R2021-53 Overhead Utility Underground Project Management and Engineering Consulting Services ContractRESOLUTION 2021-53
�- A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH
PALM BEACH, FLORIDA, APPROVING A CONSULTING SERVICES
CONTRACT FOR OVERHEAD UTILITY UNDERGROUND PROJECT
MANAGEMENT AND ENGINEERING WITH KIMLEY-HORN AND
ASSOCIATES, INC. AND AUTHORIZING THE MAYOR AND VILLAGE
CLERK TO EXECUTE THE CONTRACT; AUTHORIZING AND DIRECTING
THE MAYOR AND VILLAGE CLERK TO AMEND THE CAPITAL PROJECTS
FUND BUDGET TO TRANSFER $133,451 FROM THE CAPITAL RESERVE
ACCOUNT TO THE PLANNING — CONSTRUCTION AND RENOVATION
CAPITAL ACCOUNT; 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 for Overhead Utility
Undergrounding Project Management and Engineering Services ("RFQ"); and
WHEREAS, the Selection Committee evaluated the qualification statements submitted in response to
the RFQ and recommended Kimley-Horn and Associates, Inc. as the top-ranked firm; and
WHEREAS, at its June 10, 2021 meeting, the Village Council accepted the rankings of the Selection
Committee, and Village Staff negotiated a Contract with the top-ranked firm; and
WHEREAS, the Village Council wishes to approve a Consulting Services Contract with Kimley-
Horn and Associates, Inc. and seeks to amend the current Capital Projects Fund budget to transfer
$133,451 from the Capital Reserve Account to the Planning — Construction and Renovation Capital
Account to fund this Contract; and
WHEREAS, the Village Council determines that the adoption of this Resolution is in the best interests
of the residents and citizens of the Village of North Palm Beach.
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 a Consulting Services Contract for Overhead
Utility Undergrounding Project Management and Engineering with Kimley-Horn and Associates,
Inc., a copy of which is attached hereto and incorporated herein by reference, and authorizes the
Mayor and Village Clerk to execute the Contract on behalf of the Village. The total cost shall not
exceed $133,451.00, with funds expended from Account No. K5206-66210 (Planning — Construction
and Major Renovation).
Section 3. In order to fund this expenditure, the Village Council hereby approves a budget
amendment for the transfer of funds as indicated below and authorizes and directs the Mayor and
Village Clerk to execute the following budget amendment for and on behalf of the Village of North
Palm Beach:
Budget Amendment:
0
Account Description Use Source
Capital Projects Fund:
K5206-66210 Planning — Construction & Major Renovation $133,451
K5541-66000 Reserve Expenses — Capital $133,451
Total $1339451 1 $1339451
Section 4. This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED THIS 24TH DAY OF JUNE, 2021.
(Village Seal)
ATTEST:
VILLAGE C E-Rf,
J
OAYOR �
CONSULTING SERVICES CONTRACT
OVERHEAD UTILITY UNDERGROUNDING PROJECT
MANAGEMENT AND ENGGINEERING
This Consulting Services Contract is made as of the2q " d_ay of I Aa , 2021 by and
between the VILLAGE OF NORTH PALM BEACH, municipal corporation organized and existing
under the laws of the State of Florida, hereinafter referred to as VILLAGE, and KIMLEY-HORN
AND ASSOCIATES, INC., a North Carolina corporation authorized to do business in the State of
Florida, hereinafter referred to as ENGINEER, whose Federal I.D. No is 56-0885615.
WHEREAS, in accordance with Section 287.055, Florida Statutes, the VILLAGE issued a Request
for Qualifications for Overhead Utility Undergrounding Project Management and Engineering
Services ("RFQ"); and
WHEREAS, based on the Qualification Statements presented in response to the RFQ, the VILLAGE
selected ENGINEER as to the top-ranked firm and authorized members of VILLAGE Staff to conduct
competitive negotiations; and
WHEREAS, the ENGINEER has agreed to perform the required services on behalf of the VILLAGE
in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration 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:
ARTICLE 1. INCORPORATION OF REQUEST FOR QUALIFICATIONS.
This Contract incorporates the terms of the Request for Qualifications issued by the VILLAGE
and the Qualification Statement submitted by ENGINEER, and ENGINEER agrees to be bound
by all the terms and conditions set forth in the aforementioned documents. To the extent that a
conflict exists between this Contract and the remaining documents, the terms, conditions,
covenants, and/or provisions of this Contract shall prevail. Wherever possible, the provisions of
such documents shall be construed in such a manner as to avoid conflicts between provisions of
the various documents.
ARTICLE 2. SERVICES OF ENGINEER.
ENGINEER shall perform such services as outlined in its Proposal dated June 1, 2021 ("Work"), a
copy of which is attached hereto and incorporated herein by reference. ENGINEER shall perform
the Work to that degree of care and skill ordinarily exercised, under similar circumstances, by
reputable members of its profession practicing in the same or similar locality at the time such services
are performed.
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ARTICLE 3. TERM OF CONTRACT.
The term of this Contract shall commence upon the VILLAGE's issuance of a Notice to Proceed and
shall remain in effect until ENGINEER completes all services within the scope of this Contract to the
satisfaction of the VILLAGE, unless otherwise terminated in accordance with Article 10.
ARTICLE 4. COMPENSATION AND METHOD OF PAYMENT.
A. The VILLAGE agrees to compensate ENGINEER in accordance with ENGINEER's
Proposal in an amount not to exceed One Hundred and Thirty -Three Thousand Four Hundred and
Fifty -One Dollars and No Cents ($133,451.00). Tasks One through Four shall be billed at the lump
sum of $109,533.00, and Task Five (public meetings) shall be billed hourly up to a maximum amount
of $23,918.00.
B. ENGINEER shall invoice the VILLAGE on a monthly basis based on the percentage of work
performed. Invoices received from ENGINEER pursuant to this Contract will be reviewed and
approved by the VILLAGE's representative, indicating that the Work has been provided and rendered
in conformity with the Contract and then will be sent to the Finance Department for payment.
ENGINEER will invoice the VILLAGE in advance for each payment period. Invoices will normally
be paid within thirty (30) days following the VILLAGE representative's approval.
C. Work undertaken or expenses incurred that exceeds an amount set forth in the Proposal
without prior written authorization from the VILLAGE shall be the liability of the ENGINEER.
D. ENGINEER waives consequential or incidental damages for claims, disputes or other matters
in question arising out of or relating to this Contract.
E. In order for both parties herein to close their books and records, ENGINEER will clearly state
"final invoice" on ENGINEER's final/last billing to the VILLAGE. This certifies that all Work has
been properly performed and all charges have been invoiced to the VILLAGE. Since this account
will thereupon be closed, any and other further charges if not properly included in this final invoice
are waived by ENGINEER. The VILLAGE will not be liable for any invoice from ENGINEER
submitted ninety (90) days after the provision of the Work.
ARTICLE 5. INSURANCE.
During the performance of professional services under this Contract, ENGINEER shall secure and
maintain, at its own expense, the insurance coverages required by the RFQ and meet all requirements
set forth in Section 1-15.
ARTICLE 6. PERSONNEL.
A. ENGINEER represents that it has, or will secure at its own expense, all necessary personnel
required to perform the Work under this Contract. Such personnel shall not be employees of or have
any contractual relationship with the VILLAGE.
B. All of the Work required hereunder shall be performed by ENGINEER or under its
supervision, and all personnel engaged in performing the Work (including subcontractors) shall be
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fully qualified and, if required, authorized or permitted under state and local law to perform such
Work.
C. All of ENGINEER's personnel (and all subcontractors) while on VILLAGE premises, will
comply with all applicable requirements governing conduct, safety, and security, provided, however,
that ENGINEER shall be solely responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the Work.
ARTICLE 7. INDEMNIFICATION.
A. To the fullest extent permitted by applicable laws and regulations, ENGINEER shall
indemnify and save harmless the VILLAGE, its officials, agents, servants, and employees from
and against any and all claims, liability, losses, and/or causes of action, including, but not limited
to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally
wrongful conduct of the ENGINEER and other persons employed or utilized by the ENGINEER
in the performance of this Contract.
B. ENGINEER shall not be required to indemnify the VILLAGE, its officials, agents, servants
and employees when the occurrence results solely from the wrongful acts or omissions of the
VILLAGE, its officials, agents, servants and employees. The terms of this Section shall survive
completion of all services, obligations and duties provided for in this Contract as well as the
termination of this Agreement for any reason.
C. 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 a waiver of sovereign immunity beyond the waiver provided in § 768.28, Florida
Statutes.
D. PURSUANT TO F.S. §558.0035, EMPLOYEES OF
ENGINEER MAY NOT BE HELD INDIVIDUALLY LIABLE FOR
ECONOMIC DAMAGES RESULTING FROM NEGLIGENCE
UNDER THIS AGREEMENT.
ARTICLE 8. 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.
ARTICLE 9. 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
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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.
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.
ARTICLE 10. TERMINATION.
This Contract may be terminated by ENGINEER upon thirty (30) days' prior written notice to the
VILLAGE's representative in the event of substantial failure by the VILLAGE to perform in
accordance with the terms of this Contract through no fault of ENGINEER. It may also be
terminated, in whole or in part, by the VILLAGE, with or without cause, upon ten (10) days' written
notice to the ENGINEER. Unless ENGINEER is in breach of this Contract, ENGINEER shall be
paid for Work rendered to the VILLAGE's satisfaction through the date of termination. After receipt
of a Termination Notice and except as otherwise directed by the VILLAGE, ENGINEER shall:
A. Stop work on the date and to the extent specified;
B. Terminate and settle all orders and subcontracts relating to the performance of the terminated
work;
C. Transfer all work in progress, completed work, and other materials related to the terminated
work to the VILLAGE; and
D. Continue and complete all parts of the work that have not been terminated.
ARTICLE 11. MODIFICATIONS OF WORK
A. The VILLAGE reserves the right to make changes in Scope of Work, including alterations,
reductions therein or additions thereto. Upon receipt by the ENGINEER of the VILLAGE'S
notification of a contemplated change, ENGINEER shall, in writing, provide a detailed estimate
for the increase or decrease in cost and schedule due to the contemplated change,
B. If the VILLAGE elects to make the change, the VILLAGE shall initiate a Contract
Amendment and ENGINEER shall not commence work on any such change until such written
amendment is signed by the ENGINEER and approved and executed by the VILLAGE.
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ARTICLE 12. 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.
Except as above, neither the VILLAGE nor ENGINEER shall assign, sublet, convey or transfer its
interest in this Contract without the written consent of the other. Nothing herein shall be construed
as creating any personal liability on the part of any officer or agent of the VILLAGE which may be a
party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than
the VILLAGE and ENGINEER.
ARTICLE 13. ACCESS AND AUDITS.
ENGINEER shall maintain adequate records to justify all charges, expenses, and costs incurred in
estimating and performing the Work for at least three (3) years after completion of this Contract. The
VILLAGE shall have access to such books, records, and documents as required in this ARTICLE 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.
ARTICLE 14. ENFORCEMENT COSTS.
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.
ARTICLE 15. 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: Andrew D. Lukasik, Village Manager
501 U.S. Highway One
North Palm Beach, FL 33408
and if sent to the ENGINEER shall be mailed to:
Kimley-Horn and Associates, Inc.
Attn: Kevin Schanen, P.E., Senior Vice President
1920 Wekiva Way, Suite 200
West Palm Beach, FL 33411
The foregoing naives and addresses may be changed if such change is provided in writing to the other
party.
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ARTICLE 16. ENTIRETY OF CONTRACTUAL AGREEMENT.
The VILLAGE and ENGINEER agree that this Contract, including all documents referenced herein,
sets forth the entire agreement 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.
ARTICLE 17. 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.
ARTICLE 18. PREPARATION.
This Contract shall not be construed more strongly against either party regardless of who was more
responsible for its preparation.
ARTICLE 19. MATERIALITY.
All provisions of the Contract shall be deemed material. In the event ENGINEER fails to comply
with any of the provisions contained in this Contract or exhibits, amendments and addenda attached
hereto, said failure shall be deemed a material breach of this Contract and VILLAGE may at its option
and without notice terminate this Contract.
ARTICLE 20. EXHIBITS AND CONTRACT DOCUMENTS.
All exhibits and other documents referred to in this Contract form an essential part of this Contract.
The exhibits and other documents, if not physically attached, should be treated as part of this Contract
and are incorporated herein by reference.
ARTICLE 21. LEGAL EFFECT.
This Contract shall not become binding and effective until approved by the Village Council of the
Village of North Palm Beach.
ARTICLE 22. 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.
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ARTICLE 23. WAIVER OF SUBROGATION.
ENGINEER hereby waives any and all rights to Subrogation against the VILLAGE, its officers,
employees and agents for each required policy. When required by the insurer, or should a policy
condition not permit an insured to enter into a pre -loss agreement to waive subrogation without an
endorsement, then ENGINEER shall agree to notify the insurer and request the policy be endorsed
with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of
Subrogation requirement shall not apply to any policy, which a condition to the policy specifically
prohibits such an endorsement, or voids coverage should ENGINEER enter into such an agreement
on a pre -loss basis.
ARTICLE 24. REPRESENTATIONS/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.
ARTICLE 25. 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.
C. The parties knowingly, voluntarily and intentionally waive any right they may have
to trial by jury with respect to any litigation arising out of this Contract.
ARTICLE 26. 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.
ARTICLE 27. E -VERIFY
ENGINEER warrants and represents that ENGINEER and all subcontractors are in compliance
with Section 448.095, Florida Statutes, as may be amended. ENGINEER has registered to use,
and shall continue to use, the E -Verify System (E-Verify.gov) to electronically verify the
employment eligibility of newly hired employees and has received an affidavit from each
subcontractor stating that the subcontractor does not employ, contract with or subcontract with an
unauthorized alien. If the VILLAGE has a good faith belief that ENGINEER has knowingly
violated Section 448.09(1), Florida Statutes, the VILLAGE shall terminate this Contract pursuant
to Section 448.095(2), Florida Statutes, as may be amended. If the VILLAGE has a good faith
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believe that a subcontractor has knowingly violated Section 448.09(1), Florida Statutes, but
ENGINEER has otherwise complied, it shall notify ENGINEER, and ENGINEER shall
immediately terminate its contract with the subcontractor.
ARTICLE 28. INSPECTOR GENERAL
ENGINEER is aware that the Inspector General of Palm Beach County has the authority to investigate
and audit matters relating to the negotiation and performance of this Contract, and in furtherance
thereof, may demand and obtain records and testimony from ENGINEER and its subcontractors.
ENGINEER understands and agrees that in addition to all other remedies and consequences provided
by law, the failure of ENGINEER or its subcontractors to fully cooperate with the Inspector General
when requested may be deemed by the VILLAGE to be a material breach of the Contract Documents
justifying termination.
ARTICLE 29. PUBLIC RECORDS.
IF THE ENGINEER HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE ENGINEER'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS AT: (561) 841-3355;
NPBCLERK(c�r�,VILLAGE-NPB.ORG; OR 501 U.S. HIGHWAY ONE, NORTH
PALM BEACH, FL 33408.
In performing services pursuant to this Contract, ENGINEER shall comply with all relevant
provisions of Chapter 119, Florida Statutes. As required by Section 119.0701, Florida Statutes,
ENGINEER shall:
Keep and maintain public records required by the VILLAGE to perform the service.
Upon request from the VILLAGE's custodian of public records, provide the VILLAGE with
a copy the requested records or allow the records to be inspected or copied within a reasonable
time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as
otherwise provided by law.
3. Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
Contract term and following completion of the Contract if the ENGINEER does not transfer
the records to the VILLAGE.
4. Upon completion of the Contract, transfer, at no cost, to the VILLAGE all public records in
possession of ENGINEER or keep and maintain public records required by the VILLAGE to
perform the services. If ENGINEER transfers all public records to the VILLAGE upon
completion of the Contract, ENGINEER shall destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure requirements. If
ENGINEER keeps and maintains public records upon completion of the Contract,
ENGINEER shall meet all applicable requirements for retaining public records. All records
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stored electronically must be provided to the VILLAGE, upon request from the VILLAGE's
custodian of public records, in a format that is compatible with the information technology
systems of the VILLAGE.
IN WITNESS WHEREOF, the VILLAGE and ENGINEER hereto have made and executed this
Contract as of the day and year first above written.
ENGINEER:
KIMLE - AND ASSOCIATES, INC.
Print Name:DAN 1 b W A-t-rqA-t�L
Title: !j*L. V" pae51 k�!T
VILLAGE OF NORTH PALM BEACH
BY: o�-
DARRYL C. A REY
MAYOR
A
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A GREEN
L ' `GE CLERK
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
BY:
VILLAGE ATTORNEY
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