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2016-30 Professional Engineering Services Contract_Engenuity GroupRESOLUTION 2016 -30 C- A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF J NORTH PALM BEACH, FLORIDA, APPROVING A CONTINUING CONTRACT FOR PROFESSIONAL ENGINEERING SERVICES WITH ENGENUITY GROUP, INC. AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE CONTRACT ON BEHALF OF THE VILLAGE; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, in accordance with Section 287.055, Florida Statutes ( "Consultants' Competitive Negotiation Act ") the Village issued a Request for Qualifications from qualified engineering firms for a continuing contract to provide municipal engineering services to the Village on an as needed basis; and WHEREAS, Village Administration established an Evaluation Committee to consider the qualification statements; and WHEREAS, the Committee evaluated the qualification statements and selected all three of the qualified firms that had submitted qualifications statements to make formal presentations to the Village Council; and WHEREAS, at the conclusion of such presentations, the Village Council ranked the three firms in order of preference and directed Village Administration to commence competitive negotiations with Engenuity Group, Inc., the top ranked firm; and WHEREAS, the Village Council wishes to approve a Continuing Contract for Professional Engineering Services with Engenuity Group, Inc. and determines that approval of such contract is in the best interests of the citizens and residents of the Village. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and are incorporated herein. Section 2. The Village Council hereby approves the Continuing Contract for Professional Engineering Services with Engenuity Group, Inc., a copy of which is attached hereto and incorporated herein by reference, and authorizes and directs the Mayor and Village Clerk to execute the Contract on behalf of the Village. Section 3. All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Section 4. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 26TH DAY OF MAY, 2016. (Village Seal) ATTEST: VILLAGE CLERK CONTINUING CONTRACT FOR PROFESSIONAL ENGINEERING SERVICES This Continuing Contract for Professional Engineering Services is made and entered into by the Village of North Palm Beach, a Florida municipal corporation ( "Village ") and Engenuity Group, Inc., a Florida corporation ( "Engineer "), in response to the Village's Request for Qualifications for such services. WHEREAS, in accordance with Section 287.055, Florida Statutes ( "Consultants' Competitive Negotiation Act" or "CCNA "), the Village issued a Request for Qualifications for Professional Engineering Services and solicited statements from qualified professional engineering firms for a continuing contract to provide municipal engineering services on an as needed basis; and WHEREAS, the Village has selected Engineer to provide such professional engineering services and desires to enter into a "continuing contract" within the purview of the CCNA; and WHEREAS, Engineer has considerable expertise and experience in this area and wishes to provide professional engineering services to the Village in accordance with the terms and conditions set forth herein. NOW, THEREFORE, in of the mutual representations and obligations herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Recitals: The foregoing recitals are ratified as true and incorporated herein. Section 2. Representations by Engineer: By executing this Contract, Engineer makes the followed express representations to the Village: A. Engineer is professionally qualified to act as the Village Engineer and provide the professional services outlined in the Request for Qualifications issued by the Village. B. Engineer shall maintain all necessary licenses, permits or other authorizations necessary to act as Village Engineer until the Engineer's duties expressed herein have been fully satisfied. C. Professional services performed by Engineer or Engineer's subcontractors and subconsultants pursuant to this Contract shall comply with all applicable laws, codes and regulations and shall be conducted in a manner consistent Page 1 of 10 with the level of care and skill ordinarily exercised by members of the profession currently practicing within the same locality. Section 3. Scope of Services: A. Engineer shall provide professional engineering services to the Village on an as needed basis. B. During the term of this Contract, the professional services provided by Engineer to the Village shall not include projects for which construction costs exceed two million dollars ($2,000,000.00) or study activities when the fee for such services exceeds two hundred thousand dollars ($200,000.00) as required by the CCNA. C. This Contract is non - exclusive, and the Village specifically reserves the right to seek the services of other engineers or consultants for any matter, notwithstanding the fact that the project or task may fall within the scope of services of this Contract. Section 4. Insurance: A. During the performance of professional services under this Contract, Engineer shall secure and maintain, at its own expense, the following insurance policies: (1) Professional liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence or claim. (2) Workers' compensation and employer's liability insurance for all employees engaged in work pursuant to this Contract in accordance with Florida law. (3) Comprehensive general liability insurance with bodily injury limits of not less than one million dollars ($1,000,000), combined single limit, per occurrence and with property damage limits of not less than one million dollars ($1,000,000) combined single limit, per occurrence. (4). Comprehensive automobile liability insurance for all owned, non - owned and hired automobiles and other vehicles used by Engineer with a one million dollar ($1,000,000) combined single limit for bodily injury and property damage liability per occurrence. B. All liability insurance, with the exception of professional liability, shall specifically provide that the Village is an additional named insured with respect to the required coverages and the operations of Engineer pursuant to this Contract. Page 2 of 10 C. All of the policies of insurance required ,to be purchased and maintained shall contain a provision or endorsement that coverage afforded shall not be canceled, materially changed or renewal. refused until at least thirty (30) calendar days after written notice has been given to the Village by certified mail. D. All of Engineer's subcontractors and subconsultants shall be required to include the Village and Engineer as additional insureds on their general liability insurance policies. E. Neither Engineer nor any of. Engineer's subcontractors or subconsultants shall commence work under this Contract until all insurance coverage required by this section has been obtained and certificates evidencing same are filed with the Village. Section 5. Personnel: A. Engineer shall assign only qualified personnel to perform any of the requested professional services. B. At the time of execution of this Contract, the parties anticipate that the following named key individual will perform the function indicated: Keith B. Jackson, P.E. —Village Engineer C. Engineer has represented that it will utilize the following subcontractors and subconsultants during the term of this Agreement: McMahon & Associates (Natalie Lercari) — Traffic/Transportation Alan Gerwig & Associates Engineering, Inc. (Alan Gerwig) — Structural Isiminger & Stubbs Engineering, Inc. (Charles Isiminger) — Coastal, Marine, Environmental, Ecological . Wayne Villavoso Landscape Architecture, Inc. (Wayne Villavoso) — Land Development Review, Landscape Architecture Florida Technical Consultants, Inc. (James Barton) — GIS Mapping Terracon Consultants, Inc. (Kevin Aubrey) — Geotechnical /Geological D. Should Engineer reassign any functions or duties to new or additional individuals, Engineer shall provide the Village with written notice of any such reassignment or substitution within ten (10) calendar days. The Village has the right to object any subcontractor and subconsultant and in such event, Engineer shall provide a substitute individual or entity for the applicable area of expertise. Page 3 of 10 Section 6. Duties and Obligations of the Village: The Village shall afford Engineer access to any project site as may be reasonably necessary for Engineer to properly perform its services under this Contract and shall provide Engineer with sufficient guidance and input to perform all services contemplated by this Contract in a timely manner. Section 7. Payments: A. Village shall pay Engineer for services performed pursuant to this Contract in accordance with the Fee Schedule attached hereto as Exhibit "A" and incorporated herein by reference or as otherwise agreed to between the Village and Engineer. Engineer shall not bill the Village for calls or communications of a routine basis that relate solely to the status of pending projects or matters. B. As a condition precedent for any payment due under this paragraph, Engineer shall submit monthly, unless otherwise agreed to in writing by the Village, an invoice to the Village requesting payment for services rendered and expenses incurred. (1) Each invoice shall bear the signature of Engineer, which signature shall constitute Engineer's representation to the Village that the services indicated in the invoice have been properly and timely performed, that the expenses included in the invoice have been reasonably incurred, and that all obligations of Engineer covered by prior invoices have been paid in full (unless expressly indicated otherwise). (2) Engineer shall submit detailed time sheets for projects billed on a time and material basis and a written summary of completion for projects billed on a lump sum basis. C. All submittals for payment of per diem and travel expenses by Engineer shall comply with the provisions of Section 112.061, Florida Statutes, and all applicable Village policies. The Village shall not pay, nor shall Engineer incur, any per diem or travel expenses without the Village's prior written approval. D. Engineer shall not charge the Village any surcharge or "mark up" on services performed by Engineer's subcontractors or subconsultants. Section 8. Indemnification: A. Engineer shall indemnify and hold harmless the Village and its officers, agents and employees, from all liabilities, damages, losses and costs, Page 4 of 10 including but not limited to reasonable attorney's fees (at the trial and appellate levels) to the extent caused by the negligence, recklessness or intentional conduct of Engineer, its subcontractors, subconsultants or other persons employed or utilized by Engineer in the performance of services pursuant to this Contract. B. Nothing contained in this Contract shall create a contractual relationship with or a cause of action in favor of a third party against either the Village or Engineer, nor shall this Contract be construed as a wavier of sovereign immunity beyond the limited waiver provided in section 768.28, Florida Statutes. Section 9. Independent Contractor: Engineer is, and shall be, in the performance of services pursuant to this Contract, an independent contractor and not an employee, agent or servant of the Village. All persons engaged in any services performed pursuant to this Contract shall at all times, and in all places, be subject to Engineer's sole discretion, supervision and control, and Engineer shall exercise sole control over the means and manner in which its employees, consultants and subcontractors perform such services. Section 10. Project Records: A. All records reasonably related to the performance of professional services by Engineer or Engineer's subcontractors or subconsultants, which are not in possession of the Village, shall be made available to the Village or any state, federal or other regulatory authority for inspection and copying upon written request of the Village. Such records include, but are not limited to, all plans, specifications, submittals, correspondences, minutes, memoranda, sound recordings, video recording and computer files. These records include those documents reflecting the time expended and expenses incurred by the personnel of Engineer and its subcontractors or subconsultants in performing its obligations pursuant to this Contract. B. Engineer shall maintain and protect such records for no less than seven (7) years after final completion of any project, or for any longer period of time as may be required by applicable law or sound engineering practice. Section 11. Ownership of Instruments: A. All instruments of professional services including, but not limited to, documents, records, disks, original drawings, plans and specifications and other information created or procured by Engineer for services performed pursuant to this Contract shall become the property of the Village upon completion of the work or project for which the instrument was utilized and upon payment by the Village. Page 5 of 10 B. Engineer may maintain copies of all such instruments for its records, provided, however, that any material, product or patent paid for by the Village pursuant to this Contract shall be the property of the Village and shall not be used by Engineer for profit without the prior written consent of the Village. C. The Village acknowledges that any re -use of instruments of professional services by the Village, other than for the intended purpose without written verification and adaptation by Engineer for such specific purpose, shall be at the sole risk of the Village without recourse to Engineer. Section 12. Term of Contract: A. The initial term of this Contract shall be for five (5) years from the Effective Date. Thereafter, the Contract shall automatically renew for additional one (1) year terms, subject to the termination provisions set forth in Section 13 below. B. Engineer may present a modification to its hourly rate schedule to the Village during the Village's preparation of its budget for any fiscal year. The Village, in its sole discretion, may approve or reject any such modification. Section 13. Termination of Contract: A. Engineer's Termination for Default: Engineer may, on thirty (30) days' written notice to the Village, terminate this Contract in the event the Village fails to substantially perform its obligations hereunder and fails to cure such default, if curable, within fifteen (15) days after receiving written notice of such default. Upon such termination, the Village shall pay Engineer for all services performed up to and including the date of termination. Engineer shall not, however, be entitled to any damages from such termination including, but not limited to, loss of anticipated profits. B. Village's Termination for Default: The Village may, on thirty (30) days' written notice to Engineer, terminate this Contract without prejudice to any other remedy it may have, when Engineer fails to substantially perform its obligations hereunder and failures to cure such default, if curable, within fifteen (15) days after receiving written notice of such default. Upon such termination, the Village may take possession of all materials, products, documents and records necessary to complete pending projects in whatever way it deems expedient. If the expense of completing the project exceeds any unpaid balance due under this Contract to Engineer at the time of termination, Engineer shall be responsible to the Village for the difference. Page 6 of 10 C. Village's Termination without Default: The Village may, on thirty (30) days' written notice to Engineer, without cause and without prejudice to any other right or remedy, elect to terminate this Contract. Upon such termination, the Village shall pay Engineer for all work executed and expenses incurred in accordance with the terms of this Contract up through the date of termination. Section 14. Successors and Assigns: The Village and Engineer each binds itself and its partners, successors, executors, administrators, and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Contract. Neither the Village nor Engineer shall assign, sublet, convey or transfer its interest in this Contract without the written consent of the other. Section 15. Governing Law, Venue and Remedies: A. This Contract shall be governed by the laws of the State of Florida. Any and all legal action necessary to enforce this Contract will be held in Palm Beach County. B. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power, or remedy hereunder shall preclude any other or further exercise thereof. Section 16. Access and Audits: Engineer shall maintain adequate records to justify all charges, expenses, and costs incurred in estimating and performing services pursuant to this Contract for at least three (3) years after termination of this Contract. The Village shall have access to such books, records, and documents as required in this section for the purpose of inspection or audit during.normal business hours, at Engineer's place of business. In no circumstances will Engineer be required to disclose any confidential or proprietary information regarding its products and service costs. Section 17. Federal and State Taxes: The Village is exempt from federal tax and state sales tax and use taxes. Upon request, the Village shall provide an exemption certificate to Engineer. Engineer is not exempt from paying sales tax to its suppliers for materials used to fulfill its obligations under this Contract, nor shall Engineer be authorized to use the Village's tax exemption number in securing such materials. Section 18. Enforcement Costs: Page 7 of 10 If any legal action or other proceeding is brought for the enforcement of this Contract, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Contract, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awarded costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled. 19. Severability: If any term or provision of this Contract, or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Contract, or the application of such terms or provisions, to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and every other term and provision of this Contract shall be deemed valid and enforceable to the extent permitted by law. Section 20. Notice: All notices required in this Contract shall be sent by certified mail, return receipt requested, and if sent to the Village shall be mailed to: Village of North Palm Beach Attn: James P. Kelly, Village Manager 501 U.S. Highway One North Palm Beach, FL 33408 and if sent to the Engineer shall be mailed to: Engenuity Group, Inc. Attn: Keith B. Jackson, P.E. 1280 North Congress Avenue, Suite 101 West Palm Beach, FL 33409 The foregoing names and addresses may be changed if such change is provided in writing to the other party. Section 21. Entirety of Contract: The Village and Engineer agree that this Contract sets forth the entire Contract between the parties, and that there are no promises or understandings other than those stated herein. None of the provisions, terms and conditions contained in this Contract may be added to, modified, superseded or otherwise altered, except by written instrument executed by the parties hereto. Page 8 of 10 Section 22. Terminology and Captions: All pronouns, singular, plural, masculine, feminine or neuter, shall mean and include the person, entity, firm or corporation to which they relate as the context may require. Wherever the context may require, the singular shall mean and include the plural and the plural shall mean and include the singular. The term "Contract" as used herein, as well as the terms "herein ", "hereof', "hereunder ", "hereinafter" and the like mean this Contract in its entirety and all exhibits, amendments and addenda attached hereto and made a part hereof. The captions and paragraph headings are for reference and convenience only and do not enter into or become a part of the context of this Contract, nor shall such headings affect the meaning or interpretation of this Contract. Section 23. Waiver: Failure of a party to enforce or exercise any of its right(s) under this Contract shall not be deemed a waiver of that parties' right to enforce or exercise said right(s) at any time thereafter. Section 24. Preparation: This Contract shall not be construed more strongly against either party regardless of who was more responsible for its preparation. Section 25. Exhibits and Contract Documents: Each exhibit and each document referenced in this Contract form an essential part of this Contract. These exhibits and documents, even if not physically attached, should be treated as part of this Contract and are incorporated herein by reference. Section 26. Survivability: Any provision of this Contract which is of a continuing nature or imposes an obligation which extends beyond the term of this Contract shall survive its expiration or earlier termination. Section 27. Representations and Binding Authority: The persons executing this Contract represent that they have the full power, authority and legal right to execute and deliver this Contract and perform all of its obligations under this Contract. Section 28. Effective Date: The Effective Date of this Contract shall be the date on which it is executed by the last party to execute same. Page 9 of 10 IN WITNESS WHEREOF, the Village and Engineer have made and executed this Contract on the dates hereinafter written. ENGINEER: ENGE O , 1 C., Florida corporation By: Print Name: Title: V P Date: 545A, VILLAGE: VIL Attest: H, a Florida municipal corporation Melissa Teal, Village Clerk / i WI Approved as to Form and ;27 cy: By: Leonard G. Rubin, Village Attorney Page 10 of 10