own personnel.
35.2 The presence of the Consultants personnel at a construction site is for the
purpose of providing to the City a greater degree of confidence that the completed work
will conform generally to the applicable contract documents and that the integrity of the
design concept as reflected in the contract documents has been implemented and
preserved by the construction contractor(s). The Consultant neither guarantees the
performance of the construction contractor(s) nor assumes responsibility for
construction contractor's failure to perform work in accordance with the contract
documents. For this Agreement only, construction sites include places of manufacture
for materials incorporated into the construction work, and construction contractors
include manufacturers of materials incorporated into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of
information compiled and furnished by others, and may not always represent the exact
location, type of various components, or exact manner in which the project was finally
constructed. The Consultant is not responsible for any errors or omissions in the
information from others that is incorporated into the record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Consultant for itself and its Sub-consultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual
holding a professional license and performing work under this Agreement is presently
debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any architecture, landscape architecture, engineering, or
surveying activity by any Federal, State, or local governmental commission, department,
corporation, subdivision or agency;
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b. No principal (which includes officers, directors or executive) or individual
holding a professional license and performing work under this Agreement employee or
agent has employed or otherwise provided compensation to, any employee or officer of
the City; and;
c. No principal (which includes officers, directors or executive) or individual
holding a professional license and performing work under this Agreement, employee or
agent has willfully offered an employee or officer of the City any pecuniary or other
benefit with the intent to influence the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the
Consultant and said signature shall bind the Consultant to this Agreement. No further
action is required by the Consultant to enter into this Agreement other than the
Consultant's undersigned representative's execution of the Agreement.
38. CONFLICT OF INTEREST.
a. The Consultant agrees that it will not engage in any action that would create a
conflict of interest in the performance of its obligations pursuant to this Agreement with the
Consultant or which would violate or cause others to violate the provisions of Part Ill, Chapter
112, Florida Statutes, relating to ethics in government and the Consultants Personnel
Policies.
b. The Consultant hereby certifies that no officer, agent or employee of the City
has any material interest (as defined in Section 112.312 (15), Florida Statutes, as over five
percent (5%) either directly or indirectly, in the business of the Consultant to be conducted
here, and that no such person shall have any such interest at any time during the term of this
Agreement.
c. Pursuant to Section 216.347, Florida Statutes, the Consultant hereby agrees that
monies received from the City pursuant to this Agreement will not be used for the purpose
of lobbying the Legislature or any other State or Federal Agency.
39. E-VERIFY.
Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021,any City contractors
(including Consultant) 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. City Contractors must provide evidence of
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compliance with section 448.095, Florida Statutes. Evidence shall consist of an affidavit from
the Contractor 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 material
breach of the Agreement and shall result in the immediate termination of the Agreement
without penalty to the City. The City Contractor 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 City Contractor
utilizes Subcontractors the following shall apply
a. Consultant 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. Consultant 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. Consultant 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: CONSULTANT:
CITY OF CAPE CANAVERAL BOWMAN CONSULTING GROUP LTD.
Todd Morley, City Manager Signature
Print Name Title
ATTEST:
Mia Goforth, City Clerk
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EXHIBIT A
CONSULTANT'S RATE SCHEDULE
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BOWMAN CONSULTING GROUP LTD.
SCHEDULE B - HOURLY RATE
January 2024
CLASSIFICATION HOURLY RATES
Senior Principal $287.00/HR
Principal $270.00/HR
Department Executive $226.00/HR
Senior Project Manager $204.00/HR
Project Manager $174.00/HR
Project Coordinator $100.00/HR
Senior Surveyor $204.00/HR
Engineer I I II I III $113.00/HR I $122.00/HR I $139.00/HR
Planner I | II | III $109.00/HR I $117.00/HR I $152.00/HR
Designer I | II | III $109.00/HR I $117.00/HR I $126.00/HR
CADD Drafter I | II | III $ 78.00/HR I $100.00/HR I $109.00/HR
Construction Inspector $100.00/HR
Landscape Architect I | II | III $109.00/HR I $122.00/HR I $157.00/HR
Senior Environmental Scientist $165.00/HR
Environmental Scientist I | II | III $104.00/HR I $130.00/HR I $157.00/HR
Right of Way Specialist I | II | III $ 83.00/HR I $100.00/HR I $122.00/HR
Survey Technician I | II | III $ 91.00/HR I $109.00/HR I $126.00/HR
Project Surveyor $165.00/HR
Survey Field Crew- 1 Man $130.00/HR
Survey Field Crew- 2 Man $165.00/HR
Survey Field Crew- 3 Man $213.00/HR
3D Scanning Crew $248.00/HR
Survey Field Technician $ 87.00/HR
3D/UAV Modeling Technician $157.00/HR
UAV Operation $278.00/HR
SUE Field Crew- 1 Man $135.00/HR
SUE Field Crew- 2 Man $174.00/HR
SUE Field Crew- 3 Man $226.00/HR
SUE Field Crew- 4 Man $257.00/HR
SUE Utility Coordinator $174.00/HR
SUE Technician I | II | III $104.00/HR I $117.00/HR I $139.00/HR
Machine Control Technician $235.00/HR
Administrative Professional $ 83.00/HR
Remote Sensing Technician 1 111 I III $ 91.00/HR I $109.00/HR | $126.00/HR
Initials: Bowman /Client
Table-Revised Rates for Cape Canaveral Florida