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HomeMy WebLinkAboutItem #05 Award of Design Services re: Windsor Landing Reuse Main Extension AGENDA ITEM COVER SHEET Meeting Date: March 7, 2006 Item # 5_ Contact Name: Contact Number: David Wheeler, P.E. 407 -905-3100, Ext. 1505 Reviewed By: Department Director: City Manager: ~~ ~ -- onald W. Mcintosh Associates, Inc. for the Windsor Background Summary: The Windsor Landings development was constructed in accordance with City Code that requires all new developments built after 1994 to have reuse systems included in the infrastructure construction. The Windsor Landings residential subdivision was constructed with the reuse infrastructure included but without a source of supply of water for irrigation usage. The reuse extension project generally includes installing approximately 2,000 linear feet of 12 and 8 inch reuse main from the Maguire and Moore Road intersection south to Sage Crest Drive, the entrance to the Windsor Landings development. The reuse main will connect to the reuse system in Maguire Road and connect to the Windsor Landings development at Thornbrooke Road and Sage Crest Drive. The pipeline will also provide reuse water to the Meadow Ridge PUD and the proposed town home project on the southwest corner of Maguire Road and Roberson Road. This project was identified in the Five Year CIP Program but in FY 06/07 for design and FY 07/08 for construction. Staff submitted a grant funding application to the South Florida Water Management District (SFWMD) under the Alternative Water Supply Construction Cost Share Program. The SFWMD funded the project the first year of their program in the amount of $50,000 and the project needs to be completed by August of 2006. The City Commission accepted the grant at the November 15, 2005 Commission meeting. The Meadow Ridge PUD is located along the northern portion of the reuse main route and this portion of the reuse main is being designed and constructed by the developer. Staff asked the developers Meadow Ridge PUD design engineer, Donald W. Mcintosh Associates, Inc. (DWMA) for a proposal to design the southern portion of the proposed reuse main. The attached proposal is DWMA, Inc. estimate of design costs to design the southern portion of the reuse main. DWMA, Inc. proposal cost is a not to exceed fee of $16,550. Issue: The Windsor Landings reuse main extension was awarded a grant by the South Florida Water Management District. The project needs to be designed and Donald W. Mcintosh Associates, Inc., design engineer for the Meadow Ridge PUD is willing to assist the City with the design. Recommendations Staff recommends that the City Commission approve the employment of Donald W. Mcintosh Associates, Inc. to perform design services for the Reuse Main Extension to Windsor Landings Project in the amount of $16,550.00, and authorize staff to execute the purchase order and proceed with the project. Attachments: Donald W. Mcintosh Associates, Inc. proposal dated February 7,2006 (with modification) Financial Impact: The award of this design services will require the Public Utilities Department to move the project forward in the Five Year CIP Program and obtain City Commission approval at mid-year budget adjustment to allocate the funds. Staff has prepared the budget adjustment documentation for this project, based upon the SFWMD grant award and this proposal for design services. The design services will be covered from the 2003 Bond Issue. Type of Item: (please mark with an "x'j Public Hearing _ Ordinance First Reading Ordinance Second Reading Resolution ~ Commission Approval Discussion & Direction For Clerk's Deat Use: _____ Consent Agenda _____ Public Hearing _____ Regular Agenda _ Original Document/Contract Attached for Execution by City Clerk _ Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by (Public Utilities) N/A N/A N/A 2 Citv Manager Robert Frank Commissioners Gary Hood, District 1 Scott Anderson, District 2 Rusty Johnson, District 3 Nancy J. Parker. District 4 Mayor S. Scott Vandergrift STAFF REPORT TO: The Honorable Mayor and City Commissioners FROM: David A. Wheeler, P.E., City Engineer DATE: February 28, 2006 RE: Design Services for the Reuse Main Extension to Windsor Landings ISSUE The Windsor Landings reuse main extension was awarded a grant by the South Florida Water Management District. The project needs to be designed and Donald W. Mcintosh Associates, Inc., design engineer for the Meadow Ridge PUD is willing to assist the City with the design. BACKGROUNDIDISCUSSION The Windsor Landings development was constructed in accordance with City Code that requires all new developments built after 1994 to have reuse systems included in the infrastructure construction. The Windsor Landings residential subdivision was constructed with the reuse infrastructure included but without a source of supply of water for irrigation usage. The homes were either connected to the potable water supply from Orange County Utilities or were connected to the reuse system when it was activated with potable water through a master jumper. The development was constructed starting in 2000 with the infrastructure for phase 1. The development is built out at this time. The new reuse project generally includes installing approximately 2,000 linear feet of 12 and 8 inch reuse main from the Maguire and Moore Road intersection south to Sage Crest Drive, the entrance to the Windsor Landings development. The reuse main will connect to the reuse system in Maguire Road and connect to the Windsor Landings development at Thornbrooke Road and Sage Crest Drive. The pipeline will also provide reuse water to the Meadow Ridge PUD and the proposed town home project on the southwest corner of Maguire Road and Roberson Road. This project was identified in the Five Year CIP Program but in FY 06/07 for design and FY 07/08 for construction. Staff submitted a grant funding application to the South Florida Water Management District (SFWMD) under the Alternative Water Supply Construction Cost Share Program. The intent was to become known by the SFWMD for future considerations, since it is not widely known that this portion of Ocoee is actually in the SFWMD as opposed to the St. Johns River Water Management District. The SFWMD funded the project the first year of the program; they worked under the principle of a reduced amount of funding for many projects as opposed to significant funding for a few projects. The amount of the grant from the SFWMD is $50,000 and the project needs to be completed by August of 2006. The City Commission accepted the grant at the November 15, 2005 Commission meeting. 1 The project was originally budgeted as a stand alone project to be designed in total by an engineer, competitively bid for construction, and constructed by one contractor. The project was originally budgeted at $340,000. If the Meadow Ridge PUD's schedule had not been conducive to meeting the SFWMD's requirements, the City would have been to proceed on its own. With a portion of the project being constructed by the Meadow Ridge PUD developer, this will help reduce costs. The Meadow Ridge PUD project is projected to go to construction in April of this year provided that the City Commission approve the project at this Commission meeting. The Meadow Ridge PUD is located along the northern portion of the reuse main route and this portion of the reuse main is being designed and constructed by the developer. Staff asked the developers Meadow Ridge PUD design engineer, Donald W. Mcintosh Associates, Inc. (DWMA) for a proposal to design the southern portion of the proposed reuse main. The attached proposal is DWMA, Inc. estimate of design costs to design the southern portion of the reuse main. DWMA, Inc. proposal cost is a not to exceed fee of $16,550. The design services not grant eligible; therefore in reducing the actual costs versus the estimated costs as part of planning is helpful in moving this project forward in time. Staff's intent is to look at change ordering the southern portion into of the reuse project into the Meadow Ridge PUD if possible, if not the City will competitively bid that portion of the project. This will help with project scheduling and meeting the SFWMD timeframe of being operational by the end of August 2006 to meet their program requirements. 2 I~I DONALD W. MciNTOSH ASSOCIATES, INC. CiVIL ENGINEERS LAND PLANNERS SURVEYORS .. 2200 Park Ave. North Winter Park, FL 32789-2355 Fax 407-644-8318 407-644-4068 http://www.dwma.com February 17,2006 David Wheeler, P.E. City of Ocoee 150 North Lakeshore Drive Ocoee, FL 34761 Re: Re-use Water Line - Survey and Design Maguire Road - City of Ocoee, FL DWMA Job No. 26010.0005 - 26010.0033 Dear David: We are pleased to present this Letter Agreement for the referenced project. 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 for Proposal and CLIENT Responsibilities, and the Terms of Agreement documents. SCOPE OF WORK This project is for the extension of a re-use water main on the east side of Maguire Road south of Moore Road to connect to the existing re-use water mains located at Sagecrest Drive and Throne Brooke Drive. The final engineering construction plans will show the total project but will show two (2) phases: Meadowridge Phase 1 and City of Ocoee Phase 2 BASIC SERVICES & ITEMIZED FEES The nature, scope and schedule (if any) of basic services (hereinafter referred to as "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 - PROFESSIONAL SURVEYING & MAPPING A. TOPOGRAPHIC DATA - Provide topographic data for re-use water line design along the east side of Maguire Road from Moore Road to 100 feet south of Sagecrest Drive. Elevations will obtained on 100 footl: intervals from edge of pavement to the existing subdivision wall or right-of-way line. Visible surface features will be located. $3,850.00 F:ICONTRACTlPlcp6524. doc I~I David Wheeler, P.E. City of Ocoee Re: Re-use Water Line - Survey and Design DWMA Job No. 26010.0005 - 26010.0033 February 17, 2006 Page 2 of9 B. LOCATE UTILITY FLAGS - Locate underground utility lines as flagged by a utility locating service. DWMA will schedule a field appointment with the locating company on a one-time basis, for the purpose of locating the marked utility lines. DWMA will show the approximate location of these underground lines per the horizontal markings as established by the locating company. DWMA will be responsible only for the horizontal location of the flags set by the utility location service company. Digging marked locations for verification and measuring depths by DWMA is not included. DWMA is not liable for showing any utility lines not flagged by the locating company. (Does not include any geotechnical work). SUBTOTAL PART I PART II - CIVIL ENGINEERING A. CONSTRUCTION DRAWINGS - Design, preparation and submittal of construction drawings and technical specifications for a re-use water line located as stated above. Provide quantity and cost breakdown for Phases I and 2. (Note: FDEP permit and right- of-way utilization permit will not be required.) B. MEETINGS - Representation at two (2) City staff meetings ($600.00 each) associated with final design, plan revisions and approval. Additional meetings or reports requested by City to be billed on an hourly basis per the attached rate schedule. SUBTOTAL PART II (Excluding Hourly Rates) TOTAL PARTS I - II (Excluding Hourly Rates) F:\CONTRAOO<f\t~t~ W. MciNTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32789-2355 . (407) 644-4068 . FAX [407J 644-8318 $3,500.00 $7,350.00 $7,500.00 $1,200.00 $8,700.00 $16,050.00 I~I David Wheeler, P.E. City of Ocoee Re: Re-use Water Line - Survey and Design DWMA Job No. 26010.0005 - 26010.0033 February 17, 2006 Page 3 019 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, plus Reimbursable Expenses. Expenses shall be calculated at 5% of invoiced amount and include all consultant provided expenses (excluding agency fees, project co-consultant fees and bid sets). 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 time expended in each progress billing multiplied by the hourly rates on the Hourly Rate Schedule, as applicable, plus Reimbursable Expenses as defined above. 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, DO~.~p vy. MCI~JOSH ~~~OCIAI:ES, INC. ,// // / ;/ /'\.l, // ....././ -,~j~/J j:::- Senior Vice President CHT/sal (12) ACCEPTANCE OF CONTRACT BY: [Signature] [Date] [Name and Title] [Company] F:\CONTRA<fjtiM~1.:.ca W. MciNTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32789-2355. [407J 644-4068 . FAX [407J 644-8318 I~I David Wheeler, P.E. City of Ocoee Re: CLIENT BILLING INFORMATION SHEET Page 40f9 CLIENT BILLING INFORMATION SHEET Please help us set up your file correctly by proving us with the following information: 1) 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 8) Person(s) authorized to order additional services or prints 9) Purchase Orders Required? Yes D 10) Name under which title of property is held N/A~ No D Note: If the CLIENT is not the Record Owner of the subject property, DWMA must be provided with written verification of Owner's acknowledgment that DWMA will be providing professional services related to the subject property and that the Record Owner understands the financial obligations related thereto and that his 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:\CONTRA~~t.'5 W. MciNTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIOA 32789-2355' (407) 644-4068 . FAX (407) 644-8318 I~I David Wheeler, P.E. City of Ocoee Re: HOURLY RATE SCHEDULE Page 50f9 HOURLY RATE SCHEDULE FEBRUARY 2005 PERSONNEL CLASSIFICA nON Principal Engineering Department Director Survey Department Director Planning Department/Entitlements Director Associate Senior Engineering Project Manager Senior Survey Proj ect Manager Sr. Reg. Engineer; Eng. Project Manager Survey Proj ect Manager Registered Engineer Registered Surveyor GIS Administrator Computer System/GIS Manager Engineer III Engineer II Engineer I Senior Planner Senior Design Technician Design Technician Assistant Planner Survey Technician Construction Services Director Construction Observer Researcher Draftsman Project Manager Assistant ClericallRunner Survey Crew GPS Survey Crew Pickup/Delivery HOURL Y RATE $250.00 $220.00 $200.00 $220.00 $185.00 $180.00 $165.00 $160.00 $145.00 $140.00 $140.00 $130.00 $130.00 $125.00 $115.00 $105.00 $100.00 $105.00 $90.00 $85.00 $90.00 $115.00 $80.00 $85.00 $70.00 $75.00 $50.00 $135.00 $240.00 $35.00 Expenses shall be calculated at 5% of invoiced amount and include all consultant provided expenses (excluding agency fees, project co-consultant fees and bid sets). The above hourly rates do not apply to expert witness preparation, depositions and testimony. Hourly rates for these services will be provided upon request. F:\CONTRA<D-ONP.120 W. MciNTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32789-2355. (407) 644-4068 . FAX (407) 644-8318 I~I David Wheeler, P.E. City of Ocoee Re: BASIS OF PROPOSAL AND CLIENT RESPONSIBILITIES Page 60f9 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 govemmental 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, and non-civil utility engineering (e.g., power, gas, telephone, cable television, site lighting), services 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., underdrains, 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 on site or offsite construction. F:\CONTRA~0P4!A190 W. MciNTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32789-2355. [407] 644-4068 . FAX (407) 644-8318 I~I David Wheeler, P.E. City of Ocoee Re: BASIS OF PROPOSAL AND CLIENT RESPONSIBILITIES Page 70f9 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. No permit applications or negotiations with regulatory agencies or permitting authorities are included other than those specifically listed herein. 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 surveyor 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 information 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. The CLIENT will engage a professional state licensed hydrogeologist for completion of hydrologic data required in support of a Consumptive Use/Water Use Permit. 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 any portion of the Project designed by the CLIENT's other consultants, or for compliance with local, state or federal ADA requirements. DWMA shall not be required to check or verify other consultants' work product 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 the services performed by any 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 DWMAINC.'SINITIALS ~ F:\CONTRACO'ff'/\Ej)i~f) W. MciNTOSH Associates, Inc. 2200 PARK AVENUE NORTH. WINTER PARK. FLORIDA 32789-2355 . (407) 644-4068 . FAX (407) 644-8318 I~I David Wheeler, P.E. City of Ocoee Re: TERMS OF AGREEMENT Page 80f9 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 affiliate perfonning Services. "Basic Services" means only the specificitems to be perfonned by DWMA as set specifically forth in DWMA's Letter Agreement, incorporated herein by this reference, and these Tenns 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 use of CLIENT, and its disclosed principal, if any. CLIENT is not authorized to distribute or otherwise share DWMA's documents, work product or infonnation 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 tenns 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 perfonned 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 the event that all such tests and inspections are not so perfonned, 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 perfonn 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 detennine generally whether the Work is being perfonned 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 changes 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 thereon 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 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 on 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 infonn 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 tenns of this Agreement. The CLIENT hereby acknowledges and agrees that DWMA's Services are professional services that shall be performed in the practice ofDWMA'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 to a 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 Sub consultants 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. After 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 infonnation contained therein, 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. II. 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 confonnity 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. F:\CONTRA<DOI\t~'t9B W. MciNTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32788-2355. [407] 644-4068 . FAX (407] 644-8318 I~I David Wheeler, P.E. City of Ocoee Re: TERMS OF AGREEMENT Page 90f9 . DWMA's review and submittal of partial and final payment applications provides that, in our best judgment, the certified amounts of work have been completed. DWMA's review and recommendations for partial and fmal 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: Neither the CLIENT nor DWMA shall have any right to assign this Agreement to any other person or entity, absent prior written consent from the other party. 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 AGREEMENT/GOVERNING LAW: Regarding the subject matter hereof, tllis Agreement contains the entire agreement 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 Florida. 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 Terms of Agreement, the Basis of ProposaVCLIENT Responsibilities attachments, and any modifications hereto by Additional Services Agreement or otherwise. The meanings and definitions contained in any part of the Agreement, shall apply to all of the Agreement and any part thereof. 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. In 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 files 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. 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 $100,000.00. 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 $500,000.00 or the amount of DWMA's fee, whichever is the greater, by agreeing to pay DWMA a sum equivalent to an additional amount of 5% of the total fee to be charged for DWMA's Services. This charge is not to be construed as being a charge for insurance of any type, but is increased consideration for greater liability. 19. INDEMNITY: Subject to the foregoing damage limitations, DWMA agrees to indemnify and hold CLIENT harmless from and against any and all claims, suits, costs and expenses, including reasonable attorney's fees and court costs, arising solely out of DWMA's negligence. CLIENT agrees to indemnify and hold harmless DWMA from and against any and all claims, suits, costs and expenses, including reasonable attorney's fees and court costs, arising out of CLIENT's negligence. 20. DISCOVERY OF UNANTICIPATED HAZARDOUS MATER- IAL: DWMA and CLIENT agree that the discovery of hazardous materials constitutes a changed condition allowing DWMA the option of renegotiation of the schedule, scope or price of Services, or to terminate this Agreement. DWMA and CLIENT also agree that the discovery of hazardous materials may make it necessary for DWMA to take immediate measures to protect health and safety. CLIENT agrees to compensate DWMA for any time spent and expense incurred by DWMA to protect employees' and the public's health and safety. DWMA agrees to notify CLIENT as soon as practical should hazardous materials or suspected hazardous materials be encountered. In addition, CLIENT waives any claim against DWMA and agrees to defend, indemnify and save DWMA harmless from any claim or liability for injury or loss arising from hazardous materials or suspected hazardous materials. CLIENT'S INITIALS DWMA INC.'S INITIALS ~ F\CONTRAU'E1f\1~t;ifj W. MciNTOSH Associates, Inc. 2200 PARK AVENUE NORTH, WINTER PARK, FLORIDA 32788-2355 . (407) 644-4068 . FAX (407) 644-8318 02/24/06 FRI 13:48 FAX I~I David Wheeler, P.E. City of Oc.oee Re: Re-U$e Water Line - Survey and Design DWMAJobNo. 26010.0005 -26010.0033 February 17, 2006 Page 2 of9 B. LOeA 1E UTIT..m FLAGS - Locate underground utility lines as flagged by a utility locating service. DWMA will schedule a field appointment with the locating company on a one-time basis, for the pW'pose of locating the marked utility lines. DWMA will show the approximate location of these underground lines per the horizontal markings as established by the locating company. DWMA will be responsible only for the horizontal location of the flags set by the utility location service company. Digging marked locations for verification and measuring depths by DWMA is not included. DWMA is not liable for showing any utility lines not flagged by the locating company. (Does not include any geotechnical work). SUBTOTAL PART I PART U - CIVll.. ENGINEERING A. CONSTRUCTION DRA WlNGS ~ Design, preparation and submittal of construction drawings and technical specifications for a re-use water line located as stated above. Provide quantity and cost breakdovvn for Phases 1 and 2. (Note: FDEP pennit and right- of-way utilization permit will not be required.) B. MEETINGS - Representation at two (2) City staff meetings ($600.00 each) associated with final design, plan revisions and approval. Additional meetings or reports requested by City to be billed on an hourly basis per the attached rate schedule. SUBTOT AL PART n (Ex.c:luding Hourly Rates) TOTAL PARTS 1- D (Excluding Hourly Rates) YY\ Vs C, lC'iVE::M6'~ Lv~v So~ '\ or A \..-. F;\CONTRA~~'lcte5 W. MciNTOSH Associates, Inc. 2200 PARK AveNUE NORTH, WINTER PARK, FLORIDA 3::l76S.:lS55. (407) 644-4ClSe. FAX (407) 644-6318 141001 ~ t>'iJ $3,500.00 . $7,350.00 ')-"1) b~ $7,500.00. f.>'" II $1,200.00. $8,700.00 516,050.00 ~o/ ~/ 5"00.../ . I 1 "'-' ~~\.~I S5~~O