2005-37^ ~ ^ Kimley-Horn
~ and Associates, Inc.
C7
•
September 6, 2005
Mr. Preston Davis-Public Services Director
City of Clermont
685 West Montrose Street
Clermont, FL 34711
Re: City of Clermont -Sunny Side Drive Drainage Study
Dear Mr. Davis:
^
3404 Southern Trace
The Villages, Florida
32162
With respect to our ongoing Master Services Agreement dated February 9, 2003,
Kimley-Horn and Associates, Inc. ("KHA") is pleased to submit this letter agreement
to provide professional engineering services to the City of Clermont in accordance with
the terms and conditions set forth herein. The scope of services is outlined on the
following pages and is based on our site visits at Sunny Side Drive and our
conversations with you and the City Engineer.
PROJECT UNDERSTANDING
Based on our meeting and site visits, we understand that localized flooding is occurring
along the north side of Sunny Side Drive. Based on our field observations, it appears
that the road has no positive outfall to the south side of Sunny Side Drive and
ultimately into Lake Sunnyside. In addition, off-site runoff from adjacent residential
homes and roadways are also contributing to flooding in this general area.
SCOPE OF SERVICES
TASK 1 -Existing Condition Survev
KHA shall subcontract the services of Florida Geodetic Survey to perform an existing
condition survey of the study area. This shall include cross sections from the lake edge
to 30 ft past the edge of pavement on Sunny Side Drive. Location of existing utilities,
drainage infrastructure, and water level of Lake Sunnyside will be identified.
TASK 2 -Site Evaluation and Recommendation Report
KHA will perform observations at the study area to identify key factors contributing to
• the flooding. The existing conditions survey performed in Task 1 will also be used in
our analysis. Based on the above information, KHA will prepare a report of findings
and identify recommendations to improve these conditions. This report will also have
^
TEL 352 259 2232
FAX 352 259 1584
Mr. Preston Davis, City of Clermont
September 6, 20055, Page 2
~~^ Kimley-Horn
~ and Associates, Inc.
• a preliminary opinion of probable construction costs. KHA will attend one (1) meeting
with the city staff to discuss the report and results.
INFORMATION TO BE PROVIDED BY THE CITY OF CLERMONT
The following information, upon which the Consultant may rely, will be provided to
KHA by the City of Clermont or its representatives:
a) Underground utility and roadway drainage as-builts (if available)
b) Copy of existing TV Video Inspections (if available)
c) Access to the study area for evaluation
SCHEDULE
We will provide our services in an expeditious and orderly manner to meet a schedule
mutually agreed to by the City of Clermont and KHA for the various elements of the
project.
FEE AND BILLING
• We will provide the services described in Tasks 1 through 2 for the lump sum amount
summarized below.
TASK- .,.c t r.:., .. ..
,:~+.~? , ~ ~ <~DESCRIPTION '
FEE,..,
1 Existing Conditions Survey $ 2,665
2 Site Evaluation and Recommendation Report $ 5,150
Direct Expenses (In-House Reimbursable Expenses)-Estimated $ 225
~'~.: ~~~ y~=: ~. ~ _' _• 34~~~k Fees ' :.$; fs040~
Direct reimbursable expenses such as subconsultants, express mail, fees, air travel, out-
of-town mileage, and other direct expenses will be billed at 1.15 times cost. Any
permitting, application, and similar project fees will be paid directly by the Client.
Fees will be invoiced monthly based upon the percent complete of lump sum elements
or for services actually accomplished for hourly rate elements. Payment will be due
within 25 days of the date of the invoice.
CLOSURE
In addition to the matters set forth herein, this agreement shall include, and shall be
subject to, and only to our ongoing Master Services Agreement dated February 9,
• 2003. As used in the Master Services Agreement, the term "the Consultant" shall refer
to Kimley-Horn and Associates, Inc., and the term "the Client" shall refer to the City
of Clermont.
^~~ Kimley-Horn
~ and Associates, Inc.
Mr. Preston Davis, City of Clermont
September 6, 20055, Page 3
• If you concur with all the foregoing and wish to direct us to proceed with the services
set forth herein, please have authorized persons execute both copies of this letter
agreement in the space provided below, retain one copy, and return one copy to us.
Fees and times stated in this agreement are valid for sixty (60) days after the date of
this letter.
We appreciate the opportunity to perform this service for you. Please contact me if you
have any questions.
Sincerely,
KIMLEY-HORN AND ASSOCIATES, INC.
S S. b , P.E.
Senior Vice President
K:\Propasals\Iake\Clermont Sunny Side Drive.doc
Attachment -Standard Provisions
Christopher M. Germana, P.E.
Project Manager
Agreed to thiso1.~ day of~(~ , 2005
. CITY OF CLERMONT
By:
_~
~. A ~20~LI~~Li /'Y/~~ E. ,Mayor
(Print or Type Na e)
Attest:
t ~ ~ ~ (~('~(' y~1 d„ ,Witness
(Prin Tort~ype Name)
Affix Corporate Seal:
•
Mr. Preston Davis, City of Clermont
September 6, 20Q55, Page 4
• KIMLEY-HORN AND ASSOCIATES, INC.
STANDARD PROVISIONS
(1) Consultant's Scope of Services and Additional Services The Consultant's undertaking
to perform professional services extends only to the services specifically described in this
Agreement. However, if requested by the Client and agreed to by the Consultant, the
Consultant will perform additional services ("Additional Services"), and such Additional
Services shall be governed by these provisions. Unless otherwise agreed to in writing, the
Client shall pay the Consultant for the performance of any Additional Services an amount
based upon the Consultant's then-current hourly rates plus an amount to cover certain direct
expenses including in-house duplicating, local mileage, telephone calls, postage, and word
processing. Other duect expenses will be billed at 1.15 times cost. Technical use of computers
for design, analysis, GIS, and graphics, etc., will be billed at $25.00 per hour.
(2) Client's Responsibilities In addition to other responsibilities described herein or
imposed by law, the Client shall:
(a) Designate in writing a person to act as its representative with respect to this Agreement,
such person having complete authority to transmit instructions, receive information, and make
or interpret the Client's decisions.
(b) Provide all information and criteria as to the Client's requirements, objectives, and
expectations for the project including all numerical criteria that are to be met and all standards
of development, design, or construction.
(c) Provide to the Consultant all previous studies, plans, or other documents pertaining to the
project and all new data reasonably necessary in the Consultant's opinion, such as site survey
and engineering data, environmental impact assessments or statements, zoning or other land use
• regulations, etc., upon all of which the Consultant may rely.
(d) Arrange for access to the site and other private or public property as required for the
Consultant to provide its services.
(e) Review all documents or oral reports presented by the Consultant and render in writing
decisions pertaining thereto within a reasonable time so as not to delay the services of the
Consultant.
(f) Furnish approvals and permits from governmental authorities having jurisdiction over the
project and approvals and consents from other parties as may be necessary for completion of
the Consultant's services.
(g) Cause to be provided such independent accounting, legal, insurance, cost estimating and
overall feasibility services as the Client may require or the Consultant may reasonably request
in furtherance of the project development.
(h) Give prompt written notice to the Consultant whenever the Client becomes aware of any
development that affects the scope and timing of the Consultant's services or any defect or
noncompliance in any aspect of the project.
(i) Bear all costs incident to the responsibilities of the Client.
(3) Period of Services Unless otherwise stated herein, the Consultant will begin work timely
after receipt of an executed copy of this Agreement and will complete the services in a
reasonable time. This Agreement is made in anticipation of conditions permitting continuous
and orderly progress through completion of the services. Times for performance shall be
extended as necessary for delays or suspensions due to circumstances that the Consultant does
not control. If such delay or suspension extends for more than six months (cumulatively),
Consultant's compensation shall be renegotiated.
(4) Method of Payment Compensation shall be paid to the Consultant in accordance with
• the following provisions:
(a) Invoices will be submitted by the Consultant to the Client periodically for services
performed and expenses incurred. Payment of each invoice will be due within 25 days of
Mr. Preston Davis, City of Clermont
September 6, 20055, Page 5
• receipt. The Client shall also pay to the Consultant all transaction taxes, if any, whether state,
local, or federal, levied with respect to amounts paid hereunder, including but not limited to
sales tax. The Consultant shall be compensated in U.S. dollars. Interest will be added to
accounts not paid within 25 days at the maximum rate allowed by law. If the Client fails to
make any payment due the Consultant under this or any other agreement within 30 days after
the Consultant's transmittal of its invoice, the Consultant may, after giving notice to the Client,
suspend services under this Agreement until all amounts due are paid in full.
(b) If the Client objects to an invoice, it must advise the Consultant in writing giving its
reasons within 14 days of receipt of the invoice or the Client's objections will be waived, and
the invoice shall conclusively be deemed due and owing.
(c) The Client agrees that the payment to the Consultant is not subject to any contingency or
condition. The Consultant may negotiate payment of any check tendered by the Client, even if
the words "in full satisfaction" of words intended to have similar effect appear on the check
without such negotiation being an accord and satisfaction of any disputed debt and without
prejudicing any right of the Consultant to collect additional amounts from the Client.
(5) Use of Documents All documents, including but not limited to drawings, specifications
and data or programs stored electronically, prepared by the Consultant are related exclusively
to the services descn'bed in this Agreement, and may be used only if the Client has satisfied all
of its obligations under this Agreement. They are-not intended or represented to be suitable for
use, partial use or reuse by the Client or others on extensions of this project or an any other
project. Any modifications made by the Client to any of the Consultant's documents, or any
use, partial use or reuse of the documents without written authorization or adaptation by the
Consultant will be at the Client's sole risk and without liability to the Consultant, and the Client
• shall indemnify, defend and hold the Consultant harmless from all claims, damages, losses and
expenses, including but not limited to attorneys' fees, resulting therefrom Any authorization or
adaptation will entitle the Consultant to further compensation at rates to be agreed upon by the
Client and the Consultant. Any electronic files are provided only for the convenience of the
Client, and use of them is at the Client's sole risk. In the case of any defects in the electronic
files or any discrepancies between them and the hardcopy of the documents prepared by the
Consultant, the hardcopy shall govern. Only printed copies of documents conveyed by the
Consultant may be relied upon. Because data stored in electronic media format can deteriorate
or be modified without authorization of the data's creator, the Client has 60 days to perform
acceptance tests, after which it shall be deemed to have accepted the data transferred.
(6) Opinions of Cost Because the Consultant does not control the cost of labor, materials,
equipment or services furnished by others, methods of determining prices, or competitive
bidding or market conditions, any opinions rendered as to costs, including but not limited to
opinions as to the costs of construction and materials, shall be made on the basis of its
experience and represent its judgment as an experienced and qualified professional, familiar
with the industry. The Consultant cannot and does not guarantee that proposals, bids or actual
costs will not vary from its opinions of cost. If the Client wishes greater assurance as to the
amount of any cost, it shall employ an independent cost estimator. Consultant's services
required to bring costs within any limitation established by the Client will be paid for as
Additional Services.
(7) Termination The obligation to provide further services under this Agreement may be
terminated by either party upon seven days' written notice in the event of substantial failure by
the other party to perform in accordance with the temLS hereof through no fault of the
terminating party, or upon thirty days' written notice for the convenience of the terminating
party. In the event of any termination, the Consultant shall be paid for all services rendered
and expenses incurred to the effective date of termination, and other reasonable expenses
incurred by the ConsulEant as a result of such termination. If the Consultant's compensation is a
fixed fee, the amount payable for services will be a proportional amount of the total fee based
Mr. Preston Davis, City of Clermont
September 6, 20055, Page 6
on the ratio of the amount of the services performed, as reasonably determined by the
Consultant, to the total amount of services which were to have been performed.
(8) Insurance The Consultant is protected by Workers' Compensation insurance,
professional liability insurance, and general liability insurance and will exchange certificates of
insurance upon request. If the Client directs the Consultant to obtain increased insurance
coverage, or if the nature of the Consultant's activities requires additional insurance coverage,
the Consultant will take out such additional insurance, if obtainable, at the Client's expense.
(9) Standard of Care In performing its professional services, the Consultant will use that
degree of care and skill ordinarily exercised, under similar circumstances, by reputable
members of its profession in the same locality at the time the services are provided. No
warranty, express or implied, is made or intended by the Consultant's undertaking herein or its
performance of services, and it is agreed that the Consultant is not a fiduciary with respect to
the Client.
(10) Limitation of Liability In recognition of the relative risks and benefits of the Project to
both the Client and the Consultant, the risks have been allocated such that the Client agrees, to
the fullest extent of the law, and notwithstanding any other provisions of this Agreement, that ~
the total liability, in the aggregate, of the Consultant and the Consultant's officers, directors,
employees, agents, and subconsultants to the Client or to anyone claiming by, through or under
the Client, for any and all claims, losses, costs or damages whatsoever arising out of, resulting
from or in any way related to the services under this Agreement from any cause or causes,
including but not limited to, the negligence, professional errors or omissions, strict liability or
breach of contract or any warranty, express or implied, of the Consultant or the Consultant's
• officers, drrectors, employees, agents, and subconsultants, shall not exceed twice the total
compensation received by the Consultant under this Agreement or $50,000, whichever is
greater. Higher limits of liability may be negotiated for additional fee. Under no
circumstances shall the Consultant be liable for lost profits or consequential damages, for extra
costs or other consequences due to changed conditions, or for costs related to the failure of
contractors to perform work in accordance with the plans and specifications. This Section 10 is
intended solely to limit the remedies available to the Client, and nothing in this Section 10 shall
require the Client to indemnify the Consultant.
(11) Certifications The Consultant shall not be required to execute any certifications or other
documents that might, in the judgment of the Consultant, increase the Consultant's risk or
affect the availability, applicability, or cost of its insurance.
(12) Dispute Resolution All claims by the Client arising out of this Agreement or its breach
shall be submitted first to mediation in accordance with the Construction Industry Mediation
Rules of the American Arbitration Association as a condition precedent to litigation. Any
mediation or civil action by Client must be commenced within one year of the accrual of the
cause of action asserted but in no event later than allowed by applicable statutes.
(13) Hazardous Substances and Conditions
(a) Services related to determinations involving hazardous substances or conditions, as defined
by federal or state law, are limited to those tasks expressly stated in the scope of services. In
any event, Consultant shall not be a custodian, transporter, handler, arranger, contractor, or
remediator with respect to hazardous substances and conditions. Consultant's services will be
limited to professional analysis, recommendations, and reporting, including, when agreed to,
plans and specifications for isolation, removal, or remediation.
(b) The Consultant shall notify the Client of hazardous substances or conditions not
cpntemplated in the scope of services of which the Consultant actually becomes aware. Upon
such notice by the Consultant, the Consultant may stop affected portions of its services until the
Mr. Preston Davis, City of Clermont
September 6, 20055, Page 7
hazardous substance or condition is eliminated. The parties shall decide if Consultant is to
proceed with its services and if Consultant is to conduct testing and evaluations, and the parties
may enter into further agreements as to the additional scope, fee, and terms for such services.
(c) Except to the extent of negligence, if any, on the part of the Consultant in performing
services expressly undertaken in connection with hazazdous substances and conditions, the
Client agrees to hold harmless, indemnify, and defend the Consultant from and against any and
all claims, losses, damages, liability, and costs in any way arising out or connected with the
presence, dischazge, release, or escape of hazardous substances or conditions of any kind, or
environmental liability of any nature, in any manner related to services of the Consultant.
(14) Construction Phase Services
(a) If the Consultant's services include the preparation of documents to be used for
construction and the Consultant is not retained to make periodic site visits, the Client assumes
all responsibility for interpretation of the documents and for construction observation, and the
Client waives any claims against the Consultant in any way connected thereto.
(b) If the Consultant provides construction phase services, the Consultant shall have no
responsibility for any contractor's means, methods, techniques, equipment choice and usage,
sequence, schedule, safety programs, or safety practices, nor shall Consultant have any
authority or responsibility to stop or direct the work of any contractor. The Consultant's visits
will be for the purpose of endeavoring to provide the Client a greater degree of confidence that
the completed work of its contractors will generally conform to the construction documents
prepazed by the Consultant. Consultant neither guarantees the performance of contractors, nor
assumes responsibility for any contractor's failure to perform its work in accordance with the
contract documents.
• (c) The Consultant is not responsible for any duties assigned to the design professional in the
construction contract that are not expressly provided for in this Agreement. The Client agrees
that each contract with any contractor shall state that the contractor shall be solely responsible
for job site safety and for its means and methods; that the contractor shall indemnify the Client
and the Consultant for all claims and liability arising out of job site accidents; and that the
Client and the Consultant shall be made additional insureds under the contractor's general
liability insurance policy.
(15) Assignment and Subcontracting This Agreement gives no rights or benefits to anyone
other than the Client and the Consultant, and all duties and responsibilities undertaken pursuant
to this Agreement will be for the sole benefit of the Client and the Consultant. Time Client shall
not assign or transfer any rights under or interest in this Agreement without the written consent
of the Consultant. The Consultant reserves the right to augment its staff with subconsultants as
it deems appropriate due to project logistics, schedules, or market conditions. If the Consultant
exercises this right, the Consultant will maintain the agreed-upon billing rates for services
identified in the contract, regardless of whether the services are provided by in-house
employees, contract employees, or independent subeonsultants.
(16) Confidentiality The Client consents to the use and dissemination by the Consultant of
photographs of the project and to the use by the Consultant of facts, data and information
obtained by the Consultant in the performance of its services. If, however, any facts, data or
information are specifically identified in writing by the Client as confidential, the Consultant
shall use reasonable care to maintain the confidentiality of that material.
(17) Miscellaneous Provisions This Agreement is to be governed by the law of the State of
Florida. This Agreement contains the entire and fully integrated agreement between the parties
• and supersedes all prior and contemporaneous negotiations, representations, agreements or
understandings, whether written or oral. Except as provided in Section 1, this Agreement can
be supplemented or amended only by a written document executed by both parties. Provided,
however, that any conflicting or additional terms on any purchase order issued by the Client
Mr. Preston Davis, City of Clermont
September 6, 20055, Page 8
• shall be void and are hereby expressly rejected by the Consultant. Any provision in this
Agreement that is unenforceable shall be ineffective to the extent of such unenforceability
without invalidating the remaining provisions. The non-enforcement of any provision by either
party shall not constitute a waiver of that provision nor shall it affect the enforceability of that
provision or of the remainder of this Agreement.
•
•