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Item C09BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: April 18, 2012 Division: Airports Bulk Item: Yes XX No _ Staff Contact Person: Peter Horton/Pedro Mercado AGENDA ITEM WORDING: Approval of Consulting Agreement with Perez Engineering and Development Inc., for inspection services for noise insulation program (NIP) phase 6 remediation work. ITEM BACKGROUND: The airport is currently performing remediation work on a limited number of homes as a result of subcontract work that was found not to comply with NIP plans and specs. In order to assure the FAA, the agency who funded the NIP work, that the remediation work would be in compliance with plans and specs the County agreed to hire an independent inspector (Perez Engineering) to observe the remediation work. Due to the limited number of homes that need the remediation work, total costs are expected to be less than $25,000 for the observation/inspection services. PREVIOUS RELEVANT BOCC ACTION: None CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approve TOTAL COST: Less than $25,000(estimated) BUDGETED: Yes XX No COST TO COUNTY:N/A SOURCE OF FUNDS: Airport Operating REVENUE PRODUCING: Yes _ No XX AMOUNT PER MONTH Year APPROVED BY: County Atty '� OMB/Purchasing Risk Management DOCUMENTATION: Included XX Not Required DISPOSITION: Revised 2/05 AGENDA ITEM # MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract # Contract with: Perez Engineering Effective Date: execution Expiration Date: Contract Purpose/Description: Perez Engineering and Development, Inc. inspection services NIP ph 6 remediation Contract Manager: Peter Horton # 5200 Airports - Stop # 5 (name) (Ext.) (Department/ Stop) for BOCC meeting on: April 18, 2012 Agenda Deadline: April 3, 2012 CONTRACT COSTS Total Dollar Value of Contract: $25,000 est'd Budgeted? Grant: County Match: NA Estimated Ongoing Costs: (not included in dollar value above) Date In Airports Director 8/2/10 Risk Management / O.M.B./Purchasing / County Attorney Comments: Current Year Portion: $25,000 est'd Account Codes: 404-63001 ADDITIONAL COSTS For: . (eg. maintenance, utilities, janitorial, salaries, etc. CONTRACT REVIEW Changes Needed Yes No Reviewer Peter Horton Risk Management Date Out y_�3�1Z STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSULTANT FOR RESIDENT INSPECTOR SERVICES THIS AGREEMENT is made this day of , 2012 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". For the following project: NIP Phase 6 Remediation. The OWNER and CONSULTANT agree as set forth below. ARTICLE 1 Consultant Services 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. Aa I offil 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 1.10 CONSULTANT shall be a representative of and shall advise and consult with the COUNTY during inspection and construction. The CONSULTANT shall have authority to act on behalf of the County only to the extent provided in this AGREEMENT. 1.11 The CONSULTANT shall be present during all stages of inspection and 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 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. 1.14 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. 1.15 The CONSULTANT shall conduct inspections to determine the date or dates of substantial completion and the date of final completion. ARTICLE 2 OWNER'S RESPONSIBILTIES 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 manner 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 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. 5.3 Termination Expenses shall be computed as a percentage of the compensation earned to the time of termination, as follows: .l 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 of a 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 Article 7. 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 supersedes 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. 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 CONSULTANT). 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 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 Rules 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 this Agreement. 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 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 patient 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 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. 768.28, 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 government 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. 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 The Owner shall compensate the Consultant as follows: 7.1 The fee shall be based on an hourly time charge basis. Compensation was calculated based on providing the above described services for a six (6) month period at the following hourly rates: Principal $150/Hr Resident Inspector $110/Hr 7.2 Unless otherwise provided for in paragraph 7.1 above, for its assumption and performances of the duties, obligations and responsibilities set forth herein, the CONSULTANT shall be paid pursuant to the Florida Prompt Payment Act. (A) If the CONSULTANT'S duties, obligations and responsibilities are materially changed by amendment to this Agreement after execution of this Agreement, compensation due to the CONSULTANT shall be equitably adjusted, either upward or downward. (B) As a condition precedent for any payment due under this Agreement, the CONSULTANT shall submit monthly, unless otherwise agreed in writing by the COUNTY, a proper invoice to COUNTY requesting payment for services properly rendered and reimbursable expenses due hereunder. The CONSULTANT'S invoice shall describe with reasonable particularity the service rendered. The CONSULTANT'S invoice shall be accompanied by such documentation or data in support of expenses for which payment is sought at the COUNTY may require. 7.3 Reimbursable expenses include expenses incurred by the CONSULTANT in the interest of the project outside of the basic scope of work: 1 Expense of transportation submitted by CONSULTANT, in writing, and living expenses in connection with travel authorized by the COUNTY, in writing, but only to the extent and in the amounts authorized by Section 112.061, Florida Statutes. .2 Reproductions as requested only by the COUNTY (beyond 6 complete reports in electronic and printed format, plus one complete reproducible set if drawings are necessary). 7.4 The CONSULTANT may not be entitled to receive, and the COUNTY is not obligated to pay, any fees or expenses in excess of the amount budgeted for this contract in each fiscal year (October 1 - September 30) by COUNTY's Board of County Commissioners. The budgeted amount may only be modified by an affirmative act of the COUNTY's Board of County Commissioners. .2 The COUNTY's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Board of County Commissioners and the approval of the Board members at the time of contract initiation and its duration. THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized representative on the day and year first above written. (SEAL) Attest: DANNY L. KOLHAGE, Clerk By: Deputy Clerk (Seal) Attest: I� Title: BOARD OF COUNTY COMISSIONERS OF MONROE COUNTY, FLORIDA By:_ Title: % ?' COUNTY RNEY VED AS TO 5108M J COUJ'Y ATTO N Date_ 3�`