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ENGINEERING PROFESSIONAL SERVICES AGREEMENT (16) ~'" AGREEMENT FOR PROFESSIONAL SERVICES This AGREEMENT is made and entered into on the ,d(5u.. day of ~ . , 2006 by and between the City of Clearwater, Florida and Fowler Associat Ar Itects, Inc. (ARCHITECT). WITNESSETH: WHEREAS the CITY desires to engage the ENGINEER and/or ARCHITECT to perform certain professional services pertinent to such work in accordance with this Agreement; and WHEREAS the ENGINEER and/or ARCHITECT desires to provide such professional_services in accordance with this Agreement; and WHEREAS the CITY selected the ENGINEER and/or ARCHITECT in accordance with the competitive selection process described in Section 287.055 of the Florida StaPJtes, and based on information and representations given by the ENGINEER and/or ARCHITECT in a proposal dated February 2006: NOW, THEREFORE, in consideration of the premises and the mutual benefits which will accrue to the parties hereto in carrying out the terms of this Agreement, it is mutually understood and agreed as follows: 1.0 GENERAL SCOPE OF THIS AGREEMENT The relationship of the ENGINEER and/or ARCHITECT to the City will be that of a professional consultant, and the ENGINEER and/or ARCHITECT will provide the professional and technical services required under this Agreement in accordance with acceptable engineering practices and ethical standards. 2.0 PROFESSIONAL TECHNICAL SERVICES 2.1 It shall be the responsibility of the ENGINEER and/or ARCHITECT to work with and for the CITY toward solutions to engineering larchitectural problems and the approach or technique to be used toward accomplishment of the City's objective for each project or assignment. Expected professional project services shall include, but not be limited to, planning, analysis, design, preparation of construction plans and details, regulatory permitting, preparation of technical specifications, preparation of bid and contract documents and construction management for potential City project areas listed below: · Parks & Recreational facility improvements, including expansion or improvements to existing facilities as well as development of new facilities. · Fire Department facility improvements, including expansion or improvements to existing facilities as well as development of new facilities I I .., · Police Department facility improvements, including expansion or improvements to existing facilities as well as development of new facilities. · Marine & Aviation facility improvements, including expansion or improvem~nts to existing facilities as well as development of new facilities. · Library facility improvements, including expansion or improvements to existing facilities as well as development of new facilities. · Parking facility improvements, including expansion or improvements to existing facilities as well as development of new facilities. · General Services / Solid Waste facility improvements, including expansion or improvements to existing facilities as well as development of new facilities. 2.2 The following lists other work assignments that may be reasonably required under the general scope of this professional agreement: · Land surveys, right-of-way surveys, preparation of right-of-way control surveys, preparation of right-of-way mapping/parcel descriptions/parcel sketches., · Transportation improvement planning and studies, including Project Development & Environment (PD&E) studies. · Appraisals of land under consideration for acquisition by the City. · Review and assessment of the applicability of design/build contracts for various City improvements. · Development/preparation of grant applications for City projects. · Preparation and implementation of public involvement programs, including graphics powerpoint presentation, slides, handouts, etc. 2.3 The ENGINEER'S and/or ARCHITECT'S services under this Agreement will be provided under Work Orders. Generally, each Work Order will include the services for a single project or assignment, and it will contain a mutually agreed-upon detailed scope of work, fee, and schedule of performance in accordance with applicable fiscal and budgetary constraints. Total compensation for all services shall not exceed $100,000 per Work Order unless specifically authorized by the City Council. 2.4 The ENGINEER and/or ARCHITECT shall maintain an adequate and competent staff of professionally qualified personnel available to the City for the purpose of rendering the required engineering and/or architect services hereunder, and shall diligently execute the work to meet the completion time established. . 2 , I 2.5 The City reserves the right to enter into contracts with other engineering and/or architect firms for similar services. The ENGINEER and/or ARCHITECT will, when directed to do so by the City, coordinate and work with other engineering and/or architectural firms retained by the City. 3.0 PERIOD OF SERVICES 3.1 The ENGINEER and/or ARCHITECT shall begin work promptly after receipt of a fully executed copy of each Work Order, in accordance with Paragraph 2.3, above. Receipt of a fully executed Work Order shall constitute written notice to proceed. 3.2 If the ENGINEER'S and/or ARCHITECT'S services called for under any Work Order are delayed for reasons beyond the ENGINEER'S and/or ARCHITECT'S control, the time of performance shall be adjusted as appropriate. 3.3 It is the intent of the parties hereto that this Agreement continues in force until five (5) years from the date of execution, subject to the provisions for termination contained herein. Assignments that are in progress at the Contract termination date will be completed by the ENGINEER and/or ARCHITECT unless specifically terminated by the. City. 4.0 INSURANCE REQUIREMENTS See Exhibit "A" attached. 5.0 PROFESSIONAL SERVICES/CONSULTANT'S COMPETITIVE NEGOTIATION ACT (CCNA) - Florida Statutes 287.055 Professional Services requested in this Agreement are within the scope of the practice of architecture, landscape architecture, professional engineering, or registered land surveying, as defined by the laws of the State of Florida. Provisions of F.S. 287.055 apply. 6.0 GENERAL CONSIDERATIONS 6.1 All documents including field books, drawings, specifications, calculations, etc., supplied by the ENGINEER shall become the property of the City. The City acknowledges that such documents are not intended or represented to be suitable for use by the City or to others for purposes other than those for which the documents are prepared. Any reuse of these documents without written verification or adaptation by the ENGINEER and/or ARCHITECT for the specific purpose intended will be at the City's sole risk without liability or legal exposure to the ENGINEER and/or ARCHITECT. 6.2 When authorized, the ENGINEER and/or ARCHITECT shall prepare a final estimate of probable construction costs, following City approval of the bid documents and other pre- bid activities. The City hereby acknowledges that estimates of probable construction costs cannot be guaranteed, and such estimates are not to be construed, as a promise that designed facilities will not exceed a cost limitation. Should the lowest, responsive and 3 I I acceptable bid price received by the City within three (3) months from the date of the City's approval of the bid documents exceed the ENGINEER'S and/or ARCHITECT'S tinal cost estimate by more than ten percent (10%), the ENGINEER and/or ARCHITECT shall perform a detailed evaluation of the low bid. The evaluation will review the bid prices on a line item basis, identifYing areas of disagreement and providing a rationale for the difference. 6.3 The ENGINEER and/or ARCHITECT will provide expert witnesses, if required, to testify in connection with any suit at law. A supplemental agreement will be negotiated between the City and the ENGINEER an/or ARCHITECT describing the services desired and providing a basis for compensation to the ENGINEER and/or ARCHITECT. 6.4 Upon the ENGINEER and/or ARCHITECT'S written request, the City will furnish or cause to be furnished such reports, studies, instruments, documents, and other information as the ENGINEER and/or ARCHITECT and City mutually deem Ilecessary. 6.5 The City and the ENGINEER and/or ARCHTIECT each bind themselves and their successors, legal representatives and assigns to the other party to this Agreement and to the partners, successors, legal representatives and assigns of each other party, in respect to all covenants of this Agreement; and, neither the CITY nor the ENGINEER and/or ARCHITECT will assign or transfer its interest in this Agreement without written consent of the other. 6.6 The ENGINEER and/or ARCHITECT hereby agrees to indemnifY, defend, save and hold harmless the City from all claims, demands, liabilities and suits caused by any negligent act, error or omission of the ENGINEER and/or ARCHITECT, the ENGINEER'S and/or ARCHITECT'S subcontractors, agents, or employees in rendering the professional services called for herein. It is specifically understood and agreed, however, that this indemnification agreement does not cover or indemnifY the City for its own negligence. The ENGINEER and/or ARCHITECT hereby further agrees to indemnifY, defend, save, and hold harmless the City from any and all fines, costs, and expenses caused by, directly or indirectly, with the ENGINEER'S and/or ARCHITECT'S failure to comply with any applicable laws, statutes, ordinances, or government regulations. 6.7 The ENGINEER and/or ARCHITECT agrees not to engage the services of any person or persons in the employ of the City to an allied capacity, on either a full or part-time basis, on the date of the signing of this Agreement, or during its term. 6.8 Key personnel assigned to City projects by the ENGINEER shall not be removed from the projects until alternate personnel acceptable to the City are approved in writing by the City. 6.9 The ENGINEER and/or ARCHITECT shall attach a brief status report on the project(s) with each request for payment. 4 I I ", 7.0 COMPENSATION 7.1 The ENGINEER and/or ARCHITECT shall be compensated for all services rendered under this Agreement in accordance with the provisions of each Work Order, upon presentation of ENGINEER'S and/or ARCHITECT'S invoice. An hourly rate schedule and typical methods of compensation are attached hereto as Exhibit "B". 7.2 Except as may be addressed in the initiating Work Order, the compensation for services shall be invoiced by the ENGINEER and/or ARCHITECT and paid by the City once each month. Such invoices shall be due and payable upon receipt. 7.3 The ENGINEER and/or ARCHITECT agree to allow full and open inspection of payroll records and expenditures in connection with hourly rate and cost plus fixed fee work assignments upon request of the City. 8.0 PROHIBITION AGAINST CONTINGENT FEES The ENGINEER and/or ARCHITECT warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the ENGINEER and/or ARCHITECT to solicit or secure this Agreement and that it has not paid or agreed to pay any persons, company, corporation, individual or firm, other than a bona fide employee working for the ENGINEER and/or ARCHITECT any fee, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement. 9.0 TERMINATION This Agreement may be terminated by either party with seven (7) days prior written notice, in the event of substantial failure to perform in accordance with the tenns hereof by the other party through no fault of the terminating party. If this Agreement is terminated, the ENGINEER and/or ARCHITECT shall be paid in accordance with the provisions of outstanding Work Orders for all work performed up to the date of termination. 10.0 SUSPENSION. CANCELLATION OR ABANDONMENT If the project described in any Work Order is suspended, canceled, or abandoned by the City, without affecting any other Work Order or this Agreement, the ENGINEER and/or ARCHITECT shall be given five (5) days prior written notice of such action and shall be compensated for professional services provided up to the date of suspension, cancellation or abandonment. This Agreement shall be administered and interpreted under the laws of the State of Florida and venue for any legal arising out of this Agreement shall be in Pinellas County. 5 I I 11.0 TERMINATION OF CONVENIENCE Either the City or the ENGINEER and/or ARCHITECT may terminate the Agreement at any time by giving written notice to the other of such termination and specifying the effective date of such termination at least thirty (30) days before said termination date. If the Agreement is terminated by the City as provided herein, the ENGINEER and/or ARCHITECT will be paid for services rendered through the date of termination. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the date and year first above written. NCARB WITNESS: By: ~~ \--:r- Countersigned: CITY OF CLEARWATER ~~ 'Ftank Hibbard Mayor By: ~ ~-o:: William B. Horne, II City Manager Approved as to form: ATTEST: -- /.-- -- ....... Leslie K. Dougall i es Assistant City Attorney - ..-..... 6 1 I ", EXHIBIT "A" RISK MANAGEMENT / INSURANCE REQUIREMENTS FOR AGREEMENTS AND CONTRACTS STATEMENT OF PURPOSE The City of Clearwater enters into agreements and contracts for services and/or products of other parties. Agreements and contracts shall contain Risk Management/Insurance terms to protect the City's interests and to minimize its potential liabilities. Whenever applicable, the following terms shall b~" included in agreements and contracts. CITY DEFINED The term "City" (wherever it may appear) is defined to mean the City itself, its Council, the Community Redevelopment Agency of the City of Clearwater, a Florida governmental agency created pursuant to Part III, Chapter 163, Florida Statutes, its duly appointed officers, or other public bodies, officers, employees, volunteers, representatives and agents. OTHER PARTY DEFINEIl The term "other party" (wherever it may appear) is defined to mean the other person or entity which is a party to an agreement or contract with the City, any subsidiaries or affiliates, officers, employees, volunteers, representatives, agents, contractors, and subcontractors. HOLD HARMLESS The City shall be held harmless against all claims for bodily injury, sickness, disease, death or personal injury or damage to property or loss of use resulting therefrom, arising out of the agreement or contract unless such claims are a result of the City's sole negligence. PAYMENT ON BEHALF OF CITY The other party agrees to pay on behalf of the City, and to pay the cost of the City's legal defense, as may be selected by the City, for all claims described in the "Hold Harmless" paragraph. Such payment on behalf of the City shall be in addition to any and all other legal remedies available to the City and shall not be considered to be the City's exclusive remedy. 7 1 1 " INSURANCE The other party shall provide the following described insurance, except for coverage's specifically waived by the City, on policies and with insurers acceptable to the City. These insurance requirements shall not limit the liability of the other party. The City does not represent these types or amounts of insurance to be sufficient or adequate to protect the other party's interests or liabilities, but are merely minimunl. Except for Workers' Compensation and Professional Liability, the other party's insurance policies shall be endorsed to name the City as an additional insured to the extent of the City's interests arising from this contract or agreement. Except for Workers' Compensation, the other party waives its right of recovery against the City, to the extent permitted by its insurance policies. The other party shall request that its insurers' policies include or be endorsed to include a severability of interest/cross liability provision so the City will be treated as if a separate policy were in existence without increasing the policy limits. The other party's deductibles/self-insured retentions shall be disclosed to the City and may be disapproved by the City. They shall be reduced or eliminated at the option of the City. The other party is responsible for the amount of any deductible or self-insured retention. Workers' Compensation Coverae.e The other party shall purchase and maintain Workers' Compensation Insurance for all workers compensation obligations imposed by state law and employers liability limits of at least $100,000 each accident and 100,000 each employee/$500,000 policy limit for disease. The other party shall also purchase any other coverage's required by law for the benefit of the employees. General. Automobile and Excess or Umbrella Liability Coverae.e The other party shall purchase and maintain coverage on forms no more restrictive than the latest editions of the Commercial or Comprehensive General Liability and Business Auto policies of the Insurance Services office. Minimum limits of $500,000 per occurrence for all liability must be provided, with excess or wnbrella insurance making up the difference, if any, between the policy limits of underlying policies (including employers liability required in the Workers' Compensation Coverage section) and the total amount of coverage required. 8 I I Commercial General Liabilitv If Commercial General Liability coverage is provided: Coveraee "A": Shall include premises, operations, products and completed operations, independent contractors, contractual liability covering this agreement or contract, and broad form property damage coverage's. Coverae:e "8": Shall include personal injury. Coveraee "C": Medical payments are not required. Occurrence Form: The occurrence form of Commercial General Liability must be provided. Comprehensive General Liabilitv If Comprehensive General Liability coverage is provided it shall include at least: · Bodily injury and property damage liability for premises, operations, products/completed operations, independent contractors, and property damage resulting from explosion, collapse or underground (x,c,u) exposures. · Broad Form Comprehensive General Liability coverage, or its equivalent, with at least: $1,000,000.00. · Broad form contractual liability covering this agreement or contract, personal injury liability and broad form property damage liability. Products/Completed Operations Coveraee The other party is required to continue to purchase products contract or agreement, for a minimum of three years (3) beyond the City's acceptance of renovation or construction projects. Business Auto Liabilitv Business Auto Liability coverage is to include bodily injury and property damage arising out of operation, maintenance or use of any auto, including owned, non-owned and hired automobiles and employee non-ownership use. Watercraft/Aircraft Liability If the other party's provision of services involves utilization of watercraft or aircraft, watercraft and/or aircraft liability coverage must be provided to include bodily injury and property damage arising out of ownership, maintenance or use of any watercraft or aircraft, including owned, non- owned and hired. 9 , I Excess or Umbrella Liability Umbrella Liability insurance is preferred, but an Excess Liability equivalent may be allowed. Whichever type of coverage is provided, it shall not be more restrictive than the underlying insurance policy coverage's. CERTIFICATES OF INSURANCE Required insurance shall be documented in Certificates of Insurance that provide that the City shall be notified at least thirty (30) days in advance of cancellation, non-renewal or adverse change. New Certificates of Insurance are to be provided to the City at least fifteen (15) days prior to coverage renewals. If requested by the City, the other party shall furnish complete copies of the other party's insurance policies, forms, and endorsements. The address where all such Certificates of Insurance and policies of insurance, when requested, shall . be sent or delivered is as follows: City of Clearwater Attention: City Clerk P.O. Box 4748 Clearwater, Florida 33758-4748 For Commercial General Liability coverage, the other party shall, at the option of the City, provide an indication of the amount of claims payments or reserves chargeable to the aggregate amount of liability coverage. Receipt of certificates or other documentation of insurance or policies or copies of policies by the City, or by any of its representatives, that indicate less coverage than required does not constitute a waiver of the other party's obligation to fulfill the insurance requirements herein. INSURANCE OF THE OTHER PARTY PRIMARY Insurance required of the other party or any other insurance of the other party shall be considered primary, and insurance of the City shall be considered excess, as may be applicable to claims that arise out of the Hold Harmless, Payment on Behalf of City, Insurance, and Additional Insurance and Certificates of Insurance provisions of this agreement or contract. LOSS CONTROL I SAFETY Precaution shall be exercised at all times by the other party for the protection of all persons, including employees, and property. The other party shall be expected to comply with all applicable laws, regulations, or ordinances related to safety and health and shall make special efforts where appropriate to detect hazardous conditions and shall take prompt action where loss control/safety measures should reasonably be expected. 10 , I \ The City may order work to be stopped if conditions exist that present immediate danger to persons or property. The other party acknowledges that such stoppage will not shift responsibility for any damages from the other party to the City. CONSIDERA TION FOR HOLD HARMLESS/P A YMENT ON BEHALF Applicable to Florida Construction Contracts The other party agrees to accept, and acknowledges as an adequate amount of remuneration, the consideration of $100.00 for agreeing to the Hold Hannless, Payment on Behalf of City, Insurance and Certificates. of Insurance provisions in this agreement or contract. ADDITIONAL INSURANCE FOR REPAIR OR SERVICE OR OTHER CONTRACTS If checked below, the City requires the following additional provisions or types of insurallce for repair or service or other contracts to afford added protection against loss which could affect the work being performed. Commercial General Liabilitv Increased General Aeereeate Limit The minimum commercial general liability general aggregate limit shall be $1,000,000.00 that is greater than the occurrence limit simply because it is an annual aggregate limit. Installation Floater Insurance Installation Floater insurance is to be provided to cover damage or destruction to equipment being installed or otherwise being handled or stored by the other party. The amount of coverage should be adequate to provide full replacement value of the equipment being installed, otherwise being handled or stored on or off premises. All risks coverage is preferred. Motor Truck Careo Insurance If the Installation Floater insurance does not provide transportation coverage, separate Motor Truck Cargo or Transportation insurance is to be provided for materials or equipment transported in the other party's vehicles from place of receipt to building sites or other storage sites. All risks covered are prefelTed. Contractor's Equipment Insurance Contractor's Equipment insurance is to be purchased to cover loss of equipment and machinery utilized in the performance of work by the other party. All risks coverage is preferred. FidelitvlDishonestv Insurance - Coveraee for Emplover Fidelity/Dishonesty insurance is to be purchased to cover dishonest acts of the other party's employees, including but not limited to theft of vehicles, materials, supplies, equipment, tools, etc.; especially property necessary to work performed. 11 I I \ FidelitvlDishonestvlLiabilitv Insurance - Coverae:e for City Fidelity/Dishonesty/Liability insurance is to be purchased or extended to cover dishonest acts of the other party's employees resulting in loss to the City. ADDITIONAL INSURANCE FOR RENOVATION OR CONSTRUCTION CONTRACTS If checked below, the City requires the following types of insurance for renovation or construction contracts, in addition to required coverage's previously cited, including Additional Insurance for Repair or Service or Other Contract. Commercial General Liabilitv Proiect Ae:e:ree:ate Because the Commercial General Liability form of coverage includes an annual aggregate limitation on the amount of insurance provided, a separate project aggregate limit is required by the City for this contract or agreement. Owners Protective Liabilitv For renovation or construction contracts the other party shall provide for the City an Owners Protective Liability insurance policy (preferably through' the other party's insurer) in the name of the City. Builders Risk Builders Risk insurance is to be purchased to cover the property for all risks of loss, subject to a waiver of coinsurance, including coverage of risks indicated in the Installation Floater and Motor Truck Cargo insurance previously described if such coverage's are not separately provided. The Builders Risk insurance is to be endorsed to cover the interests of all parties, including the City and all contractors and subcontractors. The insurance is to be endorsed to grant permission to occupy. PROFESSIONAL LIABILITY. MALPRACTICE AND/OR ERRORS OR OMISSIONS If checked below, the City requires the following terms and types of insurance for professional, malpractice, and errors or omissions liability. X Hold Harmless The following replaces the previous Hold Harmless wording: The City shall be held harmless against all claims for bodily injury, sickness, disease, death or personal injury or damage to property or loss of use resulting therefrom arising out of performance of the agreement or contract, unless such claims are a result of the City's own negligence. 12 , I '. The City shall also be held harmless against all claims for financial lost with respect to the provision of or failure to provide professional or other services resulting in professional, malpractice, or errors or omissions liability arising out of performance of the agreement or contract, unless such claims are a result of the City's own negligence. X Professional LiabilitvlMaloracticelErrors or Omissions Insurance The other party shall purchase and maintain professional liability or malpractice or errors or omissions insurance appropriate for the type of business engaged in by the other party with minimum limits of $1 ,000,000 per occurrence. If a claim's made form of coverage is provided, the retroactive date of coverage shall be no later than the inception date of claims made coverage, unless prior policy was extended indefinitely to cover prior acts. Coverage shall be extended beyond the policy year either by a supplemental extended reporting period (ERP) of as great duration as available, and with no less coverage and. with reinstated aggregate limits, or by requiring that any new policy provide a retroactive date no later than the inception date of claims made coverage. WRITTEN AGREEMENT/CONTRACT Any party providing services or products to the City will be expected to enter into a written agreement, contract, or purchase order with the City that incorporates, either in writing or by reference, all of the pertinent provisions relating to insurance and insurance requirements as contained herein. A failure to do so, may, at the sole discretion of the City, disqualify any party from performing services or selling products to the City provided; however, the City reserves the right to waive any such requirements. 13 , ' Exhibit "B" **** Provision of Payment BASIS FOR PAYMENT The owner shall pay ENGINEER and/or ARCHITECT and ENGINEER and/or ARCHITECT agrees to accept as full compensation for its services (as established by Work Order) compensation as computed by one of the following methods: Method" A" - Costs Times Multiplier Basis - Compensation in the form of actual costs times a multiplier as determined by the following formula: - Actual raw Salary Cost x Multiplier + Subconsultant Cost + Other Direct Costs. Multiplier 3.25 includes fringe benefit rate, overhead, operating margin and profit and is subject to annual review. Subconsultant Costs are actual costs incurred times a factor of 1.00. Actual costs shall be based on billing rates for required labor classifications. Other Direct Costs are actual costs incurred for travel outside of Tampa Bay area, printing, copying, long distance telephone calls, etc., times a factor of 1.00. Method "8" - Lump Sum- Compensation in the form of "lump sum" shall be determined by mutual agreement between the ENGINEER and/or ARCHITECT and the City. The lump sum amount shall be negotiated based upon a scope of services developed by the ENGINEER and/or ARCHITECT and approved by the City. . 14 , I A VERAGE ESTIMATES FOR ACTUAL DIRECT PAYROLL COST (EXCLUDING OVERHEAD, FRINGE BENEFITS AND OPERATING MARGIN) The estimated hourly rates below represent June, 2006 costs and categories. Periodic changes are anticipated and modification can be made annually upon City and ENGINEER and/or ARCHITECT review. (Note: All rates are hourly salary rates). Job Classification Minimum Rate ($ / hour) Maximum Typical Principal 54.00 60.00 68.00 - Sr. Vice President 55.00 62.00 69.00 Interior Design 24.00 29.00 33.00 Project ArchitectfProiect Manager 30.00 36.00 42.00 , Draft/CAD 21.00 27.00 31.00 Construction Administration 28.00 33.00 41.00 Specification Writer 30.00 36.00 42.00 Cost Estimator 34.00 38.00 43.00 Administrati ve/Clerical 14.00 16.00 19.00 MULTIPLIER: 3.25 15 I I