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HomeMy WebLinkAboutItem #04 Approval of Non-Design Related Services for the Roberson Road Improvement Project from Donald W. McIntosh Associates, Inc. in the Amount of $17,900`` 'J fIorida AGENDA ITEM COVER SHEET Meeting Date: February 18, 2014 Item # y Reviewed By: Contact Name: David A. Wheeler, P.E. Department Director: Contact Number: 407 - 905 -3100, ext. 1504 City Manager: Subject: Non - Design Related Services for the Roberson Road Improvement Project from Donald W. McIntosh Associates, Inc. — District 4 (Commissioner Rusty Johnson) Background Summary: The City Commission approved the Annexation and Development Agreement for the Belmere Planned Development at the August 5, 2008, Commission meeting. As a part of that Agreement, the City agreed to have Unicorp, Inc., the developer, design, permit, and construct certain improvements to Roberson Road. Those improvements generally include widening to four lanes the intersection with Maguire Road and west across the frontage of the Belmere property and included sidewalks on both sides of the road, a closed drainage system, and a dedicated left turn lane into the Casa Mirella apartment complex. Unicorp, Inc. was to employ their site civil engineer, Donald W. McIntosh Associates, Inc. (DWMA), to prepare the roadway improvement plans. The City would be responsible in securing any additional right -of -way and stormwater facilities as may be required. The additional lanes at the intersection with Maguire Road required a modification to the stormwater permit obtained for the Maguire Road widening project that was completed over ten years ago. Staff has worked with DWMA to design the road improvements to fit within the existing right -of -way with the exception of the sidewalk and utilities along the north side of the road. Staff, along with legal council have been in conversations with the five property owners along the northern side of Roberson Road. DWMA prepared sketches and descriptions for the sidewalk and utility easements and for temporary construction easements with the five property owners. The attached proposal from DWMA details the proposed work at a not to exceed amount of $17,900. The project is to be funded from the collection of the Road Impact Fees as spelled out in the Annexation and Development Agreement from the various phases of the development. The City has already collected Road Impact Fees from the CVS Pharmacy, commercial strip center, Day Care, and the Casa Mirella apartment complex that total $926,453. In accordance with the Annexation and Development Agreement, the City has already reimbursed Unicorp, Inc. for DWMA's design services. This project is not currently funded in the City's budget. Issue Should the City employ the services of Donald W. McIntosh Associates, Inc. for the purpose of securing a stormwater permit modification, surveying services, and other related services for the City's portion of the Roberson Road Improvements Project? Recommendations: The Engineering Department recommends that the City Commission secure the services of Donald W. McIntosh Associates, Inc. to complete the City's required portion of the project and authorize staff to issue a Purchase Order in the amount of $17,900 to Donald W. McIntosh Associates, Inc. Staff also recommends that the City Commission encumber funds from the Road Impact Fund to cover these services. Attachments: Letter Proposal, dated February 11, 2014, from Donald W. McIntosh Associates, Inc. Financial Impact: The funds to complete the City's required portion of this project will need to be encumbered from the Road Impact Fees collected. Type of Item: (please mark with an z') Public Hearing For Clerk's Dept Use: Ordinance First Reading _ Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A Reviewed by () N/A 2 I� DONALD W. MCINTOSH ASSOCIATES, INC. CML ENGINELHS LAND PLANNERS SURVEVDR?, January 6, 2014 Revised January 10, 2014 Revised February 11, 2014 Dwheeler @ci. ocoeefl. us Mr. David Wheeler, P.E. City of Ocoee 150 North Lakeshore Drive Ocoee, FL 34761 Re: Roberson Road - Civil Engineering Assistance City of Ocoee, Florida DWMA Job No. 13071.001 — 13071.006 Dear Mr. Wheeler: Donald W. McIntosh Associates, Inc. (DWMA) is pleased to present this Letter Agreement to provide professional engineering services to the City of Ocoee for the Roberson Road Intersection Improvements project. The scope of this proposal includes civil engineering assistance. We agree to provide the following Basic Services for the itemized fees and expenses set forth below which shall be invoiced in four week increments subject to this Letter Agreement and its Attachments, incorporated herein by reference. The Attachments consist of the Hourly Rate Schedule, CLIENT Billing Information Sheet, Basis of Proposal and CLIENT Responsibilities, and the Terms of Agreement documents. BASIC SERVICES & ITEMIZED FEES The nature, scope and schedule (if any) of Basic Services to be performed by us under this Agreement, are set forth below. You may, from time to time, request us to perform services in connection with the Project which are outside the scope of the services listed herein. Should we agree to perform those, any such services (hereinafter referred to as "Additional Services ") shall be subject to and governed by the provisions of this Agreement. Additional Services and Basic Services to be provided under this Agreement shall hereinafter be referred to collectively as "Services." PART I — CIVIL ENGINEERING A. LEGAL DESCRIPTIONS AND SKETCHES - Preparation of five (5) legal descriptions and sketches for the following: 2200 Park Ave. North Utility, sidewalk and temporary construction easements and Winter Park. FL CONSTRUCTION DRAWINGS MODIFICATIONS — Modify proposed road and intersection geometry and grading per the 32789 -2355 direction of City of Ocoee. 001 $7,500.00 B. SJRWMD ERP LETTER MODIFICATION — Coordinate with St Fax 407- 644 -8318 Johns River Water Management District and the City of Ocoee for 407- 644 -4068 F:1Contract\P\cp 10796b.doc http://www.dwma.com Mr. David Wheeler, P.E. City of Ocoee ® Re: Roberson Road— Civil Engineering Assistance January 6, 2014, Revised January 10, 2014, Revised February 11, 2014 Page 2 of 9 a modification by letter of the existing Maguire Road permit for the proposed Roberson Road Intersection Improvements. To be billed on an hourly basis per the attached rate schedule with an estimated fee (not to exceed estimate without prior authorization) of 002 $2,200.00 C. MEETINGS - Representation at staff meetings, negotiations and public hearings associated with final design and permitting, if required, will be billed on an hourly basis per the attached rate schedule with an estimated fee (not to exceed estimate without prior authorization) of 003 $1,000.00 D. ADDITIONAL ENGINEERING SERVICES - Additional civil engineering services requested by THE CITY will be billed on an hourly basis per the attached rate schedule with an estimated fee of 004 $4,000.00 E. CONSTRUCTION DRAWING MODIFICATION /SIDEWALK — Modify construction plans to delete the proposed sidewalk on the north side of the proposed roadway expansion if and as directed by the City of Ocoee. Dos $2,000.00 F. PROJECT DOCUMENTATION — Provide project reimbursable expenses for items B — D (excluding agency fees, project co- consultant fees and bid sets). (not to exceed without prior Client authorization) 006 $1,200.00 TOTAL PART I $17,900.00 PART II - CONSTRUCTION PHASE SERVICES Construction phase services are not included in this proposal but may be provided under separate contract or on an hourly basis per the attached rate schedule. CLIENT shall understand that construction certifications are required by most regulatory agencies. PAYMENT OF FEES & REIMBURSABLE EXPENSES You shall pay us for our Basic Services, such lump sums, fixed fees and hourly rate compensation, as are indicated above next to each specific item of Basic Service. Progress payments as applicable shall be made every four weeks, based upon the percentage of completion in each progress billing for lump sums or fixed fees, and based upon DWMA FAContrac11P1cp10796b.doc DONALD W. McINTDSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32789 -2355 • (407) 644 -4068 • FAX (407) 644$318 Mr. David Wheeler, P.E. City of Ocoee Re: Roberson Road— Civil Engineering Assistance January 6, 2014, Revised January 10, 2014, Revised February 11, 2014 Page 3 of 9 time expended in each progress billing multiplied by the hourly rates on the Hourly Rate Schedule, as applicable. We are prepared to begin work on your Project as soon as we have received an executed copy of this Agreement and the completed CLIENT Billing Information Sheet. We thank you for this opportunity and look forward to working with you on your project. Sincerely, rOSH ASSOCIATES, INC. P.E. 1TT/Is (14) ACCEPTANCE OF CONTRACT BY: [Signature] [Name and Title] [Date] [Company] PURSUANT TO FLORIDA STATUTE 558.0035 AN INDIVIDUAL EMPLOYEE OR AGENT OF DONALD W. MCINTOSH ASSOCIATES, INC. MAY NOT BE HELD INDIVIDUALLY LIABLE FOR NEGLIGENCE. FAContractNMcp 10796b. doc DONALD W. McINTOSH Associates, Inc. 2200 PARK AVENUE NORTH. WINTER PARK, FLORIDA 32789 -2355 • (407) 6444068 • FAX [4071644-8318 Mr. David Wheeler, P.E. City of Ocoee Re: CLIENT BILLING INFORMATIONSHEET Page 4 of 9 CLIENT BILLING INFORMATION SHEET Please help us set up your file correctly by providing us with the following information: I) Project Billing Name 2) FEIN # (Corporation) or Social Security # (Individual) 3) Billing Address 4) Phone # Fax # Cell Phone # 6) Billing to be sent attention of 7) Date invoices must be received ❑ by CLIENT for processing Date N/A 8) Person(s) authorized to order additional services or prints 9) Purchase Orders Required? Yes El No El 10) Name under which title of property is held Note: Ifthe CLIENT is not the Record Owner ofthe subject proper(y. DWMA must be provided with written verification of Owner's acknowledgment that DtVAM will be providing professional services related to the subject property and that the Record Owner understands the financial obligations related thereto and that hts property may be liened for non - payment. 11) Name /Entity of applicant for project permit applications 12) Person and title to sign permit applications (if required) F AConl ract%Plcp 10795 b. doc DONALD W. McINTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK. FLORIDA 32769 -2355 • (407) 644 -4068 • FAX (407) 644 -8318 Mr. David Wheeler, RE. City of Ocoee Re: HOURLYRATE SCHEDULE Page 5of9 HOURLY RATE SCHEDULE EFFECTIVE JUNE 1, 2007 PERSONNEL CLASSIFICATION HOURLY RATE Principal $300.00 Engineering Department Director $265.00 Survey Department Director $240.00 Planning Department/Entitlements Director $250.00 Associate $210.00 Senior Engineering Project Manager $210.00 Senior Survey Project Manager $195.00 Sr. Reg. Engineer; Eng. Project Manager $190.00 Survey Project Manager $175.00 Registered Engineer $170.00 Registered Surveyor $170.00 GIS Administrator $150.00 Computer System /GIS Manager $150.00 Engineer III $150.00 Engineer II $140.00 Engineer I $130.00 Senior Planner $120.00 Senior Design Technician $115.00 Design Technician $100.00 Assistant Planner $100.00 Survey Technician $100.00 Construction Services Director $135.00 Construction Observer $100.00 Researcher $105.00 Draftsman $80.00 Project Manager Assistant $85.00 Clerical /Runner $60.00 Survey Crew $155.00 GPS Survey Crew $275.00 Pickup/Delivery $40.00 The above hourly rates do not apply to expert witness preparation, depositions and testimony. Hourly rates for these services will be provided upon request. FAContract \P1cp 10796b. doc DONALD W. McINTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32789 -2355 • [407) 644 -4068 • FAX [407) 644 -8318 Mr. David Wheeler, P.E. I L IM A , I City of Ocoee Re: Roberson Road— Civil Engineering Assistance January 6, 2014 Page 6 of 9 BASIS OF PROPOSAL AND CLIENT RESPONSIBILITIES Our Agreement is also based on the following conditions and limitations: BASIS OF PROPOSAL The CLIENT is advised that concurrency management and comprehensive plan consistency will impact the land development process. Regulations regarding concurrency and consistency vary according to governmental jurisdiction. The status of concurrency, consistency and, if applicable, vested rights must be addressed for all projects within the State of Florida. DWMA presumes the CLIENT is aware of the issues and resultant impacts described. DWMA disclaims responsibility for delays that may be encountered due to failure on the part of the CLIENT to address concurrency and consistency issues prior to initiation of Services proposed herein. DWMA is not responsible for changes to the approved plans that may alter the concurrency vesting status or for noncompliance on the part of the property owner with regard to the performance terms and conditions established in the vesting certificate. DWMA will not be responsible for any circumstances, acts, errors, omissions or events, of any type, beyond its control including, without limitation, construction costs, the acts or failures to act of any governmental or judicial agency, or the existence of hazardous waste of any type associated with the Project. No Services associated with hazardous waste of any type are included in any way in this Agreement. If construction services or observation of construction are included herein, the Services included by DWMA will be to conduct periodic visits and observations to determine that the Work generally conforms or will conform to the applicable contract documents in relation to DWMA's engineering Services. DWMA's Service shall not include determining, supervising, implementing, or undertaking the responsibilities of the contractor, subcontractors or others, regarding means, methods, techniques, sequences and procedures of construction, nor for job conditions, safety precautions or programs. Without limitation, architectural, traffic engineering (e.g., studies, signalization), structural engineering (e.g., retaining walls, bridges, docks), mechanical engineering (e.g., fire pumps), fire protection engineering, geotechnical engineering and testing, environmental assessment, landscape and irrigation design, non -civil utility engineering (e.g., power, gas, telephone, cable television, site lighting) and any other professional or consultant F:1Con tract\Mcp 10796 b.doc services required by CLIENT and not undertaken by DWMA, shall be retained separately by the CLIENT. DWMA may be mandated by regulatory authorities to incorporate findings, requirements and details of design in their construction plans that are prepared by professional geotechnical engineers and not by DWMA. In doing so, DWMA assumes no responsibility or liability for the design, construction or operation of geotechnical engineering components which may include, but not be limited to, underdrains, ground stabilizers, backfills, embankments, etc. CLIENT must also recognize that some of these systems (i.e., under-drains, etc.) usually require extensive field supervision during construction and certification after construction. These systems are subject to damage by other activities during or after infrastructure construction such as other utility installations (power, telephone, cable, gas, etc.). DWMA assumes no liability for damages to any design element caused by the improper design, construction, operation or maintenance of improvements designed by others. No Services are included in this Agreement other than those specifically listed herein. No application or submittal for arbor or tree removal permits is included unless specifically listed in Basic Services. Permits and services related to wetlands, threatened or endangered species, or archaeological related issues, are not included other than any specifically listed in Basic Services. Federal Emergency Management Agency (FEMA) Map revisions or amendments which may be required by regulatory agencies or lenders are not included unless specifically listed in Basic Services. If locating underground utilities is expressly included in the Services, we will endeavor to identify those companies /services in the subject area that may identify such utilities. DWMA cannot and does not guarantee or warranty that unidentified utilities will not be encountered. Services do not include the preparation of Maintenance of Traffic (M.O.T.) plans for onsite or offsite construction. Any opinion of construction cost prepared by DWMA represents its judgment as a design professional and is supplied for the general guidance of the CLIENT only since DWMA has no control over the cost of labor and material or over competitive bidding or market conditions. DWMA does not warrant or guarantee the accuracy of such opinions. DONALD W. McINTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32789 -2355 • (407) 644AO66 • FAX [407) 644 -8318 Mr. David Wheeler, P.E. = .. R City of Ocoee Re: BASIS OF PROPOSAL AND CLIENT RESPONSIBILITIES Page 7 of 9 No permit applications or negotiations with regulatory The CLIENT will engage a professional state licensed agencies or permitting authorities are included other than hydrogeologist for completion of hydrologic data required those specifically listed herein. in support of a Consumptive Use/Water Use Permit. CLIENT RESPONSIBILITIES The CLIENT, or his representative, shall be available to meet with DWMA and provide decisions in a timely manner throughout the course of the project. The CLIENT will provide DWMA with plans and other pertinent information which may be necessary to properly survey or engineer the site. Prior to initiation of preliminary or final design, an approved site plan and final dimensioned building foot print(s) will be provided by CLIENT, which will be complete with final geometry, and will be relied upon by DWMA. The CLIENT will engage a professional geotechnical engineer to provide necessary hydrogeologic design support, relevant construction specifications for earthwork items and required construction inspection and certification. DWMA has the CLIENT's authority to rely on this professional infonnation as a basis for its design Services. The CLIENT will engage a professional environmental consultant to provide jurisdictional determinations and necessary design and permitting support for wetland and special species issues. The CLIENT will engage a professional environmental firm or firms who specialize in all matters relating to "hazardous" or "special" materials wastes, deposits, soils, contamination, etc., as may be required to support permitting or construction of the Project. The CLIENT will engage a professional landscape architect to provide landscape and irrigation design related to the development of the property as intended by CLIENT. The CLIENT will engage a professional architect to perform all architectural services including, without limitation, incorporation of the work product of DWMA, and compliance with local, state or federal laws, regulations, codes and Americans with Disabilities Act ( "ADA ") requirements. The CLIENT will engage a professional traffic consultant to provide analysis related to development of the property as intended by CLIENT. The CLIENT will engage a professional legal counselor to provide legal services related to development of the property as intended by CLIENT. F:XContrac[ \P\cp10796b doc The CLIENT will engage a professional archaeologist to provide archaeological analysis related to development of the property as intended by CLIENT. The CLIENT agrees that DWMA shall have no responsibility for the accuracy of information provided by, or for any portion of the Project designed by the CLIENT or CLIENT's other consultants, or for compliance with local, state or federal ADA requirements. DWMA shall not be required to check or verify the CLIENT's or other consultants' work product, information, or construction documents and shall be entitled to rely on the accuracy and completeness thereof, as well as the compliance of such documents with applicable laws, codes, statutes, ordinances, and regulations, including, without limitation, ADA requirements. The CLIENT also agrees to require all other consultants engaged by the CLIENT to coordinate their design or construction documents or reports with the work product of DWMA, to promptly report any conflicts or inconsistencies to DWMA and to cooperate fully in the resolution of those conflicts or inconsistencies. The CLIENT further agrees, to the fullest extent permitted by law, to indemnify and hold harmless DWMA from any claims, damages, liabilities or costs, including reasonable attorney's fees and defense costs, arising out of or relating to false, inaccurate, or non - compliant information provided by CLIENT or its other consultants, or the services performed by other consultants engaged by the CLIENT. The CLIENT will provide DWMA with all applicable operation and maintenance budgets and budget reserve estimates for all gated communities prior to submittal of the final plat to satisfy local jurisdiction requirements. CLIENT'S INITIALS DWMA INC.'S INITIALS DONALD W. McINTOSH Associates, Inc. 2200 PARK AVENUE NORTH. WINTER PARK, FLORIDA 32789 -2355 • (407) 644AO68 • FAX (407) 644 -8318 Mr. David Wheeler, P.E. City of Ocoee Re: TERMS OF AGREEMENT Page 8 of 9 TERMS OF AGREEMENT 1. PARTIES AND SCOPE OF SERVICES: Donald W. McIntosh Associates, Inc (referred to as "DWMA" in this agreement) shall include said company, and its particular division, subsidiary or affiliates performing Services "Basic Services' means only the specific items to be performed by DWMA as set specifically forth in DWMA's Letter Agreement, incorporated herein by this reference, and these Terms of Agreement. "CLIENT" refers to the person or business entity executing DWMA's Letter Agreement or authorizing DWMA's Services. If the CLIENT is ordering Services on behalf of another, the CLIENT represents and warrants that the CLIENT is the duly authorized agent of said party for the purpose of ordering and directing Services. The CLIENT assumes sole responsibility for determining whether the quantity and the nature of the Services ordered by the CLIENT are adequate and sufficient for the CLIENT's intended purpose. DWMA's Services are for the exclusive rise of CLIENT, and its disclosed principal, if any. CLIENT is not authorized to distribute or otherwise share DWMA's documents, work product or information contained therein, with any third party without DWMA's prior written consent, In no event shall DWMA have any duty or obligation to any third party The ordering of Services of any type from DWMA shall constitute acceptance of the terms of DWMA's Letter Agreement and these Terms of Agreement. 2. TESTS AND INSPECTIONS: CLIENT shall cause all tests and inspections of the site, materials and Services performed by DWMA, or others, to be timely and properly performed in accordance with any applicable plans, specifications and contract documents, and DWMA's recommendations (if any are provided - but this shall not imply any obligation to do so). In llie event that all such tests and inspections are not so performed, or DWMA's recommendations are not so followed, CLIENT agrees to indemnify, defend and hold DWMA, its officers, employees, and agents harmless from any and all claims, suits, losses, costs and expenses, including, but not limited to, all costs and attorney's fees arising out of the failure to perform such tests and inspections or to follow DWMA's recommendations. To the extent that DWMA's Scope of Services as specifically set forth in the Letter Agreement includes construction observation. DWMA shall visit the site as a representative of the CLIENT or Owner at intervals appropriate to the stage of the contractor's operations to become generally familiar with the progress of the Work completed, and to determine generally whether the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the applicable contract documents However, DWMA is not required to make exhaustive or continuous on -site observation to check the quality or quantity of the Work 3. SCHEDULING OF SERVICE: If DWMA is required to delay commencement of the Services, or if, upon embarking upon its Services, DWMA is delayed or required to stop or interrupt the progress of its Services, as a result of clrariges in the scope of the Services requested by the CLIENT, or for causes beyond the exclusive control of DWMA, additional charges will be applicable and payable by CLIENT as Additional Services compensation. 4. ACCESS TO SITE: CLIENT will arrange and provide such access to the site as is necessary for DWMA to perform the Services DWMA shall take reasonable measures and precautions to minimize damage to the site and any improvements located (hereon as the result of its Services or the use of its equipment However, CLIENT expressly releases DWMA from liability for any damage to the site, and agrees that DWMA shall not be responsible for the cost of restoring the site to its original condition. 5. SUBMITTAL AND PAYMENT OF INVOICES: Invoices for Services shall be submitted every four weeks Payment shall be due upon receipt, and time is of the essence in relation to CLIENT's obligation to pay. The CLIENT agrees to pay interest of 1.5% per month to be calculated including the next day after receipt of each invoice, on invoice balances outstanding more than thirty (30) days. CLIENT also agrees to be responsible for and pay any applicable sales or service tax, should that be required at any time DWMA reserves the FAContract\Plcp10796b, doc right to withhold work products or to stop Services until payment is received. The CLIENT assures DWMA that financial arrangements have been made to fulfill the CLIENT's obligations under this Letter Agreement. CLIENT understands that a significant portion of the engineering design fee, if any, may be expended during the Preliminary Subdivision Plan phase and/or the Master Drainage Plan portion of the project. Such fees will be billable out a percentage complete basis. Additional Services shall be paid in such amounts or by such methodologies as the parties shall agree in advance 6. ACTIONS OF AGENCIES NOT GUARANTEED: DWMA will exercise professional skill in executing its Services, however, it cannot and does not guarantee the action or responsiveness of any governmental official, agency, judicial or quasi - judicial proceeding The CLIENT shall pay all invoices for Services submitted in accordance with this Agreement regardless of the results of any such actions or inactions. 7. OWNERSHIP OF PROPERTY/ CONSTRUCTION LIEN: In the event that the CLIENT is not the record owner of the property covered by this Agreement. DWMA may consider the CLIENT's direction to proceed as evidence that the CLIENT has the Owner's permission and consent to enter into this Agreement. It shall be the CLIENT's responsibility to inform DWMA of any change in ownership or change in any other circumstance that may affect DWMA's ability to place a Lien on the property if payment is not received according to the terns of this Agreement The CLIENT hereby acknowledges and agrees that DWMA's Services are professional services that shall be performed in the practice of DWMA's profession as a planner, surveyor, or engineer in connection with the specific parcel or parcels or real property referred to in this Agreement and that DWMA shall be entitled ton lien upon such real property for amounts unpaid for such Services pursuant to §713.03, Florida Statutes (2002 or its successor) and otherwise pursuant to law or equity, 8 OWNERSHIP OF DOCUMENTS: All documents, work product and information contained therein prepared by DWMA or its Subconsultants are instruments of service for use by the CLIENT solely with respect to this Project. DWMA shall be deemed the author of such documents, work product and information, and shall retain all rights thereto. 9 RETENTION OF RECORDS: All original documents, work product and information contained therein shall be retained by DWMA for up to two (2) years following completion of the Project. Afler that time, DWMA reserves the right to dispose of the documents, work product and information, at its sole discretion The CLIENT shall be provided with reproducible copies of all original documents at its expense upon written request- 10. CONFIDENTIALITY / PROMOTIONAL MATERIALS: All documents, work product and all information contained [herein, prepared by DWMA, are proprietary to DWMA, and shall not be shared with any third party without the prior written consent of DWMA DWMA may distribute, sell or otherwise disburse any information contained therein to third parties in its sole discretion DWMA may always use such documents, work product, and all information contained therein, in its promotional materials. 11. OBSERVATION OF CONSTRUCTION: CLIENT hereby recognizes and acknowledges that if construction phase observations are included in this agreement, they shall be completed based on the following understanding: • The purpose of DWMA's observation is to determine whether the contractor is constructing the project in general conformity with the overall design concept and intent. Contractor shall be solely responsible for full compliance with the approved construction plans and any and all regulatory or jurisdictional rules, codes, ordinances and requirements DONALD W. McINTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32769 -2355 • (407) 644 -4068 • FAX (4071644-8318 1� Mr. David Wheeler, P.E. City of Ocoee Re: TERMS OF AGREEMENT Page 9 of 9 • DWMA's review and submittal of partial and final paymtent applications provides that, in our best judgment, the certified amounts of work have been completed. DWMA's review and recommendations for partial and final payments means that the work substantially but not absolutely conforms to the drawings and specifications. • DWMA will advise the contractor and CLIENT of any workman- ship identified to be patently faulty. • The CLIENT's contractor shall be solely responsible for interpreting, evaluating and accepting all responsibility for the contractor's safety program. 12. ASSIGNMENT OF AGREEMENT Client may not assign this Agreement to any other person or entity, absent prior written consent from DWMA or its assignee. DWMA may, in its sole discretion, assign this Agreement to any related, associated or successor person or business entity without the consent of Client, and this Agreement shall inure to the benefit of such company or entity and their successors and assigns. Any assignment hereunder shall be automatically effective upon DWMA delivering written notice thereof to Client In the event of such assignment, DWMA shall be automatically released of and shall have no further obligations or responsibilities under this agreement, and all such obligations and responsibilities shall be solely that of the assignee. 13. DISPUTE RESOLUTION' In the unlikely event of any dispute, difference, claim or counterclaim between DWMA and the CLIENT arising out of or in relation to this Agreement, which cannot be amicably resolved by the parties through good faith negotiations, any such matter shall be submitted to the Circuit Court in and for Orange County, Florida, for trial and determination by the court sitting without jury The parties hereby consent to the jurisdiction of such court and to the service of process outside the State of Florida (if applicable) pursuant to the requirements of such court in any matters so to be submitted to it, and they expressly waive the right to a jury trial The CLIENT agrees to pay all of DWMA's attorney's fees and cost incurred in bringing any such suit (including any appeals) in the event that DWMA prevails. Anything contained in any other contract document notwithstanding, DWMA shall not be bound by a provision or agreement (a) requiring or providing for arbitration of disputes or controversies arising out of DWMA's Services or this Agreement, (b) wherein DWMA waives its rights to a lien, or (c) conditioning DWMA's right to payment upon payment by a third party. 14. ENTIRE AGREEMENTIGOVERNING LAW' Regarding the subject matter hereof, this Agreement contains the entire agreemem of the parties and their representatives and agents, and supersedes all prior understandings, whether oral or written. This Agreement shall be governed by the laws of the State of Flonda- 15. CONSTRUCTION: This Agreement shall not be construed more strictly against CLIENT or DWMA, regardless of whom was more responsible for its being drafted or whose form it is. "Agreement" shall be construed to mean the Letter Agreement, these Terns of Agreement, the Basis of Proposal /CLIENT Responsibilities attachments, and any modifications hereto by Additional Services Agreement or otherwise. The meanings and definitions contained in any pan of the Agreement, shall apply to all of the Agreement and any part thereof 18. WARRANTY. DWMA warrants that its Services will be performed in accordance with its Letter Agreement, these Terms of Agreement, the Basis of Proposal /CLIENT Responsibilities attachments, and with generally accepted principles and practices using that degree of care and skill ordinarily exercised under similar circumstances by members of its profession in the local community. THIS WARRANTY IS EXCLUSIVE OF AND iN LIEU OF ALL OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESSED OR IMPLIED. Statements made in DWMA documents, work products and information contained therein, are opinions based upon its engineering judgment and are not to be construed as representations of fact. In the event of any breach of this Agreement by DWMA, or should DWMA, or any of its professional employees be found to have been negligent in the performing of professional Services or to have breached this warranty or Agreement, the maximum aggregate amount of the liability of DWMA, its officers, employees and agents shall be limited to S100,00000 CLIENT expressly acknowledges that it has received consideration for this limitation of liability in the form of lower prices for this Agreement, CLIENT may, upon written request received within five (5) days of CLIENT's acceptance hereof or DWMA's commencement of Services (whichever is earlier), increase the limit of DWMA's liability to 5500,000.00 or the amount of DWMA's fee, whichever is the greater, by agreeing to pay DWMA a sum equivalent to an additional amount of 5% of llte total fee to be charged for DWMA's Services. This charge is not to be construed as being a charge for insurance of any type, but is increased consideration for greater liability. 19. INDEMN - ITY Subject to the foregoing damage limitations, DWMA agrees to indemnify and hold CLIENT harmless from and against any and all claims, suits, costs and expenses, including reasonable attorney's fees and court costs, arising solely out of DWMA's negligence. The parties expressly agree that this indemnity provision does not include, and in no event shall DWMA be required to assume, any obligation or duty to defend any claims, causes of action, demands, or lawsuits in connection with or arising out of this Project or the services rendered by DWMA. CLIENT agrees to indemnify and hold harmless DWMA from and against any and all claims, suits, costs and expenses, including reasonable attorney's fees and court costs, arising out of CLIENT's negligence. 20. DISCOVERY OF UNANTICIPATED HAZARDOUS MATER- IAL: DWMA and CLIENT agree that the discovery of Hazardous materials constitutes a changed condition allowing DWMA the option of renegotiation of the schedule, scope or price of Services, or to terminate this Agreement. DWMA and CLIENT also agree that the discovery of hazardous materials may make it necessary for DWMA to take immediate measures to protect health and safety CLIENT agrees to compensate DWMA for any time spent and expense incurred by DWMA to protect employees' and the public's health and safety. DWMA agrees to notify CLIENT as soon as practical should hazardous materials or suspected hazardous materials be encountered. In addition, CLIENT waives any claim against DWMA and agrees to defend, indemnify and save DWMA harmless from any claim or liability for injury or loss arising from hazardous matenals or suspected hazardous materials. 16. SEVERABiLITY: In the event any of the provisions of this Agreement should be found to be unenforceable, it shall be stricken and the remaining provisions shall remain enforceable 17. TERMINATION. This Agreement may be terminated by either party upon seven (7) calendar days prior written notice lm the event of termination, DWMA shall be compensated by CLIENT for all Services performed up to and including the termination date, including Reimbursable Expenses, and for the completion of such Services and records as are necessary to place DWMA's tiles in order or protect its professional reputation. Upon termination of this Agreement, DWMA shall have no further liability to CLIENT for any Services to be performed under this Agreement. CLIENT'S INITIALS DWMA INC.'S INITIALS F:1ConlractlPtcp10796b.doc DONALD W. McINTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32769 -2355 • (4071 644A068 • FAX (4071644-8318