112/17/2008 Agreement
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
December 24, 2008
TO:
Peter Horton, Director
Airports ~
Isabel C. DeSantis . . jJI'
Deputy Clerk Jf'"
FROM:
At the December 17, 2008, Board of County Commissioner's meeting the Board granted
approval and authorized waiving the County's purchasing policy and procedure and approving a
Standard Form of Agreement between Monroe County and Perez Engineering and Development,
Inc., to provide resident inspector services at the Key West International Airport construction
project
Attached is a duplicate original of the above document for your handling. Should you
have any questions, please do not hesitate to contact this office.
cc: County Attorney
Finance
File
STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND CONSULTANT
FOR RESIDENT INSPECTOR SERVICES
THIS AGREEMENT is made this 17th day of December, 2008 by and between Monroe
County, a political subdivision of the State of Florida, whose address is 1100 Simonton Street,
Key West, hereafter "OWNER or COUNTY" and Perez Engineering and Development, Inc., a
Florida Corporation whose address is 1010 Kennedy Drive, Suite 400, Key West, Fl. 33040
hereafter "CONSULTANT or CONTRACTOR".
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For the following project: KEY WEST INTERNATIONAL AIRPORT - NEW TERNflNAL
BUILDING AND RENOVATION PROJECT KEY WEST, FLORIDA 33040. .
The OWNER and CONSULTANT agree as set forth below.
ARTICLE 1
Consultant Services
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The following is a summary of CONSULTANT's primary duties:
Specific Tasks
1.1 Check activities to ensure compliance with the plans and specifications. Inform the
COUNTY and the Contractor of any work that is non-compliant.
1.2 Ensure that all testing required by the specifications are performed. Ensure that all materials
used are accompanied by the numerical tests results or a certification from the manufacturer
that the material meets the applicable standards.
1.3 Ensure material tests are performed at the frequency stated in the specifications and witness
the tests as they are performed.
1.4 Review the test reports and certifications for conformance with the specifications and
maintain a file for all reports and certifications.
1.5 Inform the CONTY and contractor of deficiencies so corrections can be made and retesting
performed.
1.6 Document quantities of materials used on the project by actual field measurements and
computations in a field book.
1.7 Maintain a set of working drawings on the job site.
1.8 Review pay request applications from the contractor.
1.9 Assist with preparation and submittal of FAA Form 5370-1 to the appropriate FAA Airports
Division/District/Field Office.
The following is a list of general tasks pertaining to Resident Inspector services for all
projects and are considered supplemental to the tasks described above:
General Tasks
1.1 0 CONSULTANT shall be a representative of and shall advise and consult with the
COUNTY during construction and until final payment to the contractor is due. The
CONSULTANT shall have authority to act on behalf of the County only to the extent
provided in this AGREEMENT and as provided in the contract for construction unless
otherwise modified by written instrument.
1.11 The CONSULTANT shall visit the site at regular intervals appropriate to the stage of
construction or as otherwise agreed to by the COUNTY and the CONSULTANT, in
writing, to become generally familiar with the progress and quality of the work
completed and shall determine in general if the work is being performed in a manner
indicating that the work when completed will be in accordance with the contract
documents. The CONSULTANT shall keep the COUNTY informed of the progress and
quality of the work and shall provide certification to the COUNTY of satisfactory
completion of all phases of the work in compliance with the plans, specifications, and/or
approved changes or modifications thereto.
1.12 The CONSULTANT shall not have control over or charge of and shall not be responsible
for construction means, methods, techniques, sequences or procedures of construction or
for safety precautions and programs in connection with the work, since these are solely
the CONTRACTOR'S responsibility under the contract for construction. The
CONSULTANT shall make every reasonable effort to ensure that the CONTRACTOR
completes the work in accordance with the current approved schedule and carries out the
work in accordance with the contract documents.
1.13 The CONSULTANT based on observations and evaluations of CONTRACTOR'S
applications for payment, shall review the amounts due the CONTRACTOR.
1.14 The CONSULTANT'S certification for payment shall constitute a representation to the
COUNTY, based on the consultants observations at the site as provided herein and on the
data comprising the CONTRACTOR'S application for payment that the work has
progressed to the point indicated and that, to the best of the CONSULTANT'S
knowledge, information, and belief, the quality and quantity of work is in accordance
with the contract documents. The foregoing representations are subject to an evaluation
of the work for conformance with the contract documents, correctable prior to completion
and to specific qualifications expressed by the CONSULTANT. The issuance of the
certificate of payment shall further constitute a representation that the CONSULTANT
has made observations to review the quality or quantity of the work.
1.15 The CONSULTANT shall recommend disapproval or rejection of CONTRACTOR'S
work to the COUNTY which does not conform to the contract documents. The
CONSULTANT will have authority to require additional inspection or testing of the
work in accordance with the provisions of the contract documents, whether or not such
work is fabricated, installed or completed.
1.16 The CONSULTANT shall review and approve or take other appropriate action upon
CONTRACTOR'S submittals such as shop drawings, product data, and samples for the
purpose of checking for conformance with information given and the design concept
expressed in the contract documents. The CONSULTANT shall evaluate and determine
the acceptability of substitute materials and equipment proposed by CONTRACTORS.
1.17 The CONSULTANT shall conduct inspections to determine the date or dates of
substantial completion and the date of final completion, shall receive and forward to the
COUNTY for the COUNTY'S review and records, written warranties and related
documents required by the contract documents, and assembled by the CONTRACTOR
and shall issue a final certificate for payment upon compliance with the requirements of
the contract documents.
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ARTICLE 2
OWNER'S RESPONSIBIL TIES
2.1 The OWNER shall provide full information regarding requirements for the project. The
OWNER shall furnish required information as expeditiously as necessary for the orderly
progress of the Work, and the CONSULTANT shall be entitled to rely on the accuracy and
completeness thereof.
2.2 The OWNER shall designate a representative authorized to act on the OWNER's behalf
with respect to the Project. The OWNER or such authorized representative shall render
decisions in a timely marmer pertaining to documents submitted by the CONSULTANT in order
to avoid unreasonable delay in the orderly and sequential progress of the CONSULTANT's
services.
ARTICLE 3
USE OF CONSULTANT'S DOCUMENTS
3.1 The documents prepared by the CONSULTANT for this Project are instruments of the
CONSULTANT's service for use solely with respect to this Project and, unless otherwise
provided, the CONSULTANT shall be deemed the author of these documents and shall retain all
common law, statutory and other reserved rights, including the copyright. The OWNER shall be
permitted to retain copies, including reproducible copies, of the CONSULTANT's documents for
the OWNER's information, reference and use in connection with the Project. The
CONSULTANT's documents shall not be used by the OWNER or others on other projects, for
additions to this Project or for completion of this Project by others, unless the CONSULTANT is
adjudged to be in default under this Agreement, except by agreement in writing and with
appropriate compensation to the CONSULTANT.
ARTICLE 4
DISPUTE RESOLUTION
4.1 OWNER and CONTRACTOR agree that all disputes and disagreements shall be
attempted to be resolved by meet and confer sessions between representatives of each of the
parties. If no resolution can be agreed upon within 30 days after the first meet and confer
session, the issue or issues shall be discussed at a public meeting of the Board of County
Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then
any party shall have the right to seek such relief or remedy as may be provided by this Lease
Agreement or by Florida law.
ARTICLE 5
TERMINATION OR SUSPENSION
5.1 This agreement may be terminated by either party upon not less than seven days' written
notice should the other party fail substantially to perform in accordance with the terms of this
Agreement through no fault of the party initiating the termination.
5.2 If the OWNER fails to make payment when due the CONSULTANT for services and
expenses, the CONSULTANT may, upon seven days' written notice to the OWNER, suspend
performance of services under this Agreement. Unless payment in full is received by the
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CONSULTANT within seven days of the date of the notice, the suspension shall take effect
without further notice. In the event of a suspension of services, the CONSULTANT shall have
no liability to the OWNER for delay or damage caused the OWNER because of such suspension
of services.
5.3 In the event of termination not the fault of the CONSULTANT, the CONSULTANT shall
be compensated for services performed prior to termination, together with Reimbursable
Expenses then due and all Termination Expenses as defined in Paragraph 5.4.
5.4 Termination Expenses shall be computed as a percentage of the compensation earned to
the time of termination, as follows:
.1 For services provided on the basis of a multiple of Direct Personnel Expense, 10
percent of the total Direct Personnel Expense incurred to the time of termination,
and
.2 For services provided on the basis ofa stipulated sum, 10 percent of the stipulated
sum earned to the time of termination.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Causes of action between the parties to this Agreement pertaining to acts or failures to act
shall be deemed to have accrued and the applicable statute of limitations shall commence to run
not later than the date payment is due the Consultant pursuant to Paragraph 8.4.
6.2 The OWNER and CONSULTANT, respectively, bind themselves, their partners,
successors, assigns and legal representatives to the other party to this Agreement and to the
partners, assigns and legal representatives of such other party with respect to all covenants of this
Agreement. Neither OWNER nor CONSULTANT shall assign this Agreement without the
written consent of the other.
6.3 This Agreement represents the entire and integrated agreement between the OWNER and
the CONSULTANT and supercedes all prior negotiations, representations or agreements, either
written or oral. This Agreement may be amended only by written instrument signed by both
OWNER and CONSULTANT.
6.4 Nothing contained in this Agreement shall create a contractual relationship with or a
cause of action in favor of a third party against the OWNER or CONSULTANT.
6.5 Unless otherwise provided in this Agreement, the CONSULTANT shall have no
responsibility for the discovery, presence, handling, removal or disposal of or exposure of
persons to hazardous materials in any form at the Project site, including but not limited to
asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances.
6.6 It is mutually covenanted and agreed between the parties hereto that no waiver of a
breach of any of the covenants of this lease agreement shall be construed to be a waiver of any
succeeding breach of the same covenant.
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6.7 CONSULTANT hereby agrees to be bound by, and at its own cost, comply with all
Federal, State or local laws, codes, ordinances and regulations applicable to this agreement and
the performance of the work hereunder. CONSULTANT shall be duly licensed to operate under
the law of the applicable jurisdiction. CONSULTANT shall be liable to OWNER for all loss,
cost and expense attributable to any acts of commission or omission by CONSULTANT, its
employees, and agents resulting from failure to comply including but not limited to any fines,
penalties or corrective actions.
6.8 Notwithstanding any minimum insurance requirements prescribed elsewhere in this
agreement, CONSULTANT shall defend, indemnify and hold OWNER and OWNER's elected
and appointed officers and employees harmless from and against (i) any claims, actions or causes
of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other
proceedings relating to any type of injury (including death), loss, damage, fine, penalty or
business interruption, and (iii) any costs or expenses (including, without limitation, costs of
remediation in connection with a violation of any federal, state, or local law or regulation,
attorneys' fees and costs, court costs, fines and penalties) that may be asserted against, initiated
with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A)
any activity of CONSULTANT or any of its employees, agents, contractors or other invitees
during the term of this Agreement, (B) the negligence or willful misconduct of CONSULTANT
or any of its employees, agents, contractors or other invitees, or (C) CONSULTANT's default in
respect of any of the obligations that it undertakes under the terms of this Agreement, except to
the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise
from the intentional or sole negligent acts or omissions of the OWNER or any of its employees,
agents, contractors or invitees (other than Lessee). Insofar as the claims, actions, causes of
action, litigation, proceedings, costs or expenses relate to events or circumstances that occur
during the term of this Agreement, this section will survive the expiration of the term of this
lease or any earlier termination of this Agreement.
6.9 CONSULTANT shall maintain all books, records, and documents directly pertinent to
performance under this Agreement in accordance with generally accepted accounting principles
consistently applied. Each party to this Agreement or their authorized representatives shall have
reasonable and timely access to such records of each other party to this Agreement for public
records purposes during the term of the Agreement and for four years following the termination
of this Agreement.
6.10 This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts made and to be performed entirely in the State. In the
event that any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, the CONSULTANT and OWNER agree that venue will lie in
the appropriate court or before the appropriate administrative body in Monroe County, Florida.
The CONSULTANT and OWNER agree that, in the event of conflicting interpretations of the
terms or a term of this Agreement by or between any of them the issue shall be submitted to
mediation prior to the institution of any other administrative or legal proceeding.
6.11 If any term, covenant, condition or provision of this Agreement (or the application
thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent
by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions
of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition
and provision of this Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law unless the enforcement of the remaining terms, covenants, conditions and
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provisions of this Agreement would prevent the accomplishment of the original intent of this
Agreement. The CONSULTANT and OWNER agree to reform the Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision.
6.12 The OWNER and CONSULTANT agree that in the event any cause of action or
administrative proceeding is initiated or defended by any party relative to the enforcement or
interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-
prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket
expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to
this Lease Agreement shall be in accordance with the Florida Ru1es of Civil Procedure and usual
and customary procedures required by the circuit court of Monroe County.
6.13 Each party represents and warrants to the other that the execution, delivery and
performance of this Lease Agreement have been duly authorized by all necessary County and
corporate action, as required by law.
6.14 OWNER and CONSULTANT agree that each shall be, and is, empowered to apply for,
seek, and obtain federal and state funds to further the purpose of this Agreement; provided that
all applications, requests, grant proposals, and funding solicitations shall be approved by each
party prior to submission.
6.15 OWNER and CONSULTANT agree that all disputes and disagreements shall be
attempted to be resolved by meet and confer sessions between representatives of each of the
parties. If no resolution can be agreed upon within 30 days after the first meet and confer
session, the issue or issues shall be discussed at a public meeting of the Board of County
Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then
any party shall have the right to seek such relief or remedy as may be provided by this Lease
Agreement or by Florida law.
6.16 In the event any administrative or legal proceeding is instituted against either party
relating to the formation, execution, performance, or breach of this Agreement, OWNER and
CONSULTANT agree to participate, to the extent required by the other party, in all proceedings,
hearings, processes, meetings, and other activities related to the substance of this Agreement or
provision of the services under this Agreement. OWNER and CONSULTANT specifically agree
that no party to this Agreement shall be required to enter into any arbitration proceedings related
to thisAgreement.
6.17 OWNER and CONSULTANT agree that there will be no discrimination against any
person, and it is expressly understood that upon a determination by a court of competent
jurisdiction that discrimination has occurred, this Agreement automatically terminates without
any further action on the part of any party, effective the date of the court order. CONSULTANT
agreeS to comply with all Federal and Florida statutes, and all local ordinances, as applicable,
relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil
Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or
national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-
1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the
Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the
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basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-
6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and
Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of
drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis
of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42
USC ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse
patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended,
relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with
Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating
to nondiscrimination on the basis of disability; 10) Sections 13-101, et seq., Monroe County
Code, relating to discrimination based on race, color, sex, religion, disability, national origin,
ancestry, sexual orientation, gender identity or expression, familial status or age; 11) Any other
nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or
the subject matter of, this Lease Agreement.
6.18 OWNER and CONSULTANT covenant that neither presently has any interest, and shall
not acquire any interest, which would conflict in any manner or degree with its performance
under this Lease Agreement, and that the only interest of each is to perform and receive benefits
as recited in this Agreement.
6.19 OWNER agrees that officers and employees of the OWNER recognize and will be
required to comply with the standards of conduct for public officers and employees as delineated
in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of
gifts; doing business with one's agency; unauthorized compensation; misuse of public position,
conflicting employment or contractual relationship; and disclosure or use of certain information.
6.20 OWNER and CONSULTANT warrant that, in respect to itself, it has neither employed
nor retained any company or person, other than a bona fide employee working solely for it, to
solicit or secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual, or firm, other than a bona fide employee working solely for it, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Agreement. For the breach or violation of the provision, the CONSULTANT
agrees that the OWNER shall have the right to terminate this Agreement without liability and, at
its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee,
commission, percentage, gift, or consideration.
6.21 OWNER and CONSULTANT shall allow and permit reasonable access to, and
inspection of, all documents, papers, letters or other materials in its possession or under its
control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the
OWNER and CONSULTANT in conjunction with this Agreement; and the OWNER shall have
the right to unilaterally cancel this Agreement upon violation of this provision by
CONSULTANT.
6.22 Notwithstanding the provisions of Sec. 286.28, Florida Statutes, the participation of the
OWNER and CONSULTANT in this Agreement and the acquisition of any commercial liability
insurance coverage, self-insurance coverage, or local governrnent liability insurance pool
coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall
any contract entered into by the OWNER be required to contain any provision for waiver.
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6.23 All of the privileges and immunities from liability, exemptions from laws, ordinances,
and rules and pensions and relief, disability, workers' compensation, and other benefits which
apply to the activity of officers, agents, or employees of any public agents or employees of the
OWNER, when performing their respective functions under this Agreement within the territorial
limits of the County shall apply to the same degree and extent to the performance of such
functions and duties of such officers, agents, volunteers, or employees outside the territorial
limits of the County.
6.24 Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to,
nor shall it be construed as, relieving any participating entity from any obligation or
responsibility imposed upon the entity by law except to the extent of actual and timely
performance thereof by any participating entity, in which case the performance may be offered in
satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor
shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the
OWNER, except to the extent permitted by the Florida constitution, state statute, and case law.
6.25 No person or entity shall be entitled to rely upon the terms, or any of them, of this
Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of
any service or program contemplated hereunder, and the OWNER and CONSULTANT agree
that neither the OWNER nor the CONSULTANT nor any agent, officer, or employee of either
shall have the authority to inform, counsel, or otherwise indicate that any particular individual or
group of individuals, entity or entities, have entitlements or benefits under this Agreement
separate and apart, inferior to, or superior to the community in general or for the purposes
contemplated in this Agreement.
6.26 CONSULTANT agrees to execute such documents as the OWNER may reasonably
require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free
Workplace Statement.
6.27 No covenant or agreement contained herein shall be deemed to be a covenant or
agreement of any member, officer, agent or employee of Monroe County in his or her individual
capacity, and no member, officer, agent or employee of Monroe County shall be liable
personally on this Agreement or be subject to any personal liability or accountability by reason
of the execution of this Agreement.
6.28 This Agreement may be executed in any number of counterparts, each of which shall be
regarded as an original, all of which taken together shall constitute one and the same instrument
and any of the parties hereto may execute this Agreement by signing any such counterpart.
6.29 Section headings have been inserted in this Agreement as a matter of convenience of
reference only, and it is agreed that such section headings are not a part of this Agreement and
will not be used in the interpretation of any provision of this Agreement.
6.30 This Agreement has been carefully reviewed by OWNER and CONSULTANT, therefore
this agreement is not to be construed against either party on the basis of authorship.
ARTICLE 7
BASIS OF COMPENSATION
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The Owner shall compensate the Consultant as follows:
7.1 The fee shall be based on an hourly time charge basis with an estimated upset limit of
$100,000. Compensation was calculated based on providing the above described services for a
six (6) month period at the following hourly rates:
Principal $ISOlHr
Resident Inspector $llOlHr
7.2 Payments are due and payable thirty (30) days from the date of the Consultant's invoice.
7.3 IF THE SCOPE of the Project or of the Consultant's services is changed materially, the
amounts of compensation shall be equitably adjusted.
This Agreement entered into as of the day and year first written above.
BOARD OF COUNTY COMMISSIONERS
OF;B:.ROE COUNTy,\)i\.ORIDA J-..
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By "
(signature)
(Signature)
Mayor George Neugent
(s(l.'u}inted name and title)
ATTEST: DANNY l. KOLHAGE, ClERK
8YQ,ol,.J..Q.. ~
DEPUTY CLERK
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