HomeMy WebLinkAbout2021 ContractDocuSign Envelope 10: 8188EEA3-M593COE.B27F-DEA5AF165870
NON-EXCLUSIVE ENGINEERING CONSULTING SERVICES AGREEMENT-CITYIMDE
RFQ #21-01: Continuing Engineering Services (RE -BID)
AGREEMENT EFFECTIVE DATE: FEBRUARY 22, 2021
1. Parties:
City of Sebastian, a municipal corporation of the State of Florida, (City).
and
Kimley-Horn and Associates, Inc. (Consultant).
2. Designated Contact Person as to Consultant:
Wayne White, P.E.
Vice President
445 24" Street, Suite 200
Vero Beach, FL 32960
Phone: 772-794-4100
Email: wayne.white@kimley-horn.com
3. Services. Services may Include but are not limited to, preparation of plans, specifications and
estimates of costs for construction projects, detailed studies on specific items, conducting
investigations, and preparation of reports; land surveying activities, construction inspection, and
construction administrations.
Specific scopes of work will be assigned, on an as -needed basis, as individual Work Orders - in the
forth of a Consultant Service Agreement (CSA) - prepared by the Consultant and approved by the
City for each assigned project. Each CSA will be numbered to track the Issuance of a project,
Example: (RFQ#.Consultant-CSA#). i.e., 21.01-KHA-01. Commencement of work is subsequent to
the execution of the CSA and a Notice to Proceed from the City for all or any designated portion of
the CSA and shall be gerfooned and comoleled by the earned upon and specified date within the
CSA and anv allowed Close-out time frame.
NOTE: An added CSA shall be submitted for additional work (i.e., 21-01-KHA-01 ADD7).
4. Term. This agreement is valid for a three (3) year term, with the option to renew for two (2) — one (1)
year terms contingent upon Consultant's performance and budget availability. Proposed changes to
fees shall be communicated, in writing, to the City 90 days prior to agreement expiration. The intent to
renew the agreement will be by written notification to the Consultant by the Procurement Division 60
days prior to agreement expiration.
NOTE: The City, at its sole discretion, reserves the right to exercise this renewal option.
S. Compensation. The CSA shall Include the total compensation. City shall pay Consultant for the
completion of the work, in accordance with EXHIBIT A: Fee Schedule and Company Information
and EXHIBT B: Community Development and Engineering Permit Fees - Engineering Review
(attached and made a part of this Agreement). In accordance with Florida Statutes Section 287.055,
Consultants' Competitive Negotiation Act (CCNA), If the City and Consultant cannot came to an
agreement upon a CSA's negotiated total compensation for a project, then the City will end
negotiations and move on to the next selected Consultant that was solicited from the Library based on
their discipline.
6. Project assignments. The City, at its sole discretion, assign projects amount the selected
Continuing Engineering Services Consultants as the City sees fit. EXHIBIT C: Expertise Areas will
be used to assign projects. The City's decision may be based on project type, project continuity,
available man-hours assigned to City projects by Consultant, and/or special expertise or knowledge
possessed by one of the Consultants that may be pertinent to the particular project. Consultants shall
have no right to appeal or challenge the City's decisions) regarding distribution.
City of Sebastian, Florida / klmley-Horn and Associates, Inc.
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7. COVID-19 Disclaimer. Due to the public health and safely concerns relating to the COVID-19 Virus,
the Stakeholder may, in their sole discretion, unilaterally alter the Term or other terms of the
Agreement(s) or purchase orders) to ensure the safety and welfare of the Stakeholders residents
and employees. No prior written notice shall be necessary to modify the Term pursuant to this
paragraph. Unless otherwise explicitly stated, all other provisions of the Agreement or Purchase
Order shell be binding upon the parties.
8. Notices. All notices between City and Consultant, as required under the Agreement, shall be by
telephone, facsimile, e-mail, mall, or by personal delivery to the respective designated contact person
identified above. Either designated recipient may notify the other, in writing, If someone else is
designated to receive notice.
9. Modification of Agreement The Agreement may only be modified or amended upon mutual written
agreement of City and Consultant. No oral agreements or representations shall be valid or binding
upon City or Consultant. No alteration or modification of the Agreement terms, including substitution
of product, shall be valid or binding against City. Consultant may not unilaterally modify the terms of
the Agreement by affixing additional terms by incorporating such terms onto Consultant's documents
forwarded by Consultant to City for payment. City's acceptance of product or processing of
documentation on fortes furnished by Consultant to City for approval or payment shall not constitute
acceptance of the proposed modification to terms and conditions.
10. City's Project Manager. City shall designate a Project Manager for each assigned project. All work
done by the Consultant shall be subject to the review, inspection and acceptance of the Project
Manager and the City. Any and all technical questions which may arise as to the quality,
completeness and acceptability of work performed, or work to be performed, interpretation of
plans/specifications and all technical questions as to the acceptable fulfillment of the Agreement on
the part of the Consultant, shall be referred to the City Manager who will resolve such questions. All
work shall be subject at all times to inspection and review by the Project Manager and the City.
11. Materials, Services, and Facilities: It is understood that, except as otherwise specifically stated in the
Agreement, Consultant shall provide and pay for all materials, labor, tools, equipment, water, light,
power, transportation, supervision, temporary construction of any nature, and all other services and
facilities of any nature whatsoever necessary to execute, complete, and deliver the Services within the
specified time. The City will provide Consultant with access to the Facilities so as to permit Consultant to
meet its obligations herein.
12. Documentation. Subject to payment of all amounts owed or due to Consultant, all tracings, plans,
specifications, maps, computer files and/or reports prepared or obtained under this Agreement, as
well as all data collected, together with summaries and charts derived there from, will be considered
works made for hire and will become the property of City upon expiration or termination of the
Agreement without restriction or limitation on their use. Upon delivery to City of said documenl(s),
City will become the custodian thereof in accordance with Chapter 119, Florida Statutes. Consultant
will not copyright any material and products or patent any Invention developed under this Agreement.
Copies of these documents are not to be sold or distributed to third parties without the written consent of
City.
13. Change Orders. City may at any time, as the need arises, order changes within the scope of the
services without invalidating the Agreement. If such changes result in an increase or decrease in the
CSA total, or in the time required for performance of the Services, an equitable adjustment shall be
authorized by way of a Change Order (CO).
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14. Insurance. During the term of the Agreement, Consultant, at its sole expense, shall provide insurance
of such a type and with such terms and limits as noted below. Providing and maintaining adequate
insurance coverage is a material obligation of Consultant. Consultant shall provide City a
certificate(s) of insurance, evidencing such coverage. It is the Consultant's responsibility to ensure
that the City has current Certlficate(s) of Insurance at all times during the duration of the agreement,
including renewal terms.
14.1 Minimum Insurance Requirements. The covemges, limits or endorsements required herein protect
the primary interests of City, and these coverage's, limits or endorsements shall In no way be required
to be relied upon when assessing the extent or determining appropriate types and limits of coverage to
protect Consultant against any loss exposures, whether as a result of the Project or otherwise. The
requirements contained herein, as well as Citys review or acknowledgement, is not intended to and
shall not in any manner limit or qualify the liabilities and obligations assumed by Consultant under this
Agreement.
Comprehensive Liability
Professional Liability
(Errors & Omissions)
Automobile Liability
Worker's Compensation
Not less than $1,000,000 Combined Single Limit per each occurrence
Not less than $1,000,000, covering any damages caused by an error,
omission or any negligent acts.
Not less than $500,000 Combined Single Limit
In accordance with Florida Statutes 440, maintain worker's
compensation insurance to the extent required by law for all their
employees to be engaged in work under this Agreement.
14.2 Other Insurance Provisions:
14_2.1 City of Sebastian, its council members, officers, employees and agents are to be covered
as an Additional Named Insured on all policies except Worker's Compensation. The
coverage shall contain no special limitation on the scope of protection afforded to the City,
Its council members, officers, employees and agents. Consultant shall provide a Certificate
of Insurance to City with a thirty (30) day notice of cancellation and/or changes in policy
language, and ten (10) day notice if cancellation is for nonpayment of premium. The
certificate shall indicate if coverage is provided under a "claims made" or "occurrence"
form.
14_,2 22 Consultant has sole responsibility for all insurance premiums and shall be fully and solely
responsible for any costs or expenses as a result of a coverage deductible, co-insurance
penalty, or self -Insured retention: including any loss not covered because of the operation of
such deductible, co-insurance penally, self -insured retention, or coverage exclusion or
limitation.
14_2.3 Consultant's insurance coverage shall be primary insurance as respects the City, its
officials, employees and volunteers. Any insurance or self -Insurance maintained by the
City, its officials, employees or volunteers shall be excess of Consultant's Insurance and
shall be non-contributory.
142.4 For all policies of insurance: Consultant and its insurance canner waive all subrogation
rights against City for all losses or damages that occur during the agreement and for any
events occurring during the agreement period, whether the suit is brought during the
agreement period or not. The City requires General Liability policies to be endorsed with
CG 24 04 Waiver of Transfer of Rights of Recovery Against Others to Us or similar
endorsement, and a WC 00 0313 Waiver of Our Right to Recover from Others for Workers
Compensation coverage.
City of Sebastian, Florida / kimley-Hom and Associates, Inc.
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15. Indemnification. The Consultant shall indemnify and hold the City harmless from any and all
personal injury or property damage claims, liabilities, losses or causes of action which may arise out
of the use and occupancy of the property by the Consultant, its family, associates, Consultants,
agents, employees, customers and attendees. Nothing in this agreement shall be construed as the
City waiving its immunity pursuant to §768.28, at seq., Florida Statutes, or any other sovereign or
governmental immunity. The selected Proposer shall pay all claims and losses in connection
therewith, and shall investigate and defend ail claims, suits, or actions of any kind or nature in the
name of the City, where applicable, including appellate proceedings, and shall pay all costs,
judgments and reasonable attorneys fees which may be incurred thereon. The selected Proposer
expressly understands and agrees that any Insurance protection required by this agreement or
otherwise provided by the selected Proposer shall in no way limit the responsibility to indemnify, keep
and save harmless, and defend the City or its officers, employees, agents, and instrumentalities as
herein provided.
16. Termination of Agreement Either party may terminate this Agreement by giving the other party
thirty (30) days written notice, If either party defaults in the performance of this Agreement or
materially breaches any of its provisions, the non -defaulting party may, at its option, terminate this
Agreement by giving written notification thereof to the defaulting party. In the event of termination,
City will be responsible for compensating Consultant only for those Services satisfactorily completed
or partially completed up to the date of termination. Consultant shall not be endued to compensation
for loss of anticipated profit.
17. Licenses and Certifications. Consultant, or its sub-Consultant(s), shall possess and maintain during
the term of this Agreement any and all licenses required to perform the Services covered under this
Agreement, as stipulated by the State of Florida and The City of Sebastian.
18. Public Records: Consultant will keep and maintain public records required by the City to perform
the service. Upon request from the City's custodian of public records, Consultant will provide the City
with a copy of the requested records or allow the records to be inspected or copied within a
reasonable time and at a cost that does not exceed the cost provided in Chapter 119, Florida Statues,
or as otherwise provided by law. Consultant will ensure that the 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 term of the Agreement and following completion of the
Agreement if Consultant does not transfer the records to the City. Upon completion of the
Agreement, Consultant will transfer, at no cost, to the City all public records in possession of the
Consultant or keep and maintain public records required by City to perform the service. If Consultant
transfers all public records to City upon completion of the Agreement, Consultant shall destroy any
duplicate public records that are exempt or confidential and exempt from public records disclosure
requirements. If Consultant keeps and maintains public records upon completion of the Agreement,
Consultant shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the City's custodian of public records,
in a format that is compatible with the information technology system of the City. If Consultant does
not comply with the City's request for public records, the City shall enforce the provisions of the
Agreement in accordance with the terms of the Agreement and may cancel the Agreement.
IF CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,
FLORIDA STATUTES, TO CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT JEANETTE WILLIAMS, CUSTODIAN OF
PUBLIC RECORDS, AT 1225 MAIN STREET, SEBASTIAN, FL 32958; EMAIL:
jmilliams@cityofsebastian.org; PHONE: 772-388-8215.
bity of Sebastian, Florida I Kimley-Hom and Associates, Inc.
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19. Payment of Payment Requests:
19.1 Prompt Payment. City shall make payment of a payment request in accordance with Chapter
218, Part VII of the Florida Statutes "Local Government Prompt Payment Act" from the date
which a properly received payment request/invoice is recorded as received by City, for Services
completed to the satisfaction of City.
19.2 Form of Request. If the payment request is not received in proper order, City may reject the
payment request within ten (10) business days after the date on which the payment request is
recorded as received by City. City shall provide Consultant with a written notification of the
rejection specifying the deficiency and corrective measures necessary to make the payment
request proper. Upon receipt of a payment request that corrects the deficiency, City shall make
payment in accordance with Chapter 218, Part VII of the Florida Statutes "Local Government
Prompt Payment Act", or reject the payment request, within ten (10) business days after the date
on which the corrected and proper payment request is recorded as received by City.
19.3 Resolution of Payment Request Disputes. In the event of a dispute between Consultant and
City concerning the full or partial payment of a payment request, such disagreement shall be
finally determined by City. If the dispute between Consultant and City involves a portion of a
payment request, the undisputed portion shall be paid by City In a timely manner, as long as the
payment request for the undisputed portion is in proper order. Proceedings to resolve the
dispute will be commenced within forty-five (45) business days after the date the payment
request in dispute was recorded as being received by City. The proceedings may include
meetings between the parties, telephone conferences or such other measures to clarify the
dispute and attempt to resolve the problem; they will be concluded by a final written decision by
City within sixty (60) business days after the date on which the payment request was recorded
as being received by City. Such procedures do not constitute an administrative proceeding that
prohibits a court from deciding de novo any action arising out of the dispute.
19.4 Payments to Sub -Consultants. When Consultant receives from City any payment for Services
covered under the Agreement, Consultant must pay such moneys received to each sub -
Consultant or supplier in proportion to the percentage of the Services completed by each sub -
Consultant or supplier within ten (10) business days after Consultant's receipt of the payment. If
Consultant receives less than full payment, then Consultant shall be required to disburse only
the funds received on a pro rate basis to its sub -Consultants and suppliers, each receiving a
prorated portion based on the amount due on the payment. If a sub -Consultant receives
payment from Consultant for labor, services or materials furnished by sub -Consultants or
suppliers hired by the sub -Consultant, the sub -Consultant must remit payment due to those sub -
Consultants or suppliers within seven (7) business days after the sub -Consultant's receipt of
payment from Consultant.
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20. Warranties
20.1 Warranty of Ability to Perform. Consultant warrants that, to the best of its knowledge, there
are no pending or threatened actions, proceedings, Investigations, or any other legal or financial
conditions, that would in any way prohibit, restrain, or diminish Consultant's ability to satisfy its
obligations under the Agreement.
20.2 Warranty Against Defects In Workmanship. Consultant shall warrant its Services against
defects in materials and workmanship for a minimum period of one (1) year from acceptance of the
Services by City. Should any defects in materials or workmanship appear during the warranty
period, Consultant shall replace the materials or equipment, or repair or re -do the service,
immediately upon receipt of written notice from City, at no additional expense to City. Consultant
shall warrant such replaced materials or equipment, or repaired or re -done Services, for a period of
one (1) year after acceptance of such by City.
20.3 Warranty of Standard Care. In the performance of professional services, Consultant will use
that degree of care and skill ordinarily exercised by other similar professionals in the field under
similar conditions in similar localities. Consultant will use due care in performing its Services and
will have due regard for acceptable professional standards and principles. Consultant's standard
of care shall not be altered by the application, interpretation, or construction of any other
provision of this Agreement. If any of the Services performed by Consultant do not comply with
the foregoing warranties and City notifies Consultant of such, then Consultant shall (at its sole
expense) promptly re -execute the nonconforming Services. All such re -performed Services shall
be performed on a mutually agreed Schedule. Consultant shall and does hereby assign to City
the benefits of any of Consultant's sub consultant's or sub -Consultant's warranties. Such
assignment shall not relieve Consultant of its warranty obligations for performance or standard of
care to City under this Agreement.
20.4 Warranty of Title. Title to any work product furnished by Consultant under the Agreement shall
pass to City to the extent of the payments made for such by City, or on the date that City accepts
the completed Services of Consultant. When title passes to City in accordance with the
Agreement, Consultant warrants that the work product furnished will be free and clear of all
security interests, liens and encumbrances or claims of any party.
21. Additional Terms and Conditions (alphabetically listed):
21.1 Assignment. Nairher City her Consultant shall sell, assign or transfer any of its rights, duties or obligagons untler the
Agreement without the prior written consent of the other Party. In Inc event of any assignment, Consultant remains
secondarily liable for performance of the Agreement, unless City expresslywaives such scctrdary liability.
21.2 Bankruptcy or insolvency. Consultant shall promptly notify City in writing of Me filing of any voluntary or Involuntary
petition for bankruptcy ancilor of any insolvency of Consultant a any of Its sub-0onsultaMs who are involved in the
provision of the Services under this Agreement.
21.3 Compliance with Lawn. Consultant shall comply with all laws, rules, codes, ordinances, and licensing requirements that
are applicable to the conduct of its business, including those of Lou, State and Federal agencies having jurisdiction and
authority. These laws, shall include, but not he limited to, Chapter 287 of the Fonda Statutes, the Undone Commercial
Code, the Immigration and Nationalisation Act, titre Americana with Disabilities Act, the United Slates Occupational
Safety and Health Act, the United States Environmental Protection Agency, the State of Florida Department of
Environmental Protection, and all prohibitions against discdminatlan on the basis of race, religion, sex, creed, national
origin, handicap, mortal stalus, sexual orientation, gentler identity or expression or veteran's states. Violation of such
laws shall be grounds for lamination of the Agreement.
21.4 Correction of Services. Consultant shell promptly remove from the premises all Services rejected by City far failure to comply
with the Agreement, whether incorporated Into the Project or not, and Consensus shall promptly replace and re -execute the
Services m so cediance with the Agreement, school additional Misers, to City, ant shall bearma expense of malting good all
Sciences of other Consultants work destroyed or damaged by such removal or replasmshL All removal and replacement of
services all be done at Consultants expense. if Consultant does rot take action to remove soon rejected Services within
ten (10) calendar days after receipt a written re l from City. City may remove surM Services on Men awn antl share the
materials M Me expense of Consultant.
215 City Funds. II sufficient funding is not available for Consultant to complete the Services, City reserves the night to modify
the times and conditions of the Agreement to change the Scope of Services to reduce the cast to match any available
funding. If such modification to the Scope of Services are not feasible, or if funding has been totally exhausted our to
Consonant's completion of its Services, the Agreement shall be terminated on terms reasonably acceptable to both
parties. Additionally, In accordance with Section 216.347, Florida Statutes, and as provided herele, Consultant may not
spend any City funds torthe purpose of lobbying the legislature, or local, state or federal agencies.
City of Sebastian, Florida / Kimley-Horn and Associates, Inc.
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21.6 Discriminatory Vendor. Consultant certifies that they am not subject to Section 287.134 (2)(a) which spedges that an
entity or aglliafe who has been placed on the discriminatory vendor list may not submit a bidlbid on an agreement to
provide any goods or services to a public entity, may net submit a BldBid on an agreement with a public entity for the
construction or repair of a public building or public work, may not be awarded or perform work as a Consultant, supplier,
subConsultant, or consultant under an agreement wild any Public ently, and may not lmneact business with public
entity.
21.7 Dispute Resolution. For any dispute concerning per(mmance of the Agreement, which includes without Ilmitation
controversies based upon breach of agreement, mistake, misrepresentation, ar other cause for agreement modification
or rescission, City shall attempt to reach a mutual agreement as Io the settlement and resolution of the dispute with
Consultant The City Manager or designee's decision upon all claims, questions, and disputes shall be final, conduave,
antl binding.
Adjustments of compensation and contract time because of any major changes In the work that might became necessary
or be deemed as the work progresses shall be renewed by the Cilys assigned Project Manager and will require Met a
Change Older be processed in accordance with the Cltys legal ark administrative procedures. If the Consultant tloes
not concur in the Judgment of Me Project Manager, it shall present written objections to the City Manager, who shall
make a decision, and the Consultant shall ablds by the City Managers derision. The decision Shan be final and
conducive.
21 B Disposal of Waste&. Consultant shall haddle any waste materials generated in me perhamance of the Services in fall
compliance with all laws, regulations, ark requirements of all governmental authorities antl those of City. Consultant
shall use only disposal facilities which have proper permits and am in full compliance with all Laws. Consultant agrees
that City has the fight to reject, for any reason, Consultant's use of any particular disposed fadliry. All unusable materials
and came shall be disposed of In an appropriate manner.
Consultant shall reatare In an acceptable manner or replace all property, both public and private, which has been
displaced or damaged by the Consultant during the execution of me work. Consultant shall leave the Worksile
unobstructed and in a neat and presentable condition. The lam °pmpedy' shall Include, but is not limited to, mads,
sidewalks, curbs, driveways, walls, fences, landscaping, awnings, utilities, footings and drainage structures.
21.9 Electronic Slgnature(s). Consultant, If and by offering an electronic signature in any form whatsoever, will accept and
agree to be bound by said aleatoric signature to all tons and conditions of this Agreement. Further, a duplicate or copy
of the Agreement that contains a dupllcated or non -original signature will be treated me same as an original, signed copy
of this original Agreement for all purposes.
21.10 Employees, Sub -Consultants antl Agents. All Consultant employees, subConsultants, and agents performing any of
the Services under the Agreement shell be property lralned to most or exceed any specified Waning qualifications. Upon
request. Consultant shall furnish a copy of modification or other proof of qualification. All employees, subConsultants,
and agents of Consultant must comply with all security and adminidmdve requirements of City. City may conduct, and
Consultant shall cooperate In, a security background check or otherwise assess any employee, sub -Consultant, and
agent of Consultant. City may refuse access to, or remains replacement of, any of Consultant's employee, sub
Consultant and agent for cause, including, but not limited to, technical or training qualifications, quality of services,
change In security status, or noncompliance with City's security or omen requirements. Such refusal shell not relieve
Consultant of Its obligation to perform all Services In compliance with the Agreement. City may reject and bar from any
facility for cause any of Consultant's employees, sub -Consulters, or agents. City shall have the tight to review and
eppmve any sub -Consultant wed by Consultant Consultant shall be fully responsible to City for the acts and omissions
of its subCansuftanb, and parsons directly or indirectly employed by them. It is Consultant's responsibility to ensure that
their sub-0om. t rfls are property licensed to do business in Me Slate of Florida and City of Sebastian, as required by
law.
All workmen must have sufficient knowledge. skill and experience to property perform the work assigned to them. All
vestment must have proper FDOT safely vest or safety ships during any mowing, slanging of MOT or clean-up operation
21.11 Environmental seems. All notifrations regarding environmental issues or requirements shall be sent immediately to
City's Conlact Person. Unless directed olhevdse by City, Coraultant Is not to contact any local, slate or federal
governmenfel agencies concerning enviranmenal issues involving me Project Site,
21.12 Equal Employment Opportunity. Consultant shell not discriminate on the basis of two, color, sex, age, national origin,
religion, and disability a handicap in aaartlarnce with me Provisions of TWO VI of me Civil Rights Ad of 1984 (42 U.S.C.
§ 2000 et she ), Title "I of hire Civil Rights Ad of 1958 (42 U.S.C. § xAt of say.), Florida CMI Rights Act of 1992 (§
760.10 J sse .h This 41 CFR Pan 80 for con handai with Executive Orders 11240 and 11375, Title 49 CFR 23 and Title
49 CFR 26 for Disadvantaged Business Enterprises, Age Discrimination Act of 1975 (42 U.S.C. § 6101, all seen. , Title 49
CFR 21 and Tile 49 CFR 23, Nondlsdlminatloo on me basis of handicap, Title 49 CFR 27, Amencens with Diaablll0ea
Act of 1990 (42 U.S.C. 12102, et seq.), Federal Fair Labor Standards Act (29 U.S.C. § 201, at seyJ, and any other
Federal and State dieaiminatlon statutes. Consultant shell fumish pertinent infarnation regarding its employment
policies and practices as wall as those of their propose! sub-Consubants as the State of Florida Department of
Trensporlefon, the Secretary of Labor, or City may requim. The above shag be required of any sub -Consultant hired by
Consultant. All Equal Employment Opportunity requirements shall be included in all non-exempt sub -agreements
entered Into by Consultant. Sub-agreemerst entered Into by Consultant shall also Include all other applicable labor
provisions. No sub -agreement shall be awarded to any noncomplying sub -Consultant. Additionally. Consultant shall
Insert In Its suarogreements a clause requiring sub -Consultants to Include these previsions in any lower tier sub.
agreements that may In turn be made. Consultant shall comply with all state laws and local ordinances.
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21.13 Force velours Event. Neither party shall be conslderad to be In default In the performance of Its obligations under this
Agreement, except obligations to make payments with respect to amounts already accrued, to tier extent that
Performance of any such obligations Is prevented or delayed by any cause, aided, or future, which is beyond the
reasonable control, and not a mutt of the fault or negligence of, the affected party (a "Force Maleure Evenr). If a party is
prevented or delayed in the performance of any such obligations by a Force Majeure Event, such party shall immediately
provide notice to the other party of the circumstances preventing or delaying performance and the expected duration
thereof. Such notice shall be examined! in writing as soon as reasonably possible. The party so affected by a Force
Majeum Event shall endeavor, to the extent reasonable, to remove the charades which prevent performance and shall
resume performance of its obligations as soon as reasonably Pac0cable. A Force Meleore Event shall Include. but not
be limited to note of clvn w military authority (including courts or mandatory agencies), act of God (excluding normal or
seasonal weather conditions), war, dot, or insurrection. Inability to obtain required permits or licenses, hurricanes an
severe floods.
21.14 Governing Law and Venue. The Agreement shall be governed in accordance with the laws of the State of Florida. In
the event of litigation with respect to the obllgalcn of the paNes to the Agreement, the jurisdiction and venue of such
action shall be an appropriate State Court In Indian River County. Florida,
21.15 Governmental Restrictions. If Consultant Donee that any governmental restrictions have been imposed that require
alteration of the materials used. the quality, workmanship or Performance of the Services offered under the Agreament
Consultant shall immediately notify City In writing, indicating the specific restriction. City reserves the fight and the
complete discrellon to accept any such situation or to cancel the Agreement al no further expense to City.
21.16 Immigration and Nationality Act: Consultant shall comply with on immigration laws as oWined in 8 DSC a 1324a -
tinr�qvM1il er�r77rry�pyyrt�l t of alone City will not Intentionally award City agreements to any Consultant who knowingly
eml)loya unduifiorized Alien workers. Any violation of the employment provisions oulnned In me Immigration and
Nationality Ad throughout me term of any Agreement with City may result in immediate termination of the Agreement
City will consider the employment of unauthmma aliens a violation of Section 274A (a) of the Immigration an
Nationality Act Such violation will be cause for unilateral canceltatia of the Agreement by City, If Consultant knowingly
employs unauthorized aliens.
21,17 Inspection, Performance. Supervision. City reserves the right to inspect the Services previtletl by Consultant whether
partially or fully completed, at any time, as deemed appropriate by City for the Purpose of ensuring Consultants
performance under the Agreement. Such inspectias Performed by City, shall not be construed as a final approval of
Consultants Service, and shall not relieve Consultant from Its obligations under the Agreement City reserves the right
to Inspired, at any reasonable time with prior notice, Consultants (actin to same conformity of the provision of me
Services with Use Agreement requirements. City reserves the right to Investigate or inspect, at any time, whether the
provision of the Services camplles with the Agreement requirements. Consultant shall at all times during the Agreement
term remain responsive and responsible. Consultant must be prepared, if requested by City, to present evidence of
experience, ability, and financial standing, as well as a statement as to capacity of Consultant for the performance of the
provision of the Services covered under the Agreement This paragraph shall not mean or imply that it is obligatory
upon City to make an investigation either before or after award of the Agreement, but should City elect to do so,
Consultant is not relieved from full all Agamment requirements. Consultant shall supervise and direct the performance
of its Sannces and shall be sdeiy respondble for the means, methods, achniques, sequences, and safely of construction and
operators. Consultant will employ and maintain at the Project Site a qualified supervisor or superme cent who shall have
bean designated In wring by Consultant as the Consultant's representative at the Project Site. The supervisor or
superintendent shall have full authority to act an behalf of Consultant and all cemmunications given do the supervisor or
superintendent shot be as blnding as If given closely to Conatiou l The supervisor of supedrrtendent shall be present on the
Project Site at all times as required to Parton adequate supervision antl coordination of the Consultants Services.
21.18 Lawful Claims and Demands. Should any outstanding claims by sub -Consultants or suppliers incurred in the
performance of the Services menia liza after Cily has made Payment to Consultant. Consultant will indemnify and save
City harmless from such claims. Acceptance by Consultant of payment shall be and shall operate as a release to City of
all claims and all liabilities to Consultant, other man claims in stated amounts as may be specifically excepted by
Consultant for things done or furnished In connection with the prevision of me Services, and for every act and neglect of
City and others relating to or arising out of the provision of the Services cavemd under this Agreement. Any payment,
whether final or otherwise, shall net release Consultant or his spreties from any obligations under the Agreement.
21.19 Non -Funding Clause. In the event sumderd budgeted funs are not available or depleted, City shall notify Consultant of
such occurrence and agreement shall terminate without penalty or expanse to the City.
21.20 Non- odor mans Clause. The Consultant recognizes that due to the nature of the services to be performed under this
Agreement, II is essential that the Work bra completed in a timely manner in accordance with the schedules approved by
the City. Non-parformance/deficieneles as identified by the City to the Consultant shall be addria ed 1. Verbally 2
Writlan Notice. If the deficiency has not been corrected to the satisfaction of the City within the time fame provided. the
City may have the work performed by either its Internal Personnel or a fund pant and charge the cast against payments
due me Consultant Repeated deficiencies may result in the termination of this Agreement.
21.21 Ownership and Copyright. An reports, tracings, plans, specifications, field books, survey information, maps, contact
documents, and other data developed by the Consultant pursuant to this Agreement. shall be viewed to the City. Said
materials shall bra made available by the Consultant at any time upon request of coo City.
21.22 Permits. The Consultant shall apply for all required! building permits from City of Sebastian and is responsible for any
associated fees.
21.23 Project Site Conditions. Consultant shall be deemed m have examined Project Shots). if applicable and to have
seared full knowledge of an conditions under widen the Services are to be executed and camplaled.
City of Sebastian, Florida / Kimley-Horn and Associates, Inc.
RFQ 21-01 Continuing Engineering Servicas (RE -BID) Page 8 of 9
Dcoul Envelope ID: 8188EEA3 84594COE-B27F-DEA5AF165870
21.24 Relationship. Consultant is an Independent Consultant to City In the provision of the Services under this Agreement and
Is not an employee, agent, joint -venture, or partner of City.
21,25 Remedies. if any event of default occurs, City shall have the right, at the option of City, to pursue all remedies available
at law or equity, including the termination of this Agreement and all rights of Consultant hereunder. Notwithstanding
City's termination of the Agreement, Consultant shall remain liable to City for all claims for damages, costa or altomey's
fees ansing prior to such termination.
21.26 Reuse of Documents. All documents, including but not limited to reports, drawings and specifications, prepared by the
Consultant pursuant to this Agreement, are related exclusively to the services described herein. They are not Intended or
represented to be suitable for use by the City or others on extensions of This project or on any other project, The City's
reuse of any document or drawing shall be at the City's own risk.
21.27 Risk of Lone. Unfil the Services have been accepted by City, risk of lose or damage to any materials, equipment,
supplies or work product, whether partially or fully completed, that are assorlated with the Services shall remain with
Consultant-
21.28 Schedules, Reports and Records. Consultant shall submit to City cost schedules, progress schedules, estimates,
records, reports, and any other data, as mated to the provision of the Services covered under the Agreement
Furthermore, City reserves the right to inspect and audit Consultant's books and records relating to the Agreement, when
deemed appropriate by City. All schedules, reports and records of Consultant, as they relate to the Agreement, shall be
retained by Consultant for a period of three (3) years from the data of final payment untler the Agreement.
21.29 Security and Confidentiality. Consultant shall comply fully with all security procedures of City in the performance of the
Agreement Consultant shall not divulge to third parties any information obtained by Consultant or its agent.,
distributors, renters, sub -Consultants, officers or employees In the course of the provision of the Services without the
written consent of City. However, Consultant shall be permitted to release information to third parties If such information
Is publicly avallable through no fault of Consultant, information that Consultant developed Independently without relying
on City's irdomulion, or information that b otherwise &tamable under State add Federal law as a public record. To
unions confidentiality, Consultant shall are appropriate measures as to Its personnel, agents, and suaConsultants. The
warranties of this paragraph shall survive the Agreesmed.
21.30 Severability. If a mud deems any provision of the Agreement void or unenforceable, that provision shall be enforced
only to the extent that it is not in violation of law or is not otherwise unenforceable and all other provisions shall remain in
full force and effect.
21.31 Survival. All express remesentakers, well Indemnifications, and limitations of liability Included in this Agreement we]
survive completion or termination of the Agreement for any mason.
21.32 Texas. Consultant shall pay ail sales, consumer, use and other similar lazes required to be paid by Consultant In
accordance with the laws add regulations of the State Or Florida which are applicable to the provision of the Services
under The Agreement- City will not pay for any personal property taxes levied on Consultant or for any taxes lowed on
Consultant's employees wages. City Is a poli0cal subdivision of the State of Florida and holds a State of Florida Sales
Tax Exemption Certificate (No. 85-801261 All purchases made by City directly from a dealer, distrbutor or
manufacturer for materials, equipment or sown. ("direct pochaae") instead of through the Consultant are exempt from
sales, consumer, use and other similar faxes.
21.33 Waver. The delay or bull by City to exercise or enforce any of its rights under this Agreement shall not constitute or
be deemed a waiver of City's right thereafter to enforces those rights, nor shell any single or partial exercise d any such
right predutle the City of any otheror further erwri thered or the exercise of any other right.
22. Authority. Each person signing the Agreement mmants that he or she is duly authorized to do so
and to bind the respective party to the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and
year noted above.
KIMLEjY,HORN AND SSOCIATES, INC.: THE CITY OF SEBASTIAN, FLORIDA:
�oaeuagmJM:
BY: DATE: 2 3 BY:I Valk, 'F. , DATE: 2/24/2021 18:16:09 AN
Wayne Whl P.E. Paul €&Awisleaarer
VICE PRESIDENT CITY MANAGER
ATTEST(SEAL):
aRtgie4M81hams, MMC
CITY CLERK
Approved as to form and legality for
mii�nc��a the City of Sebastian only:
E-9 a t V.
CITY ATTORNEY
City of Sebastian, Florida I Kimley-Horn and Associates, Inc.
RFQ 21-01 Continuing Engineering Services (RE -BID) Page 9 of 9